dissenting.
Given the ominous and unforeseen consequences that often flow from an appellate court’s tinkering with the trial court system, the majority’s assertion that it has attempted to restrict the reach of its decision is understandable. However, the furrow made by the majority is not the work of a well-aimed, single-bladed plow, but rather the kind of swath left by a misdirected bulldozer. I am reminded of a recent radio news story that told of a sign at the entrance to a dirt road in Tennessee that warned drivers: “Choose your rut carefully, you’ll be in it for the next 18 miles.” That admonition certainly applies to the resolution of the question presented here. I have the uneasy feeling that, at one fell swoop, the majority’s conclusions may have effectively amended the constitutional principle of separation-of-powers, repealed existing statutes providing for compensation of juvenile court employes, endangered the court’s relationship with other support personnel and, arguably, abolished the doctrine of inherent powers. Specifically: (1) I am not persuaded that ORS 419.604(1) is consistent with the applicability of PECBA to petitioner and the counselors; (2) I do not agree with the majority’s conclusion that the requirements that petitioner bargain in good faith with the union and refrain from unilaterally setting terms and conditions of the counselors’ employment do not violate the separation-of-powers doctrine; and (3) I do not agree that we need not consider, in this case, the constitutional implications of the application of the post-impasse PECBA provisions to petitioner and the counselors. For these reasons, I respectfully dissent.
The Statutes
ORS 419.604(1) provides:
*327“Subject to subsection (2) of this section, the judge or judges of the juvenile court in any county having a population less than 300,000 shall appoint or designate one or more persons of good moral character as counselors of the juvenile department of the county, to serve at the pleasure of and at a salary designated by the appointing judge and approved by the budget-making body of the county.”
In Norman v. Van Elsberg, 262 Or 286, 290, 497 P2d 204 (1972), the Supreme Court construed the statute to mean that
“* * * [t]he juvenile court judges were to have the authority to fix the salaries subject to the scrutiny of the budget-making body of the county only for the purpose of rejecting the proposed salaries if they were found to be unreasonable.” (Emphasis supplied.)
It is equally clear from the plain language of the statute that juvenile court judges were intended to have the authority also to hire counselors “to serve at the pleasure of [the court].” The intent expressed seems to me to be fundamentally inconsistent with the requirements of PECBA that salaries and terms and conditions of employment be subject to collective bargaining, see ORS 243.650(4) and 243.672(1)(e), and that, in the event agreement on such matters is not reached within a reasonable time, the impasse provisions of PECBA will apply.1 It appears that we recognized that inconsistency in Schmidt v. Jackson County Juv. Dept., 49 Or App 349, 353-54, 619 P2d 1307 (1980):
“* * * In light of the express provision of ORS 419.604 that the salaries and job tenure of juvenile counselors are to be determined by juvenile court judges rather than by the collective bargaining process, the employee bargaining representatives could not reasonably have relied on the passive events to which petitioner points as any indication that the judge had authorized the employer representatives to bargain on his behalf about the terms and conditions of petitioner’s employment.”2 (Emphasis supplied.)
*328Finally, as petitioner correctly observes, PECBA is a statute of “general applicability” and ORS 419.604(1) is “highly particularized.” Where the terms of two statutes are inconsistent, ORS 174.020 provides, in part, that “when a general and particular provision are inconsistent, the latter is paramount to the former.” It may be possible, of course, to construe ORS 419.604(1) to be consistent with the provisions of PECBA or to obviate the problem by determining that, in situations in which juvenile counselors are members of a bargaining unit, ORS 419.604(1) is repealed by implication and simply does not apply. There is merit in petitioner’s contention that juvenile court judges cannot both exercise the full authority granted by ORS 419.604(1) and be subject to PECBA, and I find the majority’s solution to the question unconvincing.3
Separation of Powers
Assuming, but by no means conceding, that the majority’s statutory analysis is correct, the constitutional question lying at the heart of this controversy remains. Or Const, Art VII, § 1 (as amended) provides, in part:
“The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law. * * *”
Or Const, Art III, § 1 provides:
“The powers of the Government shall be divided into three seperate [sic] departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.”
The limits of legislative authority are reached when legislative action unduly burdens or unduly interferes with the judicial department in the exercise of its judicial functions. Ramstead v. Morgan, 219 Or 383, 399, 347 P2d 594 (1959).
*329The juvenile court exists pursuant to Or Const, Art VII, § 1 (as amended). ORS 419.474 provides:
“(1) The juvenile court is a court of record and exercises jurisdiction as a court of general and equitable jurisdiction and not as a court of limited or inferior jurisdiction. It is called ‘The _ Court of _ County, Juvenile Department.’
