PACIFIC LEGAL FOUNDATION v. BROWN (1980)

In two separate proceedings, petitioners seek peremptory writs of mandate to compel the respondents State Personnel Board, Public Employment Relations Board, the Governor and the Controller to perform their statutory and constitutional duties without regard to the recently enacted State Employer-Employee Relations Act (SEERA or “the act”). California State Employees' Association, International Union of Operating Engineers and Service Employees International Union, Local 411 have intervened in both proceedings on the side of the respondents.

The petitioners in No. 18364 are the Pacific Legal Foundation (PLF). and Public Employees Service Association (PESA). PLF is a nonprofit, tax-exempt, public interest law organization incorporated under the laws of California which has as its primary purpose to litigate in areas of great public significance. PESA is an employee organization within the meaning of Government Code section 3513, subdivision (a). (All further statutory references are to sections of the Government Code.) Most of the members of PESA are active employees of the State of California. PESA currently extends important services to its members through approved state payroll deductions and provides representation for state employee members in their employment relationships with the state. PESA alleges that the diffusion of its membership throughout widely diverse classes of state employees will effectively preclude it from obtaining the status of a recognized employee organization under SEERA (s 3513, subd. (b)); as a consequence its viability as an organization capable of continued service to its members is threatened.

The petitioner in No. 18412 is the People of the State of California by and through the Attorney General of California.

These proceedings attack the constitutionality of SEERA and thus present legal issues of great public importance which are a proper subject for the exercise of our original jurisdiction under article VI, section 10, of the California Constitution. (Rule 56(a), Cal.Rules of Court; Coan v. State of California (1974) 11 Cal.3d 286, 291, 113 Cal.Rptr. 187, 520 P.2d 1003; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 219, 149 Cal.Rptr. 239, 583 P.2d 1281.) Moreover, the named respondents are under a constitutional duty to implement and enforce the provisions of SEERA unless and until an appellate court declares the statute unconstitutional. (Art. III, s 3.5, Cal.Const.) Accordingly, in response to each of the two petitions, we have issued an alternative writ. Because of the identity of the issues presented and the relief sought, we have consolidated these two original proceedings for decision.

The controversy centers on whether SEERA (s 3512 et seq.), which provides collective bargaining for state civil service employees concerning wages, hours and other terms and conditions of employment, conflicts with constitutionally created elements of the state civil service system (Cal.Const., art. VII; formerly art. XXIV). More narrowly, the pivotal questions are whether there is a preeminent constitutional role for the State Personnel Board (SPB) in setting salaries of civil service employees and if so, whether SEERA on its face infringes thereon.

As we shall explain, the constitutional jurisdiction of the SPB to prescribe classifications for civil service positions is integrally bound up with the power to set salaries; the authority to classify and to set salaries is essential to the constitutional obligation of the SPB to insure like pay for like work. Thus SEERA's assignment of the salary-setting function to the bargaining process between the Governor and the exclusive representatives of employee bargaining units on its face conflicts with the constitutional power of the SPB to set salaries.

Furthermore, we determine that the power to reinstate state employees conferred upon the Public Employment Relations Board (PERB) by the act as an adjunct to PERB's exclusive jurisdiction to hear and determine charges of unfair practices (s 3514.5) on its face usurps the SPB's constitutionally exclusive power over the discipline of civil service employees.

Finally, we decide that the right to fix salaries and wages through collective bargaining so suffuses the entire statutory scheme and dominates its objectives that severance of that unconstitutional feature is impossible and the entire act must therefore fall.

I.

At the threshold of these proceedings the contention is made that there is no justiciable controversy between the parties.

Petitioners allege that the constitutional right of the People to an efficient orderly civil service system based on merit is jeopardized by the implementation of SEERA. Respondents acknowledge substantial efforts requiring expenditure of a great amount of time and money have been and continue to be undertaken to implement SEERA. The assertion in this context that SEERA conflicts facially with article VII of the California Constitution presents an immediate, definite and concrete controversy in which the issues are sufficiently congealed for judicial resolution. (St. John v. Superior Court (1978) 87 Cal.App.3d 30, 35, 150 Cal.Rptr. 697.) The controversy framed by the pleadings is ripe for determination.

Closely related to the claimed lack of justiciability is the contention that the Attorney General has no standing to prosecute this proceeding because of a conflict of interest. The Attorney General clearly has standing to seek a judicial determination of the legality of a statute purportedly in derogation of the Constitution where substantial efforts have been and continue to be in process to implement the statute.

As chief law officer of the state, the Attorney General has standing to represent the People where an important public interest is directly affected by the outcome of a concrete controversy. “ ‘In the absence of any legislative restriction, (the Attorney General) has the power to file any civil action or proceeding directly involving the rights and interests of the state, or which he deems necessary for the enforcement of the laws of the state, the preservation of order, and the protection of public rights and interests.’ ” (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 14-15, 112 Cal.Rptr. 786, 796, 520 P.2d 10, 20; People ex rel. Lynch v. San Diego Unified School Dist. (1971) 19 Cal.App.3d 252, 258, 96 Cal.Rptr. 658.) This power may rise to the level of a duty where the Attorney General perceives a beneficial right in the People to compel state officers and agencies to perform their constitutional duties. (See People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 491, 96 Cal.Rptr. 553, 487 P.2d 1193.)

