Scott M. MATHESON, as Governor of the State of Utah, Plaintiff and Respondent, v. Miles Cap FERRY, President of the Utah State Senate, and Norman H. Bangerter, Speaker of the Utah State House of Representatives, et al., Defendants and Appellants.
No. 17961
Supreme Court of Utah
Jan. 11, 1982
641 P.2d 674
Bryce E. Roe, Salt Lake City, for Matheson.
BULLOCK, District Judge:
This is a class action for a declaratory judgment initiated by the Governor of Utah on July 1, 1981, against all members of the Utah Senate and House of Representatives, and 16 legislatively appointed members of Supreme and district court nominating commissions.
The Governor alleges that including legislative appointees on district and Supreme court nominating commissions and requiring the submission of his judicial appointees to the Senate for its advice and consent violate the separation of powers principle guaranteed by
The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.
In a declaratory judgment dated August 25, 1981, the district court ruled that the portion of
Briefs have been submitted by the Governor, the Legislature, and the Attorney General. The basic positions urged upon the Court in those briefs are as follows:
GOVERNOR
It is the position of the Governor that the appointment of judges is constitutionally an executive function and that the Legislature can participate in that function without violating the separation of powers principle embodied in
LEGISLATURE
The Legislature‘s position is that the process of selecting judges, including the selection of members of judicial nominating commissions, is not a power which should be properly characterized as executive, judicial or legislative, and therefore, separation of powers considerations should not be involved. However, if separation of powers principles are involved, the contention is that the process of selecting judges, including the appointment of judicial nominating commissions, is not a power or function “appertaining” exclusively to the executive department of government, and therefore, the Legislature may participate therein without violating
ATTORNEY GENERAL
The Attorney General takes the position that there is nothing in the Constitution which makes either the selection of nominating commission members or the selection of judges an executive function, and neither is it inherently so. Therefore, the Legislature can constitutionally participate in the process even to the extent of setting it up “to have been solely a legislative function, or it could have provided some means for selection not requiring executive, judicial or legislative involvement such as selection by Utah State Bar Commissioners with concurrence of the Senate.” According to the brief, the appointment power of judges in Utah remains solely “up to the Legislature to determine.”
It is the Attorney General‘s further contention that Senate confirmation is not part of the appointment process, and even if it were, as there is in the Utah Constitution no restriction placed upon the Legislature limiting or prohibiting it from exercising confirmation powers over judicial nominees, it has authority to so act. And it may so act without running afoul of any separation of powers mandate of
We think the constitutionally proper course is between the positions of the Governor and the Legislature and around the Attorney General to the end that by preserving a basic constitutional principle of separation of powers as mandated in
Speaking first to the question of constitutionality of the nominating commissions, we hold that there is nothing in the Constitution or inherent in the separation of powers doctrine which prohibits the legislative department of government from involving itself in judicial appointment processes to the extent it has done under the nominating commission statute in question.
Even assuming the correctness of the Governor‘s contention that the selection and appointment of judges is inherently an executive function to the same extent as executive appointments to the executive department are executive functions,5 it is still not so constitutionally executive under our Constitution so as to preclude participation by the legislative department in the appointment process in any degree. We think the executive power of appointment is best construed as a shared power and it is recognized as such in the majority of states.6
James Madison, in No. 48 of The Federalist, stated:
[U]nless these [three] departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which [the separation of powers] requires, as essential to a free government, can never in practice be duly maintained.
Absent any specific language in the Constitution prohibiting the Legislature from participating in judicial selection and appointment procedures in any degree, it is our opinion that a statute providing for two legislatively appointees on a seven-member judicial nominating commission is constitutionally accommodated and does not necessarily violate
In the Barlow case, we held that a statute permitting the Legislature to appoint six members to the State Board of Higher Education and the Senate to confirm the nine gubernatorially appointed members violated
It is recognized that there is no specific language in the Constitution conferring power upon the executive to make judicial appointments.9 On the other hand, the legislative department does have specific constitutional power to provide by law for the selection of Supreme Court and district court judges under
The power to “provide by law,” however, is not unlimited, and in our view such power is not only proscribed by the provisions of
The function of actually carrying out the judicial selection processes as provided by law and making appointments has historically been the function of the executive in this state, except when the selection has been made under an election procedure.11
The dissent of Justice Oaks is based upon a startling contention that there is no constitutional power in either the Governor or the Legislature to appoint judges. In our view, this is a pointless argument with respect to the real issue before us. It is not advanced by either the Governor or the Legislature, and an academic discussion of the proposition solves nothing. The fact of the matter is that judges have been selected and appointed by the Governor since statehood under laws passed by the Legislature and no party to this litigation is contending that such appointments have been or are now unconstitutional. See footnote 11.
The main question in the case is: given that the Governor makes judicial appointments pursuant to laws passed by the Legislature and given that such authority is not constitutionally absolute to the exclusion of the Legislature, is
This Court stated in Mulcahy v. Public Service Commission, 101 Utah 245, 117 P.2d 298 (1941), in the context of reviewing the granting of a certificate of convenience and necessity:
We are reviewing the action of an executive body, executing and carrying out the provisions of the law, the mandates of the statute, and ever since Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60, it has been recognized that one department of the government cannot control the judgment or official acts of another department acting within its proper sphere of governmental power, within the scope of its authority.
The second crucial question then is whether or not the legislative enactment requiring Senate confirmation of judicial appointments effectively controls the executive function in the selection processes or is merely a legitimate check and balance on an executive function.
By the interposition of nominating commissions, the Governor is limited in making his appointments to one of two or three candidates nominated by the commissions.13
He cannot choose a person from a potentially broad field because the Legislature has created a commission which severely narrows his choice. Were that the extent of the limitation upon his appointive function as provided by law, the existence of the commissions would merely serve as legislatively imposed checks to prevent its abuse. The limitations would simply operate beforehand to narrow his appointment field. It is the addition of the “advice and consent” provisions which gives an offensive control of the power of appointment to the Legislature. By that addition, the Governor is limited both in his initial choice and by the power of veto of the Senate after the choice has been exercised by him. His discretion and power thus become severely curtailed to a point where his participation in the appointment process could become ineffective, subservient, and perfunctory, amounting to effective control by the Legislature found offensive to
Judges of the Supreme Court and district courts shall be selected for such terms and in such manner as shall be provided by law, provided, however, that selection shall be based solely upon consideration of fitness for office without regard to any partisan political considerations and free from influence of any person whomsoever, and provided further that the method of electing such judges in effect when this amendment is adopted shall be followed until changed by law. (As amended November 7, 1944, effective January 1, 1945.)
