851. The Court of Appeal upheld the statute, concluding that, although the design and construction of roads were neither new functions nor ones that state workers could not satisfactorily perform, the privatization program was an experimental one, and no state funds would be used to defray construction costs. 1209 (1993-1994 Reg. [Citation.] The court concluded that Caltrans had violated the injunction by contracting with private entities for substantial amounts of project development work without providing adequate justification. I am interested in your organization and I want to be a member of your team. (Sosinsky v. Grant, supra, 6 Cal.App.4th at p. To me, however, the existence of this provision further shows the Legislature was aware of Riley and its progeny and was attempting to enact legislation that would pass constitutional muster. Unlike the majority, I believe these circumstances amply support the Legislature's decision to categorize the engineering services required for such projects as a short-term workload demand. As Caltrans readily concedes, it has always been responsible for project development of state highway projects. Profes'l Engineers v. Kempton, 40 Cal.4th 1016 | Casetext Search + Citator 574.) As explained below (post, pt. Rptr. On the one hand, the plaintiff relied on the presumption of constitutionality to argue for a deferential standard, while its opponents argued the question was one of statutory interpretation which the court should consider de novo. This court is without power to create additional exceptions by implication." Moreover, an Assembly Transportation Committee report submitted to the Legislature before it adopted Chapter 433 acknowledged that questions existed concerning the constitutionality of the legislation. Const., art. ReviewBusiness and Professions Code section 6759for additional information regarding comity. Both the Court of Appeal majority and dissent agree that, despite the Legislature's characterization (see 14130, subd. Human Resources Manual - CalHR - California [] For purposes of this section 'displacement' means layoff, demotion, involuntary transfer to a new class, or involuntary transfer to a new work location requiring the employee to change his or her place of residence in order to be able to continue in his or her job classification." 2d 798, 802 ; Miro v. Superior Court (1970) 5 Cal. endstream endobj 377 0 obj <>stream (See Sarracino v. Superior Court (1974) 13 Cal. App. 4th 550] promote efficiency and economy' " in state government, and "to eliminate the 'spoils system' of political patronage." The court may not simply rely on its finding preceding enactment of Chapter 433 that any inadequacy of staff was caused by a policy and practice of maintaining staff at an artificially low level. The majority cite Turner Broadcasting System, Inc. v. FCC (1994) 512 U.S. 622 [114 S. Ct. 2445, 129 L. Ed. 2d 625, 627 [59 P.2d 139, 106 A.L.R. Second, the court found that, in any event, the type and amount of project development work Caltrans contracted for 1993-1994 did not correspond to that which the new provisions authorized because it fell outside the seismic [15 Cal. 2015-12-21, 10:17 AM - Flash Flood in the Northern California, Sacramento and Placer Counties until 12:15 PM. PECG has headquarters in Sacramento and maintains satellite offices in San Francisco and Glendale. " According to the dissent, Caltrans did not challenge this new finding, but has relied entirely on the provisions of Chapter 433. FN 5. 6, As this court stated in Methodist Hosp. Free Sch. (b)), and 14130.2, providing that engineering services needed to deliver locally financed highway projects "are not required to be considered in determining [Caltrans's] project delivery staffing needs. After summarizing the prior proceedings and relevant events, the court found that Caltrans's existing and planned contracts for fiscal year 1993-1994 violated the 1990 injunction in three ways. The trial court found no facts to support a finding that civil service staff would be unable "adequately and competently" to perform the work at issue. Section 14130, subdivision (a)(4), recites that private contracting has helped "accelerate[] nearly one billion dollars ($1,000,000,000) worth of construction projects on the state highway system. Second, Caltrans overstates its case substantially in claiming that Riley and its progeny's undue restrictions on private contracting or privatization threaten fiscal responsibility and public safety. FN 6. Rptr. Professional Engineers in California Government - Los Angeles Section. 844-846.) 