The Attorney General serves in a dual capacity. He is both protector of the public interest in the name of the People and legal counsel for agencies of the state government. (s 12512.) Paramount is his duty to represent the public interest. (D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 15, 112 Cal.Rptr. 786, 520 P.2d 10.) It is for the Attorney General to determine whether the public interest coincides with the obligation of a state agency to uphold and enforce a statute in the face of a constitutional attack. (See art. III, s 3, Cal.Const.) Moreover, as we have pointed out, if the Attorney General discerns constitutional infirmity in a statute, he may himself initiate proceedings to resolve the seeming conflict because of his primary obligation to represent the public interest. If the Attorney General perceives a conflict between his obligations to his statutory clients and the public interest, he may consent to employment of substitute counsel by the state client (D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at pp. 14-15, 112 Cal.Rptr. 786, 520 P.2d 10; s 11040). That is precisely what has occurred here. We must defer to the discretion of the Attorney General as an elected constitutional officer in the resolution of such conflicts. Accordingly there is no bar to the Attorney General bringing suit against statutory clients in the name of the People of the State of California.^[FN1]

II-A.

In 1913, California's first civil service system was created by statute to eliminate abuses in the political spoils system and to establish instead a nonpartisan system of state employment based upon merit. Among the Civil Service Commission's duties were the classification and grading of positions “ . . . within each class with respect to salaries, to the end that like salaries shall be paid for like duties. . . . ” (Stats.1913, ch. 590, s 5.)

In 1927, the commission was given additional powers regarding salary setting; an amendment specified that appointing powers authorized by law to fix the compensation of civil service employees must do so in accordance with the commission's classification and salary schedules subject to the approval of the commission. (Stats.1927, ch. 719, s 5.)

In 1934, the state civil service was elevated to constitutional status (art. XXIV, Cal.Const.) By initiative, the voters of the state created the nonpartisan, politically insulated, five-member State Personnel Board as successor to the previous statutory commission. The Constitution vested the SPB with “all of the powers, duties, purposes, functions, and jurisdiction” in administering and enforcing “any and all other laws relating to the state civil service . . . .” (Art. XXIV, s 3, Cal.Const.) Constitutionally delineated powers and duties of the SPB included “ . . . the creation and adjustment of classifications and grades, and dismissals, demotions, suspensions and other punitive action . . . ” for state civil service employees. (Art. XXIV, s 2, subd. (c), Cal.Const.)

In 1937, the Legislature adopted the State Civil Service Act implementing a comprehensive state personnel system and directing the SPB to fix salary ranges “for each class of positions in the State civil service.” (Stats.1937, ch. 753, s 70; see s 18850.) The new law emphasized the Legislature's intent not to add to or detract from the constitutional powers, duties and jurisdiction of the SPB. (Stats.1937, ch. 753, s 243.)

In 1970, article XXIV of the Constitution was revised primarily as a product of the Constitution Revision Commission's task of updating and eliminating unnecessary language from the California Constitution. The powers and duties of the SPB delineated in the original sections 2 and 3 (discussed above) were restated and consolidated in new section 3, subdivision (a): “The board shall enforce the civil service statutes and . . . shall prescribe probationary periods and classifications, adopt other rules authorized by statute, and review disciplinary actions.”

The overall intent of the constitutional provisions respecting the civil service remained unchanged, permanent appointment and promotions “shall be made under a general system based on merit ascertained by competitive examination.” (Art. XXIV, s 1, subd. (b), Cal.Const.)

In 1976, article XXIV was merely renumbered article VII without revision. Article VII does not expressly confer upon the SPB the power to set salary ranges, although original article XXIV referred to “the creation and adjustment of classifications and grades, . . .” (Art. XXIV, s 2, subd. (c).)

SEERA is the culmination of a trend to extend collective bargaining rights to government workers. In 1961, the original Brown Act provided a uniform basis for “recognizing the right of public employees to join organizations of their own choice and be represented by such organizations in their employment relationships . . . .” (Stats.1961, ch. 1964, s 1; see also Ball v. City Council (1967) 252 Cal.App.2d 136, 142, 60 Cal.Rptr. 139.) Subsequent legislation enlarged the collective bargaining rights of employees at the local government level (Meyers-Milias-Brown Act, ss 3500-3510) and of public school district employees (ss 3540-3549.3). However, the rights of state civil service employees remained limited to nonbinding meet-and-confer sessions as originally provided under the Brown Act (ss 3525-3536).

SEERA substantially increases the rights of state civil service employees to bargain collectively. Under its provisions, the Governor, not the affected state department or agency, is designated as the “state employer” for purposes of bargaining and meeting and conferring in good faith. (s 3513, subd. (i).) The Governor is required to meet and confer in good faith with respect to wages and hours and other terms and conditions of employment with the exclusive representatives of civil service employees he is obliged to “endeavor” to reach agreement on matters within the scope of representation (s 3517). Agreements are to be reduced to a written memorandum of understanding (s 3517.5). The memorandum of understanding takes precedence over any of 122 designated sections of the Government Code, relating generally to salaries, compensation, and other terms and conditions of state employment, with which it is in conflict. Where a memorandum of understanding conflicts with any of another nine specified provisions of the Government Code relating generally to layoffs, the terms of the memorandum control unless the SPB finds they are inconsistent with merit employment principles established by the Constitution (s 3517.6). If a provision of a memorandum of understanding requires the expenditure of funds or other legislative action for its implementation, such provision shall not become effective unless approved by the Legislature (ss 3513, subd. (i); 3517.6). Only a “recognized employee organization” may enter into a memorandum of understanding with the Governor (s 3515.5).

