No. C054060

COURT OF APPEAL STATE OF THIRD APPELLATE

COUNTY OF SACRAMENTO, Plaintiff and Respondent, vs.

AFSCME LOCAL 146, et al., Defendants and Appellants, and

PUBLIC EMPLOYMENT RELATIONS BOARD, Intervenor and Appellant. ______

Sacramento Superior Court The Honorable Shelleyanne W.L. Chang The Honorable Loren E. McMaster Case No. 06AS03704 ______

AMICUS CURIAE BRIEF OF THE CALIFORNIA STATE ASSOCIATION OF COUNTIES AND LEAGUE OF CALIFORNIA IN SUPPORT OF PLAINTIFF AND RESPONDENT COUNTY OF SACRAMENTO ______

Jennifer B. Henning (SBN 193915) California State Association of Counties 1100 K Street, Suite 101 Sacramento, CA 95814-3941 Telephone: (916) 327-7534 Facsimile: (916) 443-8867

Attorney for Amici Curiae California State Association of Counties and League of California Cities

TABLE OF CONTENTS TABLE OF AUTHORITIES...... ii I. INTRODUCTION...... 1 II. INTEREST OF AMICI CURIAE ...... 2 III. ARGUMENT ...... 3 A. LOCAL GOVERNMENTS MUST MAINTAIN THE RIGHT TO SEEK INJUNCTIVE RELIEF DIRECTLY FROM COURTS...... 3

B. PERB DOES NOT HAVE JURISDICTION OVER ALL UNLAWFUL EMPLOYEE / EMPLOYER CONDUCT; HEALTH AND SAFETY ISSUES REMAIN A LOCAL GOVERNMENT CONCERN...... 6

1. PERB’s jurisdiction is limited to matters within the scope of the MMBA...... 7

2. Cities and counties should retain primary responsibility for public health and safety...... 10

C. COURTS ARE BEST SUITED TO ADDRESS THE URGENT NATURE OF PUBLIC HEALTH AND SAFETY THREATS...... 11

1. PERB is not in a legal position to address the need for emergency injunctions...... 12

2. The court system has the expertise and procedures necessary to deal effectively with the need for urgent orders...... 15 D. THE LEGISLATURE DID NOT INTEND FOR PERB JURISDICTION TO CLASH WITH DUTIES OF LOCAL GOVERNMENTS ...... 17 1. Plain language supports a reading that PERB does not have exclusive initial jurisdiction when public health and safety are endangered...... 17

2. Cases related to other PERB statutes are not binding on the issue of PERB jurisdiction over health and safety concerns...... 18

3. Harmonizing the PERB statutes can be accomplished without improperly extending initial exclusive jurisdiction...... 20 IV. CONCLUSION ...... 23

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TABLE OF AUTHORITIES

CASES Big Creek Lumber v. County of Santa Cruz (2006) 38 Cal.4th 1139...... 6, 22

Bishop v. of San Jose (1969) 1 Cal.3d 56...... 22

California Teachers’ Assoc. v. Livingston Union School Dist. (1990) 219 Cal.App.3d 1503...... 8, 9

Carlin v. City of Palm Springs (1971) 14 Cal.App.3d 706 ...... 3, 10

City of Santa Ana v. Santa Ana Police Benevolent Assoc. (1989) 207 Cal.App.3d 1568...... 5

Coachella Valley Mosquito & Vector Control Dist. v. PERB (2005) 35 Cal.4th 1072 ...... 12, 20, 21

Collins v. Overnite Transportation Co. (2003) 105 Cal.App.4th 171 ...... 20

County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 286...... 22

County Sanitation Dist. No. 2 v. County Employees’ Assoc. (1985) 38 Cal.3d 564...... 3, 4, 12, 16

Davidson v. County of (1996) 49 Cal.App.4th 639 ...... 16

Dept. of Fish and Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554...... 13

El Rancho Unified School Dist. v. National Education Assoc. (1983) 33 Cal.3d 946...... 8, 9, 13, 15

Graf v. San Diego Unified Port Dist. (1992) 7 Cal.App.4th 1224...... 16

Great Lakes Properties Inc. v. City of El Segundo (1977) 19 Cal. 3d 152, 155 ...... 17

Kim v. Superior Court (2006) 136 Cal.App.4th 937...... 17

Levi v. O’Connell (2006) 144 Cal.App.4th 700 ...... 21

ii

Los Osos Valley Associates v. City of San Luis Obispo (1994) 30 Cal.App.4th 1670...... 16

Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal. 3d 222, 230 ...... 17

Palo Alto-Menlo Park Yellow Cab v. Santa Clara County Transit Dist. (1976) 65 Cal.App.3d 121...... 13

San Diego Teachers Assoc. v. Superior Court (1979) 24 Cal.3d 1...... 8

San Lorenzo Education Assoc. v. Wilson (1982) 32 Cal.3d 841...... 9

Sears, Roebuck & Co. v. San Diego County District Council of Carpenters (1978) 436 U.S. 180 ...... 8

STATUTES

Cal. Const., art. VI § 10...... 15

Cal. Const., art. XI, § 7...... 3, 10, 21

Civ. Code § 816...... 10

Civ. Code § 834...... 10

Code Civ. Proc. § 86...... 15

Code Civ. Proc. § 527...... 16

Ed. Code §§ 45100 et seq...... 20

Ed. Code §§ 88000 et seq...... 20

Gov. Code § 3500...... 7

Gov. Code §§ 3500 et seq ...... 1, 6

Gov. Code § 3500(a) ...... 7, 17

Gov. Code § 3501(c) ...... 19

iii

Gov. Code § 3509...... 7, 18

Gov. Code § 3509.5...... 11

Gov. Code § 3512 et seq...... 6

Gov. Code § 3540...... 19

Gov. Code § 3560 et seq...... 6

Gov. Code § 71600 et seq ...... 6

Gov. Code § 71800 et seq...... 6

Health & Safety Code § 101025...... 10

Labor Code § 1962 ...... 4

Pen. Code § 597...... 10

Pub. Utilities Code § 99560 et seq ...... 6

Welf & Inst. Code § 17000 ...... 10

Welf. & Inst. Code § 850...... 1

RULES Cal. Rules of Court, rule 379...... 16

REGULATIONS Cal. Code Regs., tit. 8, §§ 32465...... 14

Cal. Code Regs., tit. 8, § 32450...... 14

Cal. Code Regs., tit. 8, § 32455...... 14

Cal. Code Regs., tit. 8, § 32460...... 14

Cal. Code Regs., tit. 8, § 32470...... 14

Cal. Code Regs., tit. 8, § 32604...... 9

iv

Cal. Code Regs., tit. 15...... 10

TREATISES AND OTHER SOURCES

29 Ops. Cal. Atty Gen. 82 ...... 21

Restat. 2d of § 936 ...... 13

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I. INTRODUCTION

The Public Employment Relations Board (PERB) is a quasi-judicial administrative agency of limited jurisdiction. It is charged with administering specific collective bargaining statues governing public employees, including the Meyers Milias Brown Act (MMBA) (Gov. Code

§ 3500 et seq.). Does PERB have exclusive jurisdiction where the alleged unlawful conduct amounts to a substantial and imminent threat to the public safety, but does not violate one of the statutes administered by PERB?

The California State Association of Counties and the League of

California Cities contend PERB does not have exclusive jurisdiction.

Cities and counties have broad and statutory authority over issues of public health and safety. The courts have the procedural ability and expertise to quickly address issues implicating the public health and safety. Requiring cities and counties to seek relief from PERB rather than pursuing relief directly from the courts costs valuable time under exigent circumstances, is not required by the applicable statutes, and usurps the authority of cities and counties to take actions necessary to protect the public health and safety of their residents. CSAC and the League therefore urge this Court to find that the Superior Court has the authority to intervene in this matter and to affirm the trial court’s orders.

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II. INTEREST OF AMICI CURIAE

The California State Association of Counties (CSAC) is a non-profit corporation. The membership consists of the 58 California counties.

CSAC sponsors a Litigation Coordination Program, which is administered by the County Counsels’ Association of California and is overseen by the

Association’s Litigation Overview Committee, comprised of county counsels throughout the state. The Litigation Overview Committee monitors litigation of concern to counties statewide and has determined that this case is a matter affecting all counties.

The League of California Cities (League) is an association of 478

California cities dedicated to protecting and restoring local control to provide for the public health, safety, and welfare of their residents, and to enhance the quality of life for all Californians. The League is advised by its Legal Advocacy Committee, which is comprised of 24 city attorneys from all regions of the State. The Committee monitors litigation of concern to municipalities, and identifies those cases that are of statewide – or nationwide – significance. The Committee has identified this case as being of such significance.

