*1 31,1983 Argued August June affirmed and submitted OREGON, CIRCUIT COURT OF FIFTEENTH DISTRICT, JUDGE, JUDICIAL JUVENILE al, et L. BARRON HONORABLE RICHARD Review, Petitioners on 502-A, LOCAL AFSCME Respondent on Review. 29403)
(CA A23894; SC 669 P2d314 *2 543-a General, Salem, argued the cause Gary,
William F. Solicitor him on the briefs were Dave petitioners on review. With for General, Deputy F. Attorney Long, Stanton Frohnmayer, Attorney General, Londahl, Assistant Jan Peter Attorney and General, Salem. Drummonds, for argued the cause
Henry Eugene, H. Wendy L. on briefs were respondent on review. With him Heid, Drummonds, Durham & Greenwald, Kulongoski, Eugene. Peterson, Campbell, Linde, Justice, Presiding
Before Jones, Roberts, Justices. Carson and ROBERTS, J.
Peterson, J., filed an opinion. concurred and
543-b *4 ROBERTS, J. juvenile court the issue whether presents
This case by Employe the Public regulated are and counselors judges (PECBA), through ORS 243.650 Act Bargaining Collective a con 243.782, prompts inclusion therein and whether their VII, section 1 III, 1 or with article flict article section with that these (amended) We hold Oregon of the Constitution. and find no subject are to PECBA relationships Appeals. the Court of infirmity. affirm constitutional We Commissioners, Board of County The Coos appeal court juvenile judge and a county juvenile (ERB) and Board Employment Relations from an order of the requiring Appeals order the Court of an affirmance of the Local 502-A collectively with AFSCME bargain judge county juvenile (union), representative exclusive and the court judge argue Petitioners counselors. that act conflicts to PECBA because subject are not counselors under ORS statutory judge’s both with the and with 419.604(1) fire court counselors juvenile to hire and article separation powers, requirement the constitutional (amended) of the article section III, section 1 and Constitution. Oregon judges dispute not
Petitioners do public are court counselors employers public are 243.650(17) and in ORS are defined as those terms employes PECBA to application (18) They argue that of PECBA.1 con- creates an irreconcilable employes and their themselves 419.604(1). general as a They view PECBA ORS flict with and assert 419.604(1) specific statute as statute and ORS 243.650(17) provides: “ employer employe public not employe’ but does of a means an ‘Public officials, appointed persons or commissions or to serve on boards include elected ” employes.’ employes’ ‘supervisory persons or ‘confidential who are 243.650(18) provides: “ any political Oregon employer, subdivision State of means the ‘Public districts, special cities, counties, community colleges, therein, including school except quasi-public corporations, districts public mass transit districts and employer’ includes indi- organized to 267.390. ‘Public under ORS 267.010 dealing employer with public in its interests designated to act vidual public employes.”
545 Petitioners fur- prevail. statute should specific that the more to applicable court find PECBA that should this ther assert of of relationship requirement separation the employment this the urge judiciary violated. Petitioners powers will be employment rela- maintain exclusive control of its must the smooth employes its in order to ensure tionship with independence as the justice preserve of administration of government. third 419.604(1) delegation that ORS is a argue
Petitioners provides: That statute “plenary” power. (2) section, judge “Subject to subsection of this the or juvenile any county having population judges of the court a 300,000 appoint designate per- less than shall or one or more good juvenile of the sons of department salary designated by moral character as counselors county, the to serve at the of and at a pleasure by appointing judge approved
the the body county. budget-making ofthe of a judge’s
Petitioners contend that confinement author- ity hire, salaries, imposition to fire and even the under set good duty bargain collectively, PECBA of faith in the is 419.604(1). language antithetical to the Petitioners assert: juvenile signs bargaining agree-
“If the a collective setting ment employes terms and conditions of the court’s * * * pleasure. longer no serve at its If the court fails sign agreement, employes ultimately the the will serve sub- by interpreted ject bargaining agreement to a set arbitration as employes pursuant In the ERB. neither case do the serve 419.604(1); plain pleasure displeasure terms of ORS longer of the court no counts on issue of whether juvenile counselor is to be terminated.” 419.604(1) absolutely.
We do not read ORS
so
When
possible
bring
ever
we strive to construe statutes so as to
about
553, 558,
Lafferty,
McLain
consistency.