“(2) The provisions of ORS 419.472 to 419.597, 419.800 to 419.840 shall be liberally construed to the end that a child coming within the jurisdiction of the court may receive such care, guidance and control, preferably in his own home, as will lead to the child’s welfare and the best interest of the public, and that when a child is removed from the control of his parents the court may secure for him care that best meets the needs of the child.”
ORS 419.476 describes those cases in which the juvenile court has exclusive original jurisdiction.4 ORS 419.608 provides:
“The director of a juvenile department or one of the counselors shall:
“(1) Make or cause to be made an investigation of every child brought before the court and report fully thereon to the court.
*330“(2) Be present in court to represent the interests of the child when the case is heard.
“(3) Furnish such information and assistance as the court requires.
“(4) Take charge of any child before and after the hearing as may be directed by the court. ” (Emphasis supplied.)
ERB found, inter alia, that:
“* * * Juvenile counselors are paid from county funds and work under the supervision and direction of the juvenile judge. [They] perform social casework in the investigation, counseling, adjustment, rehabilitation and guidance of children, who for various reasons, have been placed under the jurisdiction of the juvenile judge. * * *”
In my opinion, it is beyond dispute that the work of the juvenile counselors and the court’s direction of that work are integral to the juvenile court’s exercise of its judicial function. The majority concedes as much, albeit for the sake of argument only. When the authority of the juvenile court to direct the work of the counselors and to define their responsibilities more specifically, see ORS 419.608(3) and (4), as the need arises is limited, the exercise of the judicial function is burdened. Where, as here, the official charged with executing the judicial function is required by an administrative agency pursuant to PECBA to negotiate, among other things, the manner in which the judicial function is exercised, the judiciary is unconstitutionally interfered with by the legislature, regardless of the outcome of the negotiations, because under such circumstances the judiciary no longer functions as an independent department of government.
The majority admits, and I agree, that it is “axiomatic” that the requirement that petitioner bargain in good faith limits his decision-making authority over the terms and conditions of employment (and, therefore, over the exercise of the judicial function) and that other PECBA requirements also limit that authority. Notwithstanding these consequences and the undeniably close connection between performance of the duties of the counselors and the execution of the judicial functions of the court, the majority concludes, without analysis or explanation, that *331the ERB requirements do not unduly interfere with the court’s judicial functions and are not “facially inconsistent” with the court’s ability “to exercise necessary authority over the counselor’s performance.” I cannot agree. The requirements constitute a “serious incursion into the area of judicial functioning” and, therefore, violate the principle of separation of powers. See Ramstead v. Morgan, supra, 219 Or at 400.
The application of PECBA to petitioner also unduly burdens the inherent power of the judicial department to do those things necessary for the effective performance of the judicial function. The doctrine of inherent power for the judicary was recognized in Ortwein v. Schwab, 262 Or 375, 385, 498 P2d 757 (1972), aff’d 410 US 656, 93 S Ct 1172, 35 L Ed 2d 572 (1973). The doctrine is the source of the power to do those things necessary to exercise that function for which the legislature has not provided, and in “rare instances, to act contrary to the dictates of the legislative branch.” Ortwein v. Schwab, supra. The power has been held to include the authority to employ necessary personnel, to fix the salary of such personnel and to require appropriation and payment therefor. See State ex rel Weinstein v. St. Louis County, 451 SW2d 99 (Mo 1970); Commonwealth ex rel Carroll v. Tate, 442 Pa 45, 274 A2d 193 (1971); Noble County Council v. State ex rel Fifer, 234 Ind 172, 125 NE2d 709 (1955). This inherent power necessarily includes authority to supervise court personnel.
The majority holds that the PECBA requirements, as applied by ERB, that petitioner bargain in good faith and that he not take any unilateral action to establish “terms and conditions of employment for [the counselors] at variance with the terms” of the applicable collective bargaining agreement do not violate the separation-of-powers doctrine. Although the effect of that holding on the doctrine of inherent powers is unclear to me, it appears that petitioner would be required to negotiate before exercising his inherent power if the exercise would affect terms and conditions of employment and could not “unilaterally” exercise that power to reach a result inconsistent with the terms of the applicable bargaining agreement. Presumably, the exercise of the power would and constitutionally could be so restricted notwithstanding that the “unilateral” *332exercise would otherwise be proper, i.e., necessary to the execution of the judicial function.