Members of CSAC and the League have a significant stake in the outcome of this case. Cities and counties are responsible for delivering vital public services, including fire and police services, psychiatric emergency services, airport operations, detention services, child protective

2 services, waste water operations, and landfill operations. When cities and counties are confronted with the threat of a work stoppage by critical health and safety personnel, they must act immediately to prevent harm to the public. The court should preserve local governments’ ability to directly seek injunctive relief in such critical situations.

III. ARGUMENT

A. LOCAL GOVERNMENTS MUST MAINTAIN THE RIGHT TO SEEK INJUNCTIVE RELIEF DIRECTLY FROM COURTS.

Local government police powers are imbued in the law of California through its Constitution, and statutory scheme, and cities and counties are entitled to broad discretion in determining what is reasonable in endeavoring to protect public health and safety. (Cal. Const., art. XI, §

7; Carlin v. City of Palm Springs (1971) 14 Cal.App.3d 706, 711.) Local governments must maintain the ability to protect public health and safety by seeking injunctive relief against strikes that threaten the public absent a clear indication from the Legislature that those police powers are preempted.

California’s public employees generally have the right to strike, except when such strike “poses an imminent threat to the public health or safety.” (County Sanitation Dist. No. 2 v. Los Angeles County Employees’

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Assoc. (1985) 38 Cal.3d 564, 592.) According to the California Supreme

Court:

After of the various alternatives before us, we believe the following standards may properly guide courts in the resolution of future disputes in this area: strikes by public employees are not unlawful at common law unless or until it is clearly demonstrated that such a strike creates a substantial and imminent threat to the health or safety of the public. This standard allows exceptions in certain areas of public employment (e.g., the prohibition against fire fighters and law enforcement personnel) and also requires the courts to determine on a case-by-case basis whether the public interest overrides the basic right to strike.

Id. at 586.

Significantly, the County Sanitation court did not limit its holding to peace officers and firefighters.1 Rather, it identified examples of other

areas of potentially essential public services, including employees of

correction facilities, health care institutions, courts, and “other public

employees [who] require unique skills and training.” (Id. at 585-588, fns.

32, 35, and 36.) The Court emphasized that the question of whether or not

a strike “creates a substantial and imminent threat to the health or safety of

the public” must be decided by the trial courts on a case-by-case basis. (Id.

at 585-86.)

Concerted work activity by public employees other than a

strike may also be deemed unlawful when it threatens the public

health or safety, and may be enjoined. For example, a “sick out” by

1 Strikes by firefighters are prohibited by statute. (Labor Code § 1962.)

4 police officers is per se illegal, and an injunction is proper. (City of

Santa Ana v. Santa Ana Police Benevolent Assoc. (1989) 207

Cal.App.3d 1568, 1573.) In that case, officers who reported for work were forced to work multiple shifts in order to cover for

officers who engaged in the “sick out.” (Id. at 1570.) While both

the city and the police association agreed that the sick officers’

positions had been covered (in the sense of having someone present

in their place), the Court found the argument “that using officers

who have already worked a shift constitutes adequate staffing” to be

“hokum.” (Id. at 1573.) The Court emphasized that imminent harm

to the public was a critical factor to be construed broadly because it

is impossible to know in advance whether a particular strike will

imperil public safety. (Id. at 1572-73.)

Similarly here, while the trial court cannot predict precisely what

may happen if the essential employees named by the County of Sacramento

went out on strike, it need not wait until hindsight demonstrates that harm

did in fact occur as a result of defendants’ strike. Under the relevant case

law, it need only find that there is a substantial and imminent threat of

public health or safety to enjoin the strike.

/ / /

/ / /

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B. PERB DOES NOT HAVE JURISDICTION OVER ALL UNLAWFUL EMPLOYEE / EMPLOYER CONDUCT; HEALTH AND SAFETY ISSUES REMAIN A LOCAL GOVERNMENT CONCERN.

PERB is designed to administer seven collective bargaining statutes.2 It is responsible for adjudicating disputes where the alleged unlawful conduct occurred under one of the Acts administered by PERB. It does not, however, have jurisdiction over all unlawful employment-related conduct. Cities and counties, on the other hand, are granted broad police powers to address the health and safety needs of their residents. When local government acts in an area over which it traditionally has exercised control, such as over health and safety concerns, courts should presume, absent a clear indication of intent from the Legislature to the contrary, that such action is not preempted by state statute. (See Big Creek Lumber v.

