*1 jury to consider a written allowing involving one of Finance agreement MATHESON, Governor of the Scott M. objection over witnesses Company’s Utah, Plaintiff and State of do Brimhalls prejudicial. so was Respondent, agreement prevented the tended v. however, testifying; after witness from FERRY, “Cap” as President of the Miles chambers, judge allowed the hearing in Senate, a Utah member State ruling and reserved a testify witness Senate, representative Utah State during document agreement the use of the of the Utah of all the members Company’s The Finance cross examination. Appellant. Defendant and object agreement’s not counsel did requested jury evidence but entry into No. 18644. kept would have instruction which of Utah. Supreme Court agreement jury.2 from the 21, 1982. Oct. Company’s ac The Finance counsel quiesced agreement to the admission evidence; and, timely
into failure make a
objection our forecloses consideration result, As a here
that issue. give it was error to refuse to
whether as a
requested instructions. Taken jury
whole, given the instructions which were Nor Finance prejudicial.
were has the us the failure
company convinced
give requested instruction resulted 20 and 22 Rules of the Utah prejudice.
Rules of Evidence allow admission prior to establish incon
extrinsic evidence positions by a
sistent statements or taken Further, credibility. to attack his
witness Finance
both the Brimhalls’ counsel and the the witness
Company’s questioned counsel
regarding agreement argued their
respective jury. The failure of cases
an to correct a tactical choice attempt
jury does not reversal instruction warrant trial discre
where no abuse in the court’s
tion has been shown. Neither do Brimhalls’
counsel’s statements warrant reversal.
Judgment affirmed and ease remanded proceedings. further Costs to defend-
ants.
HALL, C.J., STEWART, OAKS JJ., See also 641 P.2d
DURHAM, concur. agreement]. ception you Exhibit Exhibit 62 [the read: “When retire to the The instruction matter, you Juryroom entered into evidence for will Number 62 was to deliberate you you purpose, Court has made with limited take these instructions so ruling guidance making your regarding exhibit as a matter of refer them for can law.” also take exhibits that decision. You will evidence, entered into the ex- have been
241 constitutionality judicial sustained the of nominating composed part commissions legislative appointees, of but held that the appointive Governor’s restriction the power arising from the combination of lim- iting appointees judicial his choice of judicial nominating office commissions veto, senatorial was a violation of powers, the of of 1 of the Utah Constitution.1 Without addressing specifically the constitutionality senatorial confirmation itself and explaining without why senatorial confir- mation should be struck down instead commissions, nominating the Court Clyde, Snow, Edward W. G. Rodney Salt struck confirmation relieve the construc- Lake City, appellant. defendant and power appoint- tion of the Governor’s Zimmerman, Michael D. City, Salt Lake ment.2 The is Court now asked to address plaintiff respondent. again constitutionality confirmation, although of Senate PER CURIAM: context of the commissions hav- It is judgment of the Court that and, ing legislative representation no Senate confirmation of appoint supreme case of court and court ments as for in 62 is H.B. constitu nominating commissions, a appointments, tional as to court being members gubernatorial appointments. but unconstitutional district court and circuit appoint I. ments. I, In Matheson the Governor of the State The district court held that H.B. 62 challenged constitutionality of Utah
was not severable and that the whole judicial nominating commissions for dis- act was unconstitutional. It is true that Supreme trict court and Court because one the act severability clause, contains no seven members those commissions we nevertheless severability find since the appointed by was President of the Sen- fundamental intent be ef Speaker ate and one of the House of fectuated in the absence of the unconstitu Representatives. Matheson I at 675. The provisions. tional constitutionality suit also challenged judgment The of the district ap- statutory provisions requiring senatorial therefore affirmed in reversed judicial appoint- all proval part. Concurring and dissenting opinions sus- ments. Four members of Court follow. constitutionality tained the commissions, while different STEWART, (concurring): group of four members of the Court held In Ferry, Utah, Matheson v. Con- P.2d senatorial consent unconstitutional. (1982) (hereinafter I), trary extravagant urged Matheson Court claim provides: others, appertaining functions to either except expressly in the cases herein directed government of the State permitted. of Utah shall be divided into three distinct departments, Legislative, Executive, ap- 2. The Court did not rule on whether Judicial; person charged no pointment power constitutionally rooted. powers properly belonging the exercise of undisputed Legislature by It was that the stat- departments, one these shall exercise power ute had conferred that on the Governor. 10 of focus on Art. opinion did either over I that
