In Re Young

Judge, Concerning Inquiry In re YOUNG, David S.

Honorable Judge.

District

No. 970032.

Supreme Court of Utah.

Jan. Stewart, Wikstrom,

Stеven H. Francis M. City, Salt Lake for Judicial Conduct Com- mission. Berman, Tomsk, Peggy

Daniel L. A. D. Wilkins, Frank City, Judge Salt Lake for Young. Johnson, Schwermer,

Brent M. Richard H. Gentles, Margaret City, K. Salt Lake for amici Utah Judicial Council and Administra- tive Office of the Courts. Gay Taylor, Rees,

M. H. Robert Salt Lake City, for amici Judi- cial Conduct Commission. Graham, Gen., Att’y

Jan Annina M. Mitch- ell, Gen., Att’y Asst. City, Lake for Salt amici Attorney Governor Leavitt and General Gra- ham.

On Petition Rehearing for ZIMMERMAN, Justice: ¶ 1 petition This matter is before us on a rehearing. original for decision 10, 1998, July case was handed down on published Young, was as In re 961 P.2d 918 (Utah 1998) (hereinafter “orig- referred as opinion”).1 decision, inal In that we held that 78-7-27(l)(a) (b) sections of the Code were violative of Constitution. Those Code subsections provide Senate, two members of the President, appointed by the and two mem- House, appointed by Speaker, bers of the shall serve on the ten-member Judicial Con- duct a consequence, Commission. As proceedings held void commission that it to led recommend that this court enter a public against sanction Judge David S. Young.

¶ 2 The Judicial Conduct Commission permission moved for petition to file a for rehearing. motion, This granted court as parties well the motions of various for permission file briefs as amici curiae in original opinion publi- was withheld Today umes in late November of 1998. it is cation in Publishing Company’s appendix West bound vol- released as an to this case. open court he was now convinced that rehearing.2 The petition support of original wrong Young, opposition decision was and should Judge respondent, filed rehearing. argument petition Oral be reversed. 21, 1998. We now held on December presented by 5 The second issue some opinion on grant petition and issue this briefs, particularly that of the of the Gover- rehearing. General, Attorney well nor and the as as that ¶3 rehearing petition for and the The the Utah Council and the Admin- of Judicial amici raised sever- briefs of the various have Courts, concern istrative Office import. First al of and issues substantial original opinion’s language the about that foremost, legislative the amicus brief separation powers sufficiently broad of Commis- of the Judicial Conduct members bring question constitutionality of into the brought much new has to our attention boards, forces, many working groups, task present origins the about the of material committees, advisory and commissions on Constitution, of arti- the Utah of than the which members more one of entirety rewritten in its cle which was government together. sit three branches of passed the voters 1984. Section 13 and particular, they urge that In us declare article elevated the Judicial Conduct that joint representation that do groups with such to constitutional status. The “primary” “core” or functions of not exercise that new materi- legislator amici contend government do not fall under one branch of the al that drafters the demonstrates ban of article the of the second clause article, participated amended the who clarify amici ask that we section 1. These finalized, hearings being preceding the joint original opinion as to the sorts of activi- passed proposed the who then the permissible that so that the three ties are ballot, on put amendment and it the government can continue to work branches of approved general at a election voters who together matters of common concern. on all that the amended article con- understood persuaded by the briefs and We are legislative templated participation on the Ju- argument original opinion the be that should Therefore, they dicial Commission. it is vacated to the extent that inconsistent par- original holding such argue, our decision one, legislative and that member- with this ticipation unconstitutional was in error. ship on Judicial Conduct Commission the ¶4 objective importance The of this his- preface As a should be held constitutional. material The torical cannot overstated. petition of the merits of discussion the petition Judicial Conduct Commission analytical ap- rehearing, we review the for narrowly rehearing only for had asked constitutionality determining un- proach for can con- declare whether the commission V, section 1. We then summarize der article legislative function without the mem- tinue to original analysis opinion core from our argument, But at oral the chair bers. 78-7-27(l)(a) led to declare sections us commission, un- previously who had been (b) unconstitutional. provided us aware of historical materials 1, amici, failing bring f 7 Article apologized Constitution, powers provision the Utah to our attention this critical material provides: original proceeding. He also announced rehearing filed com- petition for parties filing were the narrow