County of Santa Cruz (2006) 38 Cal.4th 1139, 1149-1150 [local government acting in an area over which it has traditionally controlled is not preempted by State law absent a clear indication of preemptive intent from the Legislature].)

2 The statutes administered by PERB include the Educational Employment Relations Act of 1976 (Gov. Code § 3500 et seq.), the State Employer-Employee Relations Act of 1978 (Ralph C. Dills Act) (Gov. Code § 3512 et seq.), the Higher Education Employer-Employee Relations Act of 1979 (Gov. Code § 3560 et seq.), the MMBA, the Los Angeles County Metropolitan Transportation Authority Transit Employer-Employee Relations Act (Pub. Utilities Code § 99560 et seq.), the Trial Court Employment Protection and Governance Act (Gov. Code § 71600 et seq.), and the Trial Court Interpreter Employment and Labor Relations Act (Gov. Code § 71800 et seq.).

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1. PERB’s jurisdiction is limited to matters within the scope of the MMBA.

The purpose and intent of the MMBA is “to promote full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment….” (Gov. Code §

3500, subd. (a).) The statute is further intended to provide “a uniform basis for recognizing the right of public employees to join organizations of their own choice and be represented by those organizations in their employment relationships with public agencies.” (Id.)

In 2001, the California Legislature gave PERB exclusive jurisdiction over alleged violations of the MMBA. Specifically, Government Code section 3509, subdivision (b) provides in pertinent part as follows:

A complaint alleging any violation of this chapter . . . shall be processed as an unfair labor practice charge by the board. The initial determination as to whether the charge of an unfair labor practice is justified and, if so, the appropriate remedy necessary to effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction of the board.

(Gov. Code § 3509, subd. (b) (emphasis added).)

Since this section was enacted, no appellate case has specifically ruled on whether PERB has exclusive initial jurisdiction in the absence of an alleged violation of the MMBA. However, in addressing whether PERB has exclusive initial jurisdiction, three factors must be considered:

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(1) Whether PERB could properly determine that the strike was an unfair labor practice under the MMBA; (2) If so, whether it could furnish relief equivalent to that which would be provided by a trial court; and (3)

Whether the Legislature intended that PERB would have exclusive initial

jurisdiction over remedies against strikes that it could properly find were

unfair practices. (San Diego Teachers Assoc. v. Superior Court (1979) 24

Cal.3d 1, 7; California Teachers’ Assoc. v. Livingston Union School Dist.

(1990) 219 Cal.App.3d 1503, 1511.)

In situations where the alleged unlawful strike does not concern the

MMBA, PERB’s assertion of jurisdiction fails on the first prong of the

analysis. To assess whether PERB could find that the conduct at issue was

an unfair labor practice under the MMBA, the court “must construe the

activity broadly in order to provide ‘exclusive jurisdiction over activities

arguably protected or prohibited . . . .’” (California Teachers’ Assoc.,

supra, 219 Cal.App.3d at 1503, 1511 (quoting El Rancho Unified School

Dist. v. National Education Assoc. (1983) 33 Cal.3d 946, 953).) However, whether an activity is “arguably protected or prohibited” depends upon

“‘whether the controversy presented to the state court is identical to . . . or different from . . . that which could have been presented to PERB . . . .’”

(El Rancho Unified School Dist., supra, 22 Cal.3d at 956 (quoting Sears,

Roebuck & Co. v. San Diego County District Council of Carpenters (1978)

436 U.S. 180, 197).) The trial court’s exercise of jurisdiction only

8 interferes with PERB’s exclusive jurisdiction when the controversy is identical. (Id.)

In the present case, the request presented to the Superior

Court could not have been presented in the first instance to PERB as there was no claim of any unlawful labor practice under the MMBA, and “PERB has no authority to remedy conduct not expressly or impliedly proscribed by its governing statutes.” (California

Teachers’ Assoc., supra, 219 Cal.App.3d at 1525; See Cal. Code

Regs., tit. 8, § 32604.)

The County of Sacramento does not contend that the union or their members engaged in any MMBA-prohibited activities. Rather, the

County’s only contention is that the public health and safety depends upon certain employees being at work. That claim is wholly outside the bounds of PERB’s authority, which is grounded in the enforcement of the MMBA.

Protection of the public’s health and safety falls outside that statutory scheme. (See San Lorenzo Education Assoc. v. Wilson (1982) 32 Cal.3d

841, 853 [“[B]ecause no unfair practice has been claimed, PERB had no jurisdiction to hear the claims at bar – no administrative remedies were available to be exhausted.”].)

