SALT LAKE CITY, Plaintiff and Appellee, v. Mason A. OHMS, Defendant and Appellant.
No. 930580
Supreme Court of Utah
Aug. 18, 1994.
881 P.2d 844
RUSSON, Justice
II. Dictum
The court of appeals analyzed this case under both the federal constitution and the state constitution. See State v. Sims, 808 P.2d 141, 145-150 (Utah Ct.App.1991). Because we have held that the issues raised under the state constitution are moot, any discussion of the state constitution is unwarranted. The state constitution analysis undertaken by the court of appeals must therefore be considered to be mere dictum. See, e.g., Consolidation Coal Co. v. Emery County, 702 P.2d 121, 125 (Utah 1985) (language was dictum “in that it was not essential to the resolution of the issue in the case“).
ATTENUATION
The standard for deciding whether consent is sufficiently attenuated from the illegal stop was set forth by this court in State v. Thurman, 846 P.2d 1256 (Utah 1993). This standard requires consideration of three factors: “[1] ‘the purpose and flagrancy of the official misconduct,’ [2] the ‘temporal proximity’ of the illegality and the consent, and [3] ‘the presence of intervening circumstances.‘” Id. at 1263 (quoting Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975)). Like most questions involving application of law to fact, attenuation should be decided in the first instance by the trial court. See State v. Pena, 869 P.2d 932, 937 (Utah 1994) (appellate court grants at least some discretion to trial court‘s application of law to fact); State v. Barnhart, 850 P.2d 473, 475-77 (Utah Ct.App.1993) (same).
The roadblock in the present case occurred before roadblock standards under the federal constitution had been established. See Michigan Dep‘t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). A trial court might therefore reasonably conclude, under the “purpose and flagrancy” prong, that defendant‘s consent in the present case was attenuated from the illegal stop. Before Pena was decided, however, this court had already dispositively ruled on the attenuаtion question in Sims‘s stop. See Sims v. State Tax Comm‘n, 841 P.2d 6, 10 (Utah 1992). While I believe this court erred in deciding the issue of attenuation for the first time on appeal, the doctrine of res judicata prohibits us from now revisiting this question. See Salt Lake Citizens Congress v. Mountain States Tel. & Tel. Co., 846 P.2d 1245, 1251-52 (Utah 1992).
HALL, J., did not participate herein; BENCH, Court of Appeals Judge, sat.
David L. Sanders, Salt Lake City, for Ohms.
RUSSON, Justice:
Mason A. Ohms appeals his conviction of giving false or misleading information to a police officer, a class C misdemeanor, in violation of Salt Lake City Ordinance § 11.04.100. We reverse and remand.
I. FACTS
At approximately 9:30 p.m. on August 25, 1992, a disturbance involving the distribution of beer erupted in the third-level plaza area of the Delta Center. Sergeant Foster Mayo of the Salt Lake City Police Department, who was working security duty at the Delta Center, intervened and placed Mason A. Ohms under arrest for battery, a class B misdemeanor, in violation of Salt Lake City Ordinance § 11.08.020. After taking Ohms to a holding room, Sergeant Mayo asked him for identification, at which time Ohms produced a driver‘s license bearing the name Scott Smith. Sergeant Mayo asked Ohms if this was his driver‘s license and if he was Smith; Ohms answered both questions in the affirmative.
After Sergeant Mayo and other officers began the requisite paperwork using the Smith identification, one officer noticed that Ohms did not match the physical description on the driver‘s license. When confronted with the discrepancy, Ohms produced a second driver‘s license bearing his correct name. Ohms was subsequently charged with providing false or misleading information to a police officer, a class C misdemeanor.
Prior to his trial on both misdemeanor charges, Ohms signed a waiver and consent form in which he (1) acknowledged his right to a trial before a third circuit court judge with or without a jury, (2) waived that right, and (3) consented to have his case tried and final judgment entered by a circuit court commissioner.1 Following a trial before Third Circuit Court Commissioner Sandra N. Peuler on December 15, 1992, Ohms was convicted by her of providing false or misleading information to a police officer and sentenced to three days in the Salt Lake City County Jail, which sentence was suspended upon payment of a $100 fine.2
Ohms appealed his conviction to the Utah Court of Appeals, which certified his appeal to this court, pursuant to Utah Rule of Appellate Procedure 43(a).3 On certification, Ohms challenges (1) the circuit court commissioner‘s authority to enter final judgment, and (2) the sufficiency of the evidence supporting his conviction. Salt Lake City responds that (1) Ohms, having never challenged the authority of the court commissioner below, may not raise this argument for the first time on appeal; and (2) the evidence is sufficient to support Ohms’ conviction.4
II. AUTHORITY OF COURT COMMISSIONERS
On certification, Ohms argues that the circuit court commissioner lacked authority to enter final judgment in his case. Specifically, he asserts that
Salt Lake City responds that since Ohms did not challenge the authority of the court commissioner or raise the constitutionality of section 78-3-31 below, he may not now raise these arguments for the first time on appeal. Alternatively, Salt Lake City contends that since Ohms (1) knowingly and voluntarily waived his right to have his case tried and final judgment entered by a third circuit court judge with or without a jury and (2) consented to have his case tried and final judgment entered by a court commissioner, he cannot now, having received an unfavorable verdict, challenge the validity of that waiver and consent.
As a general rule, we will review issues raised for the first time on appeal only if exceptional circumstances or “plain error” exists. See, e.g., State v. Brown, 853 P.2d 851, 853-54 (Utah 1992); State v. Gibbons, 740 P.2d 1309, 1311 (Utah 1987); State v. Steggell, 660 P.2d 252, 254 (Utah 1983). In the present case, or in any similar case, the only way that a defendant could challenge the constitutionality of section 78-3-31(6)(a) would be first to consent to a hearing by a commissioner and then to challenge the validity of that very consent. Such a procedure would likely be futile inasmuch as it would invariably result in the withdrawal of the consent, either by the defendant or by court order. Indeed, absent the approach taken by Ohms, it is unlikely that section 78-3-31(6)(a) would ever be subject to constitutional scrutiny. This is precisely the sort of exceptional circumstance that permits us to review the constitutionality of the provision in question. Accordingly, even though Ohms did not challenge the constitutionality of section 78-3-31 below, we nonetheless address this argument on appeal.
Our analysis of the constitutionality of section 78-3-31 begins with the premise that “statutes are presumed to be constitutional.” State v. Rio Vista Oil, Ltd., 786 P.2d 1343, 1349 (Utah 1990). As this court stated in In re Estate of Baer:
The decisions of this court unanimously support a presumption of constitutionality of legislative enactments. In determining constitutionality, statutes are presumed to be constitutional until the contrary is clearly shown. It is only when statutes manifestly infringe upon some constitutional provision that they can be declared void. Every reasonable presumption must be indulged in and every reasonable doubt resolved in favor of constitutionality.
In re Estate of Baer, 562 P.2d 614, 616 (Utah), appeal dismissed sub nom. Baer v. Baer, 434 U.S. 805, 98 S.Ct. 35, 54 L.Ed.2d 63 (1977); see also Murray City v. Hall, 663 P.2d 1314, 1317-18 (Utah 1983) (holding that statutes “‘are endowed with a strong presumption of validity; and that they should not be declared unconstitutional if there is any reasonable basis upon which they can be found to come within the constitutional frame work [sic]‘” (quoting Greaves v. State, 528 P.2d 805, 807 (Utah 1974))). Nonetheless, when a proper challenge to the constitutionality of a given statute is made, the said statute must be examined to determine if it is unconstitutional, either on its face or as applied. See, e.g., In re Criminal Investigation, 7th Dist. Court No. CS-1, 754 P.2d 633, 640 (Utah 1988); Wells v. Children‘s Aid Soc‘y of Utah, 681 P.2d 199, 204 (Utah 1984); Ellis v. Social Servs. Dep‘t of Church of Jesus Christ of Latter-day Saints, 615 P.2d 1250, 1255 (Utah 1980).
