COUNTY OF RIVERSIDE et al., Petitioners, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; RIVERSIDE SHERIFF‘S ASSOCIATION, Real Party in Interest.
No. S107126
Supreme Court of California
Apr. 21, 2003.
30 Cal. 4th 278
William C. Katzenstein, County Counsel, Robert M. Pepper, Principal Deputy County Counsel; Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Steven L. Mayer and Kimberly A. Bliss for Petitioners.
JoAnne Speers for League of California Cities as Amicus Curiae on behalf of Petitioners.
Kathleen Bales-Lange, County Counsel (Tulare), Teresa M. Saucedo, Deputy County Counsel; J. Dennis Crabb, County Counsel (Alpine); Bernard C. Barmann, Sr., County Counsel (Kern), Steven L. Sanders, Deputy County Counsel; Alan K. Marks, County Counsel (San Bernardino), Carol A. Greene, Deputy County Counsel; John J. Sansone, County Counsel (San Diego), Diane Bardsley, Assistant County Counsel; and Frank O. Sieh, County Counsel (Ventura) for County of Tulare, County of Alpine, County of Kern, County of San Bernardino, County of San Diego and County of Ventura as Amici Curiae on behalf of Petitioners.
Timothy A. Bittle for Howard Jarvis Taxpayers Association as Amicus Curiae on behalf of Petitioners.
No appearance for Respondent.
Olins, Foerster & Hayes and Dennis J. Hayes for Real Party in Interest.
Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Andrea Lynn Hoch, Chief Assistant Attorney General, Louis R. Mauro, Acting Assistant Attorney General, and Christopher E. Krueger, Deputy Attorney General, as Amici Curiae on behalf of Real Party in Interest.
Silver, Hadden & Silver, Stephen H. Silver; Carroll, Burdick & McDonough and Ronald Yank for Ventura County Deputy Sheriffs’ Association et al., as Amici Curiae on behalf of Real Party in Interest.
Green & Shinee and Helen L. Schwab for the Association for Los Angeles Deputy Sheriff‘s, the Pasadena Police Officers Association, the Torrance Police Officers Association, the Glendale Police Officers Association, the Bell Police Officers Association and the West Covina Police Officers Association as Amici Curiae on behalf of Real Party in Interest.
Lackie & Dammeier, Dieter C. Dammeier and Michael A. Morguess for Los Angeles Police Protective League et al., as Amici Curiae on behalf of Real Party in Interest.
Davis & Reno and Alan C. Davis for Daly City Firefighters, Local 1879, et al., as Amici Curiae on behalf of Real Party in Interest.
OPINION
CHIN, J.—The Legislature recently enacted Senate Bill No. 402 (1999-2000 Reg. Sess.) (Senate Bill 402), which requires counties and other local agencies to submit, under certain circumstances, to binding arbitration of economic issues that arise during negotiations with unions representing firefighters or law enforcement officers. (
We conclude, as did the Court of Appeal, that Senate Bill 402 violates both constitutional provisions. It deprives the county of its authority to provide for the compensation of its employees (§ 1, subd. (b)) and delegates to a private body the power to interfere with county financial affairs and to perform a municipal function (§ 11, subd. (a)).
Riverside County (the County) and the Riverside Sheriff‘s Association (Sheriff‘s Association) engaged in negotiations over compensation for employees of the probation department. In May 2001, they reached an impasse. The Sheriff‘s Association requested that the dispute be submitted to binding arbitration pursuant to
The County filed a petition for a writ of mandate in the Court of Appeal asking that court to order the superior court to set aside its order compelling arbitration and enter a new order denying the motion to compel arbitration. The Court of Appeal granted the petition. It found that Senate Bill 402 violates both section 1, subdivision (b), and section 11, subdivision (a). We granted the Sheriff‘s Association‘s petition for review.