851-853.). By enacting article VII, the electorate sought to obtain fiscal responsibility in government. The majority have, in my view, reversed the standard by which the Legislature's findings and determinations are reviewed. (Stats. They explore the challenges and successes in building and rebuilding major infrastructure projects. [2] Caltrans first urges us to reconsider and overrule or disapprove the "archaic" Riley decision and the subsequent decisions of this court and the Court of Appeal that have applied, extended, or confined its rule in various contexts. They cannot, therefore, become the basis through the mechanism of judicial notice. David I. Kelly, Douglas L. Kendrick, Anthony T. Caso, Sharon L. Browne, Francis F. Chin, Nossaman, Guthner, Knox & Elliott, Stephen N. Roberts, Stanley S. Taylor, Patricia Lee Connors, Robert D. Thornton, Kennedy & Wasserman, Wendel, Rosen, Black, Dean & Levitan, R. Zachary Wasserman, Bertha Ontiveros, Best, Best & Krieger, Steven C. DeBaun, Zumbrun & Findley, Ronald A. Zumbrun, John H. Findley, Woodruff, Spradlin & Smart, Kennard R. Smart, Jr., M. Lois Bobak and Jason E. Resnick as Amici Curiae on behalf of Defendants and Appellants. (2) Contrary to new section 14130, subdivision (a)(4), Caltrans has not demonstrated that, because it must use private contracting to perform project delivery "adequately and competently," its actions fall within another exception to the civil service mandate. During a three-day bridge closure, Myers and Caltrans teams demolished and removed a football field-size bridge, rolled in a new pre-constructed replacement span, and finished the amazingly challenging job eleven hours ahead of schedule! ), (3) Caltrans may use private contracting on state highway projects funded by federal and state funds "to support state transportation infrastructure funded by local resources, to ensure timely retrofitting for seismic safety on state transportation infrastructure, and to ensure timely and cost-effective project delivery." App. Plaintiffs also assert there was no objection to the trial court taking judicial notice. ), Caltrans acknowledges that although the federal government "actively encourages" private contracting, applicable legislation calls for "policies, procedures, and practices which will provide the Government with property and services of the requisite quality, within the time needed, at the lowest [15 Cal. Because such cases rest upon the fundamental ideal that "each person should decide for him [sic] or herself the ideas and beliefs deserving of expression, consideration, and adherence" (Turner Broadcasting System, Inc. v. FCC, supra, 512 U.S. at p. 641 [114 S.Ct. Rptr. 3d 131, 136 [260 Cal. The undisputed fact remains, as found by the Legislature, that at the time Chapter 433 was enacted staff was inadequate to perform the work. [5] Although courts must give legislative findings great weight and should uphold them unless unreasonable or arbitrary, " we also must enforce the provisions of our Constitution and 'may not lightly disregard or blink at a clear constitutional mandate.' www.pecg.org. those who attack the statute, to prove they do not. 313, 1.5) dealt with contracts for professional and technical services. Code, 143, subd. 3d 410, 424-430 [205 Cal. Rptr. 2d 437, 449-450 [94 P.2d 794].) [Citations.] The Bridge So Far: A Suspense Story is an entertaining one-hour documentary on the often outrageous and always controversial history and status of the San Francisco-Oakland Bay Bridge. However, "a reviewing court may, in appropriate circumstances, and consistently with the separation of powers doctrine, [15 Cal. Qualifying experience must be completed by the date of application submittal and is calculated on an actual time basis, not to exceed forty hours per week. Address: 2535 Capitol Oaks Drive, Suite 300. (Gov. Dissenting opinions by Baxter, J., and Ardaiz, J. fn. opn., ante, at p. 569), the majority nonetheless decide that the ordinary deference courts owe to legislative action "vanishes" when "constitutionally protected rights" are threatened and that courts are not foreclosed from exercising "independent judgment of the facts" bearing on an issue of constitutional law (ibid.). Section 14134, subdivision (a), sets forth guidelines that include ensuring the timely capture and use of available federal, state, and local funding, reducing "short-term fluctuations" in workload relating to project study and development, ensuring that "the cost effectiveness of contracting" is considered equally with other factors in contracting decisions, and ensuring that the contract selection process complies with state law and avoids unlawful or unfair procedures. Transit Authority v. Public Util. 1566.) fn. See if you qualify! 1018.) (Maj. Even the First Amendment cases relied upon by the majority do not espouse such a view. Habtamu has successfully . Com. Respondents' petition for a rehearing was denied July 16, 1997. (Turner, supra, 512 U.S. at p. 666 [114 S.Ct. 1986) [Judicial Notice,] 80[, p. 232] (CSEA) [rejecting facial [15 Cal. Code, 14130.1, subd. The majority opinion has the strong potential to hamstring the Legislature every time its proposed legislation touches upon a "constitutional mandate. v. D.O.H. as amended July 14, 1993.) The trial court then took "judicial notice pursuant to Evidence Code 452, subdivision (d), of the findings in the statement of decision underlying the judgment entered April 17, 1990, and the findings in the orders issued after evidentiary hearings to enforce the judgment." ]; Gov. 5, In determining whether legislation is facially invalid, it is settled that "[a] facial challenge to the constitutional validity of a statute considers only the text of the measure itself, not its application to particular circumstances." (Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. As we explain, the civil service mandate forbids private contracts for work that the state itself can perform "adequately and competently." 