Matheson of such as the foundation by any the Constitution was unrestricted selection of However, neither held power.3 than the Constitution other provision of the as such constitutional. article, justices five all Legislature’s agreed that this Court filed a author of the instant for the selection of dissenting opinion concurring and separate *3 3 is by as authorized Art. § concluding that confirmation Senate provision of Art. separation powers the of and, without a appointive power, the of 1, V, pertinent provisions other of and all § provision authorizing constitutional specific Constitution, although justice one the confirmation, right creating a statute V, 1 had not been thought that Art. § separation the doctrine of is in violation of Three particular violated in this case. only provi- constitutional powers. of holding of the Court concurred members gu- of authorizing confirmation sion Senate in the nomi- legislative participation is Art. 10.4 appointments § bernatorial commissions, combined with Senate nating However, inapplicable it was found confirmation, separation the of violated who must stand elec- of appointment powers provision. terms, 10, by its tion because § There- apply not to elective offices. does Bullock, Judge sitting by special assign- fore, provisions authorizing statutory the ment, concurred leading opinion, wrote the of confirmation of Senate Justice Hall and Justice Howe. Chief district, circuit court Supreme, concept of opinion, relying upon That separa- in violation of the were found to be power,” provid- “shared held that “a statute V, in Art. 1. powers provision tion of § a sev- ing legislative appointees for two on the issue opinion That also concluded judicial nominating commission en-member constitutionality nominating constitutionally accommodated and does justiciable moot and non be- committees was necessarily violate Art. 1.” Math- § specifically withdrawn cause had been eson I at 676-77. It further held that parties. from issue placed restrictions judicial nominat- of selection and dis- concurring filed a Oaks pow- with the veto ing coupled commissions judicial nomi- senting opinion, stating er of the constituted a violation Senate were constitutional nating commissions principle separation powers, judicial legislative participation 1, into the because it intruded too far confir- nominating commissions Senate appointive power. chief executive’s consti- gubernatorial appointees mation of legislative neither an unconstitutional tuted concur- separate Justice Howe also filed a powers legisla- nor intrusion into executive legislative partici- ring opinion holding that He branch. tive dominance of commissions, nominating in the to- pation and consent argued that the advice also gether with senatorial advice and consent 10, did not authorize provision, judici- and other controls on the senatorial consent to ary, constituted unconstitutional control “backup measure because 10 is branch branch legal- the dilemma of designed prevent separation in violation of pre- legally office without a ly authorized Although Judge opinion Bullock’s powers. Matheson I filling it.” scribed method specifically up- and Justice Howe’s at 702. constitutionality legislative par- held the commissions, I, could nominating Legislature in the Matheson ticipation After confirmation dispensed neither addressed at all the funda- have with Senate legislative participation constitutionality and maintained mental which had nominating commissions advice and consent as such. Nor senatorial VII, 10, p. infra Id. 3. See text of Art. nominating
been held constitutional majority commissions which have never Instead, Court. in the Legislature. appointed by had members 1982 Budget passed Session H.B. Thus, the advice pro- senatorial and consent two legislative appointees eliminated the visions held in violation of from supreme and district court nomi- justices, Matheson four were commissions, nating giving the Governor U.C.A., change. reenacted without See four appointments lay persons —all —who 20-1-7.1, 20-1-7.6(4), and 78- constitute a of the members of (1982 Supp.).5 3a-8 Interim com- The Governor filed the case. then instant missions, and retained Notwithstanding change makeup of all No change was made in composition commissions, circuit and the Gover- Utah, 5. As Laws amended H.B. Ch. Vacancies in the office of the commissioners *4 39, provides: body § 20-1-7.1 by be filled the chose shall who the Except provided act, jus- as otherwise in office this commissioner whose if vacated. [sic] Court, Supreme person appointed vacancy tices of the the who to fill courts, district of the circuit court in the office of than a commissioner other selected, vacancy shall be and a in such vacancy by expiration caused the term filled, by appointment by gover- office be the political party shall be of the same and shall nor with advice the and consent of the senate unexpired predeces- serve for the term of his persons of one of three the nominated in in sor office. provided by appropri- manner in this act the (3)Circuit nominating court commissions nominating ate the .udicial commission for judge presiding judge shall consist or of: persons appointed office to be filled but so court, the of