Docket No. S139917
Prof. Engineers etc. v. Kempton
Filed 4/12/07
IN THE SUPREME COURT OF CALIFORNIA
PROFESSIONAL ENGINEERS IN
CALIFORNIA GOVERNMENT et al.,
Plaintiffs and Appellants,
S139917
v.
Ct.App.
1/5
A108641
WILL KEMPTON, as Director, etc.,
San
Francisco
County
Defendants and Respondents,
Super.Ct. No. CPF-02-502067
CALTROP ENGINEERING CORP. et al., )
Interveners and Respondents.
Proposition 35, enacted by the electorate on November 7, 2000, expressly
removed a constitutional restriction on the ability of governmental entities to
contract with private firms for architectural and engineering services on public
works projects. However, the measure was silent as to the status of certain
statutory regulations on private contracting that were derived from the
constitutional restriction. After the passage of Proposition 35, the state
Department of Transportation (Caltrans) took the position that the initiative had
impliedly repealed those regulatory statutes and ceased complying with them.
However, Caltrans continued to use a pre-Proposition 35 statutory procedure for
selecting architectural and engineering contractors. In the writ proceeding below,
brought by a state employees’ union and a taxpayer challenging Caltrans’s
1
interpretation of Proposition 35, Caltrans prevailed and the Court of Appeal
affirmed judgment in its favor.
Here we decide two issues: (1) did Proposition 35 implicitly repeal the
prior statutes regulating private contracting for architectural and engineering
services by government agencies, and (2) did the passage of Proposition 35
invalidate or require modification of the pre-Proposition 35 statutory procedure for
selecting private architectural and engineering firms. We conclude that
Proposition 35 did implicitly repeal the prior statutes regulating private
contracting, but did not invalidate the prior procedure for selecting private
contractors. The further question of whether some modification of that procedure
is required by Proposition 35 is not yet ripe for adjudication in the absence of
legislative action on that issue. Accordingly, we affirm the judgment of the Court
of Appeal.
I. STATEMENT OF THE CASE
A. Proposition 35
Entitled the Fair Competition and Taxpayer Savings Act, Proposition 35
was passed by the electorate on November 7, 2000. 1 The initiative added article
XXII to the state Constitution and chapter 10.1, commencing with section
4529.10, to the Government Code.2 It also contained a statement of purpose and
intent, a provision for legislative amendment of the initiative, and a provision
addressing the possibility of a conflicting initiative on the same subject.
1
The initiative and ballot pamphlet materials are attached as appendix A.
2
All further statutory references are to the Government Code unless
otherwise specified.
2
The purpose and intent of Proposition 35 were set forth in section 2. These
include “remov[ing] existing restrictions on contracting for architectural and
engineering services and [allowing] state, regional and local governments to use
qualified private architectural and engineering firms to help deliver transportation,
schools, water, seismic retrofit and other infrastructure projects safely, cost
effectively and on time;” “encourag[ing] the kind of public/private partnerships
necessary to ensure that California taxpayers benefit from the use of private sector
experts to deliver transportation, schools, water, seismic retrofit and other
infrastructure projects;” “promot[ing] fair competition so that both public and
private sector architects and engineers work smarter, more efficiently and
ultimately deliver better value to taxpayers;” “speed[ing] the completion of a
multi-billion dollar backlog of highway, bridge, transit and other projects;”
“ensur[ing] that contracting for architectural and engineering services occurs
through a fair, competitive selection process, free of undue political influence, to
obtain the best quality and value for California taxpayers;” and “ensur[ing] that
private firms contracting for architectural and engineering services with
governmental entities meet established design and construction standards and
comply with standard accounting practice and permit financial and performance
audits as necessary to ensure contract services are delivered within the agreed
schedule and budget.” (Voter Information Guide, Gen. Elec. (Nov. 7, 2000) text
of Prop. 35, § 2, p. 65, also reprinted in 32A West’s Ann. Gov. Code (2007 supp.)
foll. § 4529, p. 32; see appen. A, p. ii.)
The new constitutional provision, article XXII, section 1, granted to “[t]he
State of California and all 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” the “choice and authority”
to “contract with qualified private entities for architectural and engineering
3
services for all public works of improvement.” (Cal. Const., art. XXII, § 1.)
Section 2 eliminated restrictions on the authority of these governmental entities to
enter into such contracts that had been imposed by judicial construction of article
VII of the state Constitution, which established the state’s merit-based civil
service. (Cal. Const., art. XXII, § 2; see Professional Engineers v. Department of
Transportation (1997) 15 Cal.4th 543.)
Among the relevant provisions of the newly added chapter 10.1 of the
Government Code, section 4529.10 defines “architectural and engineering
services.” Section 4529.11 specifies that “[a]ll projects included in the State
Transportation Improvement Program programmed and funded as interregional
improvements or as regional improvements shall be subject to Article XXII of the
California Constitution.” Section 4529.12 provides: “All architectural and
engineering services shall be procured pursuant to a fair, competitive selection
process which prohibits governmental agency employees from participating in the
selection process when they have a financial or business relationship with any
private entity seeking the contract, and the procedure shall require compliance
with all laws regarding political contributions, conflicts of interest or unlawful
activities.” Section 4529.16 provides: “This act shall not be applied in a manner
that will result in the loss of federal funding to any governmental entity.” Section
4529.18 states: “If any action of the Legislature conflicts with the provisions of
this act, this act shall prevail.” Section 4529.19 provides: “This act shall be
liberally construed to accomplish its purposes.” Section 4259.20 provides: “This
act seeks to comprehensively regulate the matters which are contained within its
provisions. These are matters of statewide concern and when enacted are intended
to apply to charter cities as well as other governmental entities.”
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
4
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;
see appen. A, p. iv.)
B. Proceedings in the Trial Court
On November 21, 2000, Professional Engineers in California Government,
which identified itself as “the duly certified collective bargaining representative
for members of state employee Bargaining Unit No. 9,” and Dennis Alexander, a
taxpayer (collectively Professional Engineers), filed a petition for writ of mandate
in the San Francisco Superior Court. Named as respondents were Jeff Morales,
then Director of Caltrans (the present Director of Caltrans, Will Kempton, was
appointed in 2004); Caltrans; Maria Contreras-Sweet, then Secretary of the
California Business, Transportation and Housing Agency; and the Business,
Transportation and Housing Agency (collectively Caltrans).
The petition’s general allegations described the pre-Proposition 35 state of
the law with respect to private contracting by public agencies. Under the prior
statutory scheme, the law pertaining to when “the State of California could
contract out architectural and engineering services for [public works] projects
[was] found in Article VII of the California Constitution, decisional law, and
statutes. Those laws authorized the State of California to contract out architectural
and engineering services when, for example, the contract is for a new state
function, the services are not available within civil service, cannot be performed
satisfactorily by civil service employees, or are of such a highly specialized or
technical nature that necessary expert knowledge, experience, and ability are not
available through the civil service system. (Gov. Code, § 19130(b).) [¶] . . . The
State of California also granted to Caltrans specifically, authority to contract out
architectural and engineering services when, for example, obtainable staff is
unable to perform the particular work within the time the public interest requires
5
such work to be done, and when Caltrans 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. (Government Code
§§ 14101, 14130.)”
The general allegations also described the pre-Proposition 35 selection
procedure by which private entities were awarded contracts for architectural and
engineering services. “[T]he State of California awarded contracts to private firms
for architectural and engineering services . . . pursuant to a method called the
‘qualifications based selection process’ (QBS), which is codified in Government
Code § 4525, et seq. The QBS method prohibits competitive bidding and requires
selection based on factors that do not include cost considerations.”
According to the allegations of the petition, the effect of Proposition 35 was
to authorize “ ‘the State of California’ . . . to choose ‘when’ to contract for
architectural and engineering services,” but this reference to the “State of
California” was to “the Governor and the Legislature. Since the passage of
Proposition 35, neither the Governor nor the Legislature have chosen to authorize
any new or different circumstances under which Caltrans may contract out
architectural and engineering services other than those found in Government Code
§§ 14101, 14130 and 19130, which existed prior to the passage of Proposition 35.
[¶] . . . Proposition 35 did not expressly or impliedly repeal Government Code
§§ 14101, 14130, 19130, or 14520.3.”
However, the petition alleged that Proposition 35’s mandate that contracts
for architectural and engineering services be awarded pursuant to a “fair,
competitive selection” process “require[d] calculation and comparison of the costs
between private firms, and the costs of using a private firm against the costs of
using civil service employees to perform the same work” and thus effectively
repealed the quality based selection process.
6
The petition alleged 10 causes of action. The first cause of action was
captioned “The QBS Process Violates Proposition 35.” It alleged that the use of
the qualification-based selection (QBS) process violated Proposition 35’s mandate
of a fair competitive bidding process because the QBS process did not permit
competitive bidding or require cost comparisons before awarding contracts. The
second cause of action was captioned “Until New Law Is Created, Caltrans May
Only Contract Out Under Government Code §§ 14101, 14130 and 19130.” It
alleged that Caltrans had “awarded contracts that are not authorized under these
statutes.”3 Professional Engineers sought declaratory and injunctive relief.
On December 12, 2002, the superior court granted the motion to intervene
in the action made by Caltrop Engineering Corporation, CH2M Hill, DMJM +
Harris, Harris & Associates, Inc., Kleinfelder, Inc., Lim & Nascimento
Engineering Corporation, Parsons Brinckerhoff Quade & Douglas, Inc., Psomas,
Trauner Consulting Services, Inc., Vali Copper & Associates, Inc., and Consulting
Engineers and Land Surveyors of California (collectively Caltrop). The complaint
in intervention identified these entities as firms that had either executed consulting
contracts with Caltrans or, in the case of Kleinfelder, Inc., was a party to
subconsultant contracts with firms that had contracted directly with Caltrans.
Additionally, Consulting Engineers and Land Surveyors of California was
identified as a nonprofit corporation that served as a professional association of
consulting engineers and land surveying firms that regularly contracted with
Caltrans. The association and its members had been actively involved in the
drafting, initiation and passage of Proposition 35.
3
The remaining causes of action are not relevant to our discussion.
7
On November 17, 2003, Caltrans filed an answer to the petition. Caltrans
admitted “that since passage of Proposition 35 . . . it has contracted with private
firms for architectural and engineering services without justifying such contracting
on superseded statutory authority under Government Code sections 14101, 14130
and 19130.” As an affirmative defense, Caltrans alleged that Professional
Engineers had failed to state a cause of action with respect to either the first or
second causes of action. Caltrans alleged: “1. [Professional Engineers’] First
Cause of Action fails to state a cause of action, because the qualifications-based
selection process does not violate Proposition 35. [¶] 2. [Professional
Engineers’] Second Cause of Action fails to state a cause of action, because
constitutional provisions of Proposition 35 are self-executing and no new law is
required before it may be implemented. Further, that Government Code sections
14101, 14130, and 19130 have been superseded by the enactment of Proposition
35.” Caltrop’s answer, filed the same day, mirrored Caltrans’s answer.
On June 28, 2004, Caltrans filed its opposition to the petition. Caltrans
argued that the explicit purpose of Proposition 35 was to remove limitations on a
state agency’s authority to contract out architectural and engineering services that
had been imposed through judicial interpretation of article VII of the state
Constitution. Citing both the language of the initiative and the ballot arguments,
Caltrans contended “Article XXII effectively removed all Article VII limitations
on [Caltrans’s] authority to contract for A&E services, which had been set forth in
such statutes as Government Code sections, 14101, 14130 and 19130 . . . . With
the passage of Proposition 35, the State was authorized to exercise contracting
authority for A&E services free from any Article VII restrictions.”
On the other hand, Caltrans maintained that Proposition 35 did not require
it to abandon the QBS procedure for selecting contractors. Caltrans disputed
Professional Engineers’ claim that cost savings was the primary goal of
8
Proposition 35. “Although the preamble mentions ‘taxpayers savings,’ ‘taxpayers
benefit,’ ‘fair competition’ and ‘value,’ these words and phrases cannot be
interpreted as referring only to cost . . . . [¶] . . . [¶] By definition, cost may be
one measure of value, but there are other measures that the voters considered
equally or more important, such as expedited delivery of transportation projects,
completion of the seismic retrofitting of bridges and elimination of a backlog of
public works projects.”
Caltrans noted that federal law requires the state to award federally assisted
architectural and engineering contracts based on the QBS procedure or suffer loss
of federal funds. “The State’s QBS process set forth in the Government Code
section 4525 et seq. is equivalent to the [federal] ‘Brooks Act’ process and so
satisfies the federal requirement. Approximately 84% of the A&E contracts
awarded by [Caltrans] are federal-aid contracts and are required by federal law to
be procured pursuant to a QBS process.” As Caltrans further observed: “Since
Proposition 35 requires the act to be implemented in a way that avoids the loss of
federal funds, the QBS competitive selection process currently employed by the
state is the only selection process the state can use to procure A&E services.”
Caltrans also argued that Proposition 35 was self-executing, rejecting
Professional Engineers’ position that it required further legislation to be
implemented. “Constitutional provisions are self-implementing and require no
action by the legislature to take effect unless such requirement plainly appears on
the face of the Act . . . . Because Proposition 35 contains no directive to the
Legislature to implement Article XXII, the presumption that the provision is self-
executing prevails.” Thus, in Caltrans’s view, no further legislation or
administrative regulations were required to implement Proposition 35’s
requirement of a “fair, competitive selection process” because the QBS procedure
9
met that requirement. Caltrop’s opposition to the petition for writ of mandate
advanced similar arguments.
In reply, Professional Engineers argued that Proposition 35 did not repeal
preexisting statutes governing private contracting because the initiative was not
self-executing, but required implementation through the legislative process.
Professional Engineers argued that, if preexisting statutes were deemed to be
implicitly repealed, Caltrans would have no statutory authority at all for
contracting out architectural and engineering services because new statutes had not
yet been enacted. On the QBS issue, Professional Engineers argued that
Proposition 35’s cost-saving mandate required “a new and different selection
process sharply focused on cost competition among consultants and between
consultants and the state.”
