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The new section states no facts to establish those contracts were exempt from the constitutional restriction on private contracting. As will appear, we conclude that no proper ground exists for overruling the private contracting restriction of prior case law, that the provisions of Chapter 433 on which Caltrans relies conflict with the constitutional principles of this case law, and that, accordingly, the trial court did not abuse its discretion in declining to modify or dissolve its earlier injunction. 1209 (1993-1994 Reg. fn. (See Amwest, supra, 11 Cal.4th at pp. Habtamu Tolossa, Ph.D., P.Eng. - Senior Hydrologic Engineer - LinkedIn I recognize that the protracted litigation over Chapter 433 has by now probably defeated the Legislature's intent in this regard. 2d 444, 453 [75 Cal. Board for Professional Engineers, Land Surveyors, and Geologists, Civil Engineering Examinations Reference List. (See, e.g., Moradi-Shalal v. Fireman's Fund Ins. Under these circumstances, considerations of efficiency and economy permitted an exception to the private contracting restriction. As envisioned by the Legislature, one group of projects was to consist of projects for which engineering services were provided primarily by civil service staff and the second group was to consist of similar projects for which engineering services were provided primarily by outside consultants. 2d 245, 828 P.2d 147].) Accordingly, the propriety of the trial court's action in taking judicial notice may be considered on appeal despite the lack of objection in the trial court. ), That the Legislature intends to encourage contracting out indicates a finding by that body that contracting out is frequently less expensive than hiring new employees, especially when the costs of short-term hiring and layoffs are taken into account. opn., ante, at p. 569), the majority nonetheless decide that the ordinary deference courts owe to legislative action "vanishes" when "constitutionally protected rights" are threatened and that courts are not foreclosed from exercising "independent judgment of the facts" bearing on an issue of constitutional law (ibid.). of Ardaiz, J., post, at pp. (See Kennedy v. Ross (1946) 28 Cal. [Citations.]" (Stats. 4th 558]. As a matter of procedural history, the trial court was asked by Caltrans to consider Chapter 433 as changing the basis for its original injunction. PECG (@PECG) / Twitter 4.) In amending the Government Code in 1993, Chapter 433 sought to extend additional flexibility in contracting only to engineering services pertaining to projects involving statutorily required seismic safety retrofitting of publicly owned bridges (Gov. VII, 1), as interpreted by State Compensation Ins. Although these statutes and regulations do not require competitive bidding for the type of services at issue, it has long been recognized that " 'the employment of a person who is [15 Cal. The current contract with Unit 9 is in effect from July 1, 2022 through June 30, 2025. Since the trial court did not base its decision on this ground, however, and given that the contracts at issue no longer appear to be in effect in any event, I see no need to discuss the issue. (pBOO$< O$<9x,IB%DQATDQAT8)xixJjX,VZ \0u+l0{m.o}ek\=o!mJnmg>MkS\M;{{w~;;wbKW+k` JB Co. v. Wilson (1995) 11 Cal. 2d 481, 484 [171 P.2d 21, 166 A.L.R. Strong operations professional graduated from California State University-Northridge. Unit 9 - Professional Engineers; Unit 10 - Professional Scientific; Unit 11 - Engineering and Scientific Technicians; Unit 12 - Craft and Maintenance; . James has 3 jobs listed on their profile. as amended June 24, 1993; Assem. This court stated: "In the present case, the construction of article II, section 10, subdivision (c) of the California Constitution is not disputed. Further, judicial notice of findings of fact does not mean that those findings of fact are true, but, rather, only means that those findings of fact were made. App. FN 9. 2d 569, 571-574 [170 P.2d 904], [interpreting analogous civil service provision in city charter]; San Francisco v. Boyd (1941) 17 Cal. is binding on the courts in the sense that the courts cannot then go behind those findings to find factual error or lack of what might be termed evidentiary support. 3d 305, 309-310 [216 Cal. (a)(1)). 9 However, when read with a view toward finding the statute constitutional (see Miller v. Municipal Court [15 Cal. To accomplish this, PECG supports and sponsors programs that promote Science, Technology, Engineering and Mathematics (STEM). (Italics added.). 