Petition for Writ of Certiorari — Air Conditioning Trades Ass'n Unilateral Apprenticeship Committee v. California Apprenticeship Council

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\ cy, oreme Court, U.S.

/ ~ FILED

No. 04111 2FEB 15 2008

OFFICE OF THE CLERK

In The

Supreme Court of the Gnited States

AIR CONDITIONING TRADES ASSOCIATION

UNILATERAL APPRENTICESHIP COMMITTEE,

DESMOND CAPERS, DUANE TREVETHEN,

DIANE NESS, ERIC KENDALL, JENNIFER BATTS

AND JUSTIN GARCIA,

Petitioners,

CALIFORNIA APPRENTICESHIP COUNSEL

AND THE DIVISION OF APPRENTICESHIP

STANDARDS, HENRY P. NUNN,

Respondent,

SHEET METAL WORKERS’ INTERNATIONAL

ASSOCIATION LOCAL NOS. 104, 105 AND 162,

~ Real Parties In Interest.

On Petition For A Writ Of Certiorari

To The California Supreme Court

PETITION FOR A WRIT OF CERTIORARI

MARK R. THIERMAN

THIERMAN LAW FIRM

7287 Lakeside Drive

Reno, Nevada 89511

(775) 284-2500

Attorney for Petitioners

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

May the State of California mandate a local residency

requirement for admission to a private educational in-

stitution?

May the State of California forbid a private educa-

tional institution from advertising for admission to

non-residents?

May a California state administrative agency, such as

the California Apprenticeship Council (“CAC”) restrict

a private educational institution, such 1s Petitioner

Air Conditioning Trudes Associatio ~ lateral Train-

ing Committee, from recruiting app: ants to its pro-

gram based upon the geographica: preferences of

another, competing educational program, thereby “ra-

tioning” education and denying the individual Peti-

tioners access to information in violation of

constitutional guarantees of freedom of speech, privi-

leges and immunities, freedom to access private edu-

cation, right to engage in a common occupation, right

to travel and equal protection of law?

PARTIES TO THE PROCEEDING

Pursuant to Rule 14.1(b), the following list identifies

all of the parties appearing here and before the California

Court of Appeals.

The Petitioners here and appellants below are the Air

Conditioning Trades Association Unilateral Apprentice-

ship Program, Desmond Capers, Duane Trevethen, Diane

Ness, Eric Kendall, Jennifer Batts and Justin Garcia.

The Appelles below are the California Apprenticeship

Council, Division of Apprenticeship Standards, Henry P.

Nunn.

Real Parties in Interest here and below are the Sheet

Metal Workers’ International Association Local Nos. 104,

105 and 162.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6, Petitioners State as follows:

Air Conditioning Trades Association Unilateral Ap-

prenticeship Program is an unincorporated non-profit

trade association with no parent or subsidiaries.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................ccssccsccsecesseeeees i

PARTIES TO THE PROCEEDING......................2c0000 ii

CORPORATE DISCLOSURE STATEMENT ............. iii

FE COT HF I sc nckncncnscedasncnsincdcenictnsseebons vi

I MPT scicntnshonsanensescsnisuniatadadetnsdbiianiinains 1

IE eisisesicceersscsatiuiniesitiesiacbisincebhpcisniadmadiibsubiniiadbiniibiags 1

STATUTES AND CONSTITUTIONAL PROVISIONS

INVOLVED...............000. jissiidelbidanatisdipsiiadipilbandiakiad cain 2

Bs rT Acstshiieniitsiaiientscistidibinsiniigsstinidiainail 2

II. STATEMENT OF THE CASE......................... 7

A. STATEMENT OF FACTGS......................0008 7

B. PROCEDURAL HISTORY: DAS &CAC.... 9

C. PROCEDURAL HISTORY: SUPERIOR

Gee ceichsscaissdinhsstscsnsiabaidiemintiianiigeietaidacalesnbiiens 12

D. PROCEDURAL HISTORY: CALIFORNIA

eet - gt fy | | A Saenemnnrre 12

E PROCEDURAL HISTORY: SUPREME

COURT OF CALIFORNIA ....................... 13

III. REASONS FOR GRANTING THE WRIT....... 13

A. THE CALIFORNIA COURTS ERRED BY

HOLDING THAT ONLY A DURATIONAL

RESIDENCY REQUIREMENT IS UNCON-

STITUTIONAL WHEN APPLIED TO THE

MERE APPLICATION FOR ADMISSION

TO A PRIVATE EDUCATIONAL INSTI-

apa idicitcincintsanicdssusiinaaiiucmacansnabiadaspadidsadin 13

TABLE OF CONTENTS — Continued

3 Page

B. THE CALIFORNIA COURTS ERRED BY

NOT HOLDING THAT A STATE MAN-

DATED RESIDENCY RESTRICTION FOR

ADMISSION TO A PRIVATE EDUCA-

TIONAL INSTITUTION, AS OPPOSED

TO A PUBLIC SCHOOL, DOES NOT

VIOLATE THE FIRST AND FOURTEENTH

DELETE RG ox Firenscccdinsassvinnandnstiipheiaionses 20

C. PRIOR RESTRAINT OF SOLICITATION

OF APPLICANTS TO ATTEND SCHOOL

IS UNCONSTITUTIONAL................:ccc00008 23

ER, CI IO nincen sein pecinsinsnscniepamiabsaamsctectentien 25

TABLE OF AUTHORITIES

CASES

Abbott v. Bragdon, 912 F. Supp. 580 (D. Me., 1995)......... 20

Associated Indus. of Mo. v. Lohman, 511 U.S. 641,

114 S. Ct. 1815, 128 L. Ed. 2d 639 (1994)..........0000000.... 13

Attorney Gen. of New York v. Soto-Lopez, 476 U.S.

898, 106 S. Ct. 2317, 90 L. Ed. 2d 899 (1986)............... 19

Benjamin v. Ricks, 63 Cal. App. 3d 393, 133 Cal.

Sete, FE CO Cee cecvesenesnennncsesocansepsinemecianiignstniicientinalinaies 13

Board of Education v. Allen, 392 U.S. 236, 88 S. Ct.

BOBS, BO Le. BIG. BE BOB Cea eccccccccsccsccnccsseansnstsenensenses 21

Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct.

BOGE, Fa Te. Bi. TE Ge Cee tans cscesnenntesstivnaseeniencinenes 24

California Div. of Labor Standards Enforcement v.

Dillingham Constr., N. A., Inc., 519 U.S. 316, 136

L. Ed. 2d 791, 117 S. Ct. 832 (1997)........................ 2, 3,4

Camps Newfound/Owatonna v. Town of Harrison,

520 U.S. 564, 117 S. Ct. 1590, 137 L. Ed. 2d 852

CRITI ccitssiinninsdssnnntanebimenatassiiaisetesiulenel mee Rie es 15

Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct.

FOS 8 Ee ee 23

Capers, et al. v. Nunn and ACTA v. CAC, 2004

Cal. App. Unpub. LEXIS 8094 (California

Unpublished Opinions, 2004)..................ccccceeeeeeees 1, 4,12

Central Hudson Gas & Elec. Corp. v. Public Serv.

Comm'n of N. Y., 447 U.S. 557, 100 S. Ct. 2343,

5 §& | ifs Ue ee 25

Vii

TABLE OF AUTHORITIES - Continued

Page

Cooperrider v. Civil Service Comm'n, 97 Cal. App.

3d 495, 158 Cal. Rptr. 801 (1979).............000000... 14, 17, 18

Del Monte v. Wilson, 1 Cal. 4th 1009, 824 P.2d 632,

Se Be ciicericticiaicntensticeietiiienctisananinien 19

Farrington v. Tokushige, 273 U.S. 284, 47 S. Ct.

a ee ee es i ihirctrrtitiniinitiiinilctnicnitnanietttiiies 22, 23

Frazier v. Heebe, 482 U.S. 641, 107 S. Ct. 2607, 96

iis ree I 17

Jacoby v. The State Bar of California, 19 Cal. 3d

359, 562 P.2d 1326, 138 Cal. Rptr. 77 (1977)................. 24

Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750,

108 S. Ct. 2138, 100 L. Ed. 2d 771 (1988)..................... 25

Maher v. Roe, 432 U.S. 464, 97 S. Ct. 2376, 53

Hs See Se I GT OD siicsichdicieruilitinsitieiieeksti es 22

Martinez v. Bynum, 461 U.S. 321, 103 S. Ct. 1838,

RTC NT eR ASE? Se 16

Memorial Hosp. v. Maricopa County, 415 U.S. 250,

94 S. Ct. 1076, 39 L. Ed. 2d 306 (1974)... 23

Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67

Ff ek ee 20, 22, 23

Nelson v. Geringer, 295 F.3d 1082 (10th Cir. 2002).......... 15

New Energy Co. of Ind. v. Limbach, 486 U.S. 269,

108 S. Ct. 1803, 100 L. Ed. 2d 302 (1988).............0....... 13

Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct.

2 FS 8 | 20, 21, 22, 23

Saenz v. Roe, 526 U.S. 489, 119 S. Ct. 1518, 143

Hes Base Ge Cy CAMEO Getisccsocncittliciisibsiatainsbicibiensbeiaieeeecnan 17, 23

TABLE OF AUTHORITIES — Continued

Page

San Antonio Independent Sch. Dist. v. Rodriguez,

411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973).... 20, 23

Southern Cal. Ch. of Associated Builders Etc. Com.

v. California Apprentices Committee, 4 Cal. 4th

422, 841 P.2d 1011, 14 Cal. Rptr. 2d 491 (1992) ......... 4,9

Supreme Court v. Friedman, 487 U.S. 59, 108 S. Ct.

ee EE Wik a, Se I I ccniincencsihiscdncdadiacsanncctinentnins 15

Virginia Bd. of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748, 96 S. Ct.

re Se a: es Be ee enictenesetashisieniipesitiasioninn 25

Wilson v. Superior Court, 13 Cal. 3d 652, 532 P.2d

116, 119 Cal. Rate. 468 (1976) ........ccccccccosscsocssssscsssseoseees 24

Windsor Park Baptist Church v. Arkansas Activities

Association, 658 F.2d 618 (8th Cir. 1981)...................... 21

Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct..1526, 32

SF GS: a re nee ae ee 20

CONSTITUTIONAL PROVISIONS

United States Constitution, Article III, Section 2,

i a 1

United States Constitution, Article IV, Section 2........... 2,6

United States Constitution First Amend-

EINE SE LR EE Bee 2, 6, 14, 20, 23, 24

United States Constitution Fourth Amendment................ 6

United States Constitution Fourteenth Amend-

IIE ctncscnitnndecninnsccnintinionsssnnthisshesciannibidiitenmninebaséinl passim

TABLE OF AUTHORITIES — Continued

Page

STATUTES

ge FR Bf. SED ena em npe Trem my Menem 1

SEAL, © Ce initiitneiesnhicisiisnctstnonnieisc siiabiiaaiidiesibiaas 9

TT. © Se ee atte nsansiditnttnntntsicemntiannianidiacins 7

STI, 6 ERA Gites itticsiecthansiterantebrintinniinsin 2

Chak. COI, RE: Bi CI Wickcncciciciectididsnntaciibiansdenbicaseasninnde 23

Cat: COMBE: OEE, 5 GUE, FID ances cstctestenesetensscsesscitosnes 13, 14

Coed. CI, Gs Fe Ts ae eerinakebntnsciencdtntecnernacsiioncenss 2,6

CAL. ConsT. art. XI, § 10, subd. (bY ...............cccccccsssssseseeees 18

CAL. LAB. CODE § 1777.5 (Deering 2004) ..................csseeeeees 2

Chan, ei, COGN S Be Oe cir caniaithch sais sttinesenansrtscamadnicscnesn 1

CAL. LAB. CODE § 3075 (Deering 2004) ................sccseeeeees 2,7

CAL. LAB. CODE § 3075(a) (Deering 2004)...............ceeseeeees 3

CAL. LAB. CODE § 3075(b) (Deering 2004). ..............ceseeeeee 2

Ca, Ba, GOONIES Ie ii ieieetiisssssinnnsiniaseetinancaiinantntnindiiiniscandiais 2

REGULATIONS

i oe ic titiaiceisscienavsctenkiibeiinbiionsiaigaemcaligies 9

BD CB, BF Ce wie scisssiiscnssiiitncnnebhisibrichaaacttincaaiandai 7

CAL. CODE REGS. tit. 8, Article 1A, I-X, §§ 200-234.2 ......... 2

CAL. CODE REGS. tit. 8 § 205 (2004) ............ eeecssssssssseesseeees 7

CAL. Cope REGS. tit. 8 § 212 (2004)............sc.ccssrscrscederee 11

CAL. CODE REGS. tit. 8 § 212(b)(2) (1995)...........sscsseeeereees 10

CAL. CODE REGS. tit. 8 § 212(i) (2000)...............secessscceseeee 11

TABLE OF AUTHORITIES — Continued

Page

CAL. CODE REGS. tit. 8 § 212.2 (1990) ..............ccssssscesssseeeees 9

CAL. CODE REGS. tit. 8 § 212.2(a) (2000).................eeeee 4,5

CAL. CODE REGS. tit. 8 § 212.2(a) (2004)... eee 3, 4

CAL. CODE REGS. tit. 8 § 212.2(c) (2000) ........ eee 11

CAL. CODE REGS. tit. 8 § 218 (2004) 000.0... ceceeeeeeeee 10

CAL. CODE REGS. tit. 8 § 230.1(a) (2004) 00.0... eee 2

PETITION FOR A WRIT OF CERTIORARI

Petitioners request that a writ of certiorari issue to

review the final order of the California Supreme Court.

OPINIONS BELOW

The opinion of the California Court of Appeals in

Capers v. Nunn, is unpublished, but available at 2004 Cal.

App. Unpub. LEXIS 8094 (California Unpublished Opin-

ions, 2004) and reproduced in the appendix at App. 1. The

California Supreme Court order denying Petitioners’

petition for review is reproduced in the Appendix at App.

60. The Sacramento County Superior Court opinion is

unreported and is reproduced in the Appendix at App. 22.

JURISDICTION

On September 1, 2004, the California Court of Appeals

affirmed the judgment of the Superior Court of Sacra-

mento County, upholding the order of the California

Apprenticeship Counsel prohibiting the Air Conditioning

Trade Association Unilateral Apprenticeship Program

from recruiting or indenturing applicants for apprentice-

ship who are not residents of a four-county area in Cali-

fornia. On November 17, 2004, the California Supreme

Court denied review. This Court’s jurisdiction is invoked

pursuant to 28 U.S.C. § 1257(a) (2005) and the United

States Constitution, Article III, Section 2, subsection 2.

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

This case involves provisions of the United States

Constitution, including the Privileges and Immunities

Clause of Section 2 of Article IV and the First and Four-

teenth Amendments. It also involves CAL. LAB. CODE

§§ 1777.5, 1777.7, 3075, 3077 and CAL. CODE REGS. tit. 8,

Article 1A, I-X, §§ 200-234.2.

I. INTRODUCTION

Ever since the decision of this court in the case of

California Div. of Labor Standards Enforcement v. Dil-

lingham Constr., N. A., Inc., 519 U.S. 316, 136 L. Ed. 2d

791, 117 S. Ct. 832 (1997) (Dillingham), where this Court

limited the protection provided apprenticeship programs

by the preemption clause to the Employee Income Secu-

rity Act, 29 U.S.C. § 1144(a) (2005), the State of Califor-

nia has devised and revived various methods to curtail

apprenticeship opportunities to new programs, thereby

creating a monopoly on private education in favor of

existing programs. The State of California has always

mandated the employment of state approved apprentices

on all California Public Works projects.’ After the Court’s

* At oral argument in Dillingham, the State of California repre-

sented that CAL. LAB. CODE §§ 1777.5 and 1777.7’s requirement to

employ apprentices on all California public works statutes was not

enforced and/or discretionary. That is not the case. CAL. LAB. CODE

§ 1777.5 (Deering 2004) has always required the employment of state

approved apprentices on public works construction, and contractors are

required by law to inform state approved apprenticeship programs of all

public works jobs in order to facilitate dispatch of apprentices. CAL.

CODE REGS. tit. 8 § 230.1(a) (2004) states, “Contractors, as defined in

Section 228 to include general, prime, specialty or subcontractor, shall

(Continued on following page)

decision in Dillingham, California enacted legislation and

regulations allowing existing apprenticeship programs to

veto accreditation of any new program or to block any

program expansion. CAL. LAB. CODE § 3075(a) (Deering

2004) requires that any new program (and by regulations

at CAL. CODE REGS. tit. 8 § 212.2(a) (2004), an expansion of

an existing program is considered a new program) must

demonstrate a “need” for the program, and a 1999

amendment of this statute added subsection b, which

states:

For purposes of this section, the apprentice train-

ing needs in the building and construction trades

shall be deemed to justify the approval of a new

apprenticeship program only if any of the follow-

ing conditions are met: (1) There is no existing

apprenticeship program approved under this

chapter serving the same craft or trade and geo-

graphic area. (2) Existing apprenticeship pro-

grams approved under this chapter that serve

the same craft or trade and geographic area do

not have the capacity, or neglect or refuse, to dis-

patch sufficient apprentices to qualified employ-

ers at a public works site who are willing to

abide by the applicable apprenticeship stan-

dards. (3) Existing apprenticeship programs ap-

proved under this chapter that serve the same

trade and geographic area have been identified

by the California Apprenticeship Council as defi-

cient in meeting their obligations under this

employ registered apprentice(s), as defined by Labor Code § 3077, during

the performance of a public work project in accordance with the required

1 hour of work performed by an apprentice for every five hours of labor

performed by a journeyman, unless covered by one of the exemptions

enumerated in Labor Code Section 1777.5 or this subchapter.”

chapter. CAL. LAB. CODE §3075(b) (Deering

2004).