II. DISCUSSION
A. Background
Senate Bill 402, entitled “Arbitration of Firefighter and Law Enforcement Officer Labor Disputes,” added
Senate Bill 402 includes legislative findings. “The Legislature hereby finds and declares that strikes taken by firefighters and law enforcement officers against public employers are a matter of statewide concern, are a
The County argues that the Legislature‘s compelling it to enter into binding arbitration of compensation issues violates section 1, subdivision (b), and section 11, subdivision (a). At the outset, we emphasize that the issue is not whether a county may voluntarily submit compensation issues to arbitration, i.e., whether the county may delegate its own authority, but whether the Legislature may compel a county to submit to arbitration involuntarily. The issue involves the division of authority between the state and the county, not what the county may itself do. (See Adams v. Wolff (1948) 84 Cal.App.2d 435, 442 [the predecessor version of section 11, subdivision (a), “is a restraint on the state Legislature‘s right to interfere with municipal affairs and in no way regulates what may be done by a municipal corporation by charter provision“].)
In deciding whether the Legislature has exceeded its power, we are guided “by well settled rules of constitutional construction. Unlike the federal Constitution, which is a grant of power to Congress, the California Constitution is a limitation or restriction on the powers of the Legislature. [Citations.] Two important consequences flow from this fact. First, the entire law-making authority of the state, except the people‘s right of initiative and referendum, is vested in the Legislature, and that body may exercise any and all legislative powers which are not expressly or by necessary implication denied to it by the Constitution. [Citations.] In other words, ‘we do not look to the Constitution to determine whether the legislature is authorized to do an act, but only to see if it is prohibited.’ [Citation.] [¶] Secondly, all intendments favor the exercise of the Legislature‘s plenary authority: ‘If there is any doubt as to the Legislature‘s power to act in any given case, the doubt should be resolved in favor of the Legislature‘s action. Such restrictions and limitations [imposed by the Constitution] are to be construed strictly, and are not to be extended to include matters not covered by the language used.‘” (Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691; accord, Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180.) On
We discuss the two provisions in the order in which they appear in the California Constitution, mindful, however, that ultimately we must view them together as a whole and not in isolation. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)
B. Section 1, subdivision (b)
Section 1, subdivision (b), provides as relevant: “The governing body [of each county] shall provide for the number, compensation, tenure, and appointment of employees.”2 The County argues that Senate Bill 402 violates this provision by compelling it to submit to binding arbitration of compensation issues. We agree. The constitutional language is quite clear and quite specific: the county, not the state, not someone else, shall provide for the compensation of its employees. Although the language does not expressly limit the power of the Legislature, it does so by “necessary implication.” (Methodist Hosp. of Sacramento v. Saylor, supra, 5 Cal.3d at p. 691.) An express grant of authority to the county necessarily implies the Legislature does not have that authority. But Senate Bill 402 compels the county to enter into mandatory arbitration with unions representing its employees, with the potential result that the arbitration panel determines employee compensation. Senate Bill 402 permits the union to change the county‘s governing board from the body that sets compensation for its employees to just another party in arbitration. It thereby deprives the county of the authority that section 1, subdivision (b), specifically gives to counties.
Any doubt in this regard is dispelled on reviewing the history behind section 1, subdivision (b). (See Estate of Griswold (2001) 25 Cal.4th 904, 911-912.) That provision “was originally enacted in June of 1970, as part of a comprehensive revision of article XI, governing the constitutional prerogatives of and limitations on California cities and counties.” (Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 772.) Its
The Sheriff‘s Association argues that Senate Bill 402 is valid because it involves a matter of “statewide concern.” It cites the legislative findings in support of the bill, including that “strikes taken by firefighters and law enforcement officers against public employers are a matter of statewide concern,” and that the “dispute resolution procedures” the bill establishes “provide the appropriate method for resolving public sector labor disputes that could otherwise lead to strikes by firefighters or law enforcement officers.” (
