Service Employees International Union, Local 1000 (SEIU) 12 . 1209 (1993-1994 Reg. Capitol Weekly is a nonpartisan news publication covering California government and politics. "); People v. Globe Grain & Mill Co., supra, 211 Cal. FN 9. PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT et al., Plaintiffs and Respondents, v. DEPARTMENT OF TRANSPORTATION et al., Defendants and Appellants. Review theapplication filing process for requesting a waiver of the FE exam. 1253-1254, italics added; accord, Stockburger v. Jordan (1938) 10 Cal. 4th 581] confirms that when Chapter 433 was passed, the issue of cost-effectiveness of contracting for professional services was a hotly disputed matter. In the majority's view, the supposed lack of any such evidence before the Legislature is significant since here the trial court's findings to the contrary were supported by one study purporting to show that the cost of contracting was substantially greater than the cost of using civil service staff. (a).) Rptr. 461.) 313, 1.5) dealt with contracts for professional and technical services. First, uncodified section 1 of Chapter 433 recites the Legislature's intent: (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.". ", The majority's view is not supported by precedent, but instead presents a sharp and unwarranted departure therefrom. Unless conflict with a provision of the state or federal Constitution is clear and unquestionable, we must uphold the Act. 225, 703 P.2d 1119] [finding unconstitutional an ordinance prohibiting fortune telling]; Turner Broadcasting System, Inc. v. FCC (1994) 512 U.S. 622, 666 [114 S. Ct. 2445, 2471, 129 L. Ed. The Department of Transportation (Caltrans) argues that the Legislature has complied with the Constitution and that the Legislature's factual findings supporting Chapter 433 justify private contracting. 1986) Judicial Notice, 80, p. 74, italics added.) [Citations.]' 3d 501, 514 [217 Cal. 2 In my view, the court erred in its determination of what constituted judicially noticeable facts. Nothing in Turner or the cases on which it relies suggests that the standard enunciated in Turner applies outside the First Amendment realm. It is the economic savings exception which is applicable here to find Chapter 433 constitutional on its face. Such interrelationship, of course, lies at the heart of the constitutional theory of 'checks and balances' that the separation of powers doctrine is intended to serve. This increase in project delivery capability "must continue in order for [Caltrans] to meet its commitments for timely project delivery," and, accordingly, a "stable contracting out program" using private consultants is needed to allow Caltrans to perform project delivery "adequately, competently, or satisfactorily." In the many proceedings which produced the injunction and enforcement, Caltrans, the administrative agency which is the necessary source of evidence that contracting out is cost-effective, has been unable to provide any such evidence. 4th 595] 25 Cal.2d at pp. Finally, section 19130 (which was upheld as consistent with article VII in CSEA, supra, 199 Cal.App.3d 840) governs "personal services contracts" and essentially codifies and interprets the "cost savings," "new state function," and "nature of the services" tests of the decisional law (see ante, at pp. omitted. After reviewing the new provisions at length, the court made the following findings and determinations: (1) Contrary to new section 14130, subdivision (a)(5), project development service is not a new state function exempt from the constitution al restriction on private contracting, and using private contractors for pro ject development duplicates existing state agency functions. Over 200,000 people work for a State of California department or agency (other than a university). 13,000. Thus it is not unreasonable for the Legislature to find it would be more economical to contract out such work than to hire additional staff who must then be laid-off when the short-term retrofit program is completed. In this regard, the burden here is not on Caltrans to validate Chapter 433, but on plaintiffs to invalidate that legislation. 8 With regard to Chapter 433, implication of an "economic savings" requirement constitutes a fair and reasonable interpretation of the legislation, and is both permissible and appropriate. This is elementary. (Amador Valley Joint Union High Sch. The record indicated, however, that Caltrans had assumed responsibility for this work since 1963, so no "new state functions" were involved that might have justified an exception to the implied civil service mandate. at p. 2458]), courts have determined that " '[t]he rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack , will not suffice.' Please view theFingerprinting FAQsfor detailed information. 