I respectfully dissent. In my view, Labor Code section 1164, as of the time relevant to this case, delegated legislative power unconstitutionally and violated equal protection guarantees of the state and federal Constitutions.
Invalid Delegation of Legislative Power
The Legislature delegated its power to a private person without setting fundamental public policy standards to guide that person’s legislative acts. Nothing in Labor Code section 1164 controlled the discretion of the “mediator” in deciding the terms of the “collective bargaining agreement” or how the Agricultural Labor Relations Board (Board) and the court were to measure the award on review.
“An unconstitutional delegation of authority occurs only when a legislative body (1) leaves the resolution of fundamental policy issues to others or (2) fails to provide adequate direction for the implementation of that policy. [Citation.]” (Carson Mobilehome Park Owners’ Assn. v. City of Carson (1983) 35 Cal.3d 184, 190 [197 Cal.Rptr. 284, 672 P.2d 1297].) “An unconstitutional delegation of power occurs when the Legislature confers upon an administrative agency the unrestricted authority to make fundamental policy determinations. [Citations.] To avoid such delegation, the Legislature must provide an adequate yardstick for the guidance of the administrative body empowered to execute the law. [Citations.] Underlying these rules is the belief that the Legislature as the most representative organ of government should settle insofar as possible controverted issues of policy and that it must determine crucial issues whenever it has the time, information and competence to deal with them. [Citation.]” (Clean Air Constituency v. State Air Resources Bd. (1974) 11 Cal.3d 801, 816-817 [114 Cal.Rptr. 577, 523 P.2d 617].)
Labor Code section 1164 and the subsequent sections provided no consequential checks on the power of the private mediator. When regarded closely, the statutes provided no fundamental public policy guidance.
*1612The requirement that the mediator’s report must be “supported by the record” (Lab. Code, § 1164, subd. (d)) is virtually meaningless in the context of drafting a collective bargaining agreement. When a person makes an adjudicative decision, that person makes factual findings and applies the law to those findings. When making a legislative decision, on the other hand, the person has no law to apply to factual findings because the decision itself is a legislative act. Even though under the statute at issue the mediator must make factual findings and those findings must be supported by the record, there is no way to determine whether the facts found by the mediator support the decision unless one knows what basic public policy the mediator must vindicate.
For example, suppose that the mediator can show that every provision included in the collective bargaining agreement the mediator drafts is found in one of the potentially numerous collective bargaining agreements between other parties that are presented as evidence at the mediation. A party could argue that the collective bargaining agreement is “supported by the record.” Yet, it could still be a collective bargaining agreement that either bankrupts the employer or imposes great hardship on the employees. There is no public policy to guide or limit the mediator and no standard for the Board or the courts to review the mediator’s report.
The statutory review procedures provided no remedy for this lack of standards and basic public policy guidance. The Board could set aside the mediator’s report if a provision was unrelated to wages, hours, or other conditions of employment or the report was based on clearly erroneous findings of fact. (Lab. Code, § 1164.3, subd. (a).) These limitations provided no clue concerning what the terms of a collective bargaining agreement should be.
In rejecting a challenge to the legislative delegation in a rent control case, the Supreme Court concluded: “By stating its purpose and providing a nonexclusive illustrative list of relevant factors to be considered, the charter amendment provides constitutionally sufficient legislative guidance to the Board for its determination of petitions for adjustments of maximum rents.” (Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 168 [130 Cal.Rptr. 465, 550 P.2d 1001].) The Legislature failed to provide similar guidance to the mediator under Labor Code section 1164. The sole purpose stated was to “ensure a more effective collective bargaining process between agricultural employers and agricultural employees, and thereby more fully attain the purposes of the Agricultural Labor Relations Act, ameliorate the working conditions and economic standing of agricultural employees, create stability in the agricultural work force, and promote California’s economic well-being by ensuring stability in its most vital industry.” (Stats. 2002, ch. 1145, § 1.) This pronouncement was so general it failed to provide actual guidance.