The Sheriff‘s Association cites two cases that permitted the Legislature to regulate relations between local governmental entities and their employees. In Baggett v. Gates, supra, 32 Cal.3d 128, we held that the Public Safety Officers’ Procedural Bill of Rights Act, which, as its name suggests, provides procedural protections to public safety officers, applies to chartered cities despite the home rule provisions of the current section 5, subdivision (b).4 Citing Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, we said that “general laws seeking to accomplish an objective of statewide concern“—in that case, creating uniform fair labor practices—“may prevail over conflicting local regulations even if they impinge to a limited extent upon some phase of local control.” (Baggett v. Gates, supra, at p. 139, italics added.) We found that “the maintenance of stable employment relations between police officers and their employers is a matter of statewide concern.” (Id. at pp. 139-140.)5 Similarly, in People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, we held that a charter city is subject to the meet-and-confer requirements of the Meyers-Milias-Brown Act (
The Sheriff‘s Association argues, “It is well established that the Legislature may regulate labor relations in the public sector because it is a matter of statewide concern.” We agree that the Legislature may regulate as to matters of statewide concern even if the regulation impinges “to a limited extent” (Baggett v. Gates, supra, 32 Cal.3d at p. 139) on powers the Constitution specifically reserves to counties (§ 1) or charter cities (§ 5). However,
In Sonoma County Organization of Public Employees v. County of Sonoma, supra, 23 Cal.3d at page 317, we noted that section 5 expressly gives charter cities authority over their employees’ compensation. Because of this constitutional mandate, as well as prior authority, we held that “the determination of the wages paid to employees of charter cities as well as charter counties is a matter of local rather than statewide concern.” (Sonoma County Organization of Public Employees v. County of Sonoma, supra, at p. 317.) Accordingly, we found unconstitutional
Sonoma County Organization of Public Employees v. County of Sonoma, supra, 23 Cal.3d 296, and San Francisco Labor Council v. Regents of University of California, supra, 26 Cal.3d 785, control this case. In Baggett v. Gates, supra, 32 Cal.3d at page 137, we distinguished those two cases by noting that the Public Safety Officers’ Procedural Bill of Rights Act, which was limited to providing procedural safeguards, “impinges only minimally on the specific directives of section 5, subdivision (b).” Especially pertinent here, we stressed “that the act does not interfere with the setting of peace officers’ compensation.” (Ibid.) By contrast, Senate Bill 402 does not minimally impinge on a specific constitutional directive; it contravenes that directive entirely. Section 1, subdivision (b), specifically directs that counties have authority over the compensation of their employees; Senate Bill 402 takes that authority away from counties.
Similarly, in People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach, supra, 36 Cal.3d 591, the law in question did not establish a binding process but merely imposed procedural requirements. “While the Legislature established a procedure for resolving disputes regarding wages, hours and other conditions of employment, it did not attempt to establish standards for the wages, hours and other conditions themselves.” (Id. at p. 597.) We found no conflict between the city‘s constitutional powers and the limited state regulation. “Although the [law in issue] encourages binding agreements resulting from the parties’ bargaining, the governing body of the
We have “emphasize[d] that there is a clear distinction between the substance of a public employee labor issue and the procedure by which it is resolved. Thus there is no question that ‘salaries of local employees of a charter city constitute municipal affairs and are not subject to general laws.’ (Sonoma County Organization of Public Employees v. County of Sonoma, supra, 23 Cal.3d at p. 317.) Nevertheless, the process by which the salaries are fixed is obviously a matter of statewide concern and none could, at this late stage, argue that a charter city need not meet and confer concerning its salary structure.” (People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach, supra, 36 Cal.3d at pp. 600-601, fn. 11; accord, Voters for Responsible Retirement v. Board of Supervisors, supra, 8 Cal.4th at p. 781.) Senate Bill 402 is not merely procedural; it is substantive. It permits a body other than the county‘s governing body to establish local salaries.
The Sheriff‘s Association also notes that section 1, subdivision (b), states that the governing body shall “prescribe” the compensation of its members (subject to referendum) but shall “provide” for the compensation of its employees. It argues that the word “‘prescribe’ . . . empower[s] the designated entity to determine the amount of compensation for the designated officials. However, ‘provide’ means to compensate so they are available for use, and not necessarily determine the amount of compensation.” Thus, the Sheriff‘s Association appears to argue that the Legislature, or someone else, may set salaries for county employees, and section 1, subdivision (b), merely empowers the county to pay those salaries. It relies on historical evidence indicating that the Constitution Revision Commission had used the words “prescribe” and “provide” rather than “regulate,” as in the 1933 amendment to former section 5—to differentiate between those matters that may, and those that may not, be delegated. (See County of Madera v. Superior Court (1974) 39 Cal.App.3d 665, 669-670 & fn. 3.) The argument fails.
