dissenting.
In approaching this case, it is instructive to examine the following situation. A California city seeks to condemn property owned by two similarly-situated public utilities. The city institutes condemnation proceedings against the first utility in California state trial court, where that utility has a right to a jury trial and an absolute right to appeal the trial court’s decision to the California Court of Appeal. The city takes the other utility through compensation proceedings before the Public Utilities Commission, where that utility has no right to a jury trial and may seek only limited review of the PUC’s compensation decision through a rarely-granted discretionary writ to the California Supreme Court.1 The city’s choice of forum is completely unilateral and unfettered; the utility/condemnee has no right to alter the city’s decision. I believe that such a statutory scheme, which allows identically-situated utility/ condemnees to be subject to fundamentally different treatment at the whim of a California political subdivision, violates the equal protection clause of the federal constitution.2 I therefore dissent.
I recognize that under the rational relation standard, the burden on a plaintiff to establish an equal protection violation is significant. The rational relation test, however, is “not a toothless one.” Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186 (1981) (quoting Matthews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 2764, 49 L.Ed.2d 651 (1976)). A state “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary and irrational.” City of Cleburne v. Cleburne Living Center, — U.S. -, 105 S.Ct. 3249, 3258, 87 L.Ed.2d 313 (1985). The Supreme Court, when faced with various arbitrary and irrational classifications, has not found this standard insurmountable. See, e.g., Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985) (invalidating statute that imposed higher tax rate on out-of-state companies); Zobel v. Williams, 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982) (Alaska may not distribute income from its natural resources to residents on the basis of length of residency). In fact, the Court has struck down state procedures similar to the one employed in this case under the rational relation test. See Lindsey v. Normet, 405 U.S. 56, 79, 92 S.Ct. 862, 877, 31 L.Ed.2d 36 (1972) (striking down state statute that imposed an increased appeal bond only for those appealing from summary ejectment actions); *1099see also Humphrey v. Cady, 405 U.S. 504, 512, 92 S.Ct. 1048, 1053, 31 L.Ed.2d 394 (1972) (state scheme that arbitrarily denies the right to jury to similarly situated persons would violate the equal protection clause). I believe that the statutory scheme in this case is unconstitutional under Lindsey and Humphrey, and I am unpersuaded by the majority opinion’s efforts to distinguish those cases.
At the outset, I disagree with the suggestion that the important rights denied to utilities proceeding before the PUC are constitutionally insignificant.3 The importance of the special skills that civil juries bring to the fact-finding process has long been recognized.4 Similarly, the Court has acknowledged that appellate review, if granted by a state, must be fair and effective for all appellants.5
The burden imposed by California’s dual system on these two important rights, i.e. jury trial and fair and effective appellate review, cannot be justified in light of the Supreme Court decisions in Lindsey and Humphrey. The majority opinion acknowledges the importance of these two decisions, but nevertheless does not find them controlling in this case for a number of reasons. I will address each of these reasons in turn.
First, the majority opinion, citing Lindsey, notes that a state is not obligated to provide either a right of appeal or a right to jury trial. This argument, while certainly correct, misses the mark. A state may deny these rights to its citizens, but if it grants these rights it may not afford them to some and arbitrarily and irrationally deny them to others. This, in fact, was the essence of the holding in Lindsey that a state could not require certain appellants to post a higher bond. Lindsey, 405 U.S. at 77, 92 S.Ct. at 876 (“When an appeal is afforded, however, it cannot be granted to some litigants and capriciously or arbitrarily denied to others without violating the Equal Protection Clause.”); see Humphrey, 405 U.S. at 512, 92 S.Ct. at 1053 (“[Petitioner’s] equal protection claim would seem to be especially persuasive if it develops on remand that petitioner was deprived of a jury determination, or of other procedural protections, merely by the arbitrary decision of the State to seek his commitment [to a mental institution] under one statute rather than the other.”).
Second, the majority opinion relies on Atlas Roofing Co. v. Occupational Safety and Health Review Commission, 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977), for the proposition that the seventh amendment permits the creation of rights and remedies which are enforced only through administrative proceedings. I do not argue with this concept and would have no quarrel if the statutory scheme in this case mandated that all utility condemnation proceedings must be brought before the PUC. Unlike Atlas Roofing, the statutory scheme in this case does not merely commit the enforcement of certain rights and remedies to one administrative tribunal, but rather permits the same type of action in two significantly different forums. The *1100important rights involved in this case are not denied to all utility/condemnees, but only to those utilities to whom the city unilaterally chooses to deny those rights.