The former Educational Employment Relations Board has been renamed the Public Employment Relations Board. (s 3513, subd. (g).) PERB is charged with determining appropriate “bargaining units” among state employees (ss 3513, subd. (g); 3521; 3541.3, subd. (a)), conducting elections to select organizations to act as exclusive representative of the employees in a bargaining unit (ss 3513, subd. (g); 3541.3, subd. (c); 3520.5), and in disputed cases, determining the exclusive representative of a particular bargaining unit (s 3520.5). PERB is authorized to determine in disputed cases whether a particular item is within the scope of representation (ss 3513, subd. (g); 3516; 3541.3, subd. (b)), and has exclusive jurisdiction to investigate, hear and decide charges of “unfair practices” under the act and to order remedial action including reinstatement of employees with or without back pay (s 3514.5).

SEERA contains a statement of purpose which purports to disavow any conflict with the constitutional provisions relating to the civil service: “Nothing in this chapter shall be construed to contravene the spirit or intent of the merit principle of state employment.” (s 3512.)

SEERA and related amendments were enacted in 1977 and 1978 respectively (Stats.1977, ch. 1159; Stats.1978, chs. 371, 776). PERB published final rules and regulations implementing its responsibilities under SEERA, and proceedings are under way to determine and recognize appropriate bargaining units (Cal.Admin.Code, tit. 8, s 40000 et seq.). Deferring to the imminent implementation of the act, the SPB limited the scope of customary survey and hearing procedures in setting salaries for the 1979-1980 fiscal year. Before full scale commitment to SEERA, first Pacific Legal Foundation and Public Employees Service Association and then the Attorney General have asked us to determine the constitutional validity of the act.

II-B.

From its inception as a constitutional agency the SPB has been charged with prescribing classifications for civil service positions and enforcing the civil service statutes. The main body of the civil service statutes is location in title 2, division 5, part 2 of the Government Code commencing with section 18500. That section contains a broad declaration of purpose. “As though to demonstrate the preeminent and predominant role of the like-pay-for-like-work principle, the Legislature has listed it among the cardinal objectives of the Civil Service Act. Government Code section 18500 proclaims in part: ‘It is the purpose of this part: . . . (P ) (c) To provide a comprehensive personnel system for the state civil service, wherein: (P ) (1) Positions involving comparable duties and responsibilities are similarly classified and compensated . . . .’ ” (State Trial Attorneys' Assn. v. State of California (1976) 63 Cal.App.3d 298, 304, 133 Cal.Rptr. 712, 716.) Accordingly, civil service positions are allocated to a single class where they impose like duties and responsibilities, require similar qualifications for appointment and where “The same schedule of compensation can be made to apply with equity.” (s 18801.)

Section 18850 provides in part: “The (SPB) shall establish and adjust salary ranges for each class of position in the state civil service. The salary range shall be based on the principle that like salaries shall be paid for comparable duties and responsibilities. In establishing or changing such ranges consideration shall be given to the prevailing rates for comparable service in other public employment and in private business. The (SPB) shall make no adjustments which require expenditures in excess of existing appropriations which may be used for salary increase purposes. . . .”^[FN2]

The process of classification of civil service positions was explicitly related to the principle of like pay for like work in California's first civil service statute. It was there provided that the Civil Service Commission classify positions “in accordance with the duties attached to such positions” and “grade all positions within each class with respect to salaries, to the end that like salaries shall be paid for like duties.” (Stats.1913, ch. 590, s 5.) Although the principle of like pay for like work was not expressly carried over into the Constitution, it remains a part of the statutes which article XXIV directed the SPB to “administer and enforce.” Except for certain modifications not pertinent here, later amendments to article XXIV have not altered its substantive effect but have merely simplified the language and deleted the anachronistic reference to the statutes of 1913. (Fair Political Practices Com. v. State Personnel Bd. (1978) 77 Cal.App.3d 52, 57-58, 143 Cal.Rptr. 393.)

Our review of the evolution and history of the relevant constitutional and statutory provisions satisfies us that the responsibility to classify civil service positions conferred by the Constitution upon the SPB is inseparable from the responsibility to insure like pay for like work. The latter is thus as much a constitutional command upon the SPB as the former. The uniform application of equal compensation for commensurate duties and responsibilities is essential to an employment system based on classification according to merit. Indeed, as we have demonstrated, the principle of like pay for like work permeates the entire civil service statutes, the enforcement of which the Constitution delegates exclusively to the SPB (art. VII, s 3, subd. (a)). Therefore we conclude that the authority to fix salaries of civil service employees necessarily reposes in the SPB alone as an integral part of its constitutional power to classify positions. We further conclude that the exclusive exercise of these functions by the politically insulated SPB is essential to the maintenance of “a general system based on merit” as contemplated by article VII, section 1 of the Constitution. (Fair Political Practices Com. v. State Personnel Bd., supra, 77 Cal.App.3d at p. 57, 143 Cal.Rptr. 393.) It is in the assignment of the salary-setting function to the bargaining process between the Governor and employee representatives that SEERA comes into fatal conflict with the Constitution.

Recently this court addressed the identical issue and arrived at the identical conclusion. In Fair Political Practices Com. v. State Personnel Bd., supra, 77 Cal.App.3d at page 56, 143 Cal.Rptr. at page 396, we held: “The power of the State Personnel Board to fix classifications carries with that power the obligation to fix uniform salaries for the classifications established. Such power is bestowed by the Constitution and implemented by the Civil Service Act. Such power may not be taken from the Board and vested with any appointing power by a legislative pronouncement; that may only be accompanied (sic ) by an amendment to the Constitution approved by the people.” (See Stephens v. Clark (1940) 16 Cal.2d 490, 492-493, 106 P.2d 674; Snow v. Board of Administration (1978) 87 Cal.App.3d 484, 490, 151 Cal.Rptr. 127.