The statute at issue in this case provides in part:
It further states:
Upon the informed consent of the defendant, the court commissioner may conduct a jury or nonjury misdemeanor trial in accordance with the law. Upon conviction, the commissioner may impose sentence and enter final judgment. The judgment entered by the commissioner shall be the final judgment of the court for all purposes, including appeal.7
Article VIII, section 1 of the Utah Constitution, much like article III, section 1 of the United States Constitution, provides that the judicial power of the state shall be vested in the courts. However, unlike its federal counterpart, the Utah Constitution further delineates certain requirements concerning the selection and retention of those who will exercise that judicial power. See Utah Const. art. VIII, §§ 8, 9, & 13. Thus, under state law, examination of the constitutionality of section 78-3-31 consists of two inquiries: (1) whether section 78-3-31 violates the Utah Constitution‘s exclusive vesting of the state‘s judicial power in article VIII courts,8 and (2) whether section 78-3-31 violates the Utah Constitution‘s requirements for those persons exercising that judicial power in courts of record.9
A. Constitutional Powers of Article VIII Courts
Core functions or powers of the various branches of government are clearly nondelegable under the Utah Constitution. See, e.g., Sandy City v. Salt Lake County, 827 P.2d 212, 221 (Utah 1992) (holding that legislative functions, such as powers of zoning and rezoning, cannot be delegated); State v. Gallion, 572 P.2d 683, 687 (Utah 1977) (holding that Utah Const. art. VI, § 1 limits legislature‘s ability to delegate legislative powers or functions to others); In re Bridwell, 25 Utah 2d 1, 2, 474 P.2d 116, 116 (Utah 1970) (holding that Utah Supreme Court cannot delegate its duty to discipline an erring attorney to others); accord State v. Green, 793 P.2d 912, 916 (Utah Ct.App.1990) (holding that “crime definition and penalty powers are essential legislative functions that cannot constitutionally be delegated by the Utah Legislature to any other person or body“). For example, a legislator cannot appoint another person to cast his or her vote on the floor of the legislature. Although a legislator can utilize assistants for various purposes, these assistants cannot exercise the legislator‘s voting power since such is a core legislative function. It is the legislator, not his or her staff, who is elected for that purpose, and it is the legislator who is accountable to the people.
Likewise, a judge cannot appoint another person to enter final judgments and orders or impose sentence. While he or she can utilize referees, court commissioners, and other assistants for various purposes, those persons cannot exercise that judge‘s ultimate judicial power, for such is a nondelegable core judicial function. In courts of record, it is the judge who is selected by a precise constitutional procedure to exercise judicial power, and it is the judge, not other “quasi-judicial” officers, who is subject to the ac
Based on these principles, our present inquiry focuses on whether the authority delegated to the commissioner here involves core judicial power of a court of record.10 “The term ‘judicial power of courts’ is generally understood to be the power to hear and determine controversies between adverse parties and questions in litigation.” Timpanogos Planning & Water Management Agency v. Central Utah Water Conservancy Dist., 690 P.2d 562, 569 (Utah 1984) (quoting Citizens’ Club v. Welling, 83 Utah 81, 90, 27 P.2d 23, 26 (1933)). Such core judicial powers include “the authority to hear and determine justiciable controversies” as well as “the authority to enforce any valid judgment, decree or order.” Id. (quoting Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237, 242 (1967)). Further, core judicial functions necessarily include all powers that are “necessary to protect the fundamental integrity of the judicial branch” and, as such, may not be delegated to persons other than judicial officers. Criminal Investigation, 754 P.2d at 642.
Article VIII, section 1 of the Utah Constitution states:
The judicial power of the state shall be vested in a supreme court, in a trial court of general jurisdiction known as the district court, and in such other courts as the Legislature by statute may establish. The Supreme Court, the district court, and such other courts designated by statute shall be courts of record. Courts not of record shall also be established by statute.
Thus, article VIII, section 1 specifically creates a supreme court and district courts as courts of record and gives the legislature the power to create other courts, including additional courts of record, by statute. The legislature has created circuit courts, as well as the court of appeals and juvenile courts, as additional courts of record.11 The Utah Constitution also establishes the jurisdiction of the various state courts of record: article VIII, section 1 provides that district courts have general jurisdiction; article VIII, section 3 sets forth the jurisdiction of the supreme court, and article VIII, section 5 states that the jurisdiction of courts of record established by the legislature shall be provided by statute.12 Moreover, article VIII‘s explicit vesting of jurisdiction in the various courts of the state is an implicit prohibition against any attempt to vest such jurisdiction elsewhere.
B. Constitutional Requirements for Exercise of Judicial Power
The Utah Constitution specifically provides that individuals who exercise the judicial power of the state in courts of record must be selected “solely upon consideration of fitness for office without regard to any partisan political consideration,” Utah Const.
Article VIII, section 8 provides that judicial appointments to courts of record are made by the governor from a list of names submitted by a judicial nominating commission,13 which appointment must then be approved by the state senate. Only upon completion of this process can the selected individual assume the office of judge of a court of record. Even then, that judge must submit to a retention election by the electorate after serving in office for three years, and on a regular basis thereafter. Utah Const. art. VIII, § 9. Furthermore, that judge is subject to review by a judicial conduct commission, which has the power to investigate complaints and recommend sanctions where appropriate. Utah Const. art. VIII, § 13. Thus, throughout their tenure, article VIII judges of courts of record remain accountable for their actions.14
In short, those persons who exercise judicial power in courts of record are subject to both careful selection and continuing review as set forth in the Utah Constitution. Any attempt by either the legislature or the judicial council to transfer or assign the power of such judges to others would plainly circumvent and violate the Utah Constitution. It would deprive the judicial nominating commission of its constitutional right to select and submit judicial nominees to the governor, it would deprive the governor of the constitutional right to choose judges of courts of record, and it would deprive the people of the state of Utah of their constitutional right to vote on judges of courts of record in retention elections.
C. Section 78-3-31
Returning to the statute at issue,
Court commissioners are quasi-judicial officers of courts of record and have judicial authority as provided by this section and rules of the Judicial Council.15
The statute further provides:
Upon the informed consent of the defendant, the court commissioner may conduct a jury or nonjury misdemeanor trial in accordance with the law. Upon conviction, the commissioner may impose sentence and enter final judgment. The judgment entered by the commissioner shall be the
final judgment of the court for all purposes, including appeal.16
Insofar as these sections purport to grant ultimate judicial power and authority to court commissioners in courts of record, such as the power to enter judgment and impose sentence in the case at bar, they violate article VIII of the Utah Constitution. This is true for the following reasons.