designee district the or his chairman by shall be election the voters at county commission of each provided the in the time and manner in this circuit, county mayor desig- in the the his act. circuit, county of each nee mayor seat in the the 62, by Utah, As H.B. Laws of amended Ch. designee city or his with each 39, provides: 20-1-7.3 10,000 population of or more of the latest (l)(a) judicial nominating Each commission official the United States census in circuit Supreme for the Court and district courts seat, city county unless the the two justice shall seven have members: The chief attorneys appointed by the State Bar Utah Court, Supreme four commissioners of the circuit Association. Commissioners governor, by chosen the and two commis- nominating be commission shall resi- by sioners chosen the State Utah Bar Associ- by dents of the circuit to be the com- served ation. Commissioners be shall citizens of they except appointed mission to which are United States and residents of Utah. Com- appointed presiding judge missioners nominating shall be a district court judicial be commissions shall residents of resident district. The two by district to be served by the com- commissioners chosen State Bar Utah they appointed. mission Not par- political Association shall be different appointed by more two than commissioners appointed All ties. commissioners shall be governor judicial nominating to each years commencing for terms of four each on political commission shall be same appointment, date of their which shall be party, ap- and none of the commissioners days within 30 of this effective date pointed by governor shall members All shall until act. commissioners serve their State Utah Bar Association. The two duly appointed successors have been by commissioners chosen the Utah State Bar qualified. political par- shall Association be of different Utah, 62, As amended H.B. Laws of Ch. ties. 39, 20-1-7.6(4) provides: (b) any appointing authority If ex- fails to (4)Subject appointee being approved appoint ercise its the commission- being senate in the office retained act, ers authorized this the commissioners 20-1-7.7, provided voters as section appointed, including who have been the chief person appointed pursuant to this section justice, authority shall have the to act as unexpired of his shall serve for the term provisions under commission all of this act. predecessor in or shall for the office serve (2)The terms of office of the commission- full term of office case the law 1, appointed expire ers first shall on March vacancy is to fill a in the office appointed and their successors shall be justice judge expired of a whose term has years for terms of four All each. commis- vacancy to fill the estab- or is created sioners shall serve until their have successors of a lishment new office. duly appointed qualified. been Commis- sioners not succeed themselves in office. nor advice again alleged tionality senatorial of senatorial consent in this case. and consent were unconstitution- He provisions maintains that Mathe- nominating commissions, al. The district the Honorable son I held Bryant presiding, representation, H. Croft held that even without provisions consent, approval coupled in H.B. 62 for senatorial with senatorial constitute Therefore, of appointments office did not a violation of Art. ac- comport and, cording argument, Legislature’s addi- to his tion, when restriction coupled legislative representation with the deletion of on su- placed preme selec- nominating district court nominating the existence of the commissions makes no constitutional differ- commissions, were in violation of Art. ence. holding and unconstitutional under the respectfully disagree. Judge I Bullock’s
of Matheson I. opinion specifically sustained the constitu- appeal, Appellant, On this the Presi- tionality legislative participation dent of the “Cap” Ferry, rep- nominating Miles on the “concept commissions resenting up a class made of all the sena- power.” precisely shared And it was Senate, challenges tors of the Utah the trial issue the constitutionality First, court’s ruling grounds. on three he participation commissions states legislative appointees that removal of plus senatorial consent that the Governor from the commissions for the raised before Court. Matheson Supreme case, Court and district court makes In this we cannot overlook the *5 Senate confirmation constitutional under appoints fact that the Governor now a ma- holding Second, of I. Matheson he con- of the jority members of and power tends that of senatorial confir- district court nominating commissions. The mation is specifically consequent authorized effect is that the has Governor VIII, 3. argument The is that greater power effective over those nominat- commissions, only ing is for an “interim” or and the effective restric- appointive part judge’s appointive of a term tion on his is power and not less than in Third, reason, for the part elective of the Matheson I. For that Matheson I is term. Appellant not controlling. contends that power the Governor to appointments make interim conclusion, however, That still leaves un- of judges without senatorial confirmation resolved the issue the constitutionality was withdrawn by the 1945 constitutional senatorial consent. the majority Since in Thus, amendment to Art. I Matheson did not address the root issue of Appellant in effect concedes that unless the consent, the constitutionality of senatorial power of confirmation is found in Art. apart from its combined effect with nomi- 3, confirmation has no constitutional ba- nating sepa- commissions on the doctrine of sis. powers, ration of we cannot now avoid ad- dressing specific