Petitioners Air Conditioning Trade Association Joint

Apprenticeship Committee (hereinafter referred to as

“ACTA”) and individuals Desmond Caper, Duane Treven-

then, Diane Ness, Eric Kendall, Jennifer Batts and Justin

Garcia (hereinafter collectively referred to as “Petitioners”)

seek to challenge this limitation on access to private educa-

tion in the coordinated case of Capers, et al. v. Nunn and

ACTA v. CAC, 2004 Cal. App. Unpub. LEXIS 8094 (Califor-

nia Unpublished Opinions, 2004)’ where the Court affirmed

an order of the California Apprenticeship Council denying

future applicants to ACTA the right to apply for and to be

indentured into the ACTA program based solely upon their

place of residency at time of application. The decision

further ordered ACTA to cease and desist from “recruiting

apprentices or utilizing selection methods that result in the

recruitment or enrollment of apprentices” from outside

certain geographic areas. The decision retroactively applies

the regulations at CAL. CODE REGS. tit. 8 § 212.2(a) (2000)° to

all the “newer” unilateral programs. The regulation states:

* The California Court of Appeals affirmed the January 28, 2003

judgment of Superior Court Judge Lloyd G. Connelly, who affirmed the

January 24, 2002 decision of the California Apprenticeship Counsel

(“CAC”) that affirmed the July 19, 2001 decision of the Administrator of

Apprenticeship of the State of California, Department of Industrial

Relations. The California Supreme Court denied review on November

17, 2004.

* Ironically, this is an even more restrictive-version of the same

section of the regulations previously declared preempted by the

California Supreme Court in Southern Cal. Ch. of Associated Builders

Etc. Com. v. California Apprentices Committee, 4 Cal. 4th 422, 841 P.2d

1011, 14 Cal. Rptr. 2d 491 (1992) (So. Cal. ABC) cited with approval in

Dillingham, 519 U.S. 316.

To be eligible for approval, a program must com-

ply with all applicable federal and state law and

regulations. A revision to change the program’s

occupation or to change the program’s geographic

area of operation to include a different labor mar-

ket area is subject to the same application and ap-

proval process set out in (a)-(j) of this section for

approval of a [new] program, including providing

notice of the proposed revision and an opportunity

for comment to existing programs in the same ap-

prenticeable occupation in the labor market area.

CAL. CODE REGS. tit. 8 § 212.2(a) (2000).

The catch-22 facing all newer programs is that they

| cannot expand without seeking apprentices beyond the

counties they first began operation and they cannot amend

the SMSA (standard metropolitan statistical area) to add

counties for which they have not been approved. Approval re

is impossible because any existing program will say it is

underutilized in order to prevent a new program from

competing with it, even if the underutilization was caused

by market forces favoring the new program. Thus, the

regulations and the order combine to deny ACTA and

many other apprenticeship programs an opportunity to

recruit apprentices from out of state and/or out of area,

although it was acknowledged once indentured, the

apprentice could live and work state-wide without restric-

tion.

This case has impact well beyond the field of appren-

ticeship. If the State can limit access to a privately funded

educational institution in favor of other privately funded

educational institutions based upon the residence of

applicants at the time of application, then no student can

travel to go to a private college, and no college can admit

students from areas beyond its political influence. Harvard

——

ee oe se UU

could block Yale from accepting any student who applies

from Massachusetts, for example, for fear that Massachu-

setts will fail to recognize all Yale graduates for any

occupational licensing pre-requisites, and the City Council

of New Haven, Connecticut could do the same to any

graduate of Harvard. While there may not be a right to

public education, the First Amendment protects the right

of potential students to attend the private educational

institution of their choice regardless of location.

This appeal asserts the fundamental right to be

solicited by and to enter a private educational work-study

program based solely upon the county of residence of the

applicant without a compelling state interest. Education is

not a product that the state can ration, like liquor, but is a

form of protected speech. The regulation of private educa-

tional attendance is no different in concept than if the

state refused to allow more than one newspaper in a town

or city. This appeal embraces Constitutional claims of the

right to access education under the First Amendment, the

right of Equal Protection and Privileges and Immunities of

both the Fourth and Fourteenth Amendment, as well as

Article IV, Section 2 of the Constitution.

Although Petitioner urges a strict scrutiny test should

have been applied to this abridgement of multiple funda-

mental rights, there is no rational relationship between the

CAC’s order and any legitimate purpose of government,

simply because the order is directed at applicants for

admission rather than those who are already admitted.

There are no comparable regulations for apprentices once

they are admitted to the program, showing that all justifi-

cations for residency requirement for admission to be a

pretext to discriminate and exclude based upon residency.

For the reasons more fully articulated hereinafter, Peti-

tioners request the reversal of the judgments of the Cali-

fornia Court of Appeals and by the Hon. Lloyd G. Connelly

affirming the decision of the CAC in these cases.

Il. STATEMENT OF THE CASE

A. STATEMENT OF FACTS

ACTA is an unincorporated business entity in Califor-

nia lawfully existing as the sponsor of an apprenticeship

program for training apprentices statewide in the air

conditioning trades craft under the instructional supervi-

sion of the California Department of Education and with

on-the-job training in accordance with applicable federal

and California Apprenticeship criteria and approved by

the California Apprenticeship Council, pursuant to CAL.

LAB. CoDE § 3075 (Deering 2004) and CAL. CODE REGS. tit.

8 § 205 (2004). ACTA is a private, not public, apprentice-

ship training program where its members are not party to

a collective bargaining agreements with any labor organi-

zation. It is referred to as a “unilateral training commit-

tee” under federal Apprenticeship Regulations,“ while

union programs are called “joint” programs.° The quality of

the education or the content of the course work is not at

question, as ACTA is allowed to solicit in four California

Counties, and once indentured, its apprentices can live

and work state-wide.

* See, 29 C.F.R. § 29.2(i) (2005).

* All union plans are called joint apprenticeship committees and

must be jointly administered because Section 302(c) of the Taft-Hartley

Act, 29 U.S.C. § 186(c) (2005).

Petitioners Desmond Caper, Duane Treventhen, Diane

Ness, Eric Kendall, Jennifer Batts and Justin Garcia are

potential apprentices who wish to be enrolled, and have

been accepted to be indentured as apprentices in the ACTA

apprenticeship program, but cannot be indentured because

the California Division of Apprenticeship Standards,

Division of Industrial Relations (“DAS”) will not sign their

completed indenture certificates. The DAS will not sign

their indenture certificates, which is necessary for them to

being recognized as apprentices, because the address

listed on their application form is not within the four

California counties which are listed in an addendum to the ~

ACTA apprenticeship standards as the SMSA for meas-

urement of Affirmative Action goals. The DAS does not

argue that this limitation on geographic recruitment is in

furtherance of these affirmative action goals, as indeed it

would facilitate diversity if the program could recruit from

a wider area where more minorities may be located. And

the DAS-does not consider adding new counties to the

SMSA in the affirmative action addendum a mere ministe-

rial act, but one requiring application as if the program

were a new program. And, as stated before, the regulations

assure that the new SMSA will never be approved because

of the veto power of the pre-existing and competing educa-

tional institutions, the joint apprenticeship programs.

The ACTA standards’ affirmative action addendum

states on page 1 “Area Covered by Standards and Ap-

proved Statistical Area Mariposa, Merced, Stanislaus and

Tuolumne Counties.” The purpose of this statistical area is

to measure the percentage of minority participation in the

program, as compared to the minority population of the

area where the program is operating. In its July 14, 1993

final enforcement policy issued by then-Chief DAS Gail

Jesswein, which under a section entitled “Geographic

Area”, stated “ ... in existing standards, a statement of

geographic area for recruitment, and within which R&SI

[related and supplemental instruction] classroom training

occurs, should be updated when the area of those activities

expands.” App. 106. ACTA has no issue with updating the

geographic reference automatically to reflect the area of

operation as the program evolves. But, instead, this

requirement is being used to limit the operations of the

program to recruiting only in the area where the program

initially operated over ten years ago.

B. PROCEDURAL HISTORY: DAS & CAC

ACTA was one of the “new” apprenticeship programs

made possible when the California Supreme Court deter-

mined that the former CAC regulation 212.2 (CAL. CODE

REGS. tit. 8 § 212.2 (1990)), which required a demonstra-

tion of “no adverse impact” was unconstitutional as pre-

empted by ERISA, and not saved by the Fitzgerald Act (29

U.S.C. § 50 (1992), and 29 C.F-R. § 29 (1992)) in So. Cal.

ABC, 4 Cal. 4th at 453 (“We conclude that the portion of

section 212.2(a), which provides that an apprenticeship

program may be denied approval when existing prevailing

conditions would be lowered or adversely affected in the

area and industry in which the program plans to operate,

is not ‘saved’ from preemption by ERISA.”). ACTA received

state approval a little more than a year after the Califor-

nia Supreme Court decision in So. Cal. ABC.

In 1995, the CAC regulations were amended to re-

quire apprenticeship program standards to state “the

parties to whom the standards apply and the program

sponsor’s labor market area, as defined by Section 215

appendix 2(1), for purposes of meeting equal employ-

ment opportunity goals in apprenticeship training.”

(CAL. CODE REGS. tit. 8 § 212(bX2) (1995)). (Emphasis

added). Soon after it began operations, ACTA was besieged

with requests to train apprentices far beyond its original

four California County area. On or about February 7,

1994, the DAS rejected complaints by Real Party in

Interest that ACTA was training out of the area approved

in its original standards. ACTA continued to expand

statewide and kept the DAS informed of its operations

constantly. The CAC regulations specifically provide that

an apprenticeship program is not restricted to a local area

of coverage and may provide for local, regional or state-

wide coverage in its standards. CAL. CODE REGS. tit. 8

§ 218 (2004).

In fear of continued complaints from Real Party that

it was “operating outside its area,” ACTA requested pro-

gram expansion statewide. Beginning in 1994, the DAS

repeatedly told ACTA both verbally and by copy of corre-

spondence, that ACTA did not need to amend its standards

as it was empowered to operate statewide already and for

that reason, none of its submissions for expansion were

processed by the DAS. In response to continued union

complaints, and concerns by Petitioner ACTA regarding its

ability to recruit state-wide, DAS employee Len Viramon-

tes wrote a letter dated September 18, 2000 stating:

On behalf of the State of California Department

of Industrial Relations/Division of Apprentice-

ship Standards, this letter is to certify that Air

Conditioning Trades Assoc. (ACTA), is a state

approved apprenticeship training facility, with

coverage consisting of the entire State of Califor-

nia, since 1994. App. 100.

Appellant ACTA attempted to update its standards by

filing various revisions with the DAS, called DAS form

24’s, which were signed by the DAS consultant assigned to

ACTA, but never returned by the Chief of the DAS, either

approved or disapproved in a timely manner.* In December

2000, ACTA again submitted a completed, revised set of

standards for statewide geographic jurisdiction to the

DAS, using the exact language and form supplied by the

employees of the DAS. The DAS employee again signed

off on the revised standards on December 22, 2000, and

submitted it to Respondent DAS Chief, who never signed

the standards, nor rejected them, although it was far in

excess of the 30 days for correction under CAL. CODE REGs.

tit. 8 § 212.2(c) (2000) and/or the 90 days for approval

referred to in CAL. CODE REGS. tit. 8 § 212(i) (2000).

However, on July 19, 2001, the DAS decided that

although ACTA can train statewide, it could not recruit or

solicit for indenture outside the four California County

area in its SMSA Affirmative Action addendum simply

because, it appears, the DAS Chief never personally

signed the revision to the standards approving statewide

training.’ App. 67. The DAS had been signing DAS-1 forms

for ACTA apprentices who listed their address outside the

four California county area all this time, and the DAS also

signed DAS-7 forms approving ACTA employers to perform

on-the-job training with statewide geographic coverage

since 1994. Ironically, ACTA could train statewide, but

could not solicit students statewide or from other states.

* As specified in CAL. Cope REGS. tit. 8 § 212 (2004).

" Actually, nobody knows if they were signed or not, but it is clear

that they were never returned signed and the DAS declares it cannot

find any record of the amendments being signed.

On January 24, 2002, the CAC adopted the July 19, 2001

DAS decision and ordered ACTA to restrict applicants to

its private educational program for apprenticeship train-

ing based upon the county of residence of the applicant.

App. 61, 65. ACTA sought review of the CAC decision by

the Superior Court, as the CAC decision is contrary to

State and federal law.

C. PROCEDURAL HISTORY: SUPERIOR COURT

On November 1, 2001, six potential ACTA apprentices

(Desmond Capers, Duane Trevethen, Diane Ness, Eric

Kendall, Jennifer Batts and Justin Garcia) filed an action

entitled Capers et al v. Nunn, case no. 01 CS01561 in the

Sacramento Superior Court, also on appeal to this court,

case no. C043358, seeking a writ to force Respondent

Henry Nunn, in his official capacity, to cease refusing to

execute a DAS-1 form acknowledging their indenture into

the ACTA apprenticeship program solely on the basis of

their place of residency. The ACTA v. CAC, DAS case was

consolidated with the case of Capers et al v. Nunn, in the

Superior Court of California, County of Sacramento on

October 4, 2002. A hearing was held before the Honorable

Lloyd G. Connelly on January 10, 2003, where the matters

were heard together. Judge Connelly presented his find-

ings from the bench and issued an order against both

ACTA and the individual “Capers” applicants. App. 22.

D. PROCEDURAL HISTORY: CALIFORNIA COURT

OF APPEAL

On September 1, 2004, the Third Appellate District

Court of Appeal issued a decision in the consolidated cases

affirming the trial court’s decision. App. 1.

E. PROCEDURAL HISTORY: SUPREME COURT

OF CALIFORNIA

On October 4, 2004, Petition filed a Petition for

Review of the California Court of Appeal’s decision. Peti-

tioners’ Petition for Review was denied on November 17,

2004. App. 60.

IV. REASONS FOR GRANTING THE WRIT

A. THE CALIFORNIA COURTS ERRED BY

HOLDING THAT ONLY A DURATIONAL

RESIDENCY REQUIREMENT IS UN-

CONSTITUTIONAL WHEN APPLIED TO

THE MERE APPLICATION FOR ADMIS-

SION TO A PRIVATE EDUCATIONAL IN-

STITUTION

The United States Constitution, Fourteenth Amend-

ment states in part “[nlo State shall make or enforce any

law which shall abridge the privileges or immunities of

citizens of the United States[.]” The California Constitu-

tion Article 1, Section 7(b) states “[a] citizen or class of

citizens may not be granted privileges or immunities not

granted on the same terms to all citizens. Privileges or

immunities granted by the Legislature may be altered or

revoked.” The State of California has a Constitutional

obligation to assure that members of the same class of

citizens are treated similarly. See, Benjamin v. Ricks, 63

Cal. App. 3d 393, 133 Cal. Rptr. 745 (1976). Statutes or

regulations cannot operate in a discriminatory manner

against out-of-state business merely because of their

presence outside of the area. Associated Indus. of Mo. v.

Lohman, 511 U.S. 641, 647, 114 S. Ct. 1815, 128 L. Ed. 2d

639 (1994), quoting New Energy Co. of Ind. v. Limbach,

486 U.S. 269, 273, 108 S.Ct. 1803, 100 L. Ed. 2d 302

(1988). The rules are the same for out-of-county operations

under California Constitution Article 1, Section 7(b).

Cooperrider v. Civil Service Comm’n, 97 Cal. App. 3d 495,

158 Cal. Rptr. 801 (1979) (Cooperrider).

The Court of Appeal agreed that the order of the CAC

requiring ACTA to cease and desist admitting people who

live outside the four Northern California Counties at the

time they make application to the program is first and

foremost a residency requirement, but incorrectly con-

cluded it was subject only to a rational basis test because

it was not a durational residency requirement. The sole

purpose of this residency requirement is to discourage

applicants from outside the area from being accepted into

the program, and therefore applicants will not relocate to

the area to attend school. The Court of Appeals did not

recognize any First Amendment right for a student to

choose a school of his or her choice, nor did it apply a

Privileges and Immunities test as opposed to an equal

protection analysis. Any “bona fide” residency require-

ment, no matter how short, would be unconstitutional

under Equal Protection and First Amendment analysis, as

well, if its sole purpose was to prevent the travel of people

to attend a lecture, or series of lectures, which make up an

educational program such as the ACTA apprenticeship

related and supplemental training.’ Because the sole

motive of the restriction is attainment of an unconstitu-

tional goal of limiting access to education, no residency

requirement can be justified.

* At the time, ACTA had contracted with various community

colleges statewide approved by the State to conduct rejated and

supplemental training so it could bring the classroom to the students

rather than have the students go to the classroom.

15 :

First, a residency requirement that is designed to

discourage people from moving into a community is not

bona fide, no matter how short its duration. In Supreme

Court v. Friedman, 487 U.S. 59, 108 S.Ct. 2260, 101

L. Ed. 2d 56 (1988) (the Supreme Court held a continuing

residency requirement to “waive in” to state bar violated

the Privileges and Immunities Clause); see also, Camps

Newfound/Owatonna v. Town of Harrison, 520 U.S. 564,

117 S. Ct. 1590, 137 L. Ed. 2d 852 (1996) (“Protectionism,

whether targeted at for-profit entities or serving, as here,

to encourage nonprofits to keep their efforts close to home,

is forbidden under the dormant Commerce Clause.”). And,

unlike the cases of voter eligibility or the spending of local

tax money, a residency requirement on the right to apply

for admission to a frivate educational institution has no

legitimate relationship with activity that may occur after

admission to the program. As stated in Nelson v. Geringer,

295 F.3d 1082 (10th Cir. 2002):

[dJespite this concession, the state asserts that

the residency restriction is constitutional because

it is a “bona fide” residency requirement, by

which the state apparently means to distinguish

this continuing residency requirement from dur-

ational residency requirements that have been

invalidated on right-to-travel and equal protec-

tion grounds. ... Where continuing residency re-

quirements also impede an activity protected by

the Privileges and Immunities Clause, however,

they may still be void as unconstitutional under

that Clause. See, e.g., Supreme Court v. Fried-

man, 487 U.S. 59, 101 L. Ed. 2d 56, 108 S. Ct.