1. Article VIII, Section 8
Permitting court commissioners to perform core judicial functions, as section 78-3-31(1)(a) and (6)(a) purports to do, violates article VIII, section 8‘s provision that all article VIII judges of courts of record must be certified by a judicial nominating commission to the governor, who then makes the appointment with the approval of the state senate. While court commissioners, as “quasi-judicial officers,”
2. Separation of Powers
Permitting the legislature to grant court commissioners authority to enter final judgment and impose sentence violates the separation of powers doctrine. The dissent argues that since, under the court commissioner system, the judicial power is being delegated to persons entirely within the control of the judiciary, there is no separation of powers problem. However, their argument misses the point. By granting commissioners “judicial authority as provided by this section,”
3. Subject Matter Jurisdiction
Subject matter jurisdiction is “the authority and competency of the court to decide the case.” Department of Social Servs. v. Vijil, 784 P.2d 1130, 1132 (Utah 1989)
However, that does not resolve the question of whether the individual exercising that court‘s jurisdiction had the authority to do so. Although the language of article VIII, section 5 grants the legislature authority to bestow jurisdiction on statutorily created courts, City of Monticello v. Christensen, 788 P.2d 513, 518 (Utah), cert. denied, 498 U.S. 841, 111 S.Ct. 120, 112 L.Ed.2d 89 (1990), it does not give the legislature the discretion to determine who has the authority to exercise that jurisdiction. Thus, while the circuit court clearly had jurisdiction to decide this matter, it does not necessarily follow that the circuit court commissioner had authority to enter judgment and impose sentence in her capacity as a circuit court commissioner.
By enacting section 78-3-31(1)(a) and (6)(a), the legislature has attempted to grant authority to enter final judgments and impose sentence in courts of record to nonjudges, in violation of article VIII of the Utah Constitution. Such a grant is plainly unconstitutional because, pursuant to article VIII, only judges may enter judgments and impose sentence in courts of record since they are the only judicial officers constitutionally appointed to perform such functions. Moreover, as stated in Justice Howe‘s concurring opinion, the fact that Ohms signed a waiver and consent form is irrelevant to our analysis because “it [was] not within his power to invest by a ‘waiver’ the right to perform core judicial duties in persons to whom that right has not been granted by [article VIII,] section 4.” Accordingly, we conclude that section 78-3-31 violates the Utah Constitution insofar as it attempts to vest authority to enter final judgments and impose sentence in criminal misdemeanor cases, which are core judicial functions, upon pеrsons other than article VIII judges.20
III. DE FACTO AUTHORITY
However, because the circuit court to which the commissioner was assigned had jurisdiction to decide this matter, we must address Commissioner Peuler‘s authority to hear this case as a “judge de facto” of the third circuit court.
A judge de facto is defined as:
One who holds and exercises the office of a judge under color of lawful authority and by a title valid on its face, though he has not full right to the office, as where he was appointed under an unconstitutional statute, or by an usurper of the appointing power, or has not taken the oath of office.
This court has defined an officer de facto as follows:
“An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised,
First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be.
Second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like.
Third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public.
Fourth, under color of an election or apрointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such.”
Vance v. Fordham, 671 P.2d 124, 131 n. 5 (Utah 1983) (emphasis added) (quoting State v. Carroll, 38 Conn. 449, 471-72 (1871)), cert. denied sub nom. Vance v. Utah, 465 U.S. 1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984); see also State v. Menzies, 845 P.2d 220, 226 (Utah 1992) (stating that under de facto officials doctrine, persons “may be considered de facto officials if they assume official authority under color of a valid appointment and public acquiescence in the authority“); Hussey v. Smith, 99 U.S. 20, 24, 25 L.Ed. 314 (1878) (stating that “[a]n officer de facto is not a mere usurper, nor yet within the sanction of law, but one who, colore officii, claims and assumes to exercise official authority, is reputed to have it, and the community acquiesces accordingly“); accord 46 Am.Jur.2d Judges § 243 (1969). Although Vance did not specifically address judges de facto, but rather a member of a committee recommending revocation of the license of a doctor who lacked statutory qualification, the court nonetheless stated in broad language that when an officer lacks authority to perform the duties he or she has performed but acts as an officer de facto, the action taken by that officer is valid. Vance, 671 P.2d at 130-31.
Also of note is this court‘s decision in In re Thompson‘s Estate, 72 Utah 17, 269 P. 103 (1927), which rejected a petition for rehearing that objected to a district judge‘s sitting on the state supreme court following a justice‘s death but before a new justice was named and sworn in. The court held that the district judge had, at least, de facto authority to sit with the supreme court, given that (1) the district judge had authority in other instances to sit with the court, and (2) the parties had knowledge of and did not object to the district judge‘s participation. Id. at 87, 269 P. at 128.
In light of the above authority, it is clear that although the statute granting commissioners authority to enter final judgments and impose sentence must be declared unconstitutional, actions taken by commissioners in the past are not subject to challenge since court commissioners in those cases acted with de facto authority. See, e.g., Farmer, 621 P.2d at 175 (holding that judgments rendered by courts not having authority to enter such are not subject to collateral attack becаuse judges entering those judgments were de facto officers).
However, it would be unconscionable to deprive Ohms, who has sustained the bur
IV. CONCLUSION
In conclusion, we hold that
STEWART, Associate C.J., concurs.
HOWE, Justice, concurring:
I concur. I write to express an additional basis for the conclusion reached in the majority opinion.
In article VIII, section 4 of the Constitution of Utah, express provision is made for two instances in which judicial duties may be performed by someone other than an active article VIII judge or justice. That section provides in part:
Except as otherwise provided by this constitution, the Supreme Court by rule may authorize retired justices and judges and judges pro tempore to perform any judicial duties. Judges pro tempore shall be citizens of the United States, Utah residents, and admitted to practice law in Utah.
The quoted language is new language contained in the 1984 amendment to article VIII.1 It seems reasonable to assume that the drafters of the amendment and the electorate when they adopted it contemplated that situations would arise in which an active article VIII judge or justice might not be available to perform a judicial duty or that overloaded calendars would sometimes require additional judicial assistance. Thus, provision was made in section 4 for this court by rule to authorize retired justices and judges, and judges pro tempore “to perform any judicial duties.”2
A well-recognized and often relied-upon rule of construction of language in statutes and constitutions is the maxim expressio unius est exclusio alterius. Hansen v. Wilkinson, 658 P.2d 1216, 1217 (Utah 1983) (“It probably is not wholly inaccurate to suppose that ordinarily when people say one thing they do not mean something else.” (quoting 2A C. Sands, Sutherland Statutory Construction, § 47.01 (4th ed. 1973))). In construing constitutional provisions, the rule has been stated by various courts in different ways. For example, in State ex rel. O‘Connell v. Slavin, 75 Wash.2d 554, 559, 452 P.2d 943, 946 (1969), the court stated the rule as follows:
For purposes of constitutional interpretation, the express mention of one thing implies exclusion of another which might logically have been considered at the same time.
In In re Investigation of a Circuit Judge of the Eleventh Judicial Circuit of Florida, 93 So.2d 601, 606 (Fla.1957), the same rule was stated:
[W]here the constitution expressly provides the manner of doing a thing, it impliedly forbids it being done in a substantially different manner.
The Supreme Court of Arizona in Whitney v. Bolin, 85 Ariz. 44, 330 P.2d 1003, 1005 (1958), stated the rule as follows:
[T]he enumeration of specified things in a constitution will usually be construed to exclude all other things not so numerated.
Finally, in Village of Perrysburg v. Ridgway, 108 Ohio St. 245, 253, 140 N.E. 595, 597 (1923), the court wrote that “express delegations of political power are made through constitutional provisions and are necessarily exclusive delegations of power, unless it be expressly provided otherwise.” See also Peck v. State, 63 Idaho 375, 120 P.2d 820, 822 (1941) (citing another expression of the rule).
