General Law City v. Charter City

Transcription

1 General Law City v. Charter City Characteristic General Law City Charter City Ability to Govern Municipal Affairs Bound by the state s general law, regardless of whether the subject concerns a municipal affair. Has supreme authority over municipal affairs. Cal. Const. art. XI, 5(b). Form of Government State law describes the city s form of government For example, Government Code section authorizes general law cities be governed by a city council of five members, a city clerk, a city treasurer, a police chief, a fire chief and any subordinate officers or employees as required by law. City electors may adopt ordinance which provides for a different number of council members. Cal. Gov t section The Government Code also authorizes the city manager form of government. Cal. Gov t Code Charter can provide for any form of government including the strong mayor, and city manager forms. See Cal. Const. art. XI, 5(b); Cal. Gov t Code et seq. Elections Generally Municipal elections conducted in accordance with the California Elections Code. Cal. Elec. Code et seq.. Not bound by the California Elections Code. May establish own election dates, rules, and procedures. See Cal. Const. art. XI, 5(b); Cal. Elec. Code et seq.. Methods of Elections Generally holds at-large elections whereby voters vote for any candidate on the ballot. Cities may also choose to elect the city council by or from districts, so long as the election system has been established by ordinance and approved by the voters. Cal. Gov t Code Mayor may be elected by the city council or by vote of the people. Cal. Gov t Code May establish procedures for selecting officers. May hold at-large or district elections. See Cal. Const. art. XI, 5(b). City Council Member Qualifications Minimum qualifications are: 1. United States citizen 2. At least 18 years old 3. Registered voter 4. Resident of the city at least 15 days prior to the election and throughout his or her term 5. If elected by or from a district, be a resident of the geographical area comprising the district from which he or she is elected. Cal. Elec. Code 321; Cal. Gov t Code 34882, 36502; 87 Cal. Op. Att y Gen. 30 (2004). Can establish own criteria for city office provided it does not violate the U.S. Constitution. Cal. Const. art. XI, 5(b), 82 Cal. Op. Att y Gen. 6, 8 (1999).

2 Characteristic General Law City Charter City Public Funds for Candidate in Municipal Elections No public officer shall expend and no candidate shall accept public money for the purpose of seeking elected office. Cal. Gov t Code Public financing of election campaigns is lawful. Johnson v. Bradley, 4 Cal. 4th 389 (1992). Term Limits May provide for term limits. Cal. Gov t Code 36502(b). May provide for term limits. Cal. Const. art. XI, 5(b); Cal Gov t Code Section (b). Vacancies and Termination of Office An office becomes vacant in several instances including death, resignation, removal for failure to perform official duties, electorate irregularities, absence from meetings without permission, and upon nonresidency. Cal. Gov t Code 1770, 36502, May establish criteria for vacating and terminating city offices so long as it does not violate the state and federal constitutions. Cal. Const. art. XI, 5(b). Council Member Compensation and Expense Reimbursement Salary-ceiling is set by city population and salary increases set by state law except for compensation established by city electors. See Cal. Gov t Code If a city provides any type of compensation or payment of expenses to council members, then all council members are required to have two hours of ethics training. See Cal. Gov t Code May establish council members salaries. See Cal. Const. art. XI, 5(b). If a city provides any type of compensation or payment of expenses to council members, then all council members are required to have two hours of ethics training. See Cal. Gov t Code Legislative Authority Ordinances may not be passed within five days of introduction unless they are urgency ordinances. Cal. Gov t Code Ordinances may only be passed at a regular meeting, and must be read in full at time of introduction and passage except when, after reading the title, further reading is waived. Cal. Gov't Code May establish procedures for enacting local ordinances. Brougher v. Bd. of Public Works, 205 Cal. 426 (1928). Resolutions May establish rules regarding the procedures for adopting, amending or repealing resolutions. May establish procedures for adopting, amending or repealing resolutions. Brougher v. Bd. of Public Works, 205 Cal. 426 (1928). Quorum and Voting Requirements A majority of the city council constitutes a quorum for transaction of business. Cal. Gov t Code All ordinances, resolutions, and orders for the payment of money require a recorded majority vote of the total membership of the city council. Cal. Gov't Code Specific legislation requires supermajority votes for certain actions. May establish own procedures and quorum requirements. However, certain legislation requiring supermajority votes is applicable to charter cities. For example, see California Code of Civil Procedure section requiring a vote of two-thirds of all the members of the governing body unless a greater vote is required by charter.

3 Characteristic General Law City Charter City Rules Governing Procedure and Decorum Ralph Brown Act is applicable. Cal. Gov t Code 54951, 54953(a). Conflict of interest laws are applicable. See Cal. Gov t Code et seq.. Ralph Brown Act is applicable. Cal. Gov t Code 54951, 54953(a). Conflict of interest laws are applicable. See Cal. Gov t Code et seq.. May provide provisions related to ethics, conflicts, campaign financing and incompatibility of office. Personnel Matters May establish standards, requirements and procedures for hiring personnel consistent with Government Code requirements. May have civil service system, which includes comprehensive procedures for recruitment, hiring, testing and promotion. See Cal. Gov't Code et seq. Meyers-Milias-Brown Act applies. Cal. Gov't Code Cannot require employees be residents of the city, but can require them to reside within a reasonable and specific distance of their place of employment. Cal. Const. art. XI, 10(b). May establish standards, requirements, and procedures, including compensation, terms and conditions of employment for personnel. See Cal. Const. art. XI, 5(b). Procedures set forth in Meyers-Milias-Brown Act (Cal. Gov't Code 3500) apply, but note, [T]here is a clear distinction between the substance of a public employee labor issue and the procedure by which it is resolved. Thus there is no question that 'salaries of local employees of a charter city constitute municipal affairs and are not subject to general laws.' Voters for Responsible Retirement v. Board of Supervisors, 8 Cal.4th 765, 781 (1994). Cannot require employees be residents of the city, but can require them to reside within a reasonable and specific distance of their place of employment. Cal. Const. art. XI, section 10(b). Contracting Services Authority to enter into contracts to carry out necessary functions, including those expressly granted and those implied by necessity. See Cal. Gov't Code 37103; Carruth v. City of Madera, 233 Cal. App. 2d 688 (1965). Full authority to contract consistent with charter. May transfer some of its functions to the county including tax collection, assessment collection and sale of property for nonpayment of taxes and assessments. Cal. Gov't Code 51330, 51334,

4 Characteristic General Law City Charter City Public Contracts Competitive bidding required for public works contracts over $5,000. Cal. Pub. Cont. Code Such contracts must be awarded to the lowest responsible bidder. Pub. Cont. Code If city elects subject itself to uniform construction accounting procedures, less formal procedures may be available for contracts less than $100,000. See Cal. Pub. Cont. Code 22000, Contracts for professional services such as private architectural, landscape architectural, engineering, environmental, land surveying, or construction management firms need not be competitively bid, but must be awarded on basis of demonstrated competence and professional qualifications necessary for the satisfactory performance of services. Cal. Gov't Code Not required to comply with bidding statutes provided the city charter or a city ordinance exempts the city from such statutes, and the subject matter of the bid constitutes a municipal affair. Pub. Cont. Code ; see R & A Vending Services, Inc. v. City of Los Angeles, 172 Cal. App. 3d 1188 (1985); Howard Contracting, Inc. v. G.A. MacDonald Constr. Co., 71 Cal. App. 4th 38 (1998). Payment of Prevailing Wages In general, prevailing wages must be paid on public works projects over $1,000. Cal. Lab. Code Higher thresholds apply ($15,000 or $25,000) if the public entity has adopted a special labor compliance program. See Cal. Labor Code (a)-(c). Historically, charter cities have not been bound by state law prevailing-wage requirements so long as the project is a municipal affair, and not one funded by state or federal grants. Vial v. City of San Diego, 122 Cal. App. 3d 346, 348 (1981). However, there is a growing trend on the part of the courts and the Legislature to expand the applicability of prevailing wages to charter cities under an analysis that argues that the payment of prevailing wages is a matter of statewide concern. The California Supreme Court currently has before them a case that will provide the opportunity to decide whether prevailing wage is a municipal affair or whether it has become a matter of statewide concern.

5 Characteristic General Law City Charter City Finance and Taxing Power May impose the same kinds of taxes and assessment as charter cities. See Cal. Gov't Code Imposition of taxes and assessments subject to Proposition 218. Cal. Const. art.xiiic. Examples of common forms used in assessment district financing include: Improvement Act of Cal. Sts. & High. Code et seq.. Municipal Improvement Act of See Cal. Sts. & High. Code et seq.. Improvement Bond Act of Cal. Sts. & High. Code 8500 et seq.. Landscaping and Lighting Act of Cal. Sts. & High. Code et seq.. Benefit Assessment Act of Cal. Gov't Code et seq.. May impose business license taxes for regulatory purposes, revenue purposes, or both. See Cal. Gov't Code May not impose real property transfer tax. See Cal. Const. art. XIIIA, 4; Cal. Gov't Code 53725; but see authority to impose documentary transfer taxes under certain circumstances. Cal. Rev. & Tax. Code 11911(a), (c). Have the power to tax. Have broader assessment powers than a general law city, as well as taxation power as determined on a case-by case basis. Imposition of taxes and assessments subject to Proposition 218, Cal. Const. art. XIIIC, 2, and own charter limitations May proceed under a general assessment law, or enact local assessment laws and then elect to proceed under the local law. See J.W. Jones Companies v. City of San Diego, 157 Cal. App. 3d 745 (1984). May impose business license taxes for any purpose unless limited by state or federal constitutions, or city charter. See Cal. Const. art. XI, 5. May impose real property transfer tax; does not violate either Cal. Const art. XIIIA or California Government Code section See Cohn v. City of Oakland, 223 Cal. App. 3d 261 (1990); Fielder v. City of Los Angeles, 14 Cal. App. 4th 137 (1993). Streets & Sidewalks State has preempted entire field of traffic control. Cal. Veh. Code 21. State has preempted entire field of traffic control. Cal. Veh. Code 21. Penalties & Cost Recovery May impose fines, penalties and forfeitures, with a fine not exceeding $1,000. Cal. Gov t Code May enact ordinances providing for various penalties so long as such penalties do not exceed any maximum limits set by the charter. County of Los Angeles v. City of Los Angeles, 219 Cal. App. 2d 838, 844 (1963).

6 Characteristic General Law City Charter City Public Utilities/Franchises May establish, purchase, and operate public works to furnish its inhabitants with electric power. See Cal. Const. art. XI, 9(a); Cal. Gov't Code 39732; Cal. Pub. Util. Code May grant franchises to persons or corporations seeking to furnish light, water, power, heat, transportation or communication services in the city to allow use of city streets for such purposes. The grant of franchises can be done through a bidding process, under the Broughton Act, Cal. Pub. Util. Code , or without a bidding process under the Franchise Act of 1937, Cal. Pub. Util. Code May establish, purchase, and operate public works to furnish its inhabitants with electric power. See Cal. Const. art. XI, 9(a); Cal. Apartment Ass n v. City of Stockton, 80 Cal. App. 4th 699 (2000). May establish conditions and regulations on the granting of franchises to use city streets to persons or corporations seeking to furnish light, water, power, heat, transportation or communication services in the city. Franchise Act of 1937 is not applicable if charter provides. Cal. Pub. Util. Code Zoning Zoning ordinances must be consistent with general plan. Cal. Gov't Code Zoning ordinances are not required to be consistent with general plan unless the city has adopted a consistency requirement by charter or ordinance. Cal. Gov t. Code

7 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev Pepp. L. Rev. 587 Pepperdine Law Review March, 2014 Note and Comment PRESERVING HOME RULE: THE TEXT, PURPOSE, AND POLITICAL THEORY OF CALIFORNIA S MUNICIPAL AFFAIRS CLAUSE Brett A. Stroud a1 Copyright 2014 by the Pepperdine University School of Law; Brett A. Stroud I. INTRODUCTION 588 II. THE HISTORY OF CONSTITUTIONAL HOME RULE AND THE MUNICIPAL AFFAIRS CLAUSE 589 A. Dillon s Rule and the Right of Local Self-Government 590 B. City Government Under the California Constitution of C. Home Rule and the Constitution of D. The Municipal Affairs Amendment 598 III. THE MODERN INTERPRETATION OF THE MUNICIPAL AFFAIRS CLAUSE 602 A. The Growth of the Statewide Concern Doctrine 602 B. The Federal Savings Analysis 603 IV. THE PREVAILING WAGE LAW AND TRADES COUNCIL 604 A. Legal Background 604 B. Facts and Procedural Background 606 C Holdings and Dissents The Nature of the Analysis The Precedential Value of City of Pasadena v. Charleville The Role of Legislative Findings 611 V. THE CONSTRUCTION AND APPLICATION OF A SETTLED RULE 612 A. Legislative Findings and the Role of the Courts 612 B. The Text of the Clause: All Means All Thomson Reuters. No claim to original U.S. Government Works. 1

8 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev. 587 C. The Purpose of the Clause: Local Laws and General Laws 615 D. The Theory of the Clause: Localism and Federalism 617 VI. THE CASE FOR CLARITY 624 A. Principle: The Separation of Powers and Political Accountability 624 B. Practicality: Cooperative Localism 624 VII. TRADES COUNCIL AND SB7 626 A. The Legislative Overreach of SB7 626 B. Analyzing SB7 Under Federal Savings 627 C. Analyzing the Public Wage Rate Act Under the Proposed Rule 628 D. Analyzing SB7 Under the Proposed Rule 630 VIII. CONCLUSION 630 *588 I. INTRODUCTION In California, any city may become a charter city by framing a charter and ratifying it by popular vote. 1 Under the state s constitution, the ordinances of a charter city supersede conflicting state law concerning municipal affairs. 2 In 2012, the California Supreme Court held that the wage levels of contract workers constructing locally funded public works are... municipal affair[s] and thus that the state prevailing wage law could not apply to those contracts. 3 While the legal impact of the decision remains uncertain, 4 the California legislature has taken legislative action to render the holding of Trades Council irrelevant by fiscally coercing charter cities into abiding by the prevailing wage law. 5 This legislation is now being challenged by a consortium of California charter cities on the grounds that it *589 violates the Municipal Affairs Clause. 6 This Comment argues that the court in Trades Council reached the right result, but the rationale of the decision was unpersuasive. The court s current Municipal Affairs Clause doctrine, which embraces a case-by-case analysis, is unworkable as a matter of judicial review and is at odds with the text, history, and political theory of the clause itself. The court has a constitutional duty to enforce the state s constitution as the supreme law of the state, and that duty cannot be faithfully discharged as long as the court s analysis is governed only by broad generalities that purport to bring a measure of certainty to a process characterized nonetheless by mercurial discretion. 7 If the court adopts an interpretation faithful to the state constitution, the result in Trades Council must be considered correct and the recent legislation designed to circumvent the state constitution must be found unconstitutional as well. 8 Part II reviews the history of home rule in California and the origins of the Municipal Affairs Clause. 9 Part III describes the development of the California Supreme Court s analytical framework for applying the clause. 10 Part IV describes the background of the Trades Council litigation, the issues considered, and the court s holdings. 11 Part V advocates a new rule consistent with the text, purpose, and political theory of the state constitution. 12 Part VI explains why the California Supreme Court should reconsider its approach to home rule cases and adopt the rule proposed in Part V. Part VII analyzes SB7 under both standards and demonstrates the superiority of the proposed rule. 13 II. THE HISTORY OF CONSTITUTIONAL HOME RULE AND THE MUNICIPAL AFFAIRS CLAUSE The California Supreme Court has acknowledged the importance of *590 history--specifically the history of conflict between 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

9 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev. 587 the state and local governments--for the application of the Municipal Affairs Clause. 14 Indeed, the clause itself is a product and a part of that history, and understanding its historical context is essential to constructing a better analytical framework. A. Dillon s Rule and the Right of Local Self-Government City and town governments have been a crucial aspect of the American political experience from the time of the first colonial settlements. 15 When Alexis De Tocqueville visited the young nation in the 1830s, he saw in the political life of the New England townships a form of liberty and self-government essential to the American character. 16 But the legal status of cities has been a matter of bitter contention in the United States, and the history of California s city governments is a chapter in that broader story. The legal and political conflicts over the status of city government often overlap, and conflicting political theories have produced conflicting legal doctrines. 17 The most widely accepted statement of the legal relationship between cities and state legislatures in America is the maxim known as Dillon s rule, 18 which states that the power of the legislature over [municipal] corporations is supreme and transcendent: it may erect, change, divide, and even abolish them, at pleasure, as it deems the public good to require. 19 Judge John Dillon, for whom the rule is named, believed strong legislative control of cities would protect private rights by allocating power to the body most likely to consist of talented, public-spirited individuals. 20 *591 But despite its confident assertion, Dillon s rule was an innovation in Anglo-American jurisprudence rather than a statement of the obvious or traditional rule. Though it was well established by the time of the founding that the chartered privileges of municipal corporations were secure from royal interference, 21 the relationship between the legislative power and the rights of cities under charters was an open question of law. 22 Opposition to Dillon s rule was most famously expressed in Justice Thomas Cooley s concurring opinion in People ex rel. Le Roy v. Hurlbut, which involved an act of the Michigan legislature organizing a powerful board of public works that essentially replaced the existing government of Detroit. 23 Cooley argued that the constitution of his state presupposed the prior and continued existence of local governments and could not reasonably be interpreted as permitting the abolition of that self-government. 24 He concluded that local government is [a] matter of absolute right; and the state cannot take it away. 25 He did not reject regulation of cities under general laws by the legislature, but he forcefully condemned special legislative interference in the exercise of local power. 26 The legislature s role, in Cooley s view, was simply to provide for the incorporation of local governments and to then allow them to function independently. 27 This legal alternative never gained widespread or sustained acceptance in the courts, but the political opposition to legislative supremacy gave rise to the adoption *592 of home rule amendments in state constitutions--including the Municipal Affairs Clause. 28 B. City Government Under the California Constitution of 1849 California was certainly no exception to the universal American experience that local governments... were either simultaneous with, or preceded, the more central authority. 29 Los Angeles, for example, was founded as a pueblo in the 1780s, over sixty years prior to the annexation of California by the United States. 30 When the American forces led by Commodore Robert Stockton captured Los Angeles in 1846 and Stockton declared the territory under American control, these governments were permitted to continue operating. 31 After annexation, the number of American settlers rapidly increased as miners came in search of gold. 32 This led to a great expansion of the number of town governments in the state as the miners in the camps established local systems of government for themselves--systems that included majority rule, trial by jury, protection of property rights, and nonviolent means of dispute resolution. 33 Despite this *593 history, it does not appear that the delegates to the first California Constitutional Convention gave much thought to the general structure of city government. 34 The resulting constitution said little on the subject: it exempted municipal corporations from the general rule that corporations must be formed under general laws rather than by special acts, 35 provided that the legislature shall establish a system of county and town governments, 36 and imposed on the legislature a duty to restrain municipal taxation. 37 In the absence of more specific textual guidance, the California Supreme Court adopted--or rather, assumed without argument--dillon s rule, holding that: [Cities and counties] are both political and geographical divisions of the State. They are both the subjects of its political dominion. The local governments derive their powers from the paramount political head, which, while it cedes to certain local agents certain powers, does not thereby remit its rightful and ultimate dominion Thomson Reuters. No claim to original U.S. Government Works. 3

10 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev. 587 Because cities and towns were understood to derive their existence and *594 powers from legislative acts, their decisions were subject to direct legislative intervention. 39 Some of the special legislation passed under the first constitution was comically trivial micromanagement. 40 In some instances, however, the interference was substantial. 41 In People ex rel. O Donnell, an early case, the attorney for the City of San Francisco argued that legislative interference in local affairs was never contemplated by the state constitution. 42 But the Court rejected that argument, and Dillon s rule became the law of the state. 43 The power to alter city charters at will led to a rash of special interest legislation that greatly increased the complexity of city charters and produced uncertainty. 44 The court even permitted the legislature to regulate city conduct on a case-by-case basis. 45 Because the court reasoned that cities were mere instrumentalities for the exercise of state power, the power of the legislature over cities was absolutely plenary. 46 *595 The court justified its broad interpretation of legislative power based upon the distinction between the federal constitution, which is one of limited grant, and the state constitutions, which are understood as limiting documents governing an otherwise plenary legislative authority. 47 In perhaps the most egregious case of the period, the court upheld an act of the legislature compelling the city of Stockton to donate $300,000 in bonds to the construction of a privately owned railroad and levy a tax to pay the principal and interest on the bonds. 48 The city was to acquire no financial interest whatsoever in the railroad; it was a pure donation. 49 The city issued the bonds but refused to levy the tax, and the railroad company sought a writ of mandamus to compel the levy. 50 In its decision, the court essentially admitted the venality of the legislature, devoting considerable space to an argument that the separation of powers prevented courts from intervening to overturn even such obviously corrupt legislation. 51 In the early 1870s, the court s acceptance of Dillon s rule faltered. 52 In the landmark case of Sinton v. Ashbury, the court announced the first meaningful limitation on the legislature s control of municipal corporations: while the legislature could appropriate city funds for municipal purposes it could not do so for purely private purpose[s]. 53 This limit, however, was narrow, and the court continued to apply Dillon s rule in subsequent cases. 54 *596 Finally, in People v. Lynch, 55 the court rejected Dillon s rule in favor of the doctrine expressed by Justice Cooley in Hurlbut. 56 In Lynch, the City of Sacramento attempted to assess a tax on real property benefitted by a public improvement, but did not do so consistently with the city charter. 57 To remedy this situation and ensure the collection of the tax, the state legislature itself passed an act levying the tax. 58 The majority accepted Cooley s genera! theory of state constitutions: that there are traditional, implied limitations on legislative power that must be assumed to have been intended by the public in ratification. 59 Further development of these limitations, however, was rendered unnecessary by the adoption of California s second constitution. C. Home Rule and the Constitution of 1879 The California Constitution of 1879 was created to remedy the shortcomings of the original constitution. 60 The convention was characterized by deep distrust of the legislature, which can be observed both in the debates and in the finished document. 61 The new constitution included five provisions that protected city governments from the *597 legislature, and taken together, are the basis of municipal home rule: 62 the prohibition of special legislation, 63 the prohibition of special incorporation, 64 the grant of a general police power to cities, 65 the requirement that local taxes be levied locally, 66 the prohibition of dividing municipal authority, 67 and the provision for freehold charters. 68 The effect of the first four clauses, taken together, was to prohibit micromanagement by the state legislature and limit it to passing general laws. 69 The subject of freehold charters was the cause of much debate over the nature and role of local government at the second constitutional convention. 70 One faction, which included several delegates from San Francisco and Los Angeles, was deeply skeptical of the legislature and strongly favored local autonomy. Their floor speeches included tales of egregious legislative abuse, 71 angry outbursts against centralized control, 72 *598 and passionate encomia to the virtues of local self-government. 73 This party advocated for the Freehold Charter Clause, which originally did not provide for any legislative oversight. 74 Another faction was suspicious of local governments, especially that of San Francisco. 75 When this faction found that it did not have the support necessary to strike out the clause entirely, it attempted to limit the clause s operation, subject it to legislative oversight, and make it less politically palatable. 76 Despite such opposition, the clause became part of the final constitution. 77 By subsequent amendments, it was restored more or less to the form of the original proposal. 78 D. The Municipal Affairs Amendment 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

11 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev. 587 The spirit of the 1879 constitution and the home rule provisions was *599 clear to the supreme court from the beginning: [i]t was manifestly the intention of... the [home rule provisions], to emancipate municipal governments from the authority and control formerly exercised over them by the Legislature. 79 The achievement of that goal was stalled, however, by the clauses stating that charter cities remained subject to all general laws. 80 In the case of Thomason v. Ashworth, 81 the court reasoned that this language permitted the legislature... to control the charters of all corporations by general laws, meaning that it could regulate cities as a class. 82 Despite acknowledging the implication of this ruling--that city charters were subject to any revision by the legislature so long as the revision applied to all cities of a class--the court maintained that the constitution allowed the legislature that power. 83 In later cases, the court held that a state law providing for police courts displaced similar courts organized under city charters. 84 The dissenters in Ashworth and the police court cases argued that the court s interpretation would frustrate the entire intent of the new constitution with regard to city charters. 85 The majority, however, was unwavering, and the rules of Ashworth and Henshaw were ultimately undone not by judicial construction but by constitutional amendment. In 1896, the people of California amended the Freehold Charter Clause *600 to provide that charters would not be subject to general laws concerning municipal affairs --the origin of the current Municipal Affairs Clause. 86 The Court s earliest holdings under the clause were narrow. 87 But a more comprehensive theory of the clause was finally required in Fragley v. Phelan, which considered a statute regulating election procedures for the ratification of freehold charters. 88 The court was unanimous in upholding the statute s application to charter cities but issued three separate opinions that expressed three different views of the Municipal Affairs Clause. 89 Justice Garoutte reasoned that municipal affairs were those matters which pertained solely to the internal affairs of the city. 90 This interpretation of the clause was very broad, encompassing all the internal affairs of a city, but those internal affairs did not include the ratification of a charter. 91 Justice Harrison believed that charter elections could in principal be a municipal affair but disposed of the case on the narrow ground that the San Francisco charter did not contain governing provisions on the subject. 92 Harrison seemed to allow that the exercise of any power granted to a city in its charter was a municipal affair. 93 Justice Temple, writing for himself alone, argued that the purpose of the municipal affairs amendment was clear: the people meant to undo the holdings of Ashworth and Henshaw. 94 Despite his *601 conclusion that the election was a municipal affair governed by the city s charter, he concurred in the application of the statute based upon the legislature s acceptance of the charter ratified in the election, arguing that the very fact the legislature had passed the charter into law was conclusive evidence that it made the proper investigation and found the requisite facts which would warrant its action --that is, that it was the charter framed by the city for its own government. 95 None of these opinions was joined by a majority of the court. 96 Despite this lively debate between three well-reasoned views, the most important early case attempting to construe the Municipal Affairs Clause was Ex parte Braun. 97 Braun dealt with the issue of whether a charter city could levy a license tax against sellers of liquor for the purpose of raising revenue rather than protecting the public health, safety, and welfare. 98 Rather than describe and resolve the split represented by Fragley, the majority vaguely asserted that the wording of the clause was broad enough to include all powers appropriate for a municipality to possess, and actually conferred upon it by the sovereign power. 99 Justice McFarland begrudgingly concurred in the judgment, insinuating that the amendment was the result of democratic excess and complaining that it uses the loose, undefinable, wild words municipal affairs, and imposes upon the courts the almost impossible duty of saying what they mean. 100 McFarland despaired of ever establishing a general definition and believed that subsequent cases would be decided on their own facts in an unprincipled fashion. 101 Chief *602 Justice Beatty dissented, arguing that the sole purpose of the Municipal Affairs Clause was to overrule the Ashworth line of cases. 102 The amendment was not intended to exempt charter cities from laws which applied to all the people of the state, and Beatty would have upheld the statute as a general law. 103 Subsequent cases did not provide a single, coherent view of the Municipal Affairs Clause in which the court as a whole concurred. 104 As the law developed, the necessity of all powers being laid out in the city s charter gave rise to bulky and sometimes complicated charter[s] and frequent amendments. 105 To mitigate this problem, Professor William Jones recommended an amendment to the constitution to rephrase the Municipal Affairs Clause as an affirmative grant of local power rather than a limitation on state power. 106 That amendment was adopted by the people in 1914, 107 and courts have subsequently held that charter cities receive, by default, the entire power available under the constitution over municipal affairs and charters now serve as documents of limitation. 108 The modern court s interpretation of the municipal affairs doctrine, while it draws on the language of these early cases, represents a substantial departure from their principles. III. THE MODERN INTERPRETATION OF THE MUNICIPAL AFFAIRS CLAUSE 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

12 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev. 587 A. The Growth of the Statewide Concern Doctrine After Braun, the municipal affairs authority of charter cities gradually became subject to certain limitations of indefinite dimensions. 109 The key limitation was that if a statute affect[ed] a municipal affair only incidentally in the accomplishment of a proper objective of state-wide concern it would *603 preempt a charter provision. 110 The courts initially used the phrase matter of statewide concern as the opposite of the term municipal affair. 111 But later the court held that an issue might be a municipal affair in the general sense yet not exclusively of municipal concern and thus not a municipal affair within the meaning of... the Constitution 112 When the Constitution Revision Commission evaluated the local government provisions in the 1960s, Professor Arvo Van Alstyne suggested that such cases continued to be decided in pragmatic, policy-oriented ways and that the doctrine should be recognized for what it is--an effort by the court in a particular case to allocate the governmental powers under consideration in the most sensible and appropriate fashion. 113 B. The Federal Savings Analysis Eventually, in California Federal Savings and Loan Association v. City of Los Angeles, the court took Professor Van Alstyne s suggestion. 114 In Federal Savings, the City of Los Angeles sought to apply its annual business license tax to the California Federal Savings and Loan Association despite a statute in the California Revenue Code declaring the state income tax on such corporations exclusive of all other taxes, including license taxes levied by charter cities. 115 The court held that, while the tax did concern a municipal affair, aspects of local taxation may under some circumstances *604 acquire a supramunicipal dimension, transforming an otherwise intramural affair into a matter of statewide concern warranting legislative attention. 116 Noting the extensive regulatory regime governing savings and loan associations, the legislature s purpose in passing the law, and the history of Los Angeles license tax, the court reaffirmed its decision in Braun that local taxation was unquestionably a municipal affair. 117 Despite this characterization, the court held that a matter so crucial to the statewide economy could be subject to legislative control despite being a municipal affair. 118 The case law on the Municipal Affairs Clause had, in the court s view, come to embody a dialectical approach that resisted the categorical separation of government into municipal affairs and statewide concerns. 119 The court stated that in Municipal Affairs Clause cases it s role is to balance the city s interests and those of the state on a case by case basis. 120 But this procedure, though characterized by a sometimes mercurial discretion is to be constrained by a decisional procedure with three essential steps: (1) determine that a subject constitutes a municipal affair ; (2) determine the existence of an actual conflict between the state law and the charter city law, and; (3) determine whether the state law at issue is necessary to address a matter of statewide concern. 121 IV. THE PREVAILING WAGE LAW AND TRADES COUNCIL A. Legal Background The California Labor Code requires that all public works contracts provide for the payment of the local prevailing wage. 122 Wage support *605 programs for employees working on public works projects have been a part of California law since at least 1897, 123 but the legislature first adopted a modern prevailing wage law, known as the Public Wage Rate Act, during the Great Depression. 124 Shortly after the statute was passed, the court held in City of Pasadena v. Charleville that it could not be applied to charter city when it contracted to improve a city-owned, city-operated facility using only the city s money. 125 Because the wage rate on such projects was a municipal affair, the court reasoned that the state law could not control, creating a case-specific exemption for charter cities. 126 Decades after Charleville was decided, however, a split of authority developed in the court of appeal, and that holding was called into question. 127 *606 B. Facts and Procedural Background The people of Vista, a mid-sized city in San Diego County, approved a 0.5% sales tax increase for the purpose of constructing and renovating a number of public buildings. 128 In order to reduce costs associated with these projects, the city--on the advice of the city attorney--took steps to become a charter city, planning to avoid the payment of prevailing wages. 129 The charter was ratified by the people and the city passed an ordinance providing that no city contract would require the payment of the prevailing wage unless: (1) the terms of a state or federal grant required it, (2) the contract did not involve a municipal affair, or (3) the city council separately authorized the payment of the prevailing wage. 130 The city then entered 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