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. 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. (Sen. Transportation Com., Rep. on Sen. Bill No. at p. (b), p. (People v. Superior Court (1937) 10 Cal. Of course, the Legislature clearly intended Chapter 433 to expand Caltrans's ability to make these contracts. There are three categories of Professional Engineer licensure available in California: (1) practice act, (2) title act, and (3) title authority. (a)(5). ", First, 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. 4th 585 [16 Cal. 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. 2d 162, 165-167; Michigan State Employees v. Civil Service Com'n (1985) 141 Mich.App. We therefore hold, that in passing upon the constitutionality of a statute, the court must confine itself to a consideration of those matters which appear upon the face of the law, and those facts of which it can take judicial notice. 433, 13.) Membership. 3d 171, 175 [148 Cal. Com. I also find troubling the majority's suggestion that legislative action may be validated based only upon data and studies actually considered by the legislative body. 3d 348, 388-389 [261 Cal. But until such a study is performed, we have no basis for concluding that Chapter 433's legislative findings have undermined the injunction. omitted. (Amwest, supra, at pp. [Citation.]" With regard to the question before it, this court concluded: "Accordingly, starting with the presumption that the Legislature acted within its authority, we shall uphold the validity of [the statute at issue] if, by any reasonable construction, it can be said that the statute furthers the purposes of Proposition 103." Respondents' petition for a rehearing was denied July 16, 1997. As plaintiffs observe, " there is no evidence in the record to support [15 Cal. omitted, italics added. Const., former art. (Id. However, the constitutionality of a statute cannot turn on "the vagaries of litigation tactics." [15 Cal. I am working exclusively with a highly reputable . Section 14130, subdivision (a)(4), recites that private contracting has helped "accelerate[] nearly one billion dollars ($1,000,000,000) worth of construction projects on the state highway system. If applicants fail to provide additional information or references within 90 days following the request by Board staff, the application may be considered abandoned, and the application fee forfeited (Title 16, California Code of Regulations section 428). Section President 2nd Term at PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT David Tanouye, P.G. 3d 492, 524 [286 Cal. Proc., 533; accord, Civ. As this very case illustrates, application of the majority's independent-judgment-of-the-facts approach permits legislative determinations and enactments to be "trumped" by court findings based upon scant evidence and never challenged on appeal. FN 1. (Amador Valley Joint Union High Sch. (Stats. fn. (Id. 134.). Unless a statute's unconstitutionality " 'clearly, positively, and unmistakably appears' " (Calfarm Ins. Moreover, as Professional Engineers, supra, 13 Cal. "[A]n as applied challenge assumes that the statute violated is valid and asserts that the manner of enforcement against a particular individual or individuals or the circumstances in which the statute is applied is unconstitutional." From 1991 to 1993, the court issued additional orders implementing its injunction. (See People v. Globe Grain & Mill Co. (1930) 211 Cal. It is a legal conclusion to which courts do not defer. (1981) 28 Cal. 1247, 1251.) 361, 551 P.2d 1193] (Elliott); accord, The Housing Authority v. Dockweiler (1939) 14 Cal. Clickhereto learn more. " (Amwest, supra, 11 Cal.4th at p. 1253, italics added. (Id. Const., art. View Christopher R. Nojodimedjo's profile on LinkedIn, the world's largest professional community. PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT, Charging Party, v. STATE OF CALIFORNIA (DEPARTMENTS OF PERSONNEL ADMINISTRATION AND TRANSPORTATION), Respondent.))) 3d 168, 180, this court applied the foregoing "fundamental principles of constitutional adjudication" to a challenge to legislation based on article VII. Amazing: The Rebuilding of the MacArthur Maze is a half-hour television special which tells the remarkable story of the fiery collapse and rebuilding (in only 26 days) of a key connector in the Bay Area's MacArthur Maze, where three major freeways meet just east of the San Francisco-Oakland Bay Bridge. 