From the above, with respect to Supreme Court and district court judges, it is made clear that partisan political considerations in the process of selection of judges are prohibited.14 This provision is binding upon the nominating commissions, the Governor, and the Legislature. Presumably, by the time the nominating commissions consider candidates and nominate, and the Governor appoints from the nominees, the only function for the Legislature under a confirmation procedure would be to determine whether political or considerations other than fitness for office were in fact the basis for the nomination or appointment, or to second guess the nominating commissions and the Governor as to qualifications. In our opinion, a constitutional system of checks and balances does not extend that far either by constitutional requirement or necessity.15
We are not unmindful that as a matter of principle courts do not strike down a legislative act unless it is clearly in conflict with the higher law contained in the Constitution. It is with reluctance and respect for the Legislature that we must observe the irreconcilable conflict between the 1981 “advice and consent” amendments in the context of the judicial nominating commis-
In summary, we find no constitutional objection to the Legislature creating and participating in judicial nominating commissions to the degree it has by
Reversed in part and affirmed in part, consistent with the foregoing.
HALL, C. J., concurs.
HOWE, Justice (concurring):
I concur in the majority opinion. I agree that the creation of the nominating commission does not violate the separation of powers (
Nor does
That section expressly authorizes the general assembly, acting within its legislative capacity, to pass a law prescribing the manner in which an appointment shall be made, but it does not authorize the general assembly to make the appointment itself, nor to authorize anyone unconnected with the government to do so. To provide by law the manner in which an appointment shall be made is one thing, to make the appointment is another; the one is in its nature legislative, the other essentially executive. [Emphasis supplied.]
Having the power to write the law is not tantamount to having the power to execute the law after it has been enacted. As pre-
Since our Constitution is silent on the nature of the power of appointment of judges and this question has not confronted us before, we are left to our own interpretation of the nature of the power and the extent of infringement, if any, upon it. The crucial issue of this case, however, is not simply who the power of appointment belongs to—the legislature or the Governor. The issue is what effect there is upon the three-department structure of government because of the involvement in the power of appointment by the nominating commission and the senate. An understanding of the separation of powers doctrine is essential to this issues’ resolution.
SEPARATION OF POWERS
As the majority opinion observed, “... ever since Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60, it has been recognized that one department of government cannot control the judgment or official acts of another department...” Mulcahy v. Public Service Commission, 101 Utah 245, 117 P.2d 298 (1941). In State v. Shumaker, 200 Ind. 716, 721, 164 N.E. 408, 409 (1928), the court spoke similarly:
The true interpretation of this [separation of powers] is that any one department of government may not be controlled or even embarrassed by another department ...
Justice Sutherland quoted Mr. Justice Story in O‘Donohue v. United States, 289 U.S. 516, 530, 53 S.Ct. 740, 743, 77 L.Ed. 1356 (1933), “when he said that in reference to each other neither of the departments ‘ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers.‘”
The purpose behind the separation of powers is to preserve the independence of each of the branches of government so that no one branch becomes a depository for a concentration of governmental powers. Speaking of the purpose of the separation of powers doctrine in Black v. Burch, 226 Ind. 445, 459, 80 N.E.2d 294, 300 (1948), the court stated:
Its object is basic and vital, namely to preclude a commingling of these essentially different powers of government in the same hands.
Were this case one where the particular power is inconsequential to the functioning of any of the branches but rests in one only because of tradition, then there would be no effect of imbalancing the government by either the legislative or executive branch exercising the power. But this is a different circumstance. The appointment of judges is not inconsequential. It is essential, not to the Governor or the legislature, but to a viable judiciary. Therefore a control, a direct or indirect influence of either of the other branches over the judiciary through the power of appointment, by itself or in conjunction with other powers, is coercive and undermines the independent functioning of the judiciary.
Frank E. Holman explained the danger in 1 Utah Law Rev. 21, 25 (1949):
Without ... a truly independent court, all the citizen‘s basic rights and freedoms would be mere high-sounding paper declarations of things to be hoped for, but always dependent upon the will of a particular President or Governor, or the particular legislative majority for the time being in power.
Suggested in the context of the need to restrain concentration of power in the judiciary, but also applicable to the need to preserve judicial independence, the court in Searle v. Yensen, 118 Neb. 835, 841, 226 N.W. 464, 466 (1929), stated:
It [separation of powers] represents, probably, the most important principle of government declaring and guaranteeing the liberties of the people, and has been so considered, at least, since the famous declaration of Montesquieu that “there can be no liberty ... if the power of judging be not separated from the legislative and executive powers ...”
The irony of the separation of powers is that only by sharing powers to some extent is the independence of each of the branches preserved. In another context, quoting Bovier‘s Dictionary in Tite v. State Tax Comm., 89 Utah 404 at 410, 57 P.2d 734, 737 (1951), this Court said, “There are many cases in which the duties of one department are to a certain extent devolved upon and shared by the other.” At times the sharing of powers by two branches is a limitation upon the concentration of powers in either of them or in the third branch. Such a sharing does not violate but strengthens the separation of powers doctrine.
In the case of the power of appointment, the sharing of the power by the legislature and executive branches prevents exclusive control or influence by one or the other of the branches over the judiciary. The judiciary does not possess the power so that it may become too independent and tyrannical; and, neither other department exclusively controls the power so that it can coerce the judiciary. Only in this context of separation of powers does the significance of the power of appointment come to light.
THE POWER OF ΑΡΡΟΙΝΤΜΕNT
Since the constitutional silence on the nature of the power of appointment necessarily leaves this Court to its own interpretation of the nature of the power, we are not obliged, constitutionally or otherwise, to follow one line of authority over any other.
In an article on “The Governor‘s Constitutional Powers of Appointment and Removal“, 2 Minn.L.Rev. 451 (March, 1938), J. M. Dawley discussed a split of authority which exists on the nature of the power of appointment and stated “There is no substantial agreement among the courts as to its classification.” He recognized one line of authority when he wrote: “There are, of course, many courts which have held that the power of appointment is not inherently executive ...” Id. at 452, 57 P.2d 734. Such courts believe that the power of appointment is an implied residual power in the legislature which rests there on a theory of popular sovereignty. That is the position of the dissenting opinion in the present case. As J. M. Dawley pointed out, “The result [of such a theory] is that the legislature can either confer the appointing power whenever it desires, or it can exercise that power itself.” Id. at 453, 57 P.2d 734.