30.). (See California State Employees' Assn. 6, As this court stated in Methodist Hosp. The dissent believed that "[t]he majority would permit contracting out without adherence to any of the safeguard criteria developed in the case law. As Caltrans graphically puts it, "[t]he incoherent, unworkable, and potentially crippling tests which encrust and distort article VII are not even hinted at by its language." of Transp. (a) [grounds for modifying or dissolving "final injunction"]; see also Salazar, supra, 9 Cal.4th at p. 850 [court has inherent power to vacate an injunction upon a showing of a change in controlling law].). Finally, the majority claim that nothing in its decision "would prevent Caltrans from seeking modification of the 1990 injunction based on a showing that particular contracts are justified because state workers cannot perform the work 'adequately and competently,' or as economically ." (Maj. Because reasonable minds obviously could differ and did differ over the economies of contracting, it is only fair to conclude that reasonable minds may differ as to the reasonableness of Chapter 433 and its plan for ensuring timely and cost-effective project delivery. Obtaining a certificate is voluntary in some fields, but in others, certification from a government-accredited agency may be legally required to perform certain jobs or tasks. as amended June 24, 1993.) It would appear the majority sought to find the legislation unconstitutional, whereas long-standing precedent requires just the opposite-that the court attempt to uphold the enactment. Fund v. Riley (1937) 9 Cal. The trial court made a determination that the Legislature's factual findings were unsupported and erroneous based on factual conclusions reached by the trial court in its 1990 judgment and various orders of enforcement. Caltrans claimed this staff reduction was needed to avoid a budget shortfall, but it was really attributable to Caltrans's preference for private contracting. In re Harris (1989) 49 Cal. 3, AFL-CIO v. City and County of San Francisco, Barlou Howard v. San Francisco Municipal Transportation Agency, Davis City Employees Association v. City of Davis, California Federation of Interpreters, Local 39000 TNG-CWA v. Region 2 Court Interpreter Employment Relations Committee, Service Employees International Union, Local 721 v. County of Ventura, San Diego Education Association, CTA/NEA v. San Diego Unified School District, Pasadena City College Faculty Association v. Pasadena Area Community College District, American Federation of State, County & Municipal Employees Local 146 and Sacramento Regional Transit District, American Federation of State, County & Municipal Employees Local 3299 v. Regents of the University of California, American Federation of State, County & Municipal Employees Local 3299 v. Regents of the University of California (Davis), American Federation of State, County & Municipal Employees Local 1117 v. City of Torrance, Teamsters Local 2010 v. Regents of the University of California, Professional Engineers in California Government v. State of California (State Water Resources Control Board), Mt. It is no small matter for one branch of the government to annul the formal exercise by another and coordinate branch of power committed to the latter, and the courts should not and must not annul, as contrary to the constitution, a statute passed by the Legislature, unless it can be said of the statute that it positively and certainly is opposed to the constitution. opn., ante, at p. FN 6. (Fn. Moreover, the Legislature heard from those knowledgeable on the issue of contracting fn. 414-417; see Williams, supra, 7 Cal.App.3d at p. 433) (Chapter 433), reflecting broad legislative approval of private contracting by Caltrans, authorizes these contracts under the conditions set forth in that legislation and so affords a proper ground for dissolving or modifying the injunction. 844-846.) App. 1993, ch. This obligation to exercise independent judgment when First Amendment rights are implicated is not a license to reweigh the evidence de novo, or to replace Congress' factual predictions with our own. As it neither fails to comply with that mandate nor disregards the constitutional restriction on contracting out, I would not expect it to contain findings which would seek to excuse noncompliance with or disregard of article VII. From time to time before adopting Chapter 433, the Legislature had enacted provisions governing the state's authority to contract with private entities. In any event, there is an additional reason why the contracting authorized by Chapter 433 is constitutionally permissible despite the perceived absence of concrete data proving the cost-effectiveness of contracting or the inadequacy of civil service staff. 