471 [624 A.2d 229, 231]; Teamsters Local 117 v. King County (1994) 76 Wn. * concurred. 2d 832, 839 [313 P.2d 545] (whether sales tax levy was subject to referendum); Busch v. Turner (1945) 26 Cal. ", Additionally, nothing in the record supports Caltrans's assertions that restrictions on private contracting cause additional expense or safety risks. 107, 1, subd. The contracts are intended to supplement the work of civil service staff (see 14130, subd. ' [Citations.]" The Majority Err by Approving the Trial Court's Reliance on the Truth of its Own 1990 Findings to Reject the Legislature's Subsequent Factual Findings. ), Later cases have affirmed the "nature of the services" restriction declared in Riley, but have also indicated that the restriction is inapplicable if the state seeks to contract for private assistance to perform new functions not previously undertaken by the state or covered by an existing department or agency. The agreements for California Association of Psychiatric Technicians, or CAPT, and the Professional Engineers in California Government, PECG, call for 5.58% raises for their employees that will go . Professional Engineers in California Government Classifications and Salaries - California Air Resources Board Code, 3424, subd. opn., ante, at pp. 1 In other words, the Legislature concluded it is more efficient and less expensive not to expand state government when certain types of road and bridge engineering services can be performed by private consultants. ), Likewise, regarding section 14130, subdivision (a)(4), the court concluded: "In section 14130, subdivision (a)(4), the Legislature finds that '[w]ithout the ability to continue a stable contracting out program, the department will not be able to perform project delivery adequately, competently, or satisfactorily.' That is, the majority apparently view Chapter 433 as applying to engineering services for project development on a broad, unlimited basis. 573.). Dist. PECG is committed to your success. (Sen. Transportation Com., Rep. on Sen. Bill No. App. You are now leaving this website and being directed to the specific California government resource or website that you have requested. fn. Accordingly, the court ruled the private contracts invalid. at page 127 (statute justifying what would otherwise have been a nuisance); Burns v. Superior Court (1903) 140 Cal. 576] [rejecting equal protection challenge to Judges' Retirement Law, which used age as a proxy for judicial competence, and following federal precedent declaring that correlation between increasing age and decreasing ability to competently perform work is a logical assumption that [15 Cal. Rptr. (a).) Thus, section 14130, subdivision (d), purports to relieve Caltrans from its obligations (1) to use state employees to perform engineering and related services "to the maximum extent required to meet the goals of this article," and (2) "to staff at an internal level that matches its ability to assimilate and productively use new staff." Click, Professional Engineers in California Government - All Rights Reserved. Sess.) 4th 585 [16 Cal. App. This case is about whether the state must hire new employees to perform such work or may contract out those services under statutory provisions. In 1981, this court made quite plain that the foregoing presumptions and rules of deference apply when legislation is challenged as being in conflict with article VII of the California Constitution (article VII). "[U]nder the doctrine of separation of powers neither the trial nor appellate courts are authorized to 'review' legislative determinations." Code Regs., tit. (b), 14130.3. 109.). Subdivision (b) of that section expressed the legislative intent to allow Caltrans to contract privately for professional and technical services "whenever the department is inadequately staffed to satisfactorily carry out its program [of project development] in a timely and effective manner.". of Health (1986) 28 Ohio St.3d 463 [504 N.E.2d 1108, 1109-1110]; Local 4501, Comm. 615. (c), operative until Jan. 1, 1998, 14130.1, 14130.2. [Citations.]" In the dissent's view, the Court of Appeal majority relied exclusively and improperly on an implied legislative finding of cost-effectiveness to permit Caltrans to resume private contracting without requiring it to prove that contracting is more economical or efficient than using state civil service employees. 594.) Section 14131 permits Caltrans to contract for services with engineers, architects, surveyors, and other similar professionals whenever certain guidelines contained in section 14134 are applicable, as long as these contracts do not displace any Caltrans employees. Caring for the world, one person at a time has inspired and united the people . 1247, 1251.) (See, e.g., County of Madera v. Gendron (1963) 59 Cal. 1991) 947 F.2d 787, 789 [federal procurement rules require agencies to acquire goods and services at lowest possible cost to taxpayer]. Sign up for our free summaries and get the latest delivered directly to you. Click here for more information about this new requirement and how to notify the Board of your email address. 