I believe that such a view ignores the significance of the separation of powers and delegates to the legislature an unhealthy and offensive control over the judiciary. This is so because under such a theory there is no effective limitation on the power of the legislature over the judiciary. It should be noted that the examples of legislative appointment of judges cited in the dissenting opinion, viz. Rhode Island, South Carolina and Virginia are all founded on an express provision of their state constitution which, of course, supersedes their separation of powers provision.
Perhaps because most states, unlike Utah, specifically and explicitly give the power of appointment of judges to their governors in their constitutions, the courts have not specifically held that governors have inherent powers to appoint judges. Still, many courts have recognized an inherent general power of appointment in the executive. The language of these cases does not appear to exempt the specific power of appointing judges from the general power of appointment. Hadley v. Washburn, supra, held the appointment of election commissioners to be an executive function based upon a separation of powers provision and the absence of an express constitutional classification of the power of appointment. Young v. Brill, 100 Minn. 499, 111 N.W. 294, 639 (1907), prohibited the legislature from requiring judges to appoint members of a board of control unrelated to the judiciary on a separation of powers theory grounded in the
J. M. Dawley in Minn.L.Rev., supra, also acknowledged this line of authority which finds that the power of appointment is executive. He explained:
... some courts hold that the appointing power is executive by nature ... where the courts have held the power of appointment to be inherently executive, there is no doubt about the legislature‘s inability to give itself the power. Id. 89 Utah at 452, 57 P.2d 734.
If forced to choose one of these two lines of authority over the other, I would favor the line which holds the power of appointment to be an inherently executive function. Under the Utah Constitution the Governor does not have the power to remove judges. The combination of exclusive appointment with removal therefore would not be his; and the danger of a concentration of power would not be as great as if he had both appointment and removal in his hands. However, since this is a case of first impression in our state, without precedent on point from elsewhere, this Court is not obliged to follow either or any particular authority in our interpretation. In Minn.L.Rev., supra, for instance, the author identified various viewpoints. Therefore, as the majority opinion of this Court has expressed, simply whose power the power of appointment is or from where it is derived is not crucial; the limitation of the power and the resulting balance of the government are important.
As the majority notices, the power of appointment typically has been shared in practice. The United States Constitution explicitly splits the power of appointment of judges between the President and the Senate; he chooses an appointee and the Senate accepts or rejects the choice. Also, the development of judicial nominating commissions in many states has made the power of appointment of judges a shared one. State ex rel. Johnson v. Meyers, 74 N.D. 678, 19 N.W.2d 745 (1945) held the power of appointment to be an “intrinsically but not exclusively executive function.” There the court found a statute constitutional which allowed the Governor to share the power of appointment with a Commissioner of Insurance stating “An apportionment of that power between two executive officers cannot change the nature of the power. It remains intrinsically executive.”
Even though it is more than an apportionment of power between two executive officers, the sharing of power of appointment of judges is not offensive to the separation of powers doctrine. Rather, it is a
This case is dissimilar to Rampton, supra, in that the violation is not the taking over by the legislature of an exclusive power of the Governor. The violation is more subtle. It is the taking over of the power of appointment of judges by the legislature to the effective exclusion of the Governor. It is a violation of separation of powers because the control the legislature possesses through its power of appointment upon the judiciary is without effective limitation by anyone. The result is a threat to the independence of the judiciary. The constitutional limitations such as merit and nonpartisan requirements are of little comfort without an effective check upon the legislature.
The dissent suggests that these requirements prevent potential abuse and that any arbitrary overstepping of powers by the legislature is always subject to review by the courts. The difference between us is that I do not measure the constitutionality by the harm that will be suffered when an abuse occurs. At that point the separation of powers doctrine has failed in its purpose—to protect the people from abusive and tyrannical government. Instead, I measure the constitutionality (or lack of it in this case) by the imbalance created among the departments because of excessive control and potential for abuse by one department over another. At the same time, the argument that reviewability of abuse by the courts forestalls potential abuse seems circular where the potential abuse is control of the judiciary.
This case is similar to Rampton, supra, in that both cases recognize that the key element in determining a violation of separation of powers is control. Neither the creation of the nominating commission nor the composition of the commission as it presently exists gives the legislature an influence or control over the judiciary that offends the Constitution. The commission narrows the Governor‘s option of appointees from a broad field to only a choice of two or three. Because the Governor is left with the final choice, however, the imposition of the nominating commission merely operates as a check before the choice rather than as a veto afterward, in order to limit the Governor‘s control over the judiciary.
However, the addition of the veto in the form of the senate‘s “advice and consent” severely curtails his participation in the process. As the trial court correctly observed, the Governor‘s limited choice from a field of three can lawfully be vetoed by the Senate until the one of the three which is its preference becomes the appointee. The appointment then becomes the Senate‘s. Contrary to the statement made in footnote nine in the dissenting opinion, there is no “clear inference” that the Governor is entitled to make his second nomination from a new list of three nominees. There is no statutory authorization for the nominating commission which has completed its work to again meet and produce a new list. It is not our function to legislate and gratuitously devise a way for reconvening the commission. See
This legislative control is even more offensive when it is considered that the legislature was granted in our Constitution in
Not only is the legislature‘s potential control constitutionally offensive, but an appointment by the Senate offends
In summary, the legislature exercises control in that it 1) imposes the nominating commission, 2) participates on the nominating commission, 3) dictates the constitution of the commission membership, 4) restricts the Governor‘s choice of an appointee to one from a field of three, and 5) gives the Governor no opportunity to reject all nominees. Further, the legislature also exercises control through its powers of 6) removal for cause, 7) impeachment, and 8) determination of the number of judges. In this context the addition of the confirmation power in the appointment process is an excessive sharing which constitutes legislative control that violates the separation of powers.
Therefore, like the majority, it is with a recognition of the presumption that laws are not to be stricken if they can reasonably be upheld that I must find the “advice and consent” statute unconstitutional. Because of my respect for the legislature I join my brethren with some reluctance. However, the preservation of the separation of powers and the independence of the judiciary compel me to do so.
STEWART, Justice (concurring and dissenting):
I concur in the judgment that Senate confirmation of gubernatorial appointees to the offices of Justice of the Supreme Court and judges of the district and circuit courts is unconstitutional under the present method of selecting judges. Because I reach that conclusion on somewhat different grounds from those essayed by Judge Bullock and Justice Howe, I shall set forth the reasons for my conclusion. I think the conclusion unavoidable that senatorial confirmation of those judges named above, as provided in
I.