On October 28, 2004, the trial court issued an order denying the petition.
After entry of judgment for Caltrans, Professional Engineers appealed.
C. The Court of Appeal Opinion
The Court of Appeal affirmed the judgment in part and reversed it in part.
In the published portion of its opinion, the court rejected Professional Engineers’
argument that Proposition 35 “simply lifted the restrictions of Article VII on the
Legislature’s power to authorize private contracting of architectural and
engineering services on public works” and that “[u]nless and until the Legislature
amends or repeals the pre-Proposition 35 statutes that govern private contracting,
those statutes remain in effect and are binding on state agencies.” It also rejected
Professional Engineers’ argument that Proposition 35 invalidated the QBS process
set forth in sections 4525 to 4529.5.
The Court of Appeal acknowledged that Proposition 35 did not expressly
repeal existing statutory restrictions on private contracting and that repeals by
implication are disfavored. Nonetheless, the court concluded that Proposition 35
10
implicitly repealed those statutes. In support of this conclusion, the court cited
provisions of the initiative that it deemed irreconcilable with the pre-Proposition
35 regulatory statutes. Those provisions included Proposition 35’s express intent
to comprehensively regulate the subject of private contracting and to remove
article VII restrictions; the requirement of liberal construction of its provisions to
accomplish its purpose; and the restricted power granted to the Legislature to
amend the initiative to further its purpose. “Collectively, these provisions compel
the conclusion that Proposition 35 effected an implied repeal or amendment of
existing statutes to the extent that they limit Caltrans’s ability to hire private
contractors to perform architectural and engineering services beyond the
limitations of Proposition 35.”
Turning to the specific statutes, sections 14101, 14130 to 14137, and
19130, the Court of Appeal noted that “[b]ecause the pre-Proposition 35 statutory
restrictions mirror the restrictions imposed by article VII, which were expressly
removed by California Constitution article XXII, the initiative would have no
immediate practical effect if those statutory restrictions remained in force.”
The Court of Appeal then addressed the contention of Professional
Engineers that Caltrans had no power to contract with private firms unless
authorized by specific legislation. The Court of Appeal held that article XXII was
self-executing and did not require implementing legislation. The court then found
that Caltrans’s broad statutory authority to plan, design, and construct
transportation systems found in section 14030, subdivision (d), provided Caltrans
with the authority it needed to contract out architectural and engineering services
under the constitutional and statutory scheme adopted by Proposition 35.
Finally, the Court of Appeal addressed Professional Engineers’ argument
that article XXII removed a restriction on legislative power, and therefore must be
liberally construed in favor of the Legislature’s power to act in the field of private
11
contracting. The court responded: “[Professional Engineers’] analysis might be
persuasive if article XXII had been adopted in isolation, but the article was
adopted as part of an act and must be construed in context. Other parts of the act
provide that it must be liberally construed to accomplish its purposes, which
include removal of existing restrictions on private contracting, and the initiative
explicitly restricts the Legislature’s prospective power to regulate private
contracting. (§ 4529.19; Prop. 35, §§ 2, 5.) Article XXII authorizes private
contracting by the State of California ‘and all other governmental entities,’ which
includes both local governments (cities and counties) and local agencies. (Cal.
Const., art. XXII, § 1.) We construe article XXII to affirmatively authorize state
agencies to contract with private entities for architectural and engineering services.
(Prop. 35, § 5.)”
The Court of Appeal then addressed Professional Engineers’ claim that
Proposition 35 had invalidated the QBS procedure set forth in sections 4525 to
4529.5. The court found no inconsistency between Proposition 35’s requirement
of a “fair competitive selection process” and the QBS procedure. First, it observed
that the QBS procedure was a qualification-based competitive procedure that
included a cost component. Second, the Court of Appeal noted that Proposition 35
required that the initiative not be applied in a manner that would result in the loss
of federal funding and, because federal law required the use of a QBS procedure,
“[a]t a minimum, as to federally funded projects, section 4529.16 compels a
construction of section 4529.12 that allows the use of qualification-based selection
procedure.” The court noted about 84 percent of Caltrans’s contracts were subject
to the federal requirement.
The Court of Appeal concluded that the use of the QBS procedure did not
conflict with Proposition 35’s statement of purpose and intent, notwithstanding
language in the statement and title referring to cost effectiveness and taxpayer
12
savings. The court pointed to statements in the ballot pamphlet materials advising
voters that private contracting might result in higher costs but would also accrue
other benefits. Additionally, “the official summary clearly states that competitive
bidding on the contracts (the prevailing method of public contractor selection that
gives prominent weight to cost) is permitted but not required under Proposition
35.”
Accordingly, the Court of Appeal affirmed the trial court’s judgment
insofar as it involved these claims.4
We granted Professional Engineers’ petition for review.
II. ANALYSIS
A. The Standard of Review
This case comes to us as a denial of a petition for writ of mandate.
“Although an appellate court defers to a trial court’s factual determinations if
supported by substantial evidence,” where, as here, “the trial court’s decision did
not turn on any disputed facts,” the trial court’s decision “is subject to de novo
review.” (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29
Cal.4th 911, 916; Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1275
[“In resolving questions of law on appeal from a denial of a writ of mandate, an
appellate court exercises its independent judgment”].) The issues before us
present questions of law and review is de novo.
4
In the unpublished portion of its opinion, the Court of Appeal reversed the
judgment insofar as it agreed with Professional Engineers that certain regulations
used by Caltrans in awarding architectural and engineering contracts were not
promulgated in accordance with the Administrative Procedures Act. (§ 11340 et
seq.) That issue is not before us.
13
B. Background
1. Article VII Restrictions on Private Contracting
“Article VII of the California Constitution establishes a system of civil
service employment for state government: ‘The civil service includes every
officer and employee of the State except as otherwise provided in this
Constitution.’ (Cal. Const., art. VII, § 1, subd. (a).) The hallmark of our civil
service system is that appointments and promotions are based on merit ascertained
by competitive examination. (Art. VII, § 1, subd. (b).) [¶] The purposes of article
VII as disclosed in the ballot argument of its predecessor provision are twofold:
(1) to encourage efficiency and economy in state government, and (2) to eliminate
the ‘spoils system’ of political patronage by ensuring that demonstrated fitness —
rather than political considerations — spurs all appointments to public service.”
(Professional Engineers v. Department of Transportation (1993) 13 Cal.App.4th
585, 592.)
While article VII does not expressly prohibit the use of private contractors
to perform state functions, judicial construction of this provision has long held that
a restriction upon the use of such private contractors is necessary to fulfill its
purposes. “ ‘Were the rule otherwise, the civil service system could be entirely
undone by a system of contracting; and the state’s work force could be dominated
by independent contractors who would be hired from job to job.’ Such a system,
operating without regard to considerations of economy or efficiency, and open to a
‘patronage/spoils system’ method of contracting, would conflict with the
electorate’s probable intent in adopting article VII and its predecessor.”
(Professional Engineers v. Department of Transportation, supra, 15 Cal.4th at
p. 564; California State Employees’ Assn. v. Williams (1970) 7 Cal.App.3d 390,
397 [“The restriction on ‘contracting out’ ” “emanates from an implicit necessity
14
for protecting the policy of the organic civil service mandate against dissolution
and destruction”].)
Decisional law construed article VII as a restriction, but not a total
prohibition, against private contracting by public agencies, and developed three
exceptions. The first, called the “nature of the services” rule, was explicated in
State Compensation Ins. Fund v. Riley (1937) 9 Cal.2d 126. In Riley, we held that
the employment of an outside attorney by the State Compensation Insurance Fund,
which had its own in-house attorneys, violated article XXIV, the predecessor
provision to article VII. We observed: “There undoubtedly is a field in which
state agencies may enter into contracts with independent contractors. But the true
test is not whether the person is an ‘independent contractor’ or an ‘employee’, but
whether the services contracted for, whether temporary or permanent are of such a
nature that they could be performed by one selected under the provisions of the
civil service. If the services could be so performed then in our opinion it is
mandatory upon such appointing power to proceed in accordance with the
provisions of the Constitution and statute above summarized.” (Id., at p. 135.)
“[I]f the services cannot be adequately rendered by an existing agency of the
public entity. . . the contract is permissible.” (California State Employees’ Assn. v.
Williams, supra, 7 Cal.App.3d at p. 397.)
The second exception to article VII’s restriction on contracting out
government functions to private entities is termed the “new state function” rule.
“[T]he 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.” (Professional Engineers v.
Department of Transportation, supra, 15 Cal.4th at p. 549; California State
Employees’ Assn. v. Williams, supra, 7 Cal.App.3d at p. 399 [“the state civil
service suffers no displacement and the underlying constitutional policy is not
15
offended when a new state activity is conducted by contract with a separate public
or private entity”].)
The third exception to article VII is referred to as the “cost savings
exception.” In California State Employees’ Assn. v. State of California (1982) 199
Cal.App.3d 840, the Court of Appeal upheld section 19130, which, under specified
conditions, allows the state to contract with private entities to perform personal
services to achieve cost savings, against a claim that the statute violated article
VII. Discussing that holding in our 1997 Professional Engineers opinion, we
explained that the savings objective of section 19130 was permissible if, pursuant
to the statute, the state “can achieve these savings without ignoring other
applicable civil service requirements (e.g., use of publicized, competitive bidding,
no undercutting of state pay rates, no displacement of state workers or
infringement of affirmative action plans, and no overriding public interest in
having the state perform the function).” (Professional Engineers v. Department of
Transportation, supra, 15 Cal.4th at p. 549.)
These exceptions to article VII, derived from its restriction on private
contracting, defined the scope of the Legislature’s statutory efforts to permit some
contracting out of government functions prior to the enactment of Proposition 35.
This is plainly true of the statutes involved in this matter, sections 14101, 14130 et
seq., and 19130, all of which incorporate those exceptions.
Under section 14101, Caltrans “shall contract with qualified architects and
engineers for the performance of work when it is determined by the Director of
Transportation, with the approval of the Director of Finance, that the obtainable
staff is unable to perform the particular work within the time the public interest
requires such work to be done.” Thus, this authorization includes a condition that
conforms to the nature of the services exception. Similarly, section 14130
expresses the Legislature’s intent that Caltrans “contract for the services of
16
engineers, [and] architects, . . . 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 matter.”
(§ 14130, subd. (b); see also § 14131 [“Services contracted for shall not cause the
displacement of any permanent, temporary, or part-time employee of the
department”].) “These sections appear consistent with decisional law interpreting
article VII.” (Professional Engineers v. Department of Transportation, supra, 15
Cal.4th at p. 551.)
This is also true of section 19130, which authorizes state agencies to enter
into personal service contracts with outside entities to achieve costs savings but
only if one of two conditions is met. Either “[t]he contract is for a new state
function and the Legislature has specifically mandated or authorized the
performance of the work by independent contractors” (§ 19130, subd. (b)(2)), or
“[t]he services contracted are not available within civil service, cannot be
performed satisfactorily by civil service employees, or are of such a highly
specialized or technical nature that the necessary expert knowledge, experience,
and ability are not available through the civil service system.” (§ 19130, subd.
(b)(3); see Professional Engineers v. Department of Transportation, supra, 13
Cal.App.4th at p. 594 [noting section 19130, subdivision (b)(2) is “a codification
of the ‘new state function’ test”].)
2. Our 1997 Professional Engineers Decision
Our decision in Professional Engineers v. Department of Transportation,
supra, 15 Cal.4th 585, provides a further indication that pre-Proposition 35
statutes regulating private contracting were constrained by article VII limitations.
In Professional Engineers, we declined to overrule the decisional law that had
inferred article VII’s restriction on private contracting, and rejected legislative
attempts to expand Caltrans’s authority to contract with private entities for
17
architectural and engineering services beyond the limits permitted by the
exceptions to article VII.
Professional Engineers had its genesis in a 1986 lawsuit brought by
Professional Engineers to enjoin Caltrans from contracting with private entities to
carry out state highway projects traditionally performed by civil service
employees. The 1986 litigation resulted in a permanent injunction, issued in 1990,
“prohibiting Caltrans from (1) contracting privately for engineering and inspection
services for highway projects unless the work was to be performed in compliance
with the then existing criteria set forth in section 14101 and former section 14130
et seq.; (2) entering into cooperative agreements with local entities when private
entities were to perform part or all of the work; and (3) awarding contracts to
private entities for construction survey staking.” (Professional Engineers v.
Department of Transportation, supra, 15 Cal.4th at p. 554.)
In response to the injunction, the Legislature adopted chapter 433. (Stats.
1993, ch. 433, p. 2448.) Chapter 433 amended section 14130 in order “(1) to
allow Caltrans ‘continued flexibility’ to contract privately as needed to assure
timely delivery of its projects; and (2) to afford ‘a new and independent basis upon
which to justify contracting out actions.’ ” (Professional Engineers v. Department
of Transportation, supra, 15 Cal.4th at p. 552.) Among its provisions, the
amendment to section 14130 stated that the use of private consultants was
necessary to increase Caltrans’s project delivery on state highway construction
projects; that its use of consultants to assist project delivery was a new state
function; and that Caltrans was not required to use existing state employees or hire
new staff to meet the goals set forth in the chapter. (Id., at pp. 552-553.)
Following the enactment of chapter 433, Caltrans sought to dissolve the
1990 injunction barring its use of private contractors except as permitted by
established exceptions to article VII. The trial court declined to do so. It
18
“concluded that Chapter 433’s legislative findings and directives are ‘obviously
erroneous, unreasonable and inconsistent with the constitutional civil service
mandate,’ and for that reason the provisions are unconstitutional to the extent they
purport to authorize Caltrans to contract privately without a factual showing that
the contract is permissible under applicable constitutional principles.”
