EDMUND G. BROWN JR. State of California Attorney General DEPARTMENT OF JUSTICE 1300 1 STREET, SUITE 15 P.O. BOX 944255 SACRAMENTO, CA 94244-2550 Public: (916) 445-9555 ‘Telephone: (916) 323-8405 Facsimile: (916) 324-5567 E-Mail: Peter. Williams@do}.ca.gov Sune 22, 2009 Honorable Ronald M. George, Chief Justice Honorable Associate Justices Supreme Court of California 350 McAllister Street San Francisco, CA 94102-4797 RE: State Building and Construction Trades Council v. City of Vista, No $173586 ‘To the Honorable Chief Justice and Associate Justices of the Supreme Court of California: ‘The Attomey General supports the petition for review submitted in this matter by the State Building and Construction Trades Council (SBCTC) because it presents a question of fundamental importance and broad application to the state’s construction labor force. Whether a charter city must pay construction laborers working on public projects a prevailing wage, as determined by the state under its prevailing wage law (Lab. Code, § 1720 et seq.), has been considered by the Court an “important question[]"left “open for consideration at another time.” (Cigy of Long Beach v. Dept. of Industrial Relations (2004) 34 Cal.4th 942, 947.) With the Fourth District’s decision in this matter, the time has now come, and granting review here would allow the Court to resolve this vital issue As detailed in SBCTC’s petition, determining whether the City of Vista, a charter city, is governed in this case by the state’s prevailing wage law ultimately hinges on whether the prevailing wage law is viewed by the Court as addressing a “statewide concem,” or simply a “municipal affair.” (California Fed. Sav. & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1,17 (“Cal Fed”).) Ifa law addresses a statewide concern, and the law is reasonably tailored to address that concern, then the state law preempts the charter city’s ordinance notwithstanding the autonomy otherwise given to the municipal affairs of charter cities under article XI, section 5(a) of the state constitution. (Jbid.) Whether a state law implicates a “statewide concern” or a “municipal affair” is a determination left ultimately to the courts. (County of Riverside v. Superior Court (2003) 30June 22, 2009 Page 2 Cal.4th 278, 286.) This determination is not an assembly-line exercise: “We have said that the task of determining whether a given activity is a ‘municipal affair’ or one of statewide concern is an ad hoc inquiry; that ‘the constitutional concept of municipal affairs is not a fixed or static quantity.”” (Cai Fed, supra, $4 Cal.3d at p. 16, quoting Pac. Tel. & Tel. Co. v. City and County of San Francisco. (1959) 51 Cal.2d 766, 771.) In other words, “the question ‘must be answered in light of the facts and circumstances surrounding each case.” (Cal Fed, supra, 54 Cal.3d at p. 16, quoting In re Hubbard (1964) 62 Cal.2d 119, 128.) In determining whether a law addresses a statewide concem versus a municipal affair, it is crucial for a court to give “great weight” to the intent of the California Legislature in enacting the law in question, (Cal Fed, supra, 54 Cal.3d at p. 24, fn. 21.) “There must always be doubt whether a matter which is of concern to both municipalities and the state is of sufficient statewide concem to justify a new legislative intrusion into an area traditionally regarded as ‘strictly a municipal affair.’ Such doubt, however, 'must be resolved in favor of the legislative authority of the state.” (Baggett v. Gates (1982) 32 Cal.3d 128, 140, quoting Abbott v. City of Los Angeles (1960) $3 Cal.2d 674, 681.) While the majority opinion below acknowledged the need to give deference to the legislative findings, which stated that the prevailing wage law addressed a matter of statewide concer, the court nonetheless completely discounted those findings. (Maj. Op. at 37 [Given the structural contours of the PWL, the Legislature's determination that the PWL addresses matters of statewide concer, while entitled to deference, is not very helpful").) The majority held that because the prevailing wage law did not apply to private construction projects, and was also subject to several exceptions even on public projects, it was too narrow in scope to address a statewide concern, irrespective of what the Legislature intended. (Maj. Op. at 21-25.) The majority therefore reasoned that allowing a charter city to pay something less than a state- determined prevailing wage would not undermine the law's limited effectiveness. (Maj. Op. at 36-37.) But the all-inclusiveness of the law or its effectiveness in addressing its intended statewide concem has never been considered by the courts when determining whether the law applies to charter cities. This Court in Cal Fed explained that courts do not weigh the law's, effectiveness, but rather whether the law addresses concerns of “extramural dimension to support legislative measures reasonably related to its resolution.” (Cal Fed, supra, 54 Cal.3d at pp. 23- 24.) The Court then deferred to legislative findings to support its conclusion that the law at issue in Cal Fed was a matter of statewide concem that applied to charter cities. (Ibid.) In this case, by failing to give proper deference to the intent of the California Legislature, the majority undermined a critical role of that elected governmental body, contrary to this Court’s guidance.June 22, 2009 Page 3 For these reasons, the Attomey General respectfully requests that the Court grant SBCTC’s petition for review in order for this important matter to be resolved. PETER M. WILLIAMS Deputy Attorney General For EDMUND G. BROWN JR. Attomey General sx2008303543 20786128 doex