The rule has been applied in construing constitutional provisions in a wide variety of situations. One such instance is in the construction of constitutional provisions prescribing the qualifications of candidates for public office. In Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), the United States Supreme Court held that the House of Representatives could not add to the qualifications specified in the Constitution to serve as a House member. Similarly, in Whitney, 330 P.2d at 1004-05, article VI, section 13 of the Arizona Constitution prescribed the qualifications for justicеs of the supreme court. The legislature added by statute that no incumbent of an elective office shall be eligible for nomination or election to any office other than the office held. The court held that the legislature cannot add other qualifications or restrictions to those enumerated in the constitution for justices. Id. at 1005-06. Recently, the Arkansas Supreme Court in U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349, cert. granted, U.S., 114 S.Ct. 2703, 129 L.Ed.2d 832 (1994), held that an amendment to the Arkansas Constitution which imposed term limits on United States senators and representatives elected in Arkansas was unconstitutional in that it added qualifications to those stated in the United States Constitution.
The rule has also found application in cases construing constitutional provisions dealing with removal of public officers from office. In In re Investigation of a Circuit Judge, 93 So. 2d at 604, the court held that where the constitution creates an office, fixes its term, and provides the conditions under which the incumbent may be removed before expiration of his or her term, neither the legislature nor any other authority has power to remove or suspend such officer in any manner other than that provided by the constitution. Likewise, in State v. Patterson, 181 Ind. 660, 105 N.E. 228 (1914), the Constitution of Indiana provided that any judge or prosecuting attorney who is convicted of corruption or other high crime may be removed from office by the supreme court. It was held in that case that the legislature lacked the power to prescribe by statute that a prosecuting attorney could also be removed for neglect of duty. In that case, the court wrote:
In construing constitutional provisions, a rule of general acceptance is “that which is expressed makes that which is silent to cease.” When the constitution declares how a right may be exercised, it impliedly prohibits its exercise in some other way.
The rule is expressed by Cooley as follows: “When the Constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition or to extend the penalty to other cases.” Cooley‘s Const. Lim. 64.
Patterson, 105 N.E. at 229 (citations omitted).
Because of the foregoing well-reasoned authorities, I am led to conclude that article VIII, section 4 provides the exclusive means by which the authority to perform judicial duties may be delegated to a person other than an active article VIII justice or judge, to wit, “the Supreme Court by rule may authorize retired justices and judges and judges pro tempore to perform any judicial duties.” Utah Const. art. VIII, § 4. I agree with the majority that the legislature is not free to authorize by statute other persons, such as commissioners, to enter final judg
In 1984 when article VIII was amended by the electorate to include the above-quoted language, commissioners did not try misdemeanor cases. Only seven years earlier in 1977, city judges had been automatically made circuit judges and a statewide circuit court system had come into place. The trial and sentencing of persons charged with misdemeanors was a major part of circuit court work. Because all city judges holding office as of July 1, 1977, automatically became state circuit court judges, some parts of our state had more circuit judges than the case load at that time required. With this backdrop of conditions which existed in 1984, it is readily understandable that the above-quoted provision in section 4, which was new language, was thought to be broad enough to accommodate any future increased need for judicial duties to be performed by anyone other than an active article VIII judge or justice. Thus, retired justices and judges and judges pro tempore were the only persons authorized in section 4 to perform judicial duties and only then, when authorized by rule of the supreme court (not by the legislature).
It is of no consequence that article VIII, section 1 vests judicial power in courts, not in judges, as argued by Chief Justice Zimmerman and Justice Durham in their dissenting opinion. Although judicial power may be vested in courts, section 4 allows that power to be exercised, i.e., allows “judicial duties” to be performed, only by article VIII judges and by retired justices and judges and by judges pro tempore when authorized by the supreme court.
Since section 4 carefully delineates and limits the persons who may perform judicial duties, no one can circumvent that limitation by voluntarily agreeing that someone else can “perform judicial duties” in his or her case. While a criminal defendant can waive a personal right afforded him, such as the right to a speedy trial, the right against self-incrimination, and the right to a jury trial, it is not within his power to invest by a “waiver” the right to perform core judicial duties in persons to whom that right has not been granted by section 4.
Finally, because the wording of section 4 is unique to our constitution, the federal cases upholding the magistrate system in the federal court system relied upon in the dissenting opinion are not on point.
Thus, I conclude that in addition to the reasons given in the majority opinion, the statute at issue in the instant case,
I therefore join in the reversal of defendant‘s conviction.
STEWART, Associate C.J., and RUSSON, J., concur in the concurring opinion of HOWE, J.
DURHAM, Justice, and ZIMMERMAN, Chief Justice, dissenting:
Today the majority takes a grave misstep. In an opinion that reflects a fundamental misunderstanding of the Utah constitutional provisions relating to the selection and retention of article VIII judges, the majority reaches the erroneous conclusion that only persons who have been selected and retained by the methоds described in article VIII are constitutionally capable of exercising “the judicial power” of the state of Utah. In essence, the majority “constitutionalizes” a concept of the article VIII judge as a kind of “sacred vessel” in whose person is contained the entire quantum of the judicial power. The majority‘s conclusion lacks precedential support1 and, more important, is not re
I. NATURE, HISTORY, AND FUNCTION OF THE JUDICIAL POWER AND THE JUDICIAL SELECTION AND RETENTION PROVISIONS
Justice Russon, writing for the majority, asserts that the constitutional provisions relating to the selection and retention of judges of courts of record create the necessary prerequisites for the legitimate exercise of the judicial power.2 The majority‘s reasoning is as follows: The judicial power is a personal, not an institutional, power, embodied in and able to be exercised only by an individual judge; the constitution, by providing for specific methods of selection and retention of judges of courts of record, limits the persons who may exercise the judicial power. This “sacred vessel” theory fails because (i) the judicial power addressed by the constitution‘s vesting provisions is institutional rather than personal; (ii) the judicial selection and retention provisions of the constitution are not textually linked to article VIII, section 1 and have never in a hundred years of Utah constitutional history been considered or construed to be inextricably connected to the exercise of the judicial power in any defining way, nor is there any evidence that the framers intended such a connection; and (iii) the constitution provides for the creation of nonrecord courts by the legislature and for the appointment of pro tempore judges (both of which are clearly understood to be constitutionally capable of exercising the judicial power), with no corresponding requirement that these judicial officers be subject to the selection and retention requirements for judges of record courts. Thus, while the selection and retention provisions certainly create a constitutional requirement for an individual to acquire the status of a judge of a court of record, they just as certainly do not circumscribe the limits of legitimate exercise of the judicial power within either record or nonrecord courts.
A. Nature of the Judicial Power
It is the province of the judicial branch of government to interpret the law. As a necessary incident to this role, the judiciary is empowered to “hear and determine controversies between adverse parties and questions in litigation.” Timpanogos Planning & Water Management Agency v. Central Utah Water Conservancy Dist., 690 P.2d 562, 569 (Utah 1984) (quoting Citizens’ Club v. Welling, 83 Utah 81, 90, 27 P.2d 23, 26 (1933)).3 This judicial power includes “the authority to hear and determine justiciable controversies . . . . [It] includes the authority to enforce any valid judgment, decree or order.” Id. (quoting Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237, 242 (1967)).
