The opinion
WOODS, J.,
Concurring. — I write separately to state although I concur in the majority opinion the enactment of subdivision (c) as an amendment to Government Code section 3504.5 in 2002 is new legislation as contended by the Union of American Physicians and Dentists, Los Angeles County’s argument the enactment is merely expressive of existing law relegates the issue to a category that I refer to as a “close call.”
Be that as it may, I perceive a more fundamental problem with Government Code section 3504.5, subdivision (c). The problem lies with the question whether Government Code section 3504.5, subdivision (c) is constitutional in the first instance. The constitutional problem that I perceive was never raised in the trial court, nor briefed in this court, nor addressed by counsel at the time of oral argument. In short, the issue is not before us and has no part to play in the final disposition of this matter as reflected in our filed opinion.
Nevertheless, the perceived constitutional issue lies dormant just below the surface and must await a future appeal where it is properly raised by counsel who deem the issue worthy of judicial resolution. Whether the phoenix will rise from its own ashes is yet to be manifested. The constitutional issue as I perceive it has its genesis in the fact that Government Code section 3504.5, subdivision (c) may constitute special legislation in violation of California constitutional law principles by confining the legislation to the governing body of a public agency with a population in excess of 4 million without a statement which demonstrates a showing of reasonable justification for the classification outweighing the constitutional imperative prohibiting such discrimination.
*406 Government Code section 3504.5, subdivision (c) provides: “The governing body of a public agency with a population in excess of 4,000,000, or the boards and commissions designated by the governing body of such a public agency shall not discriminate against employees by removing or disqualifying them from a health benefit plan, or otherwise restricting their ability to participate in a health benefit plan, on the basis that the employees have selected or supported a recognized employee organization. Nothing in this section shall be construed to prohibit the governing body of a public agency or the board or commission of a public agency and a recognized employee organization from agreeing to health benefit plan enrollment criteria or eligibility limitations.”
The Supreme Court of California last addressed the issue in two well reasoned cases. The first case was in 1966 in a decision entitled Board of Education v. Watson (1966) 63 Cal.2d 829 [ 48 Cal.Rptr. 481 , 409 P.2d 481 ]. The case was decided within the context of Education Code former section 20811 purportedly requiring the Assessor of Los Angeles County to furnish designated real property assessment information to certain governing boards of several public school districts in Los Angeles County to enhance the budgeting process of the schools. The assessor refused, contending that the statute was unconstitutional because it applied only to counties having a population in excess of 4 million, among other contentions not here relevant. The Supreme Court held the special legislation constitutional, stating at page 836 as follows: “Although the issue is not free from doubt, we resolve the conflict, as we must, in favor of finding that the Legislature adopted a valid act and that section 20811 is constitutional since there exists a rational basis for the statutory classification. The Legislature could have reasonably assumed that school districts containing a larger number of students warranted special consideration and that in a county with a population of over 4,000,000 persons, the districts have more students than in smaller counties. Figures issued by the State Department of Education bear out this assumption and demonstrate that individual school districts in Los Angeles County have, for the most part, larger numbers of students than do the districts in other counties. The chart in the appendix, based upon figures taken from the publication California Education (Vol. 2, No. 9, May 1965, p. 28), issued by the State Department of Education, indicates that in Los Angeles County approximately 75 percent of the school districts have 3,000 or more students, whereas the rate is 43 percent for the total of the other populous counties listed in the chart. [Fn. omitted.] Under these circumstances, the Legislature could have reasonably believed that the assistance of the assessor is more *407 necessary in Los Angeles because the planning of budgets for numerous large school districts is a more complex matter and the effects of a miscalculation more serious than would be the case in the other counties of the state, which contain fewer large and more small school districts.” (Board of Education v. Watson, supra, 63 Cal.2d at p. 836 , italics added.)
The second case was decided by our high court in 1968 in Whittaker v. Superior Court (1968) 68 Cal.2d 357 [ 66 Cal.Rptr. 710 , 438 P.2d 358 ] in the context of whether multiple-judge appellate departments of the superior court pursuant to section 77 of the Code of Civil Procedure could pass constitutional muster by being applicable only in those counties having a municipal court and whether Code of Civil Procedure section 77 bore a substantial reasonable relationship to a legitimate legislative objective. The court stated on page 370 as follows: “The principle which we derive from these cases, and which we apply to the instant case, is this: Legislative classification as to treatment and procedure within a state judicial system according to factors such as geographical area, population, or other relevant considerations, does not deny equal protection of the laws unless such classification is shown to be palpably arbitrary and without a sound basis in reason. [¶] We have concluded that the classification here in question is based upon sound reasons cognizable by the Legislature, and that it therefore does not deny to petitioners the equal protection of the laws.” ( 68 Cal.2d at p. 370 .) I find the classification contained in Government Code section 3504.5, subdivision (c) to be constitutionally suspect for containing a classification which is arguably “palpably arbitrary and without a sound basis in reason.”
An illustration of the opposite end of the constitutional spectrum is found in the recent decision of the Supreme Court of one of our sister states. In City of Enid v. Public Employees Relations Bd. (Okla. July 5, 2005, No. 101,729) 2005 OK 55 [2005 Okla. Lexis 57], the Oklahoma Supreme Court affirmed the summary judgment order of the district court wherein the district court determined that the statutory classification of municipalities with populations greater than 35,000 for purposes of collective bargaining is arbitrary and discriminatory. The district court had ruled that the Oklahoma Municipal Employee Collective Bargaining Act is a special law contrary to the Oklahoma Constitution. The district court had enjoined the Public Employees Relations Board from administering the law.
I am quick to note that the decision of the Oklahoma Supreme Court in City of Enid is not entitled to stare decisis effect by the courts of the State of California, but as persuasive authority I find City of Enid to be persuasive.
*408 Ei my view, I find City of Enid more compelling for a decision which would uphold constitutionality, had the Oklahoma Supreme Court been so inclined, than attempting to uphold a constitutional challenge to the special legislation under the conditions existing at the time of enactment of Government Code section 3504.5, subdivision (c). In short Government Code section 3504.5, subdivision (c) was obtained by and applies to a modest and even infinitesimal number of members in the physicians union when compared with the 4 million population designation set forth in the statute. It is not a desirable climate for either the union or county to be negotiating under the cloud of a statute which in all probability, in my view, is unconstitutional.
However, for the reasons previously stated, I concur in the majority opinion.
Respondents’ petition for review by the Supreme Court was denied October 12, 2005.