Despite respondents' earnest efforts to distinguish the holding or diminish the authority of Fair Political Practices Com., we are unpersuaded that it is either inapposite or incorrect.

Respondents recite statutory provisions affecting state employees which are administered by agencies other than the SPB, attempting thereby to demonstrate a lack of exclusive jurisdiction in the SPB over the enforcement of civil service laws.^[FN3]

Petitioners counter by pointing out, correctly we think, that the laws administered by other agencies than the SPB apply uniformly within a class or to all classes of employees. Thus the possibility of discriminatory treatment in terms of classification is remote if not nonexistent, and such laws therefore do not impact the merit system of employment. Through its authority over classifications and fixing of pay, the SPB retains the power to insure that disparate benefits are not bestowed upon selected employees without regard to merit.

Similarly unpersuasive is respondents' assertion that the Legislature alone has exclusive jurisdiction to establish salaries with the SPB relegated to a statutorily derived secondary role in which it serves merely as a collector of data upon which to base salary recommendations to the Legislature. The contention overlooks the essential fact that legislative appropriations for salaries are dispensed in a lump sum. While it is true that the SPB cannot “make . . . adjustments (to salary ranges) which require expenditures in excess of existing appropriations which may be used for salary increase purposes” (s 18850), within that limitation the SPB still retains exclusive power to differentiate salaries equitably according to merit classifications in order to foster the “preeminent and predominant role of the like-pay-for-like-work principle, . . .” (State Trial Attorneys' Assn. v. State of California, supra, 63 Cal.App.3d at p. 304, 133 Cal.Rptr. at p. 716.)

Finally, PERB, joined by the Governor, contends the source of its authority derives from the Constitution and therefore is at least of equal dignity with the powers of the SPB. PERB claims under article XIV, section 1 of the California Constitution which grants the Legislature the authority to “provide for minimum wages and for the general welfare of employees and for those purposes (the Legislature) may confer on a commission legislative, executive, and judicial powers.”

Article XIV concerns minimum wages for all workers within the state. Unlike article VII, the civil service article, it has no specific application to state employees as distinguished from all workers generally. It is a fundamental rule of construction that a specific provision controls a more general one. (People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 637, 268 P.2d 723.) Thus assuming, arguendo, the argument has some abstract validity, article XIV does not afford PERB a source of constitutional power coextensive with that of the SPB. PERB's claim of constitutional authority under the general police power fails for the same reason.

II-C.

The SPB has exclusive authority to “review disciplinary actions” involving civil service employees. (Cal.Const., art. VII, s 3.) SEERA confers upon PERB the authority to investigate, hear and decide charges of unfair practices under the act (s 3514.5) and in conjunction therewith the exclusive jurisdiction to effectuate remedies therefor, including the “reinstatement of employees with or without back pay, . . .” (s 3514, subd. (c).) Under the act an employee in the classified service who claims that the imposition of discipline arose out of or itself constituted an unfair practice would thus have recourse to PERB to resolve the charge of unfair practice and effectuate a remedy therefor. The conflict between the constitutional powers of the SPB to review disciplinary actions and the statutory powers of PERB to resolve charges of unfair practices is immediate and manifest upon the face of the act. (See Boren v. State Personnel Board (1951) 37 Cal.2d 634, 638, 234 P.2d 981; Payne v. State Personnel Board (1958) 162 Cal.App.2d 679, 328 P.2d 849.) The statute must necessarily yield to the Constitution.

II-D.

Petitioners' challenge to the act is comprehensive, extending beyond contentions relating to salary-setting and unfair practices jurisdiction.

SEERA requires collective bargaining not only over wages but also with respect to “hours, and other terms and conditions of employment, . . .” (s 3516.) Petitioners allege that the scope of representation is so broad as virtually to guarantee conflict with other constitutional powers of the SPB in addition to its salary-setting and reinstatement functions. However, the statute on its face does not compel the conclusion that those to whom its administration is confided would so implement it as to infringe upon such further powers. The issue therefore is a hypothetical one which we need not and therefore do not address. (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d at pp. 239-242, 149 Cal.Rptr. 239, 583 P.2d 1281.)

A similar question is posed by the authority conferred by the act upon PERB to determine appropriate bargaining units among civil service employees. (ss 3513, subd. (g); 3541.3, subd. (a); 3521.) Petitioners contend that such uniting determinations will inevitably conflict with the SPB's constitutional power to prescribe classifications for the civil service. Although the possibility does indeed exist, such an assumption at this juncture is necessarily speculative and thus an inadequate foundation upon which to render a judgment of unconstitutionality (ibid.).

II-E.

Respondent SPB acknowledges the inherent relationship between merit classifications and salary ranges and recognizes that “there are ways in which collective bargaining over salaries could infringe the merit principle.” The SPB then announces that it intends to promulgate “definitive guidelines” to enable the SPB to “retain control over those aspects of salary setting” which implicate “the merit principle.” SPB urges this court to uphold the act^[FN4] and to “make clear that the Governor must observe the limits established by the (SPB) in its guidelines.”

We are unable to accommodate SPB's request because we must take the act as we find it. The indubitable fact remains that SEERA provides for collective bargaining agreements over wages which will supersede SPB's power to fix salaries (ss 3517.6; 18850). Petitioners' more pejorative characterization charges that “under SEERA the like-pay-for-like-work principle is left to the political whim of the bargaining table.” If we were to superimpose upon the comprehensive legislative scheme represented by SEERA the requirement that the Governor subordinate his statutory responsibilities thereunder to the administrative fiat of SPB, “ ‘it would in no sense be interpreting the statute as written, but would be rewriting the statute in accord with a presumed legislative intent. That is a legislative and not a judicial function.’ ” (Blair v. Pitchess (1971) 5 Cal.3d 258, 282, 96 Cal.Rptr. 42, 59, 486 P.2d 1242, 1259, quoting from Seaboard Acceptance Corp. v. Shay (1931) 214 Cal. 361, 369, 5 P.2d 882; In re King (1970) 3 Cal.3d 226, 237, 90 Cal.Rptr. 15, 474 P.2d 983.)

