Prop. 209 reversal is based on law

By Pamela A. Lewis

The San Francisco Examiner, April 14, 1997

Since an injunction was issued by U.S. District Judge Thelton Henderson against implementation of Proposition 209, much as been said about “thwarting the will of the voters.”

Indeed, when the judge was overruled last week by the U.S. Court of Appeals for the 9th Circuit, the wording of the decision showed that the three-judge panel understood the frustration of the 54 percent of California voters who approved the initiative measure last year.

Prop. 209 (now Section 31[a] of Article 1 in the state Constitution) prohibits the state from discriminating against or granting preferential treatment to anyone on the basis of race and gender in the operation of public education, employment and contracting.

Judge Diarmuid O’Scannlain wrote:

“The ink on Proposition 209 was barely dry when plaintiffs filed this lawsuit. For this federal tribunal to tell the people of California that their one-day-old, never-applied law violates the Constitution, we must have more than a vague inkling of what the law actually does. . .”

He also remarked:

“A system that permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy.”

But make no mistake. The overruling of Henderson’s preliminary injunction was not based on the “will of the majority.” It was a decision based on the law and the Constitution.

All Californians should appreciate that the “will of the majority” is subject to judicial review when any law or initiative is challenged based on constitutional principles.

In the same way, all Californians who voted for 209 can appreciate that this same system of judicial review allows the appellate courts to review decisions by trial court judges.

In this case, the 9th Circuit panel found that Henderson had abused his powers of discretion by applying the wrong law to the facts of the case. The opinion by the appellate judges is well reasoned and supported by precedents and legal principles. And it says “equal” means “equal.”

Preferential treatment outlawed by 209 is “unequal” treatment. Because the provision treats everyone equally, there is no violation of the Equal Protection Clause of the Constitution. While many of us were dismayed at the blatant judge-shopping and hasty filing of the lawsuit by the opposition, our system of judicial review has protected our rights to promulgate laws by the initiative process.

It has also protected the opposition’s right to have the “will of the majority” held up to judicial scrutiny.

In the end, the state Constitution and common sense will prevail.