13 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev. 587 into several construction contracts that did not comply with the state s prevailing wage act. 131 The State Building and Construction Trades Council, a large construction industry union, sought to compel compliance with the act by writ of mandate. 132 In support of its argument for the application of the law to charter cities, the union submitted a declaration by its president asserting the regional nature of the construction industry and describing apprenticeship training in that industry. 133 The trial court denied the writ. 134 The court of appeal affirmed in a divided decision, and the union appealed to the supreme court. 135 C. Holdings and Dissents 1. The Nature of the Analysis The court held that the city charter provision superseded the state law with regard to the contracts at issue, applying the Federal Savings analysis, the general terms of which the dissenters did not object to: *607 First, a court must determine whether the city ordinance at issue regulates an activity that can be characterized as a municipal affair. Second, the court must satisfy itself that the case presents an actual conflict between [local and state law]. Third, the court must decide whether the state law addresses a matter of statewide concern. Finally, the court must determine whether the law is reasonably related to... resolution of that concern and narrowly tailored to avoid unnecessary interference in local governance. If... the court is persuaded that the subject of the state statute is one of statewide concern and that the statute is reasonably related to its resolution [and not unduly broad in its sweep], then the conflicting charter city measure ceases to be a municipal affair pro tanto The opinions of the court, however, reflected a conflict about the nature of this analysis. The majority emphasized that the analysis is a question of law, finding that the court of appeal erred in emphasizing the factual record and the Union s failure to prove the statewide economic impact of the prevailing wage law. 137 Justice Liu, in dissent, criticized the majority for emphasizing this point so strongly, sarcastically noting that despite its insistence that the issue is a matter of law, no clear legal principle emerges from the majority opinion. 138 The court also divided concerning the factors used to weigh state and local interests. The majority found that the economic argument for a statewide response was unpersuasive given that the law only applied to public agencies and was not a general minimum wage law of the kind the legislature could rightly enact. 139 Justice Liu objected to this argument, arguing that while a law of more general application would have an even *608 better claim to touching a matter of statewide concern the legislature should not be precluded from using market mechanisms to achieve its goal by leveraging the substantial role that public works projects play in the market. 140 The majority also distinguished between procedural requirements and substantive requirements--the latter of which, being more intrusive, would less likely be found to be a matter of statewide concern. 141 Because the prevailing wage law governed the substance rather than the procedure of public works contracts, it was more suspect under this rule. 142 Justice Liu disagreed with this assessment of the relevant precedent, arguing that while procedural regulation was subject to more permissive scrutiny it could not therefore be concluded that substantive regulation received especially strict scrutiny. 143 The majority also rejected the argument that, while charter cities had plenary authority to determine the wages of their public employees, the wages paid by their private contractors were a matter of statewide concern, finding that the distinction was irrelevant. 144 Justice Werdegar objected that the distinction was deeply relevant, because the contractor s employees are not even city employees and thus are very far removed from core municipal affairs. 145 These differences in analysis reflect different understandings of the logic of the Federal Savings rule and illustrate the need for a more coherent standard. * The Precedential Value of City of Pasadena v. Charleville In determining that the wage rates in the contracts were municipal affairs, the court relied on the authority of City of Pasadena v. Charleville. 146 The court emphasized two specific features the Vista ordinance shared with the ordinance in Charleville: it concerned only city facilities and excluded contracts that received state or federal funding or were otherwise matters of statewide concern. 147 The dissent argued that Charleville should be overruled and that its legal and factual bases had been eroded by time. 148 Both Justices Werdegar and Liu interpreted Charleville as relying on the theory of Adkins v. Children s Hospital. 149 That case, and by extension Charleville, represented to the dissent a thoroughly discredited 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

14 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev. 587 conception of constitutional limitations on economic legislation. 150 This argument contains two fundamental mistakes: the failure to recognize that the citation of Adkins in Charleville was dicta, and a misapprehension of the issue in Trades Council. In Charleville, the court cited Adkins for the proposition that a prevailing wage law of general application would present constitutional questions, explaining why the legislature applied the law only to public works projects. 151 But the reason why the legislature wrote the law in that way was irrelevant to the holding and rationale of the case. The Charleville court made its decision solely on the basis that the wages paid on public works constituted a municipal affair. 152 Furthermore, the law at issue in Trades Council was not a minimum wage law, which the state has specific constitutional authority to enact. 153 It governs only the wages to be required by public agencies through *610 their contracting process. 154 Such legislation is not within the state s constitutional power, however laudable its intention, and Adkins has nothing to do with that conclusion. However, the use of Charlevtlle obviated the need for the court to determine whether wages paid under public works contracts constituted a municipal affair. Therefore, the court only discussed whether a statewide concern existed sufficient to allow state regulation in spite of that conclusion. 155 But this analysis, described in terms of balancing between competing interests, obscures the true purpose of the municipal affairs doctrine. While the court characterized the state interest as merely abstract, the true rationale was that city funds should be used as the city pleases: [T]he question presented is whether the state can require a charter city to exercise its purchasing power in the construction market in a way that supports regional wages and subsidizes vocational training, while increasing the charter city s costs. No one would doubt that the state could use its own resources to support wages and vocational training in the state s construction industry, but can the state achieve these ends by interfering in the fiscal policies of charter cities? Autonomy with regard to the expenditure of public funds lies at the heart of what it means to be an independent governmental entity. 156 This argument has merit, but the court should provide a general construction of the clause that relies on such arguments rather than an unguided balancing of interests. * The Role of Legislative Findings The most contentious issue in Trades Council was the degree of deference courts should give to a legislative finding that a subject constitutes a matter of statewide concern. 157 The court acknowledged that the legislature had determined public works wage rates to be a statewide concern, 158 but relied on a variety of cases to support the proposition that such a Finding was not determinative. 159 However, the court continued to acknowledge the rule that it must accord great weight to such a determination by the legislature. 160 The dissenting justices differed with the majority about the degree of deference the legislature should be given, and would have upheld the law on the theory that the case was close and that doubts must be resolved in favor of the legislature because of the severity of a constitutional ruling. 161 The majority did not question the principle of deference itself; it only limited its deference on the principle that courts should be especially hesitant to defer to the legislature when... the issue involves the division of power between local government and that same Legislature. 162 Clearly, such hesitation is well justified. But in light of the fact that all cases under the Municipal Affairs Clause concern the division of power between local government and the legislature, what justification remains for any deference at all? These ambiguities demonstrate the need for a settled rule that may be consistently applied by courts without resort to inherently political judgments about which interest is less abstract, which necessarily becomes a judgment about which policy is more important--a political rather than a justiciable question. 163 *612 V. THE CONSTRUCTION AND APPLICATION OF A SETTLED RULE The court has approvingly cited Justice McFarland s exasperated complaint that the constitution uses the loose, indefinable, wild words, municipal affairs, and imposes upon the courts the almost impossible duty of saying what they mean. 164 Indeed, the court seems to have completely abandoned the attempt to articulate a principled definition of municipal affairs. 165 This cannot stand. In light of the judiciary s function within our system of government, the court should adopt a settled rule for the application of the Municipal Affairs Clause. That rule should be faithful to the text and the structure of the state constitution and grounded in the history and political theory of the clause Thomson Reuters. No claim to original U.S. Government Works. 8

15 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev. 587 A. Legislative Findings and the Role of the Courts The majority in Trades Council, while accepting that the court should give great weight to legislative findings of a statewide concern, insisted that such deference was limited and that the court remained the final arbiter of the issue. 166 Even this falls short of the court s constitutional duty. The history of constitutional home rule makes clear that the primary motivation for dividing the state s sovereignty was distrust of the legislature. 167 And while the legislature represents the will of the people of California, the constitution does as well. 168 While [i]t is not a light thing to set aside an act of the legislature, 169 the court has a duty to uphold the constitution. 170 The *613 court, under the constitution, has ample power to police the use of legislative authority and preserve the core meaning of municipal home rule, and it is obliged to do so. 171 The court should clearly affirm that the legislature has no place in determining the extent of its own constitutional power and adopt a clear, readily applicable construction of the Municipal Affairs Clause. The formulation of that construction must begin with the text. B. The Text of the Clause: All Means All Legal interpretation begins with the text of the instrument to be construed. 172 The term municipal affairs is notoriously ambiguous, 173 but even an ambiguous phrase must be given a meaning which the that will bear. 174 This precludes the court s understanding--finally articulated in Federal Savings but nascent in the cases following Braun--that a subject may constitute a municipal affair but still be subject to state preemption if it also constitutes a matter of statewide concern. 175 This simply cannot be the meaning of the text, because the text clearly states that with respect to municipal affairs, charter provisions shall supersede all laws inconsistent therewith. 176 At the time the clause was added, the word municipal, as a legal term of art, denoted simply that which belongs to a corporation or a city... includ[ing] the rules or laws by which a particular district, community, or nation is governed. 177 The word affairs is a word of much wide[r] import, and is even broader than simply business. 178 This text will bear a number of different meanings. It could bear a meaning as narrow as a municipal version of the corporate internal affairs doctrine. 179 It could also bear a meaning as broad as all powers appropriate for a municipality to *614 possess and actually conferred upon it by the sovereign power. 180 But grammar itself forbids construing all laws inconsistent therewith 181 to mean all laws not touching matters of statewide concern. But the term municipal affairs predates the 1896 amendment adding the clause to the constitution, and its use in case law is instructive. 182 In 1871, when California still applied Dillon s Rule, the court used the phrase to describe the range of purposes for which the legislature may use city funds. 183 In 1875, when the court held there was a right to local self-government, it used the term similarly, equating it with matters of purely local concern. 184 After the passage of the 1879 Constitution, the term continued to be used. 185 It was used in one case to mean anything pertaining to the corporate structure or governance of the city. 186 Whatever may be concluded from these instances, this much is clear: the term is, as Justice Harrison wrote, one of wide import and seems to embrace nearly everything a city does that is of public importance. 187 But the early case law definitions are not the only--or even the best--resources available to the court. *615 C. The Purpose of the Clause: Local Laws and General Laws When constitutional text is not clear, the interpreter should have recourse to the structural purpose of the provision in question. 188 The case law interpreting the amendment itself prior to Justice McFarland s surrender of the interpretive enterprise in Ex parte Braun provides useful insights into the structural purpose of the amendment. 189 After the amendment, the court clearly stated what it took to be the intent of the amendment: [I]t had been believed by the legislature and by the people that it would be wiser to relieve charter cities from the operation of general laws affecting municipal affairs, lest otherwise there would be danger of the charter provisions being entirely frittered away. D 190 Among the early theories proposed concerning what the people intended when they passed the Municipal Affairs Clause, there was broad agreement that they intended to correct something that had gone wrong in the interpretation of the Constitution of 1879 itself. 191 For that reason, the court continued to hold that the purpose of the municipal affairs language was to further restrict the legislature from interfering in matters that concern cities under the guise of laws general in form. 192 In Fragley v. Phelan, the justices articulated two cogent constructions of the Municipal Affairs Clause based upon the political context and intent of the amendment--neither of which was discussed by Justice McFarland in Braun or the court in Federal Savings Thomson Reuters. No claim to original U.S. Government Works. 9

16 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev. 587 The first theory, advanced by Justices Garoutte and Harrison, was that the phrase is of wide import and encompasses all of the matters which are *616 committed to the city s control. 194 On this view, the municipal affairs of a city comprise alt of the things provided for in its charter. 195 This view is based on the notion that a charter is a negotiated settlement between the city and the state legislature, and that the legislature by approving the charter has part[ed] with a portion of its sovereignty and granted it to the city. 196 This theory has some appeal because it is simple to apply: if a power is in the charter--a document that a court can read--it pertains to a municipal affair. However, whatever viability this theory once had was eliminated with subsequent amendments that rephrased the clause in terms of a general grant of power to cities rather than a limit on the legislature and removed the legislature from the ratification process. 197 Because of the 1914 amendment, the text of city charters no longer provides greater interpretive guidance than the phrase municipal affairs itself. 198 Additionally, the later amendments that removed the legislature from the process make it difficult to speak of the legislature as having part[ed] with a portion of its sovereignty. 199 The other view presented in Fragley is that of Justice Temple, who believed the people intended only to undo the holdings of Ashworth and Henshaw. 200 This view is immediately attractive because it, like the modern case law, does not rely solely upon the words themselves, which convey!) no definite meaning to [the] mind. 201 Instead, it provides a definite, ascertainable meaning for the clause based upon its context: the author of the amendment had in mind the contention of the justices who dissented from the established doctrine. 202 The doctrine of those dissenters is clear from their opinions. 203 It is rooted in the common law distinction between *617 general laws or general customs and local laws or particular customs--the former operating on all persons and in all places within the territory of the state and the latter applying only in particular places. 204 According to Justice McKinstry, the entire structure of the constitution of 1879 was designed to favor local power on questions of local custom and law. 205 Under this view, a state law may only be applied within a charter city if it is capable of being applied throughout the entire territory of the state, which would include laws relating to the general rights and duties of citizens, the administration of the courts, and all other laws that apply beyond as well as within the boundaries of cities. 206 Furthermore, under this construction, the state is empowered to take action through general laws, but that action does not preclude municipal action through local laws pertaining to the very same matter, provided the two are not contradictory. 207 While cases would arise under this rule requiring elaboration of the local-general distinction, such elaboration could be guided by reference to the political theory of the clause. D. The Theory of the Clause: Localism and Federalism In addition to being textually permissible and historically plausible, the court s interpretation of the Municipal Affairs Clause should preserve the core political commitments of constitutional home rule. 208 Previous scholarship has tended to see constitutional home rule as an innovation in state government rather than a foundational political principle like federalism. 209 This common assumption, however, is not historically *618 justified. In fact, Dillon s rule itself was an innovation, though its proponents asserted it as though it were the historically understood rule. 210 Federalism and home rule are, in fact, analogous. The essence of federalism is that powers are divided between the state and national governments based not solely on the territory covered but also on the subjects that may be regulated. 211 The system is fundamentally anti-hierarchical, based on covenant[al] principles that see the proper political organization as a matrix with larger and smaller arenas but not higher and lower. 212 And it is eminently practical--power is made to reside where it will be needed while preserving the authority of other entities in the system. 213 The foundation of this covenantal, federal system is the pre-existence of the state governments; while the people of the entire United States are collectively sovereign, 214 the Constitution was written in the context of preexisting states, which--while forming an indissoluble union-- did not part with their independent existence when the national government was created. 215 Despite the mistaken opinions *619 of those courts that view cities as always and everywhere creatures of the state, the same relationship of preexistence and indissolubility exists between the states and the cities within their territory. 216 In California, the court has explicitly recognized this pre-existing tradition of local government 217 and the resulting relationship between the sovereign people, the state, and cities: It is of course true that [municipal affairs]... may at all times be controlled by the sovereign power. But it does not follow that the legislative department of the state may so control it... The state constitution is... the highest expression of the will of the people of the state, and so far as it speaks, represents the state. So, where... power is given in the constitutional method by special charter, and not by direct legislative enactment, it can be withdrawn only by amendment to the charter in the manner provided by the constitution. 218 The implications of divided sovereignty are not always obvious, even in the context of federalism. 219 However, the American 2015 Thomson Reuters. No claim to original U.S. Government Works. 10

17 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev. 587 legal tradition is replete with examples of courts parsing the meaning of federalism and its legal implications. Because the political theory of home rule is analogous to that of federalism, several of these legal doctrines are useful in illuminating the Municipal Affairs Clause. The municipal affairs doctrine is clearly analogous to the traditional state functions doctrine of National League of Cities v. Usery. 220 The terms *620 municipal affairs and traditional governmental functions both rely for their meaning on the nature of the entity whose independence is being protected--a thing is a municipal affair if it is properly handled by a municipality, 221 and a thing is a traditional governmental function if it is handled traditionally by the states. 222 In National League, the United States Supreme Court held that the federal Fair Labor Standards Act could not be applied to state governments. 223 The Court based its decision on what it took to be an established principle that the power of Congress to override state sovereignty, even when exercising its otherwise plenary powers to tax or to regulate commerce has limits. 224 These limits include the principle that the states integrity and ability to function as separate governments must be respected. 225 The Court held that, under the Tenth Amendment, states retained the freedom to structure integral operations in areas of traditional governmental functions absent a particularly compelling federal interest. 226 This legal doctrine, designed to protect state autonomy within the federal system, has been abrogated, and the Court has left the protection of traditional state functions to the national legislative process. 227 The notion of traditional state functions proved too nebulous for the courts to properly enforce, 228 and more importantly--though it supposedly derived from the Tenth Amendment--the doctrine did not have a textual basis. 229 The municipal affairs doctrine, however, is explicitly present in the text of the *621 state constitution. 230 Whether or not Justice Cooley was correct that the framers of state constitutions never intended to give up local control of local affairs, it is clear, in California at least, that the people intended to take such power back. 231 Furthermore, the common law distinction favored by the Ashworth and Henshaw dissenters is much more workable than the National League doctrine. The rule is abstract and based on the territorial reach of legislation rather than ad hoc divisions of labor based on competing interests, which means it will not become obsolete as governmental practices at the state and local level develop. If the California Supreme Court were to adopt such a rule, a doctrine similar to that of National League, based on ascertainable historical facts about state and local government, should be employed to clarify the distinction. Another useful doctrinal analogy between home rule and federalism is the rule that, while Congress often is possessed of the constitutional authority to regulate a matter that is within the competence of a state, it may not simply commandeer the machinery of the state government to do so. 232 It may set up its own enforcement regime or it may provide incentives for the states to comply, but it may not compel the states to act. 233 While the no-commandeering doctrine is not directly stated in the text of the constitution, it is plausible as a legal doctrine because of the intuition that a government without control of its own internal processes and officers is not a separate government at all. 234 Commandeering is an apt description for the kind of legislative control exercised over California s city governments under Dillon s rule, and the California Supreme Court made clear that this commandeering was based on a political theory--that cities were not legitimate, separate institutions of government but merely arms of the *622 state. 235 The people of California, however, rejected that political theory when they affirmed that a city may frame a charter for its own government which shall become the organic law thereof. 236 Just as the people of a state have the right to operate their own government and have the integrity of that government respected by the nation, the people of a city have the right to operate their own government and have the integrity of that government respected by the state. 237 But the federal government is not without recourse to set policy at the state level in pursuit of federal interests. The Supreme Court has acknowledged Congress s broad authority to place conditions on the use of funds it provides under its power to tax and spend for the general welfare. 238 This power to set conditions permits the federal government to influence state policy so long as it does not dragoon!] the states with punitive and coercive conditions. 239 Just as the no-commandeering doctrine does not leave the federal government without a role in setting state policy, the analogous principle of home rule does not leave the statewide government without a role in setting local policy. The California Supreme Court has made clear that the state has an interest, sufficient to render a charter city subject to general laws, in deciding how state money is spent. 240 The authority of the state to dictate local policy in charter cities, however, depends upon an implicit bargain in which the charter city agrees to exercise its authority over municipal affairs in a particular way and the state agrees in turn to provide the necessary funds. 241 If the state does not provide the *623 funds, the city has the prerogative of deciding how it will use its own money Thomson Reuters. No claim to original U.S. Government Works. 11

18 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev. 587 These doctrines, derived from the nature our federalist system, are applicable by analogy to the law of municipal home rule. Just as the United States Supreme Court once held that the independent sovereignty of the states prevented Congress from regulating them as states 243 the California Constitution s protection of cities as independent entities should be construed to inhibit[]... any legislation which would directly affect cities and towns as municipal corporations. 244 The state legislature must legislate by general laws rather than laws general in form, which serve only to nullify the political choices embodied in city charters. 245 Just as the United States Supreme Court continues to hold that the states may not be commandeered by Congress to achieve its ends through them, it should also be taken as a clear implication of the independent existence of cities under the California Constitution that they may not be commandeered by the legislature and compelled to fulfill its purposes for it. 246 And finally, just as the United States Supreme Court has held that Congress s power to regulate the states through spending conditions is limited, 247 the California Supreme Court should limit the state s power to regulate cities through spending conditions by requiring a direct connection between the funds being granted or denied and the condition being exacted. 248 The court should employ these doctrines, along with the common law distinction between local and general laws, which taken together provide a coherent doctrine of municipal home rule. *624 VI. THE CASE FOR CLARITY A. Principle: The Separation of Powers and Political Accountability Replacing the Federal Savings analysis with the rule suggested here would confine the legislature to its constitutionally intended role and give the courts a firm basis for restraint of the mercurial discretion that has unfortunately characterized home rule doctrine. 249 The design of the state constitution, as understood by its drafters, calls for the legislature to play a limited role, especially in local issues. 250 Many of the drafters even understood the restriction of legislative involvement in local issues to be the entire purpose of the convention. 251 They envisioned a legislature which devoted itself to the perfecting of the Codes and the decision of general questions about the rights and obligations of citizens, leaving matters of local concern and city government in the hands of cities. 252 The distinction between general laws and local laws would encourage that division of labor, and the democratic accountability it strengthens, by requiring the legislature to act through its own broad regulatory power rather than politically insulating itself by commandeering the apparatus of local government. Furthermore, by applying this distinction even-handedly, the courts could relieve themselves of the obligation to adjust[] the conflict between state and local governments on [each case s] own facts without guidance from the constitution and confine itself to applying workable legal standards. 253 B. Practicality: Cooperative Localism In June of 1978, the people of California enacted the Jarvis-Gann initiative constitutional amendment, commonly known as Proposition 13, in response to excessive local property taxes that steadily rose due to inflationary pressures on the real estate market. 254 When the legality of the initiative was tested in the supreme court, a school district unsuccessfully asserted that it was unconstitutional as a fundamental change to the basic *625 governmental plan of the constitution, which had to be initiated by the legislature. 255 While the court rejected the district s argument, 256 a major change in California government did result from Proposition 13: state funding of local government increased to substitute for the funds lost as a result of the limitations. 257 In light of this fiscal reality, the direct impact of Trades Council on the state and local power relationship will be minimal, because the holding of the case only applies to projects funded entirely out of local revenues. 258 But the indirect impact of reviving the original, textual meaning of the Municipal Affairs Clause would be to preserve the possibility of local independence. Some scholars of cooperative federalism have argued that the states are able to participate in the creation of policy despite the growth of the federal government primarily because they are capable of withdrawing their support and making implementation more difficult. 259 This kind of give and take, which Professor Heather Gerken calls uncooperative federalism, has enabled the states to resist and modify federal policy delegated to them for enforcement. 260 The ability of a peripheral government to resist central authority, according to Gerken, derives partly from the impracticality of the central authority micromanaging the enforcement. 261 But an additional source of potential influence derives from the split nature of the state official s loyalties and the dual sources of his power. 262 The state official is answerable to the state electorate as well as the federal government, and he may draw upon the political and monetary resources of the state to support his resistance to 2015 Thomson Reuters. 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19 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev. 587 federal power. 263 Both of these sources of power would be nullified, however, if the federal government was capable of commandeering *626 the machinery of the state government to achieve its purposes in strict detail. 264 The state official would have no resources to employ that the central authority could not simply take from him or compel him to use in the way it sees fit. 265 The same fate would befall cities if the courts do not sustain their right to withhold their cooperation from state programs like the prevailing wage law for their own reasons. VII. TRADES COUNCIL AND SB7 The California Supreme Court, applying the Federal Savings analysis, found that the Public Wage Rate Act could not be enforced against a charter city. 266 What remains unclear is whether it would find SB7 unconstitutional under that analysis. However, if the court adopted the rule proposed in this Comment, derived from the text, purpose, and theory of the clause itself, both cases would be clear. The court should hold that the Public Wage Rate Act could not be enforced against a charter city because it would be an unconstitutional commandeering of the city government s contracting authority. And it should hold that SB7 is unconstitutional because it is a coercive and punitive funding condition intended to dragoon charter cities into compliance. A. The Legislative Overreach of SB7 On October 13, 2013, Governor Brown approved Senate Bill 7, a legislative response to the holding in Trades Council. 267 The statute was passed specifically in response to that case 268 and provides that [a] charter city shall not receive or use state funding or financial assistance for a construction project if the city has a charter provision or ordinance that authorizes a contractor to not comply with the provisions of this article on any public works contract. 269 The statute also repeats the economic justifications for the prevailing wage law, citing the enhancement of wages and training opportunities to support the construction industry and maintain *627 middle-class jobs. 270 It asserts that some charter cities do comply with the prevailing wage law and that those cities provide a state-wide benefit that justifies providing funding to them only and not to cities that do not. 271 This is referred to as a financial incentive 272 and asserted to be a minor and justifiable burden. The League of California Cities disagrees. When the governor signed the bill, the League issued a press release declaring that the important issue is not the value of the prevailing wage law but whether the legislation undermines the constitutional powers that California voters more than 100 years ago conferred on charter cities and their voters alone. 273 That is the issue, and the resolution of that issue may turn on how the court articulates the applicable law. B. Analyzing SB7 Under Federal Savings The first issue in applying the Federal Savings analysis to the statute is whether it can be characterized as a municipal affair. 274 Because it purports only to determine which cities the state wishes to provide funds to, the state may argue that no municipal affair is involved. Just as the use of municipal funds is a municipal affair, the use of state funds is a matter of statewide concern. 275 However, to assert that this statute is merely about legislative funding priorities is pure chicanery. The only way it affects the state s spending priorities is to make the implicit judgment that coercing charter cities into foregoing their constitutional authority is a higher priority than distributing public works funding according to actual infrastructural needs. For this reason, the court should find, even under the Federal Savings analysis, that the statute concerns a municipal affair. It is clearly intended to overturn Trades Council s holding by statute, and to allow it to do so would be to subordinate the state constitution to the legislature. But the legislature does not always broadcast its intent to undo a *628 constitutional decision as it has done in this case. 276 Applying the rule proposed in this Comment, the court could protect constitutional home rule even in a less clear case. C. Analyzing the Public Wage Rate Act Under the Proposed Rule If the court had applied the proposed rule in deciding Trades Council, the result would have been the same. The application of the Public Wage Rate Act to charter cities would be unconstitutional for two reasons. First, the prevailing wage law, as applied, would constitute a local law. At first glance, it may appear that the act is a general law, because it concerns contractual obligations--a valid subject of general legislation. 277 But the act does not in fact concern the law of contracts, it 2015 Thomson Reuters. No claim to original U.S. Government Works. 13

20 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev. 587 concerns government contracts qua government contracts--the ways in which government contracts differ from private contracts. 278 The rationale of such legislation is not to enable bargaining between market participants, but to restrain public market participants so that government contractors [are] not... allowed to circumvent locally prevailing labor market conditions by importing cheap labor from other areas. 279 The case is distinguishable from the statute upheld in Ex parte Braun, because while that law established the right of all persons within the state to be free of taxation upon their occupation, the Prevailing Wage Act directs the actions of public agencies only and has no general application to all the people of the state. 280 As applied to state agencies, it is clearly a general law, applicable beyond the territory of any city. But as applied to charter cities, it is merely a law general in form 281 that concerns the internal affairs of the city and thus falls within the *629 narrowest proposed definition of municipal affairs. 282 The act is also unconstitutional under the rule against commandeering. Even the Trades Council dissenters admitted what in substance the prevailing wage law does: [T]he Legislature has chosen to influence [construction industry] wages through the market-based approach of directing the purchasing power of public entities to support union-level wages... [This] represents a legislative judgment that direct regulation of private labor markets is not necessary to accomplish the statute s goals given the substantial role that public works projects play in influencing private sector construction workers wages and in supporting apprenticeship programs. 283 This is the real issue regarding the Prevailing Wage Act. While the state may choose to use its own money to achieve its economic policy goals rather than enact burdensome regulation on the private sector, it may not choose to use the resources of another government to achieve those goals. 284 Freedom from this kind of commandeering is the heart of what it means to be an independent governmental entity. 285 As the League of California Cities has argued, 286 the state asserts this very principle when defending its own independence, as demonstrated by its recent complaint against the United States Department of Labor. 287 In its complaint, the state accuses the federal government of presenting California with a Hobson s choice--change its pension reform legislation or forgo more than $1 billion of federal transit funds, which undermine[s] the independent fiscal and legislative sovereignty of California In that case, the state correctly ascertains the issue: Only California elected officials may spend California s money. 289 The same principle applies to charter cities. *630 D. Analyzing SB7 Under the Proposed Rule Because the holding of Trades Council applies only to projects funded entirely without state support, the legislature is fully capable of achieving its substantive goal by working cooperatively with local governments and providing the funds necessary to pay the higher wage rates. 290 But SB7, the recently passed legislation designed to enforce the prevailing wage law against charter cities, opts instead for fiscal coercion--withholding revenue from taxes paid by all taxpayers unless the city capitulates to terms the state could not have forced on them by statute. Applying the restriction on funding conditions set by Congress, the Supreme Court recently found a similar provision unconstitutional. 291 The California Supreme Court, in defending a similar constitutional doctrine, should reach a similar result. For the state to legitimately place conditions on funds, those conditions should actually relate to the use of the funds. VIII. CONCLUSION While it protected the home rule autonomy of the City of Vista in Trades Council, the California Supreme Court continues to interpret the Municipal Affairs Clause in a case-by-case fashion that undermines certainty and the rule of law. 292 Justice MacFarland s prophecy in Ex parte Braun has proven self-fulfilling, and the court since Federal Savings has not attempted to ground its analysis in the clause itself. 293 Instead, it gives deference to the legislature and decides each case on its own facts. 294 But the history of California s constitution demonstrates that it was skepticism of the *631 legislature and the desire for settled, clear, and expansive protection of local self-government that motivated the creation of the Constitution of 1879 and the Municipal Affairs Amendment in The court once attempted to interpret the clause based upon the people s intent, and it may do so again. 296 Guided by the text, purpose, and political theory of the Municipal Affairs Clause, the court has the obligation to preserve California s system of divided sovereignty and ensure that the people s right to local self-government is preserved by the constitution they have framed for its preservation Thomson Reuters. No claim to original U.S. Government Works. 14

21 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev. 587 Footnotes a1 Editor-in-Chief, Pepperdine Law Review; J.D. Candidate, 2014, Pepperdine University School of Law; B.A., 2010, Biola University. I would like to thank the faculty of the Pepperdine University School of Law, for their instruction and support; the membership of the Pepperdine Law Review, for their tireless work and collegial spirit; and Lydia Plett, for her excellent editing and constant encouragement. Any errors are, of course, my own. 1 CAL. CONST. art. XI, 3(a). 2 CAL. CONST. art. XI, 5(a) ( City charters adopted pursuant to this Constitution[,]... with respect to municipal affairs[,] shall supersede all laws inconsistent therewith. ); see also JOSEPH R. GRODIN, CALVIN R. MASSEY & RICHARD B. CUNNINGHAM, THE CALIFORNIA STATE CONSTITUTION 204 (Oxford Univ. Press 2011) (describing this doctrine as the heart of the concept of home rule, a philosophy of local government autonomy employed in many states as a (limitation on) the powers of a state legislature ) [hereinafter GRODIN ET AL.]. 3 See State Bldg. & Constr. Trades Council of Cal. v. City of Vista, 54 Cal. 4th 547, 558 (2012). See generally infra notes and accompanying text (discussing the history of the prevailing wage law and related cases). 4 See People v. Nguyen, 222 Cal. App. 4th 1168, 1187 (2014), petition for review filed (Feb. 18, 2014) (citing a dissenting opinion from Trades Council to support the proposition that close cases must be decided in favor of the legislature); People v. Godinez, G047657, 2014 WL (Cal. Ct. App. Jan. 10, 2014) (unpublished), petition for review filed (Feb. 18, 2014) (same); Stitt v. S.F. Mun. Transp. Agency, 12-CV-03704, 2013 WL (N.D. Cal. Jan. 8, 2013) (commenting that Trades Council specifically left open the question of whether state minimum wage laws of broad general application could also be superseded by a local enactment that conflicted). 5 See infra notes and accompanying text (discussing SB7 and its implications for charter cities). 6 See League Strongly Supports Important Charter City Home Rule Litigation (Feb. 21, 2014), LEAGUE OF CALIFORNIA CITIES, available at Cal. Fed. Sav. & Loan Ass n v. City of L.A., 54 Cal. 3d 1, 16 (1991). 8 See infra notes and accompanying text. 9 See infra notes and accompanying text. 10 See infra notes and accompanying text. 11 See infra notes and accompanying text. 12 See infra notes and accompanying text. 13 See infra notes and accompanying text Thomson Reuters. No claim to original U.S. Government Works. 15

