Stanford Law School - Robert Crown Law Library

Filed 11/5/07

IN THE SUPREME COURT OF CALIFORNIA

CONSULTING ENGINEERS AND LAND )
SURVEYORS OF CALIFORNIA, INC.,
et al.,
Plaintiffs
and
Respondents,
S145341
v.
) Ct.App.
3
C048282
PROFESSIONAL ENGINEERS IN
CALIFORNIA GOVERNMENT,
Sacramento
County
Defendant and Appellant.
Super. Ct. No. 03CS01654

In Professional Engineers in California Government v. Kempton (2007) 40
Cal.4th 1016 (Kempton), we held that Proposition 35, which expressly removed a
constitutional restriction on the ability of state agencies to contract with private
firms for architectural and engineering services on public works projects, also
impliedly repealed certain regulatory statutes pertaining to private contracting that
were derived from the constitutional provision. The present case involves two
participants from Kempton.1 The question presented here is whether a provision

1
In Kempton, Professional Engineers was a plaintiff and appellant, while
Consulting Engineers was an intervener and respondent. (Kempton, supra, 40
Cal.4th at pp. 1026-1027.)

---

of a memorandum of understanding between the state and a state employee union
that restricts the use of private contractors for architectural and engineering
services by public agencies fatally conflicts with Proposition 35 as we construed
that initiative in Kempton. We answer that it does and, so, affirm the judgment of
the Court of Appeal.
I. STATEMENT OF THE CASE
A. Background: Proposition 35
Proposition 35, entitled the Fair Competition and Taxpayer Savings Act,
was passed by the electorate on November 7, 2000. The initiative included both
constitutional and statutory provisions. The constitutional provision, article XXII
consists of two sections. Section 1 provides in relevant part that the “State of
California and all other governmental entities . . . shall be allowed to contract with
qualified private entities for architectural and engineering services for all public
works of improvement. The choice and authority to contract shall extend to all
phases of project development including permitting and environmental studies,
rights-of-way services, design phase services and construction phase services. The
choice and authority shall exist without regard to funding sources whether federal,
state, regional, local or private, whether or not the project is programmed by a
state, regional or local governmental entity, and whether or not the completed
project is a part of any State owned or State operated system or facility.” (Cal.
Const., art. XXII, § 1.) Section 2 provides: “Nothing contained in Article VII of
this Constitution shall be construed to limit, restrict or prohibit the State or any
other governmental entities, including, but not limited to, cities, counties, cities
and counties, school districts and other special districts, local and regional
agencies and joint power agencies, from contracting with private entities for the
performance of architectural and engineering services.” (Cal. Const., art. XXII,
§ 2.)
2

---

Article VII of the state Constitution, referred to in article XXII, section 2 of
the state Constitution, establishes the state’s merit-based civil service. Prior to the
passage of Proposition 35, the courts had interpreted the civil service mandate of
article VII as an implied limitation on the use of private contractors that was
intended to protect the civil service from political patronage appointments. Article
XXII, section 2 thus removed article VII-based restrictions on contracting with
private entities for architectural and engineering services by the State of
California.
Proposition 35 also added a new chapter to the Government Code.2
Additionally, section 5 of the initiative specified: “This initiative may be amended
to further its purposes by statute, passed in each house by roll call vote entered in
the journal, two-thirds of the membership concurring, and signed by the
Governor.” (Voter Information Guide, Gen. Elec. (Nov. 7, 2000) text of Prop. 35,
§ 5, p. 66.)
B. Proceedings in the Trial Court
On November 14, 2003, Consulting Engineers and Land Surveyors of
California, Inc., John M. Humber, and Harris & Associates, Inc., filed an action
against Professional Engineers in California Government, the Department of
Personnel Administration (DPA), and its then director, Marty Morgenstern, the
Department of Finance, and its then director, Steve Peace, and the Department of
Transportation (Caltrans), and its then director, Jeff Morales.3 The complaint

2
These provisions (Gov. Code, § 4529.10 et seq.) are not at issue in this
case.
3
The parties will be collectively referred to as Consulting Engineers and
Professional Engineers except where individual specification is necessary for
clarity.
3