The issue.6 Governor contends that the extent of control over appointive the Governor’s pow- II. er under essentially H.B. 62 remains I, same as in Matheson with or without In view my the senatorial confirmation legislative participation on the nominating provisions enacted in H.B. 62 are unconsti- commissions, and that Matheson I is there- tutional as to circuit Supreme, district and fore dispositive of the issue of judges the constitu- for the reasons in my stated only provision opinion is There one reference to that Justice Howe’s as to the constitutional Judge opinion in Bullock’s and that is in foot- basis of senatorial advice and consent. The note 9. That reference relates to the statement discussion of the issue in his Oaks specific language solely in concurring dissenting opinion the text that is no “[t]here is conferring power upon response my separate concurring the executive to make to and dis- judicial appointments.” Matheson I at 677. senting opinion. No statement made either that I, separate government at within opinion Matheson P.2d of con- confines 685-94. In the interest economy stitutional limitations. Id. at 686. The expedition, provide laws, I here a summary power specifically to make more propositions of the legal and conclusions provide law for of offi- there cials, established refer reader to power does not include the to make for a full statement of the appointments positions in the executive supporting reasons and authorities that con- departments, Matheson clusion. 686-87, the Legislature may although make within the branch Legislature’s power provide for since necessary legis- that is a incidence of the selection of is established in Art. lative power. Since confirmation consti- 3, which “Judges states: of the power tutes direct participation Supreme Court and district shall be courts appointment, legisla- it is not a selected for such terms such and in manner tive power may Legis- to make laws nor law, as shall provided by how- provided, power lature confer itself without ever, that selection shall solely be based authority. constitutional Matheson I at upon consideration of fitness office Indeed, it 687-88. is not even act of the an regard any partisan political without ” Legislature, of one chamber only. siderations .... Matheson I at 687. “as provided The term by law” is not an power confirm in circum- certain grant power Legislature unlimited stances is granted by Utah Constitution selection in any as one of the several constitutional checks manner it choose. Matheson I at 687- designed against balances to ensure general 88. On proposition, the entire abuse power. Matheson I at 691. Al- agreed Court legisla- Matheson I. The though power tive of senatorial confirma- First, is restricted in ways. two commonplace is a check balance in restricted all state applicable provisions other constitutions and in the Consti- Constitution tution, States,7 including the United is nevertheless an powers. exception Second, sepa- Matheson I at to constitutional doctrine 688-91. *6 governmental powers requires ration of restricted the inherent by an power express grant power, just nature of the of such as the exercises as a law- making legislative power in body (except extent that Governor’s exercise other vetoing legislative are form of enactments by conferred Constitu- tion), expressly granted. must be such lawmaking power and the does not Absent authorization, attempt Legisla- power by include the an appointments make or ture to appointments. power confirm assume constitutes Matheson I at 687-88. violation of the powers. Thus, in term Art. to pro- § law,” Appellant Ferry may
vide states that H.B. 62 “by general means to confir- by constitutionally provide method means of which selec- judicial appointment tion is mation of an interim made. Matheson I 688. It is the preeminent pursuant Legislature’s and inherent under Leg- power of the tripartite system gubernatorial islature under our Art. because the 3§ government general appointment granted make laws for the once interim governance society organization by VII, and the by 10 withdrawn § II, States, Appointments Article of the United States Constitu- not herein whose provides part: for, in provided shall be otherwise and which Congress may by established Law: but the nominate, by shall [The President] by Appointment Law of such inferior vest the Senate, with the Advice and Consent Officers, they proper, think in the Presi- appoint Ambassadors, public shall other Min- Law, alone, or in dent in the Courts of Consuls, Judges Supreme isters and Departments. Heads of Court, and all other Officers the United justify superimposing to that section. It should the check of confir- amendment although Appellant
be noted that does mation on the further check of a contested judge election. A does not serve two dif- expressly, implication not state so of his VII, He is in it, types appointed, 10 ferent of terms. position, as I read that Art. effect, qualify as a candidate for election. judicial appointments except does apply to appointments. as to interim policy the fundamental embraced Clearly, in 10 is that senatorial confirmation is argument appointment The permitted only appointive as to offices. appointment subject is an interim wholly This construction is consistent with rejected must confirmation be for two rea- in which Art. 10 treats manner appointment by sons. The the Governor of interim to other elective of- interim judge appointment is not an provides there is a Second, fices. Section if Appellant uses that term. deletion State, vacancy Secretary office of appointment pow- the Governor’s interim Auditor, Treasurer, Attorney State State er of elective from 10 and the General, vacancy shall fill Governor amendment to Art. VIII did not create a consent, appointment, by without senatorial constitutional authorization for senatorial and the is valid until the next appointment in any event. general election. 10 states: viewing One vice of confirmation and nominate, Governor shall qualifi- election as cumulative conditions of Senate, appoint and with consent of the cation for office is the fact demonstrated all State and district officers whose of- appoint judge the Governor could Constitution, fices are established general year, June of a election law, or which created appointee approved by could then be whose not oth- or election is ensuing election, voters November If, during erwise for. the recess yet be denied confirmation the Sen- Senate, a vacancy occur in token, January. By ate in the same an office, State or district the Governor shall appointee might lose the election in Novem- appoint qualified person some to dis- ber but still obtain Senate confirmation charge the duties thereof until the next Thus, nullify one check January. could meeting of the when he shall other check and either could nullify person nominate some to fill such office. appointment. That is far State, If the office of Secretary of State more than the traditional kind of cheek Auditor, Treasurer or Attorney State contemplated by death, resignation General be vacated otherwise, duty it shall be the judge usually that a takes his reason by appointment, Governor to fill the same by appointment, seat first rather than *7 appointee shall hold his office election, stems from the Art. 3 re- § until his successor shall be elected and quirement judges justices that must be qualified, provided. as law “solely upon selected consideration of fit- regard any parti- ness for office without to provides Section 10 for senatorial confir- san political ap- considerations.” Before appoint- mation in the case of officers Governor, pointment by the a must person ed by appoint- the Governor and “whose approved by first be a ment or election is not otherwise provided purpose duty commission which has the for.” (Emphasis added.) Under sen- § on applicants solely to sift the basis of atorial confirmation and contested elections office,” “fitness as for indeed Governor gubernatorial ap- alternative checks on selecting appointee must one from pointments. The critical is wheth- among judi- the nominees submitted er the basic nature of the office is elective cial nomination commissions. appointive. or permissible It is not to make an artificial division process term of an office After the initial run selection has into an interim part judicial nominating and elective to its a through course
247 appointment by authority Legislature commission and to provide Gover- for nor, then a election stands as check on both manner of selection of judges. From that history, Appellant commission Gover- constitutional con- superimpose nor. To a still further check tends that “the constitutional was Legislature, confirmation thus scheme of vested with the which was VII, selection Art. people provide authorized 10 authorized to § statutes or separa- Art. as limited appointment for both the interim § and for powers provision, tion of Art. 1. As a the full term.” matter, practical we also note might The 1945 amendments to Art. VIII and array such an the Legislature hurdles as VII, designed permit were has erected would have the effect of deter- Legislature to end the intolerable and inde- ring qualified the most from even persons judges fensible of- practice running for for applying judgeship eventually as partisan politicians. fice The amend- decline appointees. risk a quality ments did not what precise establish