/ / /

/ / /

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2. Cities and counties should retain primary responsibility for public health and safety.

In seeking exclusive initial jurisdiction in this matter, PERB is attempting to usurp the duties of cities and counties concerning protection of the public health and safety. PERB’s statutory authority does not include issues of general health and safety. Rather, cities and counties are granted broad powers in the areas of public health and safety, and have broad discretion in determining what is reasonable in endeavoring to protect the public health, safety and morals and general welfare of the community. (Cal. Const., art. XI, § 7; Carlin v. City of Palm Springs

(1971) 14 Cal.App.3d 706, 711.)

Cities and counties also have statutory obligations that would be at risk by requiring that they rely upon PERB’s discretion in seeking legal remedies. For example, counties must take measures as necessary to preserve and protect the public health in the unincorporated territory of the county (Health & Safety Code § 101025), provide suitable facilities for juvenile wards (Welf. & Inst. Code § 850; Cal. Code Regs., tit. 15), provide support and medical care to the indigent (Welf & Inst. Code § 17000), and provide proper care to impounded animals (Civ. Code §§ 816, 834; Pen.

Code § 597, subd. (e)).

One of amici’s major concerns with PERB’s assertion of jurisdiction over non-MMBA public health and safety matters is that it interferes with

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the authority and responsibility of cities and counties to exercise their

police powers to protect the public health and safety. If PERB were found

to have exclusive jurisdiction, it would possess sole discretion over whether

to seek an injunction against a strike by essential employees.3 If PERB decides not to seek an injunction, or proceeds in a manner that is not sufficiently timely, cities and counties are without means to exercise their constitutionally-afforded police powers and cannot meet their statutory obligations.

Cities and counties should not be compelled to hand over their responsibility to protect the public health and safety to PERB. In particular, without a specific legislative directive limiting local police powers, cities and counties should not have to depend upon PERB to exercise its discretion over whether to seek injunctive relief when there is a public health or safety threat.

C. COURTS ARE BEST SUITED TO ADDRESS THE URGENT NATURE OF PUBLIC HEALTH AND SAFETY THREATS.

A significant concern of the cities and counties is that no matter how

quickly PERB has managed to act in any particular case in the past, any

delay in the ability to seek judicial relief is too much. The courts, as part of

3 As Sacramento County notes, a decision by PERB not to seek an injunction is not appealable. (Respond. Brf, pg.19; See Gov. Code § 3509.5.)

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the separate judicial branch, are best suited to address the urgent need for

intervention.

PERB is not equipped to act quickly enough in the face of a strike

that poses a health or safety threat per County Sanitation District. The

Superior Court, on the other hand, is promptly able to address the urgent

need for intervention. Further, issues implicating the public health and

safety are easily within the court’s expertise. The need for immediate

relief under these circumstances clearly weighs against PERB jurisdiction.

1. PERB IS NOT IN A LEGAL POSITION TO ADDRESS THE NEED FOR EMERGENCY INJUNCTIONS.

Where an administrative agency “lacks authority, statutory or otherwise, to resolve the underlying dispute between parties,” cities and counties should be excused from exhausting administrative remedies before proceeding directly to court. ( Mosquito and Vector

Control Dist. v. PERB (2005) 35 Cal.4th 1072, 1081-82.) In Coachella

Valley, the Court identified three factors that were important in determining whether exhaustion should be excused: (1) the injury or burden that exhaustion will impose; (2) the strength of the legal argument that the agency lacks jurisdiction; and (3) the extent to which administrative expertise may aid in resolving the jurisdictional issue. (Id. at 1082.)

There is the potential for significant injury if cities and counties are forced to seek PERB’s assistance to try and obtain injunctive relief in order

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to protect the public health and safety. PERB’s process for obtaining

injunctive relief is lengthy in terms relative to critical issues of health and

safety. The County’s argument that PERB lacks jurisdiction is strong given

PERB’s lack of statutory authority over public health and safety issues.

Finally, the issue presented relates only to whether an imminent threat to

public health and safety would occur with the absence of certain

employees. This is not the kind of fact-finding or legal determination that

is uniquely within PERB’s expertise.