2. The amicus curiae briefs legislative today members of Judicial Conduct court denies motion mission. The Commission; Governor, Leavitt, O. Michael only parties to this matter intervention. The Graham; Attorney Jan General Judge Young and the Conduct Commis- Judicial Office Council and the Administrative Judicial sion, entity. individual The commission's as Courts. separate parties. status have no as members legislative members Con- However, original opinion’s today we vacate the per- court for duct Commission also moved the holding legislative cannot serve contending parties, mission to intervene Therefore, the that led reasons the commission. issued, original opinion was were after parties longer to seek status as no those members longer part of considered the commission no exist. represented were not their views very concept in the inherent [i] be divided into three State of Utah shall pro- branch —the to vote on departments, Legislative, distinct Comm’n, posed laws. Tite v. State See Tax Judicial; Executive, no [ii] 404, 734, (1936) 413, 89 Utah person charged pow- with the exercise of (finding only legislature authority has properly belonging ers to one of these pass fixing penalties); tax laws see also departments, shall exercise Barlow, Rampton v. 23 Utah 2d others, appertaining except to either (“ ‘Legislative power ... expressly the cases herein directed ” authority is the make (quoting laws.’ permitted. Justices, Opinion re Mass. (1939))). Const, N.E.2d 807 This is true of both the (bracketed §V, art. material added). legislators appointed to the by commission and As indicated the brackets in the text, legislators appointing the divided into them. With this section is two clauses. simi- general separation of certainty, The first states the original opinion lar we found powers principle, very specifi-- and the second today we find answer to cally prohibits exercise of certain func- question third “no.” is The Utah Constitu- by charged tions of one one branch with the express provision directing tion contains no powers of exercise of certain another branch. permitting legislators service on the case, present briefing argu- commission, any provision there nor is direct- original proceeding ment in both the and on ing or permitting the President and the rehearing exclusively have focused on the Speaker appoint members of the Judicial V, second clause of article section 1. Our Therefore, Conduct Commission. the resolu- original opinion held that this clause was depends entirely tion of upon this case 78-7-27(l)(a) (b). violated sections (i) question: answer to the second itAs n ¶ applies commission, serving analytical model to those on the derived from the V, second clause of article section 1 can legislators be are the are called relatively straightforward stated aas three- upon perform as members of the Judicial First, step inquiry. legislators “appertaining Conduct Commission functions question “charged pow- with the exercise of (ii) to” applies As it branch? properly belonging ers to” one of the three Speaker, the President is the func- Second, government? branches of is the they perform tion appointing when given legis- function that the statute has “appertaining the commission to” the exec- “appertaining lators one to” another branch original opinion, utive branch? In the we government? step third and final questions answered these the affirmative. analysis if the asks: answer to both of Based on historical and contextual informa- questions “yes,” the above does the consti- brought attention, recently tion to our we “expressly” permit tution direct or exercise today. reach a different result not, of the otherwise forbidden function? If transgressed. article 1 is ¶ original opinion, 10 In our we concluded Const, applied analytical art. 1. We relatively analysis with little that the function opinion, original model and we do so performed by the Judicial Conduct Commis- again today in determining permis- both the “appertaining was one to” the sibility legislators serving on the Judicial government. Original branch of op. 84. permissibility Conduct Commission and the Therefore, we found that it a was violation President of Senate and the section 1 for a to sit on Speaker appointing of the House two mem- exercising commission an exclusive bers each to the commission. branch Id. 89. function. We also found that because the members of the commission then, question 9 There no was performed “appertaining a today, there function to” the question is no that the answer to judicial branch, power question “yes.” appoint Legislators first those alone are charged constitutionally exercise of belonged the essential members (1944) (finding it would “fruitless “expressly unless the cоnstitution Governor3 powers prop- unwise” to delineate to make permitted” someone else directed or erly belong appertain to or different Because the constitution appointments. branches); Lee, 302, 312, Taylor v. 119 Utah not, giving that held that the statute did we many (finding 226 P.2d power of the Senate and to the President belong single properly do not V, sec- Speaker of the House violated article Ohms, branch); City see Lake also Salt Although it central to our deci- tion 1. (Utah 1994) (not dis- 848-49 why sion, length at explain did not we legislature cussing performed whether the performed the Judicial Con- function belonging “apper- to” “properly function exclusively judicial in duct Commission was deciding taining to” another branch when merely nature. We made observation issue); separation of Matheson v. “type of exercises a the commission 1982) Ferry, 641 P.2d 678-79 judicial authority” and was established (discussing pow- violations of article, Id. f Yet the article VIII. on the control ers based exercise effective original opinion analytical of our soundness department another rather than on over entirely upon of this hangs the correctness department whether one exercised a premise.4 fundamental “appertaining to” “properly belonging to” or issue, (hereinafter 11 Before we revisit department) another Matheson briefly language Pratt, 246, 250-51, of the second I); address the v. 51 Utah Mutart noted, (1917) 67, legis- 1. As (deciding of article P. 68-69 clause 170 upon judiciary by impinge does not language “powers lature critical constitutional is sentencing in giving no discretion without belonging “func- properly to” one branch and deciding power “properly whether is a this two. appertaining either of other tions to” judi- belonging “appertaining to” or to” the phrase plain meaning, partic- is in its Neither Estate, 212, ciary); Handley’s In re 15 Utah in ularly considered the context of when (not 221, 829, relying P. on 49 831 government. together, Taken real world legislature performed function whether a broadly phrases be read to en- these could “appertaining to” “properly belonging to” or powers given functions to a compass all and judiciary legislature impinged in finding that by its the literal branch or officers judiciary by changing a law re- passing constitution, statute, by by tradi- and decision). have, Rather, sult hand, they the other could be read tion. On silentio, phrases the two sub treated only powers narrowly and reach certain sought equivalent have articulate very are existence of essential by considering the concepts embrace fulfilling conceptual minimally branch’s underlying basic notions part three-department system of a role as powers grown up has over the doctrine as it government. by prac- an centuries examination Perhaps ambiguity because of operation government. tical in the language, which becomes acute ap- justification 13 The textual world, law context of real case Lee, proach Taylor v. was alluded to past century stretching back sel- over (1951): 312, 531, 302, 226 P.2d dom, ever, attempted has if to decide cases phrase call to the use of the We attention approach on a to the lan- based literalistic belonging powers 'properly “exercise Indeed, guage of the clause. few second departments” (emphasis these add- one of language “proper- our cases ever discuss the ed), expression ... The indicates qualified ly belonging “appertaining to” to” Conven- the members the Constitutional See, v. e.g., Thatcher Industrial detail. that there were tion must have considered Comm’n, 568, 178, inherently part powers which were not so 115 Utah 207 P.2d VII, today's deci- provides Gover- 4. Justice Stewart in his dissent from 3. Article section 10 pivotal question "appoint officers sion still refuses to address this nor shall all State district asserts, Instead, analytically. simply by without Constitu- he whose offices established law, tion, authority, performed by may by whose the function or which be created exclusively judicial provid- one appointment or is not otherwise commission election Const, VII, brings within section 1. the reach ed for." Utah art. department departments of one that other department, exclusive to one we have also “core,” precluded “primary,” would be forever from exercis- used terms or “essen- Ohms, tial.” ing necessary City those which were See Salt Lake prop- to a v. 881 P.2d (Utah 844, 1994); Timpanogos functioning particular Planning er depart- of that Management & Agency Water v. Central ment. Dist., Conservancy 562, Utah Water 690 P.2d (emphasis original). just Id. It is this sort (Utah 1984); Gallion, 572 P.2d judgment about what is so inherent in a 683, 1977). But we have never branch that it cannot be exercised another willing precise been to be more than this. and what is not so inherent to one that it can Comm’n, See Thatcher v. Industrial be exercised several that our cases have 568, (1944). 207 P.2d 178 necessary A years. striven to determine over the An corollary to powers the doctrine that some example analysis excellent of this mode ‍‌​​​​‌​​​​‌‌​​‌​​‌‌​​​‌‌‌​‌‌‌‌​​‌​​‌​‌‌​‌‌‌​‌​‌‌‍of belong exclusively to the members presented Commission, in Tite v. State Tax of one branch is that there must be (1936). 89 Utah 67 P.2d 734 And the may, appearance, functions which spirit approach of this expressed was well have characteristics of an inherent function when the quoted Tite court following: of one permissibly branch but which “The independence absolute of the three exercised another branch. See Matheson branches of which was advo- I, (Utah 1982) (holding by Montesquieu cated has not been found narrowing of potential judicial field of ap- entirely and, practicable, although the pointees governor appoints partakes before threefold division of is the basis of of appointment elements of the power, but is Constitution, the American many there are inherently not so an executive function as to cases which the depart- duties of one preclude participation by ment are ato certain extent upon devolved branch in that narrowing); see Taylor also and shared Lee, the other.” (1951); 119 Utah 226 P.2d 531 Tite Comm’n, v. Tax 89 Utah 57 P.2d Id. (quoting at 737 Dictionary Bouvier’s (1936). We conclude that pow- when the (Rawles Rev.), 1114). 3d at The Tite court er exercised or performed the function is one although also observed that that we determine is not exclusive to a executive, legislative “the supreme ju- and branch, it “appertaining to” that powers dicial government ought of the branch and does not fall within the reach of separate distinct, be forever and it is also the second clause of article section 1. true that the science of ais practical one; therefore, background mind, 15 With while each should we address the firmly historical and textual maintain materi powers the essential be- als that have brought now been it, to our atten longing to forgotten cannot be that tion to light they determine what shed on the parts three co-ordinate constitute one question of whether performed the function brotherhood, requires whose common trust by legislators on the commission “ap is one a mutual occupancy toleration of the pertaining judicial to” the branch. It is ar what seems to be a ‘common cause of gued rehearing by- on counsel Judge for vicinage’ bordering the domains of each.” Young that we should limit ourselves to the Turner, (quoting Id. Brown v. 70 N.C. 93 plain language of the constitution and that (1874)). we should history therefore not consider the survey 14 From a cases VIII, of article plain section 13. But the the most categorically that can be said is that marginal is of help question. on this for or functions to fall within the circumstances, And in rejected such we have reach of the second clause of article sec rigid such rule of interpre 1, they tion inherently legisla must be “so tation. In Society Separationists tive, judicial executive or in character that Whitehead, (Utah 1993), 870 P.2d 916 we they must exclusively by be exercised their plain made it interpreting that in the consti respective Lee, departments.” Taylor v. 119 tution, factors, we consider all relevant in 302, 315, (1951). 226 P.2d cluding language, provisions other in the defining constitution matter, that bear on the judges (finding imper- materials, at Senate confirmation of policy. See id. historical except juvenile in all court 920-21, primary is for missible cases n. search 6. Our II). (hereinafter Matheson appointments) with this purpose. Consistent intent Rather, cases end the matter. very long history of Those did not view, has a this court complete rewrite of the light they precipitated a provisions in interpreting constitutional judicial article background then- of the Utah Constitution historical their finally dispute settled this and several other understanding of what contemporary wide-rang- case, many long-standing like issues with a set accomplish.5 This were compromises brought all interested others, ing axiom that proves wisdom of the parties to the See Const. Revi- history a volume of table. page of is worth “[a] (Jan.1984) (delin- 15-16 Rep., at sion Comm’n Society Sepamtionists, logic.” eating goals Revision of Constitutional Com- improve functioning history The of article VIII as noting groups all interested branch fascinating study of the conflict whole is processes leading in the were consulted legislative the executive and branch- between article). drafting The rewritten began struggle when the es. Constitution, inter article of the Utah input in the selection branch insisted on alia, discipline restructured the selection process and the exec- confirmation provisions of the constitution and for the first left branch was utive resisted. preexisting time constitutionalizеd both strug- confrontations to settle several judicial nominating process commission I, gle. 676-77 See Matheson For to- the Judicial Conduct Commission. 1982) (finding presence day’s purposes, limit our discussion to the legislative appointees a seven-mem- “two new background of section article nominating commission is consti- ber concerning the the section Judicial tutionally and does not neces- accommodated Conduct Commission. 1,” adding sarily but violate gubernatorial 17 The Conduct Commission appoin- Senate confirmation drafting spring into life legislative participation on the nomi- did not tees to “tips preexisted 13. It the 1984 constitu- the scale” and vio- nating commission Y, 1); entity provision. The the Judi- tional first clause lates (Utah 1982) origins had Ferry, 657 P.2d 240 cial Conduct Commission Matheson uncertain, 853, Worthen, (Utah looking history interpret to 926 5. See In re P.2d 866-67 Constitution); 1996) (while language starting constitutional 10 Utah article of provision, Exam'rs, analysis of place for constitutional University 4 2d Board Utah Utah v. of of provisions deal- 348, ("[I]f have stated other 408, (1956) "[w]e also the P.2d 361-62 295 ing generally topic his- [such as] with the same clear, meaning ambiguous are or their words supported by independent evidence ... torical provisions the basic instru- or if the several of arriving prop- assist us in at a research materials susceptible possible more are to two or ment provision interpretation of the constitutional er constructions, proper meanings it is or then Newspapers, question”); 872 West v. Thomson in to ascertain outside the instrument itself look 999, (Utah 1994) (beginning analysis P.2d 1013 used.”); the framers meant what I, 15 of Utah Constitution article of examining 104, Agr. College, Spence 119 Utah v. Utah State background); Em- its historical P.I.E. 18, (“'Vie (1950) 23 restricted 225 P.2d 1144, Bass, ployees Fed. Union v. 759 P.2d Credit con- of another canon of this definition because (Utah 1988) (examining debates at Consti- 1146 used in the construction that terms stitutional interpreting in Utah Consti- tutional Convention mean what must be taken to constitution tution); Crosgrove, City 701 Fork v. Amеrican of voters of the state to the minds meant 1069, (Utah 1985) (looking to P.2d 1072-73 ” (quoting provision adopted.’ Tin- was when policies Con- intent to determine behind framers’ County, Mining v. Utah Co. Utah 80 tic Standard 491, against required proscription self-in- stitution’s 633, (1932))); P.2d Richardson crimination); Ins. Co. v. Utah Utah Farm Bureau Co., 366, 391, Mining 65 P. Hill 23 Utah Treasure 74, 751, Assn, 753-54 Ins. Guar. (1901) (examining discussions to framers’ 1977) ("In seeking application ... the correct of interpret Utah and to Constitu- reach their intent tion); provisions, this court looks to constitutional 457, 986, Norman, P. State v. being brought which them into ] circumstances! (1898) (taking judicial proceed- of notice 990-91 sought accomplished.”); purposes to be determining 669, Betensen, 121, ings Convention at Constitutional 14 Utah 2d provision). purpose finding provi- of constitutional (upon 669-70 38, 113, Laws required 1971. Section es- the court was to “enter its order concerning judicial implementing a commission tablished commission recommenda- tion, at qualifications. describing modifying wholly rejecting It is worth or or recommendation, identity, just length proper.” because of near con- as it finds 38(5). 113, § cept language, original 1971 stat- 1971 Utah Laws ute and section 13 article VIII.6 The com- 1983, 18 Between statute composed established 1971 was creating the commission was amended sever- members, three from board of five com- was, however, significant al times. There no Bar of the Utah State missioners two change in language concept. or Most of appointed legislators, one each the Presi- realignment these amendments related to a Speaker. dent and the The commission was 1975, membership. example, In for investigate empowered complaints against number the commission was evidence, judges, hearings, hold take membership increased three and the total Supreme make recommendations membership to six. In in- was “removal, censure, suspension, for rep- Court seven, creased and four of them were to grounds or rimand retirement.” The listed legislators. membership was removal, suspension, in the statute for cen- increased to nine two new members sure, reprimand or were as follows: being appointees Governor. Also in (a) ...; Willful misconduct in office 1983, the name of the commission was (b) changed to the Judicial Conduct punisha- Commission. Final conviction of a crime Thus, by law; time the new felony as a under ble state or federal drafted, thirteen-year history there was a conduct commission that was not (c) perform Persistent failure to his province govern- one branch of duties; or Rather, joint ment. out started as a exer- (d) drugs Habitual use of alcohol or cise of the branches performance with the interferes (in commissioners) the form of the bar state his duties. and, end, by the had evolved into an exercise 38(2). 113, § A separate 1971 Utah Laws shared all three branches of provided involuntary subsection for the re- government. Throughout, the commission “disability seriously judge tirement of a group making nonbinding remained recom- interfering performance with the of his Supreme mendations to the Court. 38(4). duties.” 1971 Utah Laws provided upon receipt statute further 19 A comparison of the constitu commission, such a recommendation from the tional Judicial Conduct Commission sec Supreme Court was to review the record tion statutory article VIII and the proceedings on the law and facts. The Judicial Conduct Commission shows that the Supreme permit latter, Court was free to copy intro- former is virtual down to review, duction of After phrasing grounds additional evidence. discipline VIII, (5)conduct 6. prejudicial section 13 states: to the administration A justice brings judicial Judicial Conduct Commission estab- a which office into investigate lished which shall and conduct con- disrepute. hearings regarding complaints against fidential implementation to the Prior commis- any justice judge. Following investiga- or order, Supreme the Court review shall the hearings, tions and the Conduct Judicial Com- proceedings commission's as to law both and censure, may reprimand, mission suspension, order the permit The fact. court also the introduc- removal, involuntary or retirement review, tion of additional evidence. After its any justice judge following: or for the shall, Supreme just the Court as it finds and (1) action which willful constitutes miscon- proper, implementing, rejecting, issue its order office; duct in modifying or the commission’s The order. (2) punishable final conviction of a crime as Legislature by provide shall statute for the law; felony under state federal composition procedures (3) and of the Judicial persistent perform willful and failure to duties; judicial Conduct Commission. Const, VIII, disability seriously § art. that 13. interferes with duties; performance judicial Debate, Rep. relationship Statement James Floor unique structural and rather (March Moss, Spec. Leg, 2d 45th Utah Sess. Supreme and the the commission between 9). (House 27,1984) recording no. provision is brief- constitutional The Court. com- er; procedure and details of it left the Finally, the voters to whom by fixed the stat- composition to be presented mission told amendment was were othat ute, good in constitution appropriate as upon be a commission which this was to stated, Instead, simply drafting. impar- The legislators and others would sit. for by provide shall Legislature statute “The voter information analysis tial the 1984 the Judi- composition procedures and in part as pamphlet stated follows: (cid:127) Const, art. cial Conduct Commission.” provides proposal The also con- minor differ- despite But judicial of a con- stitutional establishment ences, plain the Constitutional it seems that complaints review and duct commission to commis- intended the judges. Revision Commission disciplinary against order action entity exercising powers an judicial sion to remain The commission is com- conduct by other be shared branches lawyers, legislators lay avаilable to posed citi- government. zens. Monson, David Utah Voter S. Information legisla It is also clear added). (1984) (emphasis Pamphlet 15 This would exercise the commission ture assumed with the is of course inconsistent permissible to members function was assumption original opinion in our judicial. other than of branches case the Judicial Conduct Commission placing the amend sponsor of the resolution was section 13 of article VIII established Representa was ballot ed VIII exclusively perform intended Moss, who was member tive James voters, however, informed function. The statutory Commission. He approved the language, amendment. the floor of the 13 on addressed section Society Separationists, 22 In spoke ques during House debates evidence, said that historical and textual membership on commission. tion plain language as the tools policy, well as determining purpose of that we use deals with establishment Section 13 ma provisions. historical of a constitutional foundation textual com Representative above Ted terials discussed conduct commission. preexisting- your represen- parison 13 with the myself of section Lewis serve dealing with the Judicial statutory provisions com- tatives on the state conduct Legisla- convince us Conduct Commission by appointment performed the commission Cornaby Black function to be and Senator ture. Senator is exclu has never one that is not and been the Senate on that commission serve from sively province meeting regular on a within and we have been Rather, function intended you tell that it is an active branch. basis. I will Revision considers, private by the and strict Constitutional group that article, legislature confidentiality, a number of matters that drafted people, placed before quality and which us consider the come before performed colla adopted it to be judges may voters who problems potential boratively by the branches. Because very several important tool have. It is a performed commission is dealing the function Supreme use Court can judiciary, province of the discipline, possible not the exclusive reprimanding, question in article the system the en- we answer second within removal of V, negative in the analysis 1 unopposed section tirely from retention apart the —the legislators sitting by the function exercised power reprimand, It has the election. “appertaining not to” removal, the commission is censure, suspension, and volun- on Therefore, prohibi- the judges. branch.7 involuntary the tary retirement sion, VI, VIII, appears to contemplat- not be section article Given article section 13 7. by legislators serving implicated on the Judicial legislators serve on the commis- ed that would in tion the second clause of article had specific contained ture no constitutional authoriza- V, application 1 has no for attempting. section to sections 78- tion what it was See id. 7-27(l)(a) (b). Therefore, That has conse- analyze two we had to its actions un- First, quences. require- general because there is no der the pow- rubric of Here, however, expressly the legislators ment that constitution direct or ers. the per- are permit by legislators forming on commis- service functions that 13 of section article sion, prevent to nothing legisla- there is perform, VIII intended them to ture, given authority definitionally in the exercise of the it are not within the exclu- VIII, 13, by sphere Therefore, passing judiciary. article section from sive placing legislators on nothing standing statute the commission. there is in those functions Second, give complaint because the members of the commis- alone that could rise to a exclusively judicial perform legislators using not do func- these functions to domi- tions, power appoint branch, judicial. does to them not nate another here the Sec- ond, solely belong assuming purposes the Governor and there need even for argu- provision expressly only not be ment in performing the functions directing permitting appointment 13, their by given byit Supreme section Court is function, other than performing someone the Governor.8 or even an exclusively judicial function, ¶23 only ground remaining position commission are in a challenging legislative ap service on and interfere with or dominate the exercise of pointment to the commission is first that function. The Judicial Conduct Com- clause of section 1. That clause has article relationship Supreme mission’s Court specifically by parties not been addressed in discipline matters of is preliminary case, reasonably implicated but it is advisory, preceding as was under the issues briefed. first clause article statutory regime. gives The constitution specific section does not contain the ban power court the to review matters of law and simply of the second It clause. states that fact, to take additional if it evidence desires is to divided into three so, reject do part, whole or Our have branches. cases indicated modify fit, as it sees the recommendations of only first clause is offended when there is an As commission. we said in In re Worth- attempt by one branch dominate another en, court, “this not the [Judicial Conduct] sphere See, proper that other’s of action. Commission, responsibility has ultimate I, e.g., Matheson 641 P.2d at 678. The first determining both whether conduct that war- clause effectively disallows one branch rants proven sanctions has been and what controlling power another even when Worthen, those sanctions should be.” In re question is shared. See id. (Utah 853, 1996); 926 P.2d see also Salt case, Ohms, On the facts of this City 844, there Lake v. 1994) is no reason to conclude that the (delineating power first clausе of Judicial Conduct First, I, legisla- is violated. in Matheson “power investigate Commission as corn- contrary functions, Conduct Commission to what two power of us posi- to fill those ¶¶ (Howe, op. Original have said. See 92-94 inherently exclusively tions is executive func- C.J., Zimmerman, J., concurring and concur- and, such, given tion it cannot be to a member ring). specific provision, This is because of another branch mere statute. That would 13, governs general article over the integrity violate the Therefore, of the executive branch. one, VI, Lowder, article 6. See State v. requires section 1 (Utah 1994). P.2d expressly power constitution bestow that on an- ¶81. Original op. other. See That line of rea- Barlow, Rampton 23 Utah 2d soning hinged entirely upon proposition VII, (1970), we held that article power exercised the commission is exclu- power section 10 reserved to the Governor the sively judicial. Since now conclude that it is appoint positions officers whose were created not, Barlow, Rampton under statute is suffi- only constitution or statute when no other give cient to the President of the Senate and provided filling method was law for those Speaker positions. matter, however, original House the to make opinion See id. these In our in this appointments. we reasoned that because the perform exclusively commission sanctions”). if this court of article section even In plaints recommend exclusively judicial func- exercising an then, were case, no for there is basis present discipline against of entering orders tion presence legislators on finding that the of question not us which before could violate Conduct Commission Judicial —a legislative participation on do not we 1. article the first clause of decide— upon impinge not the commission would request that we 25 The final issue is a exclusively judicial Supreme Court’s function. holding so it clarify scope оf our that reason, proper a at 851. For this See id. inadvertently imperil function- not does understanding analytical model used within ing of various boards commissions separation that our cases indicates government upon members which state board, commission, body a or other unless branches sit two or more of three branch sits upon which a member one expressed by the together. The anxieties “appertaining a purports to exercise function fact stem from the that amici seem to branch, there no concern to” another need be original opinion spoke of the conduct commis- running that service afoul the sec- about exercising functions that as 1. clause of As dis- ond article participated in members could not be above, “appertaining term to” has cussed branches, on the mere fact that based other historically interpreted meaning been judi- provided was for the commission just is than a or function that more This was cial article of constitution. Rather, it one branch. must be exercised though the to be ease even found core, essential, inherent in the one that is not more Commission does have concept very of one of three branches preliminary to a function when comes than government. a Unless apparent conclusion discipline. met, is not one standard function amici meant no matter branches, or to members of barred other function, advisory any purely its board how those branches. be seen as an ad- or commission could Obviously, whether any junct branch could one any particular principle is violated have from another branch. not beyond one us is not a situation before original opinion 26 The held today. question But this clarifi- we address performed the Judicial Conduct Commission enough allay should fears ex- cation function, one inherently an therefore amici, venturing pressed by without judiciary. we noted As have exclusive unnecessarily advisory an into the realm of above, two this conclusion is incorrect for opinion. First, made reasons. the 1984 amendment ¶28 conclusion, reject Judge we of a function the commission exerciser Young’s sections 78-7- contentions Second, exclusively judicial. is not 27(l)(a) (b) and that are unconstitutional important standpoint more from the Commission unlawful- the Judicial Conduct amici, the commission the concerns of recognize a ly composed. that as result We any perform purport not event does matter, earlier in this of our decision exclusively ju inherently and function that is operated for Judicial Conduct Commission dicial, entering judgment. The com such as period legislator mem- without four short only nonbinding recommenda mission makes during period law- Its bers. actions Analogously, have court. we tions nev- and valid insofar as the Commission ful usurpation that there is no indicated quorum present. with a ertheless acted re for a domestic exclusive function ¶29 brought commissioner, Regarding the matter that who lacks constitu lations us, up the recommendation status, right this case before proceeding to handle a tional discipline Judge Young, request public sending judge. to a See proposed order question Ohms, parties reargue the n. City Lake at 851 Salt Therefore, of the recommended sanc- appropriateness if section 13 even argument We will set matter exempt Conduct Com tions. the Judicial did at the earliest convenience. from the reach of the second clause ¶ simply separa- case law not Associate Chief Justice DURHAM does extend in powers RUSSON concur Justice tion of that far. I believe and Justice also opinion. opinion give proper ZIMMERMAN’S our former we failed weight to the fact that the Commis- Justice, HOWE, concurring Chief only makes recommendations to this specially: court, discipline, court on and that is this ¶ specifi- concur 31 I and write more Commission, imposes and not the why voting cally I am for a articulate rehear- discipline. ing reverse our decision. and to earlier ¶ power As to of the President of prior opinion, In our we held that Speaker the Senate and the of the House of type “a Conduct Commission exercised of Representatives legislators appoint then, believe, judicial authority,” I we Commission, serve again on the Conduct we erroneously legislators concluded that could in denying power erred to them. Unlike authority. holding, such In so not exercise of the Board members of Edu- prior we were not true to our cases on the Barlow, Rampton cation which we held in powers separation explained been as has (1970), 23 Utah 2d 464 P.2d 378 could majority opinion in the written Justice appointed by legislative not be leaders be- In Timpanogos Planning Zimmerman. & part cause the Board was executive Management Agency Water Central Utah department, Commission, the Conduct while District, Conservancy Water 690 P.2d 562 having its roots article VIII the Consti- (Utah 1984), we wrote that “the cases on tution, not powers does exercise which are separation powers bright do enunciate not primarily inherently judicial. whereby governmen- each three lines clearly powers quickly tal be identi- STEWART, Justice, dissenting: fact fied.” That makes our task more diffi- July 10, 1998, 35 On this Court unani- guide cult. The have best we was stated mously in In Young, held re 961 P.2d 918 Lee, Taylor v. 226 P.2d 531 (Utah 1998),1 Ann. Utah Code 78-7- (1951), only where we stated that it is those 27(l)(a) (b) violated the powers “inherently legislative, so Constitution, provision of the Utah executive, they in character that section 1. Those two subsections exclusively by must be exercised their re- authorized the President of the Senate and spective departments.” Speaker appoint of the House to mem- There are certain which are Legislature bers of the to the Judicial Con- unquestionably powers: sentencing Young duct Commission. After was handed laws; those who violate the criminal the con- down, legislators various threatened to initi- constitution; interpretation struction and of a retaliatory against judiciary by ate action money entering judgment against person, asserting greater even control just to name a few. I have found little or no discipline over judges. and retention of Four authority discipline members ‍‌​​​​‌​​​​‌‌​​‌​​‌‌​​​‌‌‌​‌‌‌‌​​‌​​‌​‌‌​‌‌‌​‌​‌‌‍Court now embrace the ex- primary is a judiciary, function of the nor opposite position act from that which inherently judicial that it character. took in Young opinion. They the initial now focusing primary functions of the hold that it judiciary in our I opinion, former believe that of, on, appoint members to sit Judi- persuaded erred. We were that if mem- cial Conduct Commission. bers of other branches of were judicial discipline, they- involved in might response July opinion 36 The able judiciary, extraordinary. to embarrass Some asserted thereby impairing judicial independence. Conduct Commission had effect argument merit, put While that some has been out of business and that the en- July opinion 1. The appended opinion Court withdrew the ion is to this and will be cited publication, pending disposition official op.” of a "Original petition rehearing. July opin- Court's intensity it has in the same dedication and as judicial discipline had been end- of forcement past. ed. ¶ Leavitt and Attor- 40 Governor Michael addition, that In some asserted joint ney filed a amicus General Jan Graham governmental commissions many interbranch urging Young to amend to brief this Court unlawfully constituted insofar now

