San Francisco Business Times - December 18, 2000
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State justice raises flag against preferences

Lance Izumi

Two weeks ago, the California Supreme Court used Proposition 209 to strike down a government program based on race and gender preferences.

The unanimous decision was of great interest, not only because it outlined the broad scope of voter-approved Proposition 209, which banned preferences statewide. The decision also showcased the boldness and acumen of Janice Brown, a rising star on the court who is gaining national notice.

Justice Brown, the court's only black member, wrote the majority opinion--and an impressive piece of work it is. The case involved a San Jose program that forced contractors bidding for city contracts to conduct outreach to minority- and women-owned subcontracting firms and to solicit their participation in the contractors' bids. Contractors failing to take measures oriented to race and gender were rejected for city projects, even if they submitted the lowest bid.

The San Jose program clearly violated Prop. 209, which says, "The 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."

In her majority opinion, Brown observed that a race-and-gender-based participation goal "differs from a quota or set-aside only in degree; by whatever label, it remains `a line drawn on the basis of race and ethnic status' as well as sex." Therefore, "such a goal plainly runs counter to the express intent of the historic (U.S.) Civil Rights Act and, concomitantly, the intent of Proposition 209." Enlightening analysis

In addition to invalidating the San Jose program, Brown presented an enlightening analysis of the federal and California judicial and statutory history of race-and-gender preferences. In particular, she focused on the 1964 U.S. Civil Rights Act, which forbids race-and-gender discrimination in employment, and the judicial case law that followed its enactment. This focus was necessary, she noted, because Prop. 209's ballot arguments referred to the Civil Rights Act several times. In her analysis, she observed that Sen. Hubert Humphrey, one of the Act's major supporters, said that the Act wouldn't result in preferential treatment based on race. She also noted that the U.S. Supreme Court originally ruled that Congress passed the Act to "outlaw discriminatory preference for any group, minority or majority."

Only later did the Supreme Court reinterpret the Act to permit race-conscious practices. Prop. 209, according to Brown, was intended to return anti-discrimination policy to the original intent and interpretation of the Civil Rights Act where "preferences for any group constitute inherent inequality" and are thus "an anathema to the very process of democracy." Sniping at Brown

In a concurring opinion, Chief Justice Ron George, a white male, sniped at Brown's opinion and defended the good intentions of preference supporters. He claimed a difference between racial segregationists and race-conscious affirmative-action advocates.

Yet, as UC Regent Stephen Nakashima has eloquently stated, "Discrimination in any form inflicts unjust injury on its victims; the injury is no less because the person who, or the institution which, inflicts it purports to act with good intentions."

Brown's opinion tolls the death knell for California government programs based on race and gender preferences. Her powerful analysis also shows why she should be considered for a position on the United States Supreme Court.

Lance T. Izumi is director of the Center for School Reform at the Pacific Research Institute, a San Francisco-based public policy think tank.

© 2000 American City Business Journals Inc.

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Metropolitan News-Enterprise

Friday, January 31, 2003

Page 1

State Supreme Court Rules:

Judge Erred in Finding Acquitted Murder Defendant ?Innocent?

By KENNETH OFGANG, Staff Writer/Appellate Courts

A Los Angeles Superior Court judge erred in granting a rare finding that an acquitted defendant was ?factually innocent? of murder charges, the state Supreme Court ruled yesterday.

Justice Janice Rogers Brown, writing for a unanimous court, said Los Angeles Superior Court Judge L. Jeffrey Wiatt abused his discretion in granting Jeanie Louise Adair?s?petition for an exoneration that beyond the jury?s ?not guilty? verdict.

Brown agreed with Los Angeles Superior Court Judge Larry Fidler, who as an assigned justice pro tem authored the Court of Appeal?s decision overturning Wiatt?s order, that it was error for the trial judge to grant the factual finding in a case where there was sufficient evidence to sustain a guilty verdict.

Statutory Scheme

?From the statutory scheme [of Penal Code Sec. 851.8], we conclude that although the appellate court should defer to the trial court?s factual findings to the extent they are supported by substantial evidence, it must independently examine the record to determine whether the defendant has established ?that no reasonable cause exists to believe? he or she committed the offense charged?,? Brown wrote. ?Applying that standard to the facts of this case, we find that defendant failed to carry her burden.?

Prosecutors accused Adair of beating her husband, Robert Adair, to death with a baseball bat in their Sylmar condominium in 1996 for $400,000 in life insurance money.

The jury acquitted her after she contended that the jealous wife of a man with whom she was having an affair set up an attack on the defendant, and that Robert Adair was killed when he walked in on it.

She said a man dressed up as a gas company employee, presumably hired by the jealous wife, tied her up and threatened her while he robbed her house.

Beyond Reasonable Doubt

The District Attorney?s Office later conceded that a jury could have had sufficient reasonable doubt to acquit. But prosecutors fought Adair?s petition for a factual innocence finding, which would have expunged her arrest record and constituted a conclusion that the facts not only supported reasonable doubt, but also proved she did not commit the crime.

Wiatt granted the petition soon after the 1999 trial, but stayed his ruling to allow the District Attorney?s Office to appeal.

In making what lawyers on the case said was an unprecedented finding of factual innocence following a jury trial, Wiatt said he was persuaded by the lack of blood on the defendant?s clothing; a timeline of Robert Adair?s activities that was consistent with his wife?s testimony as to the time he arrived home, while the alleged intruder was still in the house; medical evidence contradicting the prosecution?s theory that Jeannie Adair?s injuries were self-inflicted; and the ?uncontroverted? testimony concerning the faux gas company employee.

But Brown agreed with the Court of Appeal that the trial judge cannot grant a finding of factual innocence merely because he or she believes that the evidence supports acquittal.

For the defendant to be declared innocent, the evidence ?must exonerate, not merely raise a substantial question as to guilt,? Brown said. The justice agreed with the Court of Appeal panel that ?there was clearly enough evidence, (albeit circumstantial), to have allowed the jury to convict defendant.?

Fidler, in his opinion for the Court of Appeal?portions of which were incorporated by Brown into her opinion?said the record could support a finding that Adair beat her husband to death with a bat and to cover up her crime made up the story about the man in the gas company uniform. He also said that since her husband had discovered her affair and was planning to move to Las Vegas with their two children, Adair had a personal and financial motive for killing.

The case is People v. Adair, 03 S.O.S. 516.