---

sought injunctive and declaratory relief and a writ of mandate; it also included a
taxpayer action.
The complaint identified the parties as follows: Consulting Engineers is a
nonprofit corporation whose member firms perform consulting, architectural,
engineering and land surveying services as private contractors with Caltrans.
Humber is a taxpayer on whose behalf the taxpayer action was brought and Harris
is a corporation that had contracts with the Caltrans for construction support
services. Professional Engineers is the “duly certified collective bargaining
representative for members of state employee Bargaining Unit 9” (Unit 9). DPA
is “the State agency responsible to conduct negotiations and enter into collective
bargaining agreements with the exclusive bargaining units pursuant to the terms
and provisions of the State Employer/Employee Relations Act.” The Department
of Finance is the state agency “responsible for supervision over the financial and
business policies of the State.” Caltrans is the state agency “responsible for
administering the transportation facilities of the State, including decisions for
contracting out architectural and engineering services.”
Consulting Engineers alleged that the state, through the DPA, had entered
into a memorandum of understanding (MOU) with Professional Engineers,
approved by the Legislature as Assembly Bill No. 977 (2003-2004 Reg. Sess.) and
signed by then-Governor Davis. Consulting Engineers alleged further that the
MOU contained a provision that violated California Constitution, article XXII, the
constitutional provision added by Proposition 35. The MOU was attached as an
exhibit to the complaint.
The provision in question, article 24 of the MOU (article 24), captioned
“Contracting Out,” consists of seven sections. Article 24, paragraph A, states:
“[Professional Engineers] has presented evidence that State Departments are
presently contracting out work appropriately done by Unit 9 employees, and that
4

---

said contracting results in unnecessary additional costs to the State. Thus, the
purpose of this section is to guarantee that the State does not incur unnecessary,
additional costs by contracting out work appropriately performed at less expense
to the state by Unit 9 employees, consistent with the terms of this section. In
achieving this purpose the parties do not intend this section to expand the State’s
ability to contract out for personal services. The parties agree that this section
shall not be interpreted or applied in a manner which results in a disruption of
services provided by State departments.”
Paragraph B of article 24 states: “Except in extremely unusual or urgent,
time-limited circumstances, or under other circumstances where contracting out is
recognized or required by law, Federal mandate, or court decisions/orders, the
State must make every effort to hire, utilize and retain Unit 9 employees before
resorting to the use of private contractors. Contracting may also occur for reasons
other than cost savings as recognized or required by law, Federal mandate, or
court decisions/orders.”
Paragraph C of article 24 requires that state agencies provide Professional
Engineers with “copies of Requests for Proposals . . . and Invitations for Bid . . .
for personal services contracts . . . if they call for services found in Unit 9 class
specifications” in order “to provide [Professional Engineers] with notice and an
opportunity to present alternatives which mitigate or avoid the need for
contracting out, while still satisfying the needs of the State to provide services.”
Department directors or their representatives are required to meet with
Professional Engineers at its request for this purpose.
Paragraph D of article 24 establishes a “joint Labor/Management
Committee” of which half the members are to be drawn from Professional
Engineers, while the remaining half consists of “representatives of . . . the [DPA],
the Department of Finance and affected departments.” The committee is tasked
5

---

with a review of all then-existing contracts with private entities that called for
services found in Unit 9 class specifications. Upon obtaining this information, the
committee is to “examine the contracts based on the purpose of this section, the
terms of the contracts, all applicable laws, Federal mandates and court
decisions/orders. In this regard, the Committee will consider which contracts
should and can be terminated immediately, which contracts will take additional
time to terminate, which contracts may continue (for how long and under what
conditions) and how (if necessary and cost effective) to transition contract
employees or positions into civil service. All determinations shall be through
express mutual agreement of the Committee.” Remaining provisions of paragraph
D involve distribution of any savings that accrued from termination of personal
service contracts.
Paragraph E of article 24 states as its “objective . . . ensur[ing] that Unit 9
employees have preference over contract employees” and, to that end, “the
appointing power shall review all existing personal services contracts to determine
if work consistent with the affected employee’s classification is being performed
by a contractor . . . . If the joint Labor/Management Committee that reviews
personal services contracts determines that the terms and purpose of the contract
permit the State to assign the work to a Unit 9 employee who would otherwise be
displaced, this shall be implemented consistent with the other terms of this
section.” Paragraph F exempts the Department of Corrections from article 24
“until such time as it has been approved by the Federal court special master(s).”
Finally, paragraph G of article 24 provides: “The State is mindful of the
constitutional and statutory obligations (e.g., Government Code § 19130) as it
pertains to restrictions on contracting out. Thus, nothing in this section is intended
to interfere with pursuit of remedies for violation of these obligations as provided
by law (e.g. Public Contract Code § 10337.)”
6