Pursuant to article VIII, section 1 of the Utah Constitution, “[t]he judicial power of the state shall be vested in a Supreme Court, in a trial court of general jurisdiction . . . , and in such other courts as the Legislature by statute may establish.” Utah Const. art. VIII, § 1 (emphasis added). The majority opinion mistakenly incorporates into article VIII, section 1 the notion that the judicial power belongs exclusively to individual judges rather than being vested, as the constitution specifically provides, in the courts. Even the functions that the majority refers to as “core judicial functions,” such as conviction and sentencing in criminal cases, cannot be characterized as the exercise of personal or individual power. The power in question is the institutional power that the constitution vests in the courts. When individual
An individual judge adjudicates guilt, orders the entry of conviction, and imposes sentence. But until the judge‘s order has been reduced to writing and has been duly filed and placed in the court‘s records by auxiliary court staff, it is essentially meaningless. It cannot be enforced or relied upon as a legal basis for a deprivation of liberty. See
In adopting the “sacred vessel” theory, the majority paints itself into an analytical corner. It repeatedly insists that the exercise of the judicial power is limited to those persons who, like themselves, are appointed to the bench and retained in office pursuant to article VIII, sections 8, 9, and 13. Taken to
The majority‘s “compromise” defies logic. If in fact, as the majority asserts, the judicial selection and retention provisions contained in article VIII, sections 8, 9, and 13 do serve as a prerequisite for the exercise of the “judicial power of the state of Utah,” every judicial act, not just “core judicial functions,” must be performed by a judge. To conclude otherwise would, in the words of the majority,
plainly circumvent and violate the Utah Constitution. It would deprive the judicial nominating commission of its constitutional right to select and submit judicial nominees to the governor, it would deprive the governor of the constitutional right to choose judges of courts of record, and it would deprive the people of the state of Utah of their constitutional right to vote on judges of courts of record in retention elections.
Maj.Op. at 850.
We think it is far more logical to read the language of article VIII, section 1 in accord with its plain meaning — the judicial power of the state of Utah shall be vested in the “courts.” Under this reading of article VIII, section 1, all judicial power, not just “core judicial functions,” must remain firmly under the control of the judiciary. Because section 78-3-31 operates in harmony with this constitutional mandate, we would uphold its validity.
B. Textual and Historical Analysis of Judicial Selection and Retention Provisions
The lack of any meaningful textual or historical analysis in the majority opinion further demonstrates the fallacy of the “sacred vessel” theory. The majority has simply created a theory out of whole cloth by treating article VIII as if it were an undifferentiated grab bag of constitutional provisions. To locate a basis in reason supporting its desired result, the majority appears to have arbitrarily seized upon the judicial selection and retention provisions found in sections 8, 9, and 13. The majority, however, fails to рrovide any textual analysis to support a connection between these provisions and its notions about the judicial power. The reason the majority opinion fails in this respect is quite clear — no textual support exists. Article VIII, section 1 does not state that it is conditioned by article VIII, sections 8, 9, and 13, nor do these latter provisions refer to the judicial power or even mention article VIII, section 1.
The majority opinion also fails to subject its “sacred vessel” theory to even a cursory historical analysis. The reason is again quite clear — no historical support exists. The Utah Constitution‘s judicial selection and retention provisions have undergone two amendments since the constitution was draft
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. . . .
Utah Const. art. VIII, § 3 (1945). Article VIII‘s current language on judicial selection and retention was adopted in 1985. It is clear, however, that from 1896 to 1985, the constitution never dealt with any specific method of judicial selection or retention. Because the judicial selection and retention provisions serve as the sole basis for the majority‘s “sacred vessel” theory, this theory could only have been incorporated into the constitution with the 1985 amendments. We therefore turn to the history of the 1985 amendments.
During the tenure of Governor Scott M. Matheson (1977-1985), the legislature made significant revisions to the statutory scheme for judicial selection and retention. These revisions were in turn challenged by Governor Matheson on separation of powers grounds. See Matheson v. Ferry, 641 P.2d 674 (Utah 1982) (“Matheson I“); Matheson v. Ferry, 657 P.2d 240 (Utah 1982) (per curiam) (“Matheson II“). Because the outcome of these cases was unfavorable to the legislature‘s position, pressure arose to amend the constitution to authorize the specific feature of judicial selection (senatorial confirmation of gubernatorial appointments) favored by the legislature. Utah Constitutional Revision Comm‘n, Report of the Constitutional Revision Comm‘n Submitted to the Governor and 45th Legis. of the State of Utah 15-17, 31-33 (2d prtg. 1984). In response to that pressure, the Constitutional Revision Commission (“CRC“) recommended the current language on judicial selection and retention. Id. This language was ultimately placed on the ballot as Proposition No. 3 in 1984. Id. See generally Minutes of Constitutional Revision Comm‘n (May 25-26, 1984). A thorough review of all the relevant minutes and committee reports of the CRC, the legislative floor debates on the judicial article revision, and the voter information supplied in connection with Proposition No. 3 reveals no discussion, reference, or even suggestion that the inclusion of these provisions in the constitution was in any way intended to alter article VIII, section 1‘s mandate that judicial power be vested in the courts. It is perfectly clear, in fact, that the sole motivation for constitutionalizing the judicial selection and retention process was to insulate the practice of senatorial confirmation from constitutional attack on the basis of the separation of powers doctrine.
Thus, the majority‘s ipse dixit conclusion that the presence in article VIII of specific methods for judicial selection and retention automatically means that such methods are somehow an integral component of the judicial power is without textual or historical support.
C. Powers of Judges of Nonrecord Courts and Pro Tempore Judges in Record Courts
The conclusion noted in the preceding paragraph is buttressed by the fact that the constitution itself contemplates that persons not subject to the selection and retention process of article VIII, sections 8 and 9 may nonetheless exercise the judicial power of the state of Utah, including the power to convict of criminal acts and impose criminal penalties. See Utah Const. art. VIII, § 1 (legislature may establish nonrecord courts), § 4 (establishing judges pro tempore);
In his concurring opinion, Justice Howe contends that by expressly authorizing judges pro tempore to perform judicial duties, the constitution implicitly restricts others from performing similar tasks. This court rejected an analogous inference in two early cases. The original language of article VIII provided that judges of the supreme court and the district courts and justices of the peace were “conservators of the peace” and could conduct preliminary hearings in “cases of felony.” Utah Const. art. VIII, § 21 (1896). This court held that the grant of power was not exhaustive and did not prevent the legislature from authorizing judges named in the section to hold preliminary hearings in cases involving crimes less serious than felonies. State v. McIntyre, 92 Utah 177, 182-85, 66 P.2d 879, 881-82 (1937). More significantly, the court earlier held that the power to hold preliminary hearings did not lie exclusively with the persons named in the section and that the legislature had the power to give city courts the same authority. State v. Shockley, 29 Utah 25, 32-35, 80 P. 865, 867-68 (1905).
It is conceded that by virtue of said section 1, Constitution, the Legislature had authority to create the city court, but it is contended that the foregoing provision of the statute, so far as it attempts to confer jurisdiction upon the judge of said court to sit as a committing magistrate, is in conflict with said section 21 of the Constitution. Counsel for appellant insists that the word “may” in section 21 should be construed to mean “shall,” and, when so construed, the doctrine of expressio unius est exclusio alterius applies, which, they claim, limits the jurisdiction to hold preliminary examinations to cases of felony exclusively to the officers mentioned in said section. By a careful reading of this seсtion of the Constitution it at once becomes apparent that such could not have been the intention of the framers of that instrument. Id. at 32-33, 80 P. at 867. It seems equally apparent to us that the framers of the judicial selection and retention provisions of the constitution did not intend to limit statutory authorization of the performance of judicial duties exclusively to persons so selected, so long as the fundamental requirements of separation of powers are maintained.
