Hastings Law Journal


Brian J. Malloy


For over thirty-five years, binding interest arbitration legislation has been enacted in many states and localities as a way to avoid debilitating labor problems with essential public employees, particularly police and firefighters. A recurring issue has been whether these statutes unconstitutionally delegate legislative policy- making authority to a private third party, thereby violating the non-delegation doctrines in many state constitutions. A sizeable majority of courts have upheld these statutes against nondelegation doctrine challenges. In April 2003, however, the California Supreme Court invalidated California's binding interest arbitration statutory system. The court, importantly, did not base its decision on typical non-delegation grounds. Thus, the possibility of binding interest arbitration still exists for the State of California and its localities, provided certain requirements are met.

This Note examines the positive and negative aspects of binding interest arbitration over the past thirty-five years and offers a proposal that addresses non-delegation problems that may arise in California or other jurisdictions. This Note proposes a framework that can be adopted by the State of California and its localities. The framework focuses on limiting binding interest arbitration to essential employees, creating direct political accountability, and restraining arbitrator discretion, and making the arbitrator accountable to the citizens.

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