4th 560] earlier determination but has supplied the factual basis the superior court determined was lacking. In April 1990, the trial court enjoined defendant state Department of Transportation (Caltrans) from privately contracting for engineering and inspection services that state civil service employees had traditionally performed on state highway projects. (Italics added.). The practice acts are Civil, Electrical, and Mechanical Engineering. fn. (See, e.g., County of Madera v. Gendron (1963) 59 Cal. 550, 568), the constitutional civil service provision has been construed to allow the state to contract privately for services that state employees have [15 Cal. ), In Department of Transportation v. Chavez (1992) 7 Cal. App. 650, 556 P.2d 1101]; Elliott, supra, 17 Cal.3d at p. 594; Blair v. Pitchess (1971) 5 Cal. opn., ante, at pp. ', "In Pacific Indemnity Co. v. Indus. "[P]etitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute. Rather, petitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions." [Citation.]". (Id. 844-846.) fn. 2d 355, 896 P.2d 1365] (overbreadth and vagueness attacks on hate crimes statute); Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal. It is this fundamental allocation of responsibility that undergirds our [15 Cal. at p. 6 [43 Cal. 225, 703 P.2d 1119].) Click here for more information about this new requirement and how to notify the Board of your email address. If conflicts arise, the Professional Engineers Act will take precedence. 7, This court has refused to undertake wholesale judicial amendment of legislation. Such an interpretation goes well beyond the purpose of article VII and what is necessary to protect the civil service system. 225, 703 P.2d 1119] [ordinary deference courts owe to legislative action vanishes when constitutionally protected rights are threatened].) PECG has headquarters in Sacramento and maintains satellite offices in San Francisco and Glendale. Com. See, e.g., In re M.S., supra, 10 Cal.4th at page 710 (overbreadth and vagueness attacks on hate crimes statute); Calfarm Ins. The majority offer no legal justification or policy rationale for abandoning this bedrock principle of law when legislative decisionmaking happens to follow litigation on related subject matter. Code, 179.4 [requiring all deficient bridges and structures to be retrofitted or replaced by December 31, 1992, December 31, 1993, or December 31, 1994, depending upon circumstances]; see Gov. ), Second, contrary to the majority's suggestion, the experimentation at issue in Professional Engineers did not require the "total" withdrawal of a state function. The trial court's use solely of factual conclusions to undermine legislative findings is best illustrated by its order of April 19, 1994, wherein the court stated: "In section 14130, subdivision (a)(5), the Legislature finds that 'the use of private consultants to assist in project delivery is a new state function and does not duplicate the existing functions of the department.' App. It is for the Legislature to find the facts and it falls to us to respect those findings unless they are clearly wrong-wrong without reasoned dispute or the influence of opposing perspectives. 3d 797, 812 [183 Cal. I find particularly disturbing the majority's conclusion that the constitutional validity of legislative enactments and amendments depends upon whether the Legislature is able to empirically disprove contrary trial court findings of fact. In 1993, the Legislature enacted Chapter 433 in recognition that California needed a "comprehensive and integrated highway construction plan" to maximize the capture and use of federal, state, local, and private funds and to maintain a competitive posture in seeking supplemental federal funds. 3d 1, 14 [112 Cal. 3d 951, 957, this court determined that it must "subject to careful scrutiny any legislation restricting the ability of defendants to cross-examine witnesses whose testimony is offered as evidence of probable cause [at a preliminary hearing]." Professional Scientific. It allocated funds previously authorized for private contracting to avoid disruptions of work in progress, to avert delay in projects involving [15 Cal. Our review of the legislative history underlying the adoption of Chapter 433 fails to indicate that the Legislature conducted any factual studies or evidentiary hearings before adopting that measure. Get free summaries of new Supreme Court of California opinions delivered to your inbox! 4th 605] question whether such necessity exists is one of fact to be determined by the Legislature." ), "[N]either a finding of fact made after a contested adversary hearing nor a finding of fact made after any other type of hearing can be indisputably deemed to have been a correct finding [;] '[u]nder the doctrine of judicial notice, certain matters are assumed to be indisputably true, and the introduction of evidence to prove them will not be required.' ; (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. On its face, however, Chapter 433-when properly read and viewed under settled legal principles-does not run afoul of the civil service mandate. Of course, nothing in this opinion would prevent Caltrans from seeking modification of the 1990 injunction based on a showing that particular contracts are justified because state workers cannot perform the work "adequately and competently," or as economically, or because the work calls for the performance of new state functions. App. In this case, the principal issue is whether Chapter 433 constitutes a constitutionally valid attempt by the Legislature to encourage private contracting in furtherance of these objectives. Habtamu has successfully . In 2003, PECG negotiated a landmark Memorandum of Understanding (MOU)[4] to achieve pay parity, a long sought goal. It is settled that "constitutional and other enactments must receive a liberal, practical common-sense construction which will meet changed conditions and the growing needs of the people." To accomplish this, PECG supports and sponsors programs that promote Science, Technology, Engineering and Mathematics (STEM). 