were provisions that held unconstitu- the declare from appointed various members were their re- Young are severable from the tional government. A the careful departments of maining provisions, allowing thus the Com- sup- reading July opinion does not of the addition, functioning. In tо continue frenzy of mo- The the port their assertions. Attorney and the General re- the Governor the by threats from ment was exacerbated Young quested pro- that to the Court amend retaliatory Legislature take measures to and guidance to state lawmakers others vide judiciary. against the regarding the constitu- who have concerns waters, In the the an effort calm tionality of other boards and commissions a petition filed Conduct Commission appointed from vari- whose members are the asking rehearing, that this Court declare government. ous branches of unconstitutional, the sections held ¶41 The Utah Judicial Council 78-7-27(l)(a) (b), § Ann. Utah Code of the Courts also filed Administrative Office the Commission and that were severable joint urging that the a amicus brief Court July operate. opin- The continue to could clarify a that would when establish standard clearly only two of declared subsections ion may formed other serve on boards 78-7-27(1) unconstitutional, and it is and when branches absolutely nothing in the patently clear that occupied by positions be committee opinion suggested that the Commission could government branches. members of other the to sanction. On basis not continue the generally, More these bodies ask Court law, it is clear that the long-established case process or devise a framework provisions are severable unconstitutional government can three branches of evalu- 78-7-27 and from remainder constitutionality of “dozens of exist- ate the remaining provisions operate can request ing mixed boards.” That must See, e.g., legislative intent. give effect to the advisory opin- for an because it asks denied Comm’n, Pub. Serv. Stewart ion. 1994).2 legislators who served on four ¶39 Young also filed Young when issued Judge and the Commission Commission sought to intervene as only dispute an amicus brief and parties to the before are the motion, parties. denied has not asked for This Court Thе Commission Court. parties. proper opinion, holding that are not any modification of this Court’s fact, disregard in patent Despite it. Nor much less a withdrawal of has procedure generally any rules of other relief of fundamental asked Commission short, Appel- of the Utah Rules violation kind from this Court. Commis- Procedure, they va- ask that this Court authority has had our late has full since 10, 1998, opinion Young pur- its unanimous July to continue to cate opinion opinion opposite the exact of what extraordinarily in the an important work issue sue its Although legis- judicial discipline. July opinion That held. work cer- area case, and al- nonparties tainly go forward lators can and should with 27(l)(e). judge of a court of record legislative appointed trial members In addition to Senate, (and judge) subsection House can be selected alternate membership provides section 78-7-27 remaining so as members of composed three shall be the Commission give and allow the effect to the intent of Commissioners members from Board act the six Commission to Judicial Conduct Bar, appointed by persons two 78-7-27(6) necessary to con- under members Bar, and are not Governor who members "[a]ny quorum. provision, Under that stitute judge "to a trial court of record be select- one majority quorum constitutes action of nonjudicial of the Judicial ed action of Commission." § 78-7- Utah Code Ann. Conduct Commission.” others, Governor, Attorney either though except neither in the cases Commission, General, expressly permitted. the Judicial herein directed requested, nor the Judicial Council has so added.) (Emphasis only four ask that we vacate beyond 45 It is cavil July opinion but that we also issue a “expressly” section 13 does not direct “accurately opinion new reflects” so- permit legislators judicial pow- to exercise a “compromise” called that the led to However, majority er. This the cоncedes. rewrite of VIII of the Constitu- Article majority legislators on the asserts that sat They urge tion. the Court to consider the amendment, the the Commission before legislators “historical” evidence that had on Representative and relies statements functioned members of the Commission Moss James on the floor of the House and prior to 1984 and that some members of the pamphlet support the voter information to Legislature thought they would to continue legislative appointment view that to and ser- legis- so function after the amendment. The vice on the Commission are not functions language to lators also refer in the voter’s “appertaining branches, to” the other thus pamphlet explained information that the vari- avoiding Separation the of Powers Clause provisions proposal ous in the to submitted entirely. Such legitimate- statements cannot adopted the was later as Arti- electorate that ly plain used to language override the of legislators cle VIII of the Constitution. The the Constitution. argue that such evidence reflected “the clear ability preserve intent to the of ¶46 holding majority The central of the appoint and serve the Judicial Conduct opinion is the exercised Incredibly, majority Commission.” of “judicial” Commission in are not nature grants request this Court of these non- subject V, therefore not 1. to Article parties ignores positions of Con- argument only contrary long- The is not Commission, Governor, Attorney duct but, authority importantly, established more General, and Judicial The “new Council. seriously V, subverts Article section 1 and properly information” is asserted that is not V, independence of that Article but, importantly, before the Court more sim- discipline— secures. ply legitimately plain, cannot override by way impeachment3 whether of or other- clear Constitution. judicial wise —is the power. exercise a legislators’ 43 The answer to the short recog- The 1896 Utah explicitly Constitution argument is section makes Senate, acting nized when explicit person charged no ex- judicial extreme discipline— most kind of ercise legislative power may of a exercise judicial impeachment power. See —exercised power belongs to another one Const, (1896). art. In re departments government “except the Handley’s senate, Estate “The stated: while permit- cases herein expressly directed or sitting impeachment, as a judi- court of has ted,” is, in the Constitution itself. authority, necessary, cial try so far as such 44 Article section 1 of the Utah Con- issues. Otherwise the constitution has stitution states: any part judicial entrusted power

