Monterey Mechanical Co. v. Wilson

ORDER No party to this case has filed a petition for rehearing or suggestion for rehearing en banc. An active judge of this court sua sponte requested a vote on whether to rehear the case en banc. The matter failed to receive a majority of the votes of the active judges in favor of en banc consideration. Fed. R.App. P. 35. The sua sponte request for rehearing en banc is DENIED. KLEINFELD, Circuit Judge, with whom KOZINSKI, O’SCANNLAIN and T.G. NELSON, join, concurring in the order rejecting the suggestion for rehearing en banc: I concur in the order of the full court rejecting the suggestion that we rehear this case en banc. The dissents from denial of rehearing en banc raise new issues not raised by the parties, and therefore not addressed in the opinion, so the new issues are briefly addressed here. A fundamental principle underlies the decision: Americans are entitled to be treated equally by their government, regardless of their race, their skin color, their nationality, their religion, their sex. The seed of this principle was planted in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal.” The fruit is the Fourteenth Amendment to the Constitution: “[N]or shall any state ... deny to any person within its jurisdiction the equal protection of the laws.” The Fourteenth Amendment extends its guarantees to “any person,” in the singular, regardless of that person’s ethnicity or sex. This is not to say that, in the complexity of our legal evolution, the courts have treated this principle as absolute. Precedent establishes qualifications. But fundamental to the qualifications is the principle that if the government treats individuals differently according to their ethnicity or sex, it has to justify it. The district court ruled that: (1) the statute did not treat contractors differently by race or sex; (2) to the extent that it did, the extra burdens imposed on the disfavored contractors were de minimis; and (3) even if contractors were treated differently by ethnicity and sex, and even if the differences were not de minimis, appellant had no standing to complain of unconstitutional discrimination, because the contractor that won the bid also was not a member of the preferred groups. Because the district court decision would stand if any of these propositions was sustained, appellant challenged all these grounds for the district court decision, and was entitled to a decision on all of them. 1. The dissents suggest that the court ought somehow to have avoided deciding the constitutional question. We cannot evade “the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.” Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976) (Brennan, J.). The narrow scope of review in preliminary injunction appeals does not apply when [1271] the district court “misapprehends the law with respect to the underlying issues in litigation.” Sports Form, Inc. v. United Press International, 686 F.2d 750, 752 (9th Cir. 1982). 2. Judge Reinhardt states that in his view, the panel that decided this case and another “improperly assumed jurisdiction over those two cases in contravention of our internal court rules.” The law is to the contrary. Circuit Rule 3-3(d), governing “Preliminary Injunction Appeals,” says that preliminary injunction appeals, such as this one, are referred to the next available motions and screening panel “for disposition.” This case was assigned to the panel in the ordinary course as the rule requires, the panel scheduled and heard oral argument, and then issued a disposition in accord with the rule. Our court’s 1997 monthly statistical report shows that for the year through November, motions and screening panels were assigned 50 preliminary injunction appeals, including this one, decided 46 of them, and referred 4 to merits panels. The normal thing to do, done in over 90% of these cases including this one, is for motions and screening panels to decide the preliminary injunction appeals assigned to them. 3. Judge Reinhardt’s dissent suggests that the court somehow misconstrued the statute, and should have construed it differently or obtained by some means “the views of the state courts.” None of the parties argued that the statute was ambiguous, could be construed any other way, or that any state court decision had construed it in any other way. The law at all relevant times was that California “has no procedure for federal courts to certify questions of state law to the state’s highest court.” Kopp v. Fair Political Practices Comm., 11 Cal.4th 607, 47 Cal. Rptr.2d 108, 115, 905 P.2d 1248, 1255-56 (1995); Nunez v. City of San Diego, 114 F.3d 935, 943 (9th Cir.1997). The State of California construed the statute administratively just as the opinion did, in the “Supplementary General Conditions” form governing contractors. There was no reason to doubt that the statute meant what the parties thought it did, and what the