---

According to Consulting Engineers’ complaint, article 24 violates article
XXII of the state Constitution because article XXII “vests the authority to make
contracting out decisions in State agencies, not a committee created as a result of a
bargaining process.”
In their joint answer to Consulting Engineers’ complaint, the Department of
Finance and Caltrans agreed that, as to Professional Engineers, plaintiffs were
entitled to the relief they sought including a declaration of the unconstitutionality
of article 24, injunctive relief and a writ of mandate prohibiting implementation of
article 24. Professional Engineers answered with a general denial of the
allegations of the complaint, as did the DPA.
On July 30, 2004, following a court trial, the trial court granted declaratory
relief and issued a permanent injunction and a writ of mandate against
Professional Engineers finding that “Article 24 of the Unit 9 MOU, as approved
and enacted by the Legislature in AB 977, violates Article XXII of the state
Constitution . . . .” The trial court explained: “Article 24 of the Unit 9 [MOU]
deals directly with the issue of contracting for architectural and engineering
services . . . Article 24 . . . establishes a policy that these civil service employees
should be preferred over the use of private contractors. (Article 24, Paragraphs B
and E.) It further establishes a procedure through which civil service employee
representatives are to be given prior notice of potential outside contracts and the
opportunity to present alternatives to them before they are awarded. (Article 24,
Paragraph C.) Beyond that, it also establishes a procedure in which a joint
committee of civil service employee representatives and management is required
to review existing outside contracts and determine when and how to terminate
such contracts on grounds that are not specified in the Article itself, as well as how
to transition contract employees into civil service positions. (Article 24,
Paragraph D.) Article 24 also includes a procedure under which outside contracts
7

---

will be terminated in order to avoid displacement of civil service employees.
(Article 24, Paragraph E.) [¶] These provisions of Article 24 limit the ability of
the State to contract freely for architectural and engineering services. Moreover,
they do so in order to advance the interests of state civil service employees. They
therefore are, on their face, directly in conflict with Article XXII. . . . Article 24
also may not be viewed as a proper amendment of Article XXII, because it does
not further the purposes of Article XXII and it was not passed by a two-thirds vote
of the Legislature. (See Section 5 of the Initiative Measure (Prop. 35).) Article 24
must therefore be declared as invalid as prayed by petitioner.”
Professional Engineers appealed. A divided Court of Appeal affirmed the
judgment. The majority concluded that article 24’s provisions “restrict the ability
of state authorities to freely contract out engineering services. The mandatory
preference for civil service engineers, without a concomitant requirement of cost
savings, does not ensure the best value for California taxpayers, and it undermines
the goal of promoting fair competition. Moreover, common sense dictates that the
review and termination of existing contracts is not conducive to speeding the
completion of backlogged projects. In other words, [article] 24 contravenes the
goals of Proposition 35 and thwarts the intent of the electorate.”
The dissent argued that article 24 was consistent with the authority granted
to the state by Proposition 35 to choose whether to contract with private entities
for architectural and engineering services because it represented a choice by the
state to restrict its authority to do so. “Certainly, in light of the Constitution, the
contracting limitations set forth in the MOU could not have been forced on the
state. However, in this instance, the limitations were not imposed; the state agreed
to them.”
We granted Professional Engineers’ petition for review.
8

---

II. ANALYSIS
A. Introduction
In its initial briefing, which preceded our decision in Kempton, Professional
Engineers raised many of the same arguments it had raised in Kempton, and which
we considered and rejected there. After we issued Kempton, we sought
supplemental briefing from the parties on its impact on this case. Professional
Engineers’ supplemental briefs abandon most of its initial arguments and advance
arguments that are both new and inconsistent with its previous arguments.
Nonetheless, we consider and dispose of these now apparently superseded
arguments because this discussion provides the necessary context for discussing
the arguments presented in Professional Engineers’ supplemental briefs.
B. Kempton
Professional Engineers contends that the Legislature’s approval of the
MOU in which article 24 appears represents a valid exercise of the expanded
authority conferred on the Legislature by Proposition 35 to set policy with respect
to private contracting by state agencies. This contention is supported by a series
of predicate arguments. Professional Engineers argues that the intent of the
electorate in enacting Proposition 35 was to expand the power of the Legislature to
decide whether to authorize individual agencies to contract with private entities for
architectural and engineering services rather than permit the agencies themselves
to make those decisions. This argument, in turn, is premised on Professional
Engineers’ interpretation of the phrase “State of California” in section 1 of article
XXII of the state Constitution as referring only to the Legislature. As a corollary,
Professional Engineers maintains that any broader construction of that phrase to
include executive agencies violates the separation of powers doctrine by shifting
legislative authority to set policy regarding private contracting from the
Legislature to such agencies. In this same vein, assuming that Proposition 35 did
9