The legislature.” the state to the 15 Utah (1897). of Utah shall be divided into distinct P. principle three 830-31 departments, Legislative, Commission, the Execu- purpose, function its sole tive, Judicial; person judicial definition, discipline. By and no the Com- charged powers prop- with the exercise performs “ap- mission therefore a function erly belonging pertaining judicial to one these departments, to” the branch under Arti- shall appertaining majority’s exercise proposition cle section 1. The impeachment powers granted Legisla grant judicial authority ture, including impeach a Legislature part form the checks and officer, VI, 17- embodied Article sections governmental departments balances between 20 of the Utah Constitution. While found in the found in the Utah Constitution. article, express these an sections are Const, 13). VIII, § identifying art. does not exercise Commission reviewing appropriate to” the standard for Commis- “appertains function that orders, Zimmerman stated that stat- Justice simply wrong. As this Court branch adopt not make the the standard we “should Young: ed in factotum, lacking a mere real Commission plays Commission The Judicial significant play power and without role importаnt, not a determina- highly albeit judicial discipline process.” Id. at tive, role the administration deemed it to review appropriate 862-63. We conducting by investigating and discipline much do determinations as we Commission complaints hearings regarding confidential relating attorney discipline decisions mat- Consequent- justices judges. against Incorporating this standard into the ters. type ly, exercises a the Commission decisions, reviewing context of operates authority and within we stated: judicial branch. will overturn Commission’s We not. op. pointed also out in Original 84. We arbitrary, findings of fact unless jurisdictions “have also Young that other error, capricious, plainly in but we re- simi- commissions with held conduct right to inferences from the serve the draw authority lar be within the to may which differ from the Com- .basic facts (citing v. Neva- Id. Whitehead branch.” grant inferences and defer- no mission’s 110 Nev. Discipline, da on Judicial Comm’n ence ultimate decision to Commission’s (holding P.2d 913 executive appropriate to an sanc- constitutes what charges disciplinary prosecution branch tion. against judge violated before commission at Id. 865. separation Con- clause Nevada