6. Nonetheless, such intent must be considered in assessing the constitutional validity of the enactment. In sum, I submit that the Court of Appeal majority correctly recognized that Chapter 433 is consistent with article VII as furthering the goals of [15 Cal. as amended June 24, 1993.) 4.) Caltrans did not appeal that judgment, which is now final. 3d 840, recognized that allowing the state to consider cost savings in determining the propriety of private contracting serves the dual purposes of article VII " 'to promote efficiency and economy' " in state government and "to eliminate the 'spoils system' of political patronage." Founded 1962. [Citations.]' at pp. At oral argument, plaintiffs conceded the trial court found Chapter 433 unconstitutional on its face. (a).) Rptr. 4th 569] it prefers private contracting in the areas it mentioned, but legislative preference affords no proper ground for excusing a constitutional violation that a trial court's final judgment previously enjoined. The Court of Appeal majority reversed the judgment and remanded the matter to the trial court with directions to dissolve its 1990 injunction. Rptr. 2d 636, 642 [76 P.2d 674] [determination of necessity for urgency measure is purely a legislative question; courts will not interfere with determination "save in those few exceptional cases where it appears clearly and affirmatively from the legislature's statement of facts that a public necessity does not exist."].) Applicants who meet all licensure requirements, including passing the required exam(s), will be issued a license in the branch of engineering for which they applied. (Amador Valley Joint Union High Sch. In addition to authorizing increased contracting flexibility until January 1, 1998, Chapter 433 contains an uncodified section which requires Caltrans and the Legislative Analyst to coordinate in the preparation of a [15 Cal. Eligibility and Experience Requirements: on Transportation, Rep. on Sen. Bill No. (California State Employees' Assn. 841, 629 P.2d 935]; Serrano v. Priest (1982) 131 Cal. ), Thus, when read it context, it is clear that Turner does nothing to undermine the general rule of deference afforded to a legislative body's factual findings. v. State Bd. The court found insufficient evidence to support Caltrans's contentions that (1) its increased project workload involved short-term or temporary work that private contractors could perform most economically and efficiently, or (2) private contracting would allow Caltrans to perform its work in a more timely and effective manner than hiring new civil service staff. (See Department of Transportation v. Chavez (1992) 7 Cal. (Maj. (See CSEA, supra, 199 Cal.App.3d at pp. (Art. "Under the doctrine of judicial notice, certain matters are assumed to be indisputably true, and the introduction of evidence to prove them will not be required." View James Bourbos' profile on LinkedIn, the world's largest professional community. ( 14130.2, subd. 121, 128 [294 P. 3] ["It is to be presumed that the commission will exercise its powers in conformity with the statute and Constitution of the state."].) Examination Information. 1209 (1993-1994 Reg. 3, AFL-CIO v. City and County of San Francisco, Barlou Howard v. San Francisco Municipal Transportation Agency, Davis City Employees Association v. City of Davis, California Federation of Interpreters, Local 39000 TNG-CWA v. Region 2 Court Interpreter Employment Relations Committee, Service Employees International Union, Local 721 v. County of Ventura, San Diego Education Association, CTA/NEA v. San Diego Unified School District, Pasadena City College Faculty Association v. Pasadena Area Community College District, American Federation of State, County & Municipal Employees Local 146 and Sacramento Regional Transit District, American Federation of State, County & Municipal Employees Local 3299 v. Regents of the University of California, American Federation of State, County & Municipal Employees Local 3299 v. Regents of the University of California (Davis), American Federation of State, County & Municipal Employees Local 1117 v. City of Torrance, Teamsters Local 2010 v. Regents of the University of California, Professional Engineers in California Government v. State of California (State Water Resources Control Board), Mt. 2d 561, 569 [154 P.2d 674].) That is, the challenged legislation did not compel Caltrans to [15 Cal. Hilarious cartoon animation introduces soon-to-be-legendary TV anchor "Max Tabloid," who reports on the story as it unfolds on the screen. 13,000. App. (La.Ct.App. Title 16, California Code of Regulations section 424. fn. First, the entire law-making authority of the state, except the people's right of initiative and referendum, is vested in the Legislature, and that body may exercise any and all legislative powers which are not expressly or by necessary implication denied to it by the Constitution. 2 (E.g., Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal. In my view, Chapter 433 is not unconstitutional on its face on the ground that in sections 14130.3 and 14137, the Legislature impinged upon the separation of powers by authorizing contracts which may be inconsistent with a specific trial court judgment. 