Professional Eng'Rs in Cal. Gov. V. Kempton

• Decision Date: 12 April 2007
• Docket Number: No. S139917.,S139917.
• Citation: 40 Cal.4th 1016,155 P.3d 226,56 Cal.Rptr.3d 814
• Court: California Supreme Court
• Parties: PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT et al., Plaintiffs and Appellants, v. Will KEMPTON, as Director, etc., Defendants; and Respondents, Caltrop Engineering Corp. et al., Interveners and Respondents.

56 Cal.Rptr.3d 814

40 Cal.4th 1016

155 P.3d 226

PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT et al., Plaintiffs and Appellants, v. Will KEMPTON, as Director, etc., Defendants; and Respondents, Caltrop Engineering Corp. et al., Interveners and Respondents.

No. S139917.

Supreme Court of California.

April 12, 2007.

Law Office of Kelley Stimpel Martinez, Kelley Stimpel Martinez, Sacramento; Law Offices of James E. McGlamery and James E. McGlamery, Sacramento, for Plaintiffs and Appellants.

David L. Alexander and Christopher H. Alonzi, Berkeley, for City of Oakland, acting by and through its Board of Port Commissioners as Anucus Curiae on behalf of Plaintiffs and Appellants.

Davis & Reno and Duane W. Reno, San Francisco, 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, Sacramento, 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.

Bruce A. Behrens, Thomas C. Fellenz, Brelend C. Gowan, Jose Aguirre, Stephanie G. Sakai, Sacramento, 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, Irvine, for Amador County Transportation Authority as Amici Curiae on behalf of Defendants and Respondents.

Stoel Rives, James P. Corn and Barbara A. Brenner, Sacramento, for Interveners and Respondents.

Sheppard, Mullin, Richter & Hampton and David P. Lanferman, San Francisco, 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, San Francisco, 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, Sacramento, for The Civil Justice Association of California as Amicus Curiae on behalf of Interveners and Respondents.

MORENO, J.

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 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.

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;" "speeding] the completion of a multibillion dollar backlog of highway, bridge, transit and other projects;" "ensuring] 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 "ensurfing] 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 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, 63 Cal.Rptr.2d 467, 936 P.2d 473.)

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 constmed 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 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...