Prof. Engineers v. Morales 11/16/05 CA1/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A108641

Case Date: 02/08/2006

Preview:Filed 11/16/05

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT et al., Plaintiffs and Appellants, v. JEFF MORALES et al., Defendants and Respondents CALTROP ENGINEERING CORP., et al., Intervenors and Respondents. Proposition 35, an initiative passed by California voters in 2000, allows the state to use private contractors to perform architectural and engineering services on public works. This case requires us to construe Proposition 35 and determine its effect on preexisting statutes. In the published part of the decision, we affirm the judgment of the trial court in part. We hold that Proposition 35 impliedly repealed or amended Government Code sections 14101, 14130-14137 and 19130 to the extent that those statutes restrict Caltrans's authority to contract with private architects and engineers beyond the A108641 (San Francisco County Super. Ct. No. CPF-02-502067)

Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts IV and V. 1

constraints of the initiative itself. Further, we hold that there is no conflict between the initiative and Caltrans's use of a qualifications based selection procedure. In the unpublished part of the opinion we reverse in part and remand with instructions to issue a peremptory writ of mandate ordering Caltrans to refrain from applying the regulations contained in its manuals until it fully complies with the Administrative Procedure Act. BACKGROUND Proposition 35 was the culmination of a 14-year legal struggle over when and how the Department of Transportation (Caltrans) could contract with private architects and engineers on transportation projects. The struggle began in 1986 with a lawsuit between the main parties to the present case and played out through legislative action, trial court injunctions, court appeals and ultimately a constitutional ruling of the California Supreme Court, which struck down statutes expanding Caltrans's ability to use private contractors. (See Professional Engineers v. Department of Transportation (1997) 15 Cal.4th 543, 548 (Professional Engineers).)1 Proponents of Proposition 35 wrote in the ballot materials that one purpose of the initiative was to reverse the effect of lawsuits that impeded Caltrans use of private contractors. In 2000, the voters approved Proposition 35, the "Fair Competition and Taxpayer Savings Initiative" (Proposition 35).2 The express intent of the initiative was to "remove existing restrictions on contracting for architectural and engineering services"; to allow

Defendants to this appeal are Caltrans and its director, and the Business, Transportation and Housing Agency, a state umbrella agency that includes Caltrans, and its secretary. For convenience, we refer to defendants collectively as Caltrans. The initiative consists of a statement of purpose and intent, a new article to the Constitution, a new chapter to the Government Code, and two uncodified provisions. (Cal. Const., art. XXII; Gov. Code

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