SEERA contains the usual severability clause by which the integrity of the remainder is sought to be insulated from a finding of partial invalidity. (Stats.1977, ch. 1159, s 11.) We conclude, however, that the act cannot be salvaged by its severance clause. “Such a clause, and the ability to mechanically sever the unconstitutional portions of a statute will ordinarily allow severance, but that process is not compelled unless the remainder of the statute ‘is complete in itself and would have been adopted by the legislative body had the latter foreseen the partial invalidation of the statute.’ (Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315, 330-331, 118 Cal.Rptr. 637, 650, 530 P.2d 605, 618. . . .)” (Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 320, 152 Cal.Rptr. 903, 917, 591 P.2d 1, 14.)

The scope of representation under the act “shall be limited to wages, hours, and other terms and conditions of employment, . . .” (s 3516.) Wages are by far the most important consideration for which an employee contracts to provide his services. Through its supersession provision (s 3517.6) the act purports to submit all aspects of compensation to the bargaining process. While the other areas subject to bargaining are not unimportant, a mechanism for collective bargaining that excludes compensation from the negotiating process is an anomaly. Had the Legislature recognized the constitutional immunity of wages and salaries to the collective bargaining process, we do not believe it would nevertheless have enacted the truncated remainder of SEERA.

We are acutely aware of the respect which we must accord an act of the Legislature. We do not lightly regard our obligation to defer to a coordinate and equal branch of government operating within its constitutional domain. We of course acknowledge that the entire lawmaking 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. (Fitts v. Superior Court (1936) 6 Cal.2d 230, 234, 57 P.2d 510.) Furthermore, we recognize that in case of “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.” (Collins v. Riley (1944) 24 Cal.2d 912, 916, 152 P.2d 169, 171.) Finally, we appreciate our duty to accept the Legislature's construction of its constitutional limitations implied by its enactment of a statute “unless it can be said of the statute that it positively and certainly is opposed to the constitution.” (San Francisco v. Industrial Acc. Com. (1920) 183 Cal. 273, 279, 191 P. 26, 28.)

Mindful of the foregoing strictures, we are nonetheless compelled to the conclusion that the act is constitutionally infirm in the particulars heretofore identified and, because the offending parts relating to wages and salaries are not susceptible to severability, the entire act must fall. (In re Portnoy (1942) 21 Cal.2d 237, 242, 131 P.2d 1.)

Ever since the 1913 statutory reform, the vitality of the California merit system has been intimately linked with the principle of like pay for like work. Such constitutionally enshrined precedent is formidable in contrast to the will of a transient, politically sensitive legislative majority in enacting SEERA. (See City of Los Angeles v. Public Utilities Com. (1975) 15 Cal.3d 680, 696, 125 Cal.Rptr. 779, 542 P.2d 1371.) The 1934 constitutional provision and subsequent amendments thereto clearly manifest “a purpose of centralizing civil service administration in the State Personnel Board as an agency immune from . . . external and internal pressures . . . . (P) The civil service system and its import, established by constitutional amendment, may not now or in the future be diluted or derogated by legislative enactment.” (Fair Political Practices Com. v. State Personnel Bd., supra, 77 Cal.App.3d at p. 58, 143 Cal.Rptr. at p. 397.) Regardless of the salutary motives of the legislative majority in enacting SEERA (see s 3512), any alteration of the import of article VII requires a constitutional mandate by the People.

In view of the conclusions expressed herein, we do not reach the petitioners' other contentions.

Let a peremptory writ of mandate issue directing the named respondents to perform their statutory and constitutional duties required by them to be performed without regard to the provisions of the State Employer-Employee Relations Act (s 3512 et seq.). The alternative writs having performed their function are discharged. Petitioners shall recover their costs.

I dissent. Despite the absence of any express reference in article VII to the salary-setting power, the majority conclude that under article VII, section 3, subdivision (a), the power to set salaries must necessarily repose with the State Personnel Board (SPB). I disagree. A reading of the Constitution, the history and purpose of civil service, and the law, decisional as well as administrative, belie such a reading.

The majority correctly identify the pivotal issue: is the setting of salaries a role constitutionally placed in the exclusive domain of the SPB? They answer the question in the affirmative. Accordingly, they conclude that the State Employer-Employee Relations Act (SEERA) (Gov. Code, s 3512 et seq.) is facially unconstitutional because it transfers the salary-setting function from the SPB to the Governor.

Neither article VII nor its predecessor, article XXIV, intend to nor did confer upon the SPB the sweeping and unrevisable powers that the majority grant it. In my view, article VII establishes and constitutionalizes the merit principle of public employment: classification, examination, selection, promotion, and discipline are to be conducted on the basis of individual merit. The SPB's constitutional jurisdiction extends only to these expressly enumerated areas, and not to all others, such as salaries, that may relate to state employment.

The Legislature has carefully crafted a statute (SEERA) which extends to state employees the right to negotiate for salaries and working conditions; this legislation was evolved from several statutes during a period of 20 years. It is an attempt to face todays employer-employee bargaining issues realistically. It provides the state employees no more than local public employees (city and county) already enjoy. Complicated statutes may give rise to constitutional issues when applied; however, I cannot conclude at this early juncture that collective bargaining as to salaries is on its face necessarily incompatible with the merit principle.

