Matheson v. Ferry

641 P.2d 674, 1982 Utah LEXIS 869

• Court: Utah Supreme Court
• Decided: January 11, 1982
• Docket: 17961
• Status: Published

Opinions

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 Article V, § 1 of the Utah Constitution. That Section provides as follows:

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 § 20-1-7.3¹ which provides for two members of district and Supreme court nominating commissions to be selected by the Legislature, and the portions of §§ 20-1-7.1² and 7.6,³ and § 78-3a-8⁴ which require Senate confirmation of Supreme, district, circuit and juvenile court appointments are unconstitutional.

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 Article V, § 1 only to the extent “expressly directed or permitted” by the Constitution. He contends that the Constitution does not expressly direct or permit legislative participation in the appointment process and, therefore, both legislative appointees on judicial nominating commissions and the statutory requirement of Senate confirmations of gubernatorial judicial appointments are unconstitutional.

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 Article V, § 1.

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.]

With respect to legislative power to confirm the Governor’s judicial appointees, the contention is that it is a shared power, a fundamental part of our American system of checks and balances, and “may be exercised within reason by the Legislature pursuant to either express or implied provisions in the State Constitution.”

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 Article V, § 1.

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 Article V, § 1 and by an effective system of checks and balances in the judicial selection process, the judicial department of government, when and by whoever selected, will remain independent and free of control by either of the other two in the exercise of its judicial functions.

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:

[Ujnless 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 legislative appointees on a seven-member judicial nominating commission is constitutionally accommodated and does not necessarily violate Article V, § l.⁷

With respect to the constitutionality of the statutes requiring Senate confirmation of judicial appointments, however, a control consideration is involved addressed in Rampton v. Barlow, 23 Utah 2d 383, 464 P.2d 378 (1970), persuading us that those statutes offend against the separation of powers doctrine in Article V, § 1.

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 Article V, § 1. While the Barlow case may be distinguishable upon the grounds that the appointments involved were legislative appointments in the executive department,⁸ and not the question of executive or legislative appointments in the judicial department, as in the matter before us, nevertheless the principles enunciated there are applicable here. That is to say, that the separation of powers doctrine will be violated where the legislative department of government exercises effective control over the function of selection and appointment of judges.

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 Article VIII, § 3, and it presumably has the plenary power to do so with respect to juvenile and circuit court judges. Wood v. Budge, 13 Utah 2d 359, 374 P.2d 516 (1962).

The power to “provide by law,” however, is not unlimited, and in our view such power is not only proscribed by the provisions of Article VIII, § 3 requiring Supreme Court and district court appointments to be based upon fitness for office contained in § 3 itself, but also by all other applicable provisions of the Constitution, including the separation of powers requirement of Article V, § 1. In other words, while the Legislature has the exclusive constitutional power to provide by law for the selection of judges, the law, which in its wisdom it so provides, must comport with and must not offend against other applicable provisions of the Constitution.¹⁰

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 Moreover, the function of applying the selection processes pursuant to laws which it passed and making actual appointments has never been performed by the Legislature itself. Indeed, so far as we are aware, the actual selection and appointment of judges in every state except two¹² (excluding states having popular election procedures) is done by the executive either by Constitution or statute, or both, under limitations and restrictions of varying degrees as the constitutions and laws in such states provide. Whether our Governor performs this function by constitutional power, statutory power, or by virtue of an inherent power born of practicality, history and tradition is not significant to our decision. What is important is the fact that such power when exercised by the Governor pursuant to law, whatever its source, is both protected and proscribed by Article V, § 1 of the Constitution. In our judgment, a contrary concept is an unacceptable dilution of the separation of powers doctrine and unnecessarily undermines a basic and fundamental principle of constitutional government.

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 Article V, § 1 of the Constitution applicable to those laws? That question is answered by us in the affirmative and in the affirmative by the concurring opinions of both Justice Howe and Justice Stewart. The concept is sound because it strengthens rather than weakens the separation of powers principle, and it is compatible with every cited Utah case on the subject. It is simply the next logical step from Rampton v. Barlow, supra.

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 Article V, § 1 in Barlow.

Article VIII, § 3 of the Constitution reads as follows:

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 commissions and the separation of powers provisions of our Constitution. We cannot, however, shirk our duty to find an act of the Legislature unconstitutional when it clearly appears that it conflicts with some provision of our Constitution. Stanton v. Stanton, 30 Utah 2d 315, 517 P.2d 1010 (1974); Allen v. Rampton, 23 Utah 2d 336, 463 P.2d 7 (1969).

In summary, we find no constitutional objection to the Legislature creating and participating in judicial nominating commissions to the degree it has by U.C.A., 1953, § 20-l-7.3(a). However, when Senate confirmation is added and further imposed upon the Governor, who must already nominate from a severely restricted list, such requirement becomes “control” as in Rampton v. Barlow, supra, and a violation of the separation of powers doctrine in Article V, § 1 of our Constitution.

Reversed in part and affirmed in part, consistent with the foregoing.

HALL, C. J., concurs.

1 . U.C.A., 1953, § 20-l-7.3(a) reads:

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. See U.C.A., 1953, § 78-3a-8 and § 20-1-7.3(3).

2 . U.C.A., 1953, § 20-1-7.1, as amended in 1981, reads:

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.]

3 . U.C.A., 1953, § 20-1-7.6(4), as amended in 1981, reads:

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. [Amenda-tory language emphasized.]

4 .U.C.A., 1953, § 78-3a-8(l), as amended in 1981, reads:

5 . This position is supported by In re Advisory Opinion to the Governor, Fla., 276 So.2d 25 (1973).

6 . “Although constitutional differences account for some variations in the decisions, a majority of jurisdictions do consider the appointive power not exclusively executive, or if executive not exercisable exclusively by the governor.” 1 Sutherland, Statutes and Statutory Construction § 3.20 (4th ed. D. Sands 1973). See also, Taylor v. Lee, 119 Utah 302, 226 P.2d 531 (1951); “The Theory of State Constitutions,” Utah Law Review at 560 (1966); Leek v. Theis, 217 Kan. 784, 539 P.2d 304 (1975).

7 . According to a tabulation furnished by counsel, there are 26 states, including the District of Columbia and New York City, which use nominating commissions of varying compoisitions. Of these, only Alabama, Utah, and Vermont have legislative appointees thereon.

8 . Cases cited by the Governor support the contention that the power to make appointments to positions within the executive branch itself is solely executive. Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928) (boards created to vote stock in govern-mentally created business); Municipality of St. Thomas and St. John v. Gordon, 78 F.Supp. 440 (D.Virgin Is.1948) (police commission); Book v. State Office Building Commission, 238 Ind. 120, 149 N.E.2d 273 (1958) (building commission); State v. Hagemeister, 161 Neb. 475, 73 N.W.2d 625 (1955) (school board); People ex rel. Emerson v. Shawver, 30 Wyo. 366, 222 P. 11 (1924) (state engineer); State ex rel. v. DiSalle, 172 Ohio St. 363, 176 N.E.2d 428 (1961) (state racing commission).

9 . Article VII, § 10 does not apply because the appointment and/or election of judges is “otherwise provided for.”

10 . In addition to § 3, restrictions are imposed as to selecting Supreme Court and district court judges by various other sections of Article VIII of the Constitution with respect to age, active bar membership, residency, etc.

11 . District and Supreme Court judges were elected on a partisan political basis from statehood until 1945 when the Constitution was amended to provide that their selection should be “based solely upon consideration of fitness for office without regard to partisan political considerations.” During that time, vacancies were filled by gubernatorial appointment. From 1945 until 1967, they were elected by popular election on a nonpartisan basis, vacancies again being filled by gubernatorial appointment. From 1967 until the present, they have been appointed by the Governor from names submitted to him by nominating commissions. U.C.A., 1953, § 20-1-7.1. Juvenile court judges have been appointed by the Governor under a nominating commissioner procedure since 1965. U.C.A., 1953, 78-3a-8. Likewise, circuit court judges have been appointed by the Governor from nominees of nominating commissions since the Circuit Court Act of 1977. U.C.A., 1953, 78-4-1 et seq.

12 . In Virginia and South Carolina, supreme court justices are elected by the general assemblies. Va.Const., Art. VI, § 7; So. Carolina Const., Art. V, § 3.

13 . As to Justices of the Supreme Court and judges of the district and circuit courts, the Governor’s choice is limited to three nominees. See U.C.A., 1953, § 20-l-7.6(l)(a). With respect to juvenile court judges, the Governor appoints from “a list of at least two” nominees. See U.C.A., 1953, § 78-3a-8(l).

14 . The Legislature has wisely provided that juvenile court judges be chosen “without regard to political affiliation, and on the basis of ability, judicial temperament, and special aptitude for juvenile court work.” U.C.A., 1953, § 78-3a-8(l). Section 20-1-7.1 provides for the appointment of Justices of the Supreme Court, judges of the district courts, and judges of the circuit courts on the basis of fitness for office as determined by at least a majority of the members of the commission.

15 . The appointees to the Supreme Court, district courts and circuit courts are subject to further checks by the electorate. They must go before the voters at the next general election after appointment and periodically thereafter on the following question: “Shall (name of justice or judge) be retained in the office of (name of office, such as ‘Justice of the Supreme Court of Utah’ or ‘Judge of the District Court of the Third Judicial District,’ or ‘Judge of the Circuit Court of the Fifth Circuit’)? Yes ( ) No ( ).” If a majority of the voters do not vote “Yes,” the appointment process begins anew. The law also provides for a challenge by any “qualified member of the bar” on the occasion of any retention election. U.C.A., 1953, § 20-1-7.7.

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. U.C.A., 1953, § 78-3a-8.