IN THE
SUPREME COURT OF CALIFORNIA
HI-VOLTAGE
WIRE WORKS, INC., et al.,
Plaintiffs and Respondents,v.
CITY OF SAN JOSE et al.,
Defendants and Appellants. |
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S080318 Ct. App. 6 H018407
Santa Clara County
Super. Ct. No. CV768694 |
CONCURRING
OPINION BY JUSTICE KENNARD
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I concur in the judgment without joining Justice Brown’s majority opinion, Justice
Mosk’s concurring opinion, or the Chief Justice’s concurring and dissenting
opinion.
At issue is whether a public contracting program of the City of San Jose violates article
I, section 31 of the California Constitution, enacted by initiative in 1996, which
declares that "[t]he state shall not discriminate against, or grant preferential
treatment to, any individual or group on the basis of race, sex, color, ethnicity, or
national origin in the operation of public employment, public education, or public
contracting." I agree with the majority that the ordinary plain meaning of
"preferential" is " ‘priority or advantage to one person
. . . over others.’ " (Maj. opn., ante, at p. 27.) Both the
majority and the Chief Justice review the ballot materials that explained the
constitutional initiative measure to the voters (maj. opn., ante, at pp. 27–30; conc.
& dis. opn., post, at pp. 9–16), and I agree with the majority that nothing in
those materials suggests that those who enacted this constitutional provision intended the
word "preferential" to have other than its common and accepted meaning. Applying
this common meaning of "preferential," I agree with the majority, the Chief
Justice, and Justice Mosk that the challenged program of the City of San Jose grants
preferential treatment on the basis of race and sex in the operation of public
contracting. (Maj. opn., ante, at p. 30; conc. opn. of Mosk, J., ante, at pp. 4–6;
conc. & dis. opn., post, at pp. 24, 29.) |
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Because the issue presented is readily resolved by reference to the ordinary meaning of
the constitutional text and a review of the ballot materials submitted to the voters who
enacted the constitutional provision, I see no need to discuss potentially divisive
matters, such as the history of judicial construction of federal constitutional equal
protection and statutory civil rights provisions as applied to racial distinctions (maj.
opn., ante, at pp. 7–25), possible modifications of the City of San Jose’s
program to "satisfy section 31 in both its end and its means" (conc. opn. of
Mosk, J., ante, at pp. 6–8), or commonly offered justifications for race-conscious
affirmative action programs (conc. & dis. opn., post, at pp. 4–6). But I join the
majority, Justice Mosk, and the Chief Justice in affirming the Court of Appeal’s
judgment.
KENNARD, J.
END (3)
Concurring Opinion of Justice Kennard
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