stitution)). Indeed, rejected ap- Worthen require proach of some states that the Court ¶47 denigrates impor- majority The engage both to in de novo review of fact judicial function served the Commis- tant acknowledged that law. Worthen some relegate majority seeks to sion. review, “de on the argue that we should novo nothing to more than a fact- Commission record,” legal and factual conclusions both “group” approximates function finding whose Commission, rejected expressly but such Court, where gatekeeper a to this that of doing in- arguments. so is Our reason states, adjudication real occurs. The Court majority’s it belies the structive because relation- Conduct Commission’s “The Judicial role as of the Commission’s charаcterization Court in matters of ship Supreme to the advisory. merely preliminary and judicial discipline preliminary and adviso- is no preceding statutory Although a standard of deference ry, as it under added). ¶24 har- questions be made to regime.” Maj. factual could op. (emphasis of the constitu- flatly monize with and mischaracterizes That misstates Commission], [creating provision tional and function the Commission. role reading not be Zimmerman, such a would consistent the author of re Justice (Utah 1996), relationship Worthen, stated with the structural 926 P.2d 853 First, merely is court. there a Commission therein that Commission is suggests suggestions nothing in the constitution that fact-finding “group” that submits is as a mere the Commission that the. Commission func- this Court but function court. Yet way evidence collector analogous to that of a district tions in a if re- precisely its function we deciding attorney disciplinary would be matters. court questions of fact. any deference on “The Con- fused it at 863. stated: See id. Worthen imple- legislation ‘complaint[ provides upon constitution ] stitution clearly contemplate menting its directives any justice judge’ against the Commission signifi- will have a responsibility performing that the Commission assigned is evidence of play gathering considering at cant role investigation, the evidence misconduct, thereafter, making determinations entering an order hearing, fact, recommending sanctions (quoting at 862 of sanctions.” Id. By granting Ferry, some measure of Matheson v. this court. 1982) (Stewart, J., (Matheson findings concurring) to the Commission’s deference II).

fact, honoring will be we role. 50 The doctrine added). Indeed, (emphasis Id. at 864 said embodied the United States Constitution novo that de review Commission’s contemplates judiciary. also an independent findings “demean role of factual would country, “In our the belief in the value anof judicial discipline pro- independent judiciary pervasive, federal at cess.” Id. even sacrosanct.” J. Honorable Clifford histоry taught judiciary Long has Wallace, Sys- Judicial Administration in a conflicting the forum hears evidence Independents: Only tem A Tribe with superior capability factual has resolve (1978). Chiefs, 1978 B.Y.U. L.Rev. questions, particularly where witness de- public “[N]o feature of our institutional life meanor is concerned. There is no reason likely preserving gov- more essential to ignore teaching only dealing when ernment of laws than an in- honorable and Moreover, judicial discipline. it can dependent judiciary.” Shane, Peter M. WAo argued political function of a May Discipline or Judges? Remove Federal judicial conduct commission—-to lend neu- A in I Analysis Constitutional Research credibility handling allega- tral Papers the National Commission on Ju- against judges tions of misconduct while 1, Discipline dicial & 2 Removal assuring subjected judges to effec- Shane, Discipline: [hereinafter A Judicial discipline, tive and measured where neces- Analysis]. Constitutional sary requires ac- Commission’s — ¶ 51 Such sentiments often most relate to by a tions be reviewed court with some independence, qua decisional “sine non deference. judicial independence.” of Gordon Bermant (citation omitted). Id. Wheeler, & Russell R. Federal Judicial In- ¶49 opinion majority is devoid of dependence Symposium: Judges Federal any meaningful analysis of purpose and Judicial Branch: Their Indepen- section 1 intended further. to Accountability, dence and 46 Mercer L.Rev. purpose pres- The central of Article is the V 835, (1995). However, judicial 838 indepen- integrity independence ervation of the and of dence, protected by as sepa- the doctrine of departments gov- the three of branches or powers, requires “procedural ration of also ernment. As in Young, we stated Utah’s independence” and administrative which “ex- Separation of Powers Clause to independence.” ist serve decisional Id. preserves sanctity judiciary of thе and ¶ 52 Administrative independence .refers law, helps to ensure the rule of and the judiciary of to review the political partisanship ma- transient conduct of impose its own members and dis- joritarian preferences, govern shall in our measures, ciplinary necessary, where without impartial courts.... Adherence political the interference of the branches. law, rule system of so to our crucial of “Except perhaps surrounding for concerns government, only prevail judicia- can if the processes judicial of nomination and con- ry apply is able to rule of law free from firmation, pertain no more directly issues partisan influence. quality judicial integrity indepen- of ¶ Original op. judicial tenure, indepen- judicial 76. dence than the issues Absent com- dence, Shane, pensation, discipline and removal.” Discipline: A Constitutional Anal- concept tripar- whole fundamental of a added). at 2 ysis, (emphasis system government

tite coequal ¶ government, and coordinate branches of 53 The doctrine of powers well deep-rooted as our tradition of limit- provides argument a “decisive flat ing government written impermissibility political mechanisms constitution, jeopardized, judicial would be if not discipline impeachment.” other than destroyed. added). (emphasis at Id. 10 by political judicial rulings ¶ are influenced con- has embraced 54 This Court Ohms, forces. City v. Justices Lake cept. Salt stated, “Any at- and Durham Zimmerman stated, attempt Young “Any 57 In judicial of the tempt place exercise therefore, judi- Legislature, make judiciary of the the control power outside subject leg- discipline influence cial integrity ‘the fundamental threatens threaten the fundamental in- islators could ” (Utah 844, P.2d branch.’ op. Original tegrity of the branch.” 1994) Investigation, (quoting In re Criminal (internal omitted). quotes We also (Utah 1988)) (Zimmerman, 633, P.2d pointed that no branch out J., Thus, Durham, dissenting). J., criti- an- should be allowed “even embarrass inquiry Clause Separation to a of Powers cal branch,” recognizing the deleterious other “compromises whether the statute at issue impact of decisions influenced independence judiciary.” the essential resulting public politics and the diminished J., Durham, J., (Zimmerman, at 864 Id. judiciary. (citing Id. esteem for omitted). (internal dissenting) quote Ferry, Matheson v. (Matheson I) 1982) J., (Howe, concurring); a more principles, these 55 With Shumaker, 200 Ind. 164 N.E. re- description of the Commission’s accurate (1928)). Court, mind, turn lationship I to this legis- participation members oí the question participation whether the highly lative sensitive area of branch violates the legislators on possibili- judicial discipline the distinct has Arti- separation of under doctrine of ty embarrassing branch Y, Ann. 78-2-27 cle section Utah Code partisan potential interjecting the influ- to, legislative appointment provides for disciplinary process, with ence in the on, legisla- If participation Commission. altering thinking potential effect could tive involvement the Commission in cases over which actions of independence judiciary, of the threaten the Thus, though preside. even the Commis- of violation that involvement constitutes are not self- sion’s recommended sanctions Clause, it com- Separation Powers because of high executing, a barrier must insulate by protected fundamental interest promises a any kind proceedings from of commission definition, provision. By legislative partisan political influence. “ap- in engaged members would be province of Id.