2260 (1988) (continuing residency requirement to

“waive in” to state bar violates Privileges and

Immunities Clause); Supreme Court v. Piper, 470

U.S. 274, 84 L. Ed. 2d 205, 105 S. Ct. 1272 (1985)

(continuing residency requirement for admission

to state bar violates Privileges and Immunities

Clause). Thus, the state’s bare assertion that this

residency requirement is “bona fide” does not de-

termine whether the requirement is constitu-

tional under the Clause that the state has

~— conceded is at issue.

Second, the hardship of the residency requirement is

not de minimus as compared to the relative denefit at the

time it is being imposed. Residency requires both physical

location and intent to remain indefinitely, Martinez v.

Bynum, 461 U.S. 321, 331, 103 S. Ct. 1838, 75 L. Ed. 2d

879 (1982) (residence requires physical presence and inten-

tion to remain). While students attending post-secondary

education often live on campus, they most generally do not

become residents of their new abode because they do not

intend to remain there indefinitely. And all the justifica-

tions for residency requirements offered by the State

apply, if at all, to living close to school during the period of

—~—actual attendance in the ACTA program, which is not a

rationale for a true “residency” but for a temporary “hous-

ing” requirement. Yet, ACTA apprentices, once indentured,

may live anywhere, so that a restriction on admission

cannot be rationally related to the purposes of attendance

after admission.

Third, all the state’s justifications do not apply to

student admission, but to school attendance. But there are

no residency requirements after admission to this pro-

gram, and the standards provide for distance learning and

on the job education statewide. For example, under the

present rules a local applicant can join the program and

travel anywhere while still being indentured, but a non-

local resident may not join the program even if he or she is

| }

obligated to relocate to the four county area in order to

attend school. Thus, this residency requirement for admis-

sion to a private, as opposed to a public, college becomes a

burden on interstate travel with no off-setting state

interest. Frazier v. Heebe, 482 U.S. 641, 107 S. Ct. 2607, 96

L. Ed. 2d 557 (1987) (continuing residency requirement

imposed by the federal district court for the Eastern

District of Louisiana is unnecessary and arbitrarily

discriminates against out-of-state attorneys.).

Fourth, the state should have been required to show

at least a “substantial relationship” to its prohibition on

recruiting and a legitimate public policy goal. In Saenz v.

Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L. Ed. 2d 689

(1999) (Saenz), the Supreme Court required a “substantial

reason” rather than a pure rational relationship test. An

intra-state residency requirement is judged by the same

criteria. Cooperrider, 97 Cal. App. 3d 495 (Establishing the

right to commute intrastate). As this Court stated in

Saenz, 526 U.S. at 501-502:

Thus, by virtue of a person’s state citizenship, a

citizen of one State who travels in other States,

intending to return home at the end of his jour-

ney is entitled to enjoy the “Privileges and Im-

munities of Citizens in the several States” that

he visits. This provision removes “from the citi-

zens of each State the disabilities of alienage in

the other States.” Paul v. Virginia, 75 U.S. 168, 8

Wall. 168, 180, 19 L. Ed. 357 (1869) (“Without

some provision . . . removing from citizens of each

State the disabilities of alienage in the other

States, and giving them equality of privilege with

citizens of those States, the Republic would have

constituted little more than a league of States; it

would not have constituted the Union which now

exists”). It provides important protections fer

nonresidents who enter a State whether to ob-

tain employment, Hicklin v. Orbeck, 437 U.S.

518, 57 L. Ed. 2d 397, 98 S. Ct. 2482 (1978), to

procure medical services, Doe v. Bolton, 410 U.S.

179, 200, 35 L. Ed. 2d 201, 93 S. Ct. 739 (1973),

or even to engage in commercial shrimp fishing,

Toomer v. Witsell, 334 U.S. 385, 92 L. Ed. 1460,

68 S. Ct. 1156 (1948). Those protections are not

“absolute,” but the Clause “does bar discrimina-

tion against citizens of other States where there

is no substantial reason for the discrimination

beyond the mere fact that they are citizens of

other States.”

Fifth, the residency requirement does not pass muster

under even a rational basis test. The order of the CAC

applies a residency requirement only to the application for

admission to the ACTA program, and says nothing about

residency or location of the schooling after the employee is

admitted to the program. This is not a public employment

case because California voters amended the California

constitution to forbid a residency requirement for public

employment except that a charter city may require essen-

tial personnel (emergency response) to live in reasonable

proximity. CAL. CONST., art. XI, § 10, subd. (b), Cooper-

rider, 97 Cal. App. 3d 495. Thus, all the justifications for

residency relating to access to education are irrelevant,

because the restrictions do not apply after the applicant is

accepted. At oral argument, the DAS and CAC admitted

that there is no similar requirement for residency during

the educational process. There is no legitimate reason to

extend a residency requirement to the application process

alone.

Finally, a restriction'on application to an out-of-area,

privately funded program or school is a direct assault on

the right to travel and the equal protection, which requires

a heightened scrutiny analysis. Attorney Gen. of New York

v. Soto-Lopez, 476 U.S. 898, 106 S. Ct. 2317, 90 L. Ed. 2d

899 (1986) (State’s civil service veteran’s preference for

only those who were residents at the time they entered

military service is unconstitutional.). The California

Supreme Court case of Del Monte v. Wilson, 1 Cal. 4th

1009, 824 P.2d 632, 4 Cal. Rptr. 2d 826 (1992) (Del Monte)

reached an identical result, holding that the restriction of

' state veterans’ education benefits could not be restricted to

persons who were California residents at the time they

entered military service. Here, the state refuses to give

indentured apprenticeship status or “benefits” based upon

residency “at the time of application.” Even though the

higher strict scrutiny standards are required to justify any

residency requirement, the Court in Del Monte stated that

a residency condition was not rationally related to achiev-

ing a legitimate state purpose, and viclated the federal

equal protection clause. As the Court in Del Monte stated:

The high court invalidated statutes that em-

ployed fixed-point residency requirements to de-

termine eligibility for benefits, maintaining that

the very purpose of these statutes to prefer or

reward established residents is illegitimate. In

three cases the court analyzed the matter purely

as a question of equal protection; in the fourth, a

divided majority of the court could not agree

whether such a statute also violated the constitu-

tional right to travel, but struck down the state

statute nonetheless. We feel constrained by these

decisions to declare unconstitutional the statutes

challenged here.

B. THE CALIFORNIA COURTS ERRED BY

NOT HOLDING THAT A_ STATE-

MANDATED RESIDENCY RESTRICTION

FOR ADMISSION TO A PRIVATE EDU-

CATIONAL INSTITUTION, AS OPPOSED

TO A PUBLIC SCHOOL, DOES NOT VIO-

LATE THE FIRST AND FOURTEENTH

AMENDMENTS

The state can no more ration or limit the number of

private educational institutions that service an area than

it could legislate there be only one newspaper in any

geographic location. The Court of Appeal confused the

fundamental right to attend a private educational institu-

tion of one’s own choosing if the institution itself accepts

the applicant with the right of the State to restrict “free”

education to local residents. Compare San Antonio Inde-

pendent Sch. Dist. v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278,

36 L. Ed. 2d 16 (1973) (public education) with Wisconsin v.

Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972)

(state law prohibiting non-attendance violated establish-

ment clause); Pierce v. Society of Sisters, 268 U.S. 510, 45

S. Ct. 571, 69 L. Ed. 1070 (1925) (Pierce) (state law prohib-

iting attendance at private school by mandating atten-

dance at public school only violated due process); Meyer v.

Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042

(1923) (Meyer) overruled on other grounds Abbott v. Brag-

don, 912 F.Supp. 580, 594 (D. Me., 1995) (state law

prohibiting private school from teaching in a modern

foreign language violated due process).

The First Amendment guarantees the right to attend

- any lecture or school that will accept the applicant. The

Fourteenth Amendment prevents states from prohibiting

attendance at nonpublic schools, and requires that all

regulation of private schools be limited to reasonable,

nondiscriminatory rules designed to advance legitimate,

secular interests. Board of Education v. Allen, 392 US.

236, 245-47, 88 S.Ct. 1923, 20 L. Ed. 2d 1060 (1968)

(“Since Pierce, a substantial body of case law has con-

firmed the power of the State to insist that attendance at

private schools, if it is to satisfy state compulsory-

attendance laws, be at institutions which provide mini-

mum hours of instruction, employ teachers of specified

training, and cover prescribed subjects of instruction.”)

Pierce, 268 U.S. at 534; Windsor Park Baptist Church v.

Arkansas Activities Association, 658 F.2d 618, 621 (8th Cir.

1981) (“The Fourteenth Amendment forbids the States to

prohibit attendance at nonpublic schools, either secular or

religious”).

In Pierce, a Catholic school and a private military

academy both challenged an Oregon law that mandated

attendance at public schools in the district where the child

resided. The Supreme Court found that “(t]he Oregon

Compulsory Education Act, which with certain exemp-

tions, requires every parent, guardian or other person

having control of a child between the ages of eight and

sixteen years to send him to the public school in the

district where he resides, for the period during which the

school is held for the current year, is an unreasonable

interference with the liberty of the parents and guardians

to direct the upbringing of the children, and in that re-

spect violates the Fourteenth Amendment.” 268 U.S. 510.

The Court said the schools had standing to raise the due

process rights of the students, stating:

Appellees are corporations and therefore, it is

said, they cannot claim for themselves the liberty

which the Fourteenth Amendment guarantees.

Accepted in the proper sense, this is true. [Cita-

tions] But they have business and property for

which they claim protection. These are threat-

ened with destruction through the unwarranted

compulsion which appellants are exercising over

present and prospective patrons of their schools.

And this court has gone very far to protect

against loss threatened by such action.

In Meyer, the Supreme Court invalidated a Nebraska

law that stated: “No person, individually or as a teacher,

shall, in any private, denominational, parochial or public

school, teach any subject to any person in any language

other than the English language.” In sustaining the

constitutional challenge brought by a teacher convicted

under the law, the Court held that the teacher’s “right

thus to teach and the right of parents to engage him so to

instruct their children” were “within the liberty of the

[Fourteenth] Amendment.” 262 U.S., at 400; see also,

Maher v. Roe, 432 U.S. 464, 97 S. Ct. 2376, 53 L. Ed. 2d

484 (1977) (Maher) (discussing the difference in applica-

tion of the Fourteenth Amendment between private and

public education).’ Thus, it has long been recognized that

the right of a parent to guide the education of his or her

children is indeed a “fundamental right” guaranteed by the

Due Process Clause of the Fourteenth Amendment. Farring-

ton v. Tokushige, 273 U.S. 284, 47 S. Ct. 406, 71 L. Ed. 646

* As the Supreme Court stated in Maher, 432 U.S. at 477: “... we

explicitly rejected the argument that Pierce established a right of

private or parochial schools to share with public schools in state

~ largesse,” noting that “[iJt is one thing to say that a State may not

prohibit the maintenance of private schools and quite another to say

that such schools must, as a matter of equal protection, receive state

aid.”

(1927) (Right of parents to send their children to Japanese

speaking school in Hawaii).”

Contrary to the Court of Appeal, San Antonio Inde-

pendent Sch. Dist. v. Rodriguez, 411 U.S. 1, 93S. Ct. 1278,

36 L. Ed. 2d 16 (1973) is not to the contrary. While “there

may be a substantial reason for requiring the nonresident

to pay more than the resident ... to enroll in the state

university,” Saenz v. Roe, 526 U.S. 489, that logic does not

apply to a private educational institution and certainly not

to a State-mandate that the private educational institu-

tion cannot enroll non-residents at all. Memorial Hosp. v.

Maricopa County, 415 U.S. 250, 94 S. Ct. 1076, 39

L. Ed. 2d 306 (1974) (invalidating one-year residency

requirement for receipt of non-emergency medical care

because no asserted justifications found compelling).

C. PRIOR RESTRAINT OF SOLICITATION

OF APPLICANTS TO ATTEND SCHOOL

IS UNCONSTITUTIONAL

The First Amendment to the United States Constitu-

tion declares in relevant part, “Congress shall make no

law ... abridging the freedom of speech, or of the press; . . .”

Article I, section 2, of the California Constitution provides:

“Every person may freely speak, write and publish his or her

sentiments on all subjects, being responsible for the abuse

of this right. A law may not restrain or abridge liberty of

Because Farrington, Pierce, and Meyer were all decided prior to

Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213

(1940), in which the liberties guaranteed by the First Amendment were

incorporated into the Due Process Clause of the Fourteenth Amend-

ment, and thereby made directly applicable to the states, these cases do

not mention the First Amendment right to teach and be taught as a

species of free speech and association which is also applicable here.

speech or press.” The provisions of the California Constitu-

tion are even “more definitive and inclusive than the First

Amendment [of the United States Constitution].” Jacoby v.

The State Bar of California, 19 Cal. 3d 359, 562 P.2d 1326,

138 Cal. Rptr. 77 (1977), citing Wilson v. Superior Court, 13

Cal. 3d 652, 658, 532 P.2d 116, 119 Cal. Rptr. 468 (1975).

The CAC decision is unconstitutionally vague, and

overbroad. It orders ACTA “to cease and desist from

recruiting or utilizing selection methods that result in

the recruitment or enrollment, of apprentices who reside

outside of Merced, Stanislaus, Mariposa, and Tuolumne

Countries (sic).” (Emphasis added). Literally taken, ACTA

would be in violation of the order if it prints » bumper

sticker that says “SUPPORT APPRENTICESHIP, JOIN

ACTA” and a non-residence is thereby -induced to make

application to ACTA.

It is overbroad because ACTA would be in violation of

the rule if an advertisement in the local paper also ap-

peared in another county, whether or not intentional, or

was read by someone in another state on the internet who

then made application. In fact, it is so overbroad, ACTA

cannot advertise anywhere for apprentices for fear that a

non-resident may be attracted to apply to the program.

This is an unconstitutionally vague prior restraint. Broad-

rick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 37

L. Ed. 2d 830 (1973) (If a law restricts substantially more

speech than is justified, it is subject to a facial challenge.).

An order that says “don’t say things that may cause” is

unconstitutionally overbroad, because ACTA cannot control

what occurs as a result of its advertisements for new

applicants, and therefore must self-regulate more than is

necessary in order to avoid violating the CAC order. “The

First Amendment, as applied to the States through the

Fourteenth Amendment, protects commercial speech from

unwarranted governmental regulation.” Central Hudson

Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U.S.

557, 100 S.Ct. 2343, 65 L. Ed. 2d 341 (1980); see also,

Virginia Bd. of Pharmacy v. Virginia Citizens Consumer

Council, Inc., 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346

(1975). Even if the words “Applicants Must be Residents”

are included in every ad, the order would subject ACTA to

punishment if Applicants from other counties still applied

to the program for admission. The order does not say the

exact speech prohibited or require simply the posting of a

notice to future applicants that the program is restricted to

residents of only four counties. The order does not even say

“reasonably likely” to induce non-residents to apply. The

order holds ACTA accountable for the actions of others over

whom it has no control. The order is too vague and over-

broad to be obeyed by ACTA. See, e.g., Lakewood v. Plain

Dealer Pub. Co., 486 U.S. 750, 108 S.Ct. 2138, 100

L. Ed. 2d 771 (1988). Therefore, it is unconstitutional.

IV. CONCLUSION

For the reasons stated herein, Petitioners respectfully

request that this Court grant the Writ of Certiorari revers-

ing the decision of the Court of Appeal and permitting

ACTA to recruit and utilize selection methods that result

in the recruitment or enrollment of apprentices who reside

outside of Merced, Stanislaus, Mariposa, and Tuolumne

Counties and declare that state-mandated residency

restrictions for admission to private sector educational

programs are unconstitutional.

Respectfully submitted,

Dated: February 15,2005 THIERMAN LAw FIRM

MARK R. THIERMAN

App. 1

DEMOND CAPERS et al., Plaintiffs and Appellants,

v. HENRY P. NUNN, as Chief, etc., Defendant

and Respondent; SHEET METAL WORKERS’

INTERNATIONAL ASSOCIATION LOCAL UNION

NO. 104 et al., Interveners and Respondents.

AIR CONDITIONING TRADES ASSOCIATION

UNILATERAL APPRENTICESHIP PROGRAM,

Plaintiff and Appellant, v. CALIFORNIA

APPRENTICESHIP COUNCIL, Defendant

and Respondent, SHEET METAL WORKERS’

INTERNATIONAL ASSOCIATION LOCAL

UNION NO. 104 et al., Real Parties in

Interest and Respondents.

C043358, C043360

COURT OF APPEAL OF CALIFORNIA,

THIRD APPELLATE DISTRICT

2004 Cal. App. Unpub. LEXIS 8094

September 1, 2004, Filed

NOTICE: NOT TO BE PUBLISHED IN OFFICIAL

REPORTS. CALIFORNIA RULES OF COURT, RULE

977(a), PROHIBIT COURTS AND PARTIES FROM

CITING OR RELYING ON OPINIONS NOT CERTIFIED

FOR PUBLICATION OR ORDERED PUBLISHED,

EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPIN-

ION HAS NOT BEEN CERTIFIED FOR PUBLICATION

OR ORDERED PUBLISHED FOR THE PURPOSES OF

RULE 977.