22 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev State Bldg. & Constr. Trades Council of Cal. v. City of Vista, 54 Cal. 4th 547, 557 (2012). 15 See generally EARNEST S. GRIFFITH, HISTORY OF AMERICAN CITY GOVERNMENT: THE COLONIAL PERIOD (Da Capo Press 1972). 16 See ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 61-63, (Henry Reeve trans., 7th ed. 1847). 17 See generally Joan C. Williams, The Constitutional Vulnerability of American Local Government: The Politics of City Status in American Law, 1986 WIS. L. REV. 83, 83 (1986). 18 It is widely acknowledged that Dillon s rule is the mainstream of American judicial and academic opinion. See, e.g., Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1057, 1115 (1980); 2 MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS 4.03, at 9 (3d ed. 1996). As early as 1911, the victory of Dillon s rule over the alternative theories was secure. See 1 JOHN F. DILLON, COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS 98, at (5th ed. 1911) JOHN F. DILLON, COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS 54, at 75 (3d ed., rev. 1881). 20 Frug, supra note 18, at This characterization is ironic when applied to the actual, particular experience of state government in California under Dillon s rule, at which time few men of ability [were] active in political life, and the struggle for office was carried on among men of mediocre talent and often of doubtful integrity. The legislators were of especially low caliber. CARL BRENT SWISHER, MOTIVATION AND POLITICAL TECHNIQUE IN THE CALIFORNIA CONSTITUTIONAL CONVENTION , at 9 (1930). 21 See An Act for Reversing the Judgment in a Quo Warranto against the City of London, 2 W. & M., c.8 (1689), reprinted in 6 STATUTES OF THE REALM See Frug, supra note 18, at People ex rel. Le Roy v. Hurlbut, 24 Mich. 44, (1871). 24 See id. at (Cooley, J., concurring) (citing the historical fact that local governments universally, in this country, were either simultaneous with, or preceded, the more central authority. ). Cooley s argument was textual--it is not reasonable exegesis to conclude that fundamental social institutions and values should be discarded simply because they are not mentioned. See Hurlbut, 24 Mich. at 98 (Cooley, J., concurring). Indeed, Cooley suggested, if Dillon s rule were publicly asserted--rather than adopted by judicial construction--it would be somewhat startling to our people. Id. at Hurlbut, 24 Mich. at 108 (Cooley, J., concurring). 26 See id at See id. at 111 ( The right in the state is a right, not to run and operate the machinery of local government, but to provide for and put it in motion. ). 28 See Lynn A. Baker & Daniel B. Rodriguez, Constitutional Home Rule and Judicial Scrutiny, 86 DENV. U. L. REV. 1337, (2009) Thomson Reuters. No claim to original U.S. Government Works. 16

23 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev Hurlbut, 24 Mich. at 100 (Cooley, J., concurring). 30 See George Butler Griffen, A Letter of Don Antonio F. Coronet to Father J. Adam on the Founding of the Pueblo of Los Angeles and the Building of the Church of Our Lady of the Angels, With a Translation and Corrections, 10 ANN. PUBLICATION HIST. SOC Y S. CAL. 124, ( ). The most prominent examples of pre-statehood local government in California were the towns, such as Los Angeles, that had once been Spanish missions but were secularized and made into civil governments under Mexican rule. See generally JOHN S. HITTELL, A HISTORY OF THE CITY OF SAN FRANCISCO AND INCIDENTALLY OF THE STATE OF CALIFORNIA (1878). 31 See JAMES MADISON CUTTS, THE CONQUEST OF CALIFORNIA AND NEW MEXICO (1847). 32 See HITTELL, supra note 30, at (stating that in 1849 the number of settlers entering California was equal to three times the territory s previous population). 33 See generally Richard O. Zerbe, Jr. & C. Leigh Anderson, Culture and Fairness in the Development of Institutions in the California Gold Fields, 61 J. ECON. HIST. 114 (2001). Justice Stephen Field of the United States Supreme Court, himself a former California gold miner, described these legal systems as follows: Wherever they went, [the miners] carried with them that love of order and system and of fair dealing which are the prominent characteristics of our people. In every district which they occupied they framed certain rules for their government... [a]nd [their customs] were so framed as to secure to all comers, within practicable limits, absolute equality of right and privilege in working the mines. Nothing but such equality would have been tolerated by the miners, who were emphatically the law-makers, as respects mining, upon the public lands in the State. Jennison v. Kirk, 98 U.S. 453, 457 (1878). The mining camp was, in the words of Californian philosopher Josiah Royce, a little republic. Josiah Royce, California: From the Conquest in 1846 to the Second Vigilance Committee in San Francisco 280 (1886). 34 The only discussion of the subject appears in REPORT OF THE DEBATES IN THE CONVENTION OF CALIFORNIA, ON THE FORMATION OF THE STATE CONSTITUTION, IN SEPTEMBER AND OCTOBER, 1849, at , 136 (J. Ross Browne ed. 1850) [hereinafter FIRST CONVENTION]. 35 CAL. CONST. of 1849, art. IV, CAL. CONST. of 1849, art. XI, 4. The mandatory language of this provision-- shall --supports the proposition that some form of city government was a constitutional minimum. See People v. Lynch, 51 Cal. 15, (1875) (arguing from the mandatory phrasing of the clause that the legislature is required [to] organize cities and villages ); see also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 11, at 112 (2012) (stating the rule that shall ordinarily denotes a mandatory duty). 37 CAL. CONST. of 1849, art. IV, 37. One notable commentator has argued on the basis of this clause that the framers showed a greater distrust of local governments than they did of the state legislature. John C. Peppin, Municipal Home Rule in California: 1, 30 CAL. L. REV. 1, 7 (1941) [hereinafter Peppin 1] (citing CAL. CONST. of 1849, art. IV, 37). The California Supreme Court relied on a similar interpretation to support its reasoning in People ex rel. Blanding v. Burr, 13 Cal. 343, (1859). But legislative power to limit specifically enumerated powers (taxation and assessment powers) is not the same as plenary legislative control. 38 Pattison v. Bd. of Supervisors, 13 Cal. 175, 184(1859). 39 Although some acts passed during this period purported to authorize a municipal corporation to undertake some action, the California Supreme Court early held that laws of this character would in many cases be construed as... mandatory. See Peppin I, supra note 37, at 17 (citing Napa Valley R.R. v. Bd. of Supervisors, 30 Cal. 435 (1866)); see also id. at nn (collecting examples of such statutes authorizing action by municipalities) Thomson Reuters. No claim to original U.S. Government Works. 17

24 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev See, e.g., Cal. Stat. 180 (making it unlawful for hogs or goats to run at large in the Town of Woodbridge ). 41 See, e.g., People ex rel. O Donnell v. Bd. of Supervisors, 11 Cal. 206, 211 (1858) (upholding a special act compelling the city to pay, from a specific fund, a specific claim owed to a specific private citizen based on the general proposition that the cities were subservient to the legislature) Cal. at 207 ( There are no authorities in this case. Like parricide, against which the Romans had no law, because the crime was thought impossible, such an usurpation by the Legislature has never been contemplated or guarded against, and no Supreme Court of any State ever had to pass upon a doctrine so monstrous as that contended for by this... bill. ). 43 See id. at 211. This assertion of state supremacy, unsupported by legal authority, supports the argument that Dillon s rule is not a legal deduction but actually a political choice... derived from the hostility of liberal political thought to the exercise of power by entities intermediate between, and thus threatening the interests of, the state and the individual. Frug, supra note 22, at See 2 DEBATES AND PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF THE STATE OF CALIFORNIA 1060 (E.B. Willis & P.K. Stockton eds., 1881) [hereinafter SECOND CONVENTION] (Mr. Reynolds) ( Here is a volume of fine print, three hundred and nineteen pages, that comprises the charter of the City of San Francisco, to-day. Originally it was thirty-one pages, but there have been one hundred supplemental Acts passed... Dozens of these Acts have been passed in the interest of a single individual. ). 45 See People ex rel. Blanding v. Burr, 13 Cal. 343, (1859) (upholding a bill compelling a city to issue debt in order to pay certain claims, which were not legally valid, but which the legislature thought just), overruled in part by People v. Lynch, 51 Cal. 15(1875). 46 See id. at ( The [only] security against the abuse of the power of the Legislature is to be found in the wisdom and sense of justice of its members, and their relation to their constituents. ). 47 Stockton, 41 Cal. at 161 ( [T]he Legislature is politically omnipotent, except in those particulars in which its power has been limited, qualified, or absolutely withdrawn by the provisions of the Federal or the State Constitution.) (citing Sharpless v. Mayor of Phila., 21 Pa. 147, 160 (1853)). 48 See Stockton & Visalia R.R. v. Common Council of Stockton, 41 Cal. 147, 157 (1871). 49 Id. at Id. at See id. at Stockton was actually the first sign that Dillon s rule was beginning to falter in California. Peppin I, supra note 37, at Three of the five justices concurred in the decision essentially on stare decisis grounds alone. Id.; see also Stockton, 41 Cal. at Justice Crockett, in his concurrence, argued that the legislative act was valid only because it used public funds for a public purpose. See Stockton, 41 Cal. at (Crockett, J., concurring). This distinction would later be essential to his decision in Sinton v. Ashbury, 41 Cal. 525 (1871) Thomson Reuters. No claim to original U.S. Government Works. 18

25 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev Cal. at 530. The court used the phrase municipal affairs. which it appeared to equate with things done for municipal purposes. See id. at The standard used to define this category is not clear from the opinion, but the court emphasized that [t]he work... was clearly one of great public importance. Id. at See, e.g., City of S.F. v. Canavan, 42 Cal. 541, 552 (1872) ( [I]t is conceded that the Legislature may create, modify, or abolish [municipal] corporations, and may direct the mode and manner in which they shall exercise their powers, or may limit the extent of their powers... ); Creighton v. Bd. of Supervisors, 42 Cal. 446 (1871) Cal. 15 (1875). 56 See id. at 19 ( The inhabitants of a city cannot be deprived of their right to have such matters as are placed by the charter under the supervision and control of the legislative department of the city government, passed upon by their representatives in the city council. The Legislature cannot, in a special case, deny to the proper city authorities that discretion which they may ordinarily employ with respect to local improvements. ). 57 See id. at See id. at See id. at (arguing that the framers viewed local government as essential). Justices Wallace and Rhodes disagreed on the basis of stare decisis. See id. at (Wallace, J., concurring specially). 60 See SWISHER, supra note 20, at 4-6, 9 (describing the massive population growth, economic instability, and monopolization that combined to create a class of unemployed and disgruntled men who would form the backbone of the Workingmen s Party, a major political force in the convention); Noel Sargent, The California Constitutional Convention of , 6 CAL. L. REV. 1, 4 (1917) (describing the Workingmen s Party, which thrived on anti-chinese racism, antagonism toward the capitalist class, and the widespread discontentment of unemployed laborers). 61 Sargent, supra note 60, at 2. Much suspicion of the legislature derived from the belief that its power was captive to railroad interests. See, e.g., 2 SECOND CONVENTION, supra note 44, at 1062 (Mr. Joyce) (responding to the suggestion of legislative approval of charters by asking: Does he want to have the charter of San Francisco adopted that way, so the railroad company can rob us as they have for years past...? ). 62 Cf. John C. Peppin, Municipal Home Rule in California: II, 30 CAL. L. REV. 272, (1942) (discussing these five provisions). 63 CAL. CONST. of 1879, art. IV, 25 (prohibiting special legislation concerning a long list of subjects). 64 Id. art. XI, 6 ( Corporations for municipal purposes shall not be created by special laws... [but] by general laws... ). 65 Id. art. XI, 11 ( Any county, city, town, or township, may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws. ). 66 Id. art. XI, 12 ( The Legislature shall have no power to impose taxes... [for] municipal purposes, but may, by general laws, vest [such power in a local public entity]. ) Thomson Reuters. No claim to original U.S. Government Works. 19

26 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev Id. art. XI, 13 ( The Legislature shall not delegate to any special commission [or private party] any power... [over] any municipal functions whatever. ). 68 Id. art. XI, 8 ( Any city containing a population of more than one hundred thousand inhabitants may frame a charter for its own government... ) SECOND CONVENTION, supra note 44, at 750 (Mr. Reynolds) ( arguing that under the new constitution the legislature would be confined almost entirely to the perfecting of the Codes ). 70 See id. at ; 3 SECOND CONVENTION, supra note 46, at See. e.g., 2 SECOND CONVENTION, supra note 46, at 1062 (Mr. Howard) ( In the City of Los Angeles about half a dozen fellows, with an axe to grind, got up a charter and sent it up here [to the capitol] for ratification, unbeknown to the people of the city, and they got it adopted too. It proceeded to organize a city government under the pretense of organizing a Board of Public Works ). 72 See. e.g., id. at 1060 (Mr. Wellin) ( What reason have these gentlemen to give why we should not manage our own affairs... Do you suppose that we are not intelligent enough--that we do not know our own wants? Do you suppose we cannot send a delegation here to Sacramento that know their business? ); id. at 1062 (Mr. Joyce) ( Does he want to have the charter of San Francisco [subject to legislative approval] so the railroad company can rob us as they have for years past? ); 3 SECOND CONVENTION, supra note 46, at (Mr. Barbour) (denouncing the idea of subjecting charters to ratification by the legislature as well as the people as an abandonment of the whole principle of self-government ). 73 See. e.g., 2 SECOND CONVENTION, supra note 44, at 1062 (Mr. Howard) ( Now, sir, this system of town government in the thirty States, and particularly in New England, has met the commendation of many eminent men, and particularly of De Tocqueville. I know it is a good system of government. I know it secures local rights, local economy, local good government. I have heard, at town meetings in New England, discussions on public affairs relating to township government, that would have done honor either to the Legislature or the Congress of the United States. And it is the proper place for this power to rest, with those who know the local interests, and who are thus able to provide for their own control. ). 74 See id. at See, e.g., id. at 1062 (Mr. Freeman) ( [W]hen gentlemen here profess the faith which they do profess in local administration of government, they must have had a different experience from what I have read of... It may be that the local township governments of New England have operated as well as the gentleman says, but it is not true that in the great cities of the Union the system has operated well. ).; id. at 1061 (Mr. Hale) (decrying the clause as the boldest kind of an attempt at secession ). 76 The first major argument against the home rule provision was that it singled out San Francisco for special treatment. See id. at There is some evidence to suggest that the section had been sabotaged in committee with the intent of defeating it on the floor: the very delegates who were attacking the provision for being exclusive had actually pressed for that exclusivity in the committee on local government. See id. Mr. Hale and Mr. McCallum, who pressed the complaint that only San Francisco was eligible, were both members of the committee that drafted the section. See id. at CAL. CONST. of 1879, art. XI, In 1887, smaller cities succeeded in amending the constitution to reduce the population threshold to , and in 1890 that number was further reduced to Amanda Meeker, Local Government: An Overview of the History of Constitutional Provisions Dealing with Local Government, in CALIFORNIA CONSTITUTION REVISION COMMISSION, CONSTITUTION REVISION: HISTORY AND PERSPECTIVE 90 (1996). The requirement of legislative approval, however, was not removed until 2015 Thomson Reuters. No claim to original U.S. Government Works. 20

27 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev simply to reduce administrative costs (no charter had ever been rejected). Id. at People v. Hoge, 55 Cal. 612, 618 (1880). 80 CAL. CONST. of 1879, art. XI, 8 (providing that charters are to be subject to the Constitution and laws of [California) and supersede only special laws ); id. art. XI, 6 (providing that all charters are to be subject to and controlled by general laws. ) Cal. 73, (1887) (upholding the application against a charter city of a statute governing the improvement of streets, lanes, alleys, courts, places, and sidewalks, and the construction of sewers within municipalities ). 82 Id. at (reasoning that such a rule was in keeping with the spirit of the home rule provisions, which was the inhibition of special or local legislation, and the allowance of general legislation ). 83 See id. at ( The evils of general legislation are such as spring from the imperfection of all things human and the abuse of power: but the abuse, or liability to abuse, affords no argument against the existence of such power. ). 84 See, e.g., Ex parte Ah You, 82 Cal. 339 (1890); People ex rel Daniels v. Henshaw, 76 Cal. 436 (1888). 85 See, e.g., Ashworth, 73 Cal. at 87 (McKinstry, J., dissenting) (arguing that the Court s holding would allow that a charter adopted for San Francisco by San Francisco, can be amended out of existence by statutes passed in the legislature by a majority composed in no part of members representing San Francisco ); Henshaw, 76 Cal. at 454 (McKinstry, J., dissenting) (arguing that the police court law had altered, in a matter of most material concern, the city government[s] operating under freehold charters); In re Ah You, 82 Cat. 339, 344 (1890) (Fox, J., dissenting) (arguing that charters were made by the constitution itself... inviolable at the hands of the legislature ). 86 See Meeker, supra note 78, at See, e.g., Popper v. Broderick, 123 Cal. 456, 460 (1899) (holding that the salary of police and firemen was clearly a municipal affair, but providing no construction of the clause); People ex rel. Cuff v. City of Oakland, 123 Cal. 598, (1899) (holding unanimously that the procedure for annexing new territory could not be a municipal affair--a contrary rule being absurd, because it would give a city the power to expand its own power) Cal. 383, 385 (1899). 89 See id. (Garoutte, J.) (plurality opinion); id. at 391 (Harrison, J.) (plurality opinion); id. at 400 (Temple, J., concurring). 90 See id. at 387 (arguing that the purpose of the amendment was to prevent existing provisions of charters from being frittered away by general laws and to enable municipalities to conduct their own business and control their own affairs, to the fullest possible extent, in their own way ). 91 See id. at (citing People ex rel. Le Roy v. Hurlbut, 24 Mich. 44, 111 (1871) (Cooley, J., concurring)). 92 Fragley, 126 Cal. at (Harrison. J., concurring) (arguing that the crucial limitation on a city s power is that it can only do what is authorized by its charter). In a later case, Justice Temple also affirmed this principle. See Fritz v. City & Cnty. of S.F., 132 Cal. 373, (1901) (Temple, J., concurring) Thomson Reuters. No claim to original U.S. Government Works. 21

28 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev See Fragley, 126 Cal. at 395 (Harrison, J., concurring). 94 See id. at (Temple, J., concurring). He disagreed with Justice Garoutte in that he believed charter elections to be a municipal affair and disagreed with Justice Harrison in that he interpreted the San Francisco charter to address the issue. Id. at See id. at See id. at 385 (Garoutte, J.) (plurality opinion); id. at 391 (Harrison, J.) (plurality opinion); id. at 400 (Temple, J., concurring) Cal. 204 (1903). Braun case is critically important because of its subsequent acceptance and development in Federal Savings. See Cal. Fed. Sav. & Loan Ass n. v. City of L.A., 54 Cal. 3d 1, 12 (1991). 98 See 141 Cat. at (finding that the charter of Los Angeles did provide it with the power to raise revenue by way of license taxes, which conflicted with a statute providing that cities and counties could only levy license taxes under the police power). 99 Braun, 141 Cal. at 209 (holding that license taxes for revenue purposes were obviously an appropriate power for a municipality to possess and thus a municipal affair). See id. 100 Id. at (McFarland, J., concurring) ( It is difficult to realize that the people of the state, through their Legislature, have no longer the power to say that a license tax--a tax upon the right to do business, a tax upon capacity--is unjust, unequal, and oppressive, and should not be tolerated anywhere within the state; but we think that such is now the law. ). 101 See id. 102 See id. at (Beatty, C.J., dissenting). 103 See id. at See ARVO VAN ALSTYNE, CALIFORNIA CONSTITUTION REVISION COMMISSION, BACKGROUND STUDY RELATING TO ARTICLE XI: LOCAL GOVERNMENT 238 (1966). 105 William Cary Jones. %7FMunicipal Affairs in the California Constitution, 1 CAL. L. REV. 132, 145 (1912). 106 Id. 107 Meeker, supra note 78, at See, e.g., W. Coast Adver. Co. v. City & Cnty. of S.F., 14 Cal. 2d 516 (1939). 109 VAN ALSTYNE, supra note 104, at Wilson v. Walters, 19 Cal. 2d 111, 119 (1941) (citing Dep t of Water & Power of L.A. v. Inyo Chem. Co., 16 Cal. 2d 744, Thomson Reuters. No claim to original U.S. Government Works. 22

29 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev. 587 (1940)). This limitation purports to derive from Pasadena v. Charleville. See Inyo Chem., 16 Cal. 2d at (citing City of Pasadena v. Charleville, 215 Cal. 384 (1932)). 111 See, e.g., Douglass v. City of L.A., 5 Cal. 2d 123, 128 (1935) (holding that the safety of public roads is a matter of statewide concern); Charleville, 215 Cat. at 398 (1932) (holding that the employment of aliens on public works is a matter of statewide concern); Sandstoe v. Atchison. Topeka & Santa Fe Ry. Co., 28 Cal. App. 2d 215, 221 (1938) (holding that the tort liability of local public agencies is a matter of statewide concern); Armas v. City of Oakland, 135 Cal. App. 411, 421 (1933) (holding that the organization, operation, and control of municipal fire and police departments is a municipal affair). 112 L.A. Ry. Corp. v. City of L.A., 16 Cal. 2d 779, 783 (1940) (emphasis added); see also In re Hubbard, 62 Cal.2d 119(1964), overruled in part by Bishop v. City of San Jose, 1 Cal. 3d 56(1969). 113 VAN ALSTYNE, supra note 104, at 239, See Cal. Fed. Sav. & Loan Ass n v. City of L.A., 54 Cal. 3d 1, 17 (1991) (citing VAN ALSTYNE, supra note 104, at 239). 115 See Federal Savings, 54 Cal. 3d at 6. The analogy with Brawn is clear: in both cases a statute purported to immunize individuals against some forms of local taxation. Compare id., with Ex parte Braun, 141 Cal. 204, (1903). 116 Federal Savings, 54 Cal. 3d at See id. at 7-12 (discussing 1979 Cal. Stat. 4220). 118 Id. at (distinguishing Braun as only one side of the coin and holding that the court must sometimes choose between conflicting state and local laws which both stem from concerns rooted in their respective spheres of government ). 119 Id. at 13. The court did not overrule Braun, because the statewide concern analysis was an addition to the case law which came after Braun and made the two cases distinguishable. See id. at See id. at Id. at (stating that a thing which constitutes a matter of statewide concern ceases, pro tanto, to be a municipal affair, and that these two phrases represent, Janus-like, ultimate legal conclusions rather than factual descriptions ). 122 CAL. LAB. CODE 1771 (West 2013) ( Except for public works projects of one thousand dollars ($1,000) or less, not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public work is performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work fixed as provided in this chapter, shall be paid to all workers employed on public works. ). The law also provides minimum standards for the employment of apprentices, LAB (d), and procedures for determining the prevailing wage and administering the law, See 1897 Cal. Stat. 90 (setting the minimum wage per diem at $2). 124 See 1931 Cal. Stat. 910, In the same year, Congress passed the Davis-Bacon Act, the federal prevailing wage law. Pub. L. No , 46 Stat (1931) (codified as amended at 40 U.S.C (2012). The original law was incorporated into the Labor Code when it was created, see 1937 Cal. Stat , and was subsequently amended to assign the determination of the prevailing wage to the Department of Industrial Relations rather than the public agency awarding the contract, see 1976 Cal. Stat Thomson Reuters. No claim to original U.S. Government Works. 23

30 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev Cal. 384, (1932), overruled in part by Purdy & Fitzpatrick v. State, 71 Cal. 2d 566 (1969). 126 See id. at 393. The court emphasized the oppositional nature of the categories, noting that no previous case had found state law controlling against a charter provision without finding that the provision did not concern municipal affairs. See id. (citing Esberg v. Badaracco, 202 Cal. 110, 116 (1927) (school taxes); Ex parte Daniels. 183 Cal. 636,641 (1920) (speed limits)). 127 Compare Vial v. City of San Diego, 122 Cal. App. 3d 346, 348 (1981) (upholding a local resolution that conflicted with the prevailing wage law where the resolution exclude[d] state and federally funded projects and those considered to be of State concern ), with Div. of Labor Standards Enforcement v. Ericsson Info. Sys., Inc., 221 Cal. App. 3d 114, (1990) (applying the prevailing wage law to the University of California, which possess analogous home rule powers, under the theory that it addressed a matter of statewide concern). The court in Ericsson argued that Vial was distinguishable because of the indiscriminate nature of the University s policy compared with that of San Diego. See id. at 124. A highly regarded practice guide, however, regarded the application of the prevailing wage law to charter cities as in a stale of flux after these decisions. See LEAGUE OF CALIFORNIA CITIES, THE CALIFORNIA MUNICIPAL LAW HANDBOOK 7.84 (2011). The supreme court itself acknowledged, by reserving the issue, that the continued application of the municipal affairs doctrine to the prevailing wage law was an open question. See City of Long Beach v. Dep t of Indus. Relations, 34 Cal. 4th 942, 947 (2004). 128 State Bldg. & Constr. Trades Council of Cal., AFL-CIO v. City of Vista, 54 Cal. 4th 547, 552 (2012). 129 Id. 130 See id. at See id. 132 See id. 133 Id. 134 See id. at See id. 136 See id. at 556 (alteration in original) (citations omitted); see id. at 566, 567 (Werdegar, J., dissenting); id. at (Liu, J., dissenting). The court cited Federal Savings for the proposition that state laws must be narrowly tailored to meet the statewide concerns implicated, but Federal Savings itself does not actually say it is a requirement. See Cal. Fed. Sav. & Loan Ass n v. City of L.A., 54 Cal. 3d 1, 24 (1991). However, shortly after the decision in Federal Savings, the court construed Federal Savings as requiring narrow tailoring. See, e.g., Johnson v. Bradley, 4 Cal. 4th 389, 403 (1992). 137 See Trades Council, 54 Cal. 4th at (insisting that, despite the relevance of history, the question always remains how the state constitution allocates power between the state and the charter city). 138 Id. at 579 (Liu. J., dissenting). Liu accused the majority of employing the distinction cynically to minimize the statewide concern. See id. at Thomson Reuters. No claim to original U.S. Government Works. 24

31 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev See id. at (majority opinion). 140 Id. at (Liu. J., dissenting). 141 See id. at (majority opinion). 142 Id. 143 See id. at 589 (Liu, J., dissenting) (citing People v. City of Seal Beach, 36 Cal 3d 591, 601 (1984)). 144 Id. at 564 (majority opinion) (dismissing the argument because the Union s economic rationale would apply whether the employees were public or private). Justice Werdegar argued that precedent demanded greater leniency in finding a statewide concern when the issue was fair labor standards. See id. at (citing Seal Beach, 36 Cal. 3d at 599 (upholding a meet and confer requirement applied to city police departments); Prof l Fire Fighters. Inc. v. City of L.A., 60 Cal. 2d 276, (1963) (upholding a labor relations law applied to city fire departments)). She argued broadly that the state constitution gave the legislature specific constitutional authority to address labor issues on a statewide scale. Id. at (citing CAL. CONST. art. XIV, 1 (2013) ( The Legislature may provide for minimum wages and for the general welfare of employees and for those purposes may confer on a commission legislative, executive, and judicial powers. )). 145 See id. at (Werdegar, J., dissenting) (citing Seat Beach, 36 Cal.3d at 591 (upholding a meet and confer requirement applied to city police departments); Prof l Fire Fighters, Inc. v. City of L.A., 60 Cal.2d 276 (1963) (upholding a labor relations law applied to city fire departments)) (arguing that precedent demanded greater leniency in finding a statewide concern when the issue was fair labor standards). 146 City of Pasadena v. Charleville, 215 Cal. 384 (1932); see id. at (majority opinion). 147 See id. at (rejecting the argument that the increased integration of regional economies in the decades since Charleville had made the subject a matter of a statewide concern and Charleville should be abandoned). 148 See id. at (Werdegar, J., dissenting); id. at 586 (Liu, J., dissenting). They contended that the logic of that case has been overtaken by history and it should be consign[ed]... to the dustbin. Id. at (Werdegar, J., dissenting) U.S. 525 (1923), overruled in part by W. Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (cited in City of Pasadena v. Charleville, 215 Cal. 384, 390 (1932)). 150 Trades Council, 54 Cal. 4th at 586 (Liu, J., dissenting) Cal. at Id. at 389. Charleville applied the California Constitution s Municipal Affairs Clause, unlike Adkins--which was an interpretation of the Federal Due Process Clause. See Adkins, 261 U.S. at 568 (Holmes, J., dissenting). 153 See CAL. CONST. art. XIV, 1 (2013). Justice Werdegar gamely argued that this clause grants the legislature specific constitutional authority to address labor issues on a statewide scale. Trades Council, 54 Cal. 4th at 573 (Werdegar, J., dissenting) Thomson Reuters. No claim to original U.S. Government Works. 25

32 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev. 587 This argument is unavailing, because the state did not address the issue on a statewide scale, but by commandeering the purchasing power of local public agencies. See id. at (majority opinion). 154 See Trades Council. 54 Cal. 4th at Justice Liu admitted in his dissent that the legislature chose not to regulate under a general law but to use the purchasing power and market impact of state and local public agencies to effect its policy goal. Id. at (Liu. J., dissenting). 155 Id. at 556 (majority opinion). 156 Id. at (majority opinion) (citing Johnson v. Bradley, 4 Cal. 4th at 407 (1992) ( [W]e can think of nothing that is of greater municipal concern than how a city s tax dollars will be spent: nor anything which could be of less interest to taxpayers of other jurisdictions. )). 157 See Trades Council, 54 Cal. 4th at 561; id. at , 572 (Werdegar, J., dissenting); id. at (Liu, J., dissenting). 158 See id. at 565 (citing 2003 Cal. Stat. 6247; 2002 Cal. Stat. 5541; 2002 Cal. Stat. 5455). 159 See id. 160 Id. (citing Baggett v. Gates, 32 Cal. 3d 128, 136 (1982)). 161 See id. at 578 (Werdegar. J., dissenting) ( [D]oubt... must be resolved in favor of the legislative authority of the state. (internal quotation marks omitted)); id. at 579 (Liu, J., dissenting) ( [T]he court moves incautiously in an area where it becomes us to exercise more than the usual caution. (internal quotation marks omitted)). 162 Id. at 565 (majority opinion) (quoting Cnty. of Riverside v. Superior Court, 30 Cal. 4th 278, 286 (2003)). 163 Cal. Fed. Sav. & Loan Ass n v. City of L.A., 54 Cal. 3d 1, (1991) 164 Ex parte Braun, 141 Cal (1903) (McFarland, J. concurring) (quoted in Cal. Fed. Sav. & Loan Ass n v. City of L.A., 54 Cal.3d 1, (1991)). 165 See, e.g., Trades Council, 54 Cal. 4th at (relying solely on precedent to determine that wage rates in public works contracts are a municipal affair without articulating any standard other than the Federal Savings analysis for making that determination in cases of first impression) Cal. 4th at See supra notes and accompanying text. 168 Even more direct expressions of the people s will--such as ballot initiatives--are subject to constitutional scrutiny because the people have made statutes... subordinate to the Constitution, and have empowered the courts of this state in the exercise of the judicial power to interpret the state s fundamental charter. People s Advocate v. Superior Court (California Legislature), 181 Cal. App.3d 316, 322 (1986) Thomson Reuters. No claim to original U.S. Government Works. 26