---

no more than expand legislative authority to set policy for private contracting,
Professional Engineers maintains that we, as an appellate court, are required to
broadly construe that expansion of authority.
In Kempton, we decided whether Proposition 35 impliedly repealed certain
statutory regulations on private contracting when it removed the constitutional
restriction from which those statutes were derived. Those provisions included
Government Code sections 14101, 14130 et seq. and 19130. Each statute
incorporated an exception to the general principle that article VII of the state
Constitution prohibited the use of private contractors to perform state functions in
order to preserve the merit-based civil service system. Those exceptions included
the “ ‘nature of the services’ rule,” the “ ‘new state function’ rule,” and the “ ‘cost
savings exception.’ ” (Kempton, supra, 40 Cal.4th at p. 1033.)
We concluded that Proposition 35 impliedly repealed these statutes when it
expressly repealed the constitutional restriction judicially construed from article
VII of the state Constitution because the provisions of Proposition 35, authorizing
private contracting free of article VII’s restrictions, “cannot be reconciled with the
existing statutes that authorize private contracting by Caltrans of architectural and
engineering services, subject to conditions derived from the exceptions to article
VII’s rule generally restricting such contracting. That rule has been abrogated by
Proposition 35 and if the rule no longer has any force, neither should its
exceptions.” (Kempton, supra, 40 Cal.4th at p. 1041.)
In light of this conclusion, we rejected Professional Engineers’ argument
that the purpose of Proposition 35 was merely to remove the constitutional
restriction on the Legislature’s plenary authority to regulate private contracting
based on it assertion that reference to the “State of California” in California
Constitution article XXII was to the Legislature alone. We pointed out that,
constitutionally, the legislative power in California is shared by the Legislature
10

---

and the electorate acting through its powers of initiative and referendum, not
exclusively exercised by the Legislature. (Kempton, supra, 40 Cal.4th at p. 1042.)
Then, applying “fundamental principles of construction applicable equally
to constitutional provisions, statutes and initiatives, require us to give words in
such texts their ordinary meanings” we concluded that “the phrase ‘State of
California’ as it refers to state government, includes all three branches, legislative,
executive and judicial. (See Cal. Const., art. III, § 3.) Thus, section 1, in tandem
with section 2, of article XXII grants all three branches of government the
authority to contract with private entities for architectural and engineering services
unimpeded by article VII restrictions.” (Kempton, supra, 40 Cal.4th at p. 1043.)
We next considered and rejected Professional Engineers’ separation of
powers argument. “[Our] interpretation of Proposition 35 does not endorse a shift
of policymaking powers from the legislative branch to executive branch agencies.
Rather, it recognizes that there has been a policy determination, made by a
constitutionally empowered legislative entity, the electorate acting through its
initiative power, to permit those agencies to contract for architectural and
engineering services free of article VII-derived limitations.” (Kempton, supra, 40
Cal.4th at pp. 1044-1045.)
Professional Engineers renews these arguments in the different context of
this case. Professional Engineers argues that the conclusion of the Court of
Appeal that article 24 violated Proposition 35 interferes with the Legislature’s
prerogative to set policy in the realm of private contracting and, by “giv[ing] the
Legislature’s plenary power to individual state department[s] . . . violate[s] the
separation of powers doctrine.”
As in Kempton, Professional Engineers erroneously assumes that the
Legislature not only has plenary, but exclusive, authority to set state policy for
private contracting when, in fact, that authority is shared by the electorate. It was
11

---

the electorate, not the Court of Appeal in this case, that removed California
Constitution article VII’s restriction on private contracting and statutory
exceptions to that restriction in order to permit the unfettered use of private
entities for architectural and engineering services should the agency choose to
exercise its authority to do so. (Kempton, supra, 40 Cal.4th at pp. 1037-1039.)
Further, the electorate also chose to limit the Legislature’s ability to set policy in
this area by providing that amendments to the initiative must further the purposes
of the initiative and be passed by a two-thirds majority of each house. (Prop. 35,
§ 5.) Such a limitation is well within the power of the electorate. (Amwest Surety
Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1251.) These legislative choices by the
electorate are entitled to the same deference by the courts as enactments of the
Legislature. (Kempton, supra, 40 Cal.4th at pp. 1042-1043.)
Therefore, the question is not the Legislature’s authority to set policy in this
area but whether the Legislature’s actions are consistent with Proposition 35. It is
to that question we turn.