9 However, when read with a view toward finding the statute constitutional (see Miller v. Municipal Court [15 Cal. (Pacific Legal Foundation v. Brown, supra, 29 Cal.3d at p. 593-594, and fn. Rptr. App. h]k0. (Salazar v. Eastin (1995) 9 Cal. In effect, the trial court circumvented Lockard and Stevenson by taking judicial notice of the truth of its own findings. No. (Lockard v. City of Los Angeles, supra, 33 Cal.2d at p. (Stats. The following instructions summarize the requirements for licensure as a Professional Engineer, but they are not intended to apply to every situation. Yet it is paradoxical for the majority to acknowledge that the results of the cost-comparison study mandated by Chapter 433 (which the majority concede was intended to help determine the economies of private contracting) "could well assist" Caltrans in making such a showing, while at the same time holding that Caltrans is not entitled to relief before such a study is performed. [selection of engineers must be based on demonstrated competence, professional qualifications, and price]; Cal. ), Finally, in Professional Engineers v. Department of Transportation (1993) 13 Cal. Professional Engineers in California Government (PECG) is a union representing engineers and related professionals employed by the state of California. The results of this study could well assist Caltrans in convincing the trial court to modify its injunction. 572, 573.) (Gov. The Majority Err by Not Applying the Presumption of Constitutionality. 1503] (Riley); California State Employees' Assn. Please view theFingerprinting FAQsfor detailed information. 692-693. In our view, none of the express or implied provisions of Chapter 433 affords a legitimate basis for disregarding the constitutional restriction on private contracting. No express or implied finding and no evidentiary support exist to sustain such a provision. Where, on the other hand, the question was whether the urgency legislation violated the Constitution by abolishing or changing the duties of an office, "[a]lthough this court accorded great deference to the Legislature's factual determination that urgency legislation was necessary, we went on to consider, as a question of law, whether the urgency measure at issue 'create[d] any office or change[d] the salary or duties of any officer, or create[d] any vested right or interest.' As an analytical matter, Riley's rule seems appropriate to [15 Cal. The trial court found Chapter 433 unconstitutional on its face as opposed to unconstitutional as applied. General Information: 7 (Ch. (c). The film tells the story from the perspectives of the construction contractor, Caltrans engineers and designers, and two of the reporters who covered the story. 2d 176].) 5, In determining whether legislation is facially invalid, it is settled that "[a] facial challenge to the constitutional validity of a statute considers only the text of the measure itself, not its application to particular circumstances." (Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. The basis for the trial court's decision was not that the legislative findings in Chapter 433 may have conflicted with its earlier injunction and findings of fact, thereby creating a possible separation of powers issue. 568.) Moreover, 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. 2d 798, 802 ; Miro v. Superior Court (1970) 5 Cal. ), The Court of Appeal relied on case law presuming the validity of legislation and according "great weight" to legislative findings unless "unreasonable and arbitrary" or "clearly and palpably wrong." Jason's responsibilities include new product development, regulatory approval & Product Management. 7. Reaching out to all Roads/Highway Engineers! Rptr. 4th 589], We must first look to what was decided. Where more than one reasonable meaning exists, it is our duty to accept that chosen by the legislature.' [15 Cal. Code, 143, subd. 2d 453, 461 [202 P.2d 38, 7 A.L.R.2d 990], wherein this court stated: " '[T]he rule is well settled that the legislative determination that the facts exist which make the law necessary, must not be set aside or disregarded by the courts, unless the legislative decision is clearly and palpably wrong and the error appears beyond reasonable doubt from facts or evidence which cannot be controverted, and of which the courts may properly take notice.' Caltrans froze the hiring of new employees, began to terminate limited term appointments, and called for a 50 percent reduction in temporary help to eliminate an assumed "over-staffed condition.". 