33 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev Fragley v. Phelan, 126 Cal. 383, 390 (1899). 170 See People v. Lynch, 51 Cal. 15, (1875) ( The courts cannot shirk the responsibility of deciding such questions, when presented. It is as much their duty to consider the Constitution, in ascertaining what is the law, as to consider the statute. This duty must be performed, whatever the consequences. The judicial department is the proper power in the Government to determine whether a statute be or be not constitutional. (citations omitted) (internal quotation marks omitted)). 171 Cal. Fed. Sav. & Loan Ass n v. City of L.A., 54 Cal. 3d 1, 15 (1991). 172 SCALIA & GARNER, supra note 36, at Baker & Rodriguez, supra note 28, at SCALIA & GARNER, supra note 36, at 31 ( A fundamental rule of textual interpretation is that neither a word nor a sentence may be given a meaning that it cannot bear. ). 175 See supra notes and accompanying text. 176 CAL. CONST. art. XI, 5(a) (2013) (emphasis added). It does not say all laws inconsistent therewith which do not reach matters of statewide concern. 177 HENRY CAMPBELL BLACK, A LAW DICTIONARY 798 (1910). 178 Fragley v. Phelan, 126 Cal. 383, (1899) (Harrison. J., concurring). 179 See id. at 385 (plurality opinion) 180 Ex parte Braun, 141 Cal. 204, 209 (1903) 181 CAL. CONST. art. XI, 5(a) (2013) (emphasis added). 182 See SCALIA & GARNER, supra note 36, 54, at 322 ( If a statute uses words or phrases that have already received authoritative construction by the jurisdiction s court of last resort... they are to be understood according to that construction. ). After the passage of the municipal affairs amendment, the court appealed to Sinton, an 1871 case, as authority for the proposition that the opening of streets was a municipal affair under the meaning of the clause. See Byrne v. Drain, 127 Cal. 663, 667 (1900) (citing Sinton v. Ashbury, 41 Cal. 525 (1871)). This citation suggests that the court recognized the case law usage of the phrase prior to the amendment as a legitimate source of interpretive guidance. See id. 183 See Sinton, 41 Cal. at 530 (1871) (Crockett, J.) ( I am not aware that any case has gone so far as to hold that the Legislature may devote the funds of a municipal corporation to purposes confessedly private and having no relation to municipal affairs. ). 184 People v. Lynch, 51 Cal. 15, 31 (1875) Thomson Reuters. No claim to original U.S. Government Works. 27

34 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev See People ex rel. Daniels v. Henshaw, 76 Cal. 436, 448 (1888) (McKinstry, J., dissenting) (citing an unpublished superior court opinion describing a law as distinctly municipal in character, spending its whole force upon the government, civil and criminal, of the city of Oakland and the regulation of its internal municipal affairs. ). See also Dunn v. Long Beach Land & Water Co., 114 Cal. 605, 610 (1896); Woodward v. Fruitvale Sanitary Dist., 99 Cal. 554, 562 (1893). 186 See Henshaw, 76 Cal. at (McKinstry, J., dissenting). 187 Fragley v. Phelan, 126 Cal. 383, (Harrison, J., concurring) JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 405 ( Where the words admit of two senses, each of which is conformable to common usage, that sense is to be adopted, which, without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and design of the instrument. ). 189 See supra notes and accompanying text. 190 Morton v. Broderick, 118 Cal. 474, (1897) (internal citations omitted). 191 Fragley, 126 Cal. at 387 (Garoutte, J.) (plurality opinion) (arguing that the people wished to protect charters from being frittered away by laws general in form but not in substance); id. at 395 (Harrison, J, concurring) (arguing that municipal affairs included all things embraced in a charter, basically accepting Justice Garoutte s view of the people s purpose); id. at (Temple, J., concurring) (arguing that the people intended to undo Ashworth and Henshaw, which had frustrated the original purpose of freehold charters). 192 Popper v. Broderick, 123 Cal. 456, 461 (1899). 193 See Fragley v. Phelan, 126 Cal. 383 (1899): Ex parte Braun, 141 Cal. 204 (1903); Cal. Fed. Sav. & Loan Ass n v. City of L.A., 54 Cal.3d 1 (1991). 194 Fragley, 126 Cal. at (Harrison, J). 195 See id. at 395 (Harrison, J., concurring). 196 Id. at 389 (Garoutte. J.) (plurality opinion); see id. at (Harrison. J., concurring). 197 See Meeker, supra note 78, at See, e.g., Charter of the City of Vista , 300 (specifically declaring the city exempt from public contracting statutes except as approved by the City Council and enumerating no other powers). 199 Fragley, 126 Cal. at 389 (Garoutte, J.) (plurality opinion). 200 See id. at (Temple, J., concurring) Thomson Reuters. No claim to original U.S. Government Works. 28

35 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev Id. at 402; compare id., with Cal. Fed. Sav. & Loan Ass n v. City of L.A., 54 Cal3d 1, 16 (1991). 202 Fragley, 126 Cal. at 401 (Temple, J., concurring); cf. Hans v. Louisiana, 134 U.S. 1, 12 (1890) (also reasoning that a constitutional amendment passed in reaction to a particular case should be construed in light of the dissenting opinions in that case). 203 See id. The primary dissenters from the doctrine of Ashworth were Justices McKinstry and Fox. See Thomason v. Ashworth, 73 Cal. 73, 87 (1887) (McKinstry, J., dissenting); People ex ret. Daniels v. Hcnshaw, 76 Cal. 436, 454 (1888) (McKinstry, J., dissenting); Ex parte Ah You, 82 Cal. 339, 344 (1890) (Fox. J., dissenting); Davies v. City of L.A., 86 Cal. 37, 54 (1890) (Fox, J., concurring in the judgment). 204 Davies, 86 Cal. at 54 (Fox, J., dissenting). 205 Ashworth, 73 Cal. at See id. at See People ex rel. Lawlor v. Williamson, 135 Cal. 415, (1902) (holding that a writ of quo warranto sought by the San Francisco board of public health, established by the legislature, would not issue against the new San Francisco board of public health, created by the city s charter, and that insofar as the two boards did not have conflicting powers, the state and the city could both maintain boards of health). 208 See Cal. Fed. Sav. & Loan Ass n v. City of L.A., 54 Cal. 3d 1, 15 (1991). 209 Baker & Rodriguez, supra note 28, at 1342 ( [Judicially enforceable home rule] was extraordinary... in the further sense that courts would be acting to protect the autonomy of local governments that were historically understood to be mere creatures of the state government. On these terms, imperium in imperio home rule was even more remarkable than constitutional federalism. After all, the latter was built upon the circumstances of the states existing as independent sovereigns that joined together to form the nation, the United States ). 210 Id.; see also supra, notes 18-21, 43 and accompanying text. 211 The national government is given power over a specific range of subjects, see U.S. CONST. art. 1, 8, and the remainder is vested in the [s]tates respectively, or... the people, U.S. CONST. amend. X. 212 Daniel J. Elazar, The United States and the European Union: Models for Their Epochs, in THE FEDERAL VISION: LEGITIMACY AND LEVELS OF GOVERNANCE IN THE UNITED STATES AND THE EUROPEAN UNION 31, 42 (Kalypso Nicolaïdis & Robert Howse eds., 2001). In this way, the American system is different from other systems of decentralized government: Historically, [the European tradition of] subsidiarity has assumed that there is a centre of power that rules over an organic or quasi-organic polity... [Whereas] the American federal tradition has assumed that there is not, and should not be, a single centre of power. The States are not peripheries, and local governments are not extremities; they are constituent elements of what James Madison called a compound republic. John Kincaid. Devolution in the United States: Rhetoric and Reality, in THE FEDERAL VISION: LEGITIMACY AND LEVELS OF GOVERNANCE IN THE UNITED STATES AND THE EUROPEAN UNION 144, 155 (Kalypso Nicolaïdis & Robert Howse, eds. 2001). 213 See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 581 (1985) (O Connor, J., dissenting) ( [T]he Framers of our Constitution intended Congress to have sufficient power to address national problems... [T]hey also envisioned a republic whose 2015 Thomson Reuters. No claim to original U.S. Government Works. 29

36 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev. 587 vitality was assured by the diffusion of power not only among the branches of the Federal Government, but also between the Federal Government and the States. ). 214 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, (1995) (Kennedy, J., concurring). 215 See Texas v. White, 74 U.S. 700, (1868) ( [T]he perpetuity and indissolubility of the Union, by no means implies the loss of distinct and individual existence, or of the right of self-government by the States... The Constitution, in ail its provisions, looks to an indestructible Union, composed of indestructible States. ). 216 People ex rel. Le Roy v. Hurlbut, 24 Mich. 44, 98 (1871) ( [T]he [state] constitution has been adopted in view of a system of local government, well understood and tolerably uniform in character, existing from the very earliest settlement of the country, never for a moment suspended or displaced, and the continued existence of which is assumed; and... the liberties of the people have generally been supposed to spring from, and be dependent upon that system. ). 217 See People v. Lynch, 51 Cal. 15, (1875). 218 Ex parte Braun, 141 Cal. 204, 211 (1903). 219 One commentator has quipped that [t]alking about federalism feels a bit like joining the proverbial blind men trying to describe an elephant. Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485, 1485 (1994). For an entertaining version of the story to which Kramer refers, see John Godfrey Saxe, The Blind Men and the Elephant, in THE OXFORD ILLUSTRATED BOOK OF AMERICAN CHILDREN S POEMS (Donald Hall ed., 1999) U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). 221 Ex parte Braun, 141 Cal. 204, 209 (1903) 222 National League, 426 U.S. at (listing examples). 223 Id. at Id. at Id. at Id. at 852, 856 (Blackmun. J., concurring) (stating that the Court adopts a balancing approach, and does not outlaw federal power in areas such as environmental protection, where the federal interest is demonstrably greater and where state facility compliance with imposed federal standards would be essential ). 227 George A. Bermann, The Role of Law in the Functioning of Federal Systems, in THE FEDERAL VISION: LEGITIMACY AND LEVELS OF GOVERNANCE IN THE UNITED STATES AND THE EUROPEAN UNION 191, 202(Kalypso Nicolaïdis & Robert Howse eds., 2001); see Garcia, 469 U.S. at See Garcia, 469 U.S. at Thomson Reuters. No claim to original U.S. Government Works. 30

37 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev See U.S. CONST. amend. X; Garcia, 469 U.S. at Even acknowledging this textual ambiguity, Justice O Connor dissented in a stirring opinion that chastised the Court for retreat[ing] rather than reconcil[ing] the Constitution s dual concerns for federalism and an effective commerce power. Id. at 581 (O Connor. J., dissenting). Likewise. Justice Powell accused the Court of reduc[ing] the Tenth Amendment to meaningless rhetoric. Id. at 560 (Powell, J., dissenting). 230 CAL. CONST. art. XI, 5(a). 231 People v. Hoge, 55 Cal. 612, 618 (1880) ( It was manifestly the intention of [the people] to emancipate municipal governments from the authority and control formerly exercised over them by the Legislature, and this is the more apparent in view of the fact that the charter framed by... the vote of the people, cannot be amended by the Legislature. ). 232 See New York v. United States, 505 U.S. 144, , 161 (1992) (striking down a federal statute that compelled the individual states to either pass legislation which complied with minimum federal standards or be subject to sanctions which included a take title provision--vesting title to nuclear waste, and all the liability that it implied, in the state). 233 Id. at 188. This constitutional prohibition applies to the executive as well as the legislative functions of the state. See Printz v. United States. 521 U.S. 898, 925 (1997). 234 See Printz, 521 U.S. at See Pattison v. Bd. of Supervisors, 13 Cal. 175, 184 (1859) ( [Cities and counties] are both political and geographical divisions of the State. They are both the subjects of its political dominion. The local governments derive their powers from the paramount political head, which, while it cedes to certain local agents certain powers, does not thereby remit its rightful and ultimate dominion... ). 236 CAL. CONST. of 1879, art. XI, 8 (emphasis added). 237 See People v. Lynch, 51 Cal. 15(1875). 238 U.S. CONST. art I, 8, cl. 1 ( The Congress shall have Power To lay and collect Taxes... and provide for... [the] general Welfare of the United States... ); see, e.g., South Dakota v. Dole, 483 U.S. 203 (1987). 239 Nat l Fed n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2574 (2012). 240 See State Bldg. & Constr. Trades Council of Cal. v. City of Vista. 54 Cal. 4th 547, 562 (2012). 241 The United States Supreme Court, in some of its recent cases on the subject, has expressed this theory of funding conditions set by Congress. See, e.g., Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy. 548 U.S. 291, 296 (2006) (citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)) (holding, based on the contractual theory, that Congress must provide unambiguous notice of the conditions imposed); Barnes v. Gorman, 536 U.S. 181, (2002). 242 See Trades Council, 54 Cal. 4th at 559. The same general principle, that state regulation should be accompanied by state money if it is to be imposed on local governments, is embodied in the state constitution s subvention requirement. See CAL. CONST. art. XIII B, Thomson Reuters. No claim to original U.S. Government Works. 31

38 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev Nat l League of Cities v. Usery, 426 U.S. 833, 842 (1976) (emphasis added), overruled in part by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). 244 Fragley v. Phelan, 126 Cal. 383,402 (1899) (Temple, J., concurring) (emphasis added). 245 CAL. CONST. art. XI, 5(a); Popper v. Broderick, 123 Cal. 456, 461 (1899). 246 Compare New York v. United States, 505 U.S. 144, 161 (1992), with Trades Council, 54 Cal. 4th 547, See supra notes and accompanying text. 248 Cf. South Dakota v. Dole, 483 U.S. 203, 213 (1987) (O Connor, J., dissenting). 249 Cal. Fed. Sav. & Loan Ass n v. City of L.A., 54 Cal.3d 1, 16 (1991). 250 See 2 SECOND CONVENTION, supra note 44, at 750 (Mr. Reynolds). 251 See, e.g., 3 id. at (Mr. Hager) id. at 750 (Mr. Reynolds). 253 Federal Savings, 54 Cal. 3d at See generally GRODIN ET AL., supra note 2, at Amador Valley Joint Union High Sch. Dist. v. Stale Bd. of Equalization, 22 Cal.3d 208, 224 (1978). 256 See id. 257 Barry Winograd, San Jose Revisited: A Proposal for Negotiated Modification of Public Sector Bargaining Agreements Rejected Under Chapter 9 of the Bankruptcy Code, 37 HASTINGS L.J. 231, 303 (1985) ( Revenues lost after Proposition 13 [were] replaced largely by surplus funds from the state treasury, and the actual shortfalls were much less than were anticipated... ). 258 See 54 Cal.4th at Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L.J. 1256, (2009). 260 Id. at See id. at Thomson Reuters. No claim to original U.S. Government Works. 32

39 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev See id. at See id. 264 See id. 265 See id. 266 See supra, notes and accompanying text Cal. Stat. 794 (SB7), codified at CAL. LAB. CODE 1782 (2014). 268 See id. at 1(f). 269 CAL. LAB. CODE 1782(a) Cal. Stat. 794, 1(a)-(d). 271 Id. at 1(g)-(j). 272 Id. at 1(j). 273 Press Release, League of California Cities, Statement on Governor Brown s Signing of SB 7 (Steinberg) (Oct. 14, 2013), available at (hereinafter Press Release). 274 State Bldg. & Constr. Trades Council of Cal. v. City of Vista, 54 Cal. 4th 547, 557 (2012). 275 Id. at Cal. Stat. 794, 1(f). 277 See Thomason v. Ashworth, 73 Cal. 73, 92 (1887) (McKinstry, J., dissenting) (listing among the proper subjects of general legislation the mode of contracting ). 278 See CAL. LAB. CODE 1720 (West 2013). 279 Indep. Roofing Contractors of Cal., Inc. v. Dep t of Indus. Relations, 23 Cal. App. 4th 345, 356 (1994) (quoted in State Bldg. & Constr. Trades Council of Cal. v. City of Vista, 54 Cal. 4th 547, 555 (2012)) Thomson Reuters. No claim to original U.S. Government Works. 33

40 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev Compare Ex parte Braun, 141 Cal. 204, 219(1903) (Beatty, C.J., dissenting), with Trades Council, 54 Cal. 4th at 589 (Liu, J., dissenting). On this same theory, the court could have reached the result it did in Federal Savings, because in that case the law merely established the rights of private parties to be free of taxation in excess of the state income tax. See Cal. Fed. Sav. & Loan Ass n v. City of L.A., 54 Cal. 3d 1, 6-7 (1991). 281 Popper v. Broderick, 123 Cal. 456, 461 (1899). 282 See Fragley v. Phelan, 126 Cal. 383, 387 (1899) (Garoutte. J.) (plurality opinion) Cal. 4th at (Liu. J., dissenting) (emphasis added). 284 See id. at 562 (majority opinion). 285 Id. 286 See Press Release, supra note Complaint. California v. United States Department of Labor (13-CV-02069), 2013 WL (E.D. Cal. Oct. 4, 2013). 288 Id. at Id. at See id. 291 Nat l Fed n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2607 (2012) ( Nothing in our opinion precludes Congress from offering funds under the Affordable Care Act to expand the availability of health care, and requiring that States accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding. ) 292 See supra notes and accompanying text. 293 Cal. Fed. Sav. & Loan Ass n v. City of L.A., 54 Cal. 3d 1, 16 (1991) ( The idea that the content of municipal affairs is indefinite in its essentials is one that has taken root in our cases on the subject. ); Ex parte Braun, 141 Cal. 204, 214 (1903) (McFarland, J., concurring) ( [N]o doubt, in the future each case involving the question will be decided on its own facts, without an attempt at generalization. ). 294 See State Bldg. & Constr. Trades Council of Cal., AFL-CIO v. City of Vista, 54 Cal. 4th 547, (2012). 295 See supra notes and accompanying text Thomson Reuters. No claim to original U.S. Government Works. 34

41 PRESERVING HOME RULE: THE TEXT, PURPOSE, AND..., 41 Pepp. L. Rev See supra notes and accompanying text. 297 See supra notes and accompanying text. End of Document 41 PEPLR Thomson Reuters. No claim to original U.S. Government Works Thomson Reuters. No claim to original U.S. Government Works. 35

42 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) Cal.4th 547 Supreme Court of California STATE BUILDING AND CONSTRUCTION TRADES COUNCIL OF CALIFORNIA, AFL CIO, Plaintiff and Appellant, v. CITY OF VISTA et al., Defendants and Respondents. No. S July 2, Synopsis Background: Union building and construction trades council petitioned for a peremptory writ of mandate against charter city, mayor, and city manager, seeking a ruling requiring that city comply with Prevailing Wage Law (PWL) in the construction of its public works projects, notwithstanding its status as a charter city. The Superior Court, San Diego County, No CU-WM-NC, Robert P. Dahlquist, J., denied the writ. Council appealed, and the Court of Appeal affirmed. The Supreme Court granted review, superseding the opinion of the Court of Appeal. Holdings: The Supreme Court, Kennard, J., held that: [1] issue was a question of law, and [2] local ordinances governed in absence of a statewide concern. Affirmed. Werdegar, J., dissented with opinion in which Liu, J., joined. Liu, J., dissented with opinion in which Werdegar, J., concurred. State Bldg. and Const. Trades Council of California, AFL- CIO v. City of Vista, 93 Cal.Rptr.3d 95, vacated. West Headnotes (17) [1] Municipal Corporations Nature and scope of legislative power in general A general law city must comply with state statutes that specify requirements for entering into contracts. Cases that cite this headnote [2] Labor and Employment Prevailing wages Prevailing wage laws are based on the premise that government contractors should not be allowed to circumvent locally prevailing labor market conditions by importing cheap labor from other areas. Cases that cite this headnote [3] Municipal Corporations Local legislation Charter cities are specifically authorized by the state Constitution to govern themselves, free of state legislative intrusion, as to those matters deemed municipal affairs. West's Ann.Cal. Const. Art. 11, 5(a). 3 Cases that cite this headnote [4] Municipal Corporations Local legislation The constitutional provision regarding charter cities represents an affirmative constitutional grant to charter cities of all powers appropriate for a municipality to possess and includes the important corollary that, so far as municipal affairs are concerned, charter cities are supreme and beyond the reach of legislative enactment. West's Ann.Cal. Const. Art. 11, 5(a). 2 Cases that cite this headnote [5] Municipal Corporations Construction of charters and statutory provisions Issue of whether prevailing wage laws constitutionally applied to charter city, which had passed ordinances stating otherwise, could 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

43 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) not conclusively be determined solely by the evidentiary record in the trial court or by the legislative record, but rather remained one of state constitutional interpretation and thus a question of law. West's Ann.Cal. Const. Art. 11, 5(a). Cases that cite this headnote [6] Municipal Corporations Local legislation Home rule is a means of adjusting the political relationship between state and local governments in discrete areas of conflict. Cases that cite this headnote [7] Municipal Corporations Local legislation When a court invalidates a charter city measure in favor of a conflicting state statute, the result does not necessarily rest on the conclusion that the subject matter of the former is not appropriate for municipal regulation; it means, rather, that under the historical circumstances presented, the state has a more substantial interest in the subject than the charter city. 3 Cases that cite this headnote [8] Municipal Corporations Local legislation The question of whether in a particular case the home rule provisions of the California Constitution bar the application of state law to charter cities turns ultimately on the meaning and scope of the state law in question and the relevant state constitutional provisions; interpreting that law and those provisions presents a legal question, not a factual one. West's Ann.Cal. Const. Art. 11, 5(a). 2 Cases that cite this headnote [9] Municipal Corporations Local legislation Courts considering home rule questions accord great weight to the factual record that the Legislature has compiled; factual findings by the Legislature or the trial court, however, are not controlling. Cases that cite this headnote [10] Municipal Corporations Local legislation The decision as to what areas of governance are municipal concerns and what are statewide concerns is ultimately a legal one. West's Ann.Cal. Const. Art. 11, 5(a). 1 Cases that cite this headnote [11] Municipal Corporations Public improvements Charter city's local ordinances, rather than state prevailing wage law, governed issue of whether city was required to pay prevailing wage on public works contracts, as there was no statewide concern justifying the state's regulation of the wages that charter cities require their contractors to pay to workers hired to construct locally funded public works. West's Ann.Cal. Const. Art. 11, 5; West's Ann.Cal.Labor Code See 8 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law, 993, 997, Cases that cite this headnote [12] Municipal Corporations Local legislation When state law and the ordinances of a charter city actually conflict and the court must decide which controls, the hinge of the decision is the identification of a convincing basis for legislative action originating in extramunicipal concerns, one justifying legislative supersession based on sensible, pragmatic considerations. West's Ann.Cal. Const. Art. 11, 5(a). Cases that cite this headnote [13] Municipal Corporations Local legislation 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

44 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) For state law to control over conflicting ordinances of a charter city, there must be something more than an abstract state interest, as it is always possible to articulate some state interest in even the most local of matters; rather, there must be a convincing basis for the state's action, a basis that justifies the state's interference in what would otherwise be a merely local affair. West's Ann.Cal. Const. Art. 11, 5(a). Cases that cite this headnote [14] Municipal Corporations Local legislation Autonomy with regard to the expenditure of public funds lies at the heart of what it means to be an independent governmental entity. Cases that cite this headnote [15] Constitutional Law Determination of constitutionality of statutes Although the court gives statements by the Legislature great weight, the resolution of constitutional challenges to state laws falls within the judicial power, not the legislative power. Cases that cite this headnote [16] Constitutional Law Nature and scope in general It is, emphatically, the province and duty of the judicial department, to say what the law is. Cases that cite this headnote [17] Constitutional Law To legislature The court is especially hesitant to abdicate to the Legislature's view of the issue when the issue involves the division of power between local government and that same Legislature. 1 Cases that cite this headnote Attorneys and Law Firms ***531 Altshuler Berzon, San Francisco, Stephen P. Berzon, Scott A. Kronland and Peter E. Leckman for Plaintiff and Appellant. Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, James M. Humes, Chief Deputy Attorney General, Gordon B. Burns, Deputy State Solicitor General, Christopher E. Krueger and Jonathan K. Renner, Assistant Attorneys General, Douglas J. Woods and Peter M. Williams, Deputy Attorneys General, as Amici Curiae on behalf of Plaintiff and Appellant. Davis, Cowell & Bowe, San Francisco, John J. Davis, Jr., and Andrew J. Kahn for Northern California Mechanical Contractors ***532 Association, Los Angeles Chapter of the National Electrical Contractors Association, Air Conditioning, Refrigeration and Mechanical Contractors Association of Southern California, California Plumbing and Mechanical Contractors Association, California Sheet Metal Air Conditioning Contractors National Association, Associated Plumbing and Mechanical Contractors Association and Mechanical Contractors Council of Central California as Amici Curiae on behalf of Plaintiff and Appellant. Law Offices of Carroll & Scully, San Francisco, Donald C. Carroll and Charles P. Scully II for Southern California Labor Management Operating Engineers Contract Compliance Committee as Amicus Curiae on behalf of Plaintiff and Appellant. Law Office of Lawrence H. Kay and Lawrence H. Kay for Construction Employers' Association's as Amicus Curiae on behalf of Plaintiff and Appellant. Weinberg, Roger & Rosenfeld, Alameda, Sandra Rae Benson, Patricia M. Gates, Roberta D. Perkins and Sharon Seidenstein for Northern California Basic Crafts Alliance, California Apprenticeship Coordinators Association, Jeff Armstrong, Tammy Castillo, Sumaria Love, John Bullock and Mavis McAllister as Amici Curiae on behalf of Plaintiff and Appellant. Darold D. Pieper, City Attorney, Jonathan B. Stone, Deputy City Attorney; McDougal, Love, Eckis, Smith, Boehmer & Foley, Lounsbery, Ferguson Altona & Peak, James P. Lough, 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

45 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) David M. Stotland; Richards Watson & Gerson, Los Angeles, and T. Peter Pierce for Defendants and Respondents. Atkinson, Andelson, Loya, Ruud & Romo, Pleasanton, Robert Fried, Elizabeth P. Lind and W. Bryce Chastain for Associated Builders & Contractors of California as Amicus Curiae on behalf of Defendants and Respondents. Patrick Whitnell and Kourtney Burdick for League of California Cities as Amicus Curiae on behalf of Defendants and Respondents. Opinion KENNARD, J. *552 **1024 A charter city entered into certain contracts for the construction of public buildings. A federation of labor unions then petitioned the superior court for a peremptory writ of mandate, asserting that the city must comply with California's prevailing wage law notwithstanding local ordinances stating otherwise. The prevailing wage law requires that certain minimum wage levels be paid to contract workers constructing public works. Under the state Constitution, the ordinances of charter cities supersede state law with respect to municipal affairs (Cal.Const., art. XI, 5), but state law is supreme with respect to matters of statewide concern (California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 17, 283 Cal.Rptr. 569, 812 P.2d 916 (California Fed. Savings )). Here, petitioner contends that the subject matter of the state's prevailing wage law is a statewide concern over which the state has primary legislative authority. (Ibid.) The city responds that the matter is a municipal affair and therefore governed by its local ordinances. We agree with the city. I. FACTS [1] In 2006, the voters of the City of Vista in San Diego County approved a.5 percent sales tax to fund the construction and renovation of several public buildings. The proposed projects involved the seismic retrofit of an existing fire station and the construction of two new fire stations, a new civic center, a new sports park, and a new stagehouse for the city's Moonlight Amphitheatre. **1025 At that time, Vista was a ***533 general law city. 1 In February 2007, the Vista City Attorney submitted a report to the city council recommending that Vista take steps to become a charter city. The report asserted that the conversion would give the city the option of not paying prevailing wages on its planned public works projects, result[ing] in millions of dollars of savings over the next few years and beyond. The Vista City Council then authorized a special election for residents of the city to vote on a ballot measure that would change Vista from a general law city into a charter city. In the voter information pamphlet, the City *553 Attorney Impartial Analysis told the voters that, as a charter city, Vista's city council replaces the state legislature with regard to the municipal affairs of the City[, which]... include bidding and contracting procedures... (City of Vista Sample Ballot & Voter Information Pamp., Special Municipal Elec., June 5, 2007, analysis of Prop. C, p. 003.) That same point was made in the ballot argument in favor of the proposal, signed by the mayor and members of the city council, which also noted that the conversion would allow the city to choose when and if it pays prevailing wages. (Id., argument in favor of Prop. C, p. 004.) There was no opposing ballot argument. The ballot measure passed with approximately 67 percent of the votes cast. Shortly thereafter, Vista amended a city ordinance to prohibit any city contract from requiring payment of prevailing wages unless (a) such payment is compelled by the terms of a state or a federal grant, (b) the contract does not involve a municipal affair, or (c) payment of the prevailing wage is separately authorized by the city council. In October 2007, Vista's city council adopted a resolution approving contracts to design and build two fire stations and authorizing the mayor to execute the contracts. The contracts did not require compliance with the state's prevailing wage law. A court action by plaintiff followed. Plaintiff State Building and Construction Trades Council of California, AFL CIO (the Union) is a labor federation composed of 131 local unions, 16 district labor councils, and 22 local building trades councils that collectively represent more than 300,000 men and women working in the construction industry in California. The Union petitioned the San Diego County Superior Court for a peremptory writ of mandate to direct Vista and its officeholders to comply with the state's prevailing wage law. Vista countered that prevailing wage issues are not a statewide concern, and that charter cities have the legal right to determine whether or not to require prevailing wages' in local public works 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