C. Article 24 as a Self-imposed Legislative Restriction on Private
Contracting
Professional Engineers asserts: “Proposition 35 grants authority to the
Legislature to choose to contract out under circumstances that were previously
restricted by Article VII. Accordingly, Proposition 35 authorizes the Legislature
to choose to voluntarily approve the alleged contracting out restrictions reflected
in Article 24.” Elaborating on this assertion, Professional Engineers explains:
“Specifically, because Proposition 35 permits the Legislature [to] choose
contracting out policies and procedures for the State, contracting out is not
mandated. Thus, choosing to voluntarily restrict contracting does not change or
amend the grant of authority given by the initiative and the Legislature’s
12

---

contracting out policy choice reflected in Article 24 is consistent with Proposition
35’s grant of authority.”
Consulting Engineers counters that, because approval of the MOU was a
legislative amendment to the initiative, it failed to comply with section 5 of
Proposition 35, which permits such amendment only to “further [the] purposes” of
Proposition 35 and which requires a two-thirds vote of each house. (Voter
Information Guide, Gen. Elec. (Nov. 7, 2000) text of Prop. 35, § 5, p. 66.) We do
not agree that the MOU was, or could have been, an amendment of the initiative.
The operative principle applicable here is that the Legislature cannot take action,
whether by statute or MOU, that contravenes a constitutional provision. (See
California State Personnel Bd. v. California State Employees Assn., Local 1000,
SEIU, AFL-CIO (2005) 36 Cal.4th 758, 774 [“In adopting the constitutional merit
principle, California voters made clear their intent that permanent civil service
appointments and promotions be made solely on the basis of merit. No matter
what discretion the Legislature has purported to give or withdraw from appointing
powers, it does not have a free hand to approve MOU’s or enact statutes that flout
this mandate”]; County of Fresno v. State of California (1991) 53 Cal.3d 482, 493
[“ ‘ “ ‘legislation must be subordinate to the constitutional provision, and in
furtherance of its purpose, and must not in any particular attempt to narrow or
embarrass it’ ” ’ ”].)
Article 24 revives some of the restrictions on the ability of state agencies to
enter into private contracts for architectural and engineering services contained in
the statutes that we held in Kempton were impliedly repealed by Proposition 35.
For example, article 24, paragraph B proposes a limitation upon private
contracting “[e]xcept in extremely unusual or urgent, time-limited circumstances,”
or if otherwise required by “law, Federal mandate, or court decisions/orders . . . .”
The “time-limited circumstances” language echoes language in Government Code
13

---

section 14101, which authorizes private contracting if “obtainable staff is unable
to perform the particular work within the time the public interest requires such
work to be done.” (Gov. Code, § 14101.) Similarly, Government Code section
14130 permits private contracting by Caltrans “whenever the department is
inadequately staffed to satisfactorily carry out its program of project study reports,
project development, surveying, and construction inspection in a timely and
effective manner.” (Gov. Code, § 14130, subd. (b).) In both article 24 and these
statutes, then, the availability of private contracting is tied to the inability of the
agency to perform its functions in a timely manner using state employees. In
Kempton we concluded that both Government Code sections 14101 and 14130
were derived from California Constitution article VII restrictions on private
contracting and were impliedly repealed by Proposition 35. (Kempton, supra, 40
Cal.4th at pp. 1037-1041.)
We reached the same conclusion with respect to Government Code section
19130. (Kempton, supra, 40 Cal.4th at pp. 1037-1041.) Among the provisions of
that statute is the requirement that such contracts not displace civil service
employees. “The term ‘displacement’ includes layoff, demotion, involuntary
transfer to a new class, involuntary transfer to a new location requiring a change of
residence, and time base reductions.” (Gov. Code, § 19130, subd. (a)(1)(C)(3).)
A similar requirement is found in Government Code section 14131: “Services
contracted for shall not cause the displacement of any permanent, temporary, or
part-time employee of the department. [¶] 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.” Paragraph E of article 24 similarly limits the use of private
contracting where it would cause displacement of Unit 9 employees and defines
14

