February 19, 2020

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Can The Secretary Of State Refuse To Enforce California's Board Gender Quota Law?

The constitutional infirmities of California's novel board gender quota law have been remarked on by everyone from former Governor Jerry Brown to the legislative consultants who prepared bill analyses.  Now there is a pending constitutional challenge.  See Legal Challenge To California Board Gender Quota Law Filed.  In the meantime, should Secretary of State continue to expend funds to administer and enforce a law that is constitutionally suspect?

It is doubtful that the Secretary of State may refuse to enforce the law even if he concludes that it is unconstitutional.  The reason lies with Article III, Section 3.5(a) of the California Constitution which provides:

"An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:

(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;"

The California Constitution does not define "administrative agency" and it thus may be argued that this provision does not apply to a constitutional officer per se.  However, a panel of the Court of Appeal has assumed that the Secretary of State is subject to the policy, if not the letter, of Article III, Section 3.5(a). Stirling v. Jones, 66 Cal. App. 4th 277, 288 n.3 (1998).  The California Supreme Court granted, and then withdrew, review of the case.  At the request of the Secretary of State, the Supreme Court ordered the depublication of the case.  Stirling v. Jones, 1998 Cal. LEXIS 6656.


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About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm

Keith Paul Bishop is a partner in Allen Matkins' Corporate and Securities practice group, and works out of the Orange County office. He represents clients in a wide range of corporate transactions, including public and private securities offerings of debt and equity, mergers and acquisitions, proxy contests and tender offers, corporate governance matters and federal and state securities laws (including the Sarbanes-Oxley Act of 2002 and the Dodd-Frank Act), investment adviser, financial services regulation, and California administrative law. He regularly advises clients...