*1613The majority sidesteps the issue of improper delegation by noting that (1) the Board came up with its own standards, and (2) the Legislature was just about to set some standards. Neither rationale justifies the wholesale delegation of legislative power. First, it is illogical to say that a delegation was not standardless because the delegate set standards. The Board is not the legislative body relevant to the delegation question. If it were sufficient, under delegation analysis, for the Legislature to delegate its power to agencies with the understanding that the agencies would create standards for exercising the legislative power, we would scarcely need a Legislature. And second, I am unaware of authority allowing us to correct an unconstitutional prior legislative enactment by applying an amendment retroactively. Neither can I agree that no miscarriage of justice occurs when parties are forced into a “contractual” relationship based on an unconstitutional exercise of legislative power by a private person. While I do not necessarily agree that the amendment to Labor Code section 1164 cured the delegation problem, that issue is not presented to us.
Exacerbating this delegation problem is that the delegation was to a private person, not a publicly accountable official or elected entity. At times, courts have upheld delegation of legislative powers to a private person or body by noting the statute at issue gave the private person or body a portion of the sovereign’s legislative power. (See, e.g., City of Warwick v. Warwick Regular Firemen’s Ass’n (1969) 106 R.I. 109 [256 A.2d 206, 210-211].) This reasoning is flawed, attempting to justify the delegation of sovereign power to a private person by deeming the private person a public officer because of the delegation to the private person of sovereign power. Indeed, the California Supreme Court rejected this circular justification in its opinion finding that the home rule provisions of the California Constitution prohibit the Legislature from delegating to a private entity the right to establish compensation for county employees. The court concluded: “The act of delegation does not change a private body into a public body and thereby validate the very delegation the section prohibits.” (County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 294 [132 Cal.Rptr.2d 713, 66 P.3d 718].)
Here, there was no pretense concerning the private or public nature of the person drafting the collective bargaining agreement. The statute required only that it be a “mediator[] who [has] experience in labor mediation.” (Lab. Code, § 1164, subd. (b).)
In her dissenting opinion in Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553 [71 Cal.Rptr.2d 731, 950 P.2d 1086], Justice Brown discussed the important principles protected here: “[T]he Legislature may not invest a private body with the power to draft rules having the effect of law; to do so would unconstitutionally transfer powers confided to one arm of *1614government to private parties. (Bayside Timber Co. [v. Board of Supervisors (1971) 20 Cal.App.3d 1,] 11-12 [97 Cal.Rptr. 431].) By requiring that the transfer of essential powers—whether from one arm to another or to a private group or person—be accompanied by the retention of controls sufficient for the delegating arm to retain ultimate power over their exercise, the delegation doctrine preserves the integrity of divided government. In the absence of such controls, the powers of one arm of government are weakened while those of another are expanded.” (Stop Youth Addiction, Inc. v. Lucky Stores, Inc., supra, 17 Cal.4th at pp. 590-591 (dis. opn. of Brown, J.).)
In summary, this legislative scheme delegated legislative power to a lone private mediator to draft a collective bargaining agreement, virtually by fiat, to govern the relationship of the private employer and employee. The scheme was invalid because it gave the mediator power to create basic public policy, provided no standards for resolving the disputed issues between the parties, and lacked meaningful review of the mediator’s report. Labor Code section 1164 invalidly delegated legislative authority. I would therefore set aside the Board’s order enforcing the collective bargaining agreement to preserve the proper representative character of the legislative process. (See Kugler v. Yocum (1968) 69 Cal.2d 371, 383-384 [71 Cal.Rptr. 687, 445 P.2d 303].)
Equal Protection
Even if I were to conclude that Labor Code section 1164 and related statutes did not effect an unconstitutional delegation of legislative power, I would nonetheless find that the resulting exercise of legislative power by the private mediator violates the equal protection guarantees of the state and federal Constitutions.
“An administrative order, legislative in character, is subject to the same tests as to validity as an act of the Legislature. [Citations.]” (Knudsen Creamery Co. v. Brock (1951) 37 Cal.2d 485, 494 [234 P.2d 26].) Applying this canon here, the private mediator’s legislative act—the initial collective bargaining agreement between Hess and its employees—is subject to the same test of constitutionality under the equal protection clause as any act of the Legislature.