46 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) contracts that involve locally funded, municipal affairs' under the California Constitution and the laws governing charter cities. The Union moved for issuance of a peremptory writ of mandate. The Union argued that the prevailing wage law addresses important statewide concerns and therefore it applies to charter cities just as it applies to other cities. In support of its petition, the Union submitted a declaration of its president, Robert L. Balgenorth, asserting the regional nature of the construction industry and describing apprenticeship training in that industry. Vista opposed the motion, arguing ***534 that as a matter of law Charter Cities have fiscal control over local municipal affairs' and these Cities can determine whether to include prevailing wage requirements in local public works contracts. *554 The trial court denied the Union's petition, citing Vial v. City of San Diego (1981) 122 Cal.App.3d 346, 175 Cal.Rptr Vial concerned a city council resolution adopted by San Diego (a charter city) that barred payment of prevailing wages except in specified circumstances. The state sought to compel the city to comply with the state's prevailing wage law. (Id. at p. 347, 175 Cal.Rptr. 647.) The Court of Appeal in Vial upheld the city's resolution, stating that the expenditure of city funds on public works projects and the **1026 rates of pay of workers hired for such projects are municipal affairs of a charter city over which the state has no legislative authority. (Id. at p. 348, 175 Cal.Rptr. 647.) The Union here appealed. In a two-to-one decision, the Court of Appeal affirmed the trial court. After observing that both the legislative record and the trial court record were inadequate to establish that application of the prevailing wage law to charter cities is necessary to protect regional labor markets, the Court of Appeal concluded that the Union had failed to prove the existence of a statewide concern. In the dissent's view, however, the wage levels of contract workers constructing public works can have a depressive effect on regional wages, and therefore they are a statewide concern. We granted the Union's petition for review to decide whether the state's prevailing wage law applies to charter cities. II. DISCUSSION A. California's Prevailing Wage Law In 1931, the California Legislature enacted the state's prevailing wage law. 2 That law, which was then entitled the Public Wage Rate Act, required contractors on public works projects to pay the general prevailing rate of per diem wages for work of a similar character in the locality in which the work is performed. (Stats.1931, ch. 397, 1, p. 910.) The term public works was defined as work done for public agencies and work paid for with public funds. (Id., 4, pp ) The law expressly referred to charter cities in a provision requiring such cities to pay prevailing wages in contracts for street or sewer improvement work. (Ibid.) [2] Earlier the same year, Congress had enacted the Davis Bacon Act (Pub.L (Mar. 3, 1931) 46 Stat. 1494, codified at * U.S.C ); the goals of the federal and the state legislation were similar. (See, e.g., California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc. (1997) 519 U.S. 316, 319, 117 S.Ct. 832, 136 L.Ed.2d 791.) Simply put, [p]revailing wage laws are based on the... premise that government contractors should not be allowed to circumvent locally prevailing labor market conditions by importing cheap labor from other areas. (Independent Roofing Contractors v. Department of Industrial Relations (1994) 23 Cal.App.4th 345, 356, 28 Cal.Rptr.2d 550.) Many states have adopted some form of a prevailing wage law for public construction projects. (See, e.g., 820 Ill. Comp. Stat. 130/1 to 130/12; N.Y. Labor Law 220(3)(a); 43 Pa. Cons.Stat to ; Tex. Gov.Code Ann to ) ***535 When the California Legislature established the Labor Code in 1937, it replaced the 1931 Public Wage Rate Act with a revised, but substantively unchanged, version of the same law. (Stats.1937, ch. 90, 1720 et seq., pp ) The 1937 law, like the 1931 law, directed the body awarding any contract to ascertain the general prevailing rate of per diem wages in the locality... for each craft or type of workman needed to execute the contract. (Stats.1937, ch. 90, 1773, p. 243; see also Stats.1931, ch. 397, 2, p. 910.) As a result of a 1976 amendment, the prevailing wage law now requires that local wage rates be determined by the Director of California's Department of Industrial Relations rather than by the body awarding the contract (Stats.1976, ch. 281, 2, p. 587), but the prevailing wage law's general purpose and scope remain largely unchanged. Here, Vista contends that it need not comply with the prevailing wage law because the law invades Vista's constitutionally guaranteed autonomy as a charter city. In resolving the issue, we begin with a brief overview of the home rule doctrine set forth in the California Constitution Thomson Reuters. 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47 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) B. California's Home Rule Doctrine [3] [4] Charter cities are specifically authorized by our state Constitution to govern themselves, free of state legislative intrusion, as to those matters deemed municipal affairs. Article XI, section 5, subdivision (a) of the California Constitution provides: It shall be **1027 competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws. City charters adopted pursuant to this Constitution shall supersede any existing charter, and with respect to municipal affairs shall supersede all laws inconsistent therewith. (Italics added.) The roots of this provision trace back more than 100 years. *556 (See generally Johnson v. Bradley (1992) 4 Cal.4th 389, , 14 Cal.Rptr.2d 470, 841 P.2d 990.) It was originally enacted upon the principle that the municipality itself knew better what it wanted and needed than the state at large, and to give that municipality the exclusive privilege and right to enact direct legislation which would carry out and satisfy its wants and needs. (Fragley v. Phelan (1899) 126 Cal. 383, 387, 58 P. 923 (lead opn. of Garoutte, J.).) The provision represents an affirmative constitutional grant to charter cities of all powers appropriate for a municipality to possess... and [includes] the important corollary that so far as municipal affairs are concerned, charter cities are supreme and beyond the reach of legislative enactment. (California Fed. Savings, supra, 54 Cal.3d at p. 12, 283 Cal.Rptr. 569, 812 P.2d 916, quoting Ex Parte Braun (1903) 141 Cal. 204, 207, 74 P. 780.) In California Fed. Savings, supra, 54 Cal.3d 1, 283 Cal.Rptr. 569, 812 P.2d 916, we set forth an analytical framework for resolving whether or not a matter falls within the home rule authority of charter cities. First, a court must determine whether the city ordinance at issue regulates an activity that can be characterized as a municipal affair. (Id. at p. 16, 283 Cal.Rptr. 569, 812 P.2d 916.) Second, the court must satisfy itself that the case presents an actual conflict between [local and state law]. (Ibid.) Third, the court must decide whether the state law addresses a matter of statewide concern. (Id. at p. 17, 283 Cal.Rptr. 569, 812 P.2d 916.) Finally, the court must determine whether the law is reasonably related to... resolution of that concern (ibid.) and ***536 narrowly tailored to avoid unnecessary interference in local governance (id. at p. 24, 283 Cal.Rptr. 569, 812 P.2d 916). If... the court is persuaded that the subject of the state statute is one of statewide concern and that the statute is reasonably related to its resolution [and not unduly broad in its sweep], then the conflicting charter city measure ceases to be a municipal affair pro tanto and the Legislature is not prohibited by article XI, section 5(a), from addressing the statewide dimension by its own tailored enactments. (Id. at p. 17, 283 Cal.Rptr. 569, 812 P.2d 916.) Here, we reaffirm our view first expressed 80 years ago (see City of Pasadena v. Charleville (1932) 215 Cal. 384, 389, 10 P.2d 745 (Charleville )) that the wage levels of contract workers constructing locally funded public works are a municipal affair (that is, exempt from state regulation), and that these wage levels are not a statewide concern (that is, subject to state legislative control). Our reasons are set forth in the course of the analysis given below. C. Applicability of California's Home Rule Doctrine Is a Question of Law [5] The Court of Appeal treated the dispute in this case as a factual one, and it characterized its decision against the Union in terms of a failure of proof. For example, the court observed: [T]he question we face is whether either the *557 Legislature or the [Union] ha[s] demonstrated a fact-bound justification for application of the [prevailing wage law] to charter cities. As we explain more fully, we do not find any such justification on the record presented. Later in its opinion, the Court of Appeal said: [T]he Legislature has not articulated any rationale which would support the conclusion that complete preemption of municipal public works contracting is needed to protect regional labor markets. With regard to the evidentiary record made by the Union, the court said: Plainly... [various parts of the trial court record] establish that the labor markets in the construction trades are regional rather than local... [However,] the factual record presented by the [Union] offers no evidence which suggests the contracting activity of municipalities materially impacts regional labor markets. **1028 Thus, the Court of Appeal here did not hold that the wage levels of contract workers constructing a locally funded public work are categorically a municipal affair and not a statewide concern. Rather, the Court of Appeal held that the legislative record was inadequate to establish a statewide concern and that the Union had failed to prove its case in the trial court. The Court of Appeal's approach raises the question whether the determination of a statewide concern presents predominantly a legal or a factual question. Fundamentally, 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

48 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) the question is one of constitutional interpretation; the controlling inquiry is how the state Constitution allocates governmental authority between charter cities and the state. The answer to that constitutional question does not necessarily depend on whether the municipal activity in question has some regional or statewide effect. For example, we have said that the salaries of charter city employees are a municipal affair and not a statewide concern regardless of any possible economic effect those salaries might have beyond the borders of the city. (Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, , 152 Cal.Rptr. 903, 591 P.2d 1 (Sonoma County ).) [6] [7] Of course, the inquiry is not wholly removed from historical, and hence factual, realities. In ***537 California Fed. Savings, supra, 54 Cal.3d at pages 17, 283 Cal.Rptr. 569, 812 P.2d 916 to 18, for example, we said: [C]ourts should avoid the error of compartmentalization, that is, of cordoning off an entire area of governmental activity as either a municipal affair or one of statewide concern. Beginning with the observation in Pac. Tel. & Tel. Co. v. City and County of S.F. [ (1959) ] 51 Cal.2d [766,] 771 [336 P.2d 514], that the constitutional concept of municipal affairs is not a fixed or static quantity... [but one that ] changes with the changing conditions upon which it is to operate, our cases display a growing recognition that home rule is a means of adjusting the political relationship between state and local governments in discrete areas of conflict. When a court invalidates a charter city measure in favor of a conflicting state *558 statute, the result does not necessarily rest on the conclusion that the subject matter of the former is not appropriate for municipal regulation. It means, rather, that under the historical circumstances presented, the state has a more substantial interest in the subject than the charter city. (Italics added.) [8] [9] [10] Nevertheless, the question whether in a particular case the home rule provisions of the California Constitution bar the application of state law to charter cities turns ultimately on the meaning and scope of the state law in question and the relevant state constitutional provisions. Interpreting that law and those provisions presents a legal question, not a factual one. (County of Riverside v. Superior Court (2003) 30 Cal.4th 278, , 132 Cal.Rptr.2d 713, 66 P.3d 718 (County of Riverside ); Sonoma County, supra, 23 Cal.3d at p. 316, 152 Cal.Rptr. 903, 591 P.2d 1; Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63, 81 Cal.Rptr. 465, 460 P.2d 137 (Bishop ).) Courts accord great weight to the factual record that the Legislature has compiled (California Fed. Savings, supra, 54 Cal.3d at pp , 283 Cal.Rptr. 569, 812 P.2d 916; Baggett v. Gates (1982) 32 Cal.3d 128, , 185 Cal.Rptr. 232, 649 P.2d 874), and also to any relevant facts established in trial court proceedings. (California Fed. Savings, at p. 20, fn. 16, 283 Cal.Rptr. 569, 812 P.2d 916.) Factual findings by the Legislature or the trial court, however, are not controlling. (Bishop, at p. 63, 81 Cal.Rptr. 465, 460 P.2d 137.) The decision as to what areas of governance are municipal concerns and what are statewide concerns is ultimately a legal one. Therefore, the Court of Appeal here gave too much weight to the Union's asserted failure to prove its case, implying that the issue before the court was one of sufficiency of the evidence. The answer to whether the prevailing wage law can be applied constitutionally to charter cities is not conclusively determined solely by the evidentiary record in the trial court or by the legislative record. The question remains one of state constitutional interpretation. (County of Riverside, supra, 30 Cal.4th at pp , 132 Cal.Rptr.2d 713, 66 P.3d 718; **1029 Sonoma County, supra, 23 Cal.3d at p. 316, 152 Cal.Rptr. 903, 591 P.2d 1; Bishop, supra, 1 Cal.3d at p. 63, 81 Cal.Rptr. 465, 460 P.2d 137.) D. Application of California Fed. Savings's Four Part Test [11] We now apply the four-part test of this court's 1991 decision in California Fed. Savings, supra, 54 Cal.3d at pages 16 to 17, 283 Cal.Rptr. 569, 812 P.2d 916, which we summarized 143 Cal.Rptr.3d at pages , 279 P.3d at page 1027, ante. 1. Whether the wages of contract workers constructing locally funded public works are a municipal affair The wage levels of contract workers constructing locally funded public works are ***538 certainly a municipal affair. We said so explicitly in our 1932 decision in Charleville, supra, 215 Cal. at page 389, 10 P.2d 745, which was the test case we took immediately after the Legislature's 1931 enactment of the prevailing *559 wage law to decide whether that law applied to charter cities. Charleville was a mandate action brought to compel a charter city's manager to sign a contract for the construction of a fence around a city-owned reservoir. (Id. at p. 387, 10 P.2d 745.) The city manager refused to sign the contract, contending (among other things) that the contract did not comply with the state's 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

49 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) newly enacted prevailing wage law. (Ibid.) The petition for a writ of mandate asserted that the prevailing wage law did not apply to charter cities, and this court agreed. We there held that the issue of wage levels of contract workers improving a city-owned reservoir was, as a matter of law, a municipal affair. (Charleville, supra, 215 Cal. at p. 389, 10 P.2d 745.) We said: The sole purpose of the contract is the construction of a wire fence around a reservoir which is a part of the city's municipal water system. The supplying of water by a city to its inhabitants is a municipal affair. [Citation.] The building of a dam to be used for impounding water for a municipal water system is a municipal affair. [Citation.] The construction of a reservoir as a part of a municipal water system is a municipal affair. [Citation.] The money to be expended for the cost of the improvement belongs to the city and the control of its expenditure is a municipal affair. [Citation.] The hiring of employees generally by the city to perform labor and services in connection with its municipal affairs and the payment of the city's funds for services rendered to the city by its employees in the administration of its municipal affairs is not subject to or controlled by general laws. [Citations.] (Ibid.) It is apparent from our analysis in Charleville, supra, 215 Cal. at page 389, 10 P.2d 745, that the construction of a city-operated facility for the benefit of a city's inhabitants is quintessentially a municipal affair, as is the control over the expenditure of a city's own funds. Here, the two fire stations in the City of Vista, like the municipal water system in Charleville, supra, 215 Cal. 384, 10 P.2d 745, are facilities operated by the city for the benefit of the city's inhabitants, and they are financed from the city's own funds. We conclude therefore that the matter at issue here involves a municipal affair. 2. Existence of an actual conflict between state law and charter city law This court's 1991 decision in California Fed. Savings, supra, 54 Cal.3d at pages 16 17, 283 Cal.Rptr. 569, 812 P.2d 916, emphasized the importance of determining, as a matter of statutory construction, that state law actually conflicts with local law before proceeding to the difficult state constitutional question of which law governs a particular matter. Here, no party contends that California's prevailing wage law exempts charter cities from its scope. Indeed, the prevailing wage law makes express reference to charter cities, defining public works' to include [s]treet, sewer, or other improvement work... *560 of any political subdivision or district [of the state], whether the political subdivision or district operates under a freeholder's charter or not. (Lab.Code, 1720, subd. (a)(3), italics added; see also id., subd. (a)(1) [applying the law to any construction work done under contract and paid for... out of public funds ].) Because the state's prevailing wage law does not exempt charter cities, and because Vista's ordinance prohibits compliance with that law (except in circumstances **1030 not relevant ***539 here), we conclude that an actual conflict exists between state law and Vista's ordinance. 3. Whether the wage levels of contract workers constructing locally funded public works is a statewide concern [12] [13] When, as here, state law and the ordinances of a charter city actually conflict and we must decide which controls, the hinge of the decision is the identification of a convincing basis for legislative action originating in extramunicipal concerns, one justifying legislative supersession based on sensible, pragmatic considerations. (California Fed. Savings, supra, 54 Cal.3d at p. 18, 283 Cal.Rptr. 569, 812 P.2d 916.) In other words, for state law to control there must be something more than an abstract state interest, as it is always possible to articulate some state interest in even the most local of matters. Rather, there must be a convincing basis for the state's action a basis that justif[ies] the state's interference in what would otherwise be a merely local affair. (Ibid.) Here, that convincing justification is not present. We reached essentially the same conclusion when we addressed the question in our 1932 decision in Charleville, supra, 215 Cal. 384, 10 P.2d 745. We there held that the wage levels of contract workers improving a city-owned reservoir were not a matter of general state concern. (Id. at p. 393, 10 P.2d 745.) Likewise, the wage levels of contract workers designing and constructing two city-operated fire houses do not appear to be a matter of general state concern. The Union, however, argues that circumstances have changed since our 1932 Charleville decision, and that what was not a statewide concern then has since become a statewide concern. The Union quotes a statement by this court in Pac. Tel. & Tel. Co. v. City & County of S.F., supra, 51 Cal.2d 766, at page 771, 336 P.2d 514: [T]he constitutional concept of municipal affairs is not a fixed or static quantity. It changes with the 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

50 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) changing conditions upon which it is to operate. What may at one time have been a matter of local concern may at a later time become a matter of state concern controlled by the general laws of the state. (Italics added.) The Union points out that as a result of a 1976 amendment to the state's prevailing wage law (Stats.1976, ch. 281, 2, p. 587), the wage levels mandated by that law are no longer set by the local body awarding the *561 contract but by the Director of the Department of Industrial Relations, and under the amended law, these mandatory wage levels reflect regional rather than simply local interests (Lab.Code, 1770, 1773, , ). In light of these statutory changes, the Union argues, the wage levels of contract workers constructing locally funded public works have become a matter of statewide concern. In a related argument, the Union contends that the economy of the state has become more integrated during the 80 years since this court's 1932 decision in Charleville, supra, 215 Cal. 384, 10 P.2d 745, and wage levels in a local area are now more likely to have an effect regionally and statewide. The construction industry in particular, according to the Union, has followed this trend toward economic regionalization, with workers often driving long distances to a job site and multi-employer collective bargaining agreements governing the terms of employment on a regional basis. Because of these economic changes, the Union asserts, the refusal of charter cities to pay prevailing wages has a depressive impact on regional labor standards that was not present in 1932 when Charleville was decided. Therefore, the Union argues, the expenditure of city ***540 funds on a local public work is no longer a purely local concern; rather, in light of our modern integrated economy, it has become a statewide concern. The Union further notes that the state's prevailing wage law now requires contractors on public works projects to hire apprentices from state-approved apprenticeship programs, thereby ensuring the proper training of the next generation of skilled construction workers. (Lab.Code, ) The Union contends that this requirement of the prevailing wage law is essential to California's long-term economic health. If the prevailing wage law did not include this requirement, **1031 the Union argues, then construction contractors bidding competitively on public works projects would refuse to hire apprentices, in an effort to reduce costs; apprentices then might not be able to obtain enough work to support themselves and to complete their on-the-job training requirement. The Union asserts that the training of the next generation of skilled construction workers is a statewide concern, not merely a local concern, and the prevailing wage law has become an integral part of the state's scheme for training these workers. [14] These arguments by the Union underscore the importance of identifying correctly the question at issue. Certainly regional labor standards and the proper training of construction workers are statewide concerns when considered in the abstract. But the question presented here is not whether the state government has an abstract interest in labor conditions and vocational training. Rather, the question presented is whether the state can require a charter city to exercise its purchasing power in the construction market in a *562 way that supports regional wages and subsidizes vocational training, while increasing the charter city's costs. No one would doubt that the state could use its own resources to support wages and vocational training in the state's construction industry, but can the state achieve these ends by interfering in the fiscal policies of charter cities? Autonomy with regard to the expenditure of public funds lies at the heart of what it means to be an independent governmental entity. [W]e can think of nothing that is of greater municipal concern than how a city's tax dollars will be spent; nor anything which could be of less interest to taxpayers of other jurisdictions. (Johnson v. Bradley, supra, 4 Cal.4th at p. 407, 14 Cal.Rptr.2d 470, 841 P.2d 990.) Therefore, the Union here cannot justify state regulation of the spending practices of charter cities merely by identifying some indirect effect on the regional and state economies. (See County of Riverside, supra, 30 Cal.4th at p. 296, 132 Cal.Rptr.2d 713, 66 P.3d 718 [ No doubt almost anything a county does... can have consequences beyond its borders. But this circumstance does not mean this court may eviscerate clear constitutional provisions, or the Legislature may do what the Constitution expressly prohibits it from doing. ].) The Union's arguments also conflict with our previous decisions. In Sonoma County, supra, 23 Cal.3d at page 297, 152 Cal.Rptr. 903, 591 P.2d 1, we held that the wages paid by a charter city or county to its own employees are a municipal affair and therefore are not subject to regulation by the state Legislature. In that case, the state offered to distribute surplus state funds to local governments to mitigate the impact of Proposition The Legislature, ***541 however, then enacted a special provision prohibiting the distribution of surplus state funds to any local agency that granted to its employees a cost-of-living wage or salary increase that exceeded the cost-of-living increase provided 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

51 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) to state employees. At issue was whether the latter provision violated the home rule doctrine of the California Constitution. (Sonoma County, at pp , 152 Cal.Rptr. 903, 591 P.2d 1.) We emphasized in Sonoma County that the determination of what constitutes a municipal affair (over which the state has no legislative authority) and what constitutes a statewide concern (as to which state law is controlling) is a matter for the courts, not the Legislature, to decide. (Id. at p. 316, 152 Cal.Rptr. 903, 591 P.2d 1, citing Bishop, supra, 1 Cal.3d 56, 81 Cal.Rptr. 465, 460 P.2d 137.) Moreover, that the Legislature chose to deal with a problem on a statewide basis, Sonoma County said, does not in itself make the problem a statewide concern. (Sonoma County, at p. 316, 152 Cal.Rptr. 903, 591 P.2d 1.) Put differently, the concept of statewide concern is not coextensive with the state's police power. Citing numerous cases and an explicit provision of the state Constitution, Sonoma County concluded that the salaries of local employees of a charter city are a municipal affair not **1032 subject to the state's general laws. (Id. at pp , 152 Cal.Rptr. 903, 591 P.2d 1.) *563 Similarly, in San Francisco Labor Council v. Regents of University of California (1980) 26 Cal.3d 785, 163 Cal.Rptr. 460, 608 P.2d 277 (S.F. Labor Council ), we rejected an effort by the state Legislature to compel the Regents of the University of California to pay prevailing wages to university employees. Under article IX, section 9 of the California Constitution, the University of California enjoys an autonomy like that of charter cities under article XI, section 5. Specifically, article IX, section 9 provides that the University of California shall have full powers of organization and government, subject only to a few narrow exceptions. Significantly, one of the exceptions pertains to state legislation that regulates matters of statewide concern not involving internal university affairs. (S.F. Labor Council, at p. 789, 163 Cal.Rptr. 460, 608 P.2d 277, italics added.) Relying on Sonoma County, supra, 23 Cal.3d 296, 152 Cal.Rptr. 903, 591 P.2d 1, we concluded that the state's prevailing wage requirement was not a matter of statewide concern. (S.F. Labor Council, at p. 790, 163 Cal.Rptr. 460, 608 P.2d 277.) We observed that while the statute purports to establish a minimum wage, it in effect determines the wage. (Ibid.) We then stated: Although the Legislature has declared that the matter is one of statewide concern [citation], the declaration is not controlling... (Id. at pp , 163 Cal.Rptr. 460, 608 P.2d 277.) As discussed above, Sonoma County, supra, 23 Cal.3d 296, 152 Cal.Rptr. 903, 591 P.2d 1, involved the autonomy rights of charter cities and counties, and S.F. Labor Council, supra, 26 Cal.3d 785, 163 Cal.Rptr. 460, 608 P.2d 277, applied Sonoma County's holding to a case involving a state prevailing wage law analogous to the one at issue here. Read together, Sonoma County and S.F. Labor Council indicate our continued adherence to the holding in Charleville, supra, 215 Cal. 384, 10 P.2d 745, that charter cities are not subject to the state's prevailing wage law. More recently, in County of Riverside, supra, 30 Cal.4th 278, 132 Cal.Rptr.2d 713, 66 P.3d 718, we reaffirmed that compensation of public employees is not a statewide ***542 concern justifying state law interference in the autonomy of independent governmental entities. We there concluded that state law could not force a county into binding arbitration over the compensation paid to county employees. Our decision applied two state constitutional provisions: one giving all counties authority to provide for the... compensation... of [their] employees (Cal. Const., art. XI, 1, subd. (b)), the other prohibiting the Legislature from delegat[ing] to a private person or body power to... interfere with county or municipal corporation... money (id., 11, subd. (a)). In the course of our analysis, we considered whether the state law at issue might be enforceable because it governed a matter of statewide concern. (County of Riverside, at pp. 286, 291, 132 Cal.Rptr.2d 713, 66 P.3d 718.) We rejected the Legislature's assertion that the matter involved a statewide concern. (Id. at pp , 132 Cal.Rptr.2d 713, 66 P.3d 718.) Instead, we concluded that the state law in question impinged too much on local rights, depriving the county entirely of its authority to set employee salaries. (Id. at p. 288, 132 Cal.Rptr.2d 713, 66 P.3d 718; see also id. at p. 293, 132 Cal.Rptr.2d 713, 66 P.3d 718.) We also drew an important distinction between state procedural laws governing the affairs of local governmental entities (which *564 by their nature impinge less on local affairs) and state laws dictating the substance of a public employee labor issue (which impinge much more on local affairs). (Id. at p. 289, 132 Cal.Rptr.2d 713, 66 P.3d 718.) Although the three cases just cited Sonoma County, supra, 23 Cal.3d 296, 152 Cal.Rptr. 903, 591 P.2d 1, S.F. Labor Council, supra, 26 Cal.3d 785, 163 Cal.Rptr. 460, 608 P.2d 277, and County of Riverside, supra, 30 Cal.4th 278, 132 Cal.Rptr.2d 713, 66 P.3d 718 deal with the wages of public employees rather than, as here, the wages of private employees constructing local public works projects, the distinction is irrelevant. The Union's arguments here do not depend on whether the workers constructing the public work are public or private employees. If, as the Union 2015 Thomson Reuters. No claim to original U.S. Government Works. 10

52 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) contends, the prevailing wage law's shift from a purely local focus to a regional focus has made the wage levels of **1033 workers constructing locally funded public works a matter of statewide concern, then that would be true whether the case involved public employees or private employees. Similarly, if, as the Union asserts, the state's economic integration during the 80 years since our 1932 decision in Charleville, supra, 215 Cal. 384, 10 P.2d 745, has made the wages of workers constructing local public works a matter of statewide concern, then that would be true for both public employees and private employees. Significantly, this case is not like others in which we found a statewide concern to justify the application of a state law to charter cities. For example, our cases have suggested that a state law of broad general application is more likely to address a statewide concern than one that is narrow and particularized in its application. (S.F. Labor Council, supra, 26 Cal.3d at pp , 163 Cal.Rptr. 460, 608 P.2d 277; Charleville, supra, 215 Cal. at p. 390, 10 P.2d 745.) We applied this principle in People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 600, 205 Cal.Rptr. 794, 685 P.2d 1145, and Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, , 32 Cal.Rptr. 830, 384 P.2d 158. In the latter two cases, we also noted that the state laws at issue set forth generally applicable procedural standards, and consequently impinged less on local autonomy than if they had imposed substantive obligations. In Seal Beach, for example, we said: [T]here is a clear distinction between the substance of a public ***543 employee labor issue and the procedure by which it is resolved. Thus there is no question that salaries of local employees of a charter city constitute municipal affairs and are not subject to general laws. ( [Sonoma County ], supra, 23 Cal.3d at p. 317 [152 Cal.Rptr. 903, 591 P.2d 1].) Nevertheless, the process by which salaries are fixed is obviously a matter of statewide concern and none could, at this late stage, argue that a charter city need not meet and confer concerning its salary structure. (Seal Beach, at pp , fn. 11, 205 Cal.Rptr. 794, 685 P.2d 1145; see also County of Riverside, supra, 30 Cal.4th at p. 289, 132 Cal.Rptr.2d 713, 66 P.3d 718.) Here, the state law at issue is not a minimum wage law of broad general application; rather, the law at issue here has a far narrower application, as it pertains only to the public works projects of public agencies. In *565 addition, it imposes substantive obligations on charter cities, not merely generally applicable procedural standards. These distinctions further undermine the Union's assertion that the matter here presents a statewide concern and therefore requires Vista, a charter city, to comply with the state's prevailing wage law on the city's locally funded public works projects. We are aware that the Legislature has recently stated that the wage levels of contract workers constructing locally funded public works are a matter of statewide concern. The Legislature's view is expressed in two amendments to the prevailing wage law, one in 2002 and the other in 2003, each addressing a relatively narrow category of public works. Uncodified sections of both amendments state: It is a matter of statewide concern that every public agency in California pay the prevailing rate of per diem wages to workers employed on public works projects undertaken by those public agencies. (Stats.2003, ch. 851, 1, p. 6247, italics added; Stats.2002, ch. 892, 1, p. 5541, italics added; see also Stats.2002, ch. 868, 1, p ) Likewise, a 2003 concurrent resolution of the Legislature stated in relevant part: [T]he Legislature reaffirms its intent for the state prevailing wage law to apply broadly to all projects subsidized with public funds, including the projects of chartered cities, as the law addresses important statewide concerns... (Sen. Conc. Res. No. 49, Stats ( Reg. Sess.) res. ch. 135, p ) [15] [16] [17] But as we noted earlier (see pt. II.C., ante ), the Legislature's view as to what constitutes a statewide concern is not determinative in resolving the constitutional question before us. This court considered similar legislative findings in regard to the statute requiring the Regents of the University of California to pay prevailing wages, and the court concluded that those findings were not controlling. (S.F. Labor Council, **1034 supra, 26 Cal.3d at pp , 163 Cal.Rptr. 460, 608 P.2d 277; see also County of Riverside, supra, 30 Cal.4th at pp , 132 Cal.Rptr.2d 713, 66 P.3d 718.) Although we give such statements by the Legislature great weight (Baggett v. Gates, supra, 32 Cal.3d at p. 136, 185 Cal.Rptr. 232, 649 P.2d 874), the resolution of constitutional challenges to state laws falls within the judicial power, not the legislative power. (County of Riverside, at pp , 132 Cal.Rptr.2d 713, 66 P.3d 718; Sonoma County, supra, 23 Cal.3d at p. 316, 152 Cal.Rptr. 903, 591 P.2d 1; Bishop, supra, 1 Cal.3d at p. 63, 81 Cal.Rptr. 465, 460 P.2d 137.) It is, emphatically, the province and duty of the judicial department, to say what the law is. (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 469, 20 Cal.Rptr.3d 428, 99 P.3d 1015, quoting Marbury v. Madison (1803) 5 U.S. 137, 177, 1 Cranch 137, 2 L.Ed Thomson Reuters. No claim to original U.S. Government Works. 11

53 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) ; see also ***544 Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1068, 17 Cal.Rptr.3d 225, 95 P.3d 459.) Moreover, we are especially hesitant to abdicate to the Legislature's view of the issue when [as here] the issue involves the division of power between local government and that same Legislature. (County of Riverside, at p. 286, 132 Cal.Rptr.2d 713, 66 P.3d 718.) *566 In this case, we conclude that no statewide concern has been presented justifying the state's regulation of the wages that charter cities require their contractors to pay to workers hired to construct locally funded public works. In light of our conclusion that there is no statewide concern here, we need not determine whether the state's prevailing wage law is reasonably related to... resolution of that concern (California Fed. Savings, supra, 54 Cal.3d at p. 17, 283 Cal.Rptr. 569, 812 P.2d 916) and is narrowly tailored to avoid unnecessary interference in local governance (id. at p. 24, 283 Cal.Rptr. 569, 812 P.2d 916). The trial court here was correct to deny plaintiff Union's petition for a writ of mandate, and the Court of Appeal properly affirmed the trial court's judgment. DISPOSITION We affirm the judgment of the Court of Appeal, which in turn affirmed the trial court's judgment denying the Union's petition for a writ of mandate. WE CONCUR: CANTIL SAKAUYE, C.J., BAXTER, CHIN, and CORRIGAN, JJ. Dissenting Opinion by WERDEGAR, J. This case requires that we resolve a dispute between the Legislature and a charter city, two entities granted specific lawmaking authority by our state Constitution. On the one hand, [t]he legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly... (Cal. Const., art. IV, 1.) The state Legislature wields the entire law-making authority of the state, except the people's right of initiative and referendum and may exercise any and all legislative powers which are not expressly or by necessary implication denied to it by the Constitution. (Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691, 97 Cal.Rptr. 1, 488 P.2d 161.) On the other hand, under what is alternately called the municipal home rule or municipal affairs doctrine, charter cities are empowered to make and enforce all ordinances and regulations in respect to municipal affairs, and such ordinances shall supersede all laws inconsistent therewith. (Cal. Const., art. XI, 5, subd. (a).) In this case, the Legislature exercised its lawmaking powers to enact sections 1720 to 1861 of the Labor Code, commonly referred to as the prevailing wage law, which generally requires payment of the prevailing wage to workers on publicly funded construction projects. By contrast, defendant City of Vista (Vista), a charter city, exercised its lawmaking powers to enact an ordinance that (in most instances) prohibits city contracts from requiring the payment of the prevailing wage. In this area of overlapping lawmaking authority, a constitutional tension exists. This court is the final arbiter of the meaning of the California Constitution. Unlike when we interpret state statutory law or federal constitutional law, *567 where our decisions can be overturned by, respectively, the Legislature or the United States Supreme Court, we are the last word on the meaning **1035 of the state Constitution. If we err, our decision can be corrected only by an amendment to that Constitution. Accordingly, when approaching a dispute between the Legislature and a ***545 charter city under the municipal affairs doctrine, we are charged with a solemn and delicate obligation to fairly balance conflicting interests and reasonably resolve the tension inherent in such disputes. The majority's approach to this case is neither fair nor reasonable. Instead, the majority goes astray by making a series of analytical missteps. First, in concluding Vista's ordinance comes within the protected zone of municipal affairs, the majority places unjustified weight on Vista's fiscal interest in saving money on the construction of public buildings, and relies on an outmoded Depression Era decision that interpreted a different law (maj. opn., ante, 143 Cal.Rptr.3d at pp , 279 P.3d at pp ) long ago eclipsed by more modern economic ideas. Second, by failing to appreciate the full impact of the prevailing wage law, the majority significantly undervalues the statewide economic concerns the law addresses, and fails to accord appropriate weight to the Legislature's express findings and declarations that the prevailing wage law should apply to charter cities and that it addresses a matter of statewide concern. Finally, the majority fails to recognize the difference critical in the context of municipal 2015 Thomson Reuters. No claim to original U.S. Government Works. 12

