A little over a year ago, I wrote that California Superior Court Judge Terry Green had found that AB 979 facially violates the Equal Protection Clause of the California Constitution, Cal. Const. Art. I, § 7. Crest v. Padilla, L.A. Super. Ct. Case No. Case No. 20STCV37513. Now, United States District Court Judge John A. Mendez has ruled that AB 979 constitutes an unconstitutional racial quota in violation of the Equal Protection Clause and 42 U.S.C. § 1981. Alliance for Fair Board Recruitment v. Weber, 2023 WL 3481146 (E.D. Cal., May 16, 2023). Readers will recall that AB 979 purports to impose minimum numbers of directors from underrepresented communities.
The Secretary of State has appealed Judge Green's decision in Crest v. Padilla on three bases:
- The plaintiffs lack standing under Section 526a of the California Code of Civil Procedure;
- There is no illegal spending on the part of the Secretary of State because data collection and reporting does not implicate equal protection; and
- The statute does satisfies "strict scrutiny" and therefore does not violate equal protection.
In appealing Judge Green's decision, the Secretary of State may be violating the first rule of holes - when you are in one stop digging - as the outcome may be an unfavorable precedential decision.