Malabed v. North Slope Borough

• Decision Date: 08 July 2003
• Docket Number: No. 99-35773.,No. 99-35750.,No. 99-35684.,99-35684.,99-35750.,99-35773.
• Citation: 335 F.3d 864
• Parties: Robert MALABED, Plaintiff-Appellee, v. NORTH SLOPE BOROUGH, Defendant-Appellant. Morris David Welch, Plaintiff-Appellee, v. North Slope Borough, Defendant-Appellant. Charles Michael Emerson, Plaintiff-Appellee, v. North Slope Borough, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

335 F.3d 864

Robert MALABED, Plaintiff-Appellee, v. NORTH SLOPE BOROUGH, Defendant-Appellant.

Morris David Welch, Plaintiff-Appellee, v. North Slope Borough, Defendant-Appellant.

Charles Michael Emerson, Plaintiff-Appellee, v. North Slope Borough, Defendant-Appellant.

No. 99-35684.

No. 99-35750.

No. 99-35773.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 2000.

Certified to Alaska Supreme Court July 28, 2000.

Submission Vacated March 27, 2001.

Certified Question Decided by Alaska Supreme Court May 16, 2003.

Resubmitted June 19, 2003.

Filed July 8, 2003.

David C. Crosby, Wickwire, Greene, Crosby, Brewer & Seward, Juneau, AK, for defendant-appellant.

William B. Schendel, Schendel & Callahan, Fairbanks, AK; Kenneth L. Covell, Law Offices of Kenneth L. Covell, Fairbanks, AK, for plaintiffs-appellees.

Robert J. Gregory, Senior Attorney, Equal Employment Opportunity Commission, Washington, D.C., for amicus curiae Equal Employment Opportunity Commission.

David S. Case, Copeland, Landye, Bennett and Wolf, LLP, Anchorage, AK, for amicus curiae Alaska Federation of Natives.

Appeal from the United States District Court for the District of Alaska; John W. Sedwick, District Judge, Presiding. D.C. Nos. CV-98-00004-JWS, CV-98-00398-JWS, CV-98-00413-JWS.

Before BROWNING, B. FLETCHER, and GOULD, Circuit Judges.

OPINION

GOULD, Circuit Judge.

The North Slope Borough appeals the order of the district court enjoining it from enforcing a local ordinance that gives a preference in Borough employment to members of federally recognized Indian tribes. We certified a question to the Alaska Supreme Court asking whether the North Slope Borough ordinance violates local law, state statutory law, or the Alaska Constitution. We have received a response and conclude that the ordinance violates the Alaska Constitution's guarantee of equal protection.

I

The North Slope Borough is a political subdivision of the State of Alaska. In 1997, the Borough Assembly enacted an ordinance (the Ordinance) granting an employment preference to Native Americans, defined as members of federally recognized Indian tribes:

The granting of employment preference to Native Americans. The preference shall apply to hirings, promotions, transfers, and reinstatements. A Native American applicant who meets the minimum qualifications for a position shall be selected, and where there is more than one Native American applicant who meets the minimum qualifications for a position, the best qualified among these shall be selected. A Native American is a person belonging to an Indian tribe as defined in 25 U.S.C. Section 3703(10).

North Slope Borough Code § 2.20.150(A)(27).¹ Plaintiffs/Appellees

are not Native Americans and claim that they were denied employment with the Borough because of the Ordinance. Robert Malabed is an Asian-American of Filipino descent. He worked as a temporary security guard for the Borough for several years until his application for permanent employment was rejected in 1998, about a year after the Borough enacted the Ordinance, and he was replaced by a Native American. Morris David Welch is a Caucasian who worked as a water plant operator for the Borough since 1989. In 1998, he applied for a promotion, but was rejected in favor of a Native American. Charles Michael Emerson is a Caucasian who worked in various positions for the Borough since 1991. In 1998, he applied for a job with the Borough's housing department, but was rejected in favor of a Native American.

Malabed, Welch, and Emerson sued the Borough, contending, inter alia, that the Borough rejected their job applications in favor of less qualified individuals, and that the Ordinance impermissibly discriminates on the basis of race, national origin, and political affiliation, in violation of several state and local laws, including the Borough's charter, Alaska Stat. §§ 18.80.220(a) & 29.20.630, and the Alaska Constitution, Art. I, § 3. They also argued that the Ordinance violated the Equal Protection Clauses of both the Alaska Constitution (Art. I, § 1) and the Fourteenth Amendment to the United States Constitution.