official form said it did. 4. Judge Reinhardt says he “cannot imagine why a federal court would preclude a state university or any other interested party from offering evidence at trial____” Nobody was precluded. No party asked to put on evidence at trial. Trials and evidentiary hearings resolve issues of fact. Appellees raised no issues of fact. The state university and the successful bidder argued that they did not have to justify the statute. Even when the decision came down, and they knew that their argument that no justification was needed had not prevailed; neither the state university nor the competing contractor petitioned for rehearing to ask for a chance to go to trial on some question of fact. No facts were disputed. With no party asking for an opportunity to prove anything, and no facts at issue, the court could not have evaded its “unflagging obligation” to decide the constitutional questions at issue. 5.Judge Reinhardt’s dissent calls the statute a “benign governmental outreach program.” He uses the words “benign,” “fairness,” “good faith,” “fair opportunity,” “innocuous,” “outreach,” and “fair-minded” to characterize the statute and the motives of those who supported it. I infer from these warm words that Judge Reinhardt favors the statute. Beyond that sentiment, though, I cannot discern the legal argument. The opinion carefully noted that “[w]e are not faced with a non-discriminatory outreach program.” Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 711 (9th Cir.1997). The opinion said “[tjhere is much appeal to enlarging the participation of minority-owned and women-owned firms by assuring that they as well as others receive full information on opportunities to bid.” Id. But “[t]he outreach the statute requires is not from all equally, or to all equally.” Id. As for whether ethnic or sex discrimination by goals rather than quotas is subject to City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), precedent establishes that “the relevant question is not -whether a statute requires the use of such measures, but whether it authorizes or encourages them.” Bras v. California Public Utilities Comm., 59 F.3d 869, 875 (9th Cir. 1995). The government can no more say “you have to show us that you tried to steer the business to group X” than “you must succeed at placing the business with group [1272] X,” unless it can justify a preference for group X. 6.Judge Reinhardt’s dissent says that the court’s reasons for the vote rejecting the suggestion for rehearing en banc “should be evident” and cites a New York Times Magazine article. I read the article, and, knowing who voted which way in this ease, and the criteria upon which my colleagues generally vote, I cannot see anything in the article that makes the reasons evident. The article discusses a Fifth Circuit case, pointing out that some prominent educators dislike the result, and explaining the result as “the tragic impact of the Reagan and Bush appointments.” Everyone is entitled to an opinion on whether it is “tragic” when a president of a different party has been elected and has appointed judges, but that has no bearing on the correctness of a judicial decision. Judge Reinhardt could not mean to imply that the judges’ votes on whether to rehear the case en banc followed party lines of the appointing presidents, because that implication would be false. Nor is the New York Times Magazine a source of law. Nor is it “evident” to me what the New York Times Magazine article has to do with why the decision came down as it did and was not reheard en banc. None of the parties petitioned for rehearing or suggested rehearing en banc. Judge Reinhardt suggests that this was because California state officials “were obviously not enthusiastic” about complying with civil rights laws, and that my suggestion that the law had anything to do with the lack of petitions is “highly misleading.” That makes no sense. This was a battle between Swinerton & Walberg and Monterey Mechanical about a contract worth $21 million. Even had the university’s lawyers lost their enthusiasm for their case because of Governor Wilson’s views, as Judge Reinhardt speculates, the contractor with $21 million at risk would not have been dissuaded from protecting its money by the governor’s policy views. Excellent lawyers zealously represented the state university and also the contractor that had won the contract in the appeal, even though the governor took a contrary view. Nor was there anything to stop others, such as advocacy groups for those in the statutory beneficiary classes, from moving for leave to file amicus curiae briefs. The court’s decision was compelled by well established precedent. There is no inter- or intra-circuit conflict. No party petitioned for rehearing en banc. Those factors, doubtless related, probably explain the court’s decision not to rehear the case en banc. 7. Judge Reinhardt’s dissent goes on to say that our court is “no longer a truly representative body” because “there is not a single active African American or Latino judge on our court.” The implication appears to be that judges of the ethnicities Judge Reinhardt specifies would, because of their ethnicity, necessarily agree with his view of the law. Courts apply law, and do not act as representative bodies. Judges adhering to their oaths vote based on their view of the law, not their view of their ethnic groups’ interests. Many of us have ethnic characteristics that make past discrimination against our own groups quite unforgettable, but that cannot be a basis for deciding a case. The Constitution and precedent are the same whatever our ethnicity. Thought comes from the brain, not the blood. 8. Judge Reinhardt incorrectly says that “the opinion suggests that African Americans and Latinos are not actually less well off than whites as a group, but are only ‘perceived’ to be such.” There is no way that the word “perceived” can be read in context to imply the inference Judge Reinhardt draws. The sentence to which Judge Reinhardt objects is this: “The list in the statute before us might be explained by a laudable desire to improve the social position of various groups perceived to be less well off.” Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 714 (9th Cir.1997). We had in the preceding paragraph noted that City of Richmond n J.A. Croson Co., 488 U.S. 469, 505-06, 109 S.Ct. 706, 727-28, 102 L.Ed.2d 854 (1989), says inclusion of Aleuts and Eskimos in a Richmond, Virginia ordinance suggests that the ordinance was not narrowly tailored to remedy past Richmond discrimination. Taking our direction from the Supreme Court, as we must, we therefore said “some of the groups designated [including Aleuts and Eskimos] are, in the context of a Califor [1273] nia construction industry statute, red flags signalling that the statute is not, as the Equal Protection Clause requires, narrowly tailored.” Our “perceived” sentence says that there may have been laudable motives for the preferences, but because the list included so many groups other than the ones of whose history Judge Reinhardt thinks us ignorant, it was “not plausible ... that the list is narrowly tailored to remedy past discrimination.” Monterey Mechanical, 125 F.3d at 714. Judge Reinhardt’s ad hominem polemic against his colleagues relies on an inference obviously false to anyone who takes the trouble to read our opinion. 9. The statutory definition of the minorities to whom business should be steered includes not only Blacks and Mexican-Americans. Among the many groups included .are persons “of color” who are of Spanish origin, Portuguese origin, Cuban, Central or South American, Eskimo, Aleut, Native Hawaiian, Samoan, Guamanian, Indian, Pakistani, and Bangladeshi. Cal. Public Contract Code § 10115.1(d). Applying the statutory “minority” and sex classifications, contractors must try to steer business to an immigrant from Pakistan in preference to an immigrant from Afghanistan, because of where he came from, and to a Beverly Hills orthodontist’s daughter in preference to a Daly City motel maid’s son, because of her sex. Why? For people in some of these groups, California has always been a land of opportunity, to the extent they have been in California at all, not a land of oppression. Why should those people be preferred? Why should people whose groups have been the objects of California discrimination have their preference diluted, even swamped, by those who have suffered no California discrimination? It is striking that black subcontractors were written in for only $19,980 of the successful, complying contractor’s $21,698,000 bid, less than 1/10 of 1%.' The Constitutional requirement of “narrow tailoring” is an instrument of justice, not a mere technicality. It has been a delicate affair for the courts to reconcile the principle that each individual is entitled to equal protection of the laws, with the principle that persons in groups that have been discriminated against deserve a leg up in order to have equal opportunity. Past discrimination sometime, somewhere, is not enough. Many of us are of peoples who have suffered oppression, some recently, some long ago, some in America, some in foreign lands. There is no principle more essential to our nation than that all of our peoples have become one •people, the American people. Therefore, “‘racial classifications are simply too pernicious to permit any but the most exacting connection between justification and classification.’ ” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 236, 115 S.Ct. 2097, 2117, 132 L.Ed.2d 158 (1995). In this case, the “exacting connection” was not even suggested. That, along with all the reasons explained in the opinion and this concurrence, well explains why no party petitioned for rehearing en bane and the court did not vote to rehear the case en banc.