(Professional Engineers v. Department of Transportation, supra, 15 Cal.4th at
p. 557.) A divided Court of Appeal disagreed and remanded the matter to the trial
court with directions to dissolve the injunction. We granted review.
Caltrans asked us to overrule the body of decisional law originating with
State Compensation Ins. Fund v. Riley, supra, 9 Cal.2d 126, that had construed
article VII as a restriction on private contracting and developed the exceptions to
the restriction. Caltrans argued that ballot arguments made in connection with the
predecessor provision to article VII demonstrated that the provision was only
intended to implement merit as the basis of appointments and promotion in state
service, but was silent on the issue of outside contracting. We declined to
disapprove this body of law. “As an analytical matter, Riley’s rule seems
appropriate to assure that the state civil service is not neglected, diminished, or
destroyed through routine appointments to ‘independent contractors’ made solely
on the basis of political considerations and cronyism.” (Professional Engineers v.
Department of Transportation, supra, 15 Cal.4th at pp. 563-564.) Furthermore,
“even assuming for the sake of argument that Riley’s constitutional interpretation
was originally flawed, under settled rules of construction we must presume that
Riley’s interpretation was preserved and reincorporated into the Constitution on
two subsequent occasions when (1) in 1970, the voters reenacted an amended
version of former article XXIV pursuant to the recommendation of the California
Constitution Revision Commission, and (2) in 1976, the voters adopted the
substance of former article XXIV as new article VII.” (Id., at p. 564.) Addressing
19
Caltrans’s various policy reasons for urging this court to overrule the case law at
issue, we observed that “although these reasons, if factually based, might support a
constitutional amendment to clarify, or indeed abrogate, the private contracting
restriction, they offer no solid ground for ignoring traditional principles of stare
decisis.” (Id., at p. 566.)
We then turned to the question of whether chapter 433 “affords an
independent basis for overturning the trial court’s injunction and enforcement
orders.” (Professional Engineers v. Department of Transportation, supra, 15
Cal.4th at p. 568.) In answering this question we observed that “[m]ost provisions
of Chapter 433 appear intended to dispense with, rather than to satisfy, the
constitutional civil service mandate.” (Id., at p. 570.) We observed that certain
new subdivisions of the amended version of section 14130 that conflicted with the
civil service mandate were unsupported by express or implied findings or by any
evidentiary support. (Ibid.) Therefore, “[w]e conclude[d] that Chapter 433
contains no express or implied findings sufficient on their face to justify dissolving
the trial court’s injunction. To the extent Chapter 433’s provisions conflict with
the civil service mandate, they are invalid.” (Id., at p. 572.)
Proposition 35 expressly removed all article VII restrictions on the ability
of government entities to contract out for architectural and engineering services.
We turn now to the question of whether Proposition 35 also impliedly repealed
statutes regulating private contracting that were enacted with the article VII
restrictions in mind, particularly sections 14101, 14130 et seq., and 19130.
C. Implied Repeal of Pre-Proposition 35 Statutes Regulating Private
Contracting
In construing the constitutional and statutory provisions added to the state
Constitution and the Government Code by Proposition 35, we apply the same
interpretive principles to each. “The principles of constitutional interpretation are
20
similar to those governing statutory construction. In interpreting a constitution’s
provisions, our paramount task is to ascertain the intent of those who enacted it.
[Citation.] To determine that intent, we ‘look first to the language of the
constitutional text, giving the words their ordinary meaning.’ [Citation.] If the
language is clear, there is no need for construction. [Citation.] If the language is
ambiguous, however, we consider extrinsic evidence of the enacting body’s
intent.” (Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 122.)
Similarly, “[i]n interpreting a voter initiative . . . , we apply the same
principles that govern statutory construction. [Citation.] Thus, ‘we turn first to
the language of the [initiative], giving the words their ordinary meaning.’
[Citation.] The [initiative’s] language must also be construed in the context of the
statute as a whole and the [initiative’s] overall . . . scheme.” (People v. Rizo
(2000) 22 Cal.4th 681, 685.) “Absent ambiguity, we presume that the voters
intend the meaning apparent on the face of an initiative measure [citation] and the
court may not add to the statute or rewrite it to conform to an assumed intent that
is not apparent in its language.” (Lesher Communications, Inc. v. City of Walnut
Creek (1990) 52 Cal.3d 531, 543.) Where there is ambiguity in the language of the
measure, “[b]allot summaries and arguments may be considered when determining
the voters’ intent and understanding of a ballot measure.” (Legislature v.
Deukmejian (1983) 34 Cal.3d 658, 673, fn. 14.)
The unambiguous intent of the electorate in adding article XXII to the state
Constitution via Proposition 35 was to remove article VII’s restriction on the use
of private contractors by state agencies for architectural and engineering services:
“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
21
with private entities for the performance of architectural and engineering
services.” (Cal. Const., art. XXII, § 2.) Moreover, the initiative’s statement of
purpose and intent explicitly states that the removal of “existing restrictions on
contracting for architectural and engineering services” is part of the intent of the
electorate in enacting the initiative. (Voter Information Guide, Gen. Elec. (Nov. 7,
2000) text of Prop. 35, § 2, subd. (a), p. 65; see appen. A, p. ii.) Additionally,
section 4529.11 makes it clear that the elimination of article VII restrictions on
private contracting applies to transportation projects.5
While the initiative does not expressly repeal sections 14101, 14130 et seq.,
and 19130, we conclude that the constitutional and statutory provisions of the
initiative, viewed in the context of the initiative as a whole, impliedly repeal these
statutes. Notwithstanding the “presumption against repeals by implication,” repeal
may be found where (1) “the two acts are so inconsistent that there is no
possibility of concurrent operation,” or (2) “the later provision gives undebatable
evidence of an intent to supersede the earlier” provision. (Hays v. Woods (1979)
25 Cal.3d 772, 784; accord, Chatsky and Associates v. Superior Court (2004) 117
Cal.App.4th 873, 877.) Because “the doctrine of implied repeal provides that the
most recently enacted statute expresses the will of the Legislature” (In re Thierry
5
That section provides that all projects in the State Transportation
Improvement Program (STIP) are subject to article XXII, i.e., removal of article
VII restrictions. (§ 4529.11.) As explained by the Legislative Analyst: “The
STIP is the state’s transportation plan that includes public works projects to
increase the capacity of the state’s highways and provide transit capital
improvements (such as new freeways, new interchanges, and passenger rail rights-
of-way). The STIP is the state’s largest ongoing capital improvement program.
Thus, the proposition would probably have its greatest impact in the transportation
area.” (Voter Information Guide, Gen. Elec. (Nov. 7, 2000) Analysis of Prop. 35
by Legis. Analyst, p. 19; see appen. A, p. vii.)
22
S. (1977) 19 Cal.3d 727, 744), application of the doctrine is appropriate in those
limited situations where it is necessary to effectuate the intent of drafters of the
newly enacted statute. “ ‘In order for the second law to repeal or supersede the
first, the former must constitute a revision of the entire subject, so that the court
may say it was intended to be a substitute for the first.’ ” (Board of Supervisors v.
Longeran (1980) 27 Cal.3d 855, 868, quoting Penziner v. West American Finance
Co. (1937) 10 Cal.2d 160, 176; see also Sutherland, Statutory Construction (6th
ed. 2002) § 23.9, p. 461 [Noting that courts “will infer the repeal of a statute only
when . . . a subsequent act of the legislature clearly is intended to occupy the entire
field covered by a prior enactment”].) Finally, because the power to legislate is
shared by the Legislature and the electorate through the initiative process (Cal.
Const., art. IV, § 1), the principles governing repeals by implication where the
statutory conflict is the result of enactments by the Legislature should also apply
where, as here, the question is whether the provisions of an initiative impliedly
repealed preexisting statutes.
The standards for analyzing whether a statute has been impliedly repealed
by constitutional amendment or another statute are the same. (Barratt American,
Inc. v. City of San Diego (2004) 117 Cal.App.4th 809, 817 [“ ‘The same standards
apply in determining whether a constitutional amendment impliedly repealed a
statutory provision’ ”]; see Martello v. Superior Court (1927) 202 Cal. 400, 404
[statutes that were “verbatim repetition” of a constitutional provision permitting
stipulation to a judge pro tempore that was omitted by subsequent constitutional
amendments were also impliedly repealed].)
When we examine the constitutional and statutory provisions of Proposition
35, in light the initiative as a whole, we find that they demonstrate a clear intent by
the electorate to supersede prior law, under which the ability of state agencies to
contract with private entities for architectural and engineering services was limited
23
by article VII and article VII-derived statutory restrictions. Article XXII, section 1
grants to the “State of California and all other governmental agencies” the “choice
and authority” to “contract with qualified private entities for architectural and
engineering services.” Section 2 provides that “Nothing contained in Article VII
of this Constitution shall be construed to limit, restrict or prohibit the State or any
other governmental entities . . . from contracting with private entities for the
performance of architectural and engineering services.” (Cal. Const, art. XXII,
§ 2.) Although article XXII is silent as to the statutes at issue, other provisions of
the initiative, including the statutory provisions, support a finding of implied
repeal.
The statement of intent expresses the intention to eliminate “existing
restrictions.” (Voter Information Guide, Gen. Elec. (Nov. 7, 2000) text of Prop.
35, § 2, subd. (a), p. 65; see appen. A, p. ii.) The use of the plural “restrictions,”
combined with the absence of a specific reference to article VII, indicates an
intention to remove all such restrictions, whether constitutional or statutory.
(People v. Rizo, supra, 22 Cal.4th at p. 685 [in construing the language of an
initiative, the reviewing court gives words their ordinary meaning].) Several of
the statutory provisions added to the Government Code by the initiative also
support the application of the doctrine of implied repeal. For example, section
4529.20 states that “[t]his act seeks to comprehensively regulate the matters which
are contained within its provisions.” (Italics added.) Section 4529.19 provides
that “[t]his act shall be liberally construed to accomplish its purposes.” Notably,
too, section 4529.18 provides that “[i]f any act of the Legislature conflicts with the
provisions of this act, this act shall prevail.” Finally, the initiative, while
authorizing the Legislature to amend the initiative by statute restricts that power to
such amendments as will “further its purposes.” (Voter Information Guide, Gen.
Elec. (Nov. 7, 2000) text of Prop. 35, § 5, p. 66; see appen. A, p. iv.)
24
Moreover, both the Attorney General’s summary of Proposition 35 and the
analysis of the measure by the Legislative Analyst put the electorate on notice that
the measure was intended to repeal all article VII-based restrictions on private
contracting. The summary explained that a “yes” vote meant that “[t]he state
could contract with private individuals or firms for architectural and engineering
services in all situations rather than only under certain conditions (such as when
the work is of a temporary nature or of such a specialized nature that it cannot be
provided by state employees.)” (Voter Information Guide, Gen. Elec. (Nov. 7,
2000) Ballot Measure Summary, Prop. 35, p. 2; see appen. A, p. vi.) The
italicized language clearly alludes to such exceptions to article VII-based
restrictions as those found in sections 14101, [“obtainable staff is unable to
perform the particular work within the time the public interest requires such work
to be done”], 14130, subdivision (b) [“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”], and
19130, subdivision (b)(3) [“the services contracted . . . are of such a highly
specialized or technical nature that the necessary expert knowledge, experience,
and ability are not available through the civil service system”].) Similarly, the
Legislative Analyst’s analysis of the measure summarized existing law by noting
that private contracting was only permitted “if services needed by the state are: (1)
of a temporary nature, (2) not available within the civil service, or (3) of a highly
specialized or technical nature.” (Voter Information Guide, Gen. Elec. (Nov. 7,
2000) Analysis of Prop. 35 by Legis. Analyst, p. 19; see appen. A, p. viii.)
In summary, Proposition 35 authorizes public entities to contract for
architectural and engineering services free of article VII restrictions and other
existing restrictions; represents a comprehensive regulation of the entire subject of
private contracting for those services; prevails over conflicting acts of the
25
Legislature; must be construed liberally to achieve its goal of encouraging and
authorizing private contracting of architectural and engineering services; and
permits only such statutory amendments by the Legislature as will further its
purposes. Moreover, at the time the initiative was proposed, the voters were
informed that enactment of Proposition 35 would eliminate both the article VII
rule and its exceptions.
These provisions 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. We therefore
conclude that Proposition 35 impliedly repealed the particular statutes at issue
here.6
Although Professional Engineers asserts that the pre-Proposition 35 statutes
are consistent with Proposition 35, it does not specifically attempt to reconcile
6
Professional Engineers contends that, even if Proposition 35 removed
article VII restrictions on private contracting, Caltrans is still required to comply
with sections 14520.3 and 14525, and to use its staff, rather than private
contractors, to perform certain project components. This is because, Caltrans
argues, these sections are not article VII restrictions. In an unpublished portion of
its opinion, the Court of Appeal rejected this argument. The court observed:
“Section 14520.3, which provides that Caltrans is the ‘responsible agency for
performing all state highway project components specified in subdivision (b) of
Section 14529,’ is a statement of legislative intent that also provides that nothing
in the bill enacting section 14529 is intended to alter Caltrans’s responsibility for
the state highway system. (§ 14520.3, subds. (a)-(e).) Neither the plain language
nor apparent purpose of section 14520.3 requires Caltrans to carry out those
responsibilities using civil service personnel rather than private contractors.” We
are here concerned with article VII-based regulatory statutes, which apparently
these statutes are not, and do not decide whether the Court of Appeal’s analysis is
correct.
26
them. Rather, its chief argument is less about the fate of these particular statutes
than the broader question of who has authority to regulate private contracting for
architectural and engineering services by state agencies in the post-Proposition 35
landscape. Professional Engineers explains: “By enacting Proposition 35, the
voters intended to expand the ‘State of California’s’ power to choose when and
how to contract out for [architectural and engineering] services. A primary issue
before this Court is to whom the voters intended that expanded power to be
given.”