In 1944 the people of Utah voted to amend the Constitution to dispense with the dubious practice which had existed from Statehood of selecting judges by partisan elections. Prior thereto and for a time after that, judges ran for election on a partisan ticket, as Republicans or Democrats, and generally were voted into and out of office as their political parties succeeded or failed. Merit selection, as an official, specifically designed policy to enlist the most competent candidates, was a stranger to the process. Partisan elections were not designed to promote judicial competence, impartiality, and dedication to the rule of law without regard to outside pressures. The amendment became effective in 1945. The 1945 amendment provided that the method for selecting judges was to be determined by the Legislature. As amended,
Judges of the Supreme Court and district courts shall be selected for such terms and in such manner as shall be provided by law, provided, however that selection shall be based solely upon consideration of fitness for office without regard to any partisan political considerations and free from influence of any person whomsoever, and provided further that the method of electing such judges in effect when this amendment is adopted shall be followed until changed by law. [Emphasis added.]
The initial issue to be addressed is the meaning of the term “in such manner as shall be provided by law ...” That term was clearly intended to give the Legislature some latitude in devising the manner in which judges should be selected. For example, judges could be selected by gubernatorial appointment, some type of election, or perhaps in some other way. In this case, however, we are concerned only with determining whether the term, “as shall be provided by law ...,” authorized the Legislature to require Senate confirmation.
II.
The inherent and preeminent function of the legislative branch of government is to enact laws of general applicability, to provide normative standards of conduct for society and to provide for the organization and operation of the government. As the United States Supreme Court stated in Springer v. Philippine Islands, 277 U.S. 189, 190, 48 S.Ct. 480, 72 L.Ed. 845 (1928): “Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement.” (Quoted with approval in Rampton v. Barlow, 23 Utah 2d 383, 388, 464 P.2d 378, 381 (1970).) Although the Legislature under our constitutional scheme possesses all lawmaking power not denied it by the Utah or the United States Constitutions, State ex rel. Stain v. Christensen, 84 Utah 185, 35 P.2d 775 (1934); State ex rel. Nichols v. Cherry, 22 Utah 1, 60 P. 1103 (1900), it does not possess all the powers of government. It is only “Legislative power” which has been conferred upon the Legislature by the legislative article of the Constitution,
The Constitution specifically restricts the exercise of legislative power in numerous ways by specific prohibitions. E.g.,
To prescribe the manner of election or appointment to an office is an ordinary legislative function. To make an appointment to office is an administrative function. And under a constitution in which the philosophical theory of a division of the powers of government into legislative, executive, and judicial, should be exactly carried out in detail, the power of prescribing the manner of making appointments to office would fall naturally and properly to the legislative department; while the power to make the appointments themselves would fall as naturally and properly to the executive department. This exact adherence to theory, however, is seldom if ever found in any frame of government; and we refer to the distinction simply by way of reply to the claim, on behalf of defendants, in argument, that the power to prescribe the manner of appointments includes the power of appointment itself, and to show that they are acts and powers wholly different and distinct from each other.
And, in a concurring opinion, Swan, J., stated:
Upon this question, it seems to me only necessary to refer to the plain words of the constitution. It provides, in the first place, that “the election and appointment of all officers, and the filling of all vacancies, not otherwise provided for by this constitution or the constitution of the United States, shall be made in such manner as may be directed by law.” Now, providing by law the manner in which an appointment shall be made, and making the appointment itself, are two different things: the first is pointing out the mode in which a thing shall be done, and the other is doing the thing itself; the one is legislative and directory, the other administrative. [Emphasis added.] Id. at 570.
Accord: Municipality of St. Thomas & St. John v. Gordon, 78 F.Supp. 440 (D.C.V.I. 1948); Handley v. Washburn, 167 Mo. 680, 67 S.W. 592 (1902); State ex rel. University of Minnesota v. Chase, 175 Minn. 259, 220 N.W. 951 (1928). The principle laid down in these cases, that the legislative power may define the manner of selection for an office, but may not make the actual appointment, is an essential part of the doctrine of separation of powers. Municipality of St. Thomas & St. John v. Gordon, supra; State ex rel. University of Minnesota v. Chase, supra; Walker v. Baker, 145 Tex. 121, 196 S.W.2d 324 (1946); cf. Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926).4 Moreover, unless the Constitution specifically provides otherwise, the legislative power to determine the manner of selection does not include the power of legislative or senatorial confirmation. The courts have been “unanimous in their holding that confirmation is not a distinct legislative power, but rather a part of the executive power of appointment which has in turn been delegated in some specific instances by constitution to the legislative branch.” Bradner v. Hammond, Alaska, 553 P.2d 1, 7 (1976). Accord: Myers v. United States, 272 U.S. 56, 138-39, 47 S.Ct. 32 (1926); State v. Hagemeister, 161 Neb. 475, 73 N.W.2d 625 (1955); Wittler v. Baumgartner, 180 Neb. 446, 144 N.W.2d 62, 67 (1966); Walker v. Baker, 145 Tex. 121, 196 S.W.2d 324 (1946); State v. Dowling, 167 La. 907, 120 So. 593 (1928); People v. Shawver, 30 Wyo. 366, 222 P. 11 (1924). 81A C.J.S. States § 84 (1977).
Despite its breadth, it is clear beyond peradventure that the language in
Thus, the most basic framework of our constitutional scheme would be subject to revolutionary change by legislative enactment alone. Yet, it has been strenuously argued that
The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.
The dissent espouses a theory of separation of powers that would accommodate a substantial intermingling of powers. How much, it is not possible to determine because no effort is made to lay down a standard that distinguishes that which is too much and unconstitutional from that which is not too much and constitutional. Indeed, the principle espoused is so flexible as to admit of no definition. As stated in the dissent: “The principle of separation of powers should therefore be viewed not only in terms of the functional independence of each branch of government, but also in terms of the inevitable and desirable interdependence of each of the three branches, which serves the same purpose.” On that view separation of powers is made to turn on a subjective determination of what is and is not constitutional. That concept does not serve as a principled guide for decision making. Certainly no rationale is advanced which justifies expanding legislative power to include the power of confirmation or even appointment—such as was prohibited in Rampton v. Barlow, supra—but which would stop short intrusion in other powers belonging to the other departments.
III.
