Shelmidine v. Jones

• Decision Date: 20 May 1976
• Docket Number: No. 14152,14152
• Citation: 550 P.2d 207
• Parties: Larry SHELMIDINE et al., Plaintiffs and Respondents, v. Charles A. JONES et al., Justices of the Peace in Salt Lake County, Defendants and Appellants.
• Court: Utah Supreme Court

Page 207

550 P.2d 207

Larry SHELMIDINE et al., Plaintiffs and Respondents, v. Charles A. JONES et al., Justices of the Peace in Salt Lake County, Defendants and Appellants.

No. 14152.

Supreme Court of Utah.

May 20, 1976.

Vernon B. Romney, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, R. Paul Van Dam, Salt Lake County Atty., Donald Sawaya, Ronald N. Boyce, Asst. Salt Lake County Attys., Salt Lake City Robert D. Moore, of Rawlings, Roberts & Black, Salt Lake City, for defendants and appellants.

Stephen R. McCaughey, of Salt Lake Legal Defender Assn., J. Thomas Greene, of Callister, Greene & Nebeker, Lionel Frankel, Salt Lake City, for plaintiffs and respondents.

CROCKETT, Justice:

These three plaintiffs were charged in separate cases with drunk driving in Salt Lake County and were each arraigned before one of the defendants, who are three justices of the peace. Each entered pleas of not guilty and joined in filing a petition in the district court for a writ prohibiting the defendants from proceeding in their respective cases on the ground that, inasmuch as the defendant justices of the peace were not members of the Utah Bar, to permit them to proceed with the trial and disposition of the plaintiffs' cases where possible jail sentences were involved amounts to a denial of due process of law. On the basis of his agreement with that contention, on June 3, 1975, the district court issued the writ and defendants appeal.

Plaintiffs (joined by amicus curiae, in a well prepared and scholarly brief), argue that this court should take cognizance of the fact that times have changed since 1896 when our Utah Constitution was adopted, and that we should see that the Constitution keeps pace with 'progress' in social, legal and other fields by adjudicating in effect that our state Constitution has become antiquated and that the constitutionally created justices of the peace can no longer function in cases where a jail sentence may be imposed. They go back in history as far as Magna Carta, 1215 A.D.:

No free man shall be taken, imprisoned, . . . nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land. ¹

We will appoint as justiciaries, constables, sheriffs or bailiffs only such men as know the law of the land and will keep it well. ²

There is abundance of law subsequently built upon that foundation and the concept, which we recognize as valid, that the law ought to be adapting itself to the changes and progress in society. From this it is reasoned that the ideal of a fair trial under due process of law entails the employment of the best methods known at any given time. Wherefore, we are urged to join in what is nowadays referred to as 'Judicial activism' and to innovate, i.e., where the judiciary thinks the legislature lags, it will declare, not what the law is, but what it ought to be. It is argued that this requires us to declare that the constitutionally created justices of the peace, ³ who were not required to be lawyers, cannot deal with casses wherein jail sentences may be imposed, or that they cannot impose jail sentences in such cases.

We are indeed grateful, yet even reverential, for Magna Carta and the foundation it provided for the principle of the rule of law, as opposed to the whim of men (at that time the monarch); and also for what we regard as the admirable structure of law built upon that foundation. But we remind those who advocate its application here that the great charter itself was neither created by nor in any manner issued from the judiciary. It was an acknowledgment by the sovereign, recognizing and granting the rights and immunities declared therein. This is comparable to constitutional declarations under out system. In our form of government as established by our constitution, it is fundamental that the sovereign is the people. A parallel of reasoning would lead to the conclusion that such a constitutional or legislative change should come from that sovereign: the people.

It is equally clear that our constitution sets up three separate branches of government: the executive, the legislative, and the judicial, each of which has its particular function to perform. Due to the manner in which our system was created and has developed, the judiciary has the awesome prerogative and responsibility of judging the scope of powers of the executive, legislative, and of its own. ⁴ For this reason it is essential that the judiciary be especially circumspect in maintaining an awareness of the natural propensity of human nature: that when anyone has the power to decide wherein his own interests are involved, there is danger of consciously or subconsciously leaning toward the protection, and perhaps the magnification, of his own self-interest.

We do not mean to be understood as saying that we shrink from the responsibility, when properly invoked, of giving due consideration to claims that legislative enactments are subordinate to the superior law: constitutional provisions. Also, it should be borne in mind that there is a definite distinction between a change in interpretation or application of a statute, which sometimes quite justifiably occurs, and attempting by judicial fiat to affect a substantial change in law as clearly expressed in a statute or the constitution. When such a substantial change is necessary or desirable, our constitution has set up procedures for the change by the legislature, or of the constitution, by the amendment process.

It is our opinion that it is vital to the proper functioning of our government and to its endurance that those procedures be followed; and that the duties and prerogatives of each department should be scrupulously respected by the others, thus leaving the function where the constitution puts it. It is our belief that in our 200 years' history the American judiciary have, for the most part, been aware of the sensitivity of their position and generally have a pretty good record for keeping within the confines of their proper authority and function. Consistent with that objective, it is quite universally recognized that courts will not strike down enactments of law unless there is some compelling reason to do so. ⁵ We acknowledge, of course, that there are exceptions where courts have yielded to the allurements of power and tended to overreach into the roles intended for the executive and legislative branches. ⁶

It will be seen from what we have said above that we think there is a substantial barrier to be encountered in making an analysis and judicial determination of the merits or the demerits of the justice of the peace system as established by our state constitution. However, in view of the plaintiffs' arguments thereon which seem to have persuaded the trial court, and the public interest manifest in this general subject, we make what we think are some appropriate observations: A large part of our State of 29 counties consists of sparsely settled mountain and desert areas. Less than a third of our counties could even now be regarded as urbanized to any substantial extent. Our constitution was fashioned by the founders in awareness of the general nature of our State; and we should assume that they created the system in the realization of the necessity and desirability...