4th 585. at pp. ), italics added. (Lockard v. City of Los Angeles, supra, 33 Cal.2d at p. [15 Cal. Co. v. Deukmejian, supra, 48 Cal.3d at p. 814), the judiciary should not interfere. Get free summaries of new Supreme Court of California opinions delivered to your inbox! and to locally funded highway projects fn. 1084.) (c), operative until Jan. 1, 1998, 14130.1, 14130.2. 3d 575, 591 [131 Cal. Plaintiffs, contending that Chapter 433 did not authorize Caltrans's scheduled contracting, sought an order holding Caltrans in contempt for violating the 1990 injunction. CV336697, Eugene T. Gualco, Judge. Legislative findings based on evidence elicited at committee hearings or derived from extensive factual studies logically would be entitled to more weight than findings included in legislation solely to accommodate a litigant's request for relief. In enacting [the statute in question], the Legislature did not purport to interpret the Constitution, but only to amend the statutory provisions enacted by Proposition 103. In that case, the Legislature had authorized Caltrans to contract with private development firms to construct and operate tollways under state lease, in order to secure needed transportation systems unobtainable through public financing arrangements. 2d 1244, 1249; Moore v. State, Dept. Brad Starr - Principal Engineer / Resident Engineer / Office Manager Finding that California Constitution, article VII did not discourage such experimentation, the Court of Appeal reasoned: "[T]o strike down these efforts would denigrate a key purpose of the civil service mandate-to promote efficiency and economy in state government. A title authority indicates a proficiency in that field greater than what is required for Civil Engineering licensure. IX.B.2. ), FN 3. 1986) Judicial Notice, 80, p. 74, italics added.) Code, 14130.2). 2d 859] [deferring to Georgia Legislature's judgment that capital punishment is valuable as a deterrent of crime, even though statistical attempts to evaluate its worth have occasioned a great deal of debate and results have been inconclusive]; Legislature v. Eu (1991) 54 Cal. I further conclude that Chapter 433 does not violate article VII of the California Constitution (article VII) and is constitutional on its face. While acknowledging that "courts must give legislative findings great weight and should uphold them unless unreasonable or arbitrary" (maj. 2 (E.g., Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal. opn., ante, at p. 569, citing Spiritual Psychic Science Church v. City of Azusa, supra, 39 Cal.3d at p. (Pacific Legal Foundation v. Brown (1981) 29 Cal. Rather, courts should usually apply the tests Riley and its progeny devised on a case-by-case basis, evaluating particular contracts rather than entire areas of operation such as "engineering" or "project development." Examination Information. The majority also rely on a quote taken out of context from Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal. opn., ante, at p. 565), "we deal with a constitutional provision of a kind, similar to many others, which necessarily and over a period of time will require judicial, legislative and administrative construction." I do so not because I agree with the possible consequences of these cases, but because it is not necessary to overturn established precedent in order to uphold the legislation at issue here. PECG is committed to your success. This court has followed this principle in a wide variety of situations. Rptr. PECGs top-notch lawyers, contract negotiators, lobbyists, labor consultant and media specialist represent state-employed engineers, engineering geologists, land surveyors, architects, landscape architects, air pollution specialists, and related professionals individually and collectively. Const., former art. Even were we to conclude, for purposes of argument, that Chapter 433 contains express or implied findings to the effect that Caltrans is unable to perform the services in question "adequately and competently" through civil service, or that private contracting has resulted and will result in substantial cost savings or other significant advantages to the state, these findings, standing alone and without any apparent evidentiary or empirical support, would be insufficient to supplant the trial court's express findings to the contrary. 4th 603] and limits pertaining to the use of such funds. Com. )Case No . 464-465), I conclude the statutory scheme and its call for a cost-effectiveness study are rationally related to the goal of achieving the most economical mix of public and private service for the timely delivery of state transportation projects. Rptr.