In the view of Professional Engineers, prior to the enactment of Proposition
35, the Legislature exercised plenary power in this area, subject to article VII
restrictions on its authority. Therefore, “the elimination of the Article VII
restriction on contracting is intended to lift the restriction on the Legislature’s
power to authorize individual state departments to contract out, thereby expanding
the Legislature’s power over authorizing [architectural and engineering]
contracting.” (Original emphasis.) However, Professional Engineers argues,
unless and until the Legislature uses its expanded power, sections 14101, 14130 et
seq., and 19130 remain in effect, and Caltrans’s authority to enter into contracts
with private entities for architectural and engineering services is subject to the
conditions set forth in those statutes.
Professional Engineers bases this reading of Proposition 35 on its
construction of the phrase “State of California” in article XXII, section 1, as
referring only to the Legislature. Professional Engineers also directs us to the
principle that, when a constitutional provision removes a restriction on the
Legislature’s authority, the provision must be liberally interpreted as an expansion
of the Legislature’s power. In addition to urging that its interpretation of
Proposition 35 is correct, Professional Engineers contends that the alternative
interpretation, that the initiative impliedly repealed the statutes at issue, creates a
27
separation of power conflict because such construction divests the Legislature of
the power to regulate private contracting and places it in the hands of executive
branch agencies. Moreover, Professional Engineers argues that, if current
statutory regulations of private contracting are deemed repealed by implication,
then no statutory authorization exists at all for Caltrans to contract for architectural
and engineering services with private entities.
At the outset, we examine the issue of Legislature’s plenary authority to
determine the circumstances under which public agencies may enter into private
contracts for architectural and engineering services, because appeal to that
authority is central to Professional Engineers’ arguments. Plenary authority and
exclusive authority are not synonymous concepts. (See Independent Energy
Producers Assn. v. McPherson (2006) 38 Cal.4th 1020, 1035-1037.) Under our
constitutional system the Legislature is not the exclusive source of legislative
power. “The legislative power of this State is vested in the California Legislature
which consists of the Senate and the Assembly, but the people reserve to
themselves the powers of initiative and referendum.” (Cal. Const., art. IV, § 1.)
“The initiative is the power of the electors to propose statutes and amendments to
the Constitution and to adopt or reject them.” (Cal. Const., art. II, § 8, subd. (a).)
The electorate’s legislative power is “generally coextensive with the power of the
Legislature to enact statutes.” (Santa Clara County Local Transportation
Authority v. Guardino (1995) 11 Cal.4th 220, 253.) Such statutes, moreover, like
legislative enactments, are presumed to be valid. (Legislature v. Eu (1991) 54
Cal.3d 492, 501.)
If, therefore, as Professional Engineers maintains, the Legislature has
plenary authority to regulate private contracting by public agencies, then so, too,
does the electorate. By enacting Proposition 35, the electorate has exercised its
authority. Our role as a reviewing court is to simply ascertain and give effect to
28
the electorate’s intent guided by the same well-settled principles we employ to
give effect to the Legislature’s intent when we review enactments by that body.
(People v. Rizo, supra, 22 Cal.4th at p. 685.) We do not, of course, pass upon the
“ ‘ “ ‘wisdom, expediency, or policy’ ” ’ ” of enactments by the voters any more
than we would enactments by the Legislature. (California Teachers Assn. v.
Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632.)
Central to Professional Engineers’ argument that the purpose of Proposition
35 was to expand the Legislature’s power is its interpretation of the phrase “State
of California” in section 1 of article XXII as referring solely to the Legislature.
That section reads in pertinent part: “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.” (Ibid.) Professional Engineers maintains that “[f]undamental
principles of statutory construction” confirm its interpretation of the phrase. But
fundamental principles of construction, applicable equally to constitutional
provisions, statutes and initiatives, require us to give words in such texts their
ordinary meanings. (Thompson v. Department of Corrections, supra, 25 Cal.4th at
p. 122.) “Of course, in construing the statute, ‘[t]he words . . . must be read in
context, considering the nature and the purpose of the statutory enactment,’ ”
(People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 301.)
The ordinary meaning of 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.
29
This interpretation is supported if we examine the phrase in context. The
initiative specifically designates the “Legislature” in section 4, where newly added
Government Code section 4529.18 provides, “If any act of the Legislature
conflicts with the provisions of this act, this act shall prevail.” It also refers to
“each house” of the Legislature in section 5, which sets forth the Legislature’s
authority to amend the initiative by statute. (Voter Information Guide, Gen. Elec.
(Nov. 7, 2000) text of Prop. 35, § 5, p. 66; see appen. A, p. iv.) These references
demonstrate that the drafters of the initiative were perfectly capable of designating
the Legislature by name where they intended to address the impact of the initiative
on the Legislature’s authority to regulate private contracting. It is inconceivable
that the drafters would have failed to make clear in article XXII that the reference
to “State of California” was to the Legislature alone.7
7
Professional Engineers also supports its argument that Proposition 35 did
no more than expand the Legislature’s power in the realm of private contracting
with its view of the intent of Proposition 35 vis-à-vis our 1997 Professional
Engineers opinion. Because the decision struck down statutes by which the
Legislature had attempted to expand the power of public entities to contract for
architectural and engineering services in violation of the civil service mandate,
Professional Engineers argues that the intent of Proposition 35 was to overrule that
decision only to the extent that it limited the Legislature’s power in this respect.
Thus, Professional Engineers contends that Proposition 35 did not intend to affect
already existing statutes regulating private contracting, like sections 14101 and
19130, because those statutes did not violate the civil service mandate. This
interpretation of our Professional Engineers opinion ignores the more salient
discussion in which we declined Caltrans’s invitation to overrule 60 years of case
authority imposing article VII-based restrictions on private contracting and
suggested that abrogation of this body of law would require a constitutional
amendment. (Professional Engineers v. Department of Transportation, supra, 15
Cal.4th at p. 566.) It was this part of our analysis to which Proposition 35 appears
to have been directed, rather than the more narrow discussion of the validity of the
specific statutes at issue in that decision.
30
Based on its assertion that the intent behind Proposition 35 is to expand the
Legislature’s power to regulate private contracting without article VII limitations,
should it choose to do so, Professional Engineers argues “[w]here a constitutional
amendment removes restrictions and limitations on Legislative power, the
constitutional amendment must be construed liberally in favor of the Legislature’s
action.” However, given that the premise of its claim — that “State of California”
in article XXII refers to the Legislature alone — is erroneous, this principle is
inapplicable here.8
In addition to urging us to embrace its interpretation of Proposition 35,
Professional Engineers contends that an interpretation of the initiative that allows
Caltrans to contract with private entities for architectural and engineering services
without implementing legislation violates the separation of powers doctrine
because it diverts a legislative function, regulation of private contacting, to an
executive agency. We disagree. This 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.
8
Equally inapposite is the decision with which Professional Engineers seeks
to buttress its claim, Methodist Hospital v. Saylor (1971) 5 Cal.3d 685. In that
case, the voters enacted a constitutional measure related to loan guarantees for
hospital construction that used terms that contemplated further legislative action.
(Id. at pp. 692-694.) We upheld as constitutional implementing statutes enacted
by the Legislature based on its interpretation of the terms. (Id. at pp. 691-692.)
There is no comparable language in Proposition 35 authorizing legislative
implementation of the initiative.
31
Professional Engineers cites Kugler v. Yocum (1968) 69 Cal.2d 371, for the
proposition that regulation of private contacting involves a core legislative
function — “ ‘the determination and formulation of the legislative policy.’ ” (Id.
at p. 376.) We agree with the general principle, of course, but as Yocum itself
illustrates, this legislative function is not the exclusive province of the Legislature.
Yocum involved the refusal of a city council to hold an election on an
proposed initiative ordinance involving the salaries of certain city employees. In
affirming the issuance of a peremptory writ of mandate commanding the city to
conduct the election, we observed that the salary question raised a “ ‘legislative’
rather than [an] ‘administrative’ ” issue and therefore “falls within the electorate’s
initiative power.” (Kugler v. Yocum, supra, 69 Cal.2d at p. 374.) Similarly here,
the setting of policy with respect to private contracting is a legislative matter and,
therefore, a proper subject for the electorate to exercise its legislative authority
through initiative, which is what the electorate has done. The initiative
accomplishes what Professional Engineers argues under its interpretation of
Proposition 35 that the Legislature could also have chosen to do in its own time —
repeal statutes embodying article VII-derived restrictions on private contracting.
We perceive no separation of power violation simply because the electorate, rather
than the Legislature, exercised its constitutional authority as a legislative entity to
make policy in this area. 9
9
The amicus curiae brief filed on behalf of the leadership of the Legislature
contends that agencies have only such power as conferred by the Constitution or
by statute and, therefore, Caltrans has no authority to contract out for architectural
or engineering services absent legislative authorization. Again, this argument
presupposes that only the Legislature can confer such authority, but here the
electorate through initiative can and has conferred this authority through
Proposition 35.
32
Moreover, we agree with Caltrans that the constitutional provision in
Proposition 35 is self-executing and does not require legislative implementation.
(People v. Vega-Hernandez (1986) 179 Cal.App 3d 1084, 1091 [constitutional
provisions are presumed to be self-executing unless a contrary expression is
clearly stated.].) This being so, there is no separation of powers violation simply
because the electorate has chosen to bypass the Legislature and, through
Proposition 35, authorize public agencies to contract for architectural and
engineering services pursuant to the constitutional and statutory provisions added
by the initiative. (Chesney v. Byram (1940) 15 Cal.2d 460, 462 [constitutional
provision is self-executing “ ‘if it supplies a sufficient rule by means of which the
right given may be enjoyed and protected, or the duty to be imposed may be
enforced’ ”].)
We do not believe that any interpretation of Proposition 35, other than an
interpretation that expands the Legislature’s power, impermissibly forecloses the
Legislature’s role in the realm of private contracting by state agencies. This case
does not present the global question of the Legislature’s power vis-à-vis such
private contracting. We address only the issue before us — whether it was the
intent of the electorate in enacting Proposition 35 to lift article VII-derived
limitations embodied in certain specific statutes and thereby allow public agencies
to enter into contracts with private entities for particular kinds of services,
architectural and engineering services, free of these particular limitations. Even
within this specific area of public contracting, section 5 of the initiative reserved to
the Legislature some measure authority to act.10 Therefore, our interpretation of
10
The amicus curiae brief filed on behalf of the leadership of the Legislature
also contends that this construction of Proposition 35 has the effect of limiting
legislative authority in the realm of private contracting to that authority expressly
(Fn. continued on next page)
33
Proposition 35 does not leave the Legislature out of the public contracting
equation even as to the specific subject matter of this initiative.
For the same reason, we reject the claim advanced by Professional
Engineers that Proposition 35 produced such a fundamental restructuring of state
government as to constitute a revision of the Constitution. A revision to the
Constitution cannot be accomplished by an amendment but requires a
constitutional convention. A revision may be found where an enactment “is so
extensive in its provisions as to change directly the ‘substantial entirety’ of the
Constitution by the deletion or alteration of numerous existing provisions” or
“accomplish[es] such far reaching changes in the nature of our basic governmental
plan as to amount to a revision also.” (Amador Valley Joint Union High Sch. Dist.
v. State Bd. of Equalization (1978) 22 Cal.3d 208, 223.) Professional Engineers’
argument appears to be based on the latter, or qualitative, effect of Proposition 35:
“Taking away the Legislature’s plenary power to determine contracting out
policies and procedures for the State of California, and shifting that power to the
(Fn. continued from previous page)
provided by section 5 of the initiative. As part of their initiative power, “ ‘the
voters have the power to decide whether or not the Legislature can amend or
repeal initiative statutes. That power is absolute and includes the power to enable
legislative amendment subject to conditions attached by the voters.’ ” (Amwest
Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1251.) That is what the voters
intended here when, in section 5, they conditioned legislative authority to amend
the initiative statutes to such amendments as will further the purposes of the
initiative. (Voter Information Guide, Gen. Elec. (Nov. 7, 2000) text of Prop. 35,
§ 5, p. 66; see appen. A, p. iv.) We are bound by this clear expression of the
electorate’s will. Whether particular amendments are consistent with this directive
must, of course, be determined on a case-by-case basis.
34
Executive branch, constitutes a fundamental restructuring of our traditional
tripartite system of government.”11
As we have pointed out, however, this characterization of the effects of
Proposition 35 as we have discerned its intent and purpose, is erroneous.
Proposition 35 does not usurp the Legislature’s plenary authority to regulate
private contracting by public agencies in a global sense, but simply permits public
agencies to enter into contracts with private entities for architectural and
engineering services without article-VII derived restrictions on their ability to do
so. Under Professional Engineers’ own interpretation of Proposition 35, repealing
the statutes at issue could permissibly be done by the Legislature. Here, that
repeal has been effected by the other constitutionally empowered legislative
authority, the electorate. Therefore, this is not a case in which the Legislature has
been stripped of authority to regulate private contacting but, rather, a case in
which a permissible legislative decision has been made to remove previous
limitations on the ability of public agencies to contract for architectural and
engineering services. Moreover, as we have observed, even under our
construction of Proposition 35, the Legislature retains some authority as defined in
section 5 to amend the initiative by statute. Accordingly, we cannot agree that
Proposition 35 creates such “far reaching changes to our basic governmental plan
as to amount to a revision.” (Amador Valley Joint Union High Sch. Dist. v. State
Bd. of Equalization, supra, 22 Cal.3d at p. 223.)12
11
In any event, given that Proposition 35 adds only a single constitutional
provision “the quantitative effects on the Constitution seem no more extensive
than those presented in prior cases upholding initiative measures challenged as
constitutional revisions.” (Raven v. Deukmejian (1990) 52 Cal.3d 336, 351.)