54 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) governance and independence between state regulations affecting public employees and those affecting private employees who contract with the city. For these reasons, I dissent. I. DISCUSSION As the majority recognizes, we resolve disputes over the scope of the municipal affairs doctrine by applying the test set forth in California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 283 Cal.Rptr. 569, 812 P.2d 916 (California Fed. Savings ). Preliminarily, we ask whether a charter city's exercise of legislative power falls within the zone of its municipal affairs and, if so, whether compliance with the local ordinance conflicts with state law. If a court determines that a local law addresses a matter within the municipal affairs of the charter city and that it conflicts with a state law, the court must then decide whether the state law addresses a matter of statewide concern what the California Fed. Savings court termed the bedrock inquiry through which the conflict between state and local interests is adjusted. (Id. at p. 17, 283 Cal.Rptr. 569, 812 P.2d 916.) If the subject of the statute fails to *568 qualify as one of statewide concern, then the conflicting charter city measure is a municipal affair and beyond the reach of legislative enactment. (Ibid.) But if the court is persuaded that the subject of the state statute is one of statewide concern and that the statute is reasonably related to its resolution, then the conflicting charter city measure ceases to be a municipal affair pro tanto and the Legislature is not prohibited by article XI, section 5(a), from addressing the statewide dimension by its own tailored enactments. (Ibid.) Requiring a showing of statewide concern as a condition of state legislative supremacy requires the state to articulate a dimension to the state law that demonstrably transcend[s] identifiable municipal interests. (California Fed. Savings, supra, 54 Cal.3d at p. 17, 283 Cal.Rptr. 569, 812 P.2d 916.) This in turn tends to ensure that areas which are of intramural concern only will not be invaded by the state, thereby preserving core values of charter city government. (Ibid.) As the majority acknowledges, the issue we decide today is a legal, not a factual, one (maj. opn., ante, 143 Cal.Rptr.3d at p. 537, 279 P.3d at pp ), and in resolving it we must undertake an evaluation of the facts and circumstances of each individual case, exercising independent review. ***546 (California Fed. Savings, supra, 54 Cal.3d at p. 24, fn. 21, 283 Cal.Rptr. 569, 812 P.2d 916.) [T]he Legislature is empowered neither to determine what constitutes a municipal affair nor to change such an affair into a matter of statewide concern. (Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63, 81 Cal.Rptr. 465, 460 P.2d 137.) [W]hat constitutes a matter of statewide concern is ultimately an issue for the courts to decide... (Baggett v. Gates (1982) 32 Cal.3d 128, 136, 185 Cal.Rptr. 232, 649 P.2d 874.) So too, a city's claim that **1036 some matter falls within the protected zone of the municipal affairs doctrine will be decided not by the city, but by the courts. A. Does Vista's Ordinance Come Within the Protected Zone of Municipal Affairs? The majority asserts that [t]he wage levels of contract workers constructing locally funded public works are certainly a municipal affair. (Maj. opn., ante, 143 Cal.Rptr.3d at pp , 279 P.3d at p ) No citation to authority is required to conclude that the provision and financing of a proper city infrastructure, whether it be housing, hospitals, libraries or other civic buildings, is the business of a city, chartered or otherwise. Vista has imposed a citywide sales tax increase to pay for the cost of the design, construction and renovation of some of its civic buildings. That these costs are to be borne by Vista alone, and not shared by the state, is a significant factor in favor of finding the public works at issue fall within the municipal affairs doctrine. (See Southern California Roads Co. v. McGuire (1934) 2 Cal.2d 115, , 39 P.2d 412 [because the entire cost of an *569 improvement to Sepulveda Blvd. in Los Angeles is to be met and defrayed by the state, the road project is not strictly a municipal affair of the city].) The question, however, is not whether the design and physical construction of Vista's civic buildings constitute a municipal affair, as they do, but whether Vista's choice not to require the private construction firms with which it has contracted (or will contract) to pay the state prevailing wage to its construction worker employees is also a matter within the city's municipal affairs. Vista contends a charter city's internal fiscal affairs, including labor and employment issues, necessarily fall within the municipal home rule doctrine. Of relevance is section 5, subdivision (b) of article XI of the California Constitution, which provides a nonexclusive list of the types of matters falling within the municipal home rule doctrine. That section provides: It shall be competent in all city charters to provide, in addition to those provisions 2015 Thomson Reuters. No claim to original U.S. Government Works. 13

55 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) allowable by this Constitution, and by the laws of the State for: (1) the constitution, regulation, and government of the city police force (2) subgovernment in all or part of a city (3) conduct of city elections and (4) plenary authority is hereby granted, subject only to the restrictions of this article, to provide therein or by amendment thereto, the manner in which, the method by which, the times at which, and the terms for which the several municipal officers and employees whose compensation is paid by the city shall be elected or appointed, and for their removal, and for their compensation, and for the number of deputies, clerks and other employees that each shall have, and for the compensation, method of appointment, qualifications, tenure of office and removal of such deputies, clerks and other employees. In light of this constitutional provision, the salary level of the mayor and city council members clearly falls within a city's municipal affairs, as does the compensation level of the city police force as well as those city employees involved in the subgovernment in all or part of a city ***547 such as deputies, clerks and other employees. (Cal. Const., art. XI, 5, subd. (b), italics added; see Bishop v. City of San Jose, supra, 1 Cal.3d 56, 81 Cal.Rptr. 465, 460 P.2d 137 [the Legislature did not intend the prevailing wage law to apply to electricians employed as city workers]; Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, , 152 Cal.Rptr. 903, 591 P.2d 1 [a state law precluding a salary increase for city and county employees violated the home rule provisions of the state Const.].) But the more removed workers are from the heart of city government, the less the city's legitimate interest in controlling their compensation. This case, for example, involves no Vista employee. Vista has contracted (or intends to contract) with private design and construction firms, which in turn have hired (or will hire) private construction workers, who will be paid not by Vista but by the construction firms. If a firm underbids the project, it is the firm, not the *570 city, that must still pay the workers. Accordingly, these contract workers cannot fairly be characterized as city employees who are necessary to maintain the subgovernment in all **1037 or part of a city (Cal. Const., art. XI, 5, subd. (b), item (2)), nor considered deputies, clerks and other employees of the city (id., item (4)). To reach its conclusion that Vista's zone of protected municipal affairs nevertheless includes the wages of private construction workers, the majority relies uncritically on City of Pasadena v. Charleville (1932) 215 Cal. 384, 10 P.2d 745 (Charleville ). Charleville involved the Public Wage Rate Act of 1931 (PWRA of 1931), a law of significantly less scope and statewide impact than the modern prevailing wage law at issue in this case. More importantly, Charleville's reasoning has been overtaken by history. In Charleville the court explained that the PWRA of 1931 was a law of limited scope because it did not purport to fix or provide for the fixation of the wage to be paid under all employment contracts, public and private (Charleville, at p. 390, 10 P.2d 745, italics added) and suggested that an act purporting to impose a broader, statewide regulation on wages would have encountered difficulties of constitutional questions (ibid., citing Adkins v. Children's Hospital (1923) 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785 [which invalidated a D.C. law imposing a minimum wage for women and minors] ). Adkins was a notable exemplar of the late Lochner 1 period in which the high court extolled the virtues of the freedom to contract over nearly all other freedoms. As is well known, the principles animating that bygone era of constitutional jurisprudence were thereafter repudiated by the United States Supreme Court, and Adkins itself was specifically overruled in West Coast Hotel Co. v. Parrish (1937) 300 U.S. 379, 400, 57 S.Ct. 578, 81 L.Ed (See generally Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, , 130 Cal.Rptr. 465, 550 P.2d 1001.) Contrary to Charleville's premise that the United States Constitution prohibited state legislatures from imposing a minimum wage law, that the California Legislature may provide for minimum wages for workers is now firmly established. (Cal. Const., art. XIV, 1 [ The Legislature may provide for minimum wages and for the general welfare of employees... ].) Accordingly, whether a state may enforce laws such as the prevailing wage law to address matters of statewide concern has been untethered from the artificially created ***548 constitutional constraints of the Lochner era. In light of this erosion of the legal assumptions underlying Charleville, supra, 215 Cal. 384, 10 P.2d 745, and because the PWRA of 1931 was markedly less extensive than the modern prevailing wage law, Charleville cannot be considered persuasive today. Moreover, given the obvious changes to our state's economy since 1932 when Charleville was decided, i.e., its growth *571 and interdependence, the case was long ago eclipsed by more modern economic ideas. Common sense dictates that we abandon Charleville as precedent and consign it to the dustbin of history. (See Pac. Tel. & Tel. Co. v. City & County of S.F. (1959) 51 Cal.2d 766, 2015 Thomson Reuters. No claim to original U.S. Government Works. 14

56 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) , 336 P.2d 514 [ What may at one time have been a matter of local concern may at a later time become a matter of state concern controlled by the general laws of the state. ].) Because Vista's interest in controlling the wages of private contract workers is much less than its interest in dictating wage levels of its own employees, and absent the legitimizing effect of Charleville, supra, 215 Cal. 384, 10 P.2d 745, as precedent, the sole remaining consideration supporting Vista's assertion of its municipal autonomy is its desire to save money on its planned public works projects. Every government, state or local, naturally has an interest in conserving public funds. But this general desire is insufficient of itself to invoke the municipal affairs doctrine. Were it otherwise, no state law could ever prevail over local desires, for all conflicting state laws have the potential to increase a city's costs, whether it be to allow a city's firefighters to unionize (Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, 32 Cal.Rptr. 830, 384 P.2d 158), require cities to meet and confer in good faith with employee representatives regarding wages and hours (People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 205 Cal.Rptr. 794, 685 P.2d 1145), or give peace officers an **1038 administrative appeal before demoting them (Baggett v. Gates, supra, 32 Cal.3d 128, 185 Cal.Rptr. 232, 649 P.2d 874). Vista must point to more than a ledger sheet to justify its contention that its ordinance falls within the municipal affairs doctrine. B. Does the Prevailing Wage Law Address a Matter of Statewide Concern? The relative strength of Vista's interest in preserving its public fisc aside, the crux of this case is the majority's conclusion that the prevailing wage law fails to address a matter of statewide concern. (Maj. opn., ante, 143 Cal.Rptr.3d at pp , 279 P.3d at pp ) In reaching that conclusion, the majority disregards the prevailing wage law's far-reaching economic impact on our state economy. The Legislature has recognized the scope of the prevailing wage law's statewide effect, having explicitly declared its intent in 2002 that [p]ayment of the prevailing rate of per diem wages to workers employed on public works projects is necessary to attract the most skilled workers for those projects and to ensure that work of the highest quality is performed on those projects (Stats.2002, ch. 892, 1, subd. (a)(1), p. 5541), that [p]ublic works projects should never undermine the wage base in a community, and requiring that workers on public works projects are paid the prevailing rate of per diem wages ensures that wage base is not lowered (id., subd. (a)(2)), and that it is a matter of statewide concern that public works undertaken by public agencies pay workers the *572 prevailing wage (id., subd. (a)(3)). A year later, in a 2003 concurrent resolution, the Legislature addressed the prevailing wage law specifically with regard to ***549 charter cities, declaring that the state prevailing wage law [should] apply broadly to all projects subsidized with public funds, including the projects of chartered cities, as the law addresses important statewide concerns... (Sen. Conc. Res. No. 49, Stats ( Reg. Sess.) res. ch. 135, p. 6834, italics added.) These legislative statements are entitled to great weight (California Fed. Savings, supra, 54 Cal.3d at p. 24, fn. 21, 283 Cal.Rptr. 569, 812 P.2d 916 [give great weight to legislative statements of purpose ]; Bishop v. City of San Jose, supra, 1 Cal.3d at p. 63, 81 Cal.Rptr. 465, 460 P.2d 137 [same] ), a rule the majority acknowledges (maj. opn., ante, 143 Cal.Rptr.3d at pp , 279 P.3d at pp ) but fails to honor. Even aside from the Legislature's considered views, that the prevailing wage law addresses substantial statewide concerns that would be undermined were charter cities allowed to opt out of the law is not a close question. As a general matter, we have held that the promotion of uniform fair labor standards is an important statewide concern sufficient to override local prerogatives. For example, we held in People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach, supra, 36 Cal.3d 591, 205 Cal.Rptr. 794, 685 P.2d 1145, that the meet-and-confer provision of the Meyers Milias Brown Act (MMBA) ( Gov.Code, 3505) was enforceable against the City of Seal Beach, a charter city, despite its city charter amendment providing, among other things, for the immediate termination of any city employee who participated in a labor strike. We noted that one of the purposes of the MMBA was to improve personnel management and employer-employee relations within the various public agencies (Seal Beach, at p. 597, 205 Cal.Rptr. 794, 685 P.2d 1145), and that [t]he meet-and-confer requirement is an essential component of the state's legislative scheme for regulating the city's employment practices (id. at p. 599, 205 Cal.Rptr. 794, 685 P.2d 1145). As such, that state interest outweighed the city's admitted power authorized by the state Constitution under article XI, section 3, subdivision (b) to amend its city charter. Similarly, in Professional Fire Fighters, Inc. v. City of Los Angeles, supra, 60 Cal.2d 276, 32 Cal.Rptr. 830, 384 P.2d 2015 Thomson Reuters. No claim to original U.S. Government Works. 15

57 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) , the City of Los Angeles, a charter city, argued that application of Labor Code section 1960, 2 which guarantees firefighters the right to **1039 join a union, addressed a matter of purely local concern, and that prior case law had held that all matters connected with public employment in a chartered city are municipal affairs [citations]. (Professional Fire Fighters, at p. 291, 32 Cal.Rptr. 830, 384 P.2d 158.) This court rejected the argument, explaining that an examination of the Legislature's intent when enacting section 1960 and several related statutes *573 revealed the Legislature was attempting to deal with labor relations on a statewide basis. (Professional Fire Fighters, at p. 294, 32 Cal.Rptr. 830, 384 P.2d 158.) By enacting those state laws, the Legislature adopted general policies and provided general rights and obligations of labor and management throughout the state. (Ibid., italics added.) The total effect of all this legislation was not to deprive local government (chartered city or otherwise) of the right to manage and control its fire departments but to create uniform fair labor practices throughout the state. As such, ***550 the legislation may impinge upon local control to a limited extent, but it is nonetheless a matter of state concern. (Id. at pp , 32 Cal.Rptr. 830, 384 P.2d 158, italics added, quoted with approval in Baggett v. Gates, supra, 32 Cal.3d at p. 139, 185 Cal.Rptr. 232, 649 P.2d 874.) Labor relations are of the same statewide concern as workmen's compensation, liability of municipalities for tort, [and] perfecting and filing of claims..., all of which have been held to be governed by general law in contravention of local regulation by chartered cities. (Professional Fire Fighters, at p. 295, 32 Cal.Rptr. 830, 384 P.2d 158.) The prevailing wage law is to the same effect. Article XIV of the California Constitution is entitled Labor Relations. Section 1 of that article provides that [t]he Legislature may provide for minimum wages and for the general welfare of employees... The Legislature is thus granted specific constitutional authority to address labor issues on a statewide scale. It exercised that power by enacting the Labor Code, providing expressly that [i]t is the policy of this state to vigorously enforce minimum labor standards in order to ensure employees are not required or permitted to work under substandard unlawful conditions or for employers that have not secured the payment of compensation, and to protect employers who comply with the law from those who attempt to gain a competitive advantage at the expense of their workers by failing to comply with minimum labor standards. (Lab.Code, 90.5, subd. (a).) By first enacting the PWRA in 1931, and then replacing it a few years later with the much expanded prevailing wage law, the Legislature created an economic framework, applicable throughout the state, protecting Californians who work in the construction trades and, by extension, the viability of the construction industry as a whole. The overall purpose of the prevailing wage law is to protect and benefit employees on public works projects. (Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 985, 4 Cal.Rptr.2d 837, 824 P.2d 643.) This general objective subsumes within it a number of specific goals: to protect employees from substandard wages that might be paid if contractors could recruit labor from distant cheap-labor areas; to permit union contractors to compete with nonunion contractors; to benefit the public through the superior efficiency of well-paid employees; and to compensate nonpublic employees with higher wages for the absence of job security and employment benefits enjoyed by public employees. (Id. at p. 987, 4 Cal.Rptr.2d 837, 824 P.2d 643, quoted *574 with approval in City of Long Beach v. Department of Industrial Relations (2004) 34 Cal.4th 942, 949, 22 Cal.Rptr.3d 518, 102 P.3d 904.) The evolution of the modern prevailing wage law strongly supports the Legislature's considered view that the wages paid on publicly funded construction projects impacts more than local concerns. As the majority recognizes (maj. opn., ante, 143 Cal.Rptr.3d at pp , 279 P.3d at pp ), wage schedules are now established at the state rather than the local level, and the state Director of the Department of Industrial Relations considers wage levels throughout regional economies instead of focusing on a particular locality. This trend toward economic regionalization (maj. opn., ante, at p. 539, 279 P.3d at p. 1030) makes sense in the modern, post 1932 world (see dis. opn., **1040 ante, at p. 547, 279 P.3d at pp ) where, as an expert for plaintiff State Building and Construction Trades Council of California, AFL CIO (SBCTC) testified below, construction workers travel many miles from their homes to jobsites in the region. To allow Oakland to pay construction ***551 workers significantly less than Berkeley, or Anaheim less than Santa Ana, would logically create downward pressure on wages 3 throughout the respective regions, leading to an economic race to the bottom, as contractors union and nonunion scramble to underbid competitors for construction contracts. When wages are sufficiently depressed, workers leave the construction trades, requiring California, when the state's economy is flush and construction projects could flourish, to import skilled construction workers from outside the state. That 2015 Thomson Reuters. No claim to original U.S. Government Works. 16

58 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) situation negatively affects not just a city's local economy, but California's state economy as a whole. The prevailing wage law supports the statewide economy in a second way, mentioned but discounted by the majority (maj. opn., ante, 143 Cal.Rptr.3d at pp , 279 P.3d at pp ), requiring contractors on public works projects to participate in a statewide apprenticeship program. This program allows apprentices in the construction trades to learn on the job, ensuring the state will be supplied with a steady stream of skilled and semi-skilled workers in the construction industry. Between April and June 1994, California had 175 joint apprenticeship *575 programs... (California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc. (1997) 519 U.S. 316, 327, fn. 5, 117 S.Ct. 832, 136 L.Ed.2d 791.) According to SBCTC's expert, [m]ore than 50,000 men and women are currently indentured in State-approved apprenticeship programs in the construction trades in California. The Legislature has declared that apprenticeship programs are a vital part of the educational system in California (Stats.1999, ch. 903, 1, pp ) and that [t]he state's system for promoting quality apprenticeship training in the construction trades depends upon the incentives provided by the prevailing wage law (Sen. Conc. Res. No. 49, Stats ( Reg. Sess.) res. ch. 135, p. 6834). Allowing charter cities to opt out of the prevailing wage law undermines this program by affording them the benefit of it (by using workers trained in state apprenticeship programs) without their paying for the privilege. In his declaration below, SBCTC's expert explained: Because of the unstable nature of construction-industry employment, a particular contractor might not be willing to invest the resources in training an apprentice for a multi-year period and might not be able to expose individual apprentices to all the different work processes necessary to become a journey-level worker in the craft. The current system of multi-employer apprenticeship programs allows the industry ***552 to share the costs, burdens and rewards of training new workers. The success of apprenticeship programs is vital to training the next generation of skilled construction workers in California. The prevailing wage law bolsters the State's apprenticeship training system by requiring contractors on public work who employ workers in apprenticeable crafts to use apprentices from state-approved programs to meet a specified minimum ratio of apprentice hours to journeyperson hours. The contractors **1041 are permitted to pay these apprentices at a lower wage rate. In this way, the prevailing wage law provides employment for apprentices so they can obtain the necessary on-the-job training in a variety of work processes to graduate from the programs. Absent the prevailing wage law, contractors that invest in apprenticeship training would find themselves at a competitive disadvantage to contractors that do not invest in apprenticeship training. Nonparticipating contractors could seek to hire apprenticeshipprogram graduates without having contributed to the cost of their training. Against the considerable weight of the evidence that the prevailing wage law addresses an issue of statewide concern, the majority's answer is not to engage the issue, but to reframe the question. The majority thus asserts that the question is not whether regional labor standards and apprenticeship programs address an issue of statewide concern, but whether the state can require a charter city to exercise its purchasing power in the construction *576 market in a way that supports regional wages and subsidizes vocational training, while increasing the charter city's costs. (Maj. opn., ante, 143 Cal.Rptr.3d at p. 540, 279 P.3d at p ) What this reframing ignores is that the entire premise of the dispute before us, and the one that has continued to vex courts over the years, is that the state can sometimes override a city's local choices even financial ones so long as it has sufficient reason (i.e., with a state law addressed to strong statewide concerns). Moreover, in focusing narrowly on Vista's costs, the majority fails to adhere to the California Fed. Savings test that requires us to use a wide-angle lens, cautioning that courts should avoid the error of compartmentalization, that is, of cordoning off an entire area of governmental activity as either a municipal affair or one of statewide concern. (California Fed. Savings, supra, 54 Cal.3d at p. 17, 283 Cal.Rptr. 569, 812 P.2d 916.) Thus, while the effect of the prevailing wage law, as the majority laments, may be that Vista and other charter cities pay more for their public works projects, the purpose of the prevailing wage law, which the majority ignores, is not to make them pay more but to stabilize and support the construction trades. The latter is unquestionably a matter of substantial statewide concern. Finally, in reframing the question, the majority gives the prevailing wage law a cramped and limited construction, failing to appreciate the sweeping nature of the legislation and viewing it instead as an unwarranted control on local spending priorities. But courts must give the prevailing wage 2015 Thomson Reuters. No claim to original U.S. Government Works. 17

59 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) law a liberal construction so that the general purpose and goals of the law are not defeated. (City of Long Beach v. Department of Industrial Relations, supra, 34 Cal.4th at p. 950, 22 Cal.Rptr.3d 518, 102 P.3d 904; McIntosh v. Aubry (1993) 14 Cal.App.4th 1576, 1589, 18 Cal.Rptr.2d 680 [ Courts will liberally construe prevailing wage statutes... ]; State Building & Construction Trades Council of California v. Duncan (2008) 162 Cal.App.4th 289, 324, 76 Cal.Rptr.3d 507 [same].) ***553 Having reframed the issue to be decided, the majority asserts the case is controlled by Sonoma County Organization of Public Employees v. County of Sonoma, supra, 23 Cal.3d 296, 152 Cal.Rptr. 903, 591 P.2d 1, San Francisco Labor Council v. Regents of University of California (1980) 26 Cal.3d 785, 163 Cal.Rptr. 460, 608 P.2d 277, and County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 132 Cal.Rptr.2d 713, 66 P.3d 718. (Maj. opn., ante, 143 Cal.Rptr.3d at pp , 279 P.3d at pp ) But one key factor distinguishes those cases: all involved the wages of (or labor disputes involving) a public entity's actual employees. While the municipal home rule doctrine is concerned with state intrusion into the affairs of cities, and the state Constitution specifically mentions certain city employees (Cal. Const., art. XI, 5, subd. (b)), neither the home rule doctrine nor the three cases cited have much to say about those not employed by the city. *577 Unlike the public employees involved in Sonoma County, San Francisco Labor Council, and County of Riverside, the workers affected by the instant case are not, and cannot be considered, Vista's employees. They are workers in the construction trades electricians, plumbers, roofers, landscapers, **1042 carpenters who presumably have traveled from many areas in the region, and who have been, or will be, hired by the construction firms the city has engaged or will engage. None of the trio of cases cited by the majority undermines the conclusion that the prevailing wage law addresses a matter of substantial statewide concern for those not employed by charter cities, counties or the state's public universities. The majority inexplicably finds this key factor irrelevant. (Maj. opn., ante, 143 Cal.Rptr.3d at p. 542, 279 P.3d at p ) But a charter city's power to control the compensation of its employees, especially those integral to municipal governance, is expressly recognized by the state Constitution. (Cal. Const., art. XI, 5, subd. (b).) The compensation of private contract workers is not. II. CONCLUSION The California Legislature long ago decided that stabilizing the construction trades and ensuring a steady supply of skilled and semi-skilled workers in those trades was beneficial to our state's long-term economic health. Accordingly, the Legislature, like many other states, 4 the federal government, 5 and even some cities, ***554 6 enacted a prevailing wage law, requiring public entities to *578 pay the prevailing wage in the region to construction workers who toil on publicly funded construction projects. Allowing charter cities 7 to opt out of the constraints of that state law not for any reason touching on municipal governance or independence, but simply to save the city money seriously undermines the goals of the prevailing wage law and is contrary to the explicit intent of the Legislature. 8 Even were the issue close, which it is **1043 not, applicable precedent requires this court to err on the side of upholding state power. There must always be doubt whether a matter which is of concern to both municipalities and the state is of sufficient statewide concern 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, supra, 32 Cal.3d at p. 140, 185 Cal.Rptr. 232, 649 P.2d 874, quoted with approval in California Fed. Savings, supra, 54 Cal.3d at p. 24, 283 Cal.Rptr. 569, 812 P.2d 916.) Because the majority mistakenly characterizes Vista's interest in saving money on its construction projects as falling within the municipal affairs doctrine, and concomitantly fails to accord sufficient weight to the obvious statewide economic interests served by the prevailing wage law, I dissent. I CONCUR: LIU, J. *579 Dissenting Opinion by LIU, J. I join Justice Werdegar's dissent. I write separately to highlight additional shortcomings in the court's analysis that prevent it from properly resolving this case. The court holds that article XI, section 5 of the California Constitution, the municipal ***555 home rule provision, bars the Legislature from requiring charter cities to pay prevailing wages to construction workers on public works 2015 Thomson Reuters. No claim to original U.S. Government Works. 18

60 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) projects. While generally stating the applicable law correctly, the court fails to bridge the wide analytical gap between that law and the result it reaches. The court employs a vague analysis that puts great weight on a few factors while refusing to consider other factors that the opinion itself concedes are pertinent to determining whether the prevailing wage law should apply to charter cities. As a result, no clear legal principle emerges from the court's opinion, even as it repeatedly insists that the issue before us is a question of law. Today's decision is a misstep as a matter of method as well as result. Unlike cases where a state law limits a municipal prerogative specifically protected by constitutional text, the instant dispute is one with no unmistakable signs to guide us between the domain of state and local powers. (Ex parte Daniels (1920) 183 Cal. 636, 640, 192 P. 442.) Accordingly, our instinct toward judicial restraint should be at its peak. The court, however, casts restraint aside and arbitrarily curtails the Legislature's power. Because the court moves incautiously in an area where it becomes us to exercise more than the usual caution (ibid.), I respectfully dissent. I. Article XI, section 5, subdivision (a) of the California Constitution provides: It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws. City charters adopted pursuant to this Constitution shall supersede any existing charter, and with respect to municipal affairs shall supersede all laws inconsistent therewith. Subdivision (b) further provides: It shall be competent in all city charters to provide, in addition to those provisions allowable by this Constitution, and by the laws of the State for: (1) the constitution, regulation, and government of the city police force[,] (2) subgovernment in all or part of a city[,] (3) conduct of city elections[,] and (4) plenary authority is hereby granted, subject only to the restrictions of this article, to provide therein or by amendment thereto, the manner in which, the method by which, the times at which, and the terms for which the several municipal officers and employees whose compensation is paid by the city *580 shall be elected or appointed, and for their removal, and for their compensation, and for the number of deputies, clerks and other employees that each shall **1044 have, and for the compensation, method of appointment, qualifications, tenure of office and removal of such deputies, clerks and other employees. (Italics added.) As the court correctly states, under this article the ordinances of charter cities supersede state law with respect to municipal affairs'... but state law is supreme with respect to matters of statewide concern. (Maj. opn., ante, 143 Cal.Rptr.3d at p. 532, 279 P.3d at p ) Determining what constitutes a municipal affair or a matter of statewide concern in the course of resolving conflicts between state mandates and municipal prerogatives has not been an easy task. Nevertheless, several important principles have emerged from our cases. First, when we have considered California Constitution article XI, section 5 and similar constitutional home rule provisions for counties and for the University of California, we have been most protective of ***556 home rule prerogatives explicitly recognized in the text of our Constitution. Most prominently, we have limited or invalidated state laws that unduly interfere with the prerogative of local governments to set the salaries of their own employees. (See County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 132 Cal.Rptr.2d 713, 66 P.3d 718; San Francisco Labor Council v. Regents of the University of California (1980) 26 Cal.3d 785, 163 Cal.Rptr. 460, 608 P.2d 277; Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 152 Cal.Rptr. 903, 591 P.2d 1 (County of Sonoma ).) Second, in determining whether a state statute may be applied to a charter city, we have examined the extramural or extramunicipal dimension of the statute that is, the reach of the statute beyond merely controlling local matters. (California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 17, 23 24, 283 Cal.Rptr. 569, 812 P.2d 916 (CalFed ).) A strong extramunicipal dimension supports the conclusion that the statute may be imposed on charter cities. (See ibid.; Baggett v. Gates (1982) 32 Cal.3d 128, , 185 Cal.Rptr. 232, 649 P.2d 874; Pac. Tel. & Tel. Co. v. City & County of San Francisco (1959) 51 Cal.2d 766, , 336 P.2d 514 (Pacific Telephone ).) In making this determination, we have examined not simply the statute's stated goals, but also whether the statute is reasonably related to those goals. (Johnson v. Bradley (1992) 4 Cal.4th 389, 410, 14 Cal.Rptr.2d 470, 841 P.2d 990.) Statutes that seek to micromanage municipal affairs without any clear extramunicipal objective have been held 2015 Thomson Reuters. No claim to original U.S. Government Works. 19