Whether the county may delegate its own authority is irrelevant here. This county has chosen not to delegate its authority over employee salaries. As noted, the issue involves the distribution of authority between county and state, not what the county itself may do. Use of the words “prescribe” and “provide” did not change the previous law regarding the respective powers of the Legislature and counties. Section 13, adopted at the same time as section 1, subdivision (b), provides: “The provisions of Sections 1(b) (except
The Sheriff‘s Association also cites an unpublished 1992 decision by the Court of Appeal that decided this case that it believes somehow supports its position. Unpublished opinions, however, generally may not be cited or relied on in another action. (Cal. Rules of Court, rule 977(a).) The Sheriff‘s Association invokes an exception to this general rule, claiming the opinion is relevant under the doctrine of collateral estoppel. (Cal. Rules of Court, rule 977(b).) However, for collateral estoppel to apply, the issue necessarily decided in the previous action must be identical to the one in the current action. (County of Santa Clara v. Deputy Sheriffs’ Assn. (1992) 3 Cal.4th 873, 879, fn. 7; People v. Sims (1982) 32 Cal.3d 468, 484.) The issue here is whether Senate Bill 402 is constitutional. That bill, or anything like it, did not even exist in 1992. Although the 1992 opinion contains some language that might be pertinent to this case, and that either party might have cited had the opinion been published, the issue it decided—involving the local referendum power—was quite different than the one here. Accordingly, collateral estoppel does not apply, and the unpublished opinion may not be cited.
For these reasons, we agree with the Court of Appeal: “Senate Bill 402 removes from local jurisdictions, at the option of public safety unions, the authority to set the compensation of public safety employees that is expressly given to them by section 1, subdivision (b). This clearly violates section 1, subdivision (b).”6
Section 11, subdivision (a), provides: “The Legislature may not delegate to a private person or body power to make, control, appropriate, supervise, or interfere with county or municipal corporation improvements, money, or property, or to levy taxes or assessments, or perform municipal functions.” The county argues that in enacting Senate Bill 402, the Legislature has impermissibly delegated to a private body—the arbitration panel—the power to interfere with county money (by potentially requiring the county to pay higher salaries than it chooses) and to perform municipal functions (determining compensation for county employees). Again, we agree. This constitutional provision expressly denies the Legislature the power to act in this way. (Methodist Hosp. of Sacramento v. Saylor, supra, 5 Cal.3d at p. 691.)
The Sheriff‘s Association primarily argues that this delegation of authority to the arbitration panel is permissible because the delegation does not involve a purely municipal function but a matter of statewide concern. In People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, we upheld legislation designed to encourage regional planning in the Lake Tahoe area, including creation of the Tahoe Regional Planning Agency with jurisdiction over the entire multicounty region. The County of El Dorado contended, among other things, that the legislation violated former section 13, the predecessor version of section 11, subdivision (a), by impermissibly delegating authority to a special commission.7 Noting that the Lake Tahoe region crosses county lines, we stated that “our cases have recognized ‘that [former section 13] was intended to prohibit only legislation interfering with purely local matters.‘” (People ex rel. Younger v. County of El Dorado, supra, 5 Cal.3d
grant of review. We see nothing peculiar in the language of either section 1, subdivision (b), or section 11, subdivision (a), that makes the latter but not the former ripe for decision. Indeed, the cases closest on point all involve home rule provisions comparable to those of section 1, subdivision (b). (People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach, supra, 36 Cal.3d 591; Baggett v. Gates, supra, 32 Cal.3d 128; and Sonoma County Organization of Public Employees v. County of Sonoma, supra, 23 Cal.3d 296.) Moreover, because we must view the two constitutional provisions together as a whole and not in isolation, it would be difficult to decide the section 11, subdivision (a), question without reference to section 1, subdivision (b).
It should be apparent that we are deciding only the question before us—the constitutionality of Senate Bill 402.