Furthermore, presently requires law manner of selection should be. The judges Legislature stand even for truly given election was some pro- latitude in appointments, i.e., viding interim vacancies created the means for selection of judges death resignation judge. long of a they were selected on the basis Thus, in some Appellant’s argument regard cases merit for partisan and without is that really gubernatorial appointment siderations. also it was Surely contemplat- interim appointment is an to an ed interim that the would cases, Yet in term. even those Supreme, judicial independence measure of and ten- district, and circuit office, must stand ure in for without those features the election even though appointment concept is whole of a tripartite fundamental truly an interim appointment. system of government coequal and government, coordinate branches as well Appellant argues 1945 amend- deep-rooted as our tradition of limiting to Art. ment 10 withdrew from the government written consti- Governor the judi- “interim” make tution, if jeopardized, would be not de- appointments cial without senatorial confir- stroyed. mation. Prior to provision 1945 that ex- pressly authorized the Governor to fill va- The 1945 amendment cancies on the Supreme Court and district did not rules pertain- alter the fundamental by death, court which were resigna- ing created gu- to when senatorial confirmation of tion, otherwise, without confirmation. permissible. bernatorial provided the appointee By express terms the law as officers, was hold his office until his successor applies to all State and qualified.8 elected language pro- language and that includes viding prior establishing interim to 1945 Gover- judges was deleted at the same time that appointment power nor’s interim of elective dispense Art. VIII was amended to with the offices without senatorial confirmation was partisan election of only particularization to confer general more prior discharge 8. Section 10 to its amendment in 1945 the duties thereof until the next (U.C.A., 1943, in full meeting text as follows when he shall nomi- p. 124): vol. 1 person nate fill some such office. If the *8 justice office of or district nominate, by The Governor shall court, State, Auditor, Secretary State Senate, appoint consent of the all Treasurer, Attorney-General Super- State or State and district officers whose offices are by intendent of Public Instruction be Constitution, vacated established may this or which death, otherwise, resignation or law, it be shall appoint- be created whose duty provided of the Governor to fill the same ment or election is not otherwise If, appointment, appointee during Senate, shall hold his for. of the recess vacancy office, office until occur in or his successor shall be elected and State district qualified, appoint may provided. person Governor shall some fit as law to be 248
principles recognizes embodied in the first sentence of apparently Appellant § power 10. The of the specific Governor checks important § what is—one judges to make interim the execu- and balances that exists between under 10 was removed to argu- § tive and branches. consistency power with the on conferred subject to confirma- judges ment that are Legislature VIII, by the amendment to Art. appointed to an inter- they tion because By provision 3. the Legislature § im, on the squarely nonelective term is built chose, provide, could if it for the selection requiring that a act assumption judges utilizing without elections at all. separa- confirmation violates the doctrine For example, Legislature provided had the VIII confers that powers tion of unless Art. appointment judges, for lifetime as is it does not do so either power. Clearly, provided in some states and under the Unit- impliedly. expressly Constitution, ed there States could be no III. election, interim appointment until the next I do not retreat from the proposi- basic and of power course the to Senate tions established in Matheson I that confirm would beyond dispute. In such power appoint judges a power is shared a case the Governor’s appointment interim by the legislative depart- executive and power judges, VII, in Art. ments. But that power may shared not be amendment, prior to its § would have unduly used restrict been inconsistent with the statutory scheme executive impose legislative branch or to VIII, Thus, enacted under Art. it is control on the branch. Neverthe- the nature process of the selection estab- less, the principles applicable to the appoint- Legislature lished which determines juvenile ment of court are different whether confirmation appropriate. In district, from those that apply Supreme, sum, the history of Art. 10 and the and circuit Juvenile court amendment to it do support Appellant’s not judges are not elective officials. Notwith- argument.9 standing the fact ap- Governor’s bottom, however, phrase pro- “as At pointive power is restricted to some extent vided law” which was added to commission, a nominating that restriction not, in 1945 does discussed control, does not in legislative result since above, to create authorize legislative appointees no sit on the nominat- separa- exceptions its own doctrine Therefore, ing commission. approv- powers, especially tion of to confer al of appointees poses no power appointment itself the to confirm an impermissible judiciary control of either the separation in violation of the doctrine of the Governor’s powers. major 10 is one of the and is not in violation of the doctrine of constitutional checks and balances and the separation powers. amendments to 10 and to Art. VIII were designed abrogate that fundamental IV. principle. reasons, foregoing For the I conclude
From the above it is clear that not even
that H.B. 62
conferred
beyond
the President of the
Appellant,
and a
Legislature by
3§
with the view that Art.