---

displacement in much the same language as the statutes quoted above:
“Displacement includes layoff, involuntary demotion, involuntary transfer to a
new class, involuntary transfer to a new location requiring a change of residence,
and time base reductions.”
In short, the limitations on private contracting by public agencies imposed
by article 24 reflect the spirit and to some extent the letter of those California
Constitution article VII-derived statutes that we held in Kempton had been
impliedly repealed by Proposition 35. Thus, legislative approval of the MOU, in
addition to not complying with section 5 of Proposition 35, violates the
constitutional mandate of article XXII of the California Constitution which
abolished article VII’s restrictions on the ability of agencies to use private
contractors for architectural and engineering services.

D. Article 24 as a Self-imposed Executive Restriction on Private
Contracting
As noted, following our decision in Kempton, we sought supplemental
briefing from the parties on the impact of that decision on this case. In its
supplemental briefing, Professional Engineers performs a volte-face. While
maintaining that article 24 represents a legitimate policy choice regarding private
contracting, it abandons its claim that the Legislature was empowered by
Proposition 35 to make this choice and now maintains that this authority resides in
the executive branch. Indeed, Professional Engineers now contends that the
Legislature was not required to approve the MOU that contained article 24 at all.
Professional Engineers also attempts to characterize article 24 as nothing more
than a mechanism for gathering and analyzing data pertaining to private
contracting, and specifically asserts that article 24 does not authorize termination
of such contracts, now or in the future. Additionally, Professional Engineers
maintains that article 24 does not contain the kind of article VII restrictions that
15

---

we discussed in Kempton because the purpose of article 24 is not to promote the
merit-based civil service system as was the judicially construed purpose of the
article VII restrictions. We reject these arguments.
Professional Engineers’ attempt to locate the authority for the restrictions
on private contracting found in article 24 in the executive branch rather than the
Legislature founders on two points. First, as we made clear in Kempton,
Proposition 35 applies equally to all three branches of government: executive,
legislative and judicial. (Kempton, supra, 40 Cal.4th at p. 1042.) Thus, executive
branch agencies are no more at liberty to violate California Constitution article
XXII by reviving California Constitution article VII-based restrictions under the
guise of collective bargaining than is the Legislature.4 Second, as we
demonstrated in the prior section, the restrictions imposed by article 24 on the use
of private contractors appear to be based on the California Constitution article VII-
derived statutes that we concluded in Kempton had been impliedly repealed by
Proposition 35. Professional Engineers’ assertion that the purpose of article 24,

4
In their supplemental brief, the leadership of the Legislature as amicus
curiae, argue that this reasoning converts the discretion of executive agencies to
use private firms for architectural and engineering services to a mandate. This is
the same argument made by the dissenting justice in the Court of Appeal who
characterized the majority’s holding as requiring the state to contract with private
entities for architectural and engineering services. This is not accurate. Our
holding does not compel state agencies to enter into such contracts. Under
Proposition 35, state agencies have the choice and authority to use private
contractors so, clearly, they can choose not to if they conclude that a particular
public works project can be more efficiently performed by civil service
employees. Moreover, Proposition 35 does not preclude state agencies from
imposing conditions consistent with Proposition 35 on private contractors that
perform such work. What the state may not do is to impair an individual agency’s
choice to engage in private contracting in derogation of the authority conferred on
it by Proposition 35. Neither the Governor nor the Legislature, separately or
jointly, can undo by MOU what the electorate enacted through Proposition 35.
16

