Sacramento, CA. -- What is the only thing harder than passing a landmark ballot initiative in California?
Answer: Implementing it. Just look at the legal travails that have hampered the implementation of
Proposition 209. Voters overwhelmingly approved the anti-race-and-gender-preference initiative and federal
judges upheld it as constitutional. But state judges have been handing down opinions that block the law’s
full application.

Take, for example, Sacramento Superior Court Judge Lloyd Connelly’s recent ruling that Prop. 209 does not
invalidate state personnel policies that establish goals and timetables for hiring and promoting
minorities and women. Judge Connelly, a former Democratic assemblyman, stated that such goals and timetables for the state workforce "function as a means to assess progress in equalizing employment opportunities, not as quotas or set-asides which must be met . . . and which could induce preferential hiring on the basis of race or gender."

Connelly’s semantic tap dancing flies in the face not only of logic, but also of key higher court decisions
and clear voter intent. In a 1997 ruling in a California case, the federal Ninth Circuit Court of Appeals found that a "non-rigid system of goals as opposed to rigid quotas is a [racial and gender] classification" and is therefore not immune from attack. In a previous decision, the Ninth Circuit warned that a court must "look to the economic
realities of the [government] program rather than the label attached to it in determining whether the statute
grants a preference." In other words, cut through the semantic game playing and see if the real-world outcome
of a government action is to give a preference based on race or gender. According to the Ninth Circuit, if one
pierces the fog of goals and timetables, which Judge Connelly refused to do, one finds impermissible racial
and gender preferences.

Although Connelly’s decision to ignore relevant court rulings is disturbing, more appalling is his decision
to ignore the intent of the voters when they approved Prop. 209. Connelly acknowledges that a ballot measure
is one of the best ways of determining voters’ intent. Yet, despite that acknowledgment, Connelly then
proceeds to ignore the fact that the Legislative Analyst’s Office analysis of 209 contained in the
ballot pamphlet specifically cites "Goals and timetables to encourage the hiring of members of
‘underrepresented’ groups for state government jobs" as an example of a preference program. Voters reading the ballot pamphlet almost certainly would have figured that 209 would get rid of such programs. With a thumb
in the eye to Joe Six-pack, however, Connelly concluded that state laws including goals and timetables are not
subject to "the prohibitions of Proposition 209."

Connelly’s decision will now be appealed to the state appellate court. Sharon Browne, attorney for the
Pacific Legal Foundation which is representing Gov. Wilson and Ward Connerly (the parties who brought the
case), says that, "Individual merit, not membership in a government-favored group, should determine employment qualifications." One can only hope that the appellate court also sees it that way.

-- By Lance T. Izumi