Connerly v. State of California
177 Cal. Rptr. 3d 304
Cal. Ct. App.2014Background
- In 2008–2010 California transferred decennial redistricting duties to a California Citizens Redistricting Commission whose selection process (Gov. Code §8252) involves an Applicant Review Panel and gives preference to certain parties and seeks demographic diversity (race, ethnicity, gender, geography).
- Plaintiffs Ward Connerly and American Civil Rights Foundation sued, alleging the Commission selection process violated Proposition 209 by granting racial/ethnic/gender preferences; they amended to challenge the Applicant Review Panel as well.
- The State and State Auditor demurred, arguing Proposition 209 applies to public employment, not to selection of public officers; the trial court sustained the demurrer without leave to amend and entered judgment for defendants.
- On appeal Connerly abandoned the Proposition 209 theory and, invoking Code Civ. Proc. §472c(a), proposed a new theory: a federal Equal Protection Clause challenge to the selection process (strict scrutiny review of race/gender classifications).
- Defendants argued it was improper and unfair to raise a new theory on appeal and that strict scrutiny requires fact development; the Court of Appeal focused on §472c(a) and procedural law rather than the merits.
- The Court of Appeal reversed and directed the trial court to grant Connerly leave to amend so defendants can address the proposed federal equal protection claim with a developed factual record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a plaintiff may raise a new legal theory on appeal from a demurrer sustained without leave to amend | Connerly: §472c(a) permits proposing new legal theories/facts on appeal to show the trial court abused its discretion in denying leave to amend | State/State Auditor: Raising a new theory on appeal is unfair; defendants lacked opportunity to litigate factual issues; sometimes new causes are too different to allow | Allowed: §472c(a) authorizes raising new theories on appeal; plaintiff may propose an equal protection theory and request leave to amend |
| Whether Proposition 209 governs selection of public officers (as pled) | Connerly originally argued Prop. 209 prohibits the selection preferences used in the Commission process | Defendants: Prop. 209 applies to public employment, not selection of public officers; demurrer sustained on that ground at trial court | Not decided on merits: Connerly abandoned that theory on appeal; appellate decision does not disturb trial court’s ruling on the original complaint |
| Whether a federal equal protection claim can be raised without further factual development | Connerly: Equal protection claim can be presented because it concerns law applied to disputed but ascertainable facts; if necessary, he seeks leave to amend to plead it | Defendants: Strict scrutiny inquiry is fact-specific; defendants should be allowed to develop evidence of compelling interest and narrow tailoring before court considers the claim | Remand for amendment and factual development: Court held the dispute is not ripe for demurrer; allow amendment so defendants can develop factual record |
| Whether denial of leave to amend was an abuse of discretion | Connerly: Denial was an abuse because §472c authorizes proposing new theory on appeal and the proposed equal protection claim is consistent with the original factual allegations | Defendants: Trial court reasonably denied leave because new theory raises different issues and would prejudice defendants | Reversed: Court directed trial court to grant leave to amend; did not rule on merits of equal protection claim |
Key Cases Cited
- City of Stockton v. Superior Court, 42 Cal.4th 730 (court may review refusal to grant leave to amend)
- Vandermost v. Bowen, 53 Cal.4th 421 (background on creation and selection criteria of the Redistricting Commission)
- Cooper v. Leslie Salt Co., 70 Cal.2d 627 (plaintiff must show how amendment would change legal effect of pleading)
- Austin v. Massachusetts Bonding & Ins. Co., 56 Cal.2d 596 (change in legal theory does not necessarily create a wholly different cause of action)
- CAMSI IV v. Hunter Technology Corp., 230 Cal.App.3d 1525 (trial court discretion to refuse late new theories; distinguishes tactical withholding)
- Connerly v. State Personnel Bd., 92 Cal.App.4th 16 (discusses overlap and distinctions between Prop. 209 and federal equal protection)
- Grutter v. Bollinger, 539 U.S. 306 (strict scrutiny and use of race as a narrowly tailored factor in higher education admissions)