The district court held that the Ordinance discriminates on the basis of national origin in violation of the Borough's Charter, and that the Ordinance violated the Equal Protection Clause of the Fourteenth Amendment.² The court declared the Ordinance invalid, and enjoined the Borough from relying on it. This appeal followed.

We review de novo the legal conclusions underlying a district court's grant of a permanent injunction, and we review its factual findings for clear error. See Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir.1998). We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).

II

Because we thought that the question of the legality of the Borough ordinance under Alaska law might be determinative of this appeal, and because it appeared to us that there was no controlling precedent in the decisions of the Alaska Supreme Court, we certified the following question to the Alaska Supreme Court:³

Is North Slope Borough Code § 2.20.150(A)(27), granting employment preferences to Native Americans in borough hiring, impermissible under local law, state statutory law, or the Alaska Constitution?

The Alaska Supreme Court granted certification and held "that the borough's hiring preference violates the Alaska Constitution's guarantee of equal protection⁴ because the borough lacks a legitimate governmental interest to enact a hiring preference favoring one class of citizens at the expense of others and because the preference it enacted is not closely tailored to meet its goals." Malabed v. North Slope Borough, 70 P.3d 416, 427 (Alaska 2003). After considering the response of the Alaska Supreme Court, we conclude that the Ordinance is invalid under the Alaska Constitution.⁵ See In re Kirkland, 915 F.2d 1236, 1238 (9th Cir. 1990) ("When interpreting state law, a federal court is bound by the decision of the highest state court."). Because the ordinance is invalid under the Alaska Constitution, we do not reach appellees' federal constitutional claims. See Vernon v. City of Los Angeles, 27 F.3d 1385, 1391-92 (9th Cir.1994) ("It is well-established that we should avoid adjudication of federal constitutional claims when alternative state grounds are available.").

III

The Borough contends that § 703(i) of the Civil Rights Act of 1964 preempts Alaska constitutional or other law that prohibits discrimination in employment preferences affirmatively favoring Native Americans over others. Section 703(i) provides:

Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation.

42 U.S.C. § 2000e-2(i).

A

In determining whether a federal statute preempts state law, our "sole task is to ascertain the intent of Congress." Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 280, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987) (plurality opinion); see also Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 710 (9th Cir.1997) (expressly following Guerra, and finding no preemption where "Title VII by its plain language does not preempt" a state law). We must begin with the presumption that Congress did not intend to preempt state law.⁶ See New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). If we have any doubt about congressional intent, we are to err on the side of caution, finding no preemption, "[f]or the state is powerless to remove the ill effects of our decision, while the national government, which has the ultimate power, remains free to remove the burden." Beveridge v. Lewis, 939 F.2d 859, 863 (9th Cir.1991) (quoting Penn Dairies v. Milk Control Comm'n, 318 U.S. 261, 275, 63 S.Ct. 617, 87 L.Ed. 748 (1943)). "Congressional intent to preempt state law must be clear and manifest." Williamson v. General Dynamics Corp., 208 F.3d 1144, 1150 (9th Cir.2000) (quotations omitted).

In National Warranty Ins. Co. RRG v. Greenfield, 214 F.3d 1073 (9th Cir.2000), we considered the scope of federal preemption of state laws regulating a type of liability insurer. In so doing, we emphasized that Congressional purpose is the "touchstone" for preemption analysis:

So long as it acts within the scope of its enumerated powers, Congress may preempt inconsistent state law. See Brannan v. United Student Aid Funds, Inc., 94 F.3d 1260, 1263 (9th Cir.1996). There is no question in this case whether Congress may preempt Oregon law; the question, rather, is whether Congress has done so. "In determining whether federal law preempts a state statute, we look to congressional intent. Preemption may be either express or implied, and is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." FMC Corp. v. Holliday, 498 U.S. 52, 56-57, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990) (internal quotations omitted). A federal statute may preempt state law by express statement, by occupying a field, or by conflicting with state law. Industrial Truck Ass'n, Inc. v. Henry, 125 F.3d 1305, 1309 (9th Cir.1997).

There are two presumptions underlying any preemption analysis. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). First, the states are independent sovereigns in our federal system, and preemption will not be easily found. "In all preemption cases, and particularly in those in which Congress has `legislated... in a field which the States have traditionally occupied,' we `start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress....