*1 Washington Finally, West Coast ar Richards,
gues by filing a counterclaim action, jurisdiction
in the invoked the thereby pro
court and waived the defense
vided 16-10—120. We do not Section filing
believe that of a counterclaim
should be construed be waiver. The course,
plaintiff may, against defend
counterclaim, see John C. Cutler Assn. v. Stores,
Defay
3 Utah 2d
eign corporation seeking from affirmative compel compliance
relief is to with state
taxing regulatory and laws. That purpose by requiring foreign best served cor
poration comply first as a condition to
permitting it to assert a claim which may granted. Although
relief be the de personal
fense is to the extent may
defendant waive the defense not it,
asserting see J. B. Colt Co. District District,
Court of Fifth Judicial
72 Utah
(1928);
Storage Co., Candy Co. v. Eite 57 Utah (1917), simply by P. it is not waived
filing a counterclaim. is affirmed. Costs to Re-
spondents.
CROCKETT, J., MAUGHAN, C. and HALL, JJ., concur.
WILKINS Utah, By Through
STATE of COMMISSION,
INDUSTRIAL Appellant,
Plaintiff and
WASATCH METAL AND SALVAGE
COMPANY, Defendant and Respondent. Hansen, Gen., Atty. Robert B. Mark A. No. 15376. Madsen, Gen., Harry McCoy, E. Atty. Asst.
Supreme Court of Utah. II, Special Gen., Atty. City, Asst. Lake Salt plaintiff appellant. April Garrett, Garrett, Edward M. of Hanson & respon- City, Salt Lake for defendant and dent.
895 8(1) provi- MAUGHAN, of the Utah Act has Section Justice: 8(a) substantially sions similar to Section of State, through the Industrial The Occupational Safety the and Health Act of Commission, appeals judgment from a of background 1970.2 a similar Under factual dismissing proceedings in- the district court case, the constitutionality to the instant of state, against stituted, defendant. by the statutory of a the authorization warrantless The affirmed. was submitted to the search under OSHA representative presented him- Plaintiff’s in Court Marshall Supreme United States credentials at defend- appropriate self with Barlow’s, The Court held the Act Inc.3 purpose the of conduct- workplace ant’s the under Fourth Amend- unconstitutional the Utah Oc- ing inspection pursuant an to ment; purported it to authorize insofar as 1973, Safety Health Act of cupational warrant, inspections equiv- a or its without U.C.A., 35-9-1, 1953, seq., as enacted et alent. 1973. Defendant refused the ad- peti- premises. to the The State
mission
Marshall,
Labor,
Secretary
The
of
tioned
court for an order of
the district
8(a)
Act,
urged
29
under Section
entry,
granted.
which was
De-
immediate
order
dismissal of
657(a), (which
inspec
fendant moved for an
of
U.S.C. Sec.
authorizes
proceedings.
granted
trial
The
court
premises
tion of business
without war
ground that another
the dismissal on the
rant),
inspections to enforce
warrantless
entire
judge
district
had declared the
act
meaning
were
within the
OSHA
reasonable
unconstitutional.
of
dis
the Fourth Amendment. The Court
agreed.
previously
The
stated it had
Court
attempted
appeal,
On
the State
generally
held
were
warrantless searches
beyond the immediate
to broaden the issues
unreasonable,
applied
rule
to com
and this
question,
constitutionality of section 35-
9-8(1),
judicial
premises
as to
well as homes. Fur
and seeks a
declaration
mercial
Chapter
Title 35. We
validity
thermore,
prohibi
Amendment
Fourth
authority of Baird
decline to so rule on the
protects
against
tion
unreasonable searches
State,1
to the
and confine
decision
during
against
intrusions
civil
warrantless
constitutionality
statutory
authoriza
investigations.
as criminal
as well
viz.,
35-9-8(1),
conduct an
tion of
to
Sec.
fact in
pointed out the critical
The Court
without a search war
administrative search
objection
entry, over the
was that
case
rant.
Barlow,
sought by a
being
was
of Mr.