JUDGES: DAVIS, J.; SIMS, Acting P.J., NICHOLSON,

J. Concurred.

OPINION BY: DAVIS

App. 2

OPINION:

This consolidated appeal involves the subject of

training apprentices. It comprises another skirmish in the

“turf” battle between union and nonunion-affiliated

apprenticeship programs. (See Independent Roofing-

Contractors v. California Apprenticeship Council (2003)

114 Cal.App.4th 1330, review den. Apr. 14, 2004 (Inde-

pendent Roofing).) The appellant Air Conditioning Trades

Association Unilateral Apprenticeship Committee (ACTA),

a nonunion-affiliated apprenticeship program, attempted

to expand its geographic area without obtaining formal

approval to do so. Pursuant to administrative complaints

from certain unions, i.e., Sheet Metal Workers’ Interna-

tional Association Local Union Nos. 104, 105 and 162

(Sheet Metal Workers), the California Apprenticeship

Council (Council) ordered ACTA to stop recruiting or using

methods that result in the recruitment or enrollment of

apprentices who reside outside of the four-county area

specified in ACTA’s apprenticeship program standards.

The trial court denied ACTA’s petition for administrative

mandate that sought to overturn the Council’s decision.

(ACTA v. California Apprenticeship Council, case No.

02CS01749.) ACTA has appealed that denial.

In the trial court, the ACTA case was consolidated for

hearing with another case in which six prospective ap-

prentices (the prospective apprentices) who reside outside

of the four-county ACTA area attempted to enroll in the

ACTA program following the administrative decision in

favor of Sheet Metal Workers. (Capers v. Nunn, case No.

01CS01561.) In light of that decision, the Division of

Apprenticeship Standards (Division) refused to allow the

App. 3

prospective apprentices to enroll, and they filed an unsuc-

cessful petition for traditional mandate. The prospective

apprentices have appealed the denial of their petition.

We have consolidated the appeals of ACTA and the

prospective apprentices. *

ACTA contends on appeal that the Sheet Metal

Workers’ administrative complaints were time-barred; that

the Council is equitably estopped from denying ACTA’s

presence throughout California; and that the Division

failed to provide a fair administrative hearing.

The prospective apprentices claim that the Council’s

decision, imposing a residency requireraent on apprentice

enrollment, unconstitutionally impinges upon equal

protection, the privileges and immunities clause, the right

to travel, the right to an education, and the right to engage

in a common occupation; ACTA adds that the Council’s

decision deprives it of free speech rights.

We disagree with these contentions and affirm the

judgments.

BACKGROUND

In 1937, Congress enacted the National Apprentice-

ship Act of 1937 (commonly known as the Fitzgerald Act)

* From reviewing the record, it is unclear whether the interveners

and respondents in case No. C043358 and the real parties in interest

and respondents in case No. C043360 include Local No. 105 or 108. The

October 1999 administrative complaint lists Local No. 108 (rather than

Local No. 105) as a charging party. However, documents filed with the

trial court variously refer to Local No. 105 or Local No. 108. The briefs

on appeal uniformly refer to Local No. 105.

App. 4

to encourage the establishment of modern apprenticeship

programs. (29 U.S.C. § 50; Southern Cal. Ch. of Associated

Builders etc. Com. v. California Apprenticeship Council

(1992) 4 Cal.4th 422, 432 (Southern Cal.).) Under the

Fitzgerald Act, the federal government may choose to

delegate its power to approve apprenticeship programs to

states that have enacted their own apprenticeship laws.

(29 C.F.R. §29.12(a) (1992); Southern Cal., supra, 4

Cal.4th at p. 432.) California is one such state. (Southern

Cal., supra, 4 Cal.4th at p. 433.) ;

In California, apprenticeship programs are governed

by the Shelley-Maloney Apprenticeship Labor Standards

Act of 1939. (Lab. Code, § 3070 et seq.; Southern Cal.,

supra, 4 Cal.4th at p. 433.) As part of that act, the De-

partment of Industrial Relations (the Department) set up

the Division and the Council. (Southern Cal., supra, at p.

433; Lab. Code, § 3070.) The Division administers appren-

ticeship programs. (Southern Cal., supra, at p. 433, Lab.

Code, § 3073.) The Council enacts regulations regarding

the “standards” of apprenticeship programs, and hears

appeals from Division decisions involving complaints

alleging violations of those standards. (Southern Cal.,

supra, at pp. 433, 434; Lab. Code, §§ 56, 3071, 3081-3082.)

An apprenticeship program’s standards constitute the

rules by which it operates.

The approval process for apprenticeship programs

begins when a program sponsor, such as ACTA (which

operates the program), submits written program stan-

dards to the Chief of the Division for approval. (Southern

Cal., supra, 4 Cal.4th at pp. 428-429, 433-434; Cal. Code

Regs., tit. 8, §§ 212, subd. (b)(13), 218; Lab. Code, § 3075,

App. 5

subd. (a).)’ The standards must contain, among other

things, a statement of “the parties to whom the standards

apply, the program sponsor’s labor market area ... for

purposes of meeting equal employment opportunity goals

in apprenticeship training and the program’s geographic

area of operation .... ” (§ 212, subd. (a)(2).) “‘Geographic

Area of Operation’ of an apprenticeship program means

the geographic area in which the program regularly

operates and trains apprentices.” (§ 205, subd. (n).) An

apprenticeship program “may provide for local, regional or

statewide coverage in its standards.” (§ 218.)

State approval is not required for a sponsor to operate

an apprenticeship program. But strong financial incen-

tives exist for sponsors to obtain approval, such as a lower

apprentice wage on public works projects. (Southern Cal.,

supra, 4 Cal.4th at pp. 428-429.) Nor must an individual

enroll in a state-approved apprenticeship program to work

in the sheet metal trade.

ACTA’s standards were approved on August 6, 1993.

Pursuant to those standards, ACTA’s “geographic cover-

age” (i.e., its geographic area of operation) comprises the

four counties of Merced, Stanislaus, Mariposa and Tuo-

lumne.

For purposes of this appeal, the parties appear to

agree that an apprenticeship program’s geographic cover-

age, as set forth in its standards, specifies the residential

geographic area for enrollment of its apprentices (although

ACTA and the prospective apprentices argue that a resi-

dency restriction on apprentice recruitment or enrollment

? Undesignated section references will be to Title 8 of the Califor-

nia Code of Regulations.

App. 6

unconstitutionally violates several fundamental rights).

This apparent agreement is based on the two regulations

noted above — one, that a program’s “geographic area of

operation” must be set forth in the program’s standards,

and two, that a program may opt for “local, regional or

statewide coverage in its standards” — as well as on the

fact that apprentice training combines on-the-job work

with classroom instruction provided by a local education

agency (LEA). (§§ 212, subd. (a)(2), 218, 205, subds. (c),

(h), (n).) Once enrolled, however, an apprentice is not

necessarily restricted to working within a program’s

geographic area of operation.

Not long after its standards were approved in 1993,

and continuing up to this litigation, ACTA sought to

expand its four-county geographic area and selected and

enrolled apprentices who resided outside that area, al-

though it was never formally granted the authority to do

so. The Sheet Metal Workers filed an administrative

complaint with the Division in June 1997 and a second

complaint in October 1999 to stop this activity. The two

complaints were consolidated for hearing.

A hearing officer was appointed and, based on that

hearing, the director of the Department, acting as the

Administrator of Apprenticeship (the Administrator),

issued a decision on certain issues in favor of Sheet Metal

Workers. (§ 202, subds. (c), (d); Lab. Code, § 3081.) The

Administrator ordered ACTA to stop using any apprentice

selection methods not expressly set forth in its formally

approved standards, and to stop recruiting or using

selection methods that result in the recruitment or en-

rollment of apprentices who reside outside of Merced,

Stanislaus, Mariposa or Tuolumne counties.

App. 7

ACTA appealed the Administrator’s decision to the

Council. (Lab. Code, § 3082.) The Council agreed with the

Administrator, and adopted the Administrator’s order as

its own. In the trial court, ACTA filed a petition for admin-

istrative mandate to review the Council’s decision. (Code

Civ. Proc., § 1094.5.)

After the Administrator issued his decision, the

prospective apprentices (who did not reside in ACTA’s four-

county geographic area but sought to enroll in the ACTA

program) filed a petition for a traditional writ of mandate

in the trial court against the Chief of the Division. (Code

Civ. Proc., §§ 1085, 1086.) The prospective apprentices

sought to compel the Division to admit them to ACTA

because their exclusion on residency grounds allegedly

violated several fundamental constitutional rights.

The trial court consolidated for hearing the writ

petitions of ACTA and the prospective apprentices. The

trial court upheld the Council’s administrative decision,

and consequently denied both petitions. Two judgments

were entered. We have consolidated the two appeals.

DISCUSSION

I. Timeliness of Sheet Metal Workers’ Complaints

ACTA contends that the Sheet Metal Workers’ admin-

istrative complaints of June 1997 and October 1999 were

time-barred under section 201, subdivision (a). We dis-

agree.

Section 201, subdivision (a), states as pertinent:

“Complaints may be filed by any interested person with

the Administrator ... within the time period specified

below, when there is cause to believe ... that there has

App. 8

been a violation of: [{] ... [J (3) Apprenticeship Stan-

dards, 30 days[.]”

In their complaints, the Sheet Metal Workers alleged,

among other things, that ACTA (1) enrolled apprentices

outside of the area of coverage stated in ACTA’s approved

standards; (2) abandoned the selection procedure for

apprentices set forth in those standards; and (3) used

LEAs (i.e., local education agencies) that were not set forth

in those standards.

As we have noted, not long after its standards were

approved in 1993, and continuing up to this litigation,

ACTA sought to expand its geographic area and selected

and enrolled apprentices from outside that area, although

it was never formally granted the authority to do so. As

the trial court correctly recognized, the fact that this was

“an ongoing practice” rendered the Sheet Metal Workers’

complaints timely. Those complaints did not seek redress

for some past transgression. Instead, they sought to put an

end to this ongoing practice.

II. Estoppel

ACTA contends the Council is equitably estopped from

denying ACTA’s presence throughout California based on

what the Division said and did. We disagree.

Equitable estoppel may be invoked only when the

party to be estopped knows the facts and intends or

effectively intends that its conduct be relied upon, and the

party claiming estoppel is ignorant of the facts and relies

upon the conduct to its detriment. (Hughes v. Board of

Architectural Examiners (1998) 17 Cal.4th 763, 794.) This

doctrine “ordinarily will not apply against a governmental

App. 9

body except in unusual instances when necessary to avoid

grave injustice and when the result will not defeat a

strong public policy.” (Jd. at p. 793.)

ACTA’s estoppel argument fails both factually and

legally.

The argument fails factually for the same reason we

noted in Independent Roofing. ACTA “does not discuss all

the evidence on which the trial court relied in rejecting the

argument. This waives our plenary consideration of the

factual component of this issue. (Foreman & Clark Corp. v.

Fallon (1971) 3 Cal.3d 875, 881.)” (Independent Roofing,

supra, 114 Cal.App.4th at p. 1337.) For example, in its

briefing, ACTA points us to some rather ambiguous docu-

ments and actions on the Division’s part supposedly

approving ACTA’s purported geographical expansion,

while ignoring more definitive evidence to the contrary

that the trial court cited. That more definitive evidence

includes a May 29, 1996, letter from the Division to ACTA,

explaining that “in order for ACTA to continue its geo-

graphic expansion outside its approved area, it is impera-

tive that you submit revisions to standards which reflect

labor market serviced.” On June 7, 1996, ACTA submitted

these proposed revisions to the Division, which the Divi-

sion returned, by letter, as not approved on July 2, 1996.

Along similar lines, ACTA knew that a 1997 proposed

expansion of its geographical standards had not been

approved by the Chief of the Division, as required, because

the signature line for his approval remained blank. (See

§ 212 [Apprenticeship programs shall be established by

written apprenticeship standards which must be approved

by the Chief” of the Division; “The standards must con-

tain [¥] ... [¥] (b) Provisions for: [{] .. . [{] (13) approval

of the standards, and revisions to the standards, by the

App. 10

Chief” of the Division].) Moreover, in light of this evi-

dence, ACTA cannot claim it was ignorant of the facts so as

to invoke equitable estoppel.

ACTA’s estoppel argument fails legally as well, and

again for a reason we noted in Independent Roofing. ACTA

“does not provide any authority for the proposition that

the conduct of a subordinate body [i.e., the Division] may

estop the body empowered to review its actions [i.e., the

Council] from exercising that power, or that it would be

reasonable to rely on promises to that effect. This would

result in the absurdity of insulating a rogue entity from

review.” (Independent Roofing, supra, 114 Cal.App.4th at

p. 1338.)

III. Fair Hearing

ACTA makes several assertions that the Division

failed to provide a fair administrative hearing. But nearly

all of these allegations suffer from at least one of the

following deficiencies: a failure to cite authority, or to cite

to the record, or to present argument. As a result, ACTA

has waived these claims. (Jroensegaard v. Silvercrest

Industries, Inc. (1985) 175 Cal.App.3d 218, 228, 220

Cal.Rptr. 712; Duarte v. Chino Community Hospital (1999)

72 Cal.App.4th 849, 856.)

Had these claims not been waived, they present next

to nothing on their merits. ACTA claims it was denied full

notice and a full opportunity to be heard, but the record

belies this claim. ACTA complains that the initial hearing

officer was not an independent, quasi-judicial officer. But

the record shows that this hearing officer was a Depart-

ment staff attorney with no knowledge of this case and no

App. 11

ties to it. ACTA maintains that it was subjected improp-

_erly to a negative inference for failing to call a witness

over which it had no control — a senior consultant with the

Division, Len Viramontes, who had signed or authored

some documents noting ACTA’s geographic expansion; the

record disputes that such an inference was drawn. ACTA

contends the record does not support the Administrator’s

conclusion regarding the qualifications of certain LEA

instructors, but ACTA prevailed on this point. Finally,

ACTA complains that it never received a copy of the initial

hearing officer’s recommendation, but there is no such

requirement. (Bollinger v. San Diego Civil Service Com.

(1999) 71 Cal.App.4th 568, 577.) The Administrator, as

happened here, may take the initial hearing officer’s

recommendation and render a full decision on its own,

including findings of fact; then the Council reviews the

Administrator’s decision. (See § 202, subds. (c), (d); Lab.

Code, § 3082.)

—

IV. Constitutional Claims

The prospective apprentices contend that the Coun-

cil’s decision and order, imposing a residency requirement

for admission to ACTA’s apprenticeship program, unconsti-

tutionally impinges upon the equal protection and the

privileges and immunities clauses; in this context, they

invoke the right to travel, the right to an education, and

the right to engage in a common occupation. ACTA adds

that the Council’s decision deprives it of free speech rights.

We disagree.

App. 12

A. The Prospective Apprentices’ Equal Protec-

tion and Privileges and Immunities Claims

1. Background, Standard of Review, and

Analysis of Residency Requirement Un-

der the Rational Basis Test

The equal protection and the privileges and immuni-

ties clauses operate similarly here, and may be analyzed

together under the equal protection legal framework. The

clauses require that persons under like circumstances

receive equal treatment and be granted equal privileges

and immunities under the law. (U.S. Const., 14th Amend.;

Cal. Const., art. I, § 7, subds. (a), (b); see 8 Witkin, Sum-

mary of Cal. Law (9th ed. 1988) Constitutional Law, § 593,

p. 44.) The equal protection clause applies only to state

action, not to private discrimination; and may be invoked

in cases where state executive officials have acted. (See 8

Witkin, Summary of Cal. Law, supra, §§ 595, 597, pp. 45,

48.)

In equal protection cases not involving a suspect

classification, such as race, or the alleged infringement of

a fundamental interest or right, such as the right to vote,

a classification drawn in the law is upheld if it is ration-

ally related to a legitimate state purpose. This is known as

the rational basis test. But if a suspect classification is

imposed or a fundamental interest infringed, the classifi-

cation is subject to strict scrutiny and is upheld only if it is

necessary to further a compelling state interest. This is

known as the strict scrutiny test. (Weber v. City Council

(1973) 9 Cal.3d 950, 958-959, 109 Cal. Rptr. 553; Ector v.

City of Torrance (1973) 10 Cal.3d 129, 134-135, 109 Cal.

Rptr. 849 (Ector); Graham v. Kirkwood Meadows Pub. Util.

Dist. (1994) 21 Cal. App.4th 1631, 1642 (Graham).)

App. 13

Residency requirements divide into two camps: bona

fide and durational. (Martinez v. Bynum (1983) 461 U.S.

321, 325-326 (75 L. Ed. 2d 879] (Martinez).) Bona fide

residency requirements condition a benefit on actual

residency within a jurisdiction, while durational residency

requirements condition a benefit on a minimum period of

residency within that jurisdiction. (Ibid. )

Bona fide residency requirements receive less scrutiny

than durational ones because a bona fide requirement

merely requires that a person be a resident to obtain the

benefits or services restricted to residents. (Martinez,

supra, 461 U.S. at pp. 328-329; Ector, supra, 10 Cal.3d at

pp. 135-136.) For this reason, bona fide residency require-

ments are not subject to strict scrutiny but only to the

rational basis test. (Martinez, supra, at p. 328 & fn. 7;

Ector, supra, at pp. 134-135.)

With these principles in mind, we analyze, under the

rational basis test, the four-county residency requirement

for enrollment in the state-approved ACTA apprenticeship

program.

An initial question may be raised about the nature of

state action here. An apprenticeship program may provide

for local, regional or statewide coverage in its standards.

(§ 218.) It is ACTA, a private entity, and not the state, that

opted for the four-county regional coverage. Assuming,

however, that the Council’s decision — holding that only

residents of the four counties may enroll in ACTA under its

current standards — constitutes state action, we proceed

with the analysis.

We face here a bona fide residency requirement, not a

durational one. If a prospective apprentice simply resides

in one of the four subject counties, he or she is eligible to

App. 14

enroll in the ACTA program. This residency requirement,

then, is subject to the rational basis test.

The Council advances a number of legitimate interests

regarding a residency requirement. Recall that an appren-

ticeship program combines on-the-job training with

classroom instruction provided by an LEA. A residency

requirement helps an apprentice complete the classroom

portion of his or her training. If an apprentice lives too far

from a program’s approved LEA, he or she may find it

difficult to attend classes, which are often held in the

evening after a full day of work. This in turn protects

apprentices from programs that may exploit them for their

labor only, with no intention of providing the complete

training and education that the State envisions for its

registered apprentices.

Furthermore, to obtain program approval, a program

sponsor must commit to helping the apprentice learn all

the tools of the trade, including a commitment to use

multiple employers for this purpose if necessary. (§ 212,

subd. (b)(14).) The sponsor may not be able to do this if the

apprentice resides outside the program’s approved geo-

graphic area.

Finally, a statement of geographic area is needed to

specify the area of apprentice recruitment, against which

federal affirmative action guidelines or goals can be

measured.

We conclude that the Council’s bona fide residency

requirement for ACTA apprentice enrollees, based on

ACTA’s geographic area of operation, is rationally related

to these legitimate state interests and therefore satisfies

the rational basis test. (We also note that these multiple

state interests dispense with ACTA’s argument that the

App. 15

Council’s only reason for enforcing a residency require-

ment for apprentice enrollment is to enforce an affirmative

action program that itself is illegal under state law or not

properly founded on evidence of past discrimination.)

Support for our conclusion can also be found in Ector.

There, our state high court rejected an equal protection

challenge to a bona fide residency requirement for munici-

pal employment. (Ector, supra, 10 Cal.3d at pp. 134-136.)

The court applied the rational basis test, rejected the strict

scrutiny test, and distinguished a durational residency

requirement, stating, “[t]here is no similar ‘waiting period’

in the provision before us, but simply a requirement of

residence in the community in order to be a municipal

employee.” (Id. at pp. 135-136; see also Graham, supra, 21

Cal.App.4th at p. 1644 [noting a post-Ector law that

certain public employees may now be required, at the

most, to reside within a reasonable and specific distance of

their place of employment, and stating that the rational

basis test continues to apply to equal protection challenges

of employment residency restrictions].) A bona fide resi-

dency requirement for municipal employees has certain

similarities to such a requirement for apprentices.

Furthermore, the classification of counties or cities by

classes according to population for various types of legisla-

tion appropriate to their distinct needs is common, and

has been upheld against equal protection challenges by

the United States Supreme Court. (See 8 Witkin, Sum-

mary of Cal. Law, supra, § 614, pp. 69-70.) In this context,

the application of different laws to different areas is

permissible; as the highest court has observed, “[t]he

Equal Protection Clause relates to equality between

persons as such rather than between areas.” (Salsburg v.

App. 16

Maryland (1954) 346 U.S. 545, 551 [98 L. Ed. 281]; 8

Witkin, supra, at pp. 69-70.)

We conclude that the Council’s decision and order,

imposing a bona fide residency requirement for admission

to the ACTA apprenticeship program, does not violate the

equal protection or the privileges and immunities clauses

under the rational basis test.

2. The Strict Scrutiny Test: The Right to

Travel, the Right to an Education, and

the Right to Engage in a Common Oc-

cupation

The prospective apprentices claim that the strict

scrutiny equal protection test applies here because the

Council’s residency requirement violates the righi to

-travel, the right to an education, and the right to engage

in a common occupation, all fundamental rights. We

disagree.

a. The right to travel

The right to travel derives from various constitutional

provisions, including the federal and state privileges and

immunities clauses, but ultimately is considered simply an

inherent component of a free society. (Attorney General of

N.Y. v. Soto-Lopez (1986) 476 U.S. 898, 901-903 [90

L. Ed. 2d 899] (Soto-Lopez); Independent Roofing, supra,

114 Cal.App.4th at p. 1341.)

“A state law implicates the right to travel when it

actually deters such travel, [citation] when impeding

travel is its primary objective, [citation] or when it uses

‘any classification which serves to penalize the exercise of

App. 17

that right.’” (Soto-Lopez, supra, 476 U.S. at p. 903.) “The

_ right to move within a state has [only] been declared in

cases invalidating durational residency requirements.” (8

Witkin, Summary of Cal. Law, supra, § 637, p. 90; see also

Ector, supra, 10 Cal.3d at p. 135; Martinez, supra, 461 U.S.

at pp. 328-329.)

The right to travel is not implicated by the Council’s

residency requirement for the enrollment of ACTA appren-

tices. This requirement, which is a bona fide residency

requirement, does not prevent prospective apprentices

from traveling to and residing in a county in which ACTA

offers its program. The requirement does not deter or

impede such travel, or create any classification which

penalizes the exercise of the right to travel. If anything,

the requirement encourages prospective apprentices to

move to the counties in which the ACTA program is

offered. (See Martinez, supra, 461 U.S. at pp. 328-329.) As

in Ector, here the prospective apprentices’ right to travel

claim, “[v]iewed realistically,” is a right to travel between

their homes and their places of apprentice employment

and training. But as Ector recognized, there is no constitu-

tional “‘right to commute.’” (10 Cal.3d at p. 135.)

b. The right to an education

California recognizes a constitutional right to a public

education that must be furnished to all students equally.

(Butt v. State of California (1992) 4 Cal.4th 668, 680-681.)

However, that right has not been extended to the post-

secondary, private education realm, in which the ACTA

apprenticeship program falls. (Gurfinkel v. Los Angeles

Community College Dist. (1981) 121 Cal.App.3d 1, 5-6;

Independent Roofing, supra, 114 Cal.App.4th at p. 1342.)

rea i i i i i i tert eee ee, ee

App. 18

The prospective apprentices claim there is a funda-

mental right to attend a private educational institution of

one’s choosing if the institution itself accepts the appli-

cant. To the extent this is true, there is nothing in the

Council’s recognition of an enrollment residency require-

ment for ACTA apprentices — a recognition that is neces-

sary to maintain state approval of the ACTA program

under ACTA’s current standards — that legally forecloses

nonresidents from becoming apprentices with ACTA. The

nonresident apprentices could not be state-registered and

the ACTA program could not be state-approved (and

significant economic benefits would thereby be lost), but

nothing legally prohibits nonresidents from attending the

ACTA program if they so choose and ACTA accepts them.

(See Southern Cal., supra, 4 Cal.4th at pp. 428-429 [nei-

ther federal nor state approval is required for a sponsor to

operate an apprenticeship program, but nonapproved

programs are excluded from certain advantages].)

c. The right to engage in a common oc-

cupation

The prospective apprentices claim they have a right to

engage in a common occupation as a fundamental right

centered in the liberty component of the due process

clause.

However, the right to engage in a particular occupa-

tion is not a substantive fundamental right and thus does

not warrant strict scrutiny. (Warden v. State Bar (1999) 21

Cal.4th 628, 641-643; Independent Roofing, supra, 114

Cal.App.4th at p. 1341.) As we said in Independent Roof-

ing, “to the extent that due process entitles individuals to

engage in a chosen field of employment, it is nonetheless

App. 19

subject to reasonable regulation short of complete prohibi-

tion. (Conn v. Gabbert (1999) 526 U.S. 286, 291-292.)”

(Independent Roofing, supra, 114 Cal.App.4th at p. 1342,

italics omitted.) Previously, we discussed how the Council’s

bona fide residency requirement for ACTA enrollment is

rationally related to the legitimate state interests of

implementing the classroom portion of apprentice train-

ing, minimizing the exploitation of apprentice labor,

maximizing employer commitment, and ensuring compli-

ance with federal affirmative action guidelines. This

constitutes reasonable regulation.

Moreover, the bona fide residency requirement here

does not prohibit the prospective apprentices from being

trained as apprentices and working in the sheet metal

trade. The residency requirement does not deter or impede

the prospective apprentices from moving to a county in

which ACTA offers its program, or from enrolling in a

program in the county where they currently reside. (Inde-

pendent Roofing, supra, 114 Cal.App.4th at p. 1341, fn. 6;

See Lab. Code, § 3075, subd. (a).) Moreover, there is no

requirement that an individual enroll in a state-approved

apprenticeship program to work in the sheet metal trade.

Thus, the “right to engage in a common occupation”

argument fails.

Although it does not appear ACTA has done so, to the

extent that ACTA itself contends its right to travel, right

to an education, or right to engage in an occupation were

somehow violated, we reject those contentions for the

reasons explained in Independent Roofing. (Independent

Roofing, supra, 114 Cal.App.4th at pp. 1341-1342.)

App. 20

B. ACTA’s Free Speech Claim

ACTA casts its gaze on another fundamental right —

free speech. It argues that the Council’s order acts as a

prior restraint on the lawful solicitation of apprentices and

is unconstitutionally vague and overbroad. We disagree.

ACTA points to that part of the Council’s order direct-

ing ACTA to “cease and desist from recruiting or utilizing

selection methods that result in the recruitment or en-

rollment of apprentices who reside outside of Merced,

Stanislaus, Mariposa and Tuolumne Counties.” (Italics

added by ACTA.) ACTA argues that this order is so over-

broad, ACTA “cannot advertise anywhere for apprentices

for fear that a nonresident may be attracted to apply to

the program.” It is ACTA’s argument that is overbroad; in

fact, it goes overboard.

Under the challenged part of the Council’s order,

ACTA is prohibited from “recruiting ... apprentices who

reside outside of” the four-county area specified in ACTA’s

standards. (Italics added.) If a nonresident applicant

applies to the ACTA program, ACTA can simply inform the

applicant that its apprenticeship program is limited to

residents of Merced, Stanislaus, Mariposa and Tuolumne

Counties. Within the limits of relevant laws (e.g., false

advertising, commercial speech), ACTA is free to say

whatever it wants regarding its program, wherever it

wants. There is no vague, overbroad prior restraint of

speech at work here.

We reject the constitutional claims of the prospective

apprentices and ACTA.

App. 21

We do note that the Council and Department have

allowed nonresident apprentices currently enrolled in the

ACTA program to complete the program and be registered.

We also note our previous denial of the judicial notice

request from ACTA and the prospective apprentices. We

grant Sheet Metal Workers’ motion to strike portions of

the reply brief to the extent the brief cites items not in the

record or already foreclosed by our judicial notice ruling.

DISPOSITION

The judgments are affirmed. Each parties shall pay its

own costs on appeal.

DAVIS, J.

We concur:

SIMS, Acting P.J.

NICHOLSON, J.

App. 22

JOHN M. REA, Chief Counsel, SB #46272

VANESSA L. HOLTON, Assistant Chief Counsel, SB #111613

FRED LONSDALE, Counsel, SB-#71724

CAROL BELCHER, Counsel, SB #136417

State of California

Department of Industrial Relations -

455 Golden Gate Avenue, Suite 9516

San Francisco, CA 94102

Telephone No. (415) 703-4240

Attorneys for Respondent,

HENRY P. NUNN,

Chief of Division of Apprenticeship Standards

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SACRAMENTO

DEMOND CAPERS, DUANE

TREVETHEN, DIANE NESS,

ERIC KENDALL, JENNIFER

BATTS and JUSTIN GARCIA,

Petitioners,

HENRY P. NUNN, in his official

capacity,

Respondent.

SHEET METAL WORKERS’

INTERNATIONAL ASSOCIA-

TION LOCAL NOS. 104, 105 &

162,

Intervenors.

Case No. 01 CS01561

JUDGMENT IN

CAPERS ET AL.

V. NUNN,

CASE NO.

01 CS01561

(Filed Jan. 28, 2003)

Case No. 02 CS01749

App. 23

CONSOLIDATED WITH

AIR CONDITIONING TRADES

ASSOCIATION UNILATERAL

APPRENTICESHIP COMMITTEE,

Petitioner,

Vv.

CALIFORNIA APPRENTICE-

SHIP COUNCIL,

Respondent,

SHEET METAL WORKERS’

INTERNATIONAL ASSOCIATION

LOCAL NOS. 104, 105 & 162,

Real Parties in Interest.

The Petition for Peremptory Writ of Mandate, Prohibi-

tion and/or Other Appropriate Relief in Capers et al. v.

Nunn, Sacramento Superior Court Case No. 01 CS 01561,

came duly on for hearing on the merits on Friday, January

10, 2003 at 1:30 p.m. in Dept. 33 of this court, the Honor-

able Lloyd G. Connelly, judge presiding. The Capers

petitioners were represented by Mark Thierman; Fred

Lansdale and Carol Belcher appeared for respondent

Nunn; Mark Renner appeared on behalf of the intervenors

Sheet Metal Workers’ International Association Local Nos.

104, 105 & 162; and, Scott Kronland and Victor Ortiz-de-

Montellano appeared on behalf of intervenor Sheet Metal

Workers’ International Association Local No. 104.

The Court, having reviewed the papers submitted by

counsel and considered the oral arguments at hearing,

denies the petition on the merits, for the reasons set forth

reeled ee ee

ee Oe PR eee eee

App. 24

in the Court’s ruling from the bench at hearing and as

otherwise appears from the record.

THEREFOR, judgment is accordingly hereby entered

in favor of respondent Nunn and against petitioners

Demond Capers, Duane Trevethen, Diane Ness, Eric

Kendall, Jennifer Batts, and Justin Garcia.

SO ORDERED. Respondents are to recover

costs pursuant to Government

Code §6103.5. When the

amount equal to the amount

owed to the clerk is collected,

said amount is due and payable

to the court.

DATED: Jan 28, 2003 /s/_ Lloyd G. Connelly

Hon. Lloyd G. Connelly

JUDGE OF THE

SUPERIOR COURT -

Approved as to form:

Mark R. Thierman Dated:

Mark R. Thierman, Esq.

Counsel for the Capers

petitioners

Approved as to form:

/s/ Mark Renner Dated: 1-16-03

Mark Renner, Esq.

Counsel for intervenors

Sheet Metal Workers’

International Association

Local Nos. 104, 105 & 162

App. 25

Approved as to form:

Dated:

Scott Kronland, Esq./Victor Ortiz-de-Montellano, Esq.

Counsel for intervenors Sheet Metal Workers’

International Association Local No. 104

App. 26

Superior Court of California

County of Sacramento

[SEAL]

PHCC OF THE GREATER SAC- NO. 01CS01172

RAMENTO AREA AND PHCC OF COURT'S

THE GREATER SACRAMENTO RULING ON

AREA PLUMBERS UNILATERAL SUBMITTED

APPRENTICESHIP COMMITTEE,

si MATTER

Petitioner,

CALIFORNIA APPRENTICESHIP

COUNCIL,

Respundent. /

FRESNO AREA PLUMBERS, PIPE

AND REFRIGERATION FITTERS

JATC,

Real Party in Interest /

INDEPENDENT ROOFING CON-

TRACTORS OF CALIFORNIA

UNILATERAL APPRENTICESHIP

COMMITTEE, an employee benefit

plan operating a state Approved

apprenticeship training program,

Petitioner,

CALIFORNIA APPRENTICESHIP

COUNCIL, and its Members, MAX

TURCHEN, CAROLE CRESCI

COLBERT And BRAD PLUEGER, in

their official capacity,

Respondents,

App. 27

and

10 BAY AREA COUNTIES AND

SOUTHERN CALIFORNIA ROOF-

ERS AND WATERPROOFER'S [sic]

JOINT APPRENTICESHIP TRAIN-

ING COMMITTEE,

Real Party in Interest /

I. Introduction and Factual Background

In this consolidated matter, petitioners PHCC of the

Greater Sacramento Area (“PHCC”) and Independent

Roofing Contractors of California (“JRCC”), the sponsors of

two unilateral apprenticeship programs, seek writs of

mandate under Code of Civil Procedure section 1094.5 to

overturn decisions of respondent California Apprenticeship

Council (“CAC”). CAC’s decisions invalidated approvals

these programs previously had received from the Chief of

the Division of Apprenticeship Standards (“Chief DAS”)

allowing petitioners to expand their programs into new

geographical areas. For the reasons stated below, the

Court finds that the decisions of respondent CAC were

legally correct and were not invalid on any of the many

grounds argued in the petitions. The Court accordingly

denies the petitions.

This case involves two separate administrative pro-

ceedings that share many common legal and factual

issues.’ The petitioners are so-called “unilateral” appren-

ticeship committees, that is, organizations that have been

established by non-union employers in the building trades

* The Court has somewhat simplified the factual and procedural

background of this matter for the sake of brevity and clarity.

App. 28

to train and employ apprentice workers. Apprenticeship

programs are extensively regulated by federal and state

law. Federal law sets the framework; within that frame-

work, California has enacted apprenticeship laws in

compliance with federal standards and thus has been

delegated power under federal law to administer appren-

ticeship training programs. California law regulating such

programs is found in Sections 3070, et seq. of the Labor

Code and in Title 8 of the California Code of Regulations,

sections 200, et seq.

The designated regulatory authority governing ap-

prenticeship programs in California is respondent CAC,

which has the power to, among other things, issue rules

and regulations governing the standards for such pro-

grams, including the provisions of Title 8 referred to

above.’ Day-to-day administration of the apprenticeship

laws pursuant to such regulations is carried out by the

Chief DAS, an office within the Department of Industrial

Relations.’ Among the powers of the Chief DAS estab-

lished by regulation is the power to approve written

standards for apprenticeship programs.* That approval

power is subject to appeal to the CAC, and is the source of

the dispute here.”

Both of the petitions involved in this consolidated

matter arose out of disputes over the desire of the respec-

tive petitioners to expand their programs into new geo-

graphical areas. As background, in December 1993, the

* Labor Code section 3070, 3071.

* Labor Code section 3073.

* Title 8, California Code of Regulations, section 212.

* Title 8, California Code of Regulations, section 212.2(j).

App. 29

Chief DAS approved written standards for a plumber’s

apprenticeship program operated by PHCC. Those written

standards (“the 1993 Standards”), which are not chal-

lenged here, stated that the program was intended to

operate in Sacramento County. In December 1997, PHCC

asked the Chief DAS to approve written standards for a

plumbing apprenticeship program covering the entire

state of California (“the 1997 Standards”). The Chief DAS

approved the standards in January 1998.

Similarly, prior to August 27, 1998, IRCC operated an

apprenticeship training program under written standards

covering fifteen Northern California counties. In August

and December 1998, the Chief DAS approved written

standards expanding IRCC’s program to a total of nine

additional counties.