In my view the Utah Constitution requires adherence to that view of the doctrine of separation of powers stated by Mr. Justice Brandeis in his dissent in Myers v. United States, 272 U.S. 52, 293, 47 S.Ct. 21, 84, 71 L.Ed. 160 (1926):
The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.
The doctrine of separation of powers was explicitly made a part of the Constitution of Utah, to assure that each department would be independent within its own sphere but without the power to dominate another department. Unlike the Federal Constitution, that principle is not left to be deduced from the general structure of the Constitution.
The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted. [Emphasis added.]
The framers of the Constitution considered the principle embodied in
Several examples are found in the Constitution of express provisions which intermingle some of the great powers of government to temper and restrain the powers of each of the departments. For example, the House and the Senate may exercise judicial power in the form of impeachment proceedings,
It has been argued that the phrase in
It is clear that
The key question then is, does the Constitution authorize the Senate to confirm? If not, the Senate may not. To the extent that the Constitution deals generally with the power of appointment, it is dealt with exclusively in the Executive Article,
The Governor shall nominate, and by and with consent of the Senate, appoint all State and district officers whose offices are established by this Constitution, or which may be created by law, and whose appointment or election is not otherwise provided for. If, during the recess of the Senate, a vacancy occurs in any State or district office, the Governor shall appoint some qualified person to discharge the duties thereof until the next meeting of the Senate, when the Governor shall nominate some person to fill such office. If the office of Lieutenant Governor, State Auditor, State Treasurer or Attorney General be vacated by death, resignation or otherwise, it shall be the duty of the Governor to fill the same by appointment, from the same political party of the removed person; and the appointee shall hold office until a successor shall be elected and qualified, as provided by law. [Emphasis added.]
As stated in Part II, the power of confirmation conferred on the Senate by
The power of selection under
That a short period will elapse between the time a judge is appointed and the time he must stand election under the present system is of no consequence. The plain fact is that a judge must stand election. Monson v. Hall, Utah, 584 P.2d 833 (1978). The same is also true of other officials who may be appointed subject to later standing election. Exercising the powers of office for the short interim period does not call for confirmation.
In sum, the Governor has power to appoint judges pursuant to legislation which expressly confers that power and which was enacted pursuant to
To contend, as does the dissent, that
The practice in the State follows the pattern laid out in
Where does the Legislature obtain the power to require the Senate confirmation of the executive director? From
If Justice Oaks’ interpretation of
IV.
The issue of the constitutionality of the judicial nominating commissions is, in my view, moot, and the opinions of the Court addressing that issue are advisory opinions. Prior to the submission of this appeal, the Governor, plaintiff in this action, made his judicial appointments from the names submitted by various judicial nominating commissions. These commissions were formed in compliance with the statutory provision now being challenged. In such a posture, the Governor is not in a position to challenge the constitutionality of the nominating commissions because there is no controversy. Counsel for the parties both conceded before this Court that the issue is nonjusticiable. I agree and think that we should follow well-established rules to the effect that the case which becomes moot on appeal is not justiciable. Duran v. Morris, Utah, 635 P.2d 43 (1981); Baird v. Utah, Utah, 574 P.2d 713 (1978); Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Not only is the case moot but both parties in effect withdrew the issue on oral argument. That the issue may recur is of no consequence when neither party seeks to have this Court pronounce an opinion on an issue. The opinions on the nominating commissions are, therefore, gratuitous. As to this issue, the case should be remanded to the district court for an order of dismissal.
OAKS, Justice (concurring and dissenting):
I concur that the judicial nominating commissions are constitutional, but I dissent from the majority‘s holding that the law requiring Senate consent to judicial appointments is unconstitutional.
In brief, I differ with Judge Bullock‘s opinion that the challenged legislation constitutes an unconstitutional legislative exercise of an executive power, because that opinion fails to show that the power to appoint judges is an executive power under the Utah Constitution. (Part III herein.) I differ with Justice Howe‘s opinion that this legislative involvement in judicial selection violates the separation of powers by giving the Legislature “control” over the judicial branch, because I see no such control on the facts of this case. (Part IV herein.) While I agree with Justice Stewart‘s opinion that Senate confirmation of juvenile court judges is constitutional, I differ with his conclusion that
I. SEPARATION OF POWERS
Separation of powers is a foundation principle in our national and state constitutions. In combination with the complementary devices of checks and balances, separation of powers restrains and regulates the exercise of government power in order to protect individual liberties.
Experience with constitutional government has taught that separation of powers must be applied in a practical rather than a doctrinaire manner. The theoretical separateness and independence of each branch of government is important, but something more is needed to assure that the initial independence of one branch will not be used in practice to infringe upon the independence of another, and to assure that the three branches will harmonize their efforts into an effective government. As the United States Supreme Court observed in its most recent holding on the separation of powers in the United States Constitution:
Yet it is also clear from the provisions of the Constitution itself, and from the Federalist Papers, that the Constitution by no means contemplates total separation of each of these three essential branches of Government... The men who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.
Buckley v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 683, 46 L.Ed.2d 659 (1976). To counter that danger, our constitutions contain a system of checks and balances under which one branch can directly forestall another branch or participate to some extent in its functions.
This counter-balancing or sharing of powers is not inimical to the principle of separation of powers as that principle is implemented by our constitutions. The objectives of separation of powers are, in fact, achieved more by a dynamic relationship of interdependence among the three branches of government than by doctrinaire walls of separation dividing them. Justice Robert Jackson gave classic expression to that idea in his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952), which has been quoted and adopted by the entire Court in two subsequent cases on the separation of powers, Buckley v. Valeo, 424 U.S. at 122, and United States v. Nixon, 418 U.S. 683, 707, 94 S.Ct. 3090, 3107, 41 L.Ed.2d 1039 (1974):
While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but independence, autonomy but reciprocity.
A noted constitutional scholar has summarized the practical meaning of the doctrine of separation of powers in these words: “Thus, along both dimensions, that of federalism as well as that of separation of powers, it is institutional interdependence rather than functional independence that best summarizes the American idea of protecting liberty by fragmenting power.” L. Tribe, American Constitutional Law, p. 17 (1978).
The principle of separation of powers should therefore be viewed not only in terms of the functional independence of each branch of government, but also in terms of the inevitable and desirable interdependence of each of the three branches, which serves the same purpose.
In the Utah Constitution, the principle of separation of powers is expressed in
The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.