257 Or
We do *6 employment authority regulate the court of the Rather, the of the exer PECBA sets manner of its counselors. 419.604(1). requires delegated in ORS It authority cise of collectively, that employes bargain and public employers that concerning “employment in good “meet” and “confer faith” is hours, griev relations”, topics salary, such as which include employment.” of The and other “conditions procedures ance agree to arrive at a written bargaining of is purpose collective relationship employment the terms of the ment which sets Court out in the of pointed are bound. As which both sides “* * * of nothing language in the ORS opinion there is Appeals 419.604(1) with the simultaneous makes it less consistent that public give than statutes of PECBA other operation and establish employees engage or bodies officers at App Or 315. (Emphasis original.) in 61 terms.” 204.635(1) which construed in was The court cited ORS den, 283 OSEA, App 527, 579 P2d rev Or 34 Or Hockema 240 204.601, and ORS ch as (1978), ORS 332.505 and ORS 235 AFSCME, apply held to supra PECBA was in where construed 419.604(1) in com Nothing ORS public employes. of to classes interpretation.2 a different pels 2 8.235, part very a of the Court Reform We note recent amendments to
Act, provides: support analysis. our Section 27a of Bill 2364 House employes in state referred to “All officers and of the court of this who are employes, among trial whom court 8.235 includes 8.235 [ORS subject are and of this Act to collective counselors section 27 are numbered] 243.782, bargaining provided ORS 8.235 extent in ORS 243.650 and 27 be to reduce or eliminate collective section of this Act shall not construed may bargaining rights employes under ORS 243.650 to those officers and have 243.782.” procedures and its legislation attack this Petitioners of “separation of as a violation review administrative for ERB VII, 1 and article III, section article invoking both powers,” This case Oregon Constitution. (amended) of the section to the constitutional attention of importance illustrates terms in the on its own must be addressed provision text. Each it is concerned. which distinct issues with of the context III, provides: Article section into three shall be divided powers of the Government “The Executive, (sic) departments, Legislative, seperate Judicial; administrative, person and no and the including the departments, these under one of official duties charged with another, in except as this any the functions of exercise of shall expresslyprovided.— Constitution “person” is whether a inquiry our provision, this
Under anpther exercising a function department is member of one III, case, specific article In this government. placed ERB, body an administrative 1 issue is whether section III, 1, exercises article section branch within the executive bargain employer judge it when orders judicial function union. the counselors’ collectively representative with the (amended) in relevant provides Article section part: in one be vested power the state shall judicial
“The may from time to courts as supreme such other *7 * * *” by time be created law. task to examine our is invoked it becomes provision this When by legislation government, of other whether some of the courts’ exercise or otherwise, prevents obstructs or has legislature claimed the In this case it is power. judicial by both of a function performance judicial interfered with the manner in (PECBA) the prescribing enacting legislation its counselors must deal with which the dis- authority to resolve ERB the delegating parties. putes between 4,1983. upon signing August that It is a clear statement effective on
This bill became necessary give 419.604(1) supersede the extent ORS PECBA was intended bargaining rights in act. extended the collective effect to the inquiry provisions The initial under both these is the appointment, same: Is salary designation termination and of juvenile “judicial power court counselors an exercise of the purposes of the state” for of article section and is this task a judicial III, “function” under article section 1. needWe engage analysis issue, not in extended of this in for this case 419.604(1), legislature answer lies ORS in which the del egated judiciary. these tasks to the No one has challenged delegation judge of this to the as a violation separation powers. case, For purposes this we assume that judicial these tasks became functions as that term is used in III, article legislature assigned section because the so them. say That is to legislature we assume for this case that the could properly place juvenile judicial court counselors in the branch and also appointment, salary termination and designa tion are tasks a judge properly perform which can to the extent they do not excessively burden or interfere with her If adjudicative legislature functions. had chosen instead to place counselors in the department, example executive for Division, under the Childrens’ assigned Services and then them, judges appointing III, the task of article section would prevent such an arrangement.
Assuming properjudicial these tasks are functions we performs any must determine whether ERB of these in vio- III, lation of article section 1 when it mandates collective bar- gaining judges between and counselors. Petitioners assert that longer it will no be the court that administers Board, counselors but “the Employment Relations for it is the ultimately decides, by ERB which fact-finding conclusive rulemaking, discharge that a certain condition employ- [or appropriate.” is or is not ment] disagree. appoint discharge
We ERB does not counselors, designate nor does it salaries or conditions of employment. may There be occasions when ERB is called upon interpret provisions and enforce the of the collective find bargaining agreement impasse or to facts to resolve an these issues.3 This is not the of a concerning performance personnel affecting ERB is authorized statute to review action non-union employes; employes, involving review and enforce arbitration awards union ORS 240.086; unit, 243.682-.686; appropriate bargaining assign determine the medi 243.712; carry factfinding, agreement, in the event to reach an out ators of failure
549 is, rather, of ERB’s own performance It the judicial function. employers function, public to ensure that administrative relationships compliance with employment their administer agreement. applicable bargaining the collective state laws and the administrative forum for res The existence of an is employment disputes not judicial olution of “courts and Appeals *9 task, adjudication. stitutional condi- petitioners, employer
For unilateral control of employment jus- is essential to the administration tions of They argue: tice in the courts. bargaining agreement
“A collective which contains the except just prohibiting discharge for cause and usual clause providing grievance procedure in the event of conflict for a necessary authority of the trial court to control inhibits If the lacks author- the administration of the court. trial court ity personnel necessary to make the kinds of decisions to system, guarantee management effective of the court it cannot administered, pur- ‘justice openly shall be and without Const, I, chase, delay.’ completely Or Art 10.” § and without crip- a legislation how this will have such We are unable to see does not process. on the PECBA pling adjudication effect personnel make deci- divest the court of to hinder the sions, bargain collectively nor does the mandate to court in the resolution of cases.4 considerably with more upheld legislation
We have
process. In State ex rel Emer
impact
adjudicative
direct
on the
(1982)
357, 640
upheld
Or
P2d 1011
we
Joseph,
ald PUD v.
