*1 do) pur- for the volunteered ants have damages. plaintiffs’ re-litigating
pose of to the District is remanded matter This determining the purpose for expenses, including concerning these details period and the of time the amount thereof and for such paid, are to be they which damages on the issue of proceedings further opinion. this with as are consistent J., ELLETT, and MAUGHAN and C. HALL, JJ., concur.
CROCKETT, (concurring with Justice: comments). judi- the correct and to me that
It seems is to rule that action for this Court cious the trial court circumstances under the refusing to set aside discretion abused its judgment against the defend- the default judgment to order ants and remanded for trial. and the cause vacated posture put the case This would James B. Lee Elegante, and James M. present what- parties would free both Parsons, Latimer, Behle & Lake City, Salt arguments they desired evidence and ever plaintiffs. involved, issues on the to the court Hansen, Gen., Atty. Robert B. Michael L. thereon any restrictions placing without Deamer, Gen., Leslie, Asst. Atty. Melvin E. the evidence which was ad- analysis of Legislative Counsel, Gen. City, Salt Lake presentation wholly one-sided duced on for defendants. to the trial court.
PER CURIAM: majority of the court agree: (as That the defendants school adminis- teachers) disqualified trators and were not candidates, become being nor from elect- Legislature. ed as members of the Jensen, JENKINS, Wayne Ray Lynn A. A. similarly, they disqualified That are not Bullock, Rodney Height, D. F. mond J. being sworn in as members of the Plaintiffs, Warnick, Merrill Legislature. presented is not pro- this al., Monson, David et S. Robert BISHOP ceeding, decide, and the court does not what State, Secretary of et Lt. Governor status the defendants occupy must in rela- Clerk, Olsen, County al., Box Elder K. B. respective to their school districts dur- al., ing they the time serve in the Legislature et Defendants. (or during the term for were No. 16070. elected). of Utah.
Supreme Court Dec. CROCKETT, (concurring Justice with
comments): outright In addition my concurrence per opinion, curiam I make some *2 771 that the I realize due to derstand apply further comments. the law as intended by disposing the of this case those whose prerogative action it is to fashion it. per opinion, what in the curiam indicated Under the universally recognized rule of Legis- the status of defendant is said about construction, constitutional provisions to their school is lators in relation districts should be interpreted applied in accord- case. because dicta in this Yet other but ance with was what intended by its fram- expressed anticipation views are con- ers. In view of the status of the schools at issue, if and it is frontation that when time, that supported almost entirely from presented, it seems me that some obser- sources, private I cannot see the remotest that is another side indicating vations there possibility the that interdiction of Article justified. controversy to the VI, 6, Section preventing legislators from VI, 10, in Article “holding public Our constitution Section any office of profit or trust,” provides that: nor providing separation for the and prohibit- judge Each house shall be the of the ing any person from exercising powers in qualifications of its election members separate two government, branches of could reasonably regarded be as referring to greater force to the already good This adds school teachers. exercising judi- and sufficient reasons for presuming cial restraint and not to intrude In democratic system, the legislature prerogatives legislative into the is represent is, intended to people: that Accordingly, appears it so branch. unless to be made up general from the clearly beyond that it is a reasonable doubt representing spectrum a wide of the citizen- is some violation of a that there constitu- ry. It is not to be legislators doubted that or provision, tional irreconcilable conflict from ranks education are by affected therewith, the courts should leave re- that calling. interests of that But all other sponsibility express- where constitution legislators also have interests. No one lives ly placed legislature.1 it: with in a It vacuum. is sometimes said that: “In the angels, absence of we get must thought controversy it be that this Should along human beings.” This includes the Court to decide these further is for their well interests as as their varying I share de- pertinent. observations the idea grees of wisdom and folly. may that it The same expressed Justice Wilkins seems respect be said with varying degrees this was to the unfortunate that matter initiated petition integrity requires Court on an put in this a for extraordi- them to writ, general is interests of nary so there no sufficient factual welfare above their foundation, any personal nor par- group assurance all I it interests. think will may directly thereby, gainsaid affected ties that be not be that people from the educa- may or who desire to have their interests tional field have rendered a valuable and Court, so no represented, important before there is service in the formation of this for de- adequate throughout foundation a well-advised state and history. its Insofar as ascertain, I important termination of such an issue. have been able there has never heretofore been challenge to their arguments seems to me that the of our right to legislature. serve in the support Chief Justice in of his esteemed opinion regard problem that school teachers should concern here- in, may agree person are matters which well be I should not be is prerogative actively legislative sessions, considered those whose it engaged policies. work, and its nor in to fashion the law But that committee at the same time he it un- prerogative. supposed engaged Rather is to actively not our in teach- legislature judge 1. That should be sole 395 U.S. 89 S.Ct. L.Ed.2d members, qualifications (1969); Barnes, of its see Ellison v. 23 Utah 63 P. Am.Jur.2d, 44; States, Sec. 81A C.J.S. States 205; McCormack, 44; 107 Powell v. A.L.R. § Having receiving evidentiary should not be record ing, certainly he before us payrolls thereby being the same disabled making pay from two we should meaningful analysis, not at- time. tempt to illuminate from darkness. And us, the record I before Upon the basis *3 restraint, exercising my opinion, that anything that has been persuaded am not duty. the disqualify which should appear made to privileges respon- and the from defendants HALL, (concurring): Justice citizenship by serving in the sibilities of light brevity per of the of the curiam than be so of legislature, any more would in, opinion I I am which concur constrained citizens; nor that the any class of other to make following the observations. deprived benefits of should directly petition Plaintiffs this Court the from field of edu- representation some seeking an Extraordinary Writ1 mandating they can make cation the contribution and the removal of the names of educators or by the defendants so welfare general administrators the Utah Public School serving. System from the list of nominated candi-