The two clauses of this section express distinct but complementary aspects of the principle. The reference to “distinct departments” in the first clause establishes the separateness and independence of each branch of government. It therefore prohibits one department from controlling, dominating, or coercing another to the point that it lacks independence in performing its functions, including its serving as a check upon the other two branches of government. E.g., Humphrey‘s Executor v. United States, 295 U.S. 602, 629-30, 55 S.Ct. 869, 874, 79 L.Ed. 1611 (1935). Justice Howe‘s opinion, discussed in Part IV herein, relies on this principle.
The prohibition in the second clause against an official in one branch “exercis[ing] any functions” pertaining to another branch is an application of the principle of separation of powers to a circumstance falling short of control or domination but amounting to an invasion by one branch of a part of the prerogatives or functions of another. E.g., Rampton v. Barlow, 23 Utah 2d 383, 464 P.2d 378 (1970); Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928). Judge Bullock‘s opinion, discussed in Part III herein, relies on this clause.
The reasons for my dissent are elaborated in Parts III, IV, and V. Part II provides essential background by reviewing the history and constitutional basis of the power of judicial selection in this state.
II. HISTORY
From the time of statehood until 1945, district and supreme court judges were chosen by popular election, as required by the original provisions of
The Governor shall nominate, and by and with the consent of the Senate, appoint all State and district officers whose offices are established by this Constitution, or which may be created by law, and whose appointment or election is not otherwise provided for.
By constitutional amendment effective in 1945, these provisions for the election of judges were deleted, and the following was added to
Judges of the Supreme Court and district courts shall be selected for such terms and in such manner as shall be provided by law, provided, however, that selection shall be based solely upon consideration of fitness for office without regard to any partisan political considerations and free from influence of any person whomsoever, and provided further that the method of electing such judges in effect when this amendment is adopted shall be followed until changed by law.
From 1945 until 1951, district and supreme court judges continued to be chosen by popular election pursuant to the final proviso of
In 1967, the Legislature enacted a law establishing a judicial nominating commission, consisting of the Chief Justice of the Supreme Court, one commissioner chosen by the Senate, and one by the House of Representatives, two by the Governor, and two by the Utah State Bar Association. The Governor was authorized to fill vacancies in the supreme and district courts “by appointment ... of one of three persons nominated” by the judicial nominating commission, but the persons so appointed were subject to election by the voters at the next succeeding general election. 1967 Utah Laws ch. 35.
Since 1967, district and supreme court judges have been appointed by the Governor from the three persons nominated by the judicial nominating commission. In those 14 years, which included the selection of numerous judges, the nominating commissions have not been challenged as a violation of the separation of powers. In fact, the commission‘s composition of designated representatives of all three branches of government and of the legal profession, who must be equally divided according to political affiliation, seems well calculated to offset concerns about disproportionate influence from any particular faction in the selection of judges. Limiting the Governor to appointing one of three persons so nominated is an appropriate implementation of the constitutional command that “selection shall be based solely upon consideration of fitness for office without regard to any partisan political considerations....”
The controversy in this case arose in 1981 when the Legislature, over the Governor‘s veto, provided that the Governor‘s appointments of district, circuit, juvenile, and supreme court judges must be made “with the advice and consent of the Senate.” 1981 Utah Laws ch. 106, §§ 1, 2, 3.
III. SELECTION OF JUDGES AS AN EXECUTIVE POWER
It is easy to demonstrate that the separation of powers principle in the Utah Constitution forbids legislative exercise of a function of another branch. That circumstance is covered by the plain language of the second clause of
The assertion or assumption that the appointment of judges is an executive power or function is an explicit premise in Judge Bullock‘s opinion and is implicit in the other opinions explaining the majority‘s result. But the existence of such an important power must be demonstrated by identifying its source. Questions addressed to the sources of government power are not technical or academic questions. The courts should be vigilant to scrutinize the sources of, as well as the limitations upon, the powers exercised by any branch of government. Since it is not granted expressly in our Constitution, any executive power of this nature must be inherent in the executive or impliedly granted in other provisions of the Constitution.
Our Constitution does not expressly confer the power to appoint judges on the executive or on any other branch of government. Until 1967, the Constitution provided that judges would be selected by popular election, with executive power to fill vacancies until the next election. Since 1967, judges have been appointed by the executive pursuant to statutory authority in the legislation creating the judicial nominating commissions. The power to enact that legislation was specifically conferred by
The Utah Constitution provides no basis for an implied power in the executive or Legislature to appoint judges. The very existence of an express constitutional provision (
The power to select judges is not inherent in the executive or any other branch of government. The idea of inherent powers is repugnant to our government of popular sovereignty and delegated powers.
Tradition obviously demonstrates the acceptability and workability of executive appointment of judges, just as in the United States Constitution, where judges are appointed by the executive with the consent of the senate.1 Like Utah, a large majority of states have executive appointment of judges. But this “tradition” proves rather than contradicts the rule that the power to appoint judges is not inherent in the executive. A majority of state governors exer-
So far as I am aware, the authorities are unanimous in holding that the power of judicial selection is not an inherent executive power. E.g., State ex rel. Swope v. Mechem, 58 N.M. 1, 265 P.2d 336, 338 (1954); 48A C.J.S., Judges §§ 12, 13 (1981); 46 Am.Jur.2d, Judges § 9 (1969). In fact, the weight of authority holds that the power to appoint nonjudicial government officers does not reside in the executive inherently or by implication, but only as specifically granted by state constitutions or statutes.7 As to judicial officers, the opinions of members of the majority have failed to cite a single state whose governor exercises the power to appoint judges inherently, by implication, by tradition, or by any authority other than a specific grant of such power by the constitution or laws of the state.8
Since there is no basis for holding that the Utah Constitution makes the power to appoint judges an executive power, I cannot see how legislative participation in the selection process can violate the second clause of
IV. LEGISLATIVE CONTROL OVER THE JUDICIARY IN THE APPOINTMENT OF JUDGES
Justice Howe‘s opinion argues that Senate consent to judicial appointments, in combination with the Legislature‘s right to designate two members of the seven-member judicial nominating commission, tips the scales into unconstitutionality by giving the Legislature, in effect, unlimited control over the judicial branch. I dissent from that conclusion, since I believe that the level of legislative control over the judicial branch in the statutes at issue in this case falls far short of offending the prohibition against one branch controlling or dominating another. The procedure outlined in these statutes exemplifies the sharing of powers and the interdependence of different branches of government discussed in Part I, which are familiar manifestations of separation of powers and checks and balances. Indeed, despite the variety of appointment and removal provisions at work in the 50 states of our nation over its 200-year history, the majority has failed to cite a single case where a law has been held unconstitutional on the basis of one branch‘s control of another. This suggests that more than minimal control is required for a finding of unconstitutionality.