The Sheriff‘s Association argues that because of “the threat to the public safety caused by work stoppages,” all matters concerning firefighters and peace officers are of statewide concern that the state may delegate as it thinks best. We disagree. Section 5, subdivision (a), gives charter cities general authority over “municipal affairs.” Although the term “municipal affairs” is slightly different than section 11, subdivision (a)‘s term “municipal functions,” we believe that cases interpreting what are “municipal affairs” provide guidance in deciding what are “municipal functions.” We have stated that “the various sections of article XI fail to define municipal affairs,” and, accordingly, the courts must “decide, under the facts of each case, whether the subject matter under discussion is of municipal or statewide concern.” (Professional Fire Fighters, Inc. v. City of Los Angeles, supra, 60 Cal.2d at p. 294; accord, Baggett v. Gates, supra, 32 Cal.3d at p. 136, fn. 10.) By this we meant that article XI contains no global definition of what are municipal affairs (or functions). But it is not entirely silent on the subject, and it is not silent here. “[T]his is not the usual case in which the courts are without constitutional guidance in resolving the question whether a subject of local regulation is a ‘municipal affair’ . . . .” (Ector v. City of Torrance (1973) 10 Cal.3d 129, 132, quoted in Sonoma County Organization of Public Employees v. County of Sonoma, supra, 23 Cal.3d at p. 316.) Section 1, subdivision (b), states that the county shall provide for employee compensation. Viewing, as we must, sections 1, subdivision (b), and 11, subdivision (a), together and not in isolation, they clearly provide that compensating county employees is a municipal function.
In Ector v. City of Torrance, supra, 10 Cal.3d at page 132, we had “the benefit of a specific directive in subdivision (b) of [section 5], which grants ‘plenary authority’ to charter cities to prescribe in their charters the ‘qualifications’ of their employees.” Accordingly, we said that questions involving the qualifications of city employees are municipal affairs with which the Legislature may not interfere. (Id. at p. 133.) Similarly, in Sonoma County Organization of Public Employees v. County of Sonoma, supra, 23 Cal.3d at page 317, we cited section 5‘s reference to compensation of employees to conclude that determining the wages of employees of charter cities and counties is a matter of local rather than statewide concern. Thus, establishing compensation for its employees is for the county to do, and section 11,
under the current provision. (People ex rel. Younger v. County of El Dorado, supra, 5 Cal.3d at p. 500, fn. 22.)
In People ex rel. Younger v. County of El Dorado, supra, 5 Cal.3d 480, the Legislature had established a special commission with jurisdiction over a regional problem. At that time, although no longer, the Constitution prohibited the delegation of authority to a special commission as well as to a private party. (See fn. 7, ante.) We upheld commissions that performed a function that “‘would be impossible for any one of the constituent municipal or suburban units to perform.‘” (People ex rel. Younger v. County of El Dorado, supra, at p. 501.) No single county or other local agency could coordinate planning for the entire Lake Tahoe region. By contrast, a county may easily provide for the compensation of its own employees. Thus, neither the constitutional language nor the rationale of People ex rel. Younger v. County of El Dorado applies here.