II. CONSTITUTIONALITY OF UTAH‘S COMMISSIONER SYSTEM
Having demonstrated that there is no textual, logical, or historical support for the conclusion the majority forces upon this case, we proceed to analyze the challenge to the commissioners’ power as we think an orthodox approach to legal issues demands. Ohms’ challenge in this case is to
Ohms claims, and the majority agrees, that section 78-3-31(6) “is unconstitutional insofar as it delegates ultimate judicial power to court commissioners in violation of article VIII of the Utah Constitution.” Maj. Op. at 846. Because a trial before a commissioner may be held only with a defendant‘s consent and because section 78-3-31(6) does not impinge on the essential powers and independence of the judiciary, we conclude that section 78-3-31(6) does not violate article VIII, section 1.
Ohms’ attack on section 78-3-31(6) is strikingly similar to recent attacks on the Federal Magistrate Act of 1979, Pub.L. No. 96-82, 93 Stat. 643 (“FMA“). The FMA grants powers to federal magistrates which, although broader, are analogous to the powers given commissioners under section 78-3-31(6).7 In a series of cases decided since 1984, litigant after litigant has challenged the FMA on the ground that it violates the mandate contained in the United States Constitution that judicial power be vested in the courts.8 Federal court after federal court has rejected these challenges and upheld the constitutionality of the FMA.9
The seminal federal case in this area is Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc., 725 F.2d 537 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984).10 In Pace
separation of powers protections . . . have two components. One axis reaches to the person affected by government action and encompasses his or her relation to a constitutional branch; the other axis runs from each governmental branch to the others to insure separation and independence in the constitutional structure.
Id. at 541; see also Peretz v. United States, 501 U.S. 923, 931-32, 936-37, 111 S.Ct. 2661, 2666-67, 2669, 115 L.Ed.2d 808, 819, 822 (1991); Commodity Futures Trading Comm‘n v. Schor, 478 U.S. 833, 848, 106 S.Ct. 3245, 3255, 92 L.Ed.2d 675 (1986). This concept, according to Pacemaker, necessitates a two-pronged analysis of statutes such as the FMA. 725 F.2d at 541. Under this two-pronged analytical model, a court should consider (i) whether transfer of a case to an adjunct invades rights personal to the defendant; and (ii) whether, even if the transfer does not invade the defendant‘s rights, “the existence or operation of the alternate forum compromises the essential independence of the judiciary.” Id.
We find much of the Pacemaker analysis useful and, unlike the majority, are unwilling to blithely dismiss the accumulated wisdom of a judicial system which has struggled with this issue for over ten years.11 First, the language of the federal and state constitutions is similar. Both are couched in terms of the vesting of “judicial power” in “courts.” Compare U.S. Const. art. III, § 1 with Utah Const. art. VIII, § 1. Second, both constitutions share a conceptual grounding in the separation of powers doctrine that is an essential part of our common constitutional heritage. Compare Buckley v. Valeo, 424 U.S. 1, 120-21, 96 S.Ct. 612, 682-83, 46 L.Ed.2d 659 (1976) with Timpanogos, 690 P.2d at 565. Third, the fеderal magistrate system and the Utah commissioner system are analogous, and the legal challenges to each have been raised in similar contexts. Compare
The first question is whether the transfer of this case to a court commissioner invaded rights personal to defendant. We recognize that as a general principle, criminal defen
A defendant‘s right to have an article VIII judge conduct his trial is a personal right, and as such, it is subject to waiver. See Peretz, 501 U.S. at 931-32, 936-37, 111 S.Ct. at 2666-67, 2669; Schor, 478 U.S. at 848-49, 106 S.Ct. at 3255-56; United States v. Ferguson, 778 P.2d 1017, 1019 (4th Cir.1985), cert. denied sub nom. Wilson v. United States, 476 U.S. 1123, 106 S.Ct. 1990, 90 L.Ed.2d 671 (1986); United States v. Dobey, 751 P.2d 1140, 1143 (10th Cir.), cert. denied, 474 U.S. 818, 106 S.Ct. 63, 88 L.Ed.2d 52 (1985); Goldstein v. Kelleher, 728 P.2d 32, 35 (1st Cir.), cert. denied, 469 U.S. 852, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984); Pacemaker, 725 F.2d at 541. Given that we allow criminal defendants to waive virtually every other constitutional right, we find it peculiar that the majority opinion does not even analyze whether criminal defendants may waive the right to be tried by an article VIII judge. By ignoring this issue, the majority attempts to hide yet another flaw in its reasoning.
That a criminal defendant can waive a personal right and not thereby compromise the fundamental fairness of the judicial proceeding is not a novel concept. As the Supreme Court pointed out in Peretz:
We have previously held that litigants may waive their personal right to have an Article III judge prеside over a civil trial. See Commodity Futures Trading Comm‘n v. Schor, 478 U.S. 833, 848, 106 S.Ct. 3245 [3255] (1986). The most basic rights of criminal defendants are similarly subject to waiver. See, e.g., United States v. Gagnon, 470 U.S. 522, 528, 84 L.Ed.2d 486, 105 S.Ct. 1482 [1485] (1985) (absence of objection constitutes waiver of right to be present at all stages of criminal trial); Levine v. United States, 362 U.S. 610, 619, 4 L.Ed.2d 989, 80 S.Ct. 1038 [1044] (1960) (failure to object to closing of courtroom is waiver of right to public trial); Segurola v. United States, 275 U.S. 106, 111, 72 L.Ed. 186, 48 S.Ct. 77 [79] (1927) (failure to object constitutes waiver of Fourth Amendment right against unlawful search and seizure); United States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir.1987) (failure to object results in forfeiture of claim of unlawful postarrest delay); United States v. Bascaro, 742 F.2d 1335, 1365 (11th Cir.1984) (absence of objection is waiver of double jeopardy defense), cert. denied sub nom. Hobson v. United States, 472 U.S. 1017, 87 L.Ed.2d 613, 105 S.Ct. 3476 (1985); United States v. Coleman, 707 F.2d 374, 376 (9th Cir.) (failure to object constitutes waiver of Fifth Amendment claim), cert. denied, 464 U.S. 854, 78 L.Ed.2d 154, 104 S.Ct. 171 (1983). See generally Yakus v. United States, 321 U.S. 414, 444, 88 L.Ed. 834, 64 S.Ct. 660 [677] (1944) (“No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right“). Just as the Constitution affords no protection to a defendant who waives these fundamental rights, so it gives no assistance to a defendant who fails to demand the presence of an Article III judge at the selection of his jury.
In an effort to overcome the conclusion that the right to be tried before an article VIII judge is subject to waiver, Ohms tries to recast the issue as one of subject matter jurisdiction. He argues that the commissioner had no jurisdiction to hear this case and that such jurisdiction could not be created by consent. We agree with the majority that this is an improper attempt to recharacterize the issue.
When faced with an assertion similar to the one Ohms makes here, the United States Court of Appeals for the Third Circuit recognized that “jurisdiction in the usual sense may not be conferred by consent . . . [and] may not be waived by agreement of the parties.” Wharton-Thomas v. United States, 721 F.2d 922, 926 (3d Cir.1983). The Wharton-Thomas court went on, however, to explain:
In this case . . . jurisdiction was given to the district court by Congress, see
28 U.S.C. § 1346(b) — the consent of the litigants had no part in that process. The judgment in this Tort Claims Act case is that of the district court, the forum specified by the statute.The parties’ consent went not to the jurisdiction of the district court as an entity, but to the judicial officer within the court who conducted the trial.
