The California Court of Appeal held in 2008 that Governor Schwarzenegger did not exceed his authority when, after invoking the Emergency Services Act (Gov. Code § 8550 et seq.) to issue a “Prison Overcrowding State of Emergency Proclamation” in October 2006, he directed the California Department of Corrections and Rehabilitation (CDCR) to negotiate contracts for the transfer and housing of prisoners in facilities outside of California.

The guards’ union, the California Correctional Peace Officers’ Association (CCPOA), opposed the Governor’s actions because they threatened to give jobs to non-union, out-of-state workers. The CCPOA filed a petition for writ of mandate and sought declaratory as well as injunctive relief, arguing (1) that the Governor did not have the statutory authority to declare a person over-crowding emergency; (2) that the contracts to house prisoners in out-of-state institutions violated the civil service mandate of Article VII of the California Constitution.

The trial court ruled in CCPOA’s favor with respect to both arguments. The Court of Appeal reversed, holding (1) that the Emergency Services Act unambiguously permits the Governor to proclaim a state of emergency based upon conditions in state prisons; and (2) that, because of the conditions underlying the state of emergency, the negotiated contracts with out-of-state private prisons are statutorily exempted from the prohibition against contracting out services ordinarily performed by state civil service employees.

Specifically, the Court held: “CDCR is not importing independent contractors to fill staffing shortages; it is exporting prisoners to out-of-state prisons due to a lack of facilities to safely house the prisons within the state… The contracts are for a limited duration… The Legislature has directed that prisons be built or renovated to accommodate more prison beds…Once the needed prisons are built, the state must staff them with civil servants; but until the prison actually exist, there is an urgent and immediate need for services to protect the safety of California citizens, as established in the Governor’s state of emergency proclamation.” See: California Correctional Peace Officers Assn. v. Schwarzenegger, 163 Cal. App. 4th 802 (Cal. Ct. App. 3rd Dist. 2008).

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