12
Amicus curiae Local 21 of the International Federation of Professional and
Technical Engineers, AFL-CIO, argues that an interpretation of Proposition 35
(Fn. continued on next page)
35
Finally, Professional Engineers contends that, if Proposition 35 is construed
to implicitly repeal preexisting statutes regulating private contracting, then
Caltrans has no statutory authority at all to enter into such contracts. The Court of
Appeal found that authority in section 14030, subdivision (d), which authorizes
Caltrans to plan, design, construct, operate, and maintain “transportation systems
which the Legislature has made, or may make, the responsibility of the
department.” Professional Engineers argues that section 14030 does not confer
such authority because nothing in its language or history demonstrates that it was
intended to authorize private contracting. This is true, but irrelevant. We agree
with the Court of Appeal that section 14030 is a broad grant of power sufficient to
encompass private contracting for the accomplishment of Caltrans’s tasks once
that authority became available to Caltrans, which it did when the voters enacted
Proposition 35. The voters are presumed to have been aware of existing laws at
the time the initiative was enacted. (People v. Weidert (1985) 39 Cal.3d 836,
844.) Therefore, the voters can be deemed to have been aware that Caltrans’s
broad preexisting authority to plan, design, construct, operate and maintain
transportation systems was sufficient to add to it the new authority to contract out
(Fn. continued from previous page)
that divests the Legislature of the authority to regulate private contacting “would
divest charter cities of the plenary authority under the ‘home rule’ provisions of
California Constitution, Article XI, Section 5.” “[I]t is the general rule that an
amicus curiae accepts the case as he finds it and may not ‘launch out upon a
juridical expedition of its own unrelated to the actual appellate record . . . .’ ”
(E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 510-511,
quoting Pratt v. Coast Trucking, Inc. (1964) 228 Cal.App.2d 139, 143.) The
impact of Proposition 35 on local governments exceeds the scope of our review
and is not raised by the parties. Therefore it is unnecessary to address at this time
the issue of the impact of Proposition 35 on local government.
36
for architectural and engineering services without requiring enactment of a
separate implementing statute.
Furthermore, as the Court of Appeal pointed out, article XXII, which
confers the choice and authority to enter into contracts with private entities for
architectural and engineering services is, like all constitutional provisions,
presumed to be self-executing unless a contrary intention is clearly expressed.
(People v. Vega-Hernandez, supra, 179 Cal.App.3d at p. 1092.) Here no such
intention has been shown and, as previously noted, we must presume the
amendment is self-executing and needs no implementing legislation.
For all these reasons, we conclude that Proposition 35 implicitly repealed
preexisting statutes regulating private contracting for architectural and engineering
services.
D. Continuing Validity of the QBS Procedure
The remaining issue before us is the continued validity of the QBS
procedure, set forth in sections 4525 to 4529.5, used by Caltrans to select private
architectural and engineering firms. The QBS procedure requires the agency to
negotiate a contract “with the best qualified firm” for such services “at
compensation which the state agency head determines is fair and reasonable to the
State of California or the political subdivision involved.” (§ 4528, subd. (a)(1).)
Thus, qualifications, not cost, is the primary competitive measure by which
contracts are awarded under the QBS procedure. But cost is not irrelevant. If the
agency is unable to negotiate a contract with the most qualified firm at a fair and
reasonable price, negotiations are terminated and the agency is directed to
“undertake negotiations with the second most qualified firm,” and then, failing
that, with the “third most qualified firm.” (§ 4528, subd. (a)(2).) If this process
fails to produce a contract, the agency “shall select additional firms in order of
37
their competence and qualifications and continue negotiations . . . until an
agreement is reached.” (§ 4528, subd. (a)(3).)
As an additional cost safeguard, administrative regulations require Caltrans
to prepare its own cost estimate for a project before commencing price
negotiations. That estimate “may be based on such factors as a market survey,
comparison with fees paid to other departments’ or agencies’ contractors for
similar services, or comparison with the salaries of comparable positions within
the Department, within State service, or within other governmental entities. This
estimate shall serve as a guide in determining fair and reasonable compensation
for the services rendered.” (Cal. Code Regs., tit. 21, § 1520.4.)
In the trial court and the Court of Appeal, Professional Engineers contended
that Proposition 35 implicitly repealed these statutes because the QBS procedure
was inconsistent with the initiative’s cost-saving mandate. In this court, however,
Professional Engineers has retreated from that position. Instead, it argues only
that, to meet the initiative’s cost-saving mandate, “[l]egislation implementing
Proposition 35 must add a cost savings mechanism to the consultant selection
process.”
We agree with the Court of Appeal that the QBS procedure is not
inconsistent with Proposition 35’s requirement that “contracting for architectural
and engineering services occur[] through a fair, competitive selection process,”
(Voter Information Guide, Gen. elec. (Nov. 7, 2000) text of Prop. 35, § 2, subd. (e)
p. 65; § 4529.12; see appen. A, pp. ii-iv), for the reasons given by that court. First,
the QBS process is a competitive process and “while cost may be a less salient
consideration in the qualifications-based selection procedure than in a competitive
bidding process, it is a consideration nevertheless.”
Second, section 4529.16 requires that the initiative “shall not be applied in
a manner that will result in the loss of federal funding to any governmental entity.”
38
As the Court of Appeal explained: “Federal law requires the use of a
qualifications-based selection procedure where the construction of federal-aid
highways is to be performed by a state transportation department or under its
supervision, contracts for architectural and engineering services must be awarded
pursuant to the Brooks Act (40 U.S.C. § 1101 et seq.) or an equivalent state
qualifications-based selection procedure. (23 U.S.C. § 112(b)(2)(A).) The Brooks
Act establishes a qualification-based selection procedure virtually identical to
Government Code chapter 10, sections 4525-4529.5. (40 U.S.C. § 1101 et seq.)
About 84 percent of Caltrans architectural and engineering contracts are subject to
these federal requirements. At a minimum, as to federally funded projects, section
4529.16 compels a construction of section 4529.12 that allows the use of the
qualifications based procedure.”
Third, while the initiative mentions taxpayer savings, the ballot materials
made clear that cost savings were not necessarily the measure of the value to the
taxpayers of permitting private contracting by public entities. As the Court of
Appeal observed: “The official summary of the initiative prepared by the
Attorney General, and the Legislative Analyst’s analysis of the measure both
indicate that the fiscal impact of the initiative was unknown. The Legislative
Analyst specifically notes that in some cases costs may be higher when an agency
contracts out. ‘It may still be in the state’s best interests to do so, however,
because of other considerations’ such as avoiding the delay of formally hiring and
training state employees to meet a short-term surge in workload, and the financial
benefits derived from completing construction projects more quickly. Moreover,
the official summary clearly states that competitive bidding on the contracts (the
prevailing method of public contractor selection that gives prominent weight to
cost) is permitted but not required under Proposition 35.” In addition, the
argument in favor of the initiative specifically informed voters that existing
39
selection statutes would be utilized to procure architectural and engineering
services. “Prop. 35 would simply restore state and local agencies’ choice to utilize
private experts — using the same fair selection process on the books today — to
select the most qualified architects or engineers to get these projects designed and
built on time and on budget.” (Voter Information Guide, Gen. Elec. (Nov. 7,
2000) Argument in Favor of Prop. 35, p. 20; see appen. A, p. xi.) The voters are
deemed to have understood that reference was to the QBS statutes then in effect.
(People v. Weidert, supra, 39 Cal.3d at p. 844.)
We conclude, therefore, that the QBS procedure is not inconsistent with
Proposition 35 and Caltrans’s use of that procedure is not improper. To the extent
that Professional Engineers’ argument is that Proposition 35 requires some
legislative alteration of the QBS procedure to give cost savings a more prominent
role, that argument is best directed at the Legislature. Proposition 35 gives the
Legislature the power to amend the initiative by statute to further its purposes.
(Voter Information Guide, Gen. Elec. (Nov. 7, 2000) text of Prop. 35, § 5; see
appen. A, p. iv.) Unless and until the Legislature does so, however, we are in no
position to pass upon the validity of such amendment.
40
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
CORRIGAN,
J.
41
APPENDIX A
i
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PROPOSITION
2000 General
35 PUBLIC WORKS PROJECTS.
USE OF PRIVATE CONTRACTORS FOR
ENGINEERING AND ARCHITECTURAL SERVICES.
Text of Proposed Law
This initiative measure is submitted to the people in accordance with the provisions of Section 8
of Article II of the California Constitution.
This initiative measure adds sections to the California Constitution and the Government Code;
therefore, new provisions proposed to be added are printed in italic type to indicate that they are
new.
PROPOSED LAW
FAIR COMPETITION AND TAXPAYER SAVINGS INITIATIVE
SECTION 1. TITLE
This measure shall be known and may be cited as the “Fair Competition and Taxpayer Savings
Act.”
SEC. 2. PURPOSE AND INTENT It is the intent of the people of the State of California in
enacting this measure:
(a) To remove existing restrictions on contracting for architectural and engineering services and
to allow state, regional and local governments to use qualified private architectural and
engineering firms to help deliver transportation, schools, water, seismic retrofit and other
infrastructure projects safely, cost effectively and on time;
(b) To encourage the kind of public/private partnerships necessary to ensure that California
taxpayers benefit from the use of private sector experts to deliver transportation, schools, water,
seismic retrofit and other infrastructure projects;
(c) To promote fair competition so that both public and private sector architects and engineers
work smarter, more efficiently and ultimately deliver better value to taxpayers;
(d) To speed the completion of a multi-billion dollar backlog of highway, bridge, transit and
other projects;
(e) To ensure that contracting for architectural and engineering services occurs through a fair,
competitive selection process, free of undue political influence, to obtain the best quality and
value for California taxpayers; and
ii
(f) To ensure that private firms contracting for architectural and engineering services with
governmental entities meet established design and construction standards and comply with
standard accounting practices and permit financial and performance audits as necessary to ensure
contract services are delivered within the agreed schedule and budget.
SEC. 3. Article XXII is added to the California Constitution, to read:
SECTION 1. The State of California and all 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, 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.
SEC. 2. 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.
SEC. 4. Chapter 10.1 (commencing with Section 4529.10) is added to Division 5 of Title 1 of the
Government Code, to read:
4529.10. For purposes of Article XXII of the California Constitution and this act, the term
“architectural and engineering services” shall include all architectural, landscape
architectural, environmental, engineering, land surveying, and construction project management
services.
4529.11. All projects included in the State Transportation Improvement Program programmed
and funded as interregional improvements or as regional improvements shall be subject to
Article XXII of the California Constitution. The sponsoring governmental entity shall have the
choice and the authority to contract with qualified private entities for architectural and
engineering services. For projects programmed and funded as regional improvements, the
sponsoring governmental entity shall be the regional or local project sponsor. For projects
programmed and funded as interregional improvements, the sponsoring governmental entity
shall be the State of California, unless there is a regional or local project sponsor, in which case
the sponsoring governmental entity shall be the regional or local project sponsor. The regional
or local project sponsor shall be a regional or local governmental entity.
4529.12. All architectural and engineering services shall be procured pursuant to a fair,
competitive selection process which prohibits governmental agency employees from
participating in the selection process when they have a financial or business relationship with
iii
any private entity seeking the contract, and the procedure shall require compliance with all laws
regarding political contributions, conflicts of interest or unlawful activities.
4529.13. Nothing contained in this act shall be construed to change project design standards,
seismic safety standards or project construction standards established by state, regional or local
governmental entities. Nor shall any provision of this act be construed to prohibit or restrict the
authority of the Legislature to statutorily provide different procurement methods for design-build
projects or design-build-and-operate projects.
4529.14. Architectural and engineering services contracts procured by public agencies shall be
subject to standard accounting practices and may require financial and performance audits as
necessary to ensure contract services are delivered within the agreed schedule and budget.
4529.15. This act only applies to architectural and engineering services defined in Government
Code Section 4529.10. Nothing contained in this act shall be construed to expand or restrict the
authority of governmental entities to contract for fire, ambulance, police, sheriff, probation,
corrections or other peace officer services. Nor shall anything in this act be construed to expand
or restrict the authority of governmental entities to contract for education services including but
not limited to, teaching services, services of classified school personnel and school
administrators.
4529.16. This act shall not be applied in a manner that will result in the loss of federal funding
to any governmental entity.
4529.17. The provisions of this act are severable. If any provision of this act or its application is
held invalid, that invalidity shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
4529.18. If any act of the Legislature conflicts with the provisions of this act, this act shall
prevail.
4529.19. This act shall be liberally construed to accomplish its purposes.
4529.20. This act seeks to comprehensively regulate the matters which are contained within its
provisions. These are matters of statewide concern and when enacted are intended to apply to
charter cities as well as all other governmental entities.
SEC. 5. 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.
SEC. 6. If there is a conflicting initiative measure on the same ballot, which addresses and seeks
to comprehensively regulate the same subject, only the provisions of this measure shall become
operative if this measure receives the highest affirmative vote.
iv
32 | 33 | 34 | 35 | 36 | 37 | 38 | 39
PROPOSITION
2000 General
35 PUBLIC WORKS PROJECTS. USE OF PRIVATE
CONTRACTORS FOR ENGINEERING AND
ARCHITECTURAL SERVICES.
Official Title and Summary
Official Title and Summary Prepared by the Attorney
PUBLIC WORKS PROJECTS. USE OF PRIVATE CONTRACTORS FOR ENGINEERING
AND ARCHITECTURAL SERVICES.
Initiative Constitutional Amendment and Statute.
• Amends constitution to provide that in the design, development and construction of public
works projects, state government may choose to contract with private entities for
engineering and architectural services without regard to certain existing legal restrictions
which apply to the procurement of other services.
• Specifies that local governments may also choose to contract with private entities for
engineering, architectural services.
• Imposes competitive selection process, which permits but does not require competitive
bidding, in awarding engineering and architectural contracts.
Summary of Legislative Analyst’s Estimate of Net State and Local Government
Fiscal Impact:
• Unknown fiscal impact on state spending for architectural and engineering services and
construction project delivery. Actual impact will depend on how the state uses the
contracting flexibility granted by the proposition in the future.