Id. (emphasis added).
Just as Congress granted the federal district court jurisdiction over causes of action arising under the Tort Claims Act, the Utah legislature specifically granted the circuit court jurisdiction over class misdemeanors.
Having concluded that Ohms’ consent waived any claim he had of invasion of a personal right, we move to the second prong of the Pacemaker analysis: whether section 78-3-31(6) “compromises the essential independence of the judiciary.” Pacemaker, 725 F.2d at 541.
The separation of powers doctrine protects the whole constitutional structure by requiring that each branch retain its essential powers and independence. Buckley v. Valeo, 424 U.S. 1, 120, 96 S.Ct. 612, 682-83 (1976); accord Timpanogos, 690 P.2d at 564-65; Matheson I, 641 P.2d at 676; id. at 681-82 (Howe, J., concurring).14 Accordingly, we note at the outset, “The component of the separation of powers rule that protects the integrity of the constitutional structure, as distinct from the component that protects the rights of the litigants, cannot be waived by the parties.” Pacemaker, 725 F.2d at 543-44. Such a result is necessary because this prong of the separation of powers doctrine serves to protect “institutional interests that the parties cannot be expected to protect.” Schor, 478 U.S. at 850-51, 106 S.Ct. at 3256-57; cf. Timpanogos, 690 P.2d at 564-65 (discussing importance of independent judicial institution); Matheson I, 641 P.2d at 681-82 (Howe, J., concurring) (same).
Section 78-3-31(6) contains sufficient protections against the erosion of judicial power to overcome the cursory separation of powers objections raised by the majority. Section 78-3-31(6) invests judges of article VIII courts with extensive and exclusive control over the composition, management, and operation of the commissioner system. As a primary and necessary incident of this control, we recognize that the power to appoint and remove court commissioners is vested entirely in the judicial branch.
The extensive administrative control exercised by article VIII judges, when coupled with the availability of appellate review by article VIII judges of all commissioners’ decisions, leads us to conclude that section 78-3-31(6) does not compromise the essential independence of the judiciary. Because both prongs of the Pacemaker analytical model are met, we would hold that section 76-3-31(6) does not violate the Utah Constitution.
Furthermore, Utah‘s history and practice regarding the use of court commissioners demonstrate no abuses that would threaten the independence of the judiciary on the one hand or its accountability on the other. The requirement of consent from a criminal defendant before a commissioner can hear misdemeanor cases ensures due process, as does the availability of appellate review on the merits of the decision. The majority opinion posits potential “horribles,” such as legislative authorization for commissioners to adjudicate capital cases. It is difficult to envision the political atmosphere in which the Utah legislature would so act or the Utah judicial council (which is responsible for rules governing the use of commissioners) would approve, but in any event, such an abuse would be reviewable on numerous constitutional grounds. The statute before us, by contrast, merely empowers commissioners, subject to the procedures authorized by the judicial council, to hear misdemeanor offenses with the consent of the defendant. That statute is constitutional.
Finally, we note that the legislature has long regarded the use of court commissioners as constitutional. In 1965, the legislature passed the Juvenile Court Bill, which authorized juvenile court commissioners. See ch. 165, § 13, 1965 Utah Laws 595, 602. In 1969, the Family Court Act authorized court commissioners to perform counseling, reconciliation, and other services. See ch. 72, § 15, 1969 Utah Laws 327, 332. The authority of the district court to appoint commissioners to conduct civil mental commitment proceedings has existed at least since 1951, sеe ch. 113, § 3, 1951 Utah Laws 366, 374, and has been exercised continuously since 1974. See Judicial Council, Court Comm‘rs in the Utah State Court System: Report to the Ad Hoc Comm. on Court Comm‘rs 1 (June 14, 1993). In 1985, the legislature expanded the authority of commissioners in domestic relations cases. See ch. 151, §§ 1-5, 1985 Utah Laws 266, 266-67. Five years later, in 1990, the legislature repealed most of the existing statutory grants of authority and directed the judicial council to adopt rules governing the authority of court commissioners. See ch. 230, §§ 2, 4, 1990 Utah Laws 1111, 1111-13. Finally, in 1991, the legislature extended the authority of commissioners to include most criminal magistrate functions and the adjudication of class A misdemeanors (and below) with the consent of the defendant. See ch. 268, § 29, 1991 Utah Laws 1070, 1086-87.
The history of legislative authorization for and use by the courts of commissioners demonstrates two truths: (i) Use of commissioners is a successful method for dealing with certain kinds of demands on the resources of the courts; and (ii) neither the legislature nor the courts themselves have ever perceived in such use an unconstitutional delegation of the judicial power vested by the constitution in the courts or a violation of the separation of powers doctrine.
Today, in a broadly worded opinion, the majority incorporates into the Utah Constitution the grandiose notion of the person of the judge as a “sacred vessel.” In so doing, the majority places severe restrictions on the ability of the judicial branch to manage litigation in Utah. In an opinion that summarily dismisses persuasive federal case law and fails to conduct even a cursory analysis of the text or history of article VIII, the majority concludes that article VIII‘s selection and retention provisions operate as a limit on those who may exercise the judicial power of the state of Utah. The majority reaches this result even though the statute in question preserves the essential independence and integrity of the judiciary by placing Utah‘s commissioner system under the exclusive control of the judiciary. The majоrity opinion is neither constitutionally required nor analytically sound, and we anticipate that constitutional revisions may be necessary to alleviate the mischief it does.15 In any event, today‘s decision will require pervasive changes in the way Utah‘s judiciary does business, changes that for all the majority‘s concerns over the status of the decision maker will be largely of form and not substance.
Notes
As defendant in the above entitled case, I acknowledge my right for a trial before a Circuit Court Judge with or without a jury. I hereby waive this right and give consent for my case to be tried and for final judgment to be entered by a Court Commissioner.