As with section 1, subdivision (b), the Sheriff‘s Association argues that the Legislature‘s power to regulate labor relations as to matters of statewide concern permits it to delegate this regulatory authority to an arbitration panel. The argument fails for the same reasons: Senate Bill 402 does not just permit the arbitration panel to impinge minimally on the county‘s authority; it empowers the panel actually to set employee salaries. The Sheriff‘s Association also argues that binding arbitration is a “quid pro quo for the lack of a right to strike.” (See
The Sheriff‘s Association argues that the arbitration panel is a public, not private, body within the meaning of section 11, subdivision (a). We disagree. The statute requires the two parties to select a “person” to be a member of the panel. These two then select “an impartial person with experience in labor and management dispute resolution to act as chairperson of the arbitration panel.” (
Both parties cite decisions from other states in support of their positions. The only cases that are relevant are those that involve statutory and constitutional provisions comparable to California‘s. These cases generally support the County. Section 11, subdivision (a), “was taken from Article III, section 20 of the 1873 Pennsylvania Constitution.” (Howard Jarvis Taxpayers’ Assn. v. Fresno Metropolitan Projects Authority, supra, 40 Cal.App.4th at p. 1377, citing Peppin, Municipal Home Rule in California: IV (1946) 34 Cal.L.Rev. 644, 677.) The Pennsylvania courts originally invalidated binding arbitration legislation under their constitutional provision. (Erie Firefighters Local No. 293 v. Gardner (1962) 406 Pa. 395 [178 A.2d 691].) As the Sheriff‘s Association notes, the Pennsylvania Supreme Court has since upheld binding arbitration. (Harney v. Russo (1969) 435 Pa. 183 [255 A.2d 560].) But that was after the Pennsylvania Constitution was amended specifically to permit such arbitration. (Id. at p. 562; see also City of Washington v. Police Department (1969) 438 Pa. 168, 441-442, fn. 6 [“A
Two other states have also invalidated arbitration provisions under constitutional provisions similar to section 11, subdivision (a). (City of Sioux Falls v. Sioux Falls, etc. (1975) 89 S.D. 455 [234 N.W.2d 35] [binding arbitration]; Salt Lake City v. I.A. of Firefighters, etc. (Utah 1977) 563 P.2d 786 [arbitration that is partially binding, but advisory only as to salary and wage matters].) One court reached a contrary result, but it was unable to achieve a majority opinion. (State v. City of Laramie (Wyo. 1968) 437 P.2d 295 (plur. opn.).) We find the Wyoming case unconvincing. As recognized in City of Sioux Falls v. Sioux Falls, etc., supra, at page 36, the Wyoming court cited Pennsylvania law but failed to note that the Pennsylvania Constitution had been amended to permit binding arbitration. In any event, California‘s constitutional history, including that behind section 1, subdivision (b), distinguishes California from Wyoming. This history, and the two California constitutional provisions, read together, make clear that, in California, the county, not the state or anyone else, sets compensation for its employees.
The Sheriff‘s Association also cites our opinion in Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608. In that case, we interpreted “a provision for arbitration in a city charter affecting public employees.” (Id. at p. 611.) We summarily rejected an argument by an amicus curiae “that the disputed issues are not arbitrable because submission of them to arbitration constitutes an unconstitutional delegation of legislative power. Arbitration of public employment disputes has been held constitutional by state supreme courts in State v. City of Laramie [, supra,] 437 P.2d 295 and City of Warwick v. Warwick Regular Firemen‘s Ass‘n [, supra,] 106 R.I. 109. [¶] To the extent that the arbitrators do not proceed beyond the provisions of the Vallejo charter there is no unlawful delegation of legislative power.” (Id. at p. 622, fn. 13.) That case does not aid the Sheriff‘s Association. As noted, this case involves the division of authority between state and county, not what a local agency may itself choose to do. Our citations to the Wyoming and Rhode Island decisions cannot be read as a blanket endorsement of everything in those cases, including matters irrelevant to the issue before us. Our opinion did not even mention section 1, subdivision (b), or section 11, subdivision (a).
John Donne wrote, “No man is an island, entire of itself.” (Donne, Devotions upon Emergent Occasions, No. 17.) So, too, no county is an island, entire of itself. No doubt almost anything a county does, including determining employee compensation, can have consequences beyond its borders. But this circumstance does not mean this court may eviscerate clear constitutional provisions, or the Legislature may do what the Constitution expressly prohibits it from doing.
The Court of Appeal correctly held that Senate Bill 402 violates sections 1, subdivision (b), and 11, subdivision (a). Accordingly, we affirm the judgment of the Court of Appeal.
Kennard, J., Baxter, J., Werdegar, J., and Brown, J., concurred.
