Law Requiring That A State Highway Project Use Only State Employees Violates The State Constitution

In Consulting Engineers and Land Surveyors of California v. California Department of Transportation, (— Cal.Rptr.3d —, Cal.App. 3 Dist., Oct. 30, 2008), a California Court of Appeal considered a challenge to a state law that authorized the construction of a high occupancy lane on a state highway and mandated that only state civil service employees do engineering work on the project. The court ruled the law violates the state constitution which provides that state agencies may contract with qualified private entities for services on public works projects.


In 2000, California voters passed Proposition 35, which amended the state constitution to specify that state agencies “shall be allowed to contract with qualified private entities for architectural and engineering services for all public works of improvement.” In 2006, the state Legislature enacted Senate Bill 1026 (SB 1026″), authorizing the construction of a high occupancy lane on a Los Angeles highway and requiring that only state civil service employees be used for engineering services on the project.

Consulting Engineers and Land Surveyors of California, an association of private sector engineers, filed a lawsuit seeking a determination that SB 1026 violated the constitutional provisions of Proposition 35, and an order that the California Department of Transportation (“Caltrans”) be enjoined from enforcing those provisions. Caltrans did not contest the suit, but Professional Engineers in California Government (“PECG”), an association of state-employed engineers, intervened to contest the lawsuit. The trial court ruled that SB 1026 was unconstitutional and could not be enforced. PECG appealed.


The court noted that PECG based its challenge on a sentence in Proposition 35, now Government Code Section 4529.13, that reads: “Nor shall any provision of this act be construed to prohibit or restrict the authority of the Legislature to statutorily provide different procurement methods for design-build projects or design-build-and-operate projects.” Since the project at issue was design-build, PECG argued, the Legislature could therefore veer from the terms of Proposition 35 and mandate that only state engineers be used.

But the sentence on which PECG relies “simply refers to the manner in which private architects and engineers are selected for public works projects,” the court said. That does not suggest in any way that that Proposition 35’s guarantee of freedom to contract with private engineers does not apply to design-build projects. “Surely, such an expansive exclusion from the purpose of Proposition 35 would have been set forth plainly in the initiative if that had been its intention,” the court added. It is unreasonable to interpret Section 4529.13 in a way that would negate the primary purpose of the constitutional amendment.

The Legislature was therefore constitutionally prohibited from mandating that only state engineers be used on a project. Caltrans can choose to do so, but the Legislature cannot mandate it, the court concluded. The trial court’s judgment was narrowed slightly to specify that only the portions of Senate Bill 1026 that violated Proposition 35 were unconstitutional, rather than the entire statute. With that modification, the judgment was affirmed.


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