• Little or no fiscal impact on local governments because they generally can now contract
for these services.
Analysis by the Legislative Analyst
Argument in Favor of Proposition 35
Rebuttal to Argument in Favor of Proposition 35
v
Argument Against Proposition 35
Rebuttal to Argument Against Proposition 35
vi
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32 | 33 | 34 | 35 | 36 | 37 | 38 | 39
PROPOSITION
2000 General
35 PUBLIC WORKS PROJECTS.
USE OF PRIVATE CONTRACTORS FOR
ENGINEERING AND ARCHITECTURAL SERVICES.
Ballot Measure Summary
PUBLIC WORKS PROJECTS.
USE OF PRIVATE CONTRACTORS FOR ENGINEERING AND ARCHITECTURAL SERVICES.
INITIATIVE CONSTITUTIONAL AMENDMENT AND STATUTE.
Put on the Ballot by Petition Signatures.
SUMMARY
Amends Constitution eliminating existing restrictions on state, local contracting with private
entities for engineering, architectural services; contracts awarded by competitive selection;
bidding permitted, not required. Fiscal Impact: Unknown impact on state spending for
architectural and engineering services and construction project delivery. Actual impact will
depend on how the state uses the contracting flexibility under the proposition.
WHAT YOUR VOTE MEANS
YES
A YES vote on this measure means: The state could contract with private individuals or
firms for architectural and engineering services in all situations rather than only under
certain conditions (such as when the work is of a temporary nature or of such a specialized
nature that it cannot be provided by state employees).
NO
A NO vote on this measure means: The state could contract with private individuals or firms
for architectural and engineering services only under certain conditions.
ARGUMENTS
PRO
Prop. 35—Supported by hundreds of taxpayer groups, seniors, schools, local governments,
business, labor, highway/earthquake safety engineers. Restores government’s ability to
engage in public/private partnerships with qualified engineers to speed up thousands of
backlogged highway and other public works projects. Creates 40,000 jobs. Saves taxpayers
$2.5 billion annually.
CON
Proposition 35 changes the Constitution to benefit one special interest at taxpayer expense.
Like other states, California currently awards engineering contracts based on cost,
qualifications, and experience. Prop. 35 replaces that with an undefined contracting process
which allows overpriced government contracts based on campaign contributions and political
influence. Vote No!
vii
FOR ADDITIONAL INFORMATION
FOR
Taxpayers for Fair Competition— A coalition of taxpayers, engineers, seniors, schools, local
government, business, labor, highway safety experts and frustrated commuters.
11300 W. Olympic Blvd., Ste. 840
Los Angeles, CA 90064
(310) 996-2671/Info@YesProp35.com
www.YesProp35.com
AGAINST
Steve Hopcraft
No On Prop. 35
3551 N St.
Sacramento, CA 95816
(916) 446-0512
noonprop35@cwo.com
noonprop35.org
viii
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32 | 33 | 34 | 35 | 36 | 37 | 38 | 39
PROPOSITION
2000 General
35 PUBLIC WORKS PROJECTS. USE OF PRIVATE
CONTRACTORS FOR ENGINEERING AND
ARCHITECTURAL SERVICES.
Analysis
Analysis by the Legislative Analyst
BACKGROUND
Under California constitutional law, services provided by state agencies generally must be
performed by state civil service employees. These services cover a broad range of
activities—such as clerical support, building maintenance and security, and legal services. In
some cases, however, the state may contract with private firms to obtain services. Such
contracting is allowed, for example, if services needed by the state are: (1) of a temporary
nature, (2) not available within the civil service, or (3) of a highly specialized or technical
nature. Unlike the state, local governments are not subject to constitutional restrictions on
contracting for services.
The state and local governments frequently contract with private firms for construction-
related services, which include architectural, engineering, and environmental impact
studies. State and local governments enter into these contracts through a competitive
process of advertising for the service, selecting the firm determined to be best qualified, and
negotiating a contract with that firm. However, neither the state nor most local government
entities use a bidding process for these services. By comparison, bidding generally is used
to acquire goods and for construction of projects.
PROPOSAL
This proposition amends the State Constitution to allow the state and local governments to
contract with qualified private entities for architectural and engineering services for all
phases of a public works project. Thus, governments could decide to contract out for these
specific services in any case, rather than just on an exception basis.
The proposition also enacts statutory laws which:
• Define the term “architectural and engineering services” to include all architectural,
landscape architectural, environmental, engineering, land surveying, and construction
project management services.
• Specify that all projects in the State Transportation Improvement Program (STIP) are
covered by the requirements of the proposition. The STIP is the state’s transportation plan
that includes public works projects to increase the capacity of the state’s highways and
provide transit capital improvements (such as new freeways, new interchanges, and
passenger rail rights-of-way). The STIP is the state’s largest ongoing capital improvement
program. Thus, the proposition would probably have the greatest impact in the
transportation area.
ix
• Require architectural and engineering services to be obtained through a fair, competitive
selection process that avoids conflicts of interest.
FISCAL EFFECT
Impacts on State Costs
Eliminating restrictions on contracting out for architectural and engineering services would
make it easier for the state to enter into contracts with private individuals or firms to obtain
these services. As a result, the state would likely contract out more of these services. This
could affect state costs in two main ways.
Cost of the Services. The fiscal impact would depend on the cost of salaries and benefits for
state employees performing architectural and engineering services compared to the cost of
contracts with private firms. These costs would vary from project to project. In some cases,
costs may be higher to contract out. It may still be in the state’s best interest to do so,
however, because of other considerations. For instance, during times of workload growth
(such as a short-term surge in construction activity), contracting for services could be faster
than hiring and training new state employees. In addition, contracting can prevent the
build-up of a “peak-workload” staff that can take time to reduce once workload declines.
For these reasons, the proposition’s net impact on state costs for architectural and
engineering services is unknown, and would depend in large part on how the state used the
flexibility granted under the measure. Impact on Construction Project Delivery. The ability
to contract for architectural and engineering services could also result in construction
projects being completed earlier. As noted above, during times of workload growth, the
ability to contract for these services could result in projects’ completion earlier than through
the hiring and training of new state employees. This, in turn, could have state fiscal
impacts—such as savings in construction-related expenses. In these cases, faster project
completion would also benefit the public as capital improvements would be in service
sooner.
Impacts on Local Government Costs
There should be little or no fiscal impact on local governments because they generally can
now contract for architectural and engineering services.
Analysis by the Legislative Analyst
Argument in Favor of Proposition 35
Rebuttal to Argument in Favor of Proposition 35
x
Argument Against Proposition 35
Rebuttal to Argument Against Proposition 35
xi
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32 | 33 | 34 | 35 | 36 | 37 | 38 | 39
PROPOSITION
2000 General
35 PUBLIC WORKS PROJECTS. USE OF PRIVATE
CONTRACTORS FOR ENGINEERING AND
ARCHITECTURAL SERVICES.
Argument in Favor
Argument in Favor of Proposition 35
TRAFFIC GRIDLOCK, OVERCROWDED SCHOOLS:
DOESN’T IT JUST MAKE SENSE TO PUT EVERYONE TO WORK TO SOLVE THESE PROBLEMS?
• Proposition 35, the Fair Competition Initiative, simply gives state and local governments
the choice to hire qualified private sector engineers and architects where it makes sense to
do so— SOMETHING MANY OTHER STATES DO ALREADY.
Why is Proposition 35 needed?
BEEN STUCK IN TRAFFIC LATELY?
According to the state’s independent Legislative Analyst, last year traffic congestion cost
California consumers $7.8 million a day! There is a huge BACKLOG of transportation
projects needed to REDUCE CONGESTION and PREPARE OUR HIGHWAYS, BRIDGES AND
OVERPASSES FOR THE NEXT EARTHQUAKE.
• PROP. 35 WILL ALLOW US TO USE PRIVATE EXPERTS TO GET TRANSPORTATION
PROJECTS COMPLETED ON TIME AND ON BUDGET—AND KEEP TAXES DOWN.
How did we get into this mess?
A small group of Caltrans bureaucrats—concerned only with their self-interests—filed
several lawsuits that essentially banned the state from hiring private architects and
engineers. They even terminated 15 existing earthquake retrofit contracts with private
engineering firms.
• PROP. 35 WILL ALLOW CALIFORNIA TO ONCE AGAIN MAKE USE OF PRIVATE SECTOR
EARTHQUAKE EXPERTS TO ENSURE THE SAFETY OF OUR HIGHWAYS AND BRIDGES.
But the problem doesn’t end there: school districts, cities, counties and other local agencies’
ability to choose both private and public sector architects and engineers is at risk, too.
Prop. 35 would simply restore state and local agencies’ choice to utilize private experts—
using the same fair selection process on the books today—to select the most qualified
architects or engineers to get these projects designed and built on time and on budget.
• PROP. 35 MEANS WE DON’T HAVE TO RELY ONLY ON CALTRANS.
xii
The state’s independent Legislative Analyst recommended Caltrans contract out more work.
Why? Caltrans simply cannot do all the work alone. Plus, 17% of the Caltrans engineers
have less than 3 years experience. And Caltrans is hardly a model of efficiency—a recent
university study shows Caltrans spends more on administration than on maintenance of our
roads and highways!
• THE CALIFORNIA TAXPAYERS’ ASSOCIATION and other taxpayer groups SUPPORT PROP.
35 because it could SAVE CALIFORNIANS $2.5 BILLION ANNUALLY and CREATE 40,000
JOBS over the next ten years.
California’s population is growing, creating the need for more schools, roads, transit,
hospitals and other vital services. THERE’S PLENTY OF WORK FOR BOTH PUBLIC AND
PRIVATE ENGINEERS AND ARCHITECTS to relieve traffic congestion, accommodate growing
school needs and retrofit our aging highway system.
• COMMON SENSE TELLS US PUBLIC-PRIVATE PARTNERSHIPS ARE THE MOST COST-
EFFECTIVE WAY TO MEET THESE NEEDS and SAVE TAXPAYERS MONEY.
With so much at stake, WE NEED ALL HANDS ON DECK. Join with:
• California Taxpayer Protection Committee
• Coalition for Adequate School Housing
• California Minority and Women’s Business Coalition
• California Chamber of Commerce
• California Society of Professional Engineers
• National Federation of Independent Business
• J. E. Smith, Former Commissioner of the California
Highway Patrol
And hundreds of school districts, cities, counties, water districts, transportation agencies
and earthquake engineers.
VOTE YES on 35.
LARRY MCCARTHY, President
California Taxpayers’ Association
LORING A. WYLLIE, JR., Past President
Earthquake Engineering Research Institute
TODD NICHOLSON, President
Californians for Better Transportation
xiii
Analysis by the Legislative Analyst
Argument in Favor of Proposition 35
Rebuttal to Argument in Favor of Proposition 35
Argument Against Proposition 35
Rebuttal to Argument Against Proposition 35
xiv
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32 | 33 | 34 | 35 | 36 | 37 | 38 | 39
PROPOSITION
2000 General
35 PUBLIC WORKS PROJECTS. USE OF PRIVATE
CONTRACTORS FOR ENGINEERING AND
ARCHITECTURAL SERVICES.
Rebuttal to Argument in Favor
Rebuttal to Argument in Favor of Proposition 35
Proposition 35’s backers use buzzwords: “gridlock,” “over-crowded schools.” BUT THEY
DON’T SAY WHAT IT ACTUALLY DOES.
They say we need to give government “the choice” to contract with private engineering
corporations. But that choice ALREADY EXISTS.
FACTS:
• CALIFORNIA ALREADY USES BOTH PUBLIC AND PRIVATE ENGINEERS. Just like other
states, THOUSANDS OF GOVERNMENT CONTRACTS ARE ANNUALLY AWARDED to private
firms of every kind. This year, Caltrans will spend $150,000,000.00 on contracts with
private engineers.
• PUBLIC-PRIVATE PARTNERSHIPS ALREADY EXIST. For example, when the Northridge
earthquake knocked down the Santa Monica Freeway, a partnership of Caltrans engineers
and private construction companies rebuilt it in record time.
So why is Proposition 35 on the ballot?
The REAL PURPOSE is to benefit engineering consultants who paid to put Proposition 35 on
the ballot.
• Proposition 35 AMENDS THE CONSTITUTION TO EXEMPT JUST THIS ONE INDUSTRY from
legal requirements that apply to every other business that contracts with state government.
• Proposition 35 REQUIRES A NEW SELECTION PROCESS WHICH IT DOES NOT DEFINE.
How will engineering contracts be awarded? Proposition 35 doesn’t say.
Because Proposition 35 doesn’t define the process, it will cause CONFUSION, LITIGATION
AND COSTLY ROAD AND SCHOOL CONSTRUCTION DELAYS while new regulations are
created and challenged in court.
California Federation of Teachers says Proposition 35 will delay construction needed for
class size reduction. Howard Jarvis Taxpayers Association says Proposition 35 will COST
TAXPAYERS HUNDREDS OF MILLIONS OF DOLLARS.
Don’t let a special interest change the Constitution for its benefit, not yours.
VOTE NO ON PROPOSITION 35!
xv
LENNY GOLDBERG, Executive Director
California Tax Reform Association
MARY BERGAN, President
California Federation of Teachers
HOWARD OWENS, President
Consumer Federation of California
Analysis by the Legislative Analyst
Argument in Favor of Proposition 35
Rebuttal to Argument in Favor of Proposition 35
Argument Against Proposition 35
Rebuttal to Argument Against Proposition 35
xvi
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PROPOSITION
2000 General
35 PUBLIC WORKS PROJECTS. USE OF PRIVATE
CONTRACTORS FOR ENGINEERING AND
ARCHITECTURAL SERVICES.
Argument Against
Argument Against Proposition 35
You’ve seen it before, and here we go again. PROPOSITION 35 IS ANOTHER MISLEADING,
SELF-SERVING, SPECIAL INTEREST INITIATIVE.