In determining the constitutionality of the level of legislative control of the judiciary permitted by the appointment legislation challenged here, we must be mindful of two vital principles of law and construction. First, statutes are presumed to be constitutional, and will not be invalidated if, resolving every reasonable doubt in favor of their constitutionality, there is any reasonable basis upon which they can be sustained. Zamora v. Draper, Utah, 635 P.2d 78, 80 (1981); Greaves v. State, Utah, 528 P.2d 805, 806-7 (1974); Trade Commission v. Skaggs Drug Centers, Inc., 21 Utah 2d 431, 446 P.2d 958 (1968); State v. Packard, 122 Utah 369, 373, 250 P.2d 561, 563 (1962); Broadbent v. Gibson, 105 Utah 53, 62, 140 P.2d 939, 943 (1943). Second, “It is a well-established rule of constitutional law that where there are two alternatives as to the interpretation of a statute, one of which would make its constitutionality doubtful and the other would render it constitutional, the latter will prevail.” Wagner v. Salt Lake City, 29 Utah 2d 42, 49, 504 P.2d 1007, 1012 (1972). Accord, Gord v. Salt Lake City, 20 Utah 2d 138, 143, 434 P.2d 449, 453 (1967); State Water Pollution Control Board v. Salt Lake City, 6 Utah 2d 247, 255, 311 P.2d 370, 375 (1957). As a result of these well-settled principles, all doubts must be resolved in favor of constitutionality, and the Court is obligated to adopt any reasonable construction of a statute that will assure its constitutionality in preference to any construction that would jeopardize it.
These principles surely refute the district court‘s construction of the Senate‘s power of “advice and consent” as, in effect, a power to appoint its own preference among the three persons nominated by the commission. Being required to adopt the construction that will sustain constitutionality, we should conclude that the Senate‘s power is not a power to appoint but only a power to veto. If an appointment is vetoed, the nominating commission must again submit three names, so the Governor can again exercise his statutory power to appoint one
It is hard to see how the Senate‘s veto power can be an effective instrument of control when its exercise is so strictly limited by our Constitution.
In addition to the Senate‘s power to veto, each house of the Legislature has the power to designate one commissioner on the seven-member judicial nominating commission. In total, the Legislature designates two of seven, the same number as the Governor. Since these two branches designate the same number of persons on the judicial nominating commission, and the Governor has the power to appoint one of the three nominees while the Senate only has a limited veto power, how can the judicial branch be “controlled” by the Legislature? On the contrary, the balance of power seems to be in the Governor‘s favor. In any case, the power of judicial selection is shared sufficiently to protect the judicial branch from control or domination by either of the others.
It is also said that the Legislature‘s power to impeach public officers, including judges, “for high crimes, misdemeanors, or malfeasance in office,”
In view of the intricate system of limitations, checks, and balances involved in the selection of judges, involving the electorate (who vote on appointees at the next general election) and representatives of all three branches of government and the State Bar, the contention that the Legislature‘s right to appoint two of seven members of the nominating commission, to veto the Governor‘s appointment, and to remove for cause amounts to control or dominance over the judicial branch strikes me as entirely unpersuasive. This kind of shared or balanced power is commonplace in the interaction of the three branches of our government.13 It is entirely consistent with the interdependence of the three branches of government that is an essential complement of the separation of powers. To hold that this limited interdependence violates the separation of powers is to run counter to practical experience with constitutional government and to invite a flood of pointless litigation challenging official acts.
V. THE REQUIREMENTS OF ARTICLE VII, § 10
I am also unable to agree with Justice Stewart‘s opinion that the constitutional power to enact laws specifying the manner of selection of judges cannot be exercised to require both Senate confirmation and contested election. My difference with Justice Stewart stems from a difference on the source of executive and legislative power to participate in the selection of judges.
In my opinion, the Governor‘s power to appoint and the Senate‘s power to confirm judicial appointments are rooted in
Although Justice Stewart‘s opinion cites
First, for the reasons detailed in Part III, I reject the idea that the executive under our Constitution has an inherent power to select judges. The power to select judges exists where the Utah Constitution expressly places it: in the authorities designated
Second, I do not accept Justice Stewart‘s apparent premise that the terms of
Third, I also disagree with Justice Stewart‘s interpretation of the terms of
Fourth, I also disagree with Justice Stewart‘s conclusion that the issue of the constitutionality of the judicial nominating commission is moot. In his complaint in this case, the Governor seeks a judgment declaring that the statute establishing the composition of the nominating commission is unconstitutional. So long as the Governor has an appointive role in filling judicial offices that may become vacant at any time, his complaint is justiciable under the declaratory judgment statutes,
VI. CONCLUSION
For the reasons set out above, I find no constitutional infirmity in the laws, enacted pursuant to
I reach my conclusion notwithstanding my skepticism about the desirability of a law requiring Senate confirmation of judicial appointments. Participation in judicial selection by a Legislature that is only occasionally in session may delay the process of filling judicial vacancies and thereby hamper the courts in overcoming current heavy caseloads, even as the supreme and district courts have been hampered by the delays incident to resolving this controversy. But the wisdom or desirability of legislation is a matter for the constitutional lawmakers—the Legislature, subject to executive veto.
“It does not lie within the province of the court to pass upon the wisdom, the need or the desirability of any legislation, nor to choose between two opposing political philosophies.” Trade Commission v. Skaggs Drug Center, Inc., 21 Utah 2d at 439, 446 P.2d at 963.
The only question before this Court is whether the legislation providing for judicial selection is constitutional. I have no doubt that it is.
Notes
Each judicial nominating commission shall have seven members: The chief justice of the Supreme Court, one commissioner chosen by the senate, one commissioner chosen by the house of representatives, two commissioners chosen by the governor and two commissioners chosen by the Utah State Bar Association. . . . [Disputed portion emphasized.]
The juvenile court and circuit court nominating commissions do not include individuals selected by the Legislature. SeeExcept as otherwise provided in this act, justices of the Supreme Court, judges of the district courts, and judges of the circuit court shall be selected, and a vacancy in any such office be filled, by appointment by the governor with the advice and consent of the senate of one of three persons nominated in the manner provided in this act by the appropriate judicial nominating commission for the office to be filled, but persons so appointed shall be subject to election by the voters at the time and in the manner provided in this act.