---

unlike the judicially construed article VII restriction, is not to promote the merit-
based civil service system draws a distinction without a difference. We agree with
the Court of Appeal majority that “[t]he effect of [article 24] is to restrict the
ability of state authorities to freely contract out [architectural and] engineering
services,” and that, therefore, article 24 “contravenes the goals of the Proposition
35 and thwarts the intent of the electorate.”
Like the Court of Appeal, we also reject Professional Engineers attempts to
recast the purpose of article 24 as merely an innocuous mechanism for gathering
and analyzing data on private contracting. The plain language of article 24 —
allowing as it does for termination of private contracts and clearly serving to
protect the interests of state employees — belies this interpretation. As the Court
of Appeal majority noted, “By any measure, [article 24 imposes] significant
restrictions on the ability of a state entity to contract out for architectural and
engineering services on public works projects now and in the future.”
Lastly, we note Professional Engineers’ curious argument that, because by
its terms article 24 “is not triggered when contracting out is recognized or required
by law,” and Proposition 35 now allows such private contracting, article 24’s
preference for using state employees “does not violate Proposition 35 because that
preference does not apply when the ‘law’ and ‘court decisions’ (such as the
Kempton decision) ‘recognize’ contracting out.” This argument appears to amount
to a concession that any provisions of article 24 in conflict with Proposition 35 as
we construed that initiative in Kempton are a nullity.
17

---

III. CONCLUSION
We affirm the judgment of the Court of Appeal.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
CORRIGAN,
J.
18

---

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Consulting Engineers & Land Surveyors of CA, Inc. v. Professional Engineers in CA
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 140 Cal.App.4th 466
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S145341
Date Filed: November 5, 2007
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Raymond M. Cadei

__________________________________________________________________________________

Attorneys for Appellant:

Law Office of Kelley Stimpel Martinez, Kelley Stimpel Martinez; Law Offices of James E. McGlamery
and James E. McGlamery of Defendant and Appellant.

Olson, Hagel & Fishburn, Deborah B. Caplan, N. Eugene Hill and William B. Tunick for Don Perata,
President Pro Tempore of the State Senate and Fabian Nunez, Speaker of the State Assembly as Amici
Curiae on behalf of Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Stoel Rives and James P. Corn for Plaintiffs and Respondents.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, James M. Humes, Chie Deputy Attorney
General, Louis R, Mauro and Stacy Boulware Eurie, Assistant Attorneys General, Christopher E. Krueger,
Catherine A. Van Aken, Vickie Pochelle Whitney and Leslie R. Lopez, Deputy Attorneys General, for
California Department of Transportation as Amicus Curiae on behalf of Plaintiffs and Respondents.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Kelley Stimpel Martinez
Law Office of Kelley Stimpel Martinez
331 J Street, Suite 200
Sacramento, CA 95814
(016) 448-2121

James P. Corn
Stoel Rives
770 L Street, Suite 800
Sacramento, CA 95814
9916) 447-0700

Vickie Pochelle Whitney
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 445-8194