WHO‘S BEHIND PROPOSITION 35?
According to official reports, huge engineering corporations paid millions to place Proposition
35 on the ballot and they are spending millions more to mislead you into voting for it. Are
they really spending all that money to help you, the taxpayer? Of course not!
PROPOSITION 35 CHANGES CALIFORNIA’S CONSTITUTION so large engineering
corporations don’t have to abide by the rules that apply to every other business that
contracts with government in California. Every year, state and local governments spend
billions of dollars on contracts with thousands of businesses.
PROPOSITION 35 CREATES A SPECIAL INTEREST EXEMPTION FOR ONLY ONE GROUP—ITS
SPONSORS!
HOW DOES PROPOSITION 35 AFFECT YOU?
Independent experts agree that PROPOSITION 35 WILL DELAY CONSTRUCTION OF ROADS,
SCHOOLS, HEALTH CARE FACILITIES, and other needed projects for years.
A top regulatory expert says Proposition 35 will bring public contracting to a “crawl, if not a
complete halt” while a NEW BLOATED STATE BUREAUCRACY develops a NEW SET OF STATE
REGULATIONS and IMPOSES THEM ON OUR CITIES, COUNTIES, AND SCHOOL DISTRICTS!
Independent legal analyses say LAWSUITS WILL CAUSE EVEN MORE DELAYS!
THESE DELAYS COST YOU MONEY! The former State Auditor General, California’s
independent fiscal watchdog, identified MORE THAN $8 BILLION of school, road, and
hospital projects that will be delayed at a cost of HUNDREDS OF MILLIONS OF DOLLARS!
Taxpayer dollars—YOUR DOLLARS!
Project delays mean TRAFFIC CONGESTION WILL GET WORSE. That’s why the Engineers
and Scientists of California and public safety organizations—including the California
Association of Highway Patrolmen and the California Professional Firefighters— oppose
Proposition 35.
xvii
PROPOSITION 35 WILL DELAY CONSTRUCTION OF NEW CLASSROOMS NEEDED TO REDUCE
CLASS SIZE AND IMPROVE EDUCATION. That’s why educators, including school districts
throughout California and the California School Employees Association, oppose Proposition
35. PROPOSITION 35 WILL DELAY CONSTRUCTION OF HEALTH CARE FACILITIES,
increasing the cost of health care. That’s why health care professionals and seniors groups—
including the California Nurses Association and the Congress of California Seniors—oppose
Proposition 35.
Jon Coupal, President of the HOWARD JARVIS TAXPAYERS ASSOCIATION, says “Taxpayers
should be very concerned with this proposal and its potential costs. We urge voters to vote
NO on Proposition 35.”
Don’t let a few huge, greedy corporations mislead you into voting to change the Constitution
to give them a special exemption so they can waste your tax dollars! Please join with the
Howard Jarvis Taxpayers Association, the California Tax Reform Association, the Consumer
Federation of California, the California Small Business Roundtable, law enforcement,
firefighters, teachers, seniors, nurses, labor and many, many others who OPPOSE
PROPOSITION 35.
VOTE NO ON PROPOSITION 35!
JEFF SEDIVEC, President
California State Firefighters’ Association
LOIS WELLINGTON, President
Congress of California Seniors
MARLAYNE MORGAN
Engineers and Scientists of California
Analysis by the Legislative Analyst
Argument in Favor of Proposition 35
Rebuttal to Argument in Favor of Proposition 35
Argument Against Proposition 35
Rebuttal to Argument Against Proposition 35
xviii
Vote 2000 Home | Ballot Pamphlet Home | Campaign Finance | Secretary of State Home
32 | 33 | 34 | 35 | 36 | 37 | 38 | 39
PROPOSITION
2000 General
35 PUBLIC WORKS PROJECTS. USE OF PRIVATE
CONTRACTORS FOR ENGINEERING AND
ARCHITECTURAL SERVICES.
Rebuttal to Argument Against
Rebuttal to Argument Against Proposition 35
They’re at it again. The CALTRANS BUREAUCRATS WHO ARE BANKROLLING THE CAMPAIGN
AGAINST PROP. 35 will stop at nothing.
First they filed lawsuits to terminate government’s ability to contract with private sector
architects and engineers. Then they brought more lawsuits to deny you the opportunity to
vote on Prop. 35.
Now that it’s on the ballot, those same bureaucrats are using their political allies in
Sacramento and discredited studies to try to deceive you.
We invite you to read Prop. 35 yourself. IT’S THE MOST STRAIGHTFORWARD INITIATIVE
ON THE BALLOT.
Prop. 35 will simply restore the ability of state and local government to use qualified private
sector engineers and architects where it makes sense to do so—something many other
states do already.
PROP. 35 DOESN’T CREATE ANY NEW COMPLICATED REGULATIONS OR DELAYS. On the
contrary, it restores the public/private partnerships needed to speed up the delivery of
thousands of backlogged public works projects. That’s precisely why hundreds of local
governments, schools, transportation agencies, engineers, earthquake safety experts and
more than a dozen taxpayer groups URGE A YES VOTE ON PROP. 35.
Working together, the public and private sectors can GET THE JOB DONE SOONER, SAFELY
and MORE EFFICIENTLY.
It’s a simple question really:
• If you want to preserve the Caltrans status quo of delays, vote no.
• If you want to see the PUBLIC AND PRIVATE SECTORS WORKING TOGETHER to speed up
project delivery, SAVE taxpayers $2.5 BILLION ANNUALLY and create 40,000 new jobs . . .
VOTE YES on PROP. 35.
MIKE SPENCE, President
California Taxpayer Protection Committee
RON HAMBURGER, President
Structural Engineers Association of California
MICHAEL E. FLYNN, President
xix
Taxpayers for Fair Competition—a coalition of taxpayers,
engineers, seniors, schools, local government, business, labor,
highway safety experts and frustrated commuters
Analysis by the Legislative Analyst
Argument in Favor of Proposition 35
Rebuttal to Argument in Favor of Proposition 35
Argument Against Proposition 35
Rebuttal to Argument Against Proposition 35
xx
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Professional Engineers in California Government v. Kempton
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 134 Cal.App.4th 15
Rehearing Granted
__________________________________________________________________________________
Opinion No. S139917
Date Filed: April 12, 2007
__________________________________________________________________________________
Court: Superior
County: San Francisco
Judge: James L. Warren
__________________________________________________________________________________
Attorneys for Appellant:
Law Office of Kelley Stimpel Martinez, Kelley Stimpel Martinez; Law Offices of James E. McGlamery and James
E. McGlamery for Plaintiffs and Appellants.
David L. Alexander and Christopher H. Alonzi for City of Oakland, acting by and through its Board of Port
Commissioners as Amicus Curiae on behalf of Plaintiffs and Appellants.
Davis & Reno and Duane W. Reno for Local 21 of the International Federation of Professional and Technical
Engineers, AFL-CIO, as Amicus Curiae on behalf of Plaintiffs and Appellants.
Olson, Hagel & Fishburn, Deborah B. Caplan, N. Eugene Hill and Richard C. Miadich for the President of the State
Senate, Don Perata, and the Speaker of the State Assembly, Fabian Nunez, as Amici Curiae on behalf of Plaintiffs
and Appellants.
__________________________________________________________________________________
Attorneys for Respondent:
Bruce A. Behrens, Thomas C. Fellenz, Brelend C. Gowan, José Aguirre, Stephanie G. Sakai and Laurie Epstein-
Terris for Defendants and Respondents.
John P. Carpenter for The Associated General Contractors of California as Amicus Curiae on behalf of Defendants
and Respondents.
Best Best & Krieger, Steven C. Debaun, Marc S. Ehrlich and Robert Abiri for Amador County Transportation
Authority as Amici Curiae on behalf of Defendants and Respondents.
Page 2 – S139917 – counsel continued
Attorneys for Respondent:
Stoel Rives, James P. Corn and Barbara A. Brenner for Interveners and Respondents.
Sheppard, Mullin, Richter & Hampton and David P. Lanferman for the California Building Industry Association and
California Chamber of Commerce as Amici Curiae on behalf of Defendants and Respondents and Interveners and
Respondents.
Nossaman, Guthner, Knox & Elliott, Stephen N. Roberts, Stanley S. Taylor and Katrina J. Lee for Self-Help
Counties Coalition and Contra Costa Transportation Authority as Amici Curiae on behalf of Defendants and
Respondents and Interveners and Respondents.
Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Interveners 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
(916) 448-2121
Deborah B. Caplan
Olson, Hagel & Fishburn
555 Capitol Mall, Suite 1425
Sacramento, CA 95814
(916) 442-2952
José Aguirre
Assistant Chief Counsel
Department of Transportation Legal Division
1120 N Street
Sacramento, CA 95182-1438
(916) 654-2630
James P. Corn
Stoel Rives LLP
770 L Street, Suite 800
Sacramento, CA 95814
(916) 447-0700
Opinion Information
| Date: | Docket Number: |
| Thu, 04/12/2007 | S139917 |
Parties
| 1 | Professional Engineers In California Government (Plaintiff and Appellant) Represented by Kelley Kathleen Stimpel Martinez Attorney at Law 331 "J" Street, Suite 200 Sacramento, CA |
| 2 | Professional Engineers In California Government (Plaintiff and Appellant) Represented by James E. Mcglamery Attorney at Law 555 Capitol Mall, Suite 600 Sacramento, CA |
| 3 | Morales, Jeff (Defendant and Respondent) Represented by Jose Aguirre Department of Transportation/Legal 1120 "N" Street Sacramento, CA |
| 4 | Caltrop Engineering Corporation (Intervener and Respondent) Represented by James P. Corn Stoel Rives, LLP 770 "L" Street, Suite 800 Sacramento, CA |
| 5 | Department Of Transportation (Defendant and Respondent) Represented by Jose Aguirre Department of Transportation/Legal 1120 "N" Street, MS 57 P.O. Box 1438 Sacramento, CA |
| 6 | Alexander, Dennis (Plaintiff and Appellant) |
| 7 | Self-Help Counties Coalition (Amicus curiae) Represented by Katrina June Lee Nossaman, Guthner, Knox & Elliott, LLP 50 California Street, 34th Floor San Francisco, CA |
| 8 | Contra Costa Transportation Authority (Amicus curiae) Represented by Katrina June Lee Nossaman, Guthner, Knox & Elliott, LLP 50 California Street, 34th Floor San Francisco, CA |
| 9 | California Building Industry Association (Amicus curiae) Represented by David P. Lanferman Sheppard, Mullin, Richter & Hampton, LLP Four Embarcadero Center, 17th Floor San Francisco, CA |
| 10 | California Chamber Of Commerce (Amicus curiae) Represented by David P. Lanferman Sheppard, Mullin, Richter & Hampton, LLP Four Embarcadero Center, 17th Floor San Francisco, CA |
| 11 | Associated General Contractors Of California (Amicus curiae) Represented by John P. Carpenter Kiewit Pacific Company 3555 Farnam Street Omaha, NE |
| 12 | City Of Oakland (Amicus curiae) Represented by Christopher Howard Alonzi Port of Oakland 530 Water Street, 4th Floor Oakland, CA |
| 13 | Civil Justice Association Of California (Amicus curiae) Represented by Fred James Hiestand Civil Justice Association of California 1121 "L" Street, Suite 404 Sacramento, CA |
| 14 | International Federation Of Professional & Tech. Engineers (Amicus curiae) Represented by Duane W. Reno Davis & Reno 22 Battery Street, Suite 1000 San Francisco, CA |
| 15 | Perata, Don (Amicus curiae) Represented by Deborah B. Caplan Olson Hagel & Fishburn, LLP 555 Capitol Mall, Suite 1425 Sacramento, CA |
| 16 | Nunez, Fabian (Amicus curiae) Represented by Deborah B. Caplan Olson Hagel & Fishburn, LLP 555 Capitol Mall, Suite 1425 Sacramento, CA |
| 17 | Amador County Transportation Commission (Amicus curiae) Represented by Robert Abiri Best Best & Krieger, LLP 5 Park Plaza, Suite 1500 P.O. Box 1028 Irvine, CA |
| 18 | Amador County Transportation Commission (Amicus curiae) Represented by Marc Stuart Ehrlich Best Best & Krieger, LLP 5 Park Plaza, Suite 1500 Irvine, CA |
| Disposition | |
| Apr 12 2007 | Opinion: Affirmed |
| Dockets | |
| Dec 23 2005 | Petition for review filed Professional Engineers in California Government and Dennis Alexander, plaintiffs and appellants James McGlamery and Kelley Martinez, counsel (filed in Sac.) c/a rec req |
| Jan 5 2006 | 2nd record request |
| Jan 12 2006 | Answer to petition for review filed Caltrop Engineering Corporation, Intervenor and Respondent James P. Corn, retained counsel |
| Jan 12 2006 | Answer to petition for review filed Jeff Morales et al., Defendants and Respondents Jose Aguirre, counsel (CRC 40.1 - UPS Next Day Air) |
| Jan 13 2006 | Request for depublication (petition for review pending) Professional Engineers in California Government, appellant Kelley S. Martinez, counsel |
| Jan 18 2006 | 3rd record request |
| Jan 18 2006 | Received Court of Appeal record file jacket/briefs/appendix/one box |
| Jan 20 2006 | Reply to answer to petition filed Professional Engineers in California Government and Dennis Alexander, Plaintiffs and Appellants Kelly S. Martinez & James E. McGlamery, retained counsel |
| Jan 20 2006 | Opposition filed to request for depublication Caltrop Engineering Corp., Intervenors and Respondents James P. Corn, retained |
| Jan 20 2006 | Opposition filed to request for depublication California Department of Transportation, Director Jeff Morales, Business, Transportation and Housing Agency, and Secretary, Maria Contreras-Sweet - Defendants and Respondents Jose Aguirre, of counsel for Department of Transportation |
| Feb 8 2006 | Petition for review granted (civil case) Chin, J., was absent and did not participate. Votes: George, C.J., Kennard, Baxter, Werdegar, Moreno, and Corrigan, JJ. |
| Feb 22 2006 | Request for extension of time filed by attorney Martinez for appellants Professiona Engineers & Dennis Alexander requesting additional 30 days (to April 10) to file opening brief on the merits. |
| Feb 22 2006 | Certification of interested entities or persons filed CALTROP Engineering Corporation, Intervenor and Respondent. James P. Corn, retained |
| Feb 22 2006 | Filed letter from: State Bar Court of California stating, "On February 10, 2006, the Supreme Court filed an order in the above-referenced matter which contained a typographical error. It erroneously stated, in relevant part, that discipline was being imposed as recommended by the State Bar Court "in its oas filed on September 30, 2005." .... The order should have set forth "order approving stipulation" instead of "oas." This error was inadvertently included in the proposed Supreme Court order by State Bar Court staff and was recently brought to our attention. (A proposed order correcting error was enclosed with letter.) "On behalf of the State Bar Court," they "[I] apologize for the extra work" their "[our] error has caused." |
