Northeastern Florida Chapter, Associated General Contractors of America v. City of Jacksonville, Florida Page 2

Northeastern Florida Chapter, Associated General Contractors of America v. City of Jacksonville, Florida general information

Media for Northeastern Florida Chapter, Associated General Contractors of America v. City of Jacksonville, Florida

Audio Transcription for Oral Argument - February 22, 1993 in Northeastern Florida Chapter, Associated General Contractors of America v. City of Jacksonville, Florida

Deborah A. Ausburn:

It is far from clear in this case that the injunction which the district court entered in this case originally almost 3 years ago... it is far from clear whether that permanent injunction does not cover the new ordinance.

The court's injunction stated that the city was free to reenact constitutional ordinance that met this court's guidelines in City of Richmond v. Croson.

It is no more than an assertion on the part of the City of Jacksonville that this new ordinance meets the city of... the guidelines of Croson and therefore meets the terms of the original injunction.

If it were not for the standing issue, Your Honor, either party could go back to the court under the original injunction and ask the court to review this new ordinance under the same standards and under the same legal issues that were presented 4 years ago.

I see.

Deborah A. Ausburn:

However, no one can do this until someone has standing.

All you're asking this Court to do is to reverse the Eleventh Circuit on the standing question.

You're not asking us to decide anything on the merits, are you?

Deborah A. Ausburn:

No, Your Honor.

There is nothing on the merits that has been preserved in this case through... from the district court through the Eleventh Circuit.

The Eleventh Circuit did not decide the merits of the old ordinance, and the merits of the new ordinance have never been challenged.

And, of course, the Eleventh Circuit didn't decide any questions on the adequacy of the pleadings, and there was no question about your ability to amend your complaint because they invoked the standing rule to dismiss the action.

Deborah A. Ausburn:

Yes, Your Honor.

They invoked the standing rule, ordered it dismissed on the basis that our pleadings did not allege sufficient facts that they believed to be required for standing in this case.

Was the ordinance repealed, and then a new one enacted, or was it just amended?

Deborah A. Ausburn:

It was repealed and replaced.

The beginning of the ordinance... I believe, Your Honor, at the very beginning it said that they repealed section 6 of the City of Jacksonville Purchasing Code and replaced it with this following section 6, so the... a new part section 6 is added to the code, I believe is the exact language.

So the new ordinance is in exactly the same place that the old one was.

It is part of the code.

It uses the same statutory citations and for that purpose we've argued that the case is not moot on those grounds.

The question upon which this Court granted certiorari, which is standing and whether a group of nonminority contractors have standing based on the pleadings that were present in this record, there have been three particular standards that have been identified to this Court for determining that standing issue.

The first one is the rule adopted by the Eleventh Circuit Court of Appeals, which apparently no party before this Court is defending any longer, and that is that the contractors must identify a specific bid and a specific contract that was lost due to the enactment of the ordinance.

The second rule that was presented is the City of Jacksonville's latest proposal, which is that the contractors need not show that we actually lost a contract, we need only show that we specifically bid for an ordinance.

And then the third standard is that submitted by petitioners in this case, which is that the statute creates a racial preference that disadvantages certain parties and that we are within that category of people who are disadvantaged.

We believe, Your Honors, that it is this last rule is the only one that is consistent with this Court's precedent in both standing and equal protection law.

As we explained in our brief, the categorical rule which petitioners would ask this Court to adopt stems from a number of cases, such as Baker v. Carr, Quinn v. Millsap and others, which is that the Equal Protection Clause protects access, it does not protect what the Eleventh Circuit asks the injury to be.

It does not protect actually getting a contract, it does not protect actually being able to perform the contract, the Equal Protection Clause protects access to the system, and that when a party does not have complete and fair access to the system, and that access is conditioned on an unconstitutional barrier, that is the injury, and that is sufficient injury for the Equal Protection Clause.

Now, the second rule, which is the latest version, has... sounds more perfectly reasonable that you have to identify a bid.

However, it is an unnecessary addition to the law of equal protection, or the law of standing, and it is not consistent with this Court's rulings in prior cases such as--

I'm sorry, may I just interrupt you for a minute?