61 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) inapplicable to charter cities. (See, e.g., County of Sonoma, supra, 23 Cal.3d at pp , 152 Cal.Rptr. 903, 591 P.2d 1 [finding no extramunicipal statewide concern to justify a state law restricting state funds to cities that grant cost-ofliving increases to their employees].) *581 Third, courts will also assess the degree to which a state law actually intrudes into municipal prerogatives. The fact that a state law constrains local decisionmaking, even in traditional areas of home rule, does not by itself establish a sufficient degree of intrusion to render the state law inapplicable to charter cities. Thus, for example, we have held that state law may govern numerous aspects of employment relations where the state law allows local governments the ultimate say in managing and compensating their employees. (See People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 600, 205 Cal.Rptr. 794, 685 P.2d 1145 (Seal Beach ) [ [I]n an unbroken series of public employee cases,... it has been held that a general law prevails over local enactments of a chartered city, even in regard to matters which would otherwise be deemed to be strictly municipal affairs, where the subject matter of the general law is of statewide concern. [Citation.] ]; id. at p. 601, 205 Cal.Rptr. 794, 685 P.2d 1145 [statutory duty to meet and confer with employees over changes in conditions of employment applies to charter cities]; Baggett v. Gates, supra, 32 Cal.3d at p. 140, 185 Cal.Rptr. 232, 649 P.2d 874 [Public Safety Officers' Procedural Bill of Rights applies to charter cities]; Professional Ass'n Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, , 32 Cal.Rptr. 830, 384 P.2d 158, [statutory right of firefighters to join unions applies to charter cities].) Fourth, in considering what constitutes a municipal affair or statewide concern, courts **1045 should avoid the error of compartmentalization, that is, of cordoning off an entire area of governmental activity as either a municipal affair or one of statewide concern. ***557 (CalFed, supra, 54 Cal.3d at p. 17, 283 Cal.Rptr. 569, 812 P.2d 916.) The reason courts should avoid such compartmentalization is that the constitutional concept of municipal affairs is not a fixed or static quantity... [but one that] changes with the changing conditions upon which it is to operate. (Id. at pp , 283 Cal.Rptr. 569, 812 P.2d 916, quoting Pacific Telephone, supra, 51 Cal.2d at p. 771, 336 P.2d 514.) This principle has operated with particular force when the case involves asserted home rule prerogatives not explicitly protected by the text of Constitution article XI, section 5. (See CalFed, supra, 54 Cal.3d at pp , 283 Cal.Rptr. 569, 812 P.2d 916 [upholding state law displacing municipal tax on savings banks]; Pacific Telephone, supra, 51 Cal.2d at p. 766, 336 P.2d 514 [upholding state law displacing municipal control of construction and maintenance of telephone lines].) A corollary of this fourth principle is that in order to determine the shifting boundaries between state and municipal legislative power, courts will engage in a factual inquiry to understand the nature of historical changes relevant to the determination. In some cases, the evidence considered will be general, judicially noticeable facts. (See, e.g., Pacific Telephone, supra, 51 Cal.2d at p. 776, 336 P.2d 514 [relying on a vast change in conditions related to telephone service over the previous 50 years to conclude that placing telephone lines in city streets is not at the present time a municipal affair but is a matter of statewide concern ].) In other cases, the factual inquiry has involved an examination of legislative findings and evidence in the trial record. (See *582 CalFed, supra, 54 Cal.3d at pp & fn. 21, 283 Cal.Rptr. 569, 812 P.2d 916 [engaging in extensive analysis of legislative and trial court findings to conclude that a statute eliminating the power of local entities to tax savings banks applies to charter cities].) As CalFed explained: When a court invalidates a charter city measure in favor of a conflicting state statute, the result does not necessarily rest on the conclusion that the subject matter of the former is not appropriate for municipal regulation. It means, rather, that under the historical circumstances presented, the state has a more substantial interest in the subject than the charter city. (Id. at p. 18, 283 Cal.Rptr. 569, 812 P.2d 916.) At the same time, a decision favoring a charter city measure [does not] preclude superseding state legislation in a later case if the fact-bound justification the statewide dimension is subsequently demonstrated. (Ibid.) [T]he hinge of the decision, CalFed said, is the identification of a convincing basis for legislative action originating in extramunicipal concerns, one justifying legislative supersession based on sensible, pragmatic considerations. (Ibid., italics added.) Finally, and critically, we have long held that [w]hen there is a doubt as to whether an attempted regulation relates to a municipal or to a state matter, or if it be the mixed concern of both, the doubt must be resolved in favor of the legislative authority of the state. (Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 681, 3 Cal.Rptr. 158, 349 P.2d 974; see CalFed, supra, 54 Cal.3d at p. 24, 283 Cal.Rptr. 569, 812 P.2d 916; Baggett v. Gates, supra, 32 Cal.3d at p. 140, 185 Cal.Rptr. 232, 649 P.2d 874.) The basis for this rule was articulated long ago in Ex parte Daniels, supra, 183 Cal Thomson Reuters. No claim to original U.S. Government Works. 20

62 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) at p. 640, 192 P. 442: with no unmistakable signs to guide us between the domain of state and local powers, it becomes us to exercise more than the usual caution not to refuse the sanction of judicial authority to legislation which is supposed to have exceeded a boundary so difficult to locate and define. This principle is a variant of the general proposition, ***558 rooted in the separation of powers, that [i]f there is any doubt as to the Legislature's power to act in any given case, the doubt should be resolved in favor of the Legislature's action. Such restrictions and limitations [imposed by the Constitution ] are to be construed strictly... (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180, 172 Cal.Rptr. 487, 624 P.2d 1215, bracketed language and italics in Pacific Legal Foundation.) With these principles in mind, let us now examine today's opinion. **1046 II. The court ignores or misapplies the principles above in conducting its analysis. First and foremost, the court discounts as irrelevant the record evidence demonstrating the state's extramunicipal interest in supporting construction labor markets and apprenticeship programs. Although the Court of Appeal below concluded that the evidentiary record and legislative findings *583 were insufficient to establish that the prevailing wage law significantly furthered the state's interests, the court rejects this approach. It proceeds instead on the theory that the facts demonstrating the state's interest merit little or no consideration because the issue before us is a question of law. Factual findings by the Legislature or the trial court... are not controlling. [Citation.] The decision as to what areas of governance are municipal concerns and what are statewide concerns is ultimately a legal one. (Maj. opn., ante, 143 Cal.Rptr.3d at p. 537, 279 P.3d at p ) But the court jousts with a strawman. No one suggests that factual findings by the Legislature or trial court should be controlling. The important point, amply supported by our precedents (see ante, 143 Cal.Rptr.3d at pp , 279 P.3d at pp ), is that such findings are relevant to the inquiry. The court actually acknowledges this point, as it must, when it says [o]f course, the inquiry is not wholly removed from historical, and hence factual, realities (maj. opn., ante, at p. 536, 279 P.3d at p. 1028) and then recites the above quoted guidance from CalFed, supra, 54 Cal.3d at pages 17 18, 283 Cal.Rptr. 569, 812 P.2d 916, emphasizing the factual and historical nature of the inquiry. This recitation turns out to be an empty gesture, however, for one searches in vain for any discernible application of CalFed' s guidance in the court's analysis of the prevailing wage law. Simply put, there is none. That is not to say that the historical and factual justifications for the prevailing wage law go unmentioned in today's opinion. The court devotes four detailed paragraphs to describing a declaration submitted by an expert for plaintiff State Building and Construction Trades Council of California, AFL CIO. (Maj. opn., ante, 143 Cal.Rptr.3d at pp , 279 P.3d at pp ) As the court says, the declaration explains the prevailing wage law's beneficial effects on construction labor markets, the increasing regionalization of those labor markets as workers travel long distances to a jobsite, the fact that wages are generally set regionally rather than locally, and the importance of the prevailing wage law in supporting apprenticeship programs that train the next generation of skilled workers. (Ibid.) After reading this lengthy and quite plausible explanation of why the Legislature enacted the prevailing wage law, one might expect some analysis that examines how much weight the historical and factual underpinnings of the law should have in determining whether it addresses a matter of statewide concern. One might expect ***559 some explanation, in light of the court's holding, of why the record falls short of identifying a convincing basis for legislative action originating in extramunicipal concerns, one justifying legislative supersession based on sensible, pragmatic considerations. (CalFed, supra, 54 Cal.3d at p. 18, 283 Cal.Rptr. 569, 812 P.2d 916.) But rather than assess the record evidence, the court simply waves it away and changes the subject: Certainly regional labor standards and the proper training of construction workers are statewide concerns when *584 considered in the abstract. But the question presented here is not whether the state government has an abstract interest in labor conditions and vocational training. Rather, the question presented is whether the state can require a charter city to exercise its purchasing power in the construction market in a way that supports regional wages and subsidizes vocational training, while increasing the charter city's costs. No one would doubt that the state could use its own resources to support wages and vocational training in the state's construction industry, but can the state achieve these ends by interfering in the fiscal policies of charter cities? [W]e can think of nothing that is of greater municipal concern than how a city's tax dollars will 2015 Thomson Reuters. No claim to original U.S. Government Works. 21

63 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) be spent; nor anything which could be of less interest to taxpayers of other jurisdictions. **1047 (Johnson v. Bradley, supra, 4 Cal.4th at p. 407, 14 Cal.Rptr.2d 470, 841 P.2d 990.) Therefore, the Union here cannot justify state regulation of the spending practices of charter cities merely by identifying some indirect effect on the regional and state economies. (Maj. opn., ante, 143 Cal.Rptr.3d at p. 540, 279 P.3d at p. 1031, original italics.) This passage merits several comments. To begin with, in labeling the state's interest abstract, the court does nothing more than employ a rhetorical device to diminish the importance of that interest. The court does not explain in what sense the state's interest in supporting regional labor markets and apprenticeship programs designed to maintain a highly skilled, well-paid construction workforce throughout California is abstract. Surely the court is not faulting the Legislature, the representative body for our entire state, for legislating on the basis of labor market trends, public policy goals, and laws of supply and demand that have not been particularized to, say, the City of Vista or San Diego County. If the court is instead using abstract to mean that the Legislature has not sufficiently demonstrated that the prevailing wage law will truly benefit regional labor markets and support apprenticeship programs, then one would expect the court to hold, with the Court of Appeal, that there was insufficient evidence in the record to establish the law's efficacy. But the court rejects that position, so the sufficiency of the evidence cannot really be the court's concern. If the court uses the term abstract to mean that the present inquiry requires us to consider the statewide concern not in isolation but in relation to the asserted municipal interests, then I agree. But if we are to assess the relative strengths of the state and local interests, then why should we not look to evidence bearing on the respective strengths of those interests? That is precisely the kind of evidence we examined in CalFed to determine that the state acted constitutionally in eliminating what had formerly been a local prerogative. (CalFed, supra, 54 Cal.3d at pp & fn. 21, 283 Cal.Rptr. 569, 812 P.2d 916.) It is also the kind of evidence pertinent to assessing whether the extramunicipal dimension of the state law at issue is robust or trivial. (See ante, 143 Cal.Rptr.3d at p. 556, 279 P.3d at p ) Yet the court simply dismisses the state interest ***560 as abstract without any meaningful evaluation of its factual and historical underpinnings. *585 The court instead focuses on the fact that the state seeks to regulate a charter city's purchasing power in a manner that increas[es] the charter city's costs. (Maj. opn., ante, 143 Cal.Rptr.3d at p. 540, 279 P.3d at p ) But it is hardly clear that a charter city's interest in how its tax dollars are spent is any less abstract for present purposes than the state's interest in its legitimate policy goals. Our precedents unambiguously indicate that a charter city's general interest in controlling its tax dollars is not by itself sufficient to render inapplicable a state law that addresses a statewide concern. In Seal Beach, supra, 36 Cal.3d 591, 205 Cal.Rptr. 794, 685 P.2d 1145, for example, we held that the meet and confer requirement of the Meyers Milias Brown Act (MMBA; Gov.Code 3500 et seq.) did not conflict with the prerogatives of a charter city to propose charter amendments affecting employment relations. As a sheer matter of dollars and cents, the marginal cost to cities of administering the MMBA, which requires city management to negotiate to impasse with its employees regarding compensation and other employment terms, is probably at least as great as requiring cities to pay a prevailing wage when they contract out for public works. The statutory protections to assure fair labor practices in police departments and fire departments that we upheld against home rule challenges in Baggett v. Gates, supra, 32 Cal.3d 128, 185 Cal.Rptr. 232, 649 P.2d 874, and Professional Fire Fighters, Inc. v. City of Los Angeles, supra, 60 Cal.2d 276, 32 Cal.Rptr. 830, 384 P.2d 158, respectively, likewise imposed substantial monetary costs on the affected municipalities. Indeed, almost every state regulation, including laws specifically directed at government entities, impacts the way a city spends its money and other resources. In addition to labor and employment laws, environmental laws like the California Environmental Quality Act require the expenditure of substantial municipal **1048 resources to enforce. Unless the court intends to invite home rule challenges to a very broad swath of state laws, the fact that a state law increases a charter city's costs or otherwise constrains what a city can do with its money cannot be the determinative factor, or even the primary factor, in the present analysis. While forcefully invoking the city's fiscal interests (see maj. opn., ante, 143 Cal.Rptr.3d at p. 540, 279 P.3d at p [ Autonomy with regard to the expenditure of public funds lies at the heart of what it means to be an independent governmental entity. ] ), the court does not acknowledge, much less grapple with, the readily apparent limitations on this rationale for immunizing a charter city from an otherwise applicable state law. Instead, the court opts for 2015 Thomson Reuters. No claim to original U.S. Government Works. 22

64 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) an undiscriminating, categorical approach that holds the prevailing wage law inapplicable to charter cities, no matter how strong the state's interest or how slight the intrusion into the charter city's treasury. Notably, the City of Vista has not put forward any evidence indicating how much, if at all, the prevailing wage law would increase the city's costs for the public works projects at issue. One might wonder, on the principle that you get what you pay for, whether the higher wages required by the prevailing wage law are at least partially offset by the *586 higher productivity of better paid, better skilled workers. (See Mahalia, Prevailing Wages in Government Contract Costs: A Review of the Research (2008) p. 2.) Because the court's reasoning does not depend on any facts as to how much the prevailing wage law will actually increase the city's costs, presumably even an increase of one dollar ***561 must be held to invade the heart of the city's autonomy. (Maj. opn., ante, at p. 540, 279 P.3d at p ) The extremity of such a conclusion is a symptom of additional problems with the court's categorical approach. The majority relies on precedent, chiefly this court's 80 year old decision in Pasadena v. Charleville (1932) 215 Cal. 384, 389, 10 P.2d 745 (Charleville ). (Maj. opn., ante, 143 Cal.Rptr.3d at p. 539, 279 P.3d at p ) But, as Justice Werdegar points out, Charleville's reasoning that the prevailing wage law does not address a matter of statewide concern is based largely on a thoroughly discredited conception of constitutional limitations on economic legislation. (See dis. opn. of Werdegar, J., ante, at pp , 279 P.3d at pp ) I would add that the Charleville court's notion of a state law that does address a matter of statewide concern the Public Works Alien Employment Act, which barred aliens from being employed on public works projects (see Charleville, at pp , 10 P.2d 745 [analogizing the statute to California's Alien Land Law, which prohibited the sale of agricultural land to aliens] ) has been equally discredited. (See Oyama v. California (1948) 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 [invalidating California's Alien Land Law under the equal protection clause]; see also Graham v. Richardson (1971) 403 U.S. 365, 372, 91 S.Ct. 1848, 29 L.Ed.2d 534 [state classifications based on alienage are inherently suspect and subject to close judicial scrutiny ].) It is beyond dispute that construction labor markets have become increasingly regional since Charleville was decided. (Maj. opn., ante, 143 Cal.Rptr.3d at pp , 279 P.3d at p. 1030; dis. opn. of Werdegar, J., ante, at pp , 279 P.3d at pp ) Given that fact as well as obvious and important changes in the legal landscape since 1932, it is mystifying that the court does not flinch in continuing to follow a Lochner-era precedent built on Lochner-era premises. (Lochner v. New York (1905) 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937.) But more than mystifying, the court's ready adherence to Charleville is indefensible under the very precedents that the court elsewhere recites and even italicizes. If Charleville's holding is not worthy of reconsideration, then what is left of the precept that the constitutional concept of municipal affairs is not a fixed or static quantity... [but one that ] changes with the changing conditions upon which it is to operate? (Maj. opn., ante, at p. 537, 279 P.3d at p. 1028, quoting CalFed, supra, 54 Cal.3d at pp , 283 Cal.Rptr. 569, 812 P.2d 916, quoting Pacific Telephone, supra, 51 Cal.2d at p. 771, 336 P.2d 514, italics added by the court.) The court commits the very error of compartmentalization that **1049 CalFed warned against by cordoning off the wages paid by local public works contractors as a municipal affair. (CalFed, at p. 17, 283 Cal.Rptr. 569, 812 P.2d 916.) If there is room in today's opinion for a superseding prevailing wage law to survive home rule challenge in a *587 later case based on a future fact-bound justification (id. at p. 18, 283 Cal.Rptr. 569, 812 P.2d 916), I fail to see it and the court does not (because it cannot) say there is. Even without CalFed's specific instruction to analyze the constitutional concept of municipal affairs on the basis of changing historical circumstances, there is ample reason to reconsider Charleville under the doctrine of stare decisis. That doctrine authorizes a court to revisit precedent when related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine [citation] and when facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant ***562 application or justification [citation]. (Planned Parenthood v. Casey (1992) 505 U.S. 833, 855, 112 S.Ct. 2791, 120 L.Ed.2d 674 (plur. opn. by O'Connor, J.); see Moradi Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 297, 250 Cal.Rptr. 116, 758 P.2d 58 [overturning a nine-year-old precedent on the ground that reexamination of precedent may become necessary when subsequent developments indicate an earlier decision was unsound, or has become ripe for reconsideration ].) Charleville easily satisfies these criteria. In addition to relying on questionable precedent, the court reaches its categorical holding by denying any relevant distinction between a charter city's interest in controlling the 2015 Thomson Reuters. No claim to original U.S. Government Works. 23

65 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) wages of its own employees and its interest in controlling the wages of employees of private contractors building public works: If, as the Union contends, the prevailing wage law's shift from a purely local focus to a regional focus has made the wage levels of workers constructing locally funded public works a matter of statewide concern, then that would be true whether the case involved public employees or private employees. (Maj. opn., ante, 143 Cal.Rptr.3d at p. 542, 279 P.3d at pp ) This statement is the predicate for the court's reliance on our cases holding that the Legislature may not directly dictate the compensation of charter city employees. (Id. at pp , 279 P.3d at pp , discussing County of Riverside v. Superior Court, supra, 30 Cal.4th 278, 132 Cal.Rptr.2d 713, 66 P.3d 718; San Francisco Labor Council v. Regents of the University of California, supra, 26 Cal.3d 785, 163 Cal.Rptr. 460, 608 P.2d 277; County of Sonoma, supra, 23 Cal.3d 296, 152 Cal.Rptr. 903, 591 P.2d 1.) But the court's position ignores key differences in the nature of the local interest involved. Most importantly, municipal control of employee compensation, unlike control of the wages of contract employees, is explicitly protected by the text of article XI, section 5, subdivision (b) of the California Constitution and similar constitutional home rule provisions. (See ante, 143 Cal.Rptr.3d at p. 555, 279 P.3d at pp ) Moreover, as a practical matter, the two types of control are not comparable. Employee salaries make up the vast majority of a municipality's budget. In Los Angeles, for example, employee salaries comprise 85 percent of the budgets of city departments. (See Los Angeles Mayor Antonio Villaraigosa, Mayor's Office Web page, Balanced Budget, Frequently Asked Questions, *588 < lacity.org/issues/ BalancedBudget/FrequentlyAskedQuestions/index.htm> [as of July 2, 2012].) Interference with employee salaries would thus have an enormous, ongoing impact on city finances. And if the state sought to control the salaries of only some city employees, such control would interfere with the city's ability to set salary schedules and pay differentials for its employees, decisions which in turn affect matters of employee morale, retention, and workforce cohesion that indeed go to the heart of municipal autonomy. Interference with employee salaries would also likely affect a municipality's long-term pension obligations. None of these concerns is implicated when the state sets a floor for the wages of employees of a company with which a city temporarily does business to construct a public work. This is not a case about whether a state law can control employee salaries; it is about whether a state law can raise the cost of a municipal public work in **1050 order to further otherwise legitimate policy goals. The court relies on two other factors to support its holding. First, it contends that a state law of broad general application is more likely to address a statewide concern than one that is narrow and particularized ***563 in its application. (Maj. opn., ante, 143 Cal.Rptr.3d at p. 542, 279 P.3d at p ) [T]he state law at issue is not a minimum wage law of broad general application; rather, the law at issue here has a far narrower application, as it pertains only to the public works projects of public agencies. (Id. at p. 543, 279 P.3d at p ) This lack of general application further undermine[s] the Union's assertion that the matter here presents a statewide concern and therefore requires Vista, a charter city, to comply with the state's prevailing wage law on the city's locally funded public works projects. (Ibid.) I agree that the general applicability of a state law to public as well as private entities supports the conclusion that the law has an important extramunicipal dimension. However, as a matter of fact and logic, there is no reason to suppose that a state law's lack of general applicability means it does not have a significant extramunicipal dimension. The court asserts that, in contrast to a minimum wage law, the law at issue here has a far narrower application, as it pertains only to the public works projects of public agencies. (Maj. opn., ante, 143 Cal.Rptr.3d at p. 543, 279 P.3d at p. 1033, italics added.) Yet public works projects are a multibilliondollar annual enterprise in California, and charter cities, which contain over half the state's population (see dis. opn. of Werdegar, J., ante, at p. 554, fn. 7, 279 P.3d at p. 1042, fn. 7), no doubt account for a substantial share of those dollars. Instead of regulating this vast enterprise by imposing statewide minimum wages for construction workers through general legislation applicable to private and public entities, the Legislature has chosen to influence such wages through the market-based approach of directing the purchasing power of public entities to support union-level wages. Instead of indicating that the prevailing wage law is not a matter of statewide concern, the application of the law only to public entities plausibly represents a *589 legislative judgment that direct regulation of private labor markets is not necessary to accomplish the statute's goals given the substantial role that public works projects play in influencing private sector construction workers' wages and in supporting apprenticeship programs. As the court acknowledges, prevailing wage laws have long been in use, in California and throughout the country, to accomplish these goals. (Maj. opn., ante, at pp Thomson Reuters. No claim to original U.S. Government Works. 24

66 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) , 279 P.3d at pp ; see also dis. opn. of Werdegar, J., ante, at pp , fns. 5, 6, 279 P.3d at p. 1042, fns. 5, 6.) What basis is there for insisting that only more intrusive state laws that regulate both private and public sectors may be applied to charter cities? The other factor on which the court relies is that state laws at issue set forth generally applicable procedural standards, and consequently impinged less on local autonomy than if they had imposed substantive obligations. (Maj. opn., ante, 143 Cal.Rptr.3d at p. 542, 279 P.3d at p ) It is true that our decision in Seal Beach, upholding the MMBA's meet and confer requirement, observed that the city council retains the ultimate power to refuse an agreement and to make its own decision. (Seal Beach, supra, 36 Cal.3d at p. 601, 205 Cal.Rptr. 794, 685 P.2d 1145.) In a footnote, [w]e emphasize[d] that there is a clear distinction between the substance of a public employee labor issue and the procedure by which it is resolved. (Id. at p. 600, fn. 11, 205 Cal.Rptr. 794, 685 P.2d 1145, original italics.) But this factor is not dispositive. Seal Beach may be read to say that procedural laws will generally survive a home rule challenge, not that substantive laws generally won't. Both CalFed, supra, 54 Cal.3d 1, 283 Cal.Rptr. 569, 812 P.2d 916, which came after Seal ***564 Beach, and Pacific Telephone, supra, 51 Cal.2d 766, 336 P.2d 514, which remains good law, upheld state statutes that foreclosed municipalities from making substantive decisions in important areas of local concern. The substantive nature of the prevailing wage law is one factor to be considered together with all the others discussed above. **1051 III. Perhaps the most serious error in the court's analysis is its disregard for the principle that doubts about whether a law is a matter of statewide concern must be resolved in favor of the legislative authority of the state. (Abbott v. City of Los Angeles, supra, 53 Cal.2d at p. 681, 3 Cal.Rptr. 158, 349 P.2d 974; Ex parte Daniels, supra, 183 Cal. at p. 640, 192 P. 442.) Although the present dispute involves a contest between two levels of democratic decisionmaking local and state one should not think that democracy (of some kind) will be the winner no matter how we rule. If we were to uphold the prevailing wage law, charter cities could still bring their complaints to the Legislature through the ordinary political process, and it seems at least plausible that state legislators would be attentive to the concerns of local officials on whom they often depend for political support. However, having declared the prevailing wage law unconstitutional as applied to charter cities, the court has placed the issue beyond the ordinary political process. As Justice Werdegar notes, this court's decisions on the meaning of *590 the California Constitution can be corrected only by a constitutional amendment. (Dis. opn. of Werdegar, J., ante, 143 Cal.Rptr.3d at pp , 279 P.3d at p ) It is hard to believe that in this case, where the text of our Constitution provides no clear answer, the correct outcome is so utterly free of doubt that our usual instinct toward judicial restraint may be abandoned. In fairness, there is no reason to expect that any single factor will properly resolve the case before us. The factors that the court does consider the possible costs to the city, the law's lack of general applicability, the law's substantive as opposed to procedural character may validly be used to assess the state's and the city's relative interests. But the court refuses to undertake a factual or historical inquiry to determine the relative strengths of the state and municipal interests, even though that is what our precedents instruct. The court refuses to reconsider Charleville, supra, 215 Cal. 384, 10 P.2d 745, even though its legal and factual underpinnings have been thoroughly eroded over eight decades. The court refuses to see any distinction between municipal control of its own employees' wages and municipal control of the wages of a contractor's employees, even though the former is more likely to disrupt local autonomy and, unlike the latter, is explicitly protected by the text of our Constitution. I have no objection to an all-things-considered approach to the present inquiry because it is probably the best we can do. But such an approach (1) must truly consider all relevant aspects of the inquiry, not just an arbitrary few; (2) should lead us to reach fairly limited holdings instead of categorical pronouncements; and (3) should cause us to exercise more than the usual caution before invalidating the work of a coequal, politically representative branch of government (Ex parte Daniels, supra, 183 Cal. at p. 640, 192 P. 442). Today's decision violates all three precepts in arriving at a fixed conception of municipal autonomy that is neither rooted in the language of our Constitution nor consistent with current realities. ***565 As Justice Werdegar explains (dis. opn. of Werdegar, J., ante, 143 Cal.Rptr.3d at pp , 279 P.3d at pp ), the record evidence indicates that the prevailing wage law is a reasonable means of supporting regional construction labor markets and apprenticeship 2015 Thomson Reuters. No claim to original U.S. Government Works. 25

67 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) programs. There is no question that the law interferes with municipal autonomy. But the law does not invade any local prerogative expressly protected by constitutional text. And it is not clear that the law's interference with municipal autonomy is excessive in relation to the legitimate public purposes that the Legislature aims to achieve. There is, in this case, a convincing basis for legislative action originating in extramunicipal *591 concerns, one justifying legislative supersession based on sensible, pragmatic considerations. (CalFed, supra, 54 Cal.3d at p. 18, 283 Cal.Rptr. 569, 812 P.2d 916.) But even if there were some doubt, judicial restraint should prevail. I respectfully dissent. I CONCUR: WERDEGAR, J. All Citations 54 Cal.4th 547, 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) 395, 12 Cal. Daily Op. Serv. 7560, 2012 Daily Journal D.A.R Footnotes 1 The Government Code classifies cities as either general law cities (cities organized under the general law of California) or chartered cities (cities organized under a charter). [Citations.]... [A] general law city... must comply with state statutes that specify requirements for entering into contracts. [Citations.] (City of Orange v. San Diego County Employees Retirement Assn. (2002) 103 Cal.App.4th 45, 52, 126 Cal.Rptr.2d 405.) 2 The prevailing wage law replaced a law from the late 19th century that required payment of at least $2.00 per day for labor on public works. (Stats.1897, ch. 88, 1, p. 90.) 3 Proposition 13, an initiative measure that the California electorate passed on June 6, 1978, added article XIII A to the California Constitution, placing significant limits on the taxing power of local and state governments. 1 See Lochner v. New York (1905) 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed Neither the State nor any county, political subdivision, incorporated city, town, nor any other municipal corporation shall prohibit, deny or obstruct the right of firefighters to join any bona fide labor organization of their own choice. (Lab.Code, 1960.) 3 The prevailing wage law affects more than just wages. As SBCTC's expert stated below: Throughout the State, local craft unions and district labor councils have negotiated master labor agreements with contractors' associations that establish wages, fringe benefits and other terms of employment. These collective bargaining agreements provide for uniform hourly wages, regardless of the contractor that is employing the worker, and require contractors to contribute to the same multiemployer benefits plans, so workers will enjoy health care and pension benefits notwithstanding the lack of continuous employment with a single contractor. This labor relations structure enables signatory contractors to respond to fluctuating demands for labor and enables construction workers to maintain steady employment and to receive health and pension benefits that protect them and their families. (See Lab.Code, , subd. (a) [per diem wages under the prevailing wage law shall be deemed to include employer payments for health and welfare, pension, and vacation benefits]; see also Franchise Tax Bd. v. Laborers Vacation Trust (1983) 463 U.S. 1, 4, fn. 2, 103 S.Ct. 2841, 77 L.Ed.2d 420 [describing a construction workers' regional trust fund to permit workers a paid vacation].) 4 Thirty-one states have enacted a prevailing wage law. (Alaska Stat to ; Ark.Code Ann to ; Conn. Gen.Stat to 31 55a; Del.Code Ann. tit. 29, 6960; Hawaii Rev. Stat to 104 4; 820 Ill. Comp. Stat. 130/1 to 130/12; Ind.Code Ann to ; Kan. Stat. Ann [for highway contracts]; Ky.Rev.Stat. Ann to ; Me.Rev.Stat. Ann. tit. 26, 1303 to 1314; Md.Code Ann., State Fin. & Proc.Code, to ; Mass. Gen. Laws ch. 149, 26 to 27H; Mich. Comp. Laws to ; Minn.Stat to ; Mo.Rev.Stat to ; Mont.Code Ann to ; Nev.Rev.Stat to ; N.J. Stat. Ann. 34: to 34: ; N.M. Stat. Ann to ; N.Y. Labor Law 220(3)(a); Ohio Rev.Code Ann to ; Or.Rev.Stat. 279C.800 to 279C.870; 43 Pa. Cons.Stat to ; R.I. Gen. Laws to ; Tenn.Code Ann to ; Tex. Gov.Code Ann to ; Vt. Stat. Ann. tit. 29, 161 [for state construction projects]; Wn. Rev.Code to ; W.Va.Code 21 5A 1 to 21 5A 11; Wis. Stat ; Wyo. Stat. Ann to ; see also Guam Code Ann., tit. 5, ch. 50, ) 5 See the Davis Bacon Act (46 Stat. 1494, codified at 40 U.S.C ); U.S. v. Binghamton Construction Co. (1954) 347 U.S. 171, , 74 S.Ct. 438, 98 L.Ed Thomson Reuters. No claim to original U.S. Government Works. 26

68 State Bldg. and Const. Trades Council of Cal., AFL-CIO v..., 54 Cal.4th 547 (2012) 279 P.3d 1022, 143 Cal.Rptr.3d 529, 19 Wage & Hour Cas.2d (BNA) See Los Angeles Administrative Code, division 10, chapter 1, article 1, section (requiring payment of the prevailing wage in all city contracts); id., section 10.7 (specifically waiving the city's rights under the municipal affairs doctrine); see also San Francisco Administrative Code, chapter 6, article II, section 6.22(E) ( All contractors and subcontractors performing a public work or improvement for the City and County of San Francisco shall pay its workers on such projects the prevailing rate of wages... ). 7 There are 120 charter cities in the state of California. SBCTC states in its brief that more than half the state's population live in charter cities. 8 The Legislature recently acted to specify that if a charter city's ordinance prohibits consideration of a project labor agreement (defined by Pub. Contract Code, 2500, subd. (b)(1) as a prehire collective bargaining agreement that establishes terms and conditions of employment, including wages) for a public works project, state funding or financial assistance shall not be used to support that project (Pub. Contract Code, 2502). (Both provisions added by Stats.2011, ch. 431, 2, enacting Sen. Bill No. 922 ( Reg. Sess.).) The history of this legislation notes that the law was deemed necessary because [s]everal counties (Stanislaus, Orange, and San Diego) and Charter Cities (Chula Vista and Oceanside) have banned [project labor agreements]. (Assem. Com. on Business, Professions and Consumer Protection, Rep. on Sen. Bill No. 922 ( Reg. Sess.) as amended Sept. 2, 2011, p. 3.) Just this year, the Legislature returned to the subject and highlighted its commitment to give localities the option of using project labor agreements. Section 2503, added to the Public Contract Code, provides that if a charter city's ordinance prohibits, limits, or constrains in any way the governing board's authority or discretion to adopt, require, or utilize a project labor agreement,... then state funding or financial assistance shall not be used to support any construction projects awarded by the city. (Stats.2012, ch. 11, 1.) Both new laws are not effective until January 15, 2015, to allow cities to repeal ordinances that establish blanket bans on project labor agreements. End of Document 2015 Thomson Reuters. No claim to original U.S. Government Works Thomson Reuters. No claim to original U.S. Government Works. 27

69 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO CENTRAL MINUTE ORDER DATE: 08/29/2014 TIME: 03:00:00 PM DEPT: C-73 JUDICIAL OFFICER PRESIDING: Joel R. Wohlfeil CLERK: Tina Curry REPORTER/ERM: Not Reported BAILIFF/COURT ATTENDANT: CASE NO: CU-WM-CTL CASE INIT.DATE: 02/20/2014 CASE TITLE: CITY OF EL CENTRO vs DAVID LANIER [IMAGED] CASE CATEGORY: Civil - Unlimited CASE TYPE: Writ of Mandate APPEARANCES After entertaining the arguments of counsel and taking the matter under submission on August 28, 2014, the Court confirms its tentative ruling denying the petition for original writ of mandamus. The Court appreciates the cogent and intelligent argument presented by the parties. However, many of the arguments made by Petitioners are simply not pertinent because of the finding that a conflict does not exist as between the state law and local ordinances. As a conflict does not exist, the Court does not reach the analysis put forth by Petitioners. See California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1 (setting forth the applicable analytical framework). IT IS SO ORDERED. Judge Joel R. Wohlfeil DATE: 08/29/2014 MINUTE ORDER Page 1 DEPT: C-73 Calendar No.