“The constitutional bedrock upon which all equal protection analysis rests is composed of the insistence upon a rational relationship between selected legislative ends and the means chosen to further or achieve them. This precept, and the reasons for its existence, have never found clearer expression *1615than the words of Justice Robert Jackson, uttered 30 [now many more] years ago. T regard it as a salutary doctrine,’ Justice Jackson stated, ‘that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.’ (Railway Express v. New York (1949) 336 U.S. 106, 112-113 [93 L.Ed. 533, 540, 69 S.Ct. 463] (Jackson, J., conc.), italics added.)” (Hays v. Wood (1979) 25 Cal.3d 772, 786-787 [160 Cal.Rptr. 102, 603 P.2d 19].)
“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike. [Citation.] . . . The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. [Citations.] When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, [citations], and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.” (Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 439-140 [87 L.Ed.2d 313, 320, 105 S.Ct. 3249].)
The state Constitution provides that “[a] person may not be . . . denied equal protection of the laws” (Cal. Const., art. I, § 7, subd. (a)) and “[a] local or special statute is invalid in any case if a general statute can be made applicable.” (Cal. Const., art. IV, § 16, subd. (b).) “[T]he test for determining the validity of a statute where a claim is made that it unlawfully discriminates against any class is substantially the same under the state prohibitions against special legislation and the equal protection clause of the federal Constitution.” (County of L.A. v. Southern Cal. Tel. Co. (1948) 32 Cal.2d 378, 389 [196 P.2d 773].)
I assume, for the sake of argument, that treatment of an agricultural employer that does not reach agreement with the union on an initial collective bargaining agreement can be different from the treatment of an agricultural employer that reaches an agreement with the union on an initial collective *1616bargaining agreement because of the state’s interest in promoting collective bargaining agreements. Here, however, the disparate treatment is not just between employers with initial collective bargaining agreements and employers without such agreements. Application of Labor Code section 1164 and the related statutes results in disparate treatment within the class of employers without an initial collective bargaining agreement because the agreement imposed on each employer in this class will be different. While the legitimate state interest that I assume for argument exists may justify disparate treatment between classes, it cannot justify disparate treatment within the class. (Cleburne v. Cleburne Living Center, supra, 473 U.S. at p. 439.)
Labor Code section 1164 sets forth the classification at issue in this case; agricultural employers who, for whatever reason, do not agree to the terms of an initial collective bargaining agreement. Within this class, the law does not treat the individual employers similarly. Instead, each employer will be subjected to a different legislative act, in the form of a collective bargaining agreement. Thus, similarly situated employers are treated dissimilarly.
Beyond the classification set by Labor Code section 1164, there is no rational way to break the agricultural employers down into smaller groups. The statute makes no such attempt, except, of course, to break it down so that every agricultural employer is the one and only member of the class. This means of classification, however, is the very antithesis of equal protection. While the Legislature may have intended this as a way to avoid the political retribution it might incur if it enacted laws applicable equally across the class, that motivation is entirely insufficient to justify the disparate treatment. (See Hays v. Wood, supra, 25 Cal.3d at pp. 786-787.)
“ ‘ “[T]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” ’ [Citations.]” (Village of Willowbrook v. Olech (2000) 528 U.S. 562, 564 [145 L.Ed.2d 1060, 1063, 120 S.Ct. 1073].) Here, the discrimination—that is, holding Hess, and no other agricultural employer, to the terms of a private legislator’s decision—is intentional because the mediator has no power to extend the enactment to other agricultural employers. The mediator could have had no intent other than to impose a collective bargaining agreement enforceable only as to Hess and no other agricultural employer. Furthermore, the discrimination is arbitrary because there are no standards set forth pursuant to which the mediator’s decision in this case will be the same as a *1617mediator’s decision in any other case under Labor Code section 1164 and the related statutes. Enforcement of the mediator’s decision violates equal protection principles and, therefore, should be set aside.
A petition for a rehearing was denied July 20, 2006, and petitioner’s petition for review by the Supreme Court was denied September 13, 2006, S145732. Baxter, J., was of the opinion that the petition should be granted.