pertaining to” the exclusive branch, authorizing and the statute ¶ fact, the In reasonable concern that 58 legislators to do so unconstitutional. may used to encroach the Commission legitimate “upon exercise of discretion the Senate and the 56 The President of led of the branch” members ten Speaker appoint four of the House deferentially in review Court Worthen to less up making With- members the Commission. compari- findings factual the Commission’s doubt, disci- out the exercise Commission agency. of a court an son with those trial authority may against a plinary be used depart our nor- “We must therefore from held judge views differ from those whose factfinding by to trial mal rule of deference legislative Commission. agencies. administrative We courts and Likewise, to four legislative power appoint responsibility, upon nondelegable have a the Commission and members of scrupulous to appeal, an undertake may membership on the also to searching examination of record as- appearance political undue in- create the evi- certain whether there was substantial fluence, ever or not that influence whether support council’s factual find- dence to may This di- potential materializes. alone ings.” judiciary independence minish Worthen, respect (quoting P.2d at 864 re expected to 926 eyes public of a that is 1114, 784, Zoarski, 227 632 A.2d 1118 may seriously Conn. judicial opinions with which omitted). (1993)) (internal juris- quote Other compro- disagree. integrity could be expressed concern for need increasingly if dictions have mised it believed becomes 598 provide persons ordinary intelligence “a check an errant commis-

to derstood ” expressed The Ohms, Id. ‍‌​​​​‌​​​​‌‌​​‌​​‌‌​​​‌‌‌​‌‌‌‌​​‌​​‌​‌‌​‌‌‌​‌​‌‌‍at 865. concerns experience.’ sion.” 881 P.2d at 850 n. judi- in Worthen demonstrate fears (quoting Phillips, 936, 14 State v. may be used to (Utah cial conduct commissions 1975), 938 disavowed on other political ends the detriment advance 439, grounds, Taylor, 664 P.2d 448 n. judicial independence are not unfounded. (Utah 1983)) (citing 4 University Utah v. majority Examiners, simply 408, 59 The incorrect Board 2d 295 P.2d arguments upon it advances. relies It (holding if constitutional VIII, extrinsic evidence to construe Article provision is clear “then extraneous or con 13 of the Constitution and comes temporaneous may construction nоt be re legislators the incorrect conclusion that to”); Society Separationists, sorted Inc. v. to, legislative appointment intended voters (Utah Whitehead, 1993) P.2d on, participation Had Commission. (Stewart, J., dissenting) (stating that intended, legislators so and voters duty uphold Court’s “sworn the lan [is] stated, as would have so constitution,” guage of the and it “shrinks requires. powers provi- duty” from its when it “refuses ... to en only permits exceptions that are “ex- plain unambiguous meaning” force ” pressly permitted pro- directed other constitution); Forsyth, Brinkerhoff VIII, visions of the Constitution. Article 1989)). provide any express section 13 does not such exception. argue Ohms, can com- According the reason for promise Legislature'in at the debate over prohibiting rule contempo- extraneous or revision, the 1984 the statuto- facially plain raneous construction of and un- ry history judicial qualifications com- ambiguous provisions is that prior when an it was almost “prevents judges ‘finding’ the rule an totally nonfunctioning entity,4 and informa- ambiguity plain language in even the most pamphlets nothing proves tion voter statutory provision constitutional or as an more than pamphlet what the author of the legislative history excuse search the in an thought, beginning have but the justify attempt interpretation they pre- argument end is that Article Ohms, fer.” 881 P.2d at n. 14. provide expressly section 13 does not Worthen, legislative appointment years ago, and service on 62 Just two Moreover, majority’s Commission. effort stated: to avoid these fundamental constitutional Here, cases, as in other “when faced with a precepts by arguing that the Commission question statutory [or constitutional] judicial power does not is exercise astonish- construction, plain we first look to the ing. proposition That is contrary to the Con- language of the [or constitution].” statute stitution, law, case and common sense. statutory construction, our rules Under ¶ 60 “new This extrinsic cannot evidence” beyond plain we need not look lan- plain be used to language contradict guage provision unless we find 1, VIII, both Article Article ambiguity some in it.... “ If find section 13. ‘The rule ap- which should be however, provision ambiguous, we then laws,

plied is especially foundational guidance seek history from Constitution, laws such our in- should be policy and relevant .... considerations terpreted applied according plain import language of their as it would be un- Worthen, As part-time charged this Court noted staff with all administrative 1985, Commission, prior was basical- functions.” P.2d 926 at 858. The Commission ly entity. "Although a nonfunctional the Com- $3,500 initially only appropriation. received been mission has in existence in one form or 1985, $12,000 appropriated. In was Thereafter twenty-three years, another for some it has not appropriation ranged the Commission's annual particularly appropria- been visible. Its level of $12,000 $32,000 July until 1995. See id. low, initially very tions was and as a conse- at n. 2. 858 quence, one-person, it had to malte do with a

599 APPENDIX Although rules of constitutional con- always to our not identical struction 10, July 1998 construction, statutory our case rules starting place for law confirms STEWART, Justice: provision is the analysis of a constitutional 65 The Judicial Conduct provision itself. proposed public reprimand that a issued (internal Worthen, quotes 926 P.2d at 866 Young parte for ex against Judge David S. (alteration omitted) in original) and citations attorney party for a communications with added). addition, In various of (emphasis Judge Young. pending before a ease jurisdictions have stated that our sister Young review of the Judge petitioned for provision, resort interpreting constitutional recommendation, findings Commission’s prohibited unless extrinsic evidence findings asserting Commission’s ambiguous. language is See in error and that the Commission as were Smith, v. 132 Ariz. McElhaney Cattle Co. §Ann. 78-7- constituted under Utah Code 801, (1982); 286, Opinion In re P.2d 805 645 27(1) Separation provi- violates the of Powers Justices, (Del.1990); 1186, 1189 575 A.2d We sion of the Utah Constitution. hold (Del. State, 397, v. 450 A.2d 399 Marker currently vio- the Commission as constituted Smith, 1982); v. 607 League Florida Cities Article the Constitution. lates Andrus, (Fla.1992); 397, v. Evans So.2d (1993); 6, 467, Loui Idaho Cont., State, v. Assoc. Inc. siana Gen. I. BACKGROUND 1185, 1196(La.1996); Connolly, Rice So.2d City Park Board Edu- 66 Gannon v. (Minn.1992); 241, 247 N.W.2d Scott cation, CV., was filed Case No. 940300027 Commonwealth, 247 Va. 443 S.E.2d parent expelled was a student who (1994); Washington Dev. Fin. Economic gun possession of a on school from school Grimm, Auth. v. 119 Wash.2d grounds, seeking reinstatement the stu- (1992). 606, 612 Judge Young assigned was school. dent Y, plain language The of Article sec- periods. during case two different time that, except “expressly 1 states where tion presiding case the over the second Before person in one permitted,” directed or no time, Judge Young parte had an communi- ex government can “exer- department of Utah attorney dis- cation with the school appertaining to either of cise allegedly attor- threatened to award trict section 13 does the others.” against ney plaintiffs fees to the permit legislators to expressly direct or attempted if the undertake district' district use of ex- exercise functions. punitive against action student. further plain language avoid trinsic evidence to by the attorney issue settled fee improper. reassigned parties Judge Young was after sum, discipline is a alleged, howev- case. The school district appertains function that er, Judge Young had the settle- coerced exception express to the branch. Absent an awarding through threat attor- ment his prohibitions of Article section The ney against the district fees district. Constitution, which has effect Utah complaint an filed official superintendent in the precluding legislative involvement Commission, accus- Judicial Conduct the extent allowed under sec- Commission to Judge Young ... ing of “direct extortion 1(a) 1(b) 78-7-27, subsection tion City] agreement [Park from the secure majоrity and I The both unconstitutional. Education].” [of Board VIII, that Article contains agree section ¶ a formal exception. 67 The scheduled express Extrinsic evi- Commission no such Young disqualify hearing. Judge by for- moved proffered four dence all participating panel in the serving now from merly on the Commission cannot appointed by Presi- language of of the Commission plain to circumvent the be used Speaker of the dent of Senate Separation of Powers Clause. rulings. Court to the In Commission’s See Worthen, re 926 P.2d at 862-63. motion, The Commission denied the House. hearing by a Legislature and a formal was conducted 70 The established the Ju- panel of six members of Commission. pursuant dicial Conduct Commission panel six Three of the members were mem- terms of Judicial Article of Utah Legislature. Constitution, VIII, bers of the Utah State The Article section This 13.1 Judge Young Commission found that had provision authorizes in- the Commission to engaged prejudicial in conduct to the admin- vestigate hearings and conduct confidential justice public istration of and recommended a complaints concerning against judges. The reprimand appropriate discipline. as may recommend to this Court Judge objections Young filed censure, Commis- reprimand, sanctions such as a sus- findings. sion’s The removal, Commission denied pension, compulsory or retirement objections these certified record judges engaged' improper found to have this Court. conduct.2 provides 71 Section 13 also Judge Young attacks numerous find- Legislature “provide composi- shall for the ings addition, by the of fact Commission. procedures tion and of the Judicial Conduct composition he contends that the Judi- 78-7-27(1) § Commission.” Utah Ann. Code cial principles Conduct Commission violates provides: by established Arti- cle 1 of section the Utah Constitution. The membership of the Judicial Conduct VIII, Commission established Article VIII, Article section of the Utah Section 13 of the Utah Constitution con- requires Constitution this Court to review all sists of: proceedings conducted the Judicial Con- (a) Repre- two members of the House duct approve any pro- Commission and to appointed by speaker sentatives be posed may sanction before a sanction Representatives of the House of for a two- Worthen, imposed against judge. See In re term, year than more one of whom 1996); 862-63 see also may political party be of the same as 78-7-30(5). Ann. Code The issue of speaker; whether the Judicial Conduct Commission is (b) lawfully under Article constituted two members of the Senate to be VIII, 1 and appointed by Article raises an president issue of the Senate requires two-year term, law which no deference for a not more than one 1. Article section 13 of Utah proceedings Constitution commission’s as to both law provides: may permit fact. court also the introduc- review, tion of additional After evidence. its A Judicial Commission is estab- shall, Supreme just Court as it finds investigate lished which shall and conduct con- proper, implementing, rejecting, issue its order hearings complaints regarding against fidential modifying or the commission's order. The any justice judge. Following or investiga- Legislature by provide statute shall hearings, tions and the Judicial Conduct Com- composition procedures of the Judicial censure, reprimand, order the Conduct Commission. removal, suspension, involuntary retirement rewritten in 1984. 1984 any justice judge following: for the revision, S.J.R. 1. Laws Prior to (1) action constitutes willful miscon- provide VIII did not for a conduct com- office; duct in Rather, mission. the former section 11 of Article (2) punishable final conviction of a crime provided VIII could "be removed law; felony under state or federal from office the concurrent vote of both houses persistent perform willful and failure to Legislature, voting separately.” of the Const, each Utah duties; judicial VIII, (1971). art. 11 (4) disаbility seriously interferes with duties; performance judicial the "[Wjhile of or speaks 2. the constitution of the Com (5) prejudicial ’order,’ conduct to the administration entering mission’s nomer, an that term is a mis justice brings of which office into ... because the Commission’s has order disrepute. by no effect whatsoever it is first unless reviewed implementation any Prior to the of commis- this and court this court determines to enforce order, Worthen, Supreme sion shall review it.” Court In re 926 P.2d at 862.