In addition, PERB does not have in place a process to consistently or adequately address the urgent need for judicial intervention when a work stoppage poses an imminent threat to the public health or safety. Part of the test for issuing injunctions is the relative adequacy of other remedies – i.e., whether the final judgment ultimately available in those remedies will satisfactorily repair or compensate for the injury that the plaintiff will probably suffer if the injunctive relief is denied. (Dept. of Fish and Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1564-

1566; Palo Alto-Menlo Park Yellow Cab v. Santa Clara County Transit

Dist. (1976) 65 Cal.App.3d 121, 131. See Restat. 2d of Torts § 936

(1979).) The California Supreme Court has described this as the ability to obtain “full and effective” relief from an administrative body if the superior court is divested of jurisdiction. (El Rancho Unified School Dist. v.

National Education Ass’n (1983) 33 Cal.3d 946, 960-961.)

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It is clear that in the health and safety context, the PERB process does not provide full and effective relief. Twenty-four hours’ notice must be provided to PERB and the alleged offending party prior to requesting that PERB seek injunctive relief. (Cal. Code Regs., tit. 8, § 32450.) The regulation does not contain a process for waiver of notice. (Id.) The

General Counsel to PERB then commences an investigation, after notice to the parties. (Cal. Code Regs., tit. 8, § 32455.) The General Counsel has between 24 and 120 hours to make a recommendation to the PERB members on whether to seek an injunction. (Cal. Code Regs., tit. 8, §

32460.) There is no deadline for the Board to make a decision on whether to pursue injunctive relief after receiving the General Counsel’s recommendation. (Cal. Code Regs., tit. 8, §§ 32465.) However, the

General Counsel may seek an injunction without Board action, but only if the Board is not able to meet due to a lack of a quorum within 24 hours of receiving the General Counsel’s recommendation, and only if the General

Counsel has concluded that injunctive relief is proper. (Cal. Code Regs., tit. 8, § 32470.) As such, the rules do not provide any assurances on how quickly the Board will make a decision on the request for an injunction. If the PERB members ultimately decide to seek an injunction, PERB may then begin the injunction process in Superior Court; PERB itself does not have authority to issue its own injunction.

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In sum, under the timelines set forth in the regulations, it can take a

minimum of three days, with no set maximum timeframe, to work through the PERB process just to be able to seek the same relief from Superior

Court that cities and counties could seek in the first instance.4 This falls

significantly short of the full and effective relief standard detailed in El

Rancho.

2. THE COURT SYSTEM HAS THE EXPERTISE AND PROCEDURES NECESSARY TO DEAL EFFECTIVELY WITH THE NEED FOR URGENT ORDERS.

PERB provides only those remedies that effectuate statutory goals.

(El Rancho, supra, 33 Cal.3d at 958.) By contrast, the superior court has

general equity jurisdiction and may grant any provisional or permanent

injunctive relief. (Cal. Const., art. VI § 10; Code Civ. Proc. § 86.) There

is no reason for the courts to defer to PERB when addressing work

stoppages where no MMBA violation is involved. The courts certainly

have the procedural tools and expertise to address the issues raised in this

case. Temporary restraining orders are routinely considered in Superior

4 The Unions’ Opening Brief states that PERB can act quickly enough to ensure effective injunctive relief. (AFSMCE, et al. Opening Brief, pg. 33.) While it may be possible for PERB to quickly render a final decision if the investigation and Board meeting process takes less time than is prescribed in the regulations, petitioners in the PERB process cannot be certain a decision will be rendered more quickly than the regulations allow. As such, amici curiae urge this Court to consider the maximum time for PERB action permitted under the regulations in determining the sufficiency of the remedy, rather than an assertion of quick action. Public entities are not assured of a faster remedy, and therefore risk critical delay by engaging in the PERB process under these circumstances.

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Court, and in exigent circumstances, can even be issued without notice to the opposite party where “great or irreparable injury would result before the matter could be heard with notice.” (Code Civ. Proc. § 527.) Otherwise, notice is sufficient so long as the opposing party is provided notice before

10:00 a.m. the day before the hearing. (Cal. Rules of Court, rule 379, subd.

(b).) The result is a hearing on the matter no later than 24 hours after filing an application for a temporary restraining order.

In addition, the courts routinely determine issues of necessity related to public health and safety. (See Davidson v. County of San Diego (1996)

49 Cal.App.4th 639; Los Osos Valley Associates v. City of San Luis Obispo

(1994) 30 Cal.App.4th 1670, 1681; Graf v. San Diego Unified Port Dist.