GEORGE, C. J., Concurring.—I agree that the legislation before us is constitutionally impermissible in light of
I
In my view, the issue is not nearly as simple or clear-cut as the majority suggests. Although article XI, section 1(b) gives all counties (including noncharter counties) the authority to control the appointment and compensation of their own employees (prior to 1933, the Legislature exercised that authority over the employees of noncharter counties), other sections of article XI provide that charter counties and charter cities have similar or even broader authority to control the appointment, compensation, and dismissal of their employees. (See
For example, the California Fair Employment and Housing Act (
Once it is recognized that the provisions of article XI, section 1(b) do not preclude the Legislature from promulgating a detailed collective bargaining regime that counties are required to follow in negotiating over compensation with all of their employees—the type of structure set forth in the MMB Act—it seems evident that the question whether the legislation at issue in this case violates article XI, section 1(b), is not as clear as the majority suggests. Although the majority asserts emphatically that “Senate Bill 402 is not merely procedural; it is substantive” (maj. opn., ante, at p. 289), that characterization of the legislation is hardly self-evident. In enacting Senate Bill 402, the Legislature did not undertake itself to set the compensation for county firefighters or police officers, but instead prescribed a dispute resolution procedure that is to be employed when the county and its firefighters or police officers are unable to reach agreement on economic issues that fall within the “meet and confer” requirement of the MMB Act. Furthermore, although the procedure set forth in the act calls for binding arbitration, the particular form of binding arbitration prescribed by the act does not afford the arbitrators free rein to resolve the dispute by setting compensation at whatever level the arbitrators deem appropriate. Instead the act limits the arbitrators’ discretion to choosing between the “last best offer” of each of the parties on each unresolved issue. (
It is true, of course, that the binding arbitration procedure established in Senate Bill 402 impinges directly upon the county‘s general authority to retain the last word on employee compensation. But it is not at all clear that this circumstance is necessarily fatal to the validity of state legislation under article XI, section 1(b). As noted above, the relevant language of this constitutional provision provides that “[t]he governing body [of the county] shall provide for the number, compensation, tenure, and appointment of employees.” (Ibid., italics added.) Thus, under article XI, section 1(b), a county‘s constitutionally granted authority over the compensation of its employees appears no greater than the county‘s authority over the appointment or tenure of its employees. Under the California Fair Employment and Housing Act (FEHA), the Fair Employment and Housing Commission (FEHC) is granted the authority to resolve a claim that a county has engaged in unlawful employment discrimination in the appointment or dismissal process (
For these reasons, I find the question whether Senate Bill 402 violates
II
Moreover, as noted at the outset, there is no need for the majority to resolve the question whether Senate Bill 402 violates article XI, section 1(b), in light of the majority‘s conclusion that Senate Bill 402 violates the entirely distinct provisions of article XI, section 11(a). The majority‘s holding under article XI, section 11(a) clearly is sufficient in itself to resolve this case. And because article XI, section 11(a) is a more focussed provision than article XI, section 1(b), and is directed at the particular “evil or mischief” reflected in Senate Bill 402—which is a measure enacted by the Legislature delegating to a private body the power to perform a municipal function that otherwise would be performed by a county—that constitutional provision unquestionably provides a much narrower ground of decision than the broad and more general provisions of article XI, section 1(b).
I agree with the majority‘s conclusion that in enacting Senate Bill 402 the Legislature violated this provision by delegating to a private body (the arbitration panel) the power to perform a municipal function (establishing the level of compensation for certain county employees). Contrary to the
Accordingly, I agree with the majority that—in view of the wording of
III
By reaching out unnecessarily to rest its decision on the broad provisions of
MORENO, J., Concurring.—I concur in the majority‘s result. I write separately because I believe the majority‘s analysis requires some qualification.
Although this analysis may be useful, it should not be employed inflexibly. Even in the area of local employee compensation, the distinction between matters of local and statewide concern is not necessarily invariable. As we have stated, the “‘constitutional concept of municipal affairs . . . changes with the changing conditions upon which it is to operate. What may at one time have been a matter of local concern may at a later time become a matter of state concern controlled by the general laws of the state.‘” (Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63.) Although
That same question is, I believe, left open in this case. There can be no doubt that satisfactory labor relations between local governments and public safety employees is a matter that may transcend local concerns. We need not decide whether some kind of statewide emergency might constitutionally justify the legislation at issue here. No such emergency has been alleged. Senate Bill No. 402 (1999-2000 Reg. Sess.) appears to be