35-9-8(1) provides:
Section
explained
agent. The
government
Court
representatives upon
division
its
The
or
not, by
of a business
owner
presenting appropriate credentials
employees, in his
necessary utilization of
owner,
charge, may
operator,
agent
or
in
the areas where em-
operation,
open
thrown
delay
without
at reasonable times
enter
ployees
to the warrant-
permitted,
alone are
any
performed
workplace where work is
scrutiny
agents. The
government
less
employee
employer; inspect
an
an
claim, viz.,
Secretary’s
rejected the
Court
investigate during regular working
requires
of the Act
enforcement scheme
and at
reasonable times in a
hours
other
searches, and the restrictions
warrantless
manner, any workplace and all
reasonable
(contained in the Act
on search discretion
methods, operations, processes,
pertinent
privacy
regulations) protect as much
and its
structures, machines,
conditions,
apparat-
as a warrant would.
us, devices,
and materials
equipment
requisites
on the
elaborated
Court
therein,
any
question privately
and to
an
warrant for OSHA
for an administrative
owner,
agent,
operator,
or
employer,
such
inspection:-
employee.
Utah,
56 L.Ed.2d
(1978).
U.S.
3.436
2. 84 U.S.C. Stat. 657(a)], § U.S.C.S. Secretary proceeds privacy guarantees se- needs and Whether the forcement process, cure a or other with or The court warrant each statute. admonished: notice, prior without his entitlement opinion we today’s base inspect depend will not on his demon- the facts and law concerned with OSHA strating probable cause to believe that holding appro- and do not retreat from a *3 conditions in violation of exist on OSHA priate to that statute because of its real premises. Probable cause in the imagined or effect on other different ad- required. criminal law sense is not For ministrative schemes.5 manageable proportions.4 obtaining of such warrants will exceed the lesser divisions of the protect the enforcement of the Act derived from persion rant showing ment desired industries across a sumption purposes of an administrative search such violation but also on a as suance of a warrant only been chosen for an Municipal neutral sources such basis of a [1727] spection dards for sonable particular this, probable rights. at 1736 legislative frequency an specific are of enforcement general Court, employees conducting [establishment].” employer’s satisfied that a We doubt that evidence of an cause supra, at administrative or administrative stan- L.Ed.2d of searches in OSHA given specific as, in may showing with an justifying for various Fourth Amend- energies area, 930]. search be example, respect area, business has Camara v. based not that “rea- the con- types and the plan existing A any on the the is- in the would war- to a dis- for in- is not search, beyond important form, wárrant would then and there advise the owner of the tion, ing specific suant to an administrative spection is reasonable under the Constitu- rant, to search and whom to search. A war- Clause Court’s executive and administrative burdens that thority to make warrantless searches de- they protections volves almost unbridled discretion vacy by ances from a neutral particularly The court continued: Nor do we fail by expected applies authorized functions which underlie the prior a warrant are so contrast, functions for a warrant to to afforded those neutral criteria.6 decisions that the Warrant agree may justify scope which limits the to in inspections by be entailed. The au- would that the incremental proceed. statute, officer that the the administrative field, employer’s pri- objects provide marginal plan for and is as to when These are contain- officers, Also, compli- assur- pur- that per- in- a Secretary urged The further requir- that regulatory ance with statutes. [Citations ing a inspectors warrant for OSHA would We conclude that the concerns omitted.] regulatory mean that other provid- statutes expressed by Secretary do not suffice ing for a warrantless search would be con- justify inspections warrantless under stitutionally responded infirm. The Court general OSHA or vitiate the constitution- that requirement reasonableness of a warrantless that for a search to be al search depend upon specific would en- reasonable a warrant must be obtained.7 Pp. U.S., pp. 8(a) program 4. 320-321 of 436 1824-1825 of 98 tion of the Act.’ The was not described, however, any presented S.Ct. or facts why inspection would indicate an of Barlow’s Pp. U.S., p. 321-322 of 436 1825 of 98 S.Ct. program. establishment was within the The generally order that issued concluded inspection that the statement, 6. As an elaboration of this footnote ‘part inspec- authorized was of an 20, provides: application inspec- “The for the program designed compliance tion to assure ” by Secretary tion order filed in case this with the Act.’ represented inspection ‘the desired investigation contemplated part are of an U.S., pp. pp. 1825-1826 7.At 322-324 of 436 at inspection program designed compli- to assure of 98 S.Ct. by ance with the Act and are authorized Sec- First, prohib- searches only which are principles involv court reiterated provisions by in our are Michigan search ited constitutional an administrative ing those which are unreasonable.1 it stated: wherein Tyler,8 Second, for administrative this Legislature Searches fashioned forego- awareness of the like searches evidence statute in obvious purposes, requirements that crime, by ing, and has laden it with encompassed the Fourth are be It any inspection such must reasonable. And under that Amend Amendment. representative present- a must be done ment, justified governing principle, “one “reasona- ing appropriate credentials and at experience, current by history in a “reasonable manner.” ble times” and except in cer consistently been followed: tain search of consent rant.” been authorized Ct [1727] ., 387 carefully at Camara, supra, is ‘unreasonable’ unless private 1731, U.S. defined classes 523] property by a valid search L.Ed.2d at [Camara 528-529, without 930.] v. cases,, 87 S.Ct. Municipal proper *4 it has war statute will hered to in a that subject restrictions, reasonableness; Third, the to the only inspections it is be there can constitutional clearly understood, applied, and duty therefore under those stated restrictions be no performed will be assume manner:2 unreasonable that the and ad- i. e., of necessary cause showing probable of autho- by the statute. In search authorized may vary with the ob a warrant safe- inspection secure in the interests of rizing an search, of but health, oppres- and the ject intrusiveness no likelihood of ty and I see necessity persists. the annoyance. warrant If the the conduct or undue sive regarded in- inspection is the proposed Thus, 9—8-(l)autho- insofar as Sec. 35— refuse; unreasonable, he can spected -as warrant, it is inspections without a rizes judicial ap- the must obtain then It is so because it consti- unconstitutional. proval and a warrant. the Fourth and Four- tutes a violation of of con- principle Fourth: a fundamental of Amendments of the Constitution teenth judicial branch stitutional law is that 14, 1, States and Article Sec. United restraint, judicial and should exercise of Constitution Utah. legislative pre- not into should intrude on law and opinion grounded This is 3 uncon- rogative and not declare a statute not with We do facts associated OSHA. beyond a reasona- is so stitutional unless it appli- general down a rule which has hand important keep It in mind doubt.4 is ble cation to other administrative endeavors. responsi- an awesome judiciary bility in that exercise final it can JJ., WILKINS, STEWART, HALL of the prerogatives executive concur. government, of as well legislative branches own; upon practically its as CROCKETT, (dissenting). Justice Chief of is its own sense only restraint thereon obvious that if such my judgment are It is the basis of what in self-restraint. On courts could having bearing exercised the propositions, vital restraint not sound danger- arbitrarily to themselves arrogate the three power on the balance of between destroy impair- or government, powers I from de- ous which could of dissent branches so which served power the balance claring the statute unconstitutional. 135, City, 1948, 499, 506, 1942, Bradshaw Beaver 27 2d 493 v. Utah 56 3. 8. 436 U.S. 486, P.2d 643. L.Ed.2d 496 Utah, Savage, U.S.Const., City I, 14; P.2d 541 4. Salt Lake v. Utah 1. Const. Art. Sec. Skaggs Drug 1035, citing v. Trade Commission Fourth Amendment. Inc., 958; Centers, P.2d 21 Utah 2d 446 Keddington, v. and Snow 113 Utah Vanlaningham Dept. Regula Business 2. tion, Utah, 234. P.2d citing Parkinson 566 P.2d Watson, Utah 2d 291 P.2d advantages well one of the distinctive government. It is therefore system importance judiciary that the
of the utmost temptation to extend its own
resist great it exercise care not
authority and that prerogatives
to encroach
other two branches. above,
On the basis of what has been said my opinion only contrary
it is that it is not princi- policy and well-established sound law,
ples unnecessary but is and ill-ad-
vised, to declare statute unconstitution-
al. SLADE,
Bryan L. Plaintiff *5 Respondent, DENNIS,
Eleanor A. Sanchez Appellant.
Defendant and
No. 15710.
Supreme Court of Utah.
April