424-430) clearly demonstrate, it is unnecessary for the Legislature to adduce concrete data or conclusive proof to confirm its determinations regarding the advantages of contracting with the private sector and the need for additional flexibility in that regard. [Citation.]" If the Legislature predicated Chapter 433 on such a finding how could it fail to assert this among the plethora of cryptic, illogical, and untenable express findings and declarations? A Span in Time tells the saga of the 2007 Labor Day weekend Bay Bridge construction project, with the now-legendary C.C. Thus, the principal question before us is whether the trial court abused its discretion in failing to modify or dissolve its earlier injunction in light of Chapter 433's subsequently adopted legislative findings and determinations. 9," and Dennis Alexander, a taxpayer (collectively Professional Engineers), filed a petition for writ of mandate in the San Francisco . 2d 599] (Professional Engineers).) ", The dissent next addressed the majority's claim that legislative findings in Chapter 433 included an implied finding that private contracting would [15 Cal. Rptr. Notably, all such contracts are subject to statutes and regulations protecting against cronyism. 3d 840, 846 [245 Cal. (Accord, Lundberg v. County of Alameda (1956) 46 Cal. omitted, italics added.). Caltrans claimed this staff reduction was needed to avoid a budget shortfall, but it was really attributable to Caltrans's preference for private contracting. FN 9. 1063] (applicability of statutory salary increase to incumbent); Collins v. Riley, supra, 24 Cal.2d at page 915 (whether statute reimbursing "traveling expenses" impermissibly increased mileage allotment); County of Los Angeles v. Riley (1936) 6 Cal. (Beach v. Von Detten (1903) 139 Cal. "[A]n as applied challenge assumes that the statute violated is valid and asserts that the manner of enforcement against a particular individual or individuals or the circumstances in which the statute is applied is unconstitutional." Const., former art. As it neither fails to comply with that mandate nor disregards the constitutional restriction on contracting out, I would not expect it to contain findings which would seek to excuse noncompliance with or disregard of article VII. As this court stated 60 years ago, "judicial decisions abound with declarations to the effect that all presumptions and intendments favor the validity of statutes; that mere doubt by the judicial branch of the government as to the validity of a statute will not afford a sufficient reason for a judicial declaration of its invalidity, but that statutes must be upheld as constitutional unless their invalidity clearly, positively, and unmistakably appears." (a)(2).). PECG also sponsors and distributes educational documentaries that explore innovative solutions to the most serious problems facing our environment, economy, and livability. (Lockard v. City of Los Angeles, supra, 33 Cal.2d at p. 461; Barenfeld v. City of Los Angeles, supra, 162 Cal.App.3d at p. We consider here important questions of law and policy arising under the state Constitution's civil service provision (Cal. (Maj. Over 200,000 people work for a State of California department or agency (other than a university). As we have seen, applicable case law allows the state to contract privately if the civil service is unable to perform the work "adequately and competently." Werdegar, J., and Brown, J., did not participate therein. Fund, supra, 30 Cal.2d at pp. 844. We therefore limit our present discussion to the effect of Chapter 433 on the trial court's injunction and subsequent enforcement orders. 14. Rptr. Neither the Legislature nor the courts can satisfy article VII by the mere expediency of adopting unsubstantiated findings that purport to sustain or create an exception to the constitutional provision. (Delaney v. Lowery (1944) 25 Cal. FN 9. Caltrans correctly observes that the private contracting restriction and its exceptions do not appear in the bare language of article VII but derive from judicial interpretation regarding the logical implications of the constitutional provisions. VII, 1, subd. (See CSEA, supra, 199 Cal.App.3d at p. (Lockard v. City of Los Angeles, supra, 33 Cal.2d at p. The enactment of Chapter 433 accordingly, does not warrant the modification or dissolution of the injunction in this action." No. 239, 583 P.2d 1281].) Professional Engineers in California Government v. State of California (Office of Statewide Health and Planning Development) 04/30/2021: 05/21/2021: HO-U-1678-S SF-CE-1740-M: Service Employees International Union Local 1021 v. Alameda Health System: 05/12/2021 LA-CO-1747-E: Salena Ann Gonzales v. California School Employees Association: 05/18 . . of Equalization, supra, 22 Cal.3d at p. 244 [construing Cal. 3d 1, 8 [118 Cal. (Fns. (b); see Cal. Presiding Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. ), (4) Caltrans "shall not be required to utilize state employees to perform all engineering and related services to the maximum extent required to meet [15 Cal.

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