1. Presumption of Constitutionality

SEERA carries with it a presumption of constitutionality.

First, where the Legislature has enacted a law in light of a particular constitutional provision, the Legislature's construction of the constitutional limitations is particularly entitled to deference by the courts. (San Francisco v. Industrial Acc. Com. (1920) 183 Cal. 273, 279, 191 P. 26.) The purpose of the act is expressed in its preamble (s 3512) as is its relation to the merit principle. It reads: “It is the purpose of this chapter to promote full communication between the state and its employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between the state and public employee organizations. It is also the purpose of this chapter to promote the improvement of personnel management and employer-employee relations within the State of California by providing a uniform basis for recognizing the right of state employees to join organizations of their own choosing and be represented by such organizations in their employment relations with the state. (P) Nothing in this chapter shall be construed to contravene the spirit or intent of the merit principle in state employment.” (Emphasis added.) The “clean-up” legislation enacted in 1978 (Stats. 1978, ch. 776, s 5), aimed at eliminating potential areas of conflict with the merit principle present in the original version of SEERA as well as the quoted preamble, make it apparent that the Legislature gave considerable attention to avoiding conflict with article VII.

Second, the Legislature has the power to act unless the act is expressly proscribed by the Constitution. The federal Constitution, we know, is a grant of power to Congress. The California Constitution, on the other hand, is a limitation or restriction on the powers of the Legislature. (Los Angeles Met. Transit Authority v. Public Util. Com. (1963) 59 Cal.2d 863, 868, 31 Cal.Rptr. 463, 382 P.2d 583; People v. Coleman (1854) 4 Cal. 46, 49, overruled on other grounds in People v. McCreery (1868) 34 Cal. 432, 458.) Thus, the Legislature may exercise all legislative powers which are not expressly or by necessary implication denied to it by the Constitution. (Dean v. Kuchel (1951) 37 Cal.2d 97, 104, 230 P.2d 811; People v. Judge of the Twelfth District (1861) 17 Cal. 547, 552.) Our Supreme Court has observed that “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.” (Fitts v. Superior Court (1936) 6 Cal.2d 230, 234, 57 P.2d 510, 512.)

Finally, we are bound by basic principles of constitutional construction to preserve the constitutionality of the legislative act if at all possible. (See Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 305, 138 Cal.Rptr. 53, 562 P.2d 1302.) “(A)ll intendments favor the exercise of the Legislature's plenary authority . . . .” (Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691, 97 Cal.Rptr. 1, 5, 488 P.2d 161, 165.) It is with these mandates of legislative construction that I turn to the merits of the petitions.^[FN1]

2. SEERA Is Not Unconstitutional On Its Face

The majority, I believe, overread the language of article VII. In according the SPB exclusive jurisdiction over all matters relating to state employment, the majority rely upon a single phrase in section 3, subdivision (a): “The board shall enforce the civil service statutes . . . .” (Art. VII, s 3, subd. (a); see also art. XXIV, s 3, subd. (a).) I am in agreement with the majority that this language reflects the framers' intent that there be a centralized personnel agency with responsibility over designated areas. However, the majority's construction to the effect that this phrase vests the SPB with exclusive jurisdiction over all laws relating to state employment proves too much.

First, the scope of the SPB's exclusive jurisdiction to enforce the “civil service statutes” is revealed by the wording of article VII itself. Section 1, subdivision (b) provides that “(i)n the civil service permanent appointment and promotion shall be made under a general system based on merit ascertained by competitive examination.” (Emphasis added.) Section 3, subdivision (a) expressly requires the SPB to “prescribe probationary periods and classifications, . . . and review disciplinary actions.” (Emphasis added.) Respondent SPB advances that these expressly enumerated functions classification, examination, selection, promotion, and discipline are the precise areas which are central to the maintenance of an employment system based upon merit. As the expert body entrusted with the administration of the merit system, its judgment is entitled to great weight. (Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 411, 128 Cal.Rptr. 183, 546 P.2d 687.) The board concludes that the framers intended that the SPB have exclusive jurisdiction over these expressly enumerated functions, but not over any and all civil service matters, pursuant to its general charge to enforce the “civil service statutes.” I find such a reading eminently reasonable.

Second, the more narrow reading accords with the history and purpose of article VII. The 1934 ballot argument in support of article XXIV, the predecessor to present article VII, articulated the narrow purpose for the proposed constitutional amendment: “The sole aim of the act is to prohibit appointments and promotion in State service except on the basis of merit, efficiency and fitness ascertained by competitive examination. Appointments of inefficient employees for political reasons are thereby prohibited, thus eliminating the ‘spoils system’ from State employment.” (Proposed Amendments to Constitution, Propositions and Proposed Laws, Cal. Secretary of State (1934) p. 12.)

The California Supreme Court in a case contemporaneous with the enactment of article XXIV recognized the narrow sense of the amendment: “The constitutional amendment of 1934 and statutes relating to the civil service, taken as a whole, provide a comprehensive plan for the selection of state employees after examination to ascertain their qualifications for particular positions.” (In re Means (1939) 14 Cal.2d 254, 257, 93 P.2d 105, 107.) More recently, this court as well has recognized the limited purpose of article XXIV. (See California State Employees' Assn. v. Williams (1970) 7 Cal.App.3d 390, 398, 86 Cal.Rptr. 305.)