2d 93, 95 A.L.R.2d 1347]. Comity applicants may submit NCEES Records (formerly known as NCEES Council Records) in lieu of Work Experience Engagements/References and transcripts, but NCEES Records are not required. (5).). omitted. Unlike the majority, I believe these circumstances amply support the Legislature's decision to categorize the engineering services required for such projects as a short-term workload demand. ), FN 2. (CSEA, supra, 199 Cal.App.3d at p. Professional Engineers. Article VII, section 1 states: "(a) The civil service includes every officer and employee of the state except as otherwise provided in this Constitution. Accordingly, the court ruled the private contracts invalid. App. California PE Laws and Board Rules Examination (Take Home Examination), application filing process for requesting a waiver of the FE exam, Business and Professionals Code section 6755, Title 16, California Code of Regulations section 438(a), Business and Professions Code section 6759, Title 16, California Code of Regulations section 428, Examination Special/Religious Accommodations, Information for Military Personnel and Their Spouses/Domestic Partners. For information regarding the qualification requirements, reviewBusiness and Professionals Code section 6755andTitle 16, California Code of Regulations section 438(a). 18 [881 P.2d 1059, 1061-1062]; Wash. We conclude that Chapter 433 contains no express or implied findings sufficient on their face to justify dissolving the trial court's injunction. The doctrine of separation of powers is a precept which is central to our constitutional form of government. FN 5. 239, 583 P.2d 1281].) 2d 1244, 1249; Moore v. State, Dept. ), (Opinion by Chin, J., with George, C. J., Mosk, J., Kennard, J., and Benke, J., fn. As a result, [Caltrans] purposely create[s] a need for 'a stable contracting out program' to timely deliver transportation projects, institutionalize the use of contracting in project delivery, and displace civil service employees from the function they have historically performed, in violation of article VII.". "Courts do not sit as super-legislatures to determine the wisdom, desirability or propriety of statutes enacted by the Legislature. Associate Justice of the Court of Appeal, Fourth Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. James has 3 jobs listed on their profile. When it has made such judgments, we will not disturb them unless they are inherently improbable or unreasonable." (b). 1084.) Western Cape Government All project management related responsibilities, client liaison, stakeholder liaison, design & tender documentation, managing the project team Transnet projects Engineering Manager, NEC Supervisor, civil and mechanical design engineer Part of the Civil and Mechanical SANRAL projects See the complete profile on LinkedIn and discover SATENDRA'S connections and jobs at similar companies. CV336697, Eugene T. Gualco, Judge. Clickhereto learn more. The trial court stated: "The Court concludes that Chapter 433 of the Statutes of 1993 is unconstitutional in that it authorizes defendants to contract with private consultants for the performance of project development services without a factual showing that the contracts are permissible under article VII. The case law is grounded in a constitutional provision enacted to overcome a pernicious tendency inherently afflicting both of the political branches of the government. [Citation.] former 401(2), italics added; see Diebold v. U.S. (6th Cir. FN 7. (See Williams, supra, 7 Cal.App.3d at p. 397 [Riley rule "emanates from an implicit necessity for protecting the policy of the organic civil service mandate against dissolution and destruction"]; CSEA, supra, 199 Cal.App.3d at pp. Former section 14130, subdivision (a), set forth certain legislative findings, including: (1) recognition of a "compelling public interest" in capturing and using in a timely manner available federal, state, local, and private funds for the state highway program (former 14130, subd. Const., former art. ), Caltrans asserts supposed policy reasons why we should overrule or disapprove 60 years of settled case law: "As a result [of the existing case law], Californians have had to forego promising new techniques for providing services, ranging from contracting with private contractors to outright [15 Cal. Although the legislation at issue in Professional Engineers differs from Chapter 433 insofar as it involved no expenditure of state funds, the majority recognize that article VII would permit experimentation "despite the use of state funding." 16, 474 et seq. (Id. 4. (Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal. Thus, Chapter 433, when properly interpreted, does not disregard the constitutional restriction on private contracting, but instead is consistent with the purposes of article VII. Indeed, the substantial interrelatedness of the three branches' actions is apparent and commonplace: the judiciary passes upon the constitutional validity of legislative and executive actions, the Legislature enacts statutes that govern the procedures and evidentiary rules applicable in judicial and executive proceedings, and the Governor appoints judges and participates in the legislative process through the veto power. Caltrans points to no new legal developments, such as scholarly criticism or commentary, or contrary case law in other states, that would cast doubt on the continued vitality of Riley and its progeny.
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