Except as otherwise provided in this act, justices of the Supreme Court, judges of the district courts, and judges of the circuit court shall be selected, and a vacancy in any such office be filled, by appointment by the governor with the advice and consent of the senate of one of three persons nominated in the manner provided in this act by the appropriate judicial nominating commission for the office to be filled, but persons so appointed shall be subject to election by the voters at the time and in the manner provided in this act. [Amendatory language emphasized.]
(4) Subject to the appointee being approved by the senate and being retained in the office by the voters as provided in section 20-1-7.7, the person appointed pursuant to this section shall serve for the unexpired term of his predecessor in office or shall serve for the full term of office provided by law in case the appointment is to fill a vacancy in the office of a justice or judge whose term has expired or is to fill a vacancy created by the establishment of a new judicial office.
E.g.,Subject to the appointee being approved by the senate and being retained in the office by the voters as provided in section 20-1-7.7, the person appointed pursuant to this section shall serve for the unexpired term of his predecessor in office or shall serve for the full term of office provided by law in case the appointment is to fill a vacancy in the office of a justice or judge whose term has expired or is to fill a vacancy created by the establishment of a new judicial office. [Amendatory language emphasized.]
The executive power of the State shall be vested in the Governor, who shall see that the laws are faithfully executed. The Governor shall transact all executive business with the officers of the government, civil and military ...
When a vacancy occurs in the office of any judge of a juvenile court or upon the expiration of the term of any judge of a juvenile court, the governor shall appoint with the advice and consent of the senate a judge from a list of at least two candidates nominated by the juvenile court commission. Each candidate shall be a member of the Utah State Bar in good standing, shall be chosen without regard to political affiliation, and on the basis of ability, judicial temperament, and special aptitude for juvenile court work, taking into consideration his interest, understanding, and experience with respect to problems of family and child welfare, and with respect to the control of juvenile delinquency. The concurrence of at least three members of the commission shall be required to make nominations under this section. [Amendatory language emphasized.]
To maintain the doctrine of separation of powers, it is necessary, of course, that the Legislature have the power to appoint its own clerks, assistants, and professional staff, seeThe great French philosopher, Montesquieu, stated what is still recognized as a valid principle:
Montesquieu‘s writings were familiar to the founders of the United States Constitution. Madison stated:Again, there is no liberty, if the judiciary power be not separated from the the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined the executive power, the judge might behave with violence and oppression. The Spirit of Laws, p. 70. [Great Books, Vol. 38 (1952)]
As first ratified, the United States Constitution did not have a Bill of Rights because of the belief that in the structure of government itself there was sufficient protection against any form of despotism. The doctrines of separation of powers and delegation of powers were initially deemed sufficient to provide the necessary protection against the age-old tendency of government to eventually assume despotic powers. As Madison wrote in the Federalist, No. 48, p. 197. [Great Books, Vol. 43 (1952)] “It will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.” For that reason, he stated:If there is a principle in our Constitution, indeed in any free Constitution more sacred than another, it is that which separates the legislative, executive and judicial powers. (1 Annals of Congress, 581.)
In arguing for the protections afforded individuals by separation of powers, Madison noted the numerous violations of that doctrine among the various states at that time. For example, he criticized the structure of government in Virginia which authorized the Legislature to fill all the principal offices, both executive and judicial. He also observed that the Constitution of North Carolina and South Carolina also provided for the legislative power of appointment of members of the judiciary as well as of executive officers, and in the case of South Carolina, even the power of appointment of officers in the executive department down to captains in the army and the navy.It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. Id.
Madison made clear that he did not wish to be “regarded as an advocate for the particular organisations of the several State governments.” Indeed, he though the constitutions of the first states bore “strong marks of the haste” with which they were created, and still “stronger” marks of the inexperience under which they were framed. In reference to the states, Madison stated:
The Federalist, No. 47.It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed that maxim by its author, nor by the sense in which it has hitherto been understood in America. Federalist, No. 47, p. 156. Id.
Fox v. McDonald, 101 Ala. 51, 13 So. 416, 420-21 (1893); Cox v. State, 72 Ark. 94, 78 S.W. 756, 757 (1904); State ex rel. Craven v. Schorr, 50 Del. 365, 131 A.2d 158, 163 (1957); Leek v. Theis, 217 Kan. 784, 539 P.2d 304, 317-20 (1975); Buchholtz v. Hill, 178 Md. 280, 13 A.2d 348, 350-52 (1940); Thorne v. Squier, 264 Mich. 98, 249 N.W. 497, 500, 89 A.L.R. 126 (1933); State ex rel. Standish v. Boucher, 3 N.D. 389, 56 N.W. 142 (1893); State ex rel. Haines v. Rhodes, 168 Ohio St. 165, 151 N.E.2d 716, 719 (1958); Heyward v. Long, 178 S.C. 351, 183 S.E. 145, 156 (1935); Richardson v. Young, 122 Tenn. 471, 125 S.W. 664, 669 (1910); State ex rel. Wayne v. Sims, 141 W.Va. 302, 90 S.E.2d 288, 291 (1955); People ex rel. Warren v. Christian, 58 Wyo. 39, 123 P.2d 368, 371 (1942); 1 Sutherland, Statutes and Statutory Construction § 3.20 (4th ed. D. Sands 1973); 63 Am.Jur.2d, Public Officers and Employees § 91 (1972).Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers in relation to the appointment of the President, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule that one man of discernment is better fitted to analyse and estimate the peculiar qualities adapted to particular offices than a body of men of equal or perhaps even of superior discernment.
The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have fewer personal attachments to gratify than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations, whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances will of course be the result either of a victory gained by one party over the other or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: “Give us the man we wish for this office, and you shall have the one you wish for that.” This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.
A minority of states hold that the power to appoint government officers is intrinsically, though not necessarily exclusively, executive. Tucker v. State, 218 Ind. 614, 35 N.E.2d 270, 284 (1941); In re Opinion of the Justices, 303 Mass. 615, 21 N.E.2d 551 (1939); State ex rel. Johnson v. Myers, 74 N.D. 678, 19 N.W.2d 745 (1945); Daly v. Hemphill, 411 Pa. 263, 191 A.2d 835 (1963). However, even these states apparently do not consider the power to appoint judges intrinsically executive. See, e.g., Tucker v. State, 35 N.E. at 285.
Juvenile court judges do not stand a retention election, but are subject to renomination and reappointment by the Governor at expiration of the terms for which they are appointed.