Third, the majority opinion suggests that the arbitrary denial by a city of a con-demnee’s rights to jury trial and fair and effective appellate review is somehow fair because the city is similarly deprived of those rights if it chooses to proceed before the PUC. The statutory scheme, however, arbitrarily permits a city to decide when it will be afforded these rights and when it will not; the utilities have no such choice. Naturally, a city will forego those rights when it is beneficial to do so, and vice versa.
Fourth, the majority opinion places faith in the ability of cities to promote the legislative purpose behind the dual scheme; that is, channeling the more complex condemnation proceedings to the PUC. However, in failing to provide any meaningful guidelines and giving cities unfettered and unreviewable discretion to choose the forum in which to proceed, the statutory scheme permits the cities to act in derogation of the legislative purpose. For instance, a city is permitted under the statute to take smaller cases to the PUC and to take more complex cases to a California state trial court. Such a result, of course, is in direct contradiction to the statute’s avowed purpose.6 If the statute had indicated that cities were to take the more complex cases to the PUC, then it would be rationally related to the purpose of using the PUC’s technical expertise. Absent any statutory criteria, however, the majority leaves it up to the unfettered whim of the city whether the legislative purpose will be served in any given case, or at all.
Finally, the majority opinion states that it was conceivable that the legislature would think that “cities would be in the best position to choose the appropriate forum” because “the municipality is responsible to the public interest in general.” I find this argument unrealistic. In each case, a city will choose the forum that will produce the best result for it.7 If a city believes that in a particular case a jury trial will result in a lower compensation award, it will choose to proceed in state trial court; if not, it will go to the PUC.
I believe that the statutory scheme in this case is arbitrary because its relation to the avowed purpose of using the PUC’s expertise in complex cases is simply too attenuated. To allow a condemnor the unfettered discretion to grant or deny similarly-situated condemnees the right to a jury trial and to fair and effective appellate review offends both common sense and the equal protection clause. I therefore dissent.
. The actual operation of the administrative system involved in this case belies any notion that review of condemnation proceedings by discretionary writ is meaningful. It appears that in the seventy year history of this scheme, the California Supreme Court has never reversed a compensation decision of the PUC. In fact, it has granted review in only three cases, and has not reviewed a case in fifty years.
Moreover, the scope of review is much more limited than that afforded to civil litigants appealing from state trial court. The question on petition for review before the California Supreme Court is whether the PUC has "regularly pursued its authority." Cal.Pub.Util.Code § 1757. If the California Supreme Court denies the petition for review, the PUC’s decision is final and further review by any California court is not permitted. See Cal.Pub.Util.Code § 1416.
. Appellants do not challenge the statutory scheme under the California Constitution. Therefore, I decline to address this issue. Cf. Carreras v. City of Anaheim, 768 F.2d 1039, 1042-43 (9th Cir.1985) (if both state and federal constitutional challenges are made, court must address the state ground before reaching the federal constitutional issue).
. The majority opinion, while assuming arguen-do that jury trials and meaningful appellate review are cognizable rights under the equal protection clause, nevertheless concludes that "the forum selection results in no ascertainable injury____” Opinion at 13.
. See, e.g., Dimick v. Schiedt, 293 U.S. 474, 485-86, 55 S.Ct. 296, 300-01, 79 L.Ed. 603 (1935) (jury trial is "generally regarded as the normal and preferable mode of disposing of issues of fact in civil cases"); Sioux City & Pacific Railroad Co. v. Stout, 84 U.S. (17 Wall.) 657, 664, 21 L.Ed 745 (1874) (“It is assumed that twelve men know more of the common affairs of life than does one man.”); In re United States Financial Securities Litigation, 609 F.2d 411, 431 (9th Cir. 1979) (“[N]o one has yet demonstrated how one judge can be a superior fact-finder to the knowledge and experience citizen-jurors bring to bear on a case.”), cert. denied, 446 U.S. 929, 100 S.Ct. 1866, 64 L.Ed.2d 281 (1980); see generally C. Wright, Federal Courts 606 (4th ed. 1983).
. See Lindsey, 405 U.S. at 74-75, 92 S.Ct. at 874-75; see also Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 834, 838-41, 83 L.Ed.2d 821 (1985) (if a state grants appeals as of right to criminal defendants, equal protection notions require that the appeals process be "adequate and effective” for each appellant) (quoting Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956)).
. Similarly, the Court in Lindsey stated: "[t]he claim that the double-bond requirement operates to screen out frivolous appeals is unpersuasive, for it not only bars nonfrivolous appeals by those who are unable to post the bond but also allows meritless appeals by others who can afford the bond.” Lindsey, 405 U.S. at 78, 92 S.Ct. at 876.
. I do not mean to imply that cities act in bad faith or otherwise abuse the judicial process. Cities, like all other civil litigants, simply avail themselves of those procedures that favor their position.