dates for Legislature, election to the Utah prohibiting printing of their on names WILKINS, (concurring with com- Justice election ballots and further prohibiting the ments): issuance of certificates of election to them. the Chief Justice’s I like to address would petition fails to assert that “no other in our we “would remiss comment that plain, speedy adequate remedy exists,” failing ques- to answer critical duty” by nor at the hearing time of the thereon was serve member of tion: a teacher “Can any showing extraordinary made of circum- his and retain status as legislature stances as support finding would by this by stating this schools?” that teacher in the necessary support to or warrant the plaintiffs to requested not Court was granting of the relief demanded.2 For notwithstanding the question, answer this these reasons alone the writ could be de- may it interest stimulate. enormous Nevertheless, nied. the Court duly con- further, we were irresistably And even if sidered the petition on its merits. matter, plain- compelled explore to The sole presented by petition issue prevail opinion ought my tiffs not to for our determination is the propriety of fatally abbrevia- defective because educators and school administrators run- us. the record before for, ning to, being elected the Legisla- only pleadings, a record We have here ture of this state. hearing where evidence was devoid of a primarily rely upon Petitioners the “sepa- enough for sup- not us to adduced. It is powers” provision ration of of the Utah infer—or pose, explore presume, pertinent Constitution which reads in part (teachers questions these educators about as follows: administrators) concerning whether . person charged with the ex- to remain if they educators can continue ercise powers properly belonging to Legislature in the Utah or are serve one of those departments, shall exercise doing so because of conflict disabled from appertaining function to either of the separation powers doc- interest and others, . . . trines Constitution1 without an in Utah’s light which would shed in no evidentiary foregoing language record way pre- upon persons charged cludes those with questions. these the exer- V, VI, 65B(a), 1 thereof and Art. 2. See Rule 1.See Art. Sec. also U.R.C.P. Sec. 6. 3. Article Constitution of Utah. 65B, Rule Provided for U.R.C.P. ELLETT, govern- within one branch of Chief cise of Justice (concurring and dissenting): running being for or from elected ment in- branch. There are innumerable another I am in agreement holding that wherein such has occurred in this cidents a school teacher can run for the office of state, government, levels of and at all Representative State Senator highest city state office to that he may lowliest serve in the office to which he is elected. That is as county pre- go What is far as I precinct offices. can agreeing with the Per opinion. Curiam “any of a is the exercise of function” cluded than that different opinion That leaves prin- unanswered the elected. to which one is cipal question which everybody desires to answered, have and is this: “Can a deciding, Assuming, but that educa- teacher, serve aas member of legisla- *4 and tors school administrators are in fact ture and retain his status as a téacher in members of the executive branch of public schools?” not By deciding the obvious usual government, means question reminds one of a man who asked complying with the said constitutional of his doctor if he could take a cyanide pill. be for the provision would successful candi- can,” “Certainly, you replied the doctor. upon simply resign to from one office date The man took the pill and instantly. died assuming another. The doctor vindicated his by saying: advice “I told him the truth. He never me asked petition prema- The in this matter was happen what would if him he took it!” filed this Court has no alterna- turely of whether a teacher can be a deny ground it on the that there tive but legislator necessary has the corollary in- upon granted. basis can be is no relief volved, towit: can he a legislator Admittedly, denial petition of this still be a teacher? all is- does resolve foreseeable future I believe that there a number of sues, however, only it does resolve the issue reasons prevent which would the dual role presently Despite this Court. before legislator. of teacher and point I will out a of who have urgence those would the Court few of them. issues, possible out all reach and address V, Section 1 of the Utah Constitu- duty is not the nor the such function provides person that no charged with in Lyon courts. As was stated powers the exercise properly belonging Bateman:4 government one branch of shall exercise They supposed are not to be [Courts] any function appertaining to either of the hearing forum for academic contentions other two branches of government. As a advisory rendering opinions. legislature, member the teacher exer- cises functions properly appertaining to the address an issue not Should this Court legislative government; as a it, viz., before whether an presently or not he teacher exercises functions appertaining at same may educator serve time government the executive branch of legislator, departure it would constitute a charged that he is duty with the to teach statutory its from constitutional and train the youth of this state to become and its views thereon would be deemed good citizens and to prepare them to make advisory only. living and become useful citizens of the state. These functions exactly parallel MAUGHAN, J., ex- concurs in views with those duties the warden of the state HALL, pressed concurring opinion is, prison deputies; and his seek prisoners J. to teach under their how control Utah, (1951), State, 4. 119 Utah approval P.2d 818 cited with in Baird citizens, living preme Virginia Court of West how to make a Jackson v. better to be enjoy their means, and how to Education of County, Board of Kanawha lawful Thus, teachers who society. a free 128 W.Va. rights in S.E.2d 852 held in dif- functions exercise that the of schools of Kana- superintendent become in violation government branches ferent wha County public was a officer and as 1 of our Constitution. of Article such was not entitled to an increase in salary provi- virtue a constitutional by statute power is established A chain of prohibiting salary sion an increase in through of Examiners Board from the State during officer his term of public office. Instruction of Public Superintendent The court noted: of Education Board and the State U.C.A., of Education. County Boards govern- Public education is a 53-2-12, provides: specifically partici- function and all executive mental supervision pants part in its furtherance are in control and general is vested in the system sovereign power clothed with the of the public school adopt It shall education. board of and therefore officers. .