In both cases, the Chief DAS granted approval for the

expanded area of operations without complying with

Regulation 212.2. The regulation requires the Chief DAS

to give notice of the proposed standards of a program to

existing programs in the area in which the proposed

program will operate. The existing program is provided an

opportunity to comment on the expansion, to participate in

any bearing on the expansion, and to appeal the decision

of the Chief DAS to respondent CAC.

In approving petitioners’ expanded standards without

giving such notice, the Chief DAS evidently took the

position that compliance with the regulation was not

necessary because the regulation only applied to requests

for approval of “new” programs and that the two petition-

ers were merely seeking approval of “revisions” to existing

App. 30

programs. Both petitioners operated their apprenticeship

training programs in the expanded areas.°

Petitioners’ expanded operations were discovered by

two so-called Joint Apprenticeship Training Committees

(“JATCs”), namely, the two real parties in interest in this

proceeding, the Fresnu Area Plumbers, Pipe and Refrig-

eration Fitters [ATC (in the PHCC matter) and the 10 Bay

Area Counties and Southern California Roofers and

Waterproofers [ATC (in the IRCC matter). JATCs are, as

their names imply, apprenticeship training programs

jointly run by unionized employers and labor unions in the

building trades. According to the petitioners here, such

programs are philosophically and in other respects an-

tagonistic to unilateral programs such as those operated

by petitioners. In this case, the two IATCs filed complaints

with the Administrator of Apprenticeship of the State of

California claiming that petitioners were operating in

violation of their originally-approved standards and

charging that the Chief DAS had improperly approved

petitioners’ expansion into new areas.

The two matters were assigned to two independent

hearing officers who rendered separate decisions (“the Adminis-

trator’s Decisions”). In the PHCC matter, the Administrator’s

Decision found that petitioner had been operating in violation

* The Court is aware of the contention, made below and found to be

‘ true in the Administrator’s Decision in the PHCC matter, that PHCC

operated its program outside the original geographical area even before

the Chief DAS granted approval of the expanded areas of operations.

That contention is essentially subsumed into the ultimate finding of the

CAC, discussed below, that the Chief DAS improperly granted approval

without complying with the procedural requirements of the applicable

regulation. Accordingly, the Court will not further address such

contention.

App. 31

of the 1993 Standards by, in effect, running a new program

as a result of its geographical expansion beyond Sacra-

mento County and in other respects. The Administrator’s

Decision ordered PHCC to comply with the 1993 Stan-

dards and to cease operations outside Sacramento County.

In the IRCC matter, the Administrator’s Decision found

that the JATC’s challenge to MCC’s operation of its pro-

gram prior to the Chief DAS’ approval of expansion in

August anc December 1998 was time-barred. Both Admin-

istrator’s Decisions found that the issue of whether the

Chief DAS had improperly granted approval of the peti-

tioners’ expanded areas of operation was a matter that

properly should be referred to respondent CAC.

The two matters then proceeded to hearing before

respondent CAC, in part on the issues referred to it by the

Administrators’ Decisions, and in part on appeal from the

rulings in those decisions by the various parties. The

result was the CAC decisions that are the subject of these

writ proceedings. In both matters, respondent CAC ruled

that the Chief DAS should have complied with Regulation

212.2 by giving notice to existing programs (such as the

two JATCs) before approving the geographice! expansions

of the petitioners’ programs. Since the Chief DAS did not

comply with the regulation, respondent CAC found the

approvals to be invalid and overturned them. Respondent

CAC further ruled that both petitioners were authorized to

operate their programs only under the original standards.

These rulings are the subject of the current petitions.’

" Respondent CAC further ruled in the PHCC matter that,

although the expansion of PHCC’s program was invalid, individual

apprentices who had enrolled in the program outside Sacramento

County should be permitted to continue in the program until the end of

(Continued on following page)

App. 32

Petitioners challenge the decisions of respondent CAC

on a host of grounds.’ Perhaps foremost among the issues

raised, and one that is common to both petitioners, is the

contention that the geographical expansion of their pro-

grams does not come within the scope of Regulation 212.2.

Petitioners contend that Regulation 212.2 applies only to

new programs, and not to expansions of existing programs,

which are properly characterized as “revisions”. They

further argue that the Chief DAS has always treated geo-

graphical expansions in this manner. Accordingly, petitioners

contend that respondent CAC improperly interpreted and

applied the regulation, and, alternatively, that it was

estopped from deciding the matter against petitioners

because of the earlier actions and policy of the Chief DAS

in approving the expansions.

Beyond this common contention in both petitions, both

petitioners also challenge respondent CAC’s actions as

being beyond its jurisdiction, as violating various constitu-

tional rights, and as being rendered by an unfair and

biased decision-maker.

The Court will begin by analyzing whether the expan-

sion of petitioners’ programs triggered the provisions of

Regulation 212.2 (in other words, whether respondent’s

their training. That ruling is the subject of a cross-petition for writ of

mandate by real party in interest Fresno JATC. Fresno JATC has

deferred a hearing on the claims raised by its cross-petition pending the

decision on the petitioner’s claims: Accordingly, the cross-petition will

not be discussed further in this Ruling.

* There is a substantial overlap in the issues raised by the two

petitioners. Where appropriate, the Court will analyze issues common

to both petitioners under a single heading. Where factual and legal

issues diverge, the claims of the two petitioners will be treated sepa-

rately.

App. 33

decisions correctly applied the regulation) and will then

will [sic] discuss each of the petitioners’ other arguments.

II. Respondent CAC Correctly Applied Regulation 212.2

Respondent CAC found that the geographical expan-

sion of both petitioners’ programs required compliance

with the terms of Regulation 212.2. Because those proce-

dures had not been followed, respondent overturned the

approval by Chief DAS of PHCC’s 1997 Standards and

IRCC’s 1998 expansions and ruled that both petitioners

were authorized to operate only under their earlier ap-

proved standards.”

The Court finds that respondent’s decisions correctly

interpreted and applied Regulation 212.2. Regardless of

whether the expansion of petitioners’ programs into new

geographical areas may be characterized as “new pro-

grams” or as “revisions” of existing programs, Regulation

212.2 required the Chief DAS to follow certain procedures

before approving the expansion. Those procedures were

not followed here, rendering the Chief’s approval invalid.

Although the regulations governing apprenticeship

training programs were amended during the time at issue

in this case, at all relevant times they required the written

standards for such programs to contain a statement of the

geographical area in which the program would operate. At

the time PHCC’s 1993 Standards were approved, Regula-

tion 212(bX(2) required program standards to include a

statement of the “party or parties to whom the standards

* Decisions of the California Apprenticeship Council (PHCC

matter), p. 3:1-4; (IRCC matter), p. 3:14-17.

App. 34

apply and the geographic area”.”” Pursuant to this regula-

tion, PHCC’s 1993 Standards defined the area covered by

the standards as “Sacramento County, California.”” In

1997, Regulation 212(b)(2) was amended to require the

program standards to contain a statement of “the parties

to whom the standards apply and the program sponsor’s

labor market area, as defined by Section 215 appendix

2(I), for purposes of meeting equal employment opportu-

nity goals in apprenticeship training”.” Accordingly, on

December 16, 1997, petitioner sought approval of stan-

dards covering “all counties in California.”” The 1997

Standards thus represented an expansion of petitioner’s

program into geographical areas not included in the 1993

Standards.

Similarly, prior to 1998, IRCC had obtained the

approval of Chief DAS to operate in fifteen named counties

in Northern California.“ In 1998, IRCC sought approval

® Title 8, California Code of Regulations, section 212(b)(2), as

operative May 22, 1992.

“ Extract of New Standards dated December 13, 1993, Item 2. (See

also, Apprenticeship Standards, page 1, Article III.)

* Title 8, California Code of Regulations, section 212(b)(2), as

operative June 20, 1997 and thereafter. —

* Extract of New Standards dated December 16, 1997, Item 2. (See

also, Unilateral Apprenticeship Standards, page 1, Article III.)

“ See, Apprenticeship Standards of the Independent Roofing

Contractors of California, Inc. Unilateral Apprenticeship Committee,

approval dated May 22, 1991 (covering 10 counties); Decision of the

Chief DAS approving expansion of the program to Santa Clara County

dated August 21, 1992; and Revision of Approved Standards, approval

dated October 19, 1993 (covering four additional counties.)

App. 35

on two separate occasions to expand its operations to new

geographical areas in a total of nine additional counties.”

By its terms, Regulation 212.2 applies to a request by

the operator of an apprenticeship training program for the

approval of the “proposed standards of a program”. The

regulation establishes a detailed process in which the

operators of existing programs are entitled to notice, an

opportunity to comment, and even an opportunity to

appeal when another program intends to operate in their

geographical area.

Specifically, upon receipt of “the proposed standards of

a program”, the Chief DAS is required to serve a copy of

the proposed standards on the sponsor of “each existing

program in the apprenticeable occupation in the labor

market area of the program....” Each such existing

program is permitted to submit comments on the proposed

program within 30 days of receipt of the standards, and

the Chief DAS may consult with such existing programs

concerning the proposed program.” Thereafter, the Chief

DAS may hold a hearing “on any issue relating to the

compliance oi a proposed program with federal and state

law and regulations.” Any party entitled to submit com-

ments under the regulation is also entitled to notice of such

hearing and the opportunity to attend it.” The Chief DAS is

required to issue a written decision on the application, and

to serve the decision on each party that submitted

* IRCC Administrative Record, pp. 081-106 (approval dated

August 27, 1998); and pp. 107-121 (approval dated December 4, 1998).

* Title 8, California Code of Regulations, section 212.2(f).

Title 8, California Code of Regulations, section 212.2(g).

App. 36

comments on the proposed program.” An existing program

that submitted comments under the regulation may

appeal the decision of the Chief DAS to respondent CAC

(as was done here by the real parties in interest once they

learned of petitioners’ expanded programs).”

The requests of both petitioners for approval of ex-

panded areas of operation fell squarely within the cited

terms of Regulation 212.2. By expanding their operations

into new counties, petitioners sought to operate their

programs in areas that had not been included in their

earlier approved Standards and in which there were

existing programs, including the programs operated by

real parties in interest. These expansions by themselves

triggered the procedural requirements of the regulation.

The regulation itself makes no distinction between “new”

or “revised” programs, speaking only in general terms of

the “proposed standards of a program.” The expanded

standards of both petitioners, whether technically “new” or

“revised”, were in either case “proposed standards of a

program”. Because those standards involved expanding

operations into new geographical areas in which there

were existing programs, the procedural requirements of

Regulation 212.2 became applicable.” Whether petitioners’

* Title 8, California Code of Regulations, section 212.2(h).

* Title 8, California Code of Regulations, section 212.2(j).

* Petitioner PHCC also argues that respondent improperly found

that the addition of new sources of Related and Supplemental Instruc-

tion for apprentices made the expanded operations “new program”,

because these new sources of instruction were simply a consequence of

the territorial expansion. Since the court has found that the territorial

expansion of PHCC’s program by itself triggered the procedural

provisions of Regulation 212.2, it follows that the addition of new

sources of instruction in the expanded areas would not change chat

result.

App. 37

geographically expanded programs may be characterized

as “new” programs or simply as “revised” programs is not

a relevant distinction under the regulation.”

Petitioners’ interpretation of the regulation, under

which the notice/comment/hearing procedure would not

apply to existing programs intending to expand into new

areas, is an unreasonable one. It is not in harmony with

the language of the regulation itself, which does not

distinguish between existing and new programs. It would

result in the regulation being a nullity in many situations

2 Petitioner PHCC also argues that respondent CAC’s finding that

petitioner PHCC recruited apprentices outside Sacramento County

under a different name is a form of improper “double jeopardy”. The

Court is not persuaded by this contention. The finding is supported by

evidence in the record, and is not really disputed by petitioner, which

claims merely that it was “unaware” of activities of its agents and

corrected the matter immediately after learning of such activity.

Respondent imposed no additional sanction against PHCC based on

this finding, which was in reality a part of the finding that PHCC was

operating outside the geographical area stated in the 1993 Standards

without proper approval by the Chief DAS. The Court accordingly finds

no basis to invalidate respondent’s decision on this ground. Similarly,

petitioner IRCC argues that respondent CAC violated its right to due

process by making a finding regarding recruitment of apprentices

without any supporting evidence in the record. The Court finds no

violation of due process. The language in respondent’s decision of which

IRCC complains is the following: “The Director did not make a finding

about whether IRCC had recruited apprentices outside its original

operating area. The Council assumes IRCC has done so.” (Administra-

tor’s Decision, p. 2:16-17) Even if this language can be characterized as

a “finding”, it was not necessary to the decision and was not the basis of

the decision. As was the case with the PHCC matter, respondent CAC

found that the Chief DAS had not complied with Regulation 212.2 in

approving the expansion of IRCC’s program. Approval was overturned

for failure to comply with the regulation, and not on the basis of any

recruitment that may have taken place outside IRCC’s original

operating area. The Court views the language as mere surplusage that

provides no ground for invalidating the decision.

App. 38

in which it would otherwise be applicable, such as the one

presented here. Moreover, petitioners’ interpretation

would frustrate the purposes of the regulation. Those

purposes, as relevant to this case, appear to be twofold:

promoting careful consideration of proposed programs by

the Chief DAS (including geographical expansion of

existing programs); and insuring that such programs

comply with all the requirements of state and federal law.

These purposes are furthered by giving existing programs

a right to notice, comment and appeal when a program is

proposed to begin operations in their area. This is equally

true whether the applicant is a new program setting up

operations in an area with an existing program an existing

program expanding into that area. Petitioners’ interpreta-

tion of the regulation would frustrate these purposes by

effectively repealing the notice/comment/appeal procedure

when an existing program seeks to expand into a new

area.

In making this ruling, the Court is aware that re-

spondent has proposed an amendment to Regulation

212.2. The amendment, which has not yet taken effect,

would address “uncertainty about the circumstances in

which a program’s standards may be revised to change the

geographical recruitment area” by providing, inter alia,

“that the revision of a program’s standards to expand the

geographical recruitment area is subject to the same

procedural requirements as an application for approval of

a new program [and] that a notice [of] application for

approval of a new program or the revision of the standards

App. 39

of an existing program must be served on all existing

programs in the same area.”

Petitioners contend that because respondent has

proposed this amendment, Regulation 212.2 as it currently

stands does not apply to geographical expansions of

existing programs. The Court does not agree. As discussed

above, although it is not a paragon of clarity, Regulation

212.2 is found to cover such situations. The Court thus

views the amendment to the regulation as a clarification of

existing law, rather than a proposed new law.

The Court also rejects the contention that respon-

deav's interpretation and application of Regulation 212.2,

and hence the two decisions under review here, consti-

tuted an illegal “underground regulation” that was not

promulgated is compliance with the Administrative

Procedure Act. Respondent’s decisions interpreted the

existing regulation and applied it to these particular cases.

Those decisions were thus quasi-judicial adjudications not

subject to the APA. See, 1idewater Marine Western, Inc. v.

Bradshaw (1994) 14 Cal. 4th 557, 571.

III. Respondent CAC did not Divest itself of Jurisdic-

tion over this Matter

Petitioner PHCC next argues that, even if respon-

dent’s application of Regulation 212.2 was correct, the

decision was beyond respondent’s jurisdiction. The basis of

this argument is the contention that approval of PHCC’s

1993 Standards delegated or vested the approval power

* California Apprenticeship Council Final Statement of Reasons

for Proposed and Amended Regulations, including Regulation 212.2

(Brackets added.)

(75) See ~= = ene reennet - —

App. 40

over any changes to those standards solely in the Chief

DAS, and that respondent CAC thereby divested itself of

jurisdiction over any challenge to changed standards, such

as that which occurred in this case.

The Court finds this contention to be unpersuasive.

The jurisdiction of respondent CAC over apprenticeship

programs in general, and over the approval of proposed

standards for such programs in particular, is established

by statute and regulation. Among other things, respondent

CAC’s power to hear and decide appeals by parties such as

the real parties in interest in this case from decisions of

the Chief DAS is clearly set forth in Regulation 212.2(j).

No statutory or regulatory authority is offered to demon-

strate that CAC lacked the power to decide this matter.

Instead, the only evidence offered to support peti-

tioner’s contention is a statement in the 1993 Standards

that PHCC has the responsibility to “adopt changes to

these standards, as necessary, subject to the approval of

the parties hereto and the Chief of the Division of Appren-

ticeship Standards.™ This language does not support a

finding that respondent CAC divested itself of the jurisdic-

tion conferred on it by statute and regulation.

First, the language does not state or imply any such

divestiture. It merely states what the regulations already

provide: that petitioner may change the standards subject

to approval by the Chief DAS. Nothing is said regarding

CAC’s power to review the decision of the Chief DAS. An

* Apprenticeship Standards of the PHCC of the Greater Sacra-

mento Area Plumbers Unilateral Apprenticeship Committee, Article VI,

item 9.

App. 41

agreement to change the regulatory scheme cannot be

implied from silence

Second, even if such an agreement could be implied on

such flimsy grounds, it would not be effective. The Chief

DAS is subordinate to respondent CAC under the regula-

tion, as is apparent from the fact that respondent is given

the power to review the decisions of the Chief DAS on

appeal. Powers conferred on public agencies and officers

which involve the exercise of judgment or discretion, as

this appeal power does, are in the nature of public trusts

and cannot be surrendered or delegated to subordinates in

the absence of statutory authorization. California School

Employees Association v. Personnel Commission (1970) 3

Cal. 3d 139, 144. In this case, the statutes authorize the

Chief DAS to make the “first call” on program standards,

but, also by statute, the “last call” remains with respon-

dent CAC.

Accordingly, the Court finds that, pursuant to statute

and regulation, respondent CAC at all times has been

vested with jurisdiction to make the two decisions chal-

lenged here.