Prior to the amendment, judges pro tempore were authorized to try causes only in the district court and upon agreement of the parties or their counsel. There was no provision respecting retired judges or justices. Utah Const. art. VIII, § 5 (1945). In footnote 20 of the majority opinion, the majority claims that its conclusion is supported by the decisions of other states. The state law upon which the majority opinion relies, however, is largely inapрosite. For example, the majority points to State ex rel. Smith v. Starke Circuit Court, 275 Ind. 483, 417 N.E.2d 1115, 1121-23 (1981), for the proposition that judicial powers cannot be vested in officers such as commissioners appointed by judges of the courts. While that language is contained in Smith, the Indiana court refused to set aside the order in question because the appellant had failed to object to the authority of the commissioner at the trial level. Id. at 1123-24; see also Bivins v. State, 485 N.E.2d 89, 92 (Ind.1985) (asserting that first question court should consider in cases such as the one at hand is whether “[a]ppellant waived his right to challenge [the] selection” of a commissioner or special judge); Rodgers v. Rodgers, 503 N.E.2d 1255, 1257 (Ind.Ct.App.1987) (“The authority of one who acts as judge de facto under color of authority cannot be collaterally attacked. . . . Where a party does not object to an irregularity in the appointment of a special judge, he accepts the appointment, submits to the jurisdiction, and waives the irregularity.” (citations omitted)). Furthermore, many of the cases cited in the majority opinion rely for their analysis on constitutional and statutory grounds, invalidating certain uses of commissioners largely because they fail to follow a statutorily prescribed scheme. See, e.g., In re Santa Cruz, 8 Ariz.App. 349, 446 P.2d 253, 254-55 (1968); C.C.C. v. District Court for Fourth Judicial Dist., 188 Colo. 437, 535 P.2d 1117, 1119 (1975) (en banc); Lewis v. Texas Dep‘t of Pub. Safety, 407 S.W.2d 855, 856 (Tex.Civ.App.1966). Even the Indiana Supreme Court in Smith, after striking down a statute which purported to “give . . . appointed commissioners the full scope of powers held by [a] regular . . . judge,” went on to observe that “the appointment of a [commissioner] by a circuit court judge is not necessarily constitutionally improper.” 417 N.E.2d at 1118, 1123. The court pointed out that if proper limitations on authority were observed, the use of commissioners was proper, and specifically approved the extant use in Indiana of referees, probate commissioners, masters, and judges in small claims courts. Id. at 1124.At federal law, the term “judicial power” embraces not only the “right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction,” but also the power: “to punish for contempt of their authority, to issue writs in aid of jurisdiction when authorized by statute, to make rules governing their process in the absence of statutory authorization or prohibitions; inherent equitable powers over their own process to prevent abuse, oppression and injustice, and to protect their own jurisdiction and officers in the protection of property in custody of law, the power to appoint masters in chancery, referees, auditors, and other investigators; and to admit and disbar attorneys.”
Martin B. Hickman, Utah Constitutional Law 135-36 (1954) (unpublished Ph.D. dissertation, University of Utah) (quoting United States Constitution, Revised and Annotated 511-12 (1953)).
The court commissioner may accept pleas of guilty or no contest, impose sentence, and en
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
The following courts have upheld the authority of federal magistrates to try criminal misdemeanors upon consent of the defendant: United States v. Ferguson, 778 F.2d 1017, 1019 (4th Cir.1985), cert. denied sub nom. Wilson v. United States, 476 U.S. 1123, 106 S.Ct. 1990, 90 L.Ed.2d 671 (1986); United States v. Byers, 730 F.2d 568, 570 (9th Cir.) (per curiam), cert. denied, 469 U.S. 934, 105 S.Ct. 333, 83 L.Ed.2d 270 (1984); United States v. Dobey, 751 P.2d 1140, 1143 (10th Cir.), cert. denied, 474 U.S. 818, 106 S.Ct. 63, 88 L.Ed.2d 52 (1985).
Given the Pacemaker majority‘s emphasis on the curative effects of consent by the parties and control by Article III judges, we cannot, consistent with Pacemaker, hold that consensual reference of criminal misdemeanors violates the constitution.
Id.; see also Dobey, 751 P.2d at 1142-43.
Moreover, because the language of article VIII is plain, it is improper to explore its legislative history, as the dissent would have us do. “The rule which should be applied is that laws, and especially foundational laws such as our Constitution, should be interpreted and applied according to the plain import of their language as it would be understood by persons of ordinary intelligence and experience.” State v. Phillips, 540 P.2d 936, 938 (Utah 1975), disavowed on other grounds, State v. Taylor, 664 P.2d 439, 448 n. 4 (Utah 1983); see also University of Utah v. Board of Examiners, 4 Utah 2d 408, 428, 295 P.2d 348, 361 (1956) (holding that if constitutional provision is clear, “then extraneous or contemporaneous construction may not be resorted to“); Society of Separationists, Inc. v. Whitehead, 870 P.2d 916, 944 (Utah 1993) (Stewart, J., dissenting) (stating that because this court is sworn to uphold language of constitution, we must enforce plain and unambiguous language contained therein); cf. Brinkerhoff v. Forsyth, 779 P.2d 685, 686 (Utah 1989) (“Where statutory language is plain and unambiguous, this Court will not look beyond the same to divine legislative intent.“). The reason for such a rule is clear. It prevents judges from “finding” an ambiguity in even the most plain language of a constitutional or statutory provision as an excuse to search the legislative history in an attempt to justify an interpretation they prefer. The dissent‘s laborious investigation into the history of prior versions of article VIII is a prime example of such an attempt, as that information is of no analytical assistance in interpreting the plain language of current constitutional provisions.
Unlike the United States Constitution, the Utah Constitution contains a specific provision mandating separation of powers. Article V, section 1 of the Utah Constitution provides: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 dissent claims that our decision today is contrary to almost thirty years of historical support for the use of commissioners. This is simply not true. Court commissioners have provided a valuable service to the judiciary for over thirty years pursuant to constitutionally valid statutes. They have conducted fact-finding hearings, held pretrial conferences, made recommendations to judges, and provided counseling and other worthwhile functions. However, over that thirty-year period, commissioners were never allowed to perform ultimate or core judicial functions such as entering final orders and judgments or imposing sentence. In every case, commissioner actions led to recommendations which resulted in final review and signature by a judge. It was not until April 1990 that the current vеrsion of section 78-3-31 became effective, giving rise to Holm v. Smilowitz, 840 P.2d 157 (Utah Ct.App.1992), and the present case.
For example, prior to the 1990 amendment of that section, the Utah Code section addressing mental health commissioners provided:
In any case in which the court refers an application to the commissioner, the commissioner shall promptly cause the proposed patient to be examined and, on the basis of that examination, shall either recommend dismissal of the application or hold a hearing, as provided in this part, and make findings of fact and recommendations to the court regarding the order for involuntary commitment of the proposed patient.
Likewise, with respect to domestic relations, prior to the ill-advised 1990 amendment of section 78-3-31 which granted them the power to enter final judgments and orders, court commissioners had the authority to “require the personal appearance of parties and their counsel,” “require the filing of financial disclosure statements and proposed settlement forms by the parties,” “obtain child evaluations,” “make recommendations to the court regarding any issue in domestic relations and spouse abuse cases,” “keep records, compile statistics, and make reports as the courts may direct,” and require counsel to file certain certificates with the pleadings.
Furthermore, the dissent‘s argument, based on Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc., 725 P.2d 537 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984), that this right is one personal to the defendant and therefore subject to waiver plainly ignores “the people‘s” right to have cases tried in courts of record before article VIII judges who are subject to retention elections.
For example, the Wyoming Supreme Court has specifically held that “[t]he district court cannot delegate the power to hear, try, or determine a case to a court commissioner.” K.C., 771 P.2d at 778. The reason for such a rule is plain: “Simply put, ‘[g]eneral court commissioner responsibilities as a hearing examiner cannot be outspread, absent expansion of constitutional authorization, to include power of decisional finality within present constitutional terms. The differentiation is between adjunct fact finding and plenary judicial responsibility.‘” Id. (quoting Foster v. Foster, 768 P.2d 1038, 1042 (Wyo.1989) (Urbigkit, J., specially concurring)).
Similarly, the Indiana Supreme Court has stated that the state legislature is forbidden to vest commissioners with judicial duties that, under the Indiana constitution, only judges are allowed to exercise. Smith, 417 N.E.2d at 1121-23. “‘A master commissioner is not a court, and judicial duties which courts only can exercise, can not be conferred upon him.‘” Id. at 1121 (quoting Shoultz v. McPheeters, 79 Ind. 373, 376 (1881)); see also Rivera v. State, 601 N.E.2d 445, 446 (Ind.Ct.App.1992) (holding that “a commissioner acts as an instrumentality to inform and assist the court; only the court has authority to make final orders or judgments“).