| Feb 27 2006 | Certification of interested entities or persons filed Professional Engineers in California Government, Plaintiffs and Appellants. Kelley S. Martinez, retained |
| Mar 1 2006 | Extension of time granted On application of plaintiffs and appellants and good cause appearing, it is ordered that the time to serve and file the appellants' opening brief on the merits is extended to and including April 10, 2006. |
| Apr 10 2006 | Opening brief on the merits filed Professional Engineers, Dennis Alexander, plaintiffs and appellants Kelley Martinez, James McGlamery, counsel |
| Apr 20 2006 | Request for extension of time filed By Atty Corn obo Intervenors/Respondents CALTROP Engineering Corp. Counsel requesting to June 9 (30 days) to file answer brief on the merits (to court for permission to file) |
| Apr 21 2006 | Request for extension of time filed Atty Jose Aguirre obo Jeff Morales et al., defendants and respondents requesting to June 9 (30-days) to file answer brief on the merits (to court for permission) |
| Apr 26 2006 | Extension of time granted On application of defendants and respondents and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including June 9, 2006. |
| Apr 26 2006 | Extension of time granted On application of intervenors and respondents and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including June 9, 2006. |
| Jun 7 2006 | Answer brief on the merits filed Jeff Morales et al., Intervenors and Respondents. Stephanie G. Sakai, counsel |
| Jun 8 2006 | Received application to file Amicus Curiae Brief California Building Industry Association and California Chamber of Commerce in support of Intervenors and Respondents. by David P. Lanferman, counsel. |
| Jun 8 2006 | Received application to file Amicus Curiae Brief Self-Help Counties Coalition and Contra Costa Transportation Authority in support of respondents. Katrina J. Lee, counsel |
| Jun 8 2006 | Answer brief on the merits filed Intervenor/Respondents CAltrop Engineering Corp, et al. by consel, James P.Corn. |
| Jun 12 2006 | Request for extension of time filed Kelley Martinez, counsel for appellants requesting to July 19, 2006, to file reply brief on the merits (to court for permission) |
| Jun 13 2006 | Permission to file amicus curiae brief granted The application of The California Building Industry Association and California Chamber of Commerce for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Jun 13 2006 | Permission to file amicus curiae brief granted The application of Self-Help Coalition and Contra Costa Trasportation Authority for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Jun 13 2006 | Amicus curiae brief filed The California Building Association and California Chamber of Commerce in support of respondents. David P. Lanferman, counsel. |
| Jun 13 2006 | Amicus curiae brief filed Self-Help Counties Coalition and Contra Costa Transportation Authority in support of respondents. Katrina J. Lee, counsel. |
| Jun 16 2006 | Extension of time granted On application of appellants and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including July 19, 2006. |
| Jun 23 2006 | Request for extension of time filed Kelly Martinez counsel for appellants requesting to July 19, 2006, to file answer to amicus curiae briefs (to court for permission) |
| Jun 26 2006 | Extension of time granted On application of appellants and good cause appearing, it is ordered that the time to serve and file the answers to the amicus curiae briefs is extended to and including July 19, 2006. |
| Jul 7 2006 | Request for extension of time filed to file AC brief: Amador County Transportation Commission Attorney Marc S. Ehrlich, retained |
| Jul 12 2006 | Extension of time granted On application of amicus curiae Amador County Transportation Commission and good cause appearing, it is ordered that the time to serve and file its application and amicus curiae brief in support of respondents, Jeff Morales et al., is hereby extended to and including August 26, 2006. |
| Jul 19 2006 | Response to amicus curiae brief filed Professional Engineers in California Government and Dennis Alexander, Plaintiffs and Appellants. Kelley S. Martinez, counsel |
| Jul 19 2006 | Reply brief filed (case fully briefed) Professional Engineers in California Government and Dennis Alexander, Plaintiffs and Appellants Kelley S. Martinez, counsel |
| Aug 16 2006 | Received application to file Amicus Curiae Brief Atty John Carpenter for amici The Associated General Contractors of California in support of Defendant and Respondent, Jeff Morales. (to court for permission) |
| Aug 17 2006 | Permission to file amicus curiae brief granted The application of The Associated General Contractors of California for permission to file an amicus curiae brief in support of Jeff Morales, Defendant and Respondent, is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Aug 17 2006 | Amicus curiae brief filed The Associated General Contractors of California John P. Carpenter, counsel |
| Aug 18 2006 | Received application to file Amicus Curiae Brief By Atty Duane Reno counsel for amicus Local 21 of the International Federation of Professional and Technical Engineers, AFL-CIO to file brief in support of appellants (to court for perm. to file) |
| Aug 18 2006 | Received application to file Amicus Curiae Brief Atty Deborah B. Caplan counsel for amici Don Perata, President Pro Tempore of the State Senate and Fabian Nunez, Speaker of the State Assembly in support of appellants (to court for permission) |
| Aug 18 2006 | Received application to file Amicus Curiae Brief From Atty Christopher H. Alonzi counsel for amici City of Oakland, Acting by and through its Board of Port Commissioners in support of appellants. (to court for permission to file) |
| Aug 21 2006 | Received application to file Amicus Curiae Brief By Atty Fred Hiestand for amicus General Counsel for the Civil Justice Assoc. of California (CJAC) in support of intervenors and respondents (CRC, 40.1 - Fed Ex) / (to court for permission to file) |
| Aug 24 2006 | Permission to file amicus curiae brief granted The application of City of Oakland, Acting by and through its Board of Port Commissioners, for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Aug 24 2006 | Amicus curiae brief filed City of Oakland, Acting by and through its Board of Port Commissioners. Christopher H. Alonzi, counsel |
| Aug 24 2006 | Permission to file amicus curiae brief granted The application of Local 21 of the International Federation of Professional and Technical Engineers, AFL-CIO, for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Aug 24 2006 | Amicus curiae brief filed Local 21 of the International Ferderation of Professional and Technical Engineers, AFL-CIO. Duane W. Reno, counsel |
| Aug 24 2006 | Permission to file amicus curiae brief granted The application of Don Perata, President Pro Tempore of the State Senate and Fabian Nunez, Speaker of the State Assembly for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Aug 24 2006 | Amicus curiae brief filed Don Perata, President Pro Tempore of the State Senate and Fabian Nunez, Speaker of the State Assembly. Deborah B. Caplan, counsel |
| Aug 24 2006 | Permission to file amicus curiae brief granted The application of General Counsel for the Civil Justice Association of California for permission to file an amicus curiae brief in support of intervenors and respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Aug 24 2006 | Amicus curiae brief filed Civil Justice Association of California. Fred J. Hiestand, counsel |
| Aug 24 2006 | Request for judicial notice filed (granted case) By Christopher H. Alonzi counsel for amicus City of Oakland, acting by and through its Board of Port Commissioners |
| Aug 25 2006 | Received application to file Amicus Curiae Brief Atty Robert Abiri for amici Amador County Transportation Commission in support of Defendants and Respondents (to court for permission) |
| Aug 29 2006 | Request for extension of time filed By attorneys for respondents, Jeff Morales et al. to extend time to file answers to amicus curiae briefs (to court for permission) |
| Aug 30 2006 | Request for extension of time filed By Atty Barbara Brenner for Intervenors and Respondents requesting to October 3 to file answers to amicus curiae briefs (to court for permission) |
| Sep 1 2006 | Permission to file amicus curiae brief granted The application of Amador County Transportation Commission for permission to file an amicus curiae brief in support of defendants and respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Sep 1 2006 | Amicus curiae brief filed Amador County Transportation Commision in support of defendants and respondents. Robert Abiri, counsel |
| Sep 1 2006 | Extension of time granted On application of defendants and respondents and good cause appearing, it is ordered that the time to serve and file answers to amicus curiae briefs of (1) City of Oakland, Board of Port Commissioners, (2) Local 21 of the International Federation of Professional and Technical Engineers Afl-Cio and (3) Don Perata, President, Pro Tempore of the State Senate and Fabian Nunez, Speaker of the State Assembly, is extended to and including October 3, 2006. |
| Sep 6 2006 | Extension of time granted On application of intervenors and respondents and good cause appearing, it is ordered that the time to serve and file its answers to amicus curiae briefs of (1) City of Oakland, Board of Port Commissioners, (2) Local 21 of the International Federation of Professional and Technical Engineers Afl-Cio and (3) Don Perata, President, Pro Tempore of the State Senate and Fabian Nunez, Speaker of the State Assembly, is extended to and including October 3, 2006. |
| Sep 28 2006 | Response to amicus curiae brief filed Local 21 of the International Federation of Professional and Technical Engineers, AFL-CIO James P. Corn, counsel. |
| Sep 28 2006 | Response to amicus curiae brief filed City of Oakland, Acting by and through its Board of Port Commissioners. James P. Corn, counsel |
| Sep 28 2006 | Response to amicus curiae brief filed Don Perata, President Pro Tempore of the State Senate and Fabian Nunez, Speaker of the State Assembly. James P. Corn, counsel |
| Sep 28 2006 | Response to amicus curiae brief filed Jeff Morales et al., Defendants and Respondents, to answer of amicus curiae President Pro Tempore of the State Senate and Speaker of the State Assembly. Stephanie G. Sakai, counsel |
| Sep 28 2006 | Response to amicus curiae brief filed Jeff Morales, et al, Defendants and Respondents, to answer of amicus curiae City of Oakland, Board of Port Commissioners. Stephanie Sakai, counsel. |
| Sep 28 2006 | Response to amicus curiae brief filed Jeff Morales, et al., Defendants and Appellants, to answer of amicus curiae Local 21 of the International Federation of Professional and technical Engineers, ALF-CIO. Stephanie G. Sakai, counsel. |
| Jan 3 2007 | Case ordered on calendar to be argued Tuesday, January 30, 2007, at 9:00 a.m., in Sacramento |
| Jan 10 2007 | Note: Mail returned and re-sent Notice for Robert Abiri redirected to address noted on State Bar website: Best Best & Krieger, LLP 5 Park Plaza, Suite 1500 Irvine, CA 92614 Previous address (returned): Koeller Nebeker Carlson & Haluck 3750 University Avenue Riverside, CA 92502 |
| Jan 16 2007 | Application filed to: permit two counsel to argue and for division of time for argument: 20 minutes to Jose Aguirre (Department of Transportation) and 10 minutes to James P. Corn (Caltrop Engineering). |
| Jan 17 2007 | Application filed to: divide oral argument time: 20 minutes to Kelley Stimpel Martinez (appellants Professional Engineers in California Government et al.) and 10 minutes to Deborah B. Caplan (amici Don Perata et al.) |
| Jan 18 2007 | Order filed The request of counsel for respondents in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to counsel for respondents Morales et al., 20 minutes and counsel for respondents Caltrop Engineering Corporation et al., 10 minutes of respondents' 30-minute allotted time for oral argument is granted. |
| Jan 19 2007 | Order filed The request of counsel for appellants in the above-referenced cause to allow two counsel to argue on behalf of appellants at oral argument is hereby granted. The request of appellants to allocate to amicus curiae Don Perata et al. 10 minutes of appellants' 30-minute allotted time for oral argument is granted. |
| Jan 30 2007 | Cause argued and submitted |
| Apr 10 2007 | Order filed The above-entitled matter has been retitled. |
| Apr 11 2007 | Notice of forthcoming opinion posted |
| Apr 12 2007 | Opinion filed: Judgment affirmed in full Opinion By: Moreno, J. joined by: George, C.J.; Kennard, Baxter, Werdegar, Chin and Corrigan, JJ. |
| May 18 2007 | Remittitur issued (civil case) |
| Briefs | |
| Apr 10 2006 | Opening brief on the merits filed |
| Jun 7 2006 | Answer brief on the merits filed |
| Jun 8 2006 | Answer brief on the merits filed |
| Jun 13 2006 | Amicus curiae brief filed |
| Jun 13 2006 | Amicus curiae brief filed |
| Jul 19 2006 | Response to amicus curiae brief filed |
| Jul 19 2006 | Reply brief filed (case fully briefed) |
| Aug 17 2006 | Amicus curiae brief filed |
| Aug 24 2006 | Amicus curiae brief filed |
| Aug 24 2006 | Amicus curiae brief filed |
| Aug 24 2006 | Amicus curiae brief filed |
| Aug 24 2006 | Amicus curiae brief filed |
| Sep 1 2006 | Amicus curiae brief filed |
| Sep 28 2006 | Response to amicus curiae brief filed |
| Sep 28 2006 | Response to amicus curiae brief filed |
| Sep 28 2006 | Response to amicus curiae brief filed |
| Sep 28 2006 | Response to amicus curiae brief filed |
| Sep 28 2006 | Response to amicus curiae brief filed |
| Sep 28 2006 | Response to amicus curiae brief filed |