Finally, I certainly do not agree that the separation-of-powers problems raised by the application to petitioner of other PECBA provisions, particularly those providing impasse procedures, are for the purposes of this case “abstract” and need not be addressed at this time. PECBA is a comprehensive statutory scheme. The majority holds that it applies to petitioner. “It” is the entire act, including the impasse procedures. As petitioner explains:
«* * * if ^ parties fail to reach an agreement after meeting and conferring for a reasonable period, the ERB appoints a mediator. ORS 143.712(1). If the dispute has not been settled after 15 days of mediation, any party can initiate and compel factfinding. ORS 143.712(2)(b). If fact-finding fails, the employee unit may strike 30 days after the publication of the factfinder’s recommendation unless the strike creates a clear and present danger to the welfare of the public, as would almost certainly be the case were juvenile court employees to strike, the public employer concerned may petition the circuit court for relief, which must include an order that the labor dispute be submitted to final and binding arbitration. ORS 243.726(3). * * *”
Although it is true that none of these provisions have been applied to petitioner and the representative of the juvenile counselors and there are no particular “results” of such an application to measure against the constitutional standard, as I read the majority’s opinion the provisions are presently applicable. Furthermore, ORS 243.672(1) (f) provides that it is an unfair labor practice to “refuse or fail to comply with any provision of ORS 243.650 to 243.782.” In my opinion, the mediation and arbitration requirements of PECBA if applied to petitioner would constitute an impermissible encroachment into the judicial domain for the same reasons that the negotiating requirement does. As stated above, there is no question that the work of the counselors is integral to the judicial work of the court. Under PECBA, petitioner’s decision-making authority with respect to the terms and conditions of the counselor’s employment and their supervision is shared with the union and in the case of impasse is, in effect, taken over by an arbitrator. There would seem to be no workable method for determining beforehand that certain matters are non-negotiable and *333non-arbitrable on the grounds that, in order to maintain the independence and integrity of the judiciary, petitioner alone must ultimately determine those matters. Under PECBA, petitioner may be compelled to enter a binding agreement governing matters that necessarily involve the exercise of the judicial function, thus limiting, by the fact of its existence, his ability the exercise the inherent power of the court. The conclusion is inescapable that the application of PECBA to petitioner and the counselors violates the principle of separation of powers.
It would be unreasonable and illogical to acknowledge, on the one hand, that our constitution authorizes the judiciary to exercise awesome powers over the life, liberty and property of every one of us and at the same time to deny the judges the authority to determine independently the basic needs of their courts and day-to-day responsibilities of support personnel involved in the judicial work of the courts. If we accept the proposition that the judiciary is the ultimate protector of all our rights under the law and recognize its duty to act fairly and impartially, it follows that the judiciary must retain complete independence in its relationships with its employes.
A circuit court judge, on any given day, is called on to sentence persons to state institutions — up to a' period of a lifetime, terminate marriages, determine custody of children, resolve title to real property, decide what is to become of one’s life savings and property upon death, administer the business of those who are either incompetent or infirm, commit those who are found to be mentally ill, chart the future of dependent or delinquent juveniles, grant adoptions and preside over the ever-expanding number of trials being filed in the state’s court of general jurisdiction. The effective discharge of those duties demands a very special kind of independence, and I believe it is dead wrong for us to conclude that a person charged with such awesome responsibilities is guilty of unlawful labor practices should he decide not to bargain with someone who seeks to unionize the court’s employes.
By determining that PECBA applies to the circuit court judges of this state and at the same time failing to address the constitutional problems raised by that decision, *334the majority has allowed the camel to get considerably more than his nose into the tent. I am convinced that, once inside, the animal will be reluctant to leave and that controlling him will become increasingly difficult.
Buttler and Warden, JJ, and Thornton, SJ, join in this dissent.See discussion, infra, at 332-33.
I agree with the majority that in Schmidt v. Jackson County Juv. Dept, 49 Or App 349, 619 P2d 1307 (1980), we held only that the judge involved was not a party to the specific collective bargaining agreement: we did not expressly determine whether the judge was subject to PECBA.
The precise character of the majority’s “solution” is rather elusive. The majority asserts that
“* * * [t]he stated authority over employment and employment conditions that various statutes confer on various public employers who are clearly subject to PECBA is as broad a the authority ORS 419.604(1) gives juvenile court judges.” 61 Or App at 314.
That does not say that the provisions of ORS 419.604(1) and PECBA are consistent but only that PECBA controls.
ORS 419.476(1) provides:
“The juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and:
“(a) Who has committed an act which is a violation, or which if done by an adult would constitute a violation, of a law or ordinance of the United States or a state, county or city; or
“(b) Who is beyond the control of his parents, guardian or other person having his custody; or
“(c) Whose behavior, condition or circumstances are such as to endanger his own welfare or the welfare of others; or
“(d) Who is dependent for care and support on a public or private child-caring agency that needs the services of the court in planning for his best interests; or
“(e) Either his parents or any other person having his custody have abandoned him, failed to provide him with the support or education required by law, subjected him to cruelty or depravity or to unexplained physical injury or failed to provide him with the care, guidance and protection necessary for his physical, mental or emotional well-being; or
“(f) Who has run away from his home; or
“(g) Who has filed a petition for emancipation pursuant to ORS 109.550 to 109.565, 419.710, 482.270, 482,905 and this section.”