IV. Respondent is not Estopped to Enforce the Proce-

dural Requirements of Regulation 212.2

Petitioners further argue that respondent CAC is es-

topped from enforcing the procedural requirements of

Regulation 212.2 based on the conduct of the Chief DAS in

approving their expanded areas of operations. The alleged

factual basis of this contention is that the Chief DAS had a

consistent policy of treating requests for expanded areas of

operations as revisions to existing programs that did not

require notice to existing programs in the intended areas

App. 42

of operations, and this policy should be imputed to respon-

dent CAC. Petitioners allege that they did not know that

the regulation might be applied to their requests and that

they relied in good faith on the advice and counsel of

employees of the Chief DAS in submitting their requests

as revisions rather than new standards. Finally, petition-

ers allege that they have been prejudiced by the actions of

the Chief DAS in that it would now be impossible for them

to obtain permission to expand their areas of operation

due to changes in applicable law.

The Court finds petitioners’ estoppel argument to be

unpersuasive for a number of reasons.

First, the evidence does not demonstrate that the

Chief DAS in fact had a consistent policy of processing

requests for expanded areas of operations without giving

notice to existing programs under Regulation 212.2. To be

sure, petitioners have presented testimony by an employee

of the Chief DAS and by the Acting Chief DAS who ap-

proved PHCC’s 1997 Standards” to the effect that geo-

graphical expansions were “always” processed without

notice to existing programs. That evidence was contra-

dicted, however, by the testimony of another DAS em-

ployee”, who stated that he consistently gave notice under

the regulation when an existing program proposed to

expand into an area with an ongoing program (unless the

expansion was a minor one).

Petitioners’ contention is also contradicted by documen-

tary evidence in the record showing that other programs

* Leonard Viramontes and Rita Tsuda, respectively.

* Michael Mortell.

App. 43

received approval to expand on other occasions only after

compliance with the regulation.” Finally, petitioners’

contention is belied by the fact that PHCC’s request for

expansion was rejected twice when submitted on the DAS

form used for revisions to existing programs, and that it

was approved only after being submitted on the form used

for approval of new standards, and then only after a new

Acting Chief DAS had taken over.”

As further evidence in support of their contention,

petitioners also cite a 1993 Memorandum prepared by Gail

W. Jesswein, then the Chief DAS, entitled “Enforcement

Policy”. The Court has reviewed this Memorandum and

finds that it does not support petitioners’ contention. The

particular language upon which petitioners rely is the

following: “Therefore, in existing Standards, a statement

of geographic area for recruitment, and within which

[Related and Supplemental Instruction] classroom train-

ing occurs, should be updated when the area of those

activities expands.™ This sentence says nothing one way

or the other about whether notice of such expansion

should be given under Regulation 212.2. In the Court’s

view, however, it is entirely consistent with the concept of

giving such notice. There is no other language in the

Memorandum that evidences an intent not to apply the

* For example, in 1992 the request of petitioner IRCC to expand

its program to Santa Clara County was approved only after the Chief

DAS, then Gail Jesswein, gave notice to and received comments from

the existing joint program in the area. See, IRCC Administrative

Record, p. 135.

” Although even then, the new Acting Chief did not comply with

the procedural requirements of the regulation that none of the parties

deny would apply to new programs.

* Jesswein Memorandum dated July 14, 1993, p. 5.

App. 44

regulation to geographical expansions. In fact, elsewhere

the Memorandum states without qualification: “The

portion of 8 C.C.R. § 212.2 regarding consultation with

existing programs and notification of approvals by the

Chief will be followed.”"” The Memorandum does not

establish any policy of the type petitioners suggest.

Under these facts, the Court does not find that the

Chief DAS had a consistent policy of treating area expan-

sions as outside the scope of Regulation 212.2. At most, the

evidence suggests a degree of confusion or uncertainty

within the office of the Chief DAS as to when the regula-

tion should apply.” Alternatively, the evidence may sug-

gest that different individuals within the office of the

Chief DAS were intentionally working at cross-purposes.

Or it may suggest that in these particular cases, the

(Acting) Chief DAS made an error. In any use, the evi-

dence is not, in the Court’s view, sufficient to estop re-

spondent CAC from enforcing the procedural requirements

of the regulation as it was otherwise entitled to do.

Second, even if some individuals within the office of

the Chief DAS treated area expansions in the manner

petitioners allege, that would not be sufficient by itself to

estop respondent CAC from enforcing the regulation. Even

assuming that petitioners relied in good faith on the

advice given to them by the particular DAS employees who

processed their request, or on the approval “f the Acting

* Jesswein Memorandum dated July 14, 1993, p. 1.

* This appears to be the issue referred to in the Final Statement of

Reasons for the amendment to Regulation 212.2: “The primary problem

addressed ... is uncertainty about the circumstances in which a

program’s standards may be revised to change the geographical

recruitment area.”

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w j

App. 45

Chief, the actions of those individuals could not bind

respondent CAC.

As noted above, respondent CAC stands in the posi-

tion of a reviewing agency vis-a-vis the Chief DAS in these

matters. This review power exists in order to permit

respondent CAC to correct the errors of the Chief DAS. It

is always entitled to exercise this power, regardless of the

actions of its subordinate agency. To find that the subordi-

nate agency could bind or estop a reviewing agency by its

conduct would be to leave error uncorrected, and violations

of law unremedied. It would, in fact, be to destroy the

power of review established by law, a result obviously

against public policy.

Third, even if estoppel were otherwise available and

the other elements had been established, which is not the

case here, petitioners would not be entitled to rely on the

actions of the Chief DAS alone. The power of respondent

CAC to hear appeals from decisions of the Chief DAS is

apparent on the face of Regulation 212.2 and thus pre-

sumptively within the knowledge of petitioners. Petition-

ers could not reasonably assume that the Chief DAS had

the “final say” on the issue. Absent some indication di-

rectly from respondent CAC that the procedural require-

ments of Regulation 212.2 would not be applied to area

expansions, whether through decisions on earlier appeals

or otherwise, it was not reasonable for petitioners to

assume that CAC would not enforce the regulation. There

is no evidence in this case that respondent CAC ever

indicated to petitioners or anyone else that it would not

enforce the regulation as it did. Accordingly, the Court

finds no basis on which to rule that respondent was

estopped from making the decisions challenged here.

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ad hm om te gg ee umeed (6 EN Nee MOR tery a0 Hy Reece woh P reteinetthe REE Ortrene ag g Mitre nwt S liellieee le th ete ela be eee i eT Te

App. 46

Fourth, and finally, the Court is not persuaded by

petitioner’s contention that it has been prejudiced because

changes in law now make it impossible for its area expansion

to be approved. Petitioner’s contention is based on the 1999

amendment to Labor Code section 3075. The amendment

added subsection (b) to the statute, setting forth with par-

ticularity the conditions that must be met in order to justify

the approval of a new apprenticeship program in a trade

or in a city or trade area.

Petitioner argues that the new conditions set forth in

subsection (b) are virtually impassible to meet, guarantee-

ing that the Chief DAS will not approve the area expan-

sions if they were properly submitted today. The Court is

unable to make such a speculative determination on the

record of this case. While the new requirements of Labor

Code section 3075(b) appear on their face to be somewhat

stringent, whether or not they would be applied to block

expansion by these petitioners appears to depend upon

factual issues that are not before this Court, and are not

resolvable based on the record here. The Court is aware that

the so-called “need” requirement of Labor Code section 3075

has been controversial.” But that requirement was pan of

” There is a long history of litigation over the “need” requirement

in state and federal courts. It is now the subject of pending federal

administrative proceedings. Petitioners have submitted materials

indicating that the federal Department of Labor views the recent

amendments to Labor Code section 3075 as putting state law out of

conformity with federal law. The federal agency has instituted proceed-

ings to “decertify” the State of California and respondent CAC as the

recognized administrator of apprenticeship programs pursuant to

federal law. The question of the validity of the amendment to Labor

Code section 3075 and of the “need” requirement in general are not

before the Court in this proceeding and form no basis of this court’s

ruling.

App. 47

the statute even before the amendment, and yet ayes

expansions were approved.” The Court declines to »cu-

late about how the Chief DAS and respondent CAC v. uld

apply the statute to any new area expansion requests.

Such speculation cannot form any basis for the relief

petitioners seek here.

It should be noted that the conditions set forth in subsec-

tion (b) do not appear to be as absolute as petitioners

contend. Labor Code section 3075(c) permits respondent

CAC to approve a new apprenticeship program notwith-

standing subdivision (b) if “special circumstances, as

established by regulation, justify the establishment of the

program.” What special circumstances might be estab-

lished by regulation and found to exist in a particular case

is entirely speculative. The Court cannot find that any

new application by petitioner to expand its area of opera-

tions would be denied. Accordingly, the Court cannot find

prejudice sufficient to support estoppel, even if other

necessary elements of estoppel had been established.

V. Respondent’s Decisions do not Constitute an

Unconstitutional Impairment of Contracts

Petitioners allege that respondent’s decisions violate the

federal and state constitutional prohibitions against impair-

ment of contracts. Specifically, petitioners allege that the

decisions interfere with contracts between petitioners and

various parties, including employers, education providers

® Including IRCC’s request to expand its program to Santa Clara

County referred to in footnote number 26 above.

App. 48

and apprentices, in reliance on the Chief ™AS’ approval of

their area expansions.”

Petitioners’ contention may be disposed of simply. The

constitutional prohibitions against the impairment of

contracts apply only to legislative (or quasi-legislative)

acts, and not to acts that are in the nature of judicial

determinations. Barrows v. Jackson (1953) 346 U.S. 249,

260; In re Marriage of Joseph (1990) 217 Cal. App. 3d

1277, 1286. The decisions of respondent CAC here were

quasi-judicial determinations applying a general rule

(Regulation 212.2) to a specific ease. The decisions accord-

ingly do not offend constitutional principles and are not

invalid on that basis.

VI. Respondent’s Decisions do not Discriminate on the

Basis of Residence or Violate the Constitutional

Right to Travel or Access to Education

Next, petitioners make a constitutionally-based attack

on respondent’s decisions, contending that they result in

impermissible discrimination on the basis of residence and

violate the right of prospective apprentices to travel and to

have access to education and employment. These conten-

tions are unpersuasive.

Respondent’s decisions do not involve or violate these

constitutional principles. Respondent ruled that the Chief

DAS had improperly approved petitioners’ requests to

expand their areas of operations without complying with

the procedural requirements of Regulation 212.2, and that

* See Declaration of Patricia Black in Support of Memorandum of

Points and Authorities in Support of Verified Petition for Writ of

Administrative Mandamus, filed March 19, 2002.

App. 49

petitioners were not permitted to operate in those ex-

panded areas absent such proper approval. Nothing in

those rulings affects the fundamental rights of prospective

apprentices.

Respondent’s ruling does not discriminate on the basis

of residence. While the effect of the ruling is that petition-

ers cannot operate their apprenticeship training programs

outside the areas originally designated by their approved

standards (at least until the Chief DAS properly approves

an application for permission to do so), nothing in the

ruling prevents prospective apprentices who reside outside

the areas of petitioners’ programs from enrolling in ap-

prenticeship training programs in their area of residence

(even unilateral programs, if they are available). The

Court finds no impermissible legal burdens or disabilities

imposed on any person based solely on residence.

Similarly, respondent’s rulings do not restrict the

right to travel. Even if no unilateral programs are avail-

able in the areas in which petitioners intended to expand

at this time, nothing in the ruling prevents prospective

apprentices desiring to join petitioners’ unilateral pro-

grams from moving to their approved areas of operations

to join them. The ruling imposes no residency require-

ments or other restrictions that would affect the ability --

prospective apprentices to do so. Accordingly, the Court

finds no impermissible burden on the right to travel.

Instead, the rulings represent an application of neutral

procedural rules that are part of a general regulatory

scheme applicable to apprenticeship training programs.

Petitioners have not demonstrated that it is impermissible

per se for the State to require such programs to operate in

defined geographical areas and to seek permission from

the administering agency before expanding into new areas

App. 50

with existing programs. In fact, states may legitimately

restrict the geographical location of commercial enter-

prises. New Motor Vehicle Board of California v. Orrin W.

Fox Co. (1978) 439 U.S. 96, 107. Apprenticeship training

programs, while technically non-profit entities, are closely

related to commerce in the construction trades and thus

may be subject to such regulation.”

For the same reasons, the rulings do not restrict

access to education or employment. Prospective appren-

tices may enroll in approved training programs either in

their area of residence or by moving to an area with an

approved program.” Respondent’s rulings merely prevent

petitioners from offering programs in new areas until their

expansion is approved in the manner required by law.

Accordingly, the Court does not find that respondent’s

decisions violated constitutional principles on any of the

grounds asserted.

For the same reason, the Court does not find that

respondent’s order that petitioners cease and desist from

recruiting and enrolling apprentices outside their ap-

proved areas of operations violates constitutional princi-

ples. Since petitioners may lawfully be ordered to restrict

their programs to their approved areas of operations (at

least until proper approval is granted for expansion), they

“ As noted above, the validity of the recent amendments to Labor

Code section 3075, or of the “need” requirement in general, is not before

the Court in these proceedings.

* The Court accordingly finds no merit to the contention advanced

by petitioner IRCC that respondent’s rulings violate the fundamental

constitutional rights of prospective apprentices as was the case in Best

v. California Apprenticeship Council (1987) 193 Cal. App. 3d 626

(involving accommodation of an apprentice’s religious beliefs).

App. 51

may also be ordered, as a proper incident thereto, not to

carry on their programs, or advertise the availability of

their programs, outside that approved area. In the Court’s

view, the challenged orders do no more than that; in other

words, they do no more than require petitioners to comply

with the law.

VII. Petitioners Were Not Deprived of a Fair Hearing

In addition to the contentions discussed above, peti-

tioners attack respondent’s decisions on the more general

ground that they were deprived of a fair hearing.

Petitioners’ contention in this regard has two aspects.

One is that the membership of respondent CAC is unfairly

and improperly weighted towards representatives of

unionized apprenticeship training programs. Petitioners

argue that the CAC, as thus composed, is so philosophi-

cally and economically antagonistic to unilateral programs

(such as petitioners’) as to be unable to render them a fair

hearing. The other contention is that several of the indi-

vidual members of respondent who participated in the

decisions under review here had a fatal conflict of interest

by virtue of their membership in an organization that had

participated in the hearings leading up to the Administra-

tor’s Decisions as an amicus curiae. Those members,

petitioners argue, should have disqualified themselves

from this matter at their request; the result of such

disqualification in this matter would have been that

respondent CAC would have lacked a quorum to render

the decisions at issue here.

Beginning with the general contention regarding the

composition of respondent, petitioners present evidence

which they argue demonstrates that the overwhelming

App. 52

majority of the members are affiliated with unionized

apprenticeship training programs. The result, in their

view, is a tribunal biased in favor of the interests of

unionized programs.

The Court is not persuaded by petitioners’ contention.

The membership of respondent complies with law. Labor

Code section 3070 prescribes the composition of the

California Apprenticeship Council. In addition to two

public and three ex officio members, the Council is to be

composed of six representatives each from employers or

employer organizations on the one hand, and employee

organizations on the other. This plan recognizes the

differing interests of employers and unions in the con-

struction industry and provides equal representation to

both. Similar plans of representation have been approved

by courts for other specialized administrative boards

dealing with issues specific to a given industry. See,

Friedman v. Rogers (1979) 440 U.S. 1, 18; American

Motors Sales Corp. v. New Motor Vehicle Board (1977) 69

Cal. App. 3d 983, 990. In this case, the evidence submitted

by petitioners regarding the affiliations of respondent’s

members does not demonstrate a violation of Labor Code

section 3070.

Petitioners argue, however, that some of the employer

representatives on the Council must be seen in reality as

“union affiliated” or biased because they are associated

with joint programs (such as those of the real parties in

interest here). Petitioners contend that unilateral, pro-

grams such as theirs are effectively unrepresented on the

Council and therefore cannot obtain a fair hearing in

matters such as these.

App. 53

The problem with this argument, in the Court’s view,

is that it is based on an assumption of bias or interest

without any proof of either. It is one thing to assume a

potential philosophical conflict between employer and

union interests. In fact, the structure of the Council

recognizes and is designed to deal with such conflict. It is

another thing to assume that there is a potential conflict

between employer representatives affiliated with joint

programs and employers who operate unilateral programs,

and to translate that conflict into actual bias. Here, the

bold proposition that employer representatives affiliated

with joint programs are philosophically or economically

antagonistic to unilateral programs is, without evidence,

sheer hyperbole. The Court cannot simply accept such an

assertion as the basis for declaring that the composition of

respondent is somehow illegal when all evidence demon-

strates that the makeup of the Council in fact complies

with the law.

Something more than generalized assertions of bias is

required. A party must allege concrete facts that demon-

strate that the challenged decision-maker is contaminated

with bias or prejudice. Andrews v. Agricultural Labor

Relations Board (1981) 28 Cal. 3d 781, 792. To disqualify a

judge, those facts must demonstrate that the judge has a

direct, personal, substantial and pecuniary interest in the

matter under review. Barrwatt v. Hernandez (1988) 205

Cal. App. 3d 823, 827, n.5. The same rule applies to

administrative bodies. American Motors Sales Corp. v.

New Motor Vehicle Board (1977) 69 Cal. App. 3d 987, 992.

Petitioners have not demonstrated that any of the mem-

bers of respondent CAC had such a disqualifying interest

in this matter. There alleged philosophical bias against

unilateral programs is not sufficient. The question of

App. 54

whether unilateral programs should have soine guaran-

teed separate representation on the Council is thus a

political one that should be presented to the Legislature,

not to the judiciary.

The second aspect of petitioners’ unfair tribunal

contention is that certain members of the Council who are

affiliated with unionized or joint programs were actually

biased against petitioners in the proceedings below. The

basis of this contention is that some identified members of

the Council were affiliated with joint programs that were

in turn members of an organization known as the Califor-

nia Apprenticeship Coordinators Association (“CACA”).