601 charged powers prop- with the exercise of of erly belonging depart- to one these political party may be of the same whom ments, apper- exercise shall president; as others, except in taining to either of the (e) the board of members from three expressly permit- cases herein directed Bar who of Utah State commissioners ted. by of commis- appointed be the board shall separation powers 74 of of The doctrine Bar a four- Utah for sioners of the State historically has viewed essential been term; year protection rights of principle in the individual (d) persons two not members of prevention of the and and in the liberties Bar, by appointed who shall be power. “The framers governmental abuse of governor, with advice and consent prin Constitution considered [Utah’s] of terms, Senate, four-year for not Y, 1 to ciple in Article section be of embodied of be of the more than one which provi importance wrote such governor; political party as the and same by implication, prevent erosion (e) record, judge of a trial court of one constructions, any means strained by be selected the Judicial Conduct enfeebling of would have effect four-year term. for a overarching principle great, of Young Judge Ferry, that subsec- 641 P.2d government.” 72 contends Matheson 78-7-27(1) (a) 1982) (b) (Utah J., (Stewart, of section violate concur tions 689-90 (Mathesоn I)3 V, ring dissenting) of the Constitution. He Article section challenge. grounds He two submits the federal Constitution Unlike V, prohibits Article section 1 argues that states, many the constitutions of of Legislature appointing from separation Constitution includes written (2) Ar- the Judicial Conduct Commission provision has a powers provision, and V, individual ticle section bars degree specificity greater that is than is sitting of the Commission. as members that have a found in most state constitutions ground in turn. We address each Separation separation powers provision.4 system, example, powers in the federal THE AND II. ARTICLE SECTION merely by implication from the is mandated COMMISSION JUDICIAL CONDUCT the United States general structure of Con- result, aAs the United States stitution. Constitutionality the Power A. more less Supreme can flexible and Court and the President Speaker House establishing specific in the federal doctrine’s Appoint Members Senate Tribe, H. Lawrence outer boundaries. See Judicial Conduct Commission (2d Law, 18, 19 American Constitutional provides: Article ed.1987) (noting in current greater latitude judicial interpretations of doctrine since the State contrast, century). By nineteenth into three distinct the late Utah shall be divided interpretations of Execu- the Utah doctrine departments, Legislative, Judicial; express tive, person must conform and no Court providing section 8 now the Constitution. Article that a statute for the 3. Matheson I held expressly permits Senate confirm nominating Legislature’s participation in candi- appointed of record the Governor. courts requiring Senate dates for office appointment of approval of the Governor’s control Hawaii, Kansas, amounted effective Alaska, Delaware, candidate selected Georgia, 4. Legislature Carolina, offensive to York, was therefore Maryland, North Da- New North Carolina, kota, Ohio, case was followed This Wash- Pennsylvania, South (Utah 1982) (per Ferry, provide expressly Matheson v. ington, do and Wisconsin curiam) (Matheson II), which held that senatori- constitutions for in their judicial appoint- gubernatorial government. among See al confirmation of the three branches of elections, ments, Mgt. Agency Planning Timpanogos & Water in addition retention Dist., pre- Conservancy II Water the Utah Constitution. Matheson Central Utah 562, violated 1984). n. 2 article of revision to the ceded 602 give with specific

tution combine effect underlying to the doctrine V to Article assure Y, in Article employed the Constitution governmental power the exercise of delineating principles 1 in section shall be based on the rule of law and not specify separation of of how the doctrine Const, I, (“No caprice. § Utah See art. 7 applied. powers should be life, person deprived liberty shall be of V, goes beyond 76 Article section far property, process law.”); without due of id. proscribing power simply of exercise (guaranteeing § 11 “every person, for an provi- of branch one another.5 injury him person, property done in his prohibits sion also officials one branch reputation, remedy by shall have due course powers exercising properly belonging from law, of which shall be administered without Moreover, by requiring another branch. unnecessary delay”). denial or separation among powers of the branches of prohibits 78 Article section the offi- except government, provided as otherwise government of cials one branch of from exer- itself, Article the Constitution cising government of those functions preserves sanctity judiciary of the properly belong to another branch. See law, helps to ensure the rule of and not Timpanogos Planning, 690 P.2d at 567. In political partisanship majoritari- or transient addition, delegate one branch not its preferences, govern shall our courts. powers functions or to another branch. See branchеs, and executive both Ohms, City Salt-Lake P.2d through popular of which are staffed elec- (Utah 1994) (enumerating cases which tions, naturally attuned the volatile powers functions or were held to be nondele- voters, opinions standards, evolving moral gable). legisla- The essential function of the shifting economic forces. Adherence to government, general tive branch as law, impartial rule of so crucial to our proposition, general “is to enact ap- laws of system government, prevail only can if the plicability, provide normative standards of judiciary apply is able the rule of law free society conduct provide and to for the partisan influence. organization operation govern- of the ¶77 “[A] direct or indirect influence of I, (Stew- ment.” Matheson 641 P.2d at 686 judicia- of the other either branches over the art, J., concurring dissenting). More ry through power appointment, by the' precisely, Legislature “possesses all law- conjunction or in powers, itself with other is making power not denied it the Utah or coercive and the independent undermines Constitutions, the United [but] States it does I, functioning judiciary.” Matheson possess powers government.” not all the (Howe, J., concurring). P.2d at 681 (internal omitted); Id. citations see also 16A judicial independence, Without (1998). Am.Jur.2d Constitutional Law 262 concept tripar- the whole fundamental of a ¶ 79 Article VII of the Constitution vests system government coequal tite general power in the executive branch the government, and coordinate branches as appoint positions officers whose are estab- deep-rooted well as our tradition of limit- lished Rampton under Constitution. See ing government a written Barlow, 2d constitution, jeopardized, if would be not (1970); I, see also Matheson 641 P.2d at 678 destroyed. (stating separation powers ‍‌​​​​‌​​​​‌‌​​‌​​‌‌​​​‌‌‌​‌‌‌‌​​‌​​‌​‌‌​‌‌‌​‌​‌‌‍provi- II, (Stewart, J., Matheson 657 P.2d at 247 protects sions concurring). provisions power).6 Other appointment Cоnsti- executive’s Ramp- clerks, 5. "agents, "[T]he doctrine is the own engaged and ministers gate harnessing control the reservoir of powers pertaining govern- the work to such branch of government of a the at will "[F]or,” Rampton, ment.” at 383. people.” Timpanogos Planning, 690 P.2d at Rampton, stated in allow “to the executive to 565. appoint necessary carrying the officers out independent of the functions of an branch or appointment The executive branch’s power is prevent division of would that divi- exclusive, govern- however. Each branch of being independent.” sion from Id. possesses appoint ment the inherent specifically that Court has held even when given power by Legislature ton, that the issue to be the Court stated provide by ap- Constitution “to law” for the was, Legislature “Can the reserve decided officials, merely that pointment of means upon presiding confer offi- unto itself or Legislature power pro- that the has the to cers, power appointment?” 464 P.2d made, appointments vide for how should be precise That is also the issue at 380. Legislature but not that the itself make Rampton that a instant case. held statute II, appointments. such Matheson that authorized both the President of the (Stewart, J., concurring). power at 245 Speaker Senate and the House law, provide by appointment “to for the of of- appoint members of the Board of three power ficials does not include the to make V, Higher Education violated Article section appointments positions the executive Rampton, quoted 1. Id. at 383. this Court judicial departments.” Id. Because Arti- Justices, 302 Mass. Opinion VIII, “expressly cle section 13 does not di- (1939): N.E.2d 807 provide!]” Legislature rect!] or for the however, opinion, are of the We legislative power officers to exercise the power appointing such members cannot appointment to the Judiсial Conduct Com- upon conferred law the President of mission, VIII, of Article sec- Speaker the Senate and the of the House exception tion 13 does not fall within the Representatives, whether or not such V, govern- 1 that section allows one required members are to be chosen from ment branch to exercise the of anoth- among the members of the and of Senate er. with what held in Consistent this Court power appoint the House. “The Rampton, Legislature may “usurp poiver to remove are in their na- officers any of the functions confided the constitu- powers.” ture executive department, tion to such [another] as the added.) (Emphasis power appointments make office.” principle Rampton 80 The on which Rampton,.464 (quotations P.2d at omit- (a) governs was based here. Subsections ted); I, see also Matheson 641 P.2d 674 (b) 78-7-27(1) § permit Ann. Utah Code (Utah 1982). Speaker Represen- both the of the House of tatives and the President of the Senate to Legislators B. Competence to Sit as appoint two members of the Judicial Conduct Members Conduct Com- By vesting Commission. these power appoint officers officials exercis- § Ann. 82 Under Utah Code 78-7- ing judicial power, Legislature authorized 27(l)(a) (b), two members of the Judicial principle a breach of the that one branch of appointed from Conduct Commission are government may not exercise the Representatives two House of specific another branch absent a constitution- appointed Judge from the Senate. provision authorizing al the exercise of such Young argues performs that the Commission power. 78-7-27(l)(a) function and that argues 81 The Commission (b), providing legislators may sit language in Article section 13 of the Commission, legis- as members of the allows Constitution, provides Leg- “[t]he legislative and lators to exercise both provide for islature statute shall the com- contrary prohibition functions to the of Arti- position procedures of the Judicial Con- agree. cle 1. We section Commission,” specifically duct authorizes the precludes legis- Legislature appointments to make 83 Article previously serving Commission. This Court has re- lators from as members of the Com- II, jected argument. provides See Matheson 657 mission. Article (Stewart, J., stating majority person charged with the exercise of P.2d at 245 “no belonging “concurring” opinion); Rampton, powers properly view in to one these I, 380; departments, exercise P.2d at see also Matheson 641 P.2d at shall (Em- (Howe, J., Indeed, concurring). appertaining to either of the others.” 680-81 provision in separation powers Constitution, provision a identical to Nevada added.) language provi- phasis 1 Article Utah Constitu- interpreted “as it plain and must tion).7 by persons ordinary would be understood intelligence experience.” and State Phil- Any attempt by Legislature, 86 (Utah 1975). 936, 938 lips, 540 P.2d therefore, subject judicial discipline to make to the influence of could threaten ¶84 The Conduct Commission Judicial “ judicial integrity of the ‘the fundamental highly important, albeit not a deter- plays a ” Ohms, (Durham, P.2d at 867 branch.’ 881 minative, judicial in the administration of role J., Zimmerman, J., dissenting) (quoting and by investigating conducting and discipline 633, Investigation, P.2d In re Criminal 754 complaints hearings regarding confidential 850; 1988)); id. at see also 642 see judges. Consequently, against justices and I, (Howe, J., Matheson 641 P.2d at 681 con- type judicial the Commission exercises (“[A] curring) direct or indirect influence of judicial authority operates within judicia- either of the other branches over the government. 16A branch of See Am.Jur.2d ry ... is coercive and undermines the inde- (1998). § Law 260 Necessar- Constitutional “ judiciary.”); pendent functioning of the 16A judicial power ily, the branch ‘nec- has (1998); § Law 260 Am.Jur.2d Constitutional integri- essary protect fundamental [its] ” Relating ABA to Judicial Disci- Standards ty’ delegated, not be Retirement, Disability pline and Standard 2.1 Ohms, judicial P.2d at exceрt to officers. 881 (1978). (quoting Investigation, 849 In re Criminal (Utah 1988)). 633, P.2d ¶ Moreover, government no branch of Indeed, itself, judicial it is the should be able to control or even to embar- I, VIII, 13, that another establishes rass branch. See Matheson (Howe, J., specifically concurring); at Commission and Judicial Conduct Shumaker, 408, 409, recognizes judicial nature of 164 N.E. 200 Ind. (1928). any is authorized to exercise 63 A.L.R. Of course the Commission mandating disciplinary against that this Court review all Com sanction recommended judge undoubtedly findings pertaining judge. to recommended will embarrass that point proposition discipline judges requiring that But that is not the discipline government be entered that one branch of should not be actual orders Const, Court, not the See Utah able to embarrass another branch. Commission. What Worthen, 13; strictly protected art. In re 926 P.2d at to be from embarrassment jurisdictions judi integrity Other have also held in this case is the disci- influence, pline any politically partisan cial conduct commissions with similar author indeed, ity appearance of such an influ- to be within the branch. See even the participation Nevada ence. The of members of the Whitehead v. Comm. Jud. Disci pline, highly P.2d 913 branch in the sensitive area 110 Nev. (holding prosecution discipline possibili- that executive branch of of has the distinct against judge ty embarrassing disciplinary charges violated branch support support position, the case 7. In of its Commission cites does not position In re Commission on Judicial Tenure & Disci- Commission’s deed, in the instant case. In- (R.I.1996). given pline, of Article section of 670 A.2d 1232 Some members charged person of the Rhode Island Commission on Judicial Ten- the Utah Constitution that no exercising department Discipline also served as members of of one ure and Legislature. apper- Rhode Island The Rhode Su- "shall exercise Island preme evenly taining departments, Court divided on of the other” was the issue of either composition appear whether the of the Commission vio- which does not in the Rhode Island con- separation powers provision, lated the Rhode Island constitutional stitutional there powers provision. equal Given the division of can be little doubt that the Rhode Island Su- issue, preme held that the Rhode court on that critical the court decided Court would have solely pro- illegally the case on the basis that the statute Island Commission was constituted had viding composition contained lan- for the of the Commission the Rhode Island Constitution Therefore, presumed guage provision. to the Utah to be constitutional. similar Provided, Legislature: member of Militia, appointments That in the State partisan influ- interjecting potential of justice notary public, the offices of disciplinary process, with the ence in the commissioner, peace, United States altering thinking potential effect of class, not, postmaster of the fourth shall in cases over which actions section, meaning within the of this be con- Thus, though preside. even the Commis- profit sidered offices of or trust. recommended sanctions are not self- sion’s executing, high barrier must insulate com- ¶ emphasizes legis- 92 This section that a any proceedings parti- kind of exceptions lative with a office is few not Having political influence. made this san compatible with other state office and however, point, emphasize, that our rea- underscores the intent of the constitution’s general soning solely policy rests on consid- legislators perform only framers that should legislators the conduct of erations not on legislative By accepting appointment duties. have heretofore sat on the Commission. who Commission, legis- to the Judicial Conduct policy It with which we are is constitutional lator serves a second office. While article here, personalities. not concerned VI, house, section 10 makes еach and not the courts, judge qualifications