(1992) 7 Cal.App.4th 1224, 1232.) Indeed, PERB does not have authority to directly issue injunctions. If public entities were required to file a complaint with PERB first, PERB would merely be asking the Superior

Court to make the same determination that the County of Sacramento requested here— that the strike is unlawful under County Sanitation

District. PERB’s expertise in the MMBA is of no import on that issue.

The courts clearly have the ability to quickly make fully informed decisions on whether a proposed work stoppage substantially threatens the public health and safety without input from PERB.

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D. THE LEGISLATURE DID NOT INTEND FOR PERB JURISDICTION TO CLASH WITH DUTIES OF LOCAL GOVERNMENTS.

In the interpretation of a statute where the language is clear, its plain meaning should be followed. (Great Lakes Properties Inc. v. City of El

Segundo (1977) 19 Cal. 3d 152, 155.) Significance should be attributed to every word and phrase of a statute, and a construction making some words surplusage should be avoided. (Moyer v. Workmen’s Comp. Appeals Bd.

(1973) 10 Cal. 3d 222, 230.) Wherever possible, the court should interpret a statute as consistent with applicable constitutional provisions, seeking to harmonize the Constitution and the statute. (Kim v. Superior Court (2006)

136 Cal.App.4th 937.)

1. Plain language supports a reading that PERB does not have exclusive initial jurisdiction when public health and safety are endangered.

The plain language of the code sections affected by SB 739 (Stats.

2000 ch 901), which moved the well-established MMBA under the umbrella of PERB, point to maintaining local governments’ rights to seek direct injunctive relief from the courts. Government Code section 3500, subdivision (a) says, “Nothing contained herein shall be deemed to supersede the provisions of existing state law and the charters, ordinances and rules of local public agencies . . .” that administer civil service systems.

“This chapter is intended, instead, to strengthen merit civil service and

17 other methods of administering employer-employee relations through the establishment of uniform and orderly methods of communication between employees and the public agencies by which they are employed.” Under a plain language reading, the Legislature adopted a uniformity of communication, not a uniformity of remedies that would be at odds with the state Constitution.

Further, legislators are presumed to have carefully crafted statutes, with no word or words rendered superfluous. Government Code section

3509, subdivision (a) states: “The powers and duties of the board described in Section 3541.3 shall also apply, as appropriate, to this chapter and shall include the authority as set forth in subdivisions (b) and (c).” (Emphasis added.) Included among the appropriate powers of the board are the power to order elections, to conduct any election the board orders, and to adopt rules to apply in areas where a public agency has no rule. (Id.) Extending jurisdiction beyond this authority, as PERB urges, requires this Court to both ignore the plain language of the statute and to read as superfluous the term “as appropriate” in violation of tenets of statutory construction.

2. Cases related to other PERB statutes are not binding on the issue of PERB jurisdiction over health and safety concerns.

PERB argues that because strike conduct by public employees covered by other statutes, particularly the Educational Employment

18

Relations Act (EERA), has been held to be within PERB’s initial exclusive jurisdiction, the strike at issue in this case must also be within its initial exclusive jurisdiction. This argument fails for two reasons. First, none of the cases cited by PERB found that PERB has jurisdiction over health and safety strikes, and the cases therefore are of no relevance to the question before this Court. Second, legislative intent under one of the statutes to provide PERB with exclusive initial jurisdiction cannot be automatically imputed to other diverse statutes unless they are on the same subject.

The statutes that PERB administers were passed in different years by different Legislatures, indicating that different legislative intent was attached to each. In fact, the statutes were passed at various times over the course of more than three decades. Some of the acts were placed under the

PERB umbrella at the time the acts were passed; others were created outside the PERB umbrella and only later shifted to PERB. Even the statute creating PERB and the EERA limits jurisdiction under its plain language. (Gov. Code § 3540 [“It is the further intention of the Legislature that any legislation enacted by the Legislature governing employer- employee relations of other public employees shall be incorporated into this chapter to the extent possible.”](emphasis added).)

Meanwhile, the MMBA in Government Code section 3501, subdivision (c) expressly declares that the MMBA is separate and distinct from the EERA. “As used in this chapter, ‘public agency’ does not mean a

19 or a county board of education or a county superintendent of schools or a personnel commission in a school district having a merit system as provided in Chapter 5 (commencing with Section 45100) of Part

25 and Chapter 4 (commencing with Section 88000) of Part 51 of the

Education Code or the State of California.”