CACA is an organization that represents the interests of

joint apprenticeship training programs. It participated in

the proceeding lending up to the decisions under review

here, filed a brief in support of the real parties in interest

and argued that the Chief DAS’ approval of petitioners’

expansions should be overturned.

The Court is not persuaded that the affiliation of

certain Council members with programs that were mem-

bers of CACA is sufficient to invalidate respondent’s

decisions. The fact that an organization has taken a

position on an issue that may be in dispute in administra-

tive or even judicial proceedings does not necessarily

disqualify a member of that organization from ruling on a

case involving that issue. Moreover, the fact that an

organization has filed an amicus brief taking a stand on

an issue does not, disqualify members of that organization

from hearing future proceedings on the issue. People v.

Superior Court (Mudge) (1997) 54 Cal. App. 4th 407, 410.

The Mudge case dealt with appellate court judges. The

standards applicable to administrative agencies are

somewhat less strict than those applicable to courts. See,

App. 55

Gai v. City of Selma (1998) 68 Cal. App. 4th 213, 233. As

noted above, administrative regulatory boards may be

composed of industry representatives, even if those per-

sons represent divergent or competing economic or phi-

losophical interests. An administrative decision-maker is

not disqualified simply because he or she has taken a

public position on a policy issue related to a dispute under

review. Burrell v. City of Los Angeles (1989) 209 Cal. App.

3d 568, 578; City of Fairfield v. Superior Court (1975) 14

Cal. 3d 768, 780-782. And quasi-adjudicative administra-

tive bodies may even rule on complaints initiated by their

own members. Breakzone Billiards v. City of Torrance

(2000) 81 Cal. App. 4th 1205.

The Court has reviewed the brief CACA filed in the

proceedings below and finds that CACA’s participation in

those proceedings is not sufficient to disqualify the mem-

bers of respondent who were somehow affiliated with

CACA members from participating in the decisions under

review here.”

The Court notes that respondent’s two decisions

betray no signs of interest, bias, or basic lack of fairness.

The decisions are facially neutral, are based on a proce-

dural issue (lack of compliance with Regulation 212.2) and

lack any overt ideological content. The two succinct deci-

sions gave adequate consideration to the dispositive issue

and properly applied the law. In fact, respondent appears

* In light of the ruling made herein, the Court finds it unnecessary

to reach the issues of whether petitioners properly raised their objec-

tions to the composition of the Council or to the participation of

individual members below, or whether the so-called “rule of necessity”

would have justified the respondent’s action even if certain members

were required to be disqualified.

App. 56

to the Court to have made great efforts to avoid being

unnecessarily punitive by crafting a remedy that would

not penalize the individual apprentices who enrolled in

good faith in petitioners’ programs.” This Court is also

cognizant of the fact that the members of respondent CAC

voted unanimously to adopt the decisions in question,

belying the contention that the decisions were the result of

interest or bias.

VIII. Respondent CAC did not Violate Public Meeting

Laws

Petitioner IRCC argues that respondent CAC violated

state public meeting laws and basic due process by not

giving proper notice of its tentative decision before the

meeting at which it was adopted. IRCC’s contention

appears to be based solely on the allegation that the

tentative decision was not placed into the public informa-

tion binders until after the quarterly CAC meeting had

already begun.” IRCC argues that such action violated the

public meeting statutes contained in Government Code

sections 11120, et seq.

The Court finds IRCC’s contention to be without

merit. The referenced statutes do not appear to require

that the tentative decision should have been made avail-

able to a representative of IRCC before the meeting.

Government Code section 11125 requires the notice of

*" See footnote 7 above. The Court does not intend to express any

opinion or judgment here on the propriety or legality of that remedy,

which is the issue raised by the cross-petition.

* See, IRCC’s Memorandum of Points and Authorities in Support

of Complaint for Declaratory Relief and Petition for Writ of Mandate,

etc., filed August 16, 2001, pp. 21:25-22:8.

App. 57

meeting of a state body to include a specific agenda con-

taining a brief description (which generally need not

exceed 20 words) of the items of business to be transacted

or discussed. There is no allegation that the notice of

respondent CAC’s meeting was not accompanied by a

proper agenda with a brief description of the item involv-

ing the tentative decision. Government Code section

11125.1(b) states that writings that are public records and

that are distributed to members of the state body prior to

or during a meeting, pertaining to any item to be consid-

ered during the meeting, shall be made available for public

inspection at the meeting. This provision appears to have

been complied with. IRCC has not identified any other

authority that would have required respondent to serve it

with a copy of the tentative decision prior to the meeting.

The Court thus fords no basis upon which to invalidate

respondent’s decision.

IX. Respondent Properly Found that the Appeal in the

IRCC Matter was not Time-Barred

Finally, petitioner IRCC argues that respondent CAC

improperly found that the appeal of the 10 Bay Area

Counties JATC from approval of its expansion was not

time-barred. The Court finds that respondent ruled

correctly on this issue.

Regulation 212.2(j) provides that the decision of the

Chief DAS approving or disapproving proposed standards

shall be final unless an appeal is filed with respondent

within thirty days of service of the decision. In this case,

the Chief DAS did not comply with the regulation and .

thus did not serve notice of the approval of IRCC’s expan-

sion on real party in interest.

App. 58

The facts, which are undisputed, demonstrate that the

Chief DAS approved IRCC’s expansion in two phases, in

August and December 1998. Real party in interest learned

of petitioner’s expanded operations sometime thereafter

and wrote a letter to DAS complaining about the revision

of IRCC’s standards on February 19, 1999.” Since the

Chief DAS did not comply with the provisions of Regula-

tion 212.2, the time for an appeal pursuant to the regula-

tion had not begun to run. Given the confused procedural

posture of this matter, real party in interest acted rea-

sonably to raise and preserve the issue. Respondent

accordingly did not abuse its discretion by finding that

real party in interest’s February 19, 1999 letter should be

considered as a timely appeal.

X. Conclusion

For the reasons stated above, the Court finds that

respondent’s two decisions properly applied the applicable

regulation and found the approval of petitioners’ geo-

graphical expansions to be invalid on procedural grounds.

Respondent’s decisions do not violate constitutional

principles and were not rendered by a biased or unfair

tribunal. The petitions for writ of mandate are denied.

Counsel for respondent are directed to prepare an

order denying the petitions and to submit the order to

counsel for petitioners and real parties in interest for

approval as to form (FAX is permissible) before submitting

it to the Court for signature and filing. The parties are

also directed to meet and confer and to contact the Court

regarding further proceedings, if any, on the cross-petition.

* IRCC Administrative Record, pp. 073-074.

App. 59

Dated: JUL 31 2002

/s/ Talmadge R. Jones

HONORABLE TALMADGE R. JONES

: JUDGE OF THE SUPERIOR COURT

App. 60

DESMOND CAPERS et al., Plaintiffs and

Appellants, v. HENRY P. NUNN as Chief etc.,

Defendant and Respondent; SHEET METAL

WORKERY’ INTERNATIONAL ASSOCIATION

LOCAL UNION NO. 104 et al., Interveners

and Respondents. AIR CONDITIONING

TRADES ASSOCIATION UNILATERAL -

APPRENTICESHIP PROGRAM, Plaintiff and

Appellant, v. CALIFORNIA APPRENTICESHIP

COUNCIL, Defendant and Respondent,

SHEET METAL WORKERS’ INTERNATIONAL

ASSOCIATION LOCAL UNION NO. 104 et al.,

Real Parties in Interest and Respondents.

S128180

SUPREME COURT OF CALIFORNIA

2004 Cal. LEXIS 11181

November 17, 2004, Filed

JUDGES: Brown, J., was absent and did not participate.

OPINION:

Petition for review denied.

Brown, J., was absent and did not participate.

App. 61

BEFORE THE

CALIFORNIA APPRENTICESHIP COUNCIL

SHEET METAL WORKERS’

INTERNATIONAL ASSOCIATION| DAS Case Nos.

LOCAL UNION NOS. 104, 108 97-S-11 and 99-13

AND 162, DECISION

Charging party, Appellee,

AIR CONDITIONING TRADES

ASSOCIATION UNILATERAL

APPRENTICESHIP COMMITTEE,

Respondent, Appellant.

FACTS AND PROCEDURAL HISTORY

On August 6, 1993, the California Apprenticeship

Council (“CAC”) approved the standards of the Air Condi-

tioning Trades Association Unilateral Apprenticeship

Committee (“ACTA”). The standards provided that ACTA’s

geographic area was Merced, Stanislaus, Mariposa and

Tuolomne Counties (“The Original Area”). The standards

provided for affirmative action goals based on The Origi-

nal Area and for related instruction to be given in The

Original Area.

ACTA subsequently expanded its area of recruitment

and related instruction into other Counties. The Division

of Apprenticeship Standards (“DAS”) did not approve the

expansion and notified ACTA that the expansion was not

authorized.

In June, 1997, the Sheet Metal Workers’ International

Association Local Union Nos. 104, 108 and 162 (“Sheet Metal

Workers”) filled [sic] a complaint With the Administrator

App. 62

of Apprenticeship concerning ACTA’s expansion. A hearing

on the complaint was held on April 10 and 11, 2001. On

July, 19. 2001 [sic], the Director of the Department of

Industrial Relations issued a decision on the complaint.

The Director found that ACTA had violated its procedures

for the selection of apprentices, had recruited apprentices

outside its Original Area and had used Local Educational

Agencies that were not approved by DAS and were not set

forth in its standards. The Director found that DAS had

not approved the expansion. Additional facts are stated in

the Director’s decision.

The Director ordered ACTA to cease and desist these

practices and to comply in all respects with its standards

as approved by CAC on August 6, 1993.

ACTA timely appealed the Director’s decision to CAC.

The Council received extensive briefing from the parties

and from the Division of Apprenticeship Standards. CAC

appointed members Max Turchen, Bert Tolbert and Law-

rence Kay to a panel to make a recommendation on the

appeal to CAC. The panel reviewed the administrative

record and presented its recommendation at the CAC

meeting on January 24, 2002.

DECISION

1. An evidentiary hearing on these apeals is not neces-

sary because the Director’s decision is based on an eviden-

tiary hearing, because the parties did not request a

hearing and submitted extensive briefs and because the

issues to be decided are primarily legal.

2. The CAC upholds all of the Director’s factual findings

and legal conclusions. The CAC notes that the record does

App. 63

not show that ACTA completed its application to DAS for

approval of the expansion and thus has not exhausted its

administrative remedies. However, if the facts establish

that the application was completed, DAS’ disapproval of

the application was correct. There is no evidence to sup-

port ACTA’s assertion that DAS approved its expansion or

is estopped from denying the application to approve the

expansion.

3. ACTA is ordered as follows:

a. To comply, in all respects, with its standards

approved August 6, 1993 by CAC; and as

properly amended

b. To cease and desist from using any appren-

tice selection method not expressly approved

and set forth in its standards;

c. To cease and desist from recruiting or utiliz-

ing selection methods that result in the re-

cruitment or enrollment of apprentices who

: reside outside of Merced, Stanislaus, Mari-

posa and Tuolomne Countries [sic];

d. To cease and desist from using learning -edu-

cational agencies other that as set forth in its

approved standards.

4. DAS is requested to consider whether there is cause

for the deregistration of ACTA and what measures, if any,

should be taken for the welfare of those apprentices who

were improperly recruited. DAS is further requested to

conduct an investigation of the training, education and

employment of ACTA’s apprentices. The Council will retain

jurisdiction over the question of what to do about ACTA’s

apprentices pending the results of DAS’ investigation. If

the investigation demonstrates that those apprentices are

App. 64

not being lawfully trained, educated or employed, the

Council will issue further orders as necessary.

DATED: 1-24-02

Jeannie J. Holmes

CHAIRMAN, CALIFORNIA

APPRENTICESHIP COUNCIL

RECOMMENDATION

We recommend that the Council adopt the above decision.

/s/ Max Turchen

Max Turchen

/s/ Bert W. Tolbert

Bert Tolbert

/s/ Lawrence Kay

Lawrence Kay

App. 65

CALIFORNIA APPRENTICESHIP COUNCIL

APPEAL OF DESMOND

GAPERS, DUANE

TREVETHEN, DIANE

NESS, ERIC KENDALL,

JENNIFER BATTS AND

JUSTIN GARCIA

DECISION

FACTS AND PROCEDURAL HISTORY

On March 25, 2002, appellants Desmond Capers,

Duane Trevethen, Diane Ness, Eric Kendall, Jennifer

Batts and Justin Garcia requested Chief, DAS to reverse

his refusal to sign DAS-1 forms for apprentices to the Air

Conditioning Trades Association unilateral apprenticeship

program (“ACTA”) on the basis of residence. Appellants

argued that the refusal violated their fundamental rights

to education and travel.

On June 20, 2002, Chief DAS, on behalf of the Admin-

istrator of Apprenticeship, dismissed appellants’ complaint

on the ground that the Council’s decision of January 24,

2002 prohibits ACTA from using selection methods that

result in the enrollment of apprentices who reside outside

the Counties of Merced, Stanislaus, Mariposa and Tuo-

lomne. The Chief further determined that the prohibition

did not infringe on fundamental rights to education and

travel.

Appellants appealed the dismissal to the Council. The

Council appointed members Max Turchen, Bert Tolbert

and William Callahan to a panel to make a recommenda-

tion on the appeal. The panel reviewed the administrative

record and presented its recommendation at the Council’s

App. 66

meeting on October 24, 2002. Appellants did not request a

hearing before the Council.

DECISION

The dismissal of the appellants’ complaint is affirmed

on the grounds stated in the Council’s decision of January

24, 2002 Dismissing the ACTA appeal and on the addi-

tional grounds stated in the Chief’s decision in this matter.

DATED:1-24-02

Jeannie J. Holmes

CHAIRMAN, CALIFORNIA

APPRENTICESHIP COUNCIL

RECOMMENDATION

We recommend that the Council adopt the above decision.

/s/ Max Turchen

Max Turchen

/s/ Bert W. Tolbert

Bert Tolbert

/s/ William T. Callahan

William Callahan

App. 67

BEFORE THE

ADMINISTRATOR OF APPRENTICESHIP

OF THE TATE OF CALIFORNIA

SHEET METAL WORKERS’ _)

INTERNATIONAL ASSOCIA-_ )

TION LOCAL UNION NOS. 104,)

108 AND 162, )

Charging Party, ) Case Nos.

vs. ) 97-S-11 and 99-13

AIR CONDITIONING TRADES ) DECISION

ASSOCIATION UNILATERAL

APPRENTICESHIP COMMIT- ?

TEE,

Respondents. )

INTRODUCTION

Sheet Metal Workers’ International Association Local

Union Nos. 104, 108 and 162 (Charging Party) filed a

complaint on June 11, 1997 and a second complaint on

October 13, 1999, with the Division of Apprenticeship

Standards (“DAS”). The complaints were designated as 97-

S-11 and 99-13 respectively and were consolidated for

hearing. Both complaints named Air Conditioning Trades

Association Unilateral Apprenticeship Program as respon-

dent (‘ACTA UAP” or “Respondent”).

DAS determined that some of the allegations in the

complaints were untimely or lacked merit. DAS also

determined that certain allegations did have merit and

warranted a hearing and referred additional issues for

hearing.

App. 68

In summary, the issues DAS referred for hearing were

the following:

1. Did ACTA UAP act in excess of its apprenticeship

agreement, “Apprenticeship Standards of the Air Condi-

tioning Trades Association Joint (sic) Apprenticeship &

Training Committee” (Approved Standards or Standards)

by recruiting apprentices outside of the geographic area

provided for in its Standards? (Compl. #97-S-11, First

Claim.)

2. Did ACTA UAP follow the procedures for the

selection of apprentices set forth in its Approved Stan-

dards? (Compl. # 99-13, Second Claim.)

3. Did ACTA UAP utilize Local Educational Agencies

(LEA) that were not approved as part of its Standards?

(Compl. #97-S-11, Second Claim and Compl. #99-13, Third

Claim.)

4. Did ACTA UAP use instructors that were not

certified by an approved LEA? (DAS Acosta File, 97-S-11,

Tab, “Investigation.”)

In addition, the Charging Party in its two complaints,

which it sought to prosecute notwithstanding DAS’ prior

determination that they were without merit or were

untimely, raised other allegations. In summary, they are:

1. ACTA UAP failed to provide related and supple-

mental instruction to apprentices on a frequent and

continuing basis and reasonably proximate to where the

apprentices’ on-the-job training was taking place. (Compl.

#97-S-11, Third Claim.)

2. ACTA UAP did not maintain adequate records of on-

the-job work hours and hours of related and supplemental

App. 69

instruction and did not maintain apprenticeship agree-

ments. (Compl #97-S-11, Fourth and Seventh Claim.)

3. ACTA UAP did not pay or did not pay sufficient

contributions to an employer benefit plan or plans as

required by its Approved Standards. (Compl. #97-S-11,

Fifth Claim.)

4. ACTA UAP did not pay or require employers to

pay apprentices the appropriate rate of compensation.

(Compl. #97-S-11, Sixth Claim.)

5. The Charging Party was not served with ACTA

UAP’s proposed revisions to its Approved Standards as

required by DAS regulations. (Compl. #99-13, First

Claim.)

PROCED BACKGR

On December 20, 2000, the Charging Party was

informed by letter that a Hearing Officer was appointed to

conduct the hearing as to both complaints. By letter of

December 22, 2000, all parties were so notified.

One telephonic pre-hearing conference was conducted

on January 19, 2001, with all parties, through their

respective counsel, participating. During the pre-hearing

conference the parties agreed to exchange documents they

intended to rely upon in support of their positions. The

parties were informed that the exchanged documents

would be made part of the record. Each party exchanged

documentary evidence in accord with their agreement

prior to the hearing being scheduled.

Each party was also given the opportunity to provide

the Hearing Officer and each other party with a position

App. 70

letter outlining their respective factua

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