It seems clear that the principle aim of article XXIV was to eliminate political patronage in California. There was no intent to erode the Legislature's power to otherwise provide for the personnel administration of the state's labor force. The 1934 ballot argument reflected the understanding that the Legislature retained the power to amend the civil service statutes: “Having by constitutional mandate prohibited employment on any basis except merit and efficiency, . . . the Legislature is given a free hand in setting up laws relating to personnel administration for the best interests of the State, . . .” (Proposed Amendments to Constitution, Propositions and Proposed Laws, supra, at p. 12.) It is true that former section 3, subdivision (a) conferred on the SPB all of the powers granted by existing civil service statutes; salary determination was one such power. However, the same section provided that “said laws . . . may hereafter be enacted, amended or repealed by the Legislature.” (Art. XXIV, s 3, subd. (a).) It is well settled that sections and phrases of the Constitution are not to be read in isolation; rather, they are to be construed as parts of the whole. (Fields v. Eu (1976) 18 Cal.3d 322, 328, 134 Cal.Rptr. 367, 556 P.2d 729.)

Where possible, each provision is to be construed in harmony with related provisions. (Serrano v. Priest (1971) 5 Cal.3d 584, 596, 96 Cal.Rptr. 601, 487 P.2d 1241.) In this case, the grant of power to the SPB in former section 3, subdivision (a) should be read in light of the contemporaneous expression in the same section of the Legislature's power to amend and repeal the existing civil service statutes. Therefore, former section 3, subdivision (a) should not be construed as a prohibition against subsequent legislative reassignment of responsibility over salary setting. The majority erroneously read into the Constitution the entire legislative scheme which touches upon personnel matters. As indicated, I reach the opposite conclusion.

Third, the Legislature has for many years assigned important responsibilities directly affecting state employment to agencies other than the SPB. Moreover, in a number of instances the Legislature itself has assumed the salary-setting function. (See Stats. 1943, ch. 62, item 228, p. 297; Stats. 1975, ch. 176, item 86, p. 360.) A recent example occurred in 1976, when the Legislature directed the SPB to “increase the salaries of full-time state employees by seventy dollars ($70) per month” on an across-the-board basis, except for highway patrol officers who received $120 per month increases. (Stats. 1976, ch. 341, s 15, p. 938.)

The majority dismiss these enactments and statutes as being overshadowed by the language of the Constitution. Yet, these examples are totally inconsistent with the contention that the SPB's jurisdiction extends exclusively to all aspects of public employment. They reflect the Legislature's consistent understanding that section 3, subdivision (a) of article VII, and article XXIV before it, does not vest the SPB with exclusive jurisdiction over all aspects of the civil service, nor does it deprive the Legislature of the power to experiment with alternative methods of personnel administration, including salary setting, at least as long as the merit principle is not infringed.

The Legislature is not alone in its interpretation. The SPB itself differentiates its constitutional role of enforcing the merit principle by performing those functions expressly listed in article VII from its statutory role in administering the evolving civil service, which, as noted earlier, it often shares with others. (A Perspective on Collective Bargaining in State Civil Service (SPB 1974) pp. 4-5.) Up until Fair Political Practices Commission v. State Personnel Board (1978) 77 Cal.App.3d 52, 143 Cal.Rptr. 393, this same court had stated: “Setting compensation for public employees is a legislative function. . . . Section 18850 (of the State Civil Service Act) delegates the function to the (State) Personnel Board.” (State Trial Attorneys' Assn. v. State of California (1976) 63 Cal.App.3d 298, 303, 133 Cal.Rptr. 712, 715.) (Emphasis added.) The California Supreme Court had said the same at least 30 years earlier. (See City and County of S. F. v. Boyd (1943) 22 Cal.2d 685, 689, 140 P.2d 666.)

Our recent case of Fair Political Practices Commission (FPPC ) does not hold otherwise. There, we ruled that the FPPC must accept the classifications and salaries set by the SPB. In FPPC, a single agency sought to set salaries of its employees. The risk was great that one agency, alone in state government having the power to fix its own salaries, would set salary levels incompatible with salary levels set by the SPB for comparable positions elsewhere in state government. That our decision did not rule that in another context the salary-setting function could be viewed differently is compelled by the addition of a purposeful footnote wherein we expressly acknowledge the then pendency of the Collectively Bargaining Law dealing in part with salary fixing and we intentionally did not express ourselves on that issue. Nor, of course, did we distinguish prior decisional law affirming the supremacy of the Legislature in salary setting. A constitutional ruling would render the marginal observations meaningless. The case at bench differs from the FPPC. We deal with a centralized personnel system of salary setting that can be implemented with uniformity. Any conflict with the merit principle is hypothetical and conjectural. For the reasons discussed, the constitutionality of a legislative act as important as the one we consider cannot be decided on the basis of the dictum, no matter how strong, in FPPC. The facial constitutionality of SEERA must stand or fall on the issues the majority and dissent discuss.

3. Beyond Salary Setting

My response to the issues of classification and others raised by the parties, but not addressed by the majority, flow from the above discussion on salaries. A careful review convinces me that classification is unrelated to salary setting. There is, of course, potential for a conflict between SEERA and the Constitution. Since I conclude that the conflict is not facial we must await concrete factual conflicts, if they arise, before that issue is joined.

I am persuaded that even as to discipline no facial conflict exists. If an unfair labor practice is found SEERA can order reinstatement of the discharged employee. That, all agree, deals with discipline. SPB agrees with the position taken by petitioners that a facial conflict exists between the constitutional power given SPB over discipline and that given SEERA. Other respondents disagree. SPB claims for itself exclusive jurisdiction over discipline.