3. Harmonizing the PERB statutes can be accomplished without improperly extending initial exclusive jurisdiction.

PERB argues that Coachella Valley Mosquito & Vector Control

Dist. v. PERB (2005) 35 Cal.4th 1072, requires this Court to harmonize the various statutes PERB administers such that initial exclusive jurisdiction is vested in PERB for all public employee strikes. It is certainly the duty of courts to harmonize statutes if possible. (Collins v. Overnite

Transportation Co. (2003) 105 Cal.App.4th 171, 180.) However, harmonizing does not mean a foolish consistency. Rather it means adopting an interpretation that will not lead to an absurd result, such as superseding the state Constitution.

The seven statutes administered by PERB can be harmonized by allowing PERB its initial exclusive jurisdiction under the statutes where it is so designated. Nothing in Coachella Valley or in a general harmonizing of the statutes, however, requires this Court to find initial exclusive jurisdiction where no violation of the MMBA is alleged. Coachella Valley

20 simply found that in the absence of legislative direction to the contrary, the

Court would read the same six-month statute of limitation into the MMBA that is found in the other statutes PERB administers. (Coachella Valley, supra, 35 Cal.4th at 1087-1091.) The case does not hold the statutes must be read to give PERB exclusive initial jurisdiction over every public employee dispute, whether or not the dispute involves a statute administered by PERB.

Indeed, to assume PERB has exclusive initial jurisdiction over disputes with county employees that involve only public health and safety concerns, but no MMBA violations, does not “harmonize” the PERB statutes. Rather, PERB’s position is contrary to the long- line of cases addressing local government police powers, which are unique among the employers governed by PERB. The element of constitutional police power is not present when dealing with public school , universities, courts or other employers covered by the statutes that PERB administers.

For example, the power of the Legislature over school districts is plenary subject only to any constitutional restrictions. (29 Ops.Cal.Atty.Gen 82, 83

(1957).) The public schools of this state are a matter of statewide rather than local or municipal concern, and the state Legislature is given comprehensive powers over the schools. (Cal. Const., art IX; Levi v.

O’Connell (2006) 144 Cal.App.4th 700, 706, n.3.) By contrast, as explained above, local governments have far broader powers and

21 responsibilities over municipal concerns, and retain constitutional police powers.

PERB’s position is also contrary to the long-standing doctrine that the Legislature may not unilaterally declare that a municipal affair is a statewide concern. On issues involving the division of power between local government and the State, the courts and not the Legislature is the final arbiter. (County of Riverside v. Superior Court (2003) 30 Cal.4th 278,

286.) Stated otherwise, the 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.) As such, when a local government acts in an area over which it traditionally has exercised control, such as over health and safety concerns, courts should presume, absent a clear indication of intent from the

Legislature to the contrary, that such action is not preempted by state statute. (See Big Creek Lumber v. County of Santa Cruz (2006) 38 Cal.4th

1139, 1149-1150.) No similar rule of law applies to school districts, so the cases cited by Appellants involving exclusive initial jurisdiction under the

EERA are not analogous to the main issue raised in the present case.

PERB’s harmonizing of statutes should be done only to the extent appropriate under the larger scheme of California law.

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IV. CONCLUSION

PERB’s jurisdiction does not extend beyond its statutory authority to administer the MMBA. By contrast, cities and counties are provided with broad police powers for the purpose of protecting the public health and safety. Further, courts possess the necessary expertise and procedural ability to timely address the urgent issues raised by work stoppages of essential health and safety employees. The Legislature did not intend for

PERB to usurp the fundamental authority of cities and counties, which should be permitted to seek immediate relief in the courts under these circumstances. Nor did the Legislature intend for local governments to be forced into critical time delays imposed by a state agency.

For all the foregoing reasons, CSAC and the League respectfully urge this court to affirm the lower court’s ruling the PERB has exclusive jurisdiction in this matter.

Date: July ___, 2007 Respectfully Submitted,

______Jennifer B. Henning, SBN 193915

Counsel for Amici Curiae California State Association of Counties and League of California Cities

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CERTIFICATION OF COMPLIANCE WITH CALIFORNIA RULES OF COURT, RULE 8.204(c)(1)

I hereby certify that this brief has been prepared using proportionately double-spaced 13 point Times New Roman typeface.

According to the “Word Count” feature in my Microsoft Word software, this brief contains 4,983 words.

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct. Executed this ___ day of

July, 2007 in Sacramento, California.

______Jennifer B. Henning, SBN 193915

Counsel for Amici Curiae California State Association of Counties and League of California Cities

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