---

Opinion Information

Date:	Docket Number:
Mon, 11/05/2007	S145341

Disposition
Nov 5 2007	Opinion: Affirmed

Dockets
Jul 24 2006	Petition for review filed   Professional Engineers in California Government, appellant, by Kelley Stimpel Martinez and james E. McGlamery, retained counsel. (Filed in Sacramento)
Jul 27 2006	Record requested
Aug 11 2006	2nd record request
Aug 14 2006	Answer to petition for review filed   counsel for resps.
Aug 24 2006	Reply to answer to petition filed   counsel for aplts. Prof. Engineers in Calif. Govt.
Sep 13 2006	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Sep 13 2006	Note:   Requested additional volume by overnight service.
Sep 20 2006	Certification of interested entities or persons filed   counsel for aplt.
Sep 21 2006	Request for extension of time filed   Counsel for aplt. requests 45-day extension of time to 11-27-06 to file the opening brief on the merits.
Sep 22 2006	Certification of interested entities or persons filed   counsel for resp.
Sep 25 2006	Request for extension of time filed   Appellant's time to serve and file the opening brief on the merits is extended to and including November 13, 2006.
Nov 13 2006	Opening brief on the merits filed   counsel for appellants (Prof. Engineers in Calif. Govt.)
Dec 12 2006	Answer brief on the merits filed   counsel for respondents (Consulting Engrs. and Land Surveyors of Calif, et al.)
Dec 18 2006	Request for extension of time filed   Prof. Engineers in CA Gov., defendant and appellant extension to 1-22-07 to file the reply brief on the merits
Jan 4 2007	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits extended to and including January 22, 2007.
Jan 22 2007	Reply brief filed (case fully briefed)   counsel for Prof. Engineers in Calif. Govt.
Feb 21 2007	Received application to file Amicus Curiae Brief   counsel for Pres. Pro Tem, State Senate Don Perata and Speaker of State Assembly Fabian Nunez.
Feb 21 2007	Received application to file Amicus Curiae Brief   California Dept. of Transportation in support of respondent
Mar 5 2007	Permission to file amicus curiae brief granted   Don Perata, President Pro Tempore, State Senate, and Fabian Nunez, Speaker, State Assembly in support of appellant
Mar 5 2007	Amicus curiae brief filed   Don Perata, President Pro Tempore, State Senate, and Fabian Nunez, Speaker, State Assedmbly, for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 5 2007	Permission to file amicus curiae brief granted   Calif. Department of Transportation in support of respondent.
Mar 5 2007	Amicus curiae brief filed   California Department of Transportation for permission to file an amicus curiae is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 13 2007	Response to amicus curiae brief filed   Counsel for Professional Engineers in California Government
Mar 20 2007	Response to amicus curiae brief filed   Consulting Engineers and Land Surveyors of California, et al., Plaintiffs and Respondents. James P. Corn, counsel *** answer to amicus curiae brief of President Pro Tempore of the State Senate and Speaker of the State Assembly ***
May 16 2007	Supplemental briefing ordered   The court requests that the parties file supplemental letter briefs addressing the impact of this court's recent opinion in Professional Engineers v. Kempton (2007) 40 Cal.4th 1016 [2007 Cal. Lexis 3580] on the issues presented in this case. Supplemental briefing is to proceed as follows: The parties may file simultaneous letter briefs on or before June 8, 2007. Each party may then file an additional letter brief in response on or before June 22, 2007. No further extensions of time for the filing of these briefs are contemplated by the Court.
May 29 2007	Change of contact information filed for:   Kelley Stimple Martinez, counsel for appellant.
Jun 8 2007	Supplemental brief filed   counsel for plf. and resp. Consulting Engrs. and Land Surveyors of Calif., et al.
Jun 8 2007	Received:   from counsel for amicus curiae Calif. Department of Transportation, Request to file a Supplemental letter brief.
Jun 8 2007	Supplemental brief filed   counsel for Prof. Engrs. in Calif. Govt.
Jun 11 2007	Received:   from counsel for amicus curiae Pres. Don Perata, Pro Tem of the State Senate and Speaker of the State Assembly, Request to File a Supplemental Letter Brief in support of appellant (8.25(b))
Jun 12 2007	Letter brief filed   counsel for Pres. Pro Tem,., Don Perata, and Speaker of the State Assembly, Fabian Nunez **** supplemental letter brief *** w/permission
Jun 12 2007	Letter brief filed   counsel for Dept. of Transportation w/permission **** supplemental letter brief ***
Jun 22 2007	Letter brief filed   counsel for Consulting Engrs. and Land Surveyors of Calif. in response to letter brief filed by Prof. Engrs. in Calif. Govt. and Pres. Pro Tem, State Senate and Speaker of the State Assembly.
Jun 22 2007	Letter brief filed   counsel for Prof. Engrs. in Calif. Govt. in response to the Consulting Engrs. and Land Surveyors and Calif. and the Calif. Dept. of Transportation.
Aug 8 2007	Case ordered on calendar   to be argued on Thursday, September 6, 2007, at 9:00 a.m., in San Francisco
Aug 17 2007	Application filed to:   divide oral argument time, by counsel for respondent Consulting Engineers & Land Surveyors of California, asking to share 10 minutes of time with amicus curiae Department of Transportation.
Aug 21 2007	Order filed   The request of counsel for respondent in the above-referenced cause to allow two counsel to argue on behalf of respondent at oral argument is hereby granted. The request of respondent to allocate to amicus curiae California Department of Transportation 10 minutes of respondent's 30-minute allotted time for oral argument is granted.
Sep 6 2007	Cause argued and submitted
Nov 2 2007	Notice of forthcoming opinion posted
Nov 5 2007	Opinion filed: Judgment affirmed in full   OPINION BY: Moreno, J. ---- joined by: George, C.J., Kennard, Baxter, Werdegar, Chin, Corrigan, JJ.
Dec 6 2007	Remittitur issued (civil case)
Dec 13 2007	Received:   receipt for remittitur from CA/3.

Briefs
Nov 13 2006	Opening brief on the merits filed
Dec 12 2006	Answer brief on the merits filed
Jan 22 2007	Reply brief filed (case fully briefed)
Mar 5 2007	Amicus curiae brief filed
Mar 5 2007	Amicus curiae brief filed
Mar 13 2007	Response to amicus curiae brief filed
Mar 20 2007	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website