state
to eliminate and
regulations
rules and
at 853.
35 S.E.2d
unnecessary duplication of
prevent all
employees
Teachers are not mere
any branch or divi-
or instruction
work
special
state. Teachers have a
status with-
system and shall
school
sion
in the framework of state
*5
boards of all
governing
the
require
their
properly part
duties are
of the execu-
public
of
the
and divisions
branches
government.
of
tive branch
opera-
the same into
system put
to
school
Two state courts have dealt with the
tion.
questions
legislature.
of teachers in the
to attend
required
are
school boards
Local
Supreme
Begich
The
Court of Alaska in
Superin-
by
called
the State
conventions
Jefferson,
(Alaska 1968),
P.2d
con-
.U.C.A., 1953, 53-3-
in
as directed
tendent
the
an
sidered
under Alaska consti-
required
report
census
They are also
10.
provision
provided
tutional
which
in part:
Superintendent by
information
State
legislator may
any
No
hold
other office or
U.C.A., 1953, 53-6-13.
virtue of
position
profit
of
under the United States
of Education is
Board
That
the State
[Emphasis
or the State.
added.]
the
executive
within
squarely
located
Admittedly
provision
the Alaskan
evidenced further
is
is.broad-
53-3-9,
corresponding
er than the
U.C.A., 1953,
requires
which
the
Utah constitu-
by
VI,
provision,
tional
monthly itemized
to file
Superintendent
provision
Board
with the State
that
the Alaska
adds the words
expenses
of
accounts
“position
profit.”
Board of Exam-
of
The court
The State
considered
of Examiners.
Governor, the
position
superintendent
the
Secre-
the
of
of
of on-base
iners consists
General,
State,
Attorney
as
the
tary
“po-
schools and found that it constituted a
of
U.C.A., 1953, 63-6-1.
profit”
meaning
sition of
within the
set forth
prohibition.
constitutional
The summary
special provisions for
makes
Utah law
judgment decree of the trial court read:
example, Chapter 50 of Title
teachers. For
teacher,
positions
principal,
of
or
up a commission
[T]he
Code sets
in the Utah
superintendent
operated
in a State
school
con-
professional
ethical and
to deal with
positions
profit
constitute
under Arti-
Chapter 51 of the
among
duct
teachers.
II,
cle
Section 5 of the Constitution of the
procedure
a termination
title creates
same
Alaska,
provides
that
hearing prior
no
giving
right
a teacher the
to a
legislator may
hold
other office or
Finally,
termination.
there is the School
position
profit
under the
Retirement Act contained
United States
Employees’
29 of Title 53.
or the State.
Barlow, Gen., Asst. Atty. City, Salt Lake plaintiff respondent. for and MAUGHAN, Justice: Bullock was co-defendant with one Aus- an aggravated tin in robbery charge, inci- to a holdup at the dent Carlton Hotel. He charged, was convicted as appealed. Utah, Plaintiff The STATE We affirm the conviction. Respondent, ofAll the issues concerning the search and seizure raised Bullock were at issue BULLOCK, Defendant Glen appeal co-defendant, of Bullock’s one Appellant. disposed Austin. That case1 same issues, search seizure controlling and is No. 15626. here. Supreme Utah. viz., Bullock raises an additional issue jeopardy. double Jan. probation
Bullock was on at the time of arrest, probation his and his revoked was prior to trial. defense, Bullock claims this because the same elements used to justify probation revocation of his were used to him point convict of the crime. Such a has person parole no merit.2 A on probation, crime, may who commits have his limited canceled; liberty punished and also be the new crime. Such does not violate our constitution, I,Art. Sec. 14.3 ELLETT, J., WILKINS, C. CROCK-
JJ.,
HALL,
ETT and
concur.
*8
Austin, Utah,
555,
Montgomery, Or.App.
853
also
1. State of Utah v.
3. See
State v.
3
(1978).
Turner,
(1970);
P.2d
Brimhall v.
2d
Utah