292
appeal and
imposed
day
a
a 90
deadline between
statute which
Because the court was able to fulfil its
decision in certain cases.
limit
in most cases within the time
judicial responsibility
was not of constitutional
adjudicative process
burden on the
Allen,
175,
P2d 391
In
Acocella v.
288 Or
604
magnitude.
SER
(1979)
in that case the
power
compel attorneys,
court’s
Defender,
defendants was
represent
indigent
Public
State
extent
the decision on the
lodged
restricted
statute which
render with a Public
the Public Defender could
of services
determined that
Defender Committee.
If the Committee
could not
representation the court
provide
office was unable to
burden or undue
do so. The court found no undue
compel it to
respondent
included within
union since
that these counselors have been
We note
employment relations have been
in March 1974 and since that time
union certification
bargaining agreements.
regulated
collective
on
ability
perform judicial
interference
the court’s
func-
tion,
attorneys
other criminal defense
available for the
being
into
to call
service.
Our cases indicate that
institutional
inconve
enough
legislation constitutionally
nience is not
to render
Only an outright
ability
defective.
hindrance of a court’s
adjudicate a
as
case such
occurred in State
rel
v.
ex Bushman
326,
Vandenberg,
337,
(1955)
203 Or
432,
276 P2d
We do not view petitioners PECBA’s mandate to bargain collectively requirement and its the juvenile judge refrain from terms imposing and conditions on relationship in violation of as the contract an interference unconstitutional proportion. The abil courts’ *10 ity to adjudicate is in way cases no reduced the obligation to bargain concerning with counselors employment conditions.
Assertions are made
dispute
that
the event of a
ERB may impose or approve
conditions of
which
handicap
courts,
will
rendering
it incapable of
out
carrying
judicial
business. These
premature.
concerns are
such
No
issues are presented
this
An apprehension
case.
of uncon
stitutional
interference does not suffice to invalidate
stat
City
ute. See
Roseburg Roseburg
City Firefighters, 292 Or
of
295-96,
The Court of is affirmed.
PETERSON, J., concurring. I
Although agree analysis with the and conclusions I majority, separately express write my concern as constitutionality 419.604(1). of ORS It purports delegate judges duty to hire and of juvenile set the salaries coun- question selors. they “employ- No has been are raised whether 243.650(17). ees” of judicial department, as defined in ORS The suggests, however, they record bemay employees the county. 419.604(1). If constitutionality of ORS question
I government personnel department within one charges it may employees who be persons to hire responsibility with the likely is unconstitu- it government, of another notes, this 295 Or at opinion majority tional. The raised. question has not been ERB. As the Court of notes unique to Compensation are to the Workers’ subject their employees to employees subject under that law can be Law. Benefits * * at by agency App an 61 Or 319. determination executive Appeals the reviews the Employment We note also that Board workers. ORS 657.275. In payment unemployed of benefits Bureau and addition, the Commissioner of the of Labor Indus is and fact charged rulemaking, finding tries with conciliation prohibiting by to enforce discrimination laws employers race, color, national religion, gender, on the basis of status, origin, marital criminal record. ORS age juvenile these an through examples 659.010 659.060. In admin may agency touching employ istrative decide a matter on the relationship ment and its coun juvenile between the selors. bargain In this case judge ERB has ordered the is, doing In so it does collectively, comply with PECBA. delegated not itself function stat perform employment negotiate ute to court. It remains with the court to for its counselors. hold that conditions We compels is performing ERB not function when it judicial bargain collectively with its counselors. question legislature may There can be no enact prescribing judicial powers. laws the exercise “The so legislation long rule has evolved that can affect courts] [the unduly substantially as it with the does not burden or interfere Bar, Oregon 279, 285, 550 P2d judiciary.” Sadler v. State Or (1976) 383, 347 citing Morgan, 219 Or P2d Ramstead (1959). activity is statute. regulated Most of court’s is Almost Title I of Revised Statutes devoted Oregon all of Procedure; to this See Rules of Civil subject. Oregon also arbitration, 243.742; 243.722; binding proceedings on ORS initiate ORS conduct unions, employes adopt complaints practices by employers, labor unfair labor elections, rules and monitor 243.766. Code, through 40.010 40.585. The arti- Oregon Evidence challenged legislation, 1 concern is whether the cle section PECBA, in a manner which judiciary here interferes with the con- performance obstructs the of its irreducible prevents