Matheson v. Ferry
| Citation | 641 P.2d 674 |
| Decision Date | 11 January 1982 |
| Docket Number | No. 17961,17961 |
| Parties | Scott M. MATHESON, as Governor of the State of Utah, Plaintiff and Respondent, v. Miles 'Cap' FERRY, President of the Utah State Senate, and Norman H. Bangerter, Speaker of the Utah State House of Representatives, et al., Defendants and Appellants. |
| Court | Supreme Court of Utah |
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 § 20-1-7.3 1 which provides for two members of district and Supreme court nominating commissions to be selected by the Legislature, and the portions of §§ 20-1-7.1 2 and 7.6, 3 and § 78-3a-8 4 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.
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.
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."
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:
(U)nless these (three) departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which (the separation of powers) requires, as essential to a free government, can never in practice be duly maintained.
Absent any specific language in the Constitution prohibiting the Legislature from participating in judicial selection and appointment procedures in any degree, it is our opinion that a statute providing for two 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.
legislative appointees on a seven-member judicial nominating commission is constitutionally accommodated and does not necessarily violate Article V, § 1. 7
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 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...
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