¶88 of its Finally, we note that one of the (Utah members, Evans, State v. 735 P.2d 29 great constitutional checks and balances is 1987), legislators exposed should not be Legislature impeach forfeiting membership the risk of their in the judges and executive officials. See Utah Const, VI, However, legislature by assuming §§ a second office. art. 17-19. the ex- impeachment process istence of the does not ZIMMERMAN, Justice, concurring: any way lessen the need for strict adher- ¶ ence to the of Article section 1 as dictates agree proposition I with the basic provision legislative applies partic- majority’s opinion appointment ipation composition in the and administration legislators to the Commission the Pres- of the Judicial Conduct Commission. Speaker ident of the Senate and of the House by legislators

and service on the Commission VII, violate article section 1 and article . II. I section 10 of the Utah Constitution. also agree with Justice Howe’s statement Chief 78-7-27(l)(a) 89 We conclude by legislators that service on conduct (b) violates Article section 1 of the VI, implicates commission article section 6 of composition Constitution. Because the the Utah Constitution. unconstitutional, Commission conclusions, findings, and order of the Com- agree majority 94 I cannot with mission are null and void. however, opinion, agree I because cannot regarding rhetoric the na-

with some ¶ 90 Associate Chief Justice DURHAM ture of the branches. and Justice concur in Justice important RUSSON I think it to note that I find noth- opinion. STEWART’S ing suggest in the record to that service legislators on the conduct commission has HOWE, Justice, concurring: Chief any way proceedings against affected the However, Young. Judge the constitution only 91 I write concur and to state prohibits establishment of structures that are my opinion membership inconsistent Utah’s the Judicial Conduct Commission also vio- dоctrine, merely actions individuals VI, 6 of the lates Constitution evils at which the doctrine is which constitute Utah, provides: directed. person holding any public No office of legislature authority 95 I am sure that can profit or under of the Unit- trust States, State, remedy ed or of this shall be a and will the defects of presently constitut- important fulfill its so it can continue ed public that helping to assure the

role subject appropriate, nonparti-

judges are Worthen, In re oversight. See

san 1996). UT 19 Jones,

Kristy OLSEN, Michael Suzanne Murry, Ballard, Quinn, Joseph Louis Hasenyager, Ogden, Dwight James R. Haverlack, Megan Rogers, Grace Jeff Janerich, City, plaintiffs. A. Salt Lake for Tiffany Brown, Carnahan, Martin Fowl Bullock, Whiteman, Larry Wall, Belnap, Roger Paul H. Lake Brown, Salt er Jerald Tony Mecham, Wall, City, for Electric and McMillen. and Lovest McMillan Diane Bucklew, Appellants, Plaintiffs McGarry, City, Lake for Reese Shawn Salt Goodrich General Contractor and Goodrich. Coburn, Craig City, Lake Envi- C. Salt for ELECTRIC, McMillen, Mike McMILLEN ronmental Associates. individually, Reese Goodrich General Contractor, Goodrich, Reese individual King, Kaysville, Spiers. Felshaw Associates, Inc., ly, Environmental Rus Braithwaite, Kanell, N. Theodore E. John Canyon Apartments, Spiers, sell Cove City, Canyon Apart- Lake Cove Salt Ltd., Co., H C & Horne Construction ments. Conditioning, Heating and Mel ‍‌​​​​‌​​​​‌‌​​‌​​‌‌​​​‌‌‌​‌‌‌‌​​‌​​‌​‌‌​‌‌‌​‌​‌‌‍and Air Herin, Appellees. Defendants RUSSON, Justice:

No. 970305. appeal 1 Plaintiffs the district court’s entry summary judgment barring their Supreme of Utah. Court Electric, against negligence action McMillen McMillen, Mike Reese Goodrich General March Contractor, Goodrich, Reese Environmental (collec- Associates, Inc., Spiers and Russell tively, “appellees”). The court held district Ann. 78-12-25.5 that Utah Code plaintiffs’ barred action. We affirm. 18, 1994, April plaintiffs sustained On damage personal property to their as a result Canyon Apartments. of a fire Cove the fire was The fire marshall determined by faulty system started electrical and then spread throughout apartment building required blocking because the fire had either improperly. been removed or installed On 28, 1994, brought April plaintiffs this action against appellees and other named defen-

Case Details

Case Name: In Re Young

Court Name: Utah Supreme Court

Date Published: Jan 22, 1999

Citation: 976 P.2d 581

Docket Number: 970032

Court Abbreviation: Utah