Metropolitan News-Enterprise


Thursday, September 14, 2006


Page 4


S.C. to Review Ruling Invalidating State’s Agreement With Union


By a MetNews Staff Writer


The state Supreme Court yesterday agreed to decide whether provisions of a union agreement between the state and civil service engineers limiting the state’s right to contract with private engineers violate the state Constitution.

At their weekly conference in San Francisco, the justices voted unanimously to review the Third District Court of Appeal’s June 14 decision in Consulting Engineers and Land Surveyors of California, Inc. v. Professional Engineers in California Government, C048282.

The Court of Appeal panel, in a 2 to 1 decision, said the provisions violate Proposition 35. That measure, titled the Fair Competition and Taxpayer Savings Act, was approved in 2000 and added Art. XXII to the Constitution to allow the state to contract with private architectural and engineering firms for public works of improvement.

Proposition 35 created an exception to Article VII, which, with certain exceptions, has been interpreted by the courts to prohibit the state from contracting with private companies to perform services that can be performed by state employees.

Presiding Justice Arthur G. Scotland and Judge M. Kathleen Butz voted to affirm the lower court’s injunction barring implementation of an agreement between Professional Engineers in California Government, a union representing civil service engineers, and the state, that gave preference to civil service engineers over outside engineers, except under specified circumstances; permitted termination of existing outside engineering contracts and transfer of the work to union engineers after the contracts were reviewed by a committee, half of whose members belonged to the union; and required actions, such as termination of outside contracts, to minimize the displacement of state engineers.

Justice Vance W. Raye dissented.

The union argued that the provisions merely created a committee to analyze nonconfidential data to determine whether the state was incurring unnecessary costs on existing contracts, and that the preference for using state employees did not violate Proposition 35.

Scotland, writing for the Court of Appeal, sided with the private engineers, saying:

“[W]e agree with the trial court’s ruling that the terms of [the agreement] ‘limit the ability of the State to contract freely for architectural and engineering services,’ and are ‘on their face, directly in conflict with Article XXII.’”

Scotland also found the provisions to be in conflict with the stated goals of Proposition 35, saying:

“The mandatory preference for civil service engineers, without a concomitant requirement of cost savings, does not ensure the best value for California taxpayers, and it undermines the goal of promoting fair competition. Moreover, common sense dictates that the review and termination of existing contracts is not conducive to speeding the completion of backlogged projects. In other words, [the] provision . . . contravenes the goals of Proposition 35 and thwarts the intent of the electorate.”

Raye, dissenting, noted that Article XXII provides that the state “shall be allowed to contract with qualified private entities for architectural and engineering services for all public works of improvement.” The majority, Raye argued, had reinterpreted Proposition 35 to provide that “[t]he state must contract with private entities.”

Raye acknowledged that, under Article XXII, the agreement provisions could not be forced on the state. However, “the limitations were not imposed; the state agreed to them,” he said.

“The majority does not explain the alchemy that transforms language permitting the state to contract with private entities into language compelling it to do so,” he wrote.

In other conference action, the justices declined to review a ruling by this district’s Court of Appeal that a successful appellant is entitled to one, and only one, new peremptory challenge to a judge under Code of Civil Procedure Sec. 170.6 when the case is sent back for a new trial.

Div. Seven ruled June 12 that Sec. 170.6(a)(2), which creates an exception to the one-peremptory-challenge-per-side rule, does not permit multiple challenges following a successful appeal.

The court denied a writ of mandate sought by Henry Casden, who was seeking to bar Los Angeles Superior Court Judge James Bascue from conducting the retrial of his suit against his brother, prominent real estate investor Alan Casden, and several of the Casden family real estate entities.

Henry Casden, who was once a principal in the business but left after undergoing what he said was “unwarranted personal abuse” by his brother for years, filed suit in 1999 claiming he was owed severance pay and at least $225,000 in dividends from a partnership.

Henry Casden previously used a peremptory challenge to prevent Judge Terry B. Friedman, who tried the case originally, to preside over a retrial ordered by the Court of Appeal.


Copyright 2006, Metropolitan News Company