In my view there is potential for conflict, but it is only that potential. I refer, as I must, to the language of the statute and the language of the constitution. The statute (Gov. Code, s 3514.5) begins: “The initial determination as to whether the charges of unfair practices are justified, and, if so, what remedy is necessary to effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction of the board. Procedures for investigating, hearing, and deciding these cases shall be devised and promulgated by the board and shall include all of the following.” (Emphasis added.) Petitioners focus on the “exclusive” nature of the determination. Since the SPB also has duties regarding discipline how can PERB enjoy such “exclusive” jurisdiction, they argue. Petitioners fail to note that such exclusivity applies only to the “initial” determination. That is crucial. The Constitution, in turn, gives the SPB the power to “review disciplinary action.” (Art. VII, s 3, subd. (b).) (Emphasis added.) On the face of the two provisions, the statute gives PERB the exclusive jurisdiction to make an initial determination and the SPB power to review that determination. The legislative effort appears to be to encourage the development of administrative expertise in PERB, an expertise which SPB may learn to respect. However, SPB continues with a review role. Since there is no facial conflict I decline to engage in speculation that actual conflicts will arise. If they arise, the courts will resolve those conflicts in their time. However, by administrative cooperation and delineation of duties those conflicts may never arise.

4. Conclusion

The careful legislation evolution of public employee collective bargaining has been challenged by petitioners' broadside. They would have us review this detailed legislative scheme and declare that this legislative work evolved over a decade or two is for naught. If the Constitution spoke clearly, or impliedly, that these efforts of the Legislature to protect the smooth employer-employee operation cannot be, I would join my majority brethren. Petitioners, however, present a series of hypotheticals which persuade them, and the majority, that the legislative response, careful and rational though it might be, violates the Constitution. Too many years as a lawyer, law professor and judge have taught me that hypotheticals, no matter how convincing, oft times prove to have no relation to reality. Conflicts, if they arise, will deal with the statute as applied for I am convinced that no facial incongruity exists between the statute and the Constitution.

I would deny the petitions for peremptory writs and discharge the alternate writ previously granted.

FOOTNOTES

1.  Contrary to the implication in the dissent (dis.opn., pp. 4-5, fn. 1), there is simply no evidence that the Attorney General or his staff were privy to confidential information relating to this case and the SPB or any other party to the proceeding; nor does the record suggest any impropriety in the conduct of these proceedings by the Attorney General relative to his statutory clients or otherwise.

2.  Section 18850 is one of the 122 sections of the Government Code which is superseded by the provisions of a memorandum of understanding with which it is in conflict. (s 3517.6.) In conjunction with the enactment of and follow-up amendments to SEERA, section 18850 was amended to add to the original language set out in the text the following: “(b) Notwithstanding any other provision of law, the (SPB) shall not establish, adjust, or recommend a salary range for any employees in an appropriate unit where an employee organization has been chosen as the exclusive representative pursuant to Section 3520.5.“(c) On or before January 10 of each year, the (SPB) shall submit to the parties meeting and conferring pursuant to Section 3517 and to the Legislature, a report containing (its) findings relating to the salaries of employees in comparable occupations in private industry and other governmental agencies.“(d) If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Section 3517.5, the memorandum of understanding shall be controlling without further legislative action, except that if such provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.” (Stats.1977, ch. 1159, s 8; Stats.1978, ch. 776, s 66.)

3.  For example, sections 13920 and 13924 (relating to the fixing of per diem rates), sections 13922 and 13923 (relating to rules and regulations for payroll deductions), section 13926 (relating to awards for superior accomplishments) and section 13927 (relating to deferred compensation plans) are all administered by the Board of Control.Sections 20750.11, 21400, 21402, 21405, 22754, 22790, 22813-22816, 22825 and 22825.1 (all of which relate to health and welfare benefits for state employees) are administered by the Board of Administration of the Public Employees Retirement System.

4.  Among all the respondents only SPB concedes any constitutional infirmity in the act. SPB agrees with petitioners that PERB's unfair-practices jurisdiction intrudes on its constitutional responsibilities, contending, however, that the act, to that extent, is severable.

1.  While I conclude that the peremptory writ should not issue, I do so because I find SEERA constitutional on its face. The issue of whether SEERA conflicts facially with the constitution, I agree, is sufficiently ripe for judicial resolution. Further, the Pacific Legal Foundation, in my view, has standing. Since the issues are squarely and properly posed I will not dwell on the procedural defects. However, I have doubts about the propriety of the Attorney General's role in this litigation apparently not shared by the majority.There is no question that the Attorney General generally has standing to seek a judicial determination as to the constitutionality of a legislative act. (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10.) No party in this litigation has suggested otherwise. However, the facts pertaining to this case trouble me. The Governor's office, normally represented by the Attorney General, makes the uncontested assertion that it had earlier received a letter from its lawyer, the Attorney General, that like legislation was constitutional and was accordingly counseled to sign. More seriously, the record contains an uncontroverted affidavit from the chair of the SPB that it, the SPB, met with its lawyers, from the Attorney General's office, and received legal advice pertaining to the Pacific Legal Foundation suit; the board members, of course, discussed their views and received legal advice. But a few months later, they found themselves being sued by their own lawyers, the office of the Attorney General. At oral argument the Attorney General at times referred to the state agencies as his regular clients and claimed special knowledge as to their operation because of that relation. The Attorney General could simply have recused himself as he is authorized to do. The issues which concern him were already before the court in the action filed by the Pacific Legal Foundation. We may judicially notice that Pacific Legal Foundation has handled many cases before our court; at all times it has shown vigor and the financial capacity to well represent its client. All those factors lead me to dissociate myself from the majority view that the Attorney General was merely performing a duty he is obligated to perform.

PUGLIA, Presiding Justice.

PARAS, J., concurs.