70 EVENT DATE: SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO HALL OF JUSTICE TENTATIVE RULINGS - August 06, 2014 EVENT TIME: DEPT.: 08/28/ :30:00 PM C-73 JUDICIAL OFFICER:Joel R. Wohlfeil CASE NO.: CASE TITLE: CU-WM-CTL CITY OF EL CENTRO VS DAVID LANIER [IMAGED] CASE CATEGORY: Civil - Unlimited CASE TYPE: Writ of Mandate EVENT TYPE: Motion Hearing (Civil) CAUSAL DOCUMENT/DATE FILED: Motion - Other, 06/20/2014 Introduction This dispute is a battle for political autonomy between independent governmental entities. Petitioners and Plaintiffs City of El Centro, City of Carlsbad, City of E1 Cajon, City of Fresno, City of Oceanside and City of Vista ("Petitioners) desire to spend their limited funds to achieve their local objectives, consistent with their duly elected political convictions. Respondents and Defendants David Lanier, in his official capacity as the Secretary of the State of California Labor & Workforce Development Agency, Christine Baker, in her official capacity as the State of California Director of Industrial Relations, and Julie A. Su, in her official capacity as the State of California Labor Commissioner and the State of California ("Respondent") desire to allocate its limited resources to promote a state wide policy, consistent with its duly elected political convictions. The Court empathizes with the dilemma framed by Petitioners; however, given the totality of this record, the Court finds that, if Petitioners desire to benefit from the receipt of state funds, their local concerns must yield to Respondent's policy objectives. Petitioners' Petition for Writ of Mandate to issue a Writ of Mandate as to Respondent, pursuant to Code of Civil Procedure section 1085, et seq., to halt the Respondent from implementing and enforcing Senate Bills No.7 (2013), Senate Bill No. 829 (2012) and Senate Bill No. 922 (2011) because Petitioners have a clear, present and material right to Respondent's compliance with the rights of Charter Cities, as set forth in the California Constitution and under applicable law, is DENIED. This ruling is premised on the analysis set forth below. A. The "Home Rule" Doctrine as Applied to Labor Code SB 7 (2013) "The Courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity." People v. Falsetta (1999) 21 Cal.4th 903, Unlike the federal Constitution, which is a grant of power to Congress, the California Constitution is a limitation or restriction on the powers of the Legislature. Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691. Thus, the entire law-making authority of the state, except the people's right of initiative and referendum, is vested in the Legislature, and that body may exercise any and all legislative powers which are not expressly or by necessary implication denied to it Event ID: TENTATIVE RULINGS Calendar No.: 6 Page: 1

71 CASE TITLE: CITY OF EL CENTRO VS DAVID CASE NUMBER: CU-WM-CTL LANIER [IMAGED] by the Constitution. Id. In other words, Courts do not look to the Constitution to determine whether the legislature is authorized to do an act, but only to see if it is prohibited. Id. If there is any doubt as to the Legislature's power to act in any given case, the doubt should be resolved in favor of the Legislature's action. Id. Restrictions and limitations imposed by the Constitution are to be construed strictly, and are not to be extended to include matters not covered by the language used. Id. "Home rule" pursuant to Article XI, Section 5 of the California Constitution is a means of adjusting the political relationship between state and local governments in discrete areas of conflict. California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 18; see also People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 601 (no actual conflict existed between city council's authority to propose charter amendments and state law requiring city council to meet and confer with union before proposing charter amendment because the city council "retains the ultimate power... to make its own decision"). In the pivotal case of State Bldg. and Const. Trades Council of Cal., AFL-CIO v. City of Vista (2012) 54 Cal.4th 547, the California Supreme Court upheld a decision denying a writ seeking to invalidate an ordinance prohibiting any city contract from requiring payment of prevailing wages, except under specified conditions. The Court found that so far as "municipal affairs" are concerned, charter cities are supreme and beyond the reach of legislative enactment. Id. at 556. Thus, Vista need not comply with the prevailing wage law because the law invades Vista's constitutionally guaranteed autonomy as a charter city. The wage levels of contract workers constructing locally funded public works are a municipal affair, and exempt from state regulation. Id. at 536. In California Fed. Savings & Loan Assn, the Court set forth an analytical framework for resolving whether or not a matter falls within the home rule authority of charter cities. First, the Court must determine whether the city ordinance at issue regulates an activity that can be characterized as a "municipal affair." California Fed. Savings & Loan Assn. v. City of Los Angeles, supra at 16. Second, the Court must determine that the case presents an actual conflict between local and state law. Id. Third, the Court must decide whether the state law addresses a matter of "statewide concern." Id. at 17. Finally, the Court must determine whether the law is "reasonably related to... resolution" of that concern and "narrowly tailored" to avoid unnecessary interference in local governance. Id. at 17 and 24. If the Court is persuaded that the subject of the state statute is one of statewide concern and that the statute is reasonably related to its resolution, then the conflicting charter city measure ceases to be a "municipal affair" and the Legislature is not prohibited from addressing the statewide dimension by its own tailored enactments. Id. at 17. Local legislation is "contradictory" to general law when it is inimical thereto. Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 898. A contradictory local ordinance "prohibit[s] what the statute commands or command[s] what it prohibits." Id. at 902. In the aftermath of the City of Vista decision, the Legislature passed (and the Governor signed) SB 7 (2013), which created Labor Code section The legislation included detailed findings supporting the statewide concern of creating and maintaining a skilled construction work force. These findings stated: "The state has limited financial resources to support local construction projects, and it would further state policy to provide financial assistance only to those charter cities that require compliance with the prevailing wage law on all their municipal construction projects." The expressed intent of the legislation creating section 1782 "is to provide a financial incentive for charter cities to require contractors on their municipal construction projects to comply with the state's prevailing wage law by making these charter cities eligible to receive and use state funding or financial assistance for their construction projects." Petitioners cite and rely on Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296. However, this decision is distinguishable. The Sonoma County Court's decision was premised, in large part, on the unconstitutional impairment of contracts. The Court would have reached the same decision even in the absence of Article XI, Section 5. In addition, the decision was premised on a charter city or county's "plenary" ability to determine the compensation of its employees, which is expressly set forth within Article XI, Section 5(b). Thus, the state has very little latitude to legislate in this area. In contrast, there is no express provision within Article XI, Section 5 regarding the Event ID: TENTATIVE RULINGS Calendar No.: 6 Page: 2

72 CASE TITLE: CITY OF EL CENTRO VS DAVID CASE NUMBER: LANIER [IMAGED] non-payment of prevailing wages CU-WM-CTL Pursuing state policy objectives through financial incentives is generally constitutional. The Legislature has plenary lawmaking authority over the state's budget (Cal. Const., Art. IV, 12), and there is no constitutional prohibition precluding it from creating specific funds for specific governmental purposes. Shaw v. People ex rel. Chiang (2009) 175 Cal.App.4th 577, 602. The state may impose conditions upon the granting of a privilege, including restrictions upon the expenditure of funds. Sonoma County Organization of Public Employees v. County of Sonoma, supra at 319; see also Department of Finance v. Commission on State Mandates (2003) 30 Cal.4th 727, (conditions imposed as a condition for continued participation in specified education funding). Respondent state and intervenor State Building and Construction Trades Council of California, AFL-CIO provide three specific examples of state funding programs that have "strings" attached: eligibility for highway funds (Streets & Highway Code 2111, 2113); eligibility for receipt of peace officer training funds (Penal Code 13522); and Community Development Block Grant Program funds (Health & Safety Code 50830). Intervenor Trades Council correctly draws an analogy between the state's use of discretionary funding to influence local governance, and the interaction between federal and state government. It cites National Federation of Independent Business v. Sebelius (2012) 132 S.Ct. 2566, , in which the U.S. Supreme Court noted that Congress may use its Spending Clause authority to grant federal funds to the States, and it may condition such grants upon the states' taking certain actions that Congress could not otherwise require states to take. Such measures encourage a state to regulate in a particular way, and influence a state's policy choices. Id. It is only when legitimate pressure turns into compulsion that the legislation becomes unconstitutional. Id. Spending Clause programs do not pose this danger when a state has a legitimate choice whether to accept the federal conditions in exchange for federal funds. Id. Legitimate influence crosses the line and becomes a "gun to the head" when a state that seeks to opt out of the Affordable Care Act's expansion in health care coverage stands to lose all of its existing Medicaid funding. Id. at Medicaid spending accounts for over 20 percent of the average state's total budget, with federal funds covering 50 to 83 percent of those costs. Id. The federal government estimated that it would pay out approximately 3.3 trillion dollars between 2010 and 2019 in order to cover the costs of pre-expansion Medicaid. Id. Taking away such a large percentage of a state's budget constituted an impermissible penalty levied against states choosing not to participate in the new program. Id. at In contrast, Respondent argues that the amount of funding allegedly received by Petitioners for discretionary construction spending is very low, and attaching conditions to the receipt of these funds could not be considered coercive. In sum, Labor Code section 1782 appears to legitimately influence local governance by attaching conditions on the receipt of discretionary state funding. This conditional receipt of a small amount of state funding does not appear to be coercive as a matter of law. As a result, there is no actual conflict as between section 1782 and the city ordinances at issue. Section 1782 is constitutional and there is no need to address the other elements within the analytical framework set forth in the California Fed. Savings & Loan Assn. opinion. B. The "Home Rule" Doctrine as Applied to Public Contracts Code : SB 922 (2011) and SB 829 (2012) Petitioner City of Oceanside argues that Public Contracts Code, sections also violate the "home rule" doctrine and are unconstitutional. This argument is also premised on the Sonoma County decision. This statutory scheme does not require cities to use project labor agreements (PLAs) for city projects. Rather, it requires them to consider adoption of such PLAs on a project by project basis. State funding will be withheld if a local ordinance exists preventing a city from considering such agreements. Oceanside's Charter rejects the use of project labor agreements for projects it controls. This statutory scheme is even less coercive then section 1782, which requires the payment of prevailing wage rates as a condition for the receipt of state funds. Thus, the same analysis necessarily applies. In other words, Event ID: TENTATIVE RULINGS Calendar No.: 6 Page: 3

73 CASE TITLE: CITY OF EL CENTRO VS DAVID CASE NUMBER: CU-WM-CTL LANIER [IMAGED] these state statutes do not result in a conflict with the local ordinance preventing the use of PLAs. The conditional receipt of a small amount of state funding does not appear to be coercive as a matter of law. C. Labor Code Section 1782 (SB 7 (2013)): Interference With Initiatives/Propositions Article IV, Section 1 of the California Constitution provides: "The legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum." An amendment to a proposition is valid only if, by any reasonable construction, it can be said that the statute furthers the purposes of the proposition. Foundation for Taxpayer and Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1354, Petitioners argue that the enactment of section 1782 effectively "amends" multiple state initiatives/propositions/bonds that fund local government construction projects, and is therefore unconstitutional. The Court finds that this issue is not "sufficiently concrete to allow judicial resolution even in the absence of a precise factual context." Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170. This ripeness requirement prevents Courts from issuing purely advisory opinions. Id. There must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. Id. at 171. Petitioners do not refer to the language of any specific bond measure in detail, or to any related evidence. Petitioners do not demonstrate that the language in section 1782 contravenes, or does not advance, the purposes of one or more specific bond measures. In fact, section 1782 does not affect or encompass "revenues that charter cities are entitled to receive without conditions under the California Constitution." Labor Code 1782(d)(4). Petitioners fail to show that the state has withheld, or threatened to withhold, specific bond funds, or has even taken such a position. Petitioners do not distinguish as between measures that were adopted by voters, as opposed to those measures that were rejected. Petitioners also do not distinguish as between bond measures passed by initiative, as opposed to Legislative bond measures that were ratified by voters. All of these particulars could be determinative in this analysis. In the absence of these details, a ruling by this Court would be a fruitless and advisory exercise. D. Whether Labor Code Section 1782 (SB 7 (2013)) "Restricts Local Tax Dollars" in Violation of Art. XIII, Sec. 24(b) (Proposition 22) Article XIII, Section 24(b) of the California Constitution was enacted via Proposition 22, and provides: "The Legislature may not reallocate, transfer, borrow, appropriate, restrict the use of, or otherwise use the proceeds of any tax imposed or levied by a local government solely for the local government's purposes.</ins>" See California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, (requiring payment to avoid dissolution of a redevelopment agency "is not an option but a requirement" in violation Proposition 22). As discussed above, section 1782 (SB 7) concerns discretionary state funding. It does not appropriate local funds, and it is not a requirement that cities make payments to the state. Also as discussed above, section 1782(d)(4) explicitly "does not include revenues that charter cities are entitled to receive without condition under the California Constitution." Petitioners provide no authority or evidence suggesting that section 1782 will have any effect on tax revenues collected by the state on behalf of charter cities and other local entities. Petitioners cite to the "Findings and Declarations" within Proposition 22, in which it states an intent to prevent state level politicians from "interfering with tax revenues dedicated to funding local government services..." Section 1782 does not interfere with local revenues, but instead conditions the receipt of state discretionary funds. This is constitutionally permissible, as discussed above. As a result, this contention also fails. Petitioners' Request for judicial notice filed on is GRANTED IN PART AND DENIED IN PART. The Court takes judicial notice of Exhibits "1-15" and declines to take judicial notice of Exhibits "16-19", all of which were lodged in support of the Petition. Event ID: TENTATIVE RULINGS Calendar No.: 6 Page: 4

74 CASE TITLE: CITY OF EL CENTRO VS DAVID CASE NUMBER: LANIER [IMAGED] CU-WM-CTL Respondents' Request for judicial notice filed on is GRANTED IN PART AND DENIED IN PART. The Court take judicial notice of Exhibits "1-9" and declines to take judicial notice of Exhibits "10-11", all of which were lodged in opposition to the Petition. Respondents' evidentiary objections, and the joinder of Intervenor State Building and Construction Trades Council ("SBCTC"), to the declaration of attorney James P. Lough are OVERRULED IN PART AND SUSTAINED IN PART. The Court overrules objection nos The Court sustains objection nos Petitioners' evidentiary objections to the declarations of Robbie Hunter and Peter W. Philips are OVERRULED. Petitioners' Request for judicial notice filed on in support of its Reply is DENIED. Event ID: TENTATIVE RULINGS Calendar No.: 6 Page: 5

75 Vol. 38, No. 3 Summer 2015 An Official Publication of the State Bar of California Public Law Section MCLE SELF-STUDY ARTICLE (Check end of this article for information on how to access 1.0 self-study credit.) Can the State Use Its Spending Powers to Circumvent Charter Cities Home Rule Authority? By Jonathan V. Holtzman, Randy Riddle & Steve Cikes* Inside this Issue Can the State Use Its Spending Powers to Circumvent Charter Cities Home Rule Authority? By Jonathan V. Holtzman, Randy Riddle & Steve Cikes Page 1 Message from the Chair By K. Scott Dickey Page 9 Profiles in Public Law: An Interview with Dean Erwin Chemerinsky By David King Page 12 I. INTRODUCTION Public lawyers have long debated whether California s home rule doctrine for charter cities is coming or going. For years, it seemed the doctrine was eroding, as more and more issues were found to be matters of statewide concern. Then, in State Building and Construction Trades Council of California v. City of Vista (City of Vista), 1 the California Supreme Court held that charter cities did not have to comply with the State s prevailing wage law on locally-funded public works projects affirming that the expenditure of local revenues on such projects was within a charter city s home rule powers. The victory for charter cities was short-lived. The next year, the Legislature passed SB 7, a law that conditioned all state construction funding on a charter city s agreement to pay prevailing wages on all public works projects regardless of whether any state money is involved. Several cities have sued the State, challenging the constitutionality of SB 7. Remarkably, the superior court presiding over that case ruled that this transparent end-run around City of Visa was constitutional because it represented a permissible exercise of the State s discretionary spending powers. The case is now pending before Fourth District Court of Appeal. Your Top Ten List of California Administrative Law Reforms By Michael Asimow Page 15 Litigation & Case Law Update By K. Scott Dickey Page 21 Legislative Update By Kenneth J. Price Page 26 The Public Law Section Sponsors Two Successful Public Law Conferences Page 29 Reproduced with permission from the State Bar of California

76 The Public Law Journal Vol. 38, No.3, Summer 2015 By euphemistically repackaging legislation as a financial incentive rather than an explicit mandate or even a punishment for not paying prevailing wages, the State is attempting to do indirectly what the California Constitution prohibits it from doing directly. Most cities receive subsidies from the State for various services. If the Legislature may condition the disbursement of funds on charter cities relinquishing their home rule powers even as to purely local matters the State is not funding, there would appear to be few practical limitations on this authority, placing the continued vitality of the home rule doctrine in serious jeopardy. This article discusses the City of Vista case, SB 7, and the litigation over SB 7 to date. It also discusses existing state case law, which, in general, seems ill-suited to address this type end-run around the home rule doctrine. Finally, the article proposes a legal test derived from federal law that is better equipped to deal with overbroad legislative attempts to condition funding on the waiver of home rule powers. II. HOME RULE AUTHORITY OF CHARTER CITIES Article XI, section 3(a) of the California Constitution authorizes city voters to adopt a charter, the provisions of which are the law of the State and have the force and effect of legislative enactments. Courts have recognized that a charter serves as the constitution for a city. 2 The primary advantage of a charter is that it transfers the power to regulate municipal affairs from the State to city voters, giving voters much more control over how their local system of government is structured and operates. 3 Article XI, section 5(a) of the California Constitution known as the home rule provision grants charter cities plenary authority over their municipal affairs. 4 Once a city has adopted a charter, the charter becomes the supreme law of the city with respect to municipal affairs, subject only to conflicting provisions of the federal and state constitutions. 5 As one court explained, a charter city s authority over municipal affairs is all embracing free from any interference by the state through general laws. 6 Where a city has adopted a charter, it has full control over its municipal affairs whether or not its charter specifically provides for the particular right sought to be exercised. 7 This is not to say that charter cities are immune to state regulation. Over the years, courts have recognized that state law may supersede a charter city s home rule powers if the law addresses a matter of statewide concern and is narrowly tailored towards that end. 8 In California Federal Savings and Loan Association v. City of Los Angeles (California Federal), 9 the California Supreme Court articulated a fourpart test to resolve an asserted conflict between a state statute and a city s charter. Under this test, a court must first determine if there is an actual conflict between a provision in the city s charter and state law at issue. 10 If not, then there is no need to consider any of the other elements. 2 If there is an actual conflict, then the court must decide if the issue addresses a municipal affair. 11 If not, the inquiry ends, and the state law governs. But if the issue does involve a municipal affair, then the question becomes whether the subject matter of the state law is one of statewide concern. 12 If the subject matter does not address a statewide concern, then the charter provision controls and is beyond the reach of the legislative enactment. 13 Finally, if the subject matter does constitute a statewide concern, then the court must determine whether the statute is reasonably related and narrowly tailored to the resolution of that concern. 14 If not, the charter provision controls. Using this test, courts have held that charter cities home rule authority trumps conflicting state laws that do not address a matter of statewide concern or are not narrowly tailored to further that interest. 15 The California Supreme Court s decision in City of Vista is the most recent example of a full-throated articulation of home rule powers. III. THE SUPREME COURT S CITY OF VISTA DECISION AND THE LEGISLATURE S RESPONSE In City of Vista, the city enacted an ordinance prohibiting the payment of prevailing wages on locally-funded public works projects. 16 The city council then adopted a resolution approving a plan to build two fire stations that did not comply with the State s prevailing wage law. 17 In response, the State Building and Construction Trades Council of California filed a petition for writ of

77 The Public Law Journal Vol. 38, No.3, Summer 2015 mandate seeking to compel the city to comply with the State s prevailing wage requirements. The superior court denied the union s petition, and the court of appeal affirmed. 18 On review, the California Supreme Court applied California Federal s four-part test to determine whether application of the State s prevailing wage law would impermissibly impinge on the city s home rule authority. Initially, the Court held that [t]he wage levels of contract workers constructing locally-funded public works projects are certainly municipal affairs. 19 Next, the Court found that because the prevailing wage law does not exempt charter cities from its scope, and the city s ordinance prohibits compliance with that law, an actual conflict existed between the two. 20 The Court then determined that the wage levels of contract workers constructing locally-funded public works projects did not constitute a matter of statewide concern, finding no basis to distinguish the wage levels of contract workers from the wages of charter city employees, which the Court had previously found was not a matter of statewide concern. 21 The Court therefore held that application of the prevailing wage law to charter cities would violate constitutional home rule principles. 22 In the wake of the City of Vista, the Legislature quickly enacted SB 7, 23 which modified the State s prevailing wage law. In particular, SB 7 amended the prevailing wage law to provide that: A charter city shall not receive or use state funding or financial assistance for a construction project if the city has a charter provision or ordinance that authorizes a contractor to not comply with the provisions of this article on any public works projects. 24 SB 7 further prohibits a charter city from receiving state funding or financial assistance if the city has awarded, within the prior two years, a public works contract without requiring the contractor to comply with all of the provisions of this article. 25 There is little doubt that SB 7 was drafted and ultimately enacted to evade City of Vista. SB 7 was first introduced on December 3, 2012, the same year the Supreme Court decided City of Vista. Indeed, City of Vista was specifically mentioned during the Senate hearing on SB 7. According to Senate analyses, SB 7 was intended to sidestep the issue of whether wage levels of contract workers constructing locally funded public works are a municipal affair or a matter of statewide concern. In short, the Legislature s intent in passing SB 7 could not have been clearer: It was designed as an endrun around City of Vista s holding that the wages of workers on locallyfunded public works projects was a municipal affair and thus outside the realm of State regulation. IV. SB 7 LITIGATION In response to the passage of SB 7, the cities of El Centro, Carlsbad, Fresno, Oceanside and Vista filed a petition for writ of mandate against the State, challenging SB 7 s constitutionality. 26 The cities lawsuit claimed that SB 7 violated Article XI, section 5(a) of the California Constitution because it conditioned their ability to receive state funding on the relinquishment of their plenary authority to set wage levels for workers on their locally-funded 3 public works projects, as guaranteed by the Supreme Court in City of Vista. The cities argued that imposing such conditions on projects that the State otherwise has no authority to control was impermissible. The superior court denied the cities petition. In doing so, the court, paying only lip service to City of Vista, noted that SB 7 contained detailed findings supporting its statewide concern of creating and maintaining a skilled construction workforce. 27 The court further found that pursuing state policy objectives through financial incentives is generally permissible and, as a result, SB 7 did not present any actual conflict with the city ordinances at issue. Accordingly, the court concluded that SB 7 did not intrude on charter cities home rule authority. The cities have appealed the superior court s decision and the case is now pending before the Fourth District Court of Appeal. 28 V. HOW COURTS SHOULD ADDRESS SB 7 AND SIMILAR, FUTURE LEGISLATION SB 7 and the recent superior court decision upholding it are troubling on several levels. Although the Legislature has attempted to characterize the legislation as merely providing a financial incentive, it effectively holds charter cities hostage, requiring that they relinquish their home rule authority over locally-funded projects to receive needed state funding. And should SB 7 be held constitutional, that decision would almost certainly open the floodgates for similar legislation, leading to the complete erosion of home rule powers.

78 The Public Law Journal Vol. 38, No.3, Summer 2015 For example, the Legislature has long sought to impose interest arbitration for public safety employees. The California Supreme Court in County of Riverside v. Superior Court 29 rejected that as an improper invasion of home rule principles. Why not impose it as a condition of state funding? As another example, voters in charter cities are free to determine whether they elect their city council members by district or at large. Under the SB 7 approach, the Legislature could seek to condition disbursement of state funds on a city s acquiescence to district elections. Unfortunately, there is very little California case law addressing the extent to which the State may use its spending powers to impinge upon charter cities home rule powers. But with the SB 7 case pending in the court of appeal and the predictable interest of the Legislature in passing similar laws in the future, this will change for better or worse. Clearly, one of the most significant obstacles charter cities face in challenging such legislation is the first prong of the California Federal test: demonstrating an actual conflict between the state statute and a charter cities home rule authority. Cities face this conundrum because, in theory, a charter city can always elect to forego state funding and preserve its authority to regulate the activity at issue, obviating any actual conflict. While this argument by the State has superficial appeal, it runs contrary to the judiciallyrecognized maxim that the State may not do indirectly what it is prohibited from doing directly. 30 This principle was recognized and applied by the California Supreme Court in Sonoma County Organization of Public Employees v. County of Sonoma (SCOPE). 31 SCOPE involved a challenge to a state statute conditioning the distribution of post-proposition 13 bail-out money on local agencies agreement to withhold from employees cost-ofliving raises in excess of the raises given to state employees. The SCOPE Court concluded that the law violated charter cities home rule authority to provide for the compensation of their employees. In reaching this conclusion, the Court noted that while the state may impose conditions upon the granting of a privilege, including restrictions upon the expenditure of funds distributed by it to other government bodies constitutional power cannot be used by way of a condition to attain an unconstitutional result. 32 One source courts may examine is federal precedent addressing Congress s ability to impose conditions on the receipt of federal funding under the Spending Clause. While the SCOPE decision appears directly on point, proponents of SB 7 claim that the case is distinguishable because it addressed an unconstitutional impairment of contracts, not a violation of home rule principles. Consequently, courts may choose to look elsewhere for guidance in evaluating the constitutionality of SB 7 and similar legislation. One source courts may examine is federal precedent addressing Congress s ability to impose conditions on the receipt of federal funding under the Spending Clause. 33 These cases, however, appear to set a rather high bar: a party challenging Congress s exercise of its spending authority must demonstrate what amounts to coercion in some cases, this means that there is so much money on the line that the states cannot, as a practical matter, say no. 34 This view of coercion is not necessarily helpful on a facial challenge to a law such as SB 7 because the question of whether the legislation amounts to impermissible coercion is both highly factual, and ultimately subjective. 35 Some cities could not reasonably give up state construction funds; others may be in a position to do so, even if it would be financially painful. In each case, it depends on how much funding is involved, the importance of future projects, and the cost of complying with the state demand. Ultimately, the coercion analysis misses the point. The proper focus is whether the government or, more precisely for purposes of this article, the State has the authority to regulate the underlying activity in the first instance, not how much money is at stake. Indeed, as California Federal and City of 4

79 The Public Law Journal Vol. 38, No.3, Summer 2015 Vista make clear, for state law to permissibly intrude upon a charter city s home rule authority it must be both designed to address a matter of statewide concern and narrowlytailored to accomplish that end. Consequently, any time the State demands that a city relinquish home rule powers under threat of losing state funding for unrelated projects, the presumption should be that the State is attempting to impermissibly regulate a matter that the Constitution reserves for local control. Only if the State can demonstrate a legitimate statewide concern justifying its otherwise unlawful interference with purely municipal affairs, should the regulation be allowed to stand. This proposed test is consistent with the California Supreme Court s SCOPE decision. It also mirrors the preemption doctrine federal courts use to assess the extent to which the National Labor Relations Act (NLRA) displaces state and municipal regulations on matters related to labor-management relations a doctrine that involves the same type of balancing of governmental interests that is at the heart of the home rule doctrine. 36 Under the NLRA preemption doctrine, whether state or local government regulations are preempted turns on whether the agency is acting to regulate matters that are encompassed by the NLRA. If the government is attempting to regulate labor-management relations already covered by the NLRA, then such regulations are preempted. This is true regardless of whether the government agency is attempting to regulate matters directly through its police powers, or indirectly through its spending powers. 37 However, if the government is merely acting to protect its own proprietary interest, then the regulations are not preempted. In evaluating whether a government agency is acting as a market participant, courts will examine (1) whether the challenged action essentially reflect the agency s own interest in its efficient procurement of needed goods and services, and (2) whether the narrow scope of the challenged action defeats any inference that its primary goal was to encourage a general policy, rather than address a specific proprietary problem. 38 The federal preemption doctrine strikes a proper balance in determining when and how state regulation may be preempted with respect to matters that the Constitution expressly reserves for local control. In particular, the doctrine including the market participant exception ensures that the State has sufficient skin in the game in the underlying activity that it would otherwise be prohibited from regulating directly. Specifically with regard to SB 7, this approach would require that the underlying public works projects be funded, in whole or in part, with state money before the State would be allowed to regulate what would otherwise qualify as purely municipal affairs. This approach would preserve the division of governmental authority established by constitutional home rule principles. VI. CONCLUSION Charter powers are a double-edged sword. While, in the case of SB 7, they are being asserted in the service of what some would view as a conservative principle, many of the most cutting-edge local programs rely on charter powers. Clearly, local governments are better equipped than the State to address issues related to the control of local budgets, employee costs, and the structure of the local government itself. Consequently, charter powers matter, and the mechanism employed by SB 7 to eviscerate those powers is troubling. The line between statewide concerns and municipal affairs protected by the home rule doctrine is already tricky, and the added wrinkle of using state funding as a carrot or stick further muddies the equation. If SB 7 and similar legislation is allowed to stand, we can expect the politics of state government to further encroach into the practical realities of local governments. This article is available as a complimentary online self-study CLE article for members of the Public Law Section. Visit the members only area at for your coupon code and instructions on how to access the online self-study articles. 5