10 is
agrees
pow-
violation of Art.
case. Far from
totally irrelevant
this
ers insofar as that act authorizes Senate
meas-
viewing
provision
backup
as “a
Court,
Supreme
confirmation of
prevent
ure
the dilemma of
designed
they
circuit court
since
[having
legally authorized office without
a]
must stand election
to contest. For
it,”
filling
legally prescribed
method
reason,
confirmation is not authorized
702),
(Matheson
does
Oaks
as Justice
Interrogatories
Appellant
amendments
contravene what have been
relies on In Re
Pro-
principles
pounded by
Concerning
long-established
Bill
even cherished
the Senate
House
(1975),
law. The
is unex-
536 P.2d
Colorado
and Nel-
of constitutional
Miller,
ceptionable,
inapplicable in
case.
son v.
25 Utah 2d
al
confirmation of
control
Senate
judicial appointments,
unconstitutional,
which contravenes
por-
from that
and dissent
doctrine set
separation
powers
forth
judgment
approves
tion of the
Senate
in
1 of the Constitution of
Article
juvenile
judges.
court
I do
confirmation of
Utah. This Court was of the same
my concurring opinion
this on the basis of
ruling
the time of its
Matheson I.
I,
in Matheson
and on
basis of
This is evidenced
the fact that the Court
by Judge
written
Bullock.
striking
affirmed the trial court in
down as
each
“the 1981 ‘advice
unconstitutional
OAKS,
(concurring and dissent-
Justice
required
consent’ amendments” which
ing):
judicial appoint-
Senate confirmation of all
ju-
I concur that
confirmation of
Senate
ments, including
juvenile court
circuit and
constitutional,
judges
venile court
appointments.3 This the
did notwith-
Court
judgment
dissent from the
that Senate
standing
Legisla-
the further fact that
court,
court,
supreme
firmation of
district
ture
any representation
had never had
judges
and circuit court
is unconstitutional.
juvenile
circuit and
com-
missions,
pro-
its representation being only
spec
process
judicial
The new
selection
supreme
vided for on
and district court
62,
ified in H.B.
which deletes one
type
nominating commissions.4 It is thus to be
legislative participation,
is less
seen that
the Court in Matheson I made
objection
an execu
exercise of
separate
two
and distinct constitutional de-
tive
or as
control over the
terminations, neither of which was condi-
upset
branch than the law
in Math
other,
tional or dependent upon the
nor
Utah,
Ferry,
(1982).
eson v.
With exception severability issue, selection is neither attrib- judgment would affirm the court, trial toto. utable to nor limited Article inapplicable by which is its own terms be- HOWE, (concurring and dissent- judges cause the method of selection of ing): Article “otherwise for” legislation pursuant I concur in 3 and valid enacted judgment of this Court that Senate confirmation of thereto. I, acknowledged by
3. Set out verbatim in notes 3 and Mathe- 4. As the Court in Matheson son I. note 1. As I contemplate history troubled
this including the controversy, number
depth of among the differences members
this Court short life of some
reasoning part the result in Mathe- I, I only hope
son can the persuasive
life of reasoning some of the propounded
this latest opinions equally round of will be
short-lived, case, and that this like Mathe- I, will
son for its principally remembered
result. Drake, J. City,
Curtis for plain- Salt Lake appellants. tiffs and Q. Wilson, Ford and Marilee WILSON W. Norton, City, D. Kent Lake Salt de- al., Appellants, et Plaintiffs respondent. fendant and
v. OAKS, Justice: MANNING, Recorder, City City
Alan B. Sorenson, In Bird v. Utah 2d Heights, of Fruit Defendant and (1964), P.2d this Respondent. Court held unanimous- ly city rezoning ordinance properties No. 18541. from residential to was commercial not sub- Supreme Court of Utah. ject case, to referendum. The issue virtually facts, identical is whether that 27, 1982. Oct. decision should be followed overruled. City of Fruit whose area Heights, 1.92 square population miles and whose 2,760, approximately single page has Zoning approved & “Masterplan Map” Feb- document, 14, 1980. ruary This which con- map legend symbols sists of a text, explanatory City’s no is the master plan zoning. City On June Council, acting at the instance of a commer- cial real estate who developer desired to shopping center, erect on a favorable recommendation from commis- planning its sion, an adopted rezoning ordinance ten property. property, acres of This Highway abuts 89 in the northern City, rezoned from “residential sub- min.)” (12,000 sq. urban ft. lots to “commer- highway.” cial Appellants, whose homes are located quarter within the property, mile of presented City Council with thereupon