Timpanogos Planning and Water Management Agency v. Central Utah Water Conservancy Dist.

• Decision Date: 10 October 1984
• Docket Number: No. 19482,19482
• Citation: 690 P.2d 562
• Parties: TIMPANOGOS PLANNING AND WATER MANAGEMENT AGENCY, a Utah Interlocal Co-operation Act entity, et al., Plaintiffs and Appellants, v. CENTRAL UTAH WATER CONSERVANCY DISTRICT, a Utah water district, et al., Defendants and Respondents.
• Court: Utah Supreme Court

Page 562

690 P.2d 562

TIMPANOGOS PLANNING AND WATER MANAGEMENT AGENCY, a Utah

Interlocal Co-operation Act entity, et al., Plaintiffs and Appellants, v. CENTRAL UTAH WATER CONSERVANCY DISTRICT, a Utah water

district, et al., Defendants and Respondents.

No. 19482.

Supreme Court of Utah.

Oct. 10, 1984.

James S. Jardine, Kent H. Murdock, John A. Adams, Salt Lake City, for plaintiffs and appellants.

Edward W. Clyde, Salt Lake City, for defendants and respondents.

Merlin K. Jensen, Douglas A. Taggart, Ogden, for Weber Basin.

Hugh W. Colton, Vernal, for Uintah.

Therold N. Jensen, Price, for Carbon.

HOWE, Justice:

Plaintiff Timpanogos Planning and Water Management Agency and others brought this suit to have U.C.A., 1953, § 73-9-9, as constituted prior to its amendment in 1983, declared unconstitutional on the ground that it violated the separation of powers mandated by Utah Constitution article V, section 1. The statute provided for the appointment of boards of directors of water conservancy districts to be made by the district court. By its 1983 amendment, L. 1983, ch. 350, § 1, the legislature provided for the appointment to be made by the board of county commissioners of a single county district and by the Governor with the advice and consent of the Senate in multi-county districts.

Inasmuch as six of the court-appointed directors of defendant Central Utah Water Conservancy District (CUWCD) are presently serving, and their terms do not expire until 1985, there is a justiciable controversy, and the constitutionality of section 73-9-9, prior to its amendment, must be decided. In addressing this issue, our role as interpreters of the law dictates that we afford the statute every presumption of validity, so long as there is a reasonable basis upon which both provisions of the statute and the mandate of the constitution may be reconciled. Murray City v. Hall, Utah, 663 P.2d 1314 (1983); Matheson v. Ferry, Utah, 641 P.2d 674 (1982); Zamora v. Draper, Utah, 635 P.2d 78 (1981).

In their first claim, plaintiffs sought to permanently enjoin the board from functioning so long as it is constituted in whole or in part of court-appointed members. In their second claim, plaintiffs invoked Utah Rules of Civil Procedure 65B(d) seeking similar relief. CUWCD challenges plaintiffs' standing to bring action under that rule, but inasmuch as no attack is made on plaintiffs' standing as to their first claim, U.C.A., 1953, § 78-33-2, we need not entertain the challenge to standing as to the second claim. The district court granted summary judgment to CUWCD, holding the statute prior to its amendment constitutional and not in violation of Utah Constitution article V, section 1. That section 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.

DOCTRINE OF SEPARATION OF POWERS

Our reluctance to encroach upon the legislature's powers to make laws may be traced to the same wellsprings of our tripartite system of government invoked by plaintiffs on the issue before us. Montesquieu's writings warn us that there can be no liberty if the powers of the three branches of government do not remain separate. Madison recognized the principle as more sacred than any other in a free constitution, and that no one branch should possess, directly or indirectly, an overruling influence over the others in the administration of its powers. Justice Marshall adhered to the principle in Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60. ¹ The dissenting voice of Justice Brandeis in Myers Twice recently we have had occasion to redefine the boundaries beyond which one branch may not be permitted to exercise power in the domain of another. In Rampton v. Barlow, 23 Utah 2d 383, 464 P.2d 378 (1970), we held that the statutory authorization for the President of the State Senate and the Speaker of the House to each appoint three members to the State Board of Higher Education was an impermissible intrusion of the legislature into the power of appointment inherent in the executive and contrary to the provisions of Utah Constitution article V, section 1. In Matheson v. Ferry, Utah, 641 P.2d 674 (1982), a statute providing for the legislature to participate in the nomination of candidates for judge and requiring Senate approval of the Governor's appointment of the candidate he selected, was found to amount to effective control by the legislature over the executive branch and thus offensive to Utah Constitution article V, section 1.

v. U.S., 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926), in rejecting the majority's holding that the removal of inferior officers by the President without the consent of the Senate was permitted by the constitution, cautioned that the doctrine of the separation of powers was not fashioned to promote efficiency but to preclude the exercise of arbitrary power. The fundament of the doctrine remained unassailable when the United States Supreme Court through Justice Frankfurter reminded the President that his action of seizing the nation's steel mills to prevent a national catastrophe threatened to be an "accretion of dangerous power" which comes from the "unchecked disregard" of the checks and balances that doctrine was created to provide. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594, 72 S.Ct. 863, 889, 96 L.Ed. 1153 (1952). Whether implied, as in our federal constitution and in those of fourteen states, ² or whether expressly stated, as in our own state's constitution, the doctrine of separation of powers is the control gate harnessing the reservoir of powers of a government which functions at the will of the people.

In the case under review, we are asked to find that section 73-9-9, prior to its amendment, constituted an impermissible intrusion by the judiciary into legislative and/or executive powers, violating Utah Constitution article V, section 1, and threatening the impartiality of judges.

Utah's Water Conservancy Act was initially adopted in 1941, patterned after acts then in force in Colorado and Ohio. At one time or another in the early stages of their existence, most of these acts and other similar ones were attacked for their constitutionality. Few were tested again, and fewer yet were ever held unconstitutional. CUWCD has marshalled an arsenal of case law stretching over a period of more than half a century to buttress its argument that the vesting of appointment powers in district judges incidental to the exercise of judicial power does not violate the doctrine of separation of powers. In the following we specifically address those cases.

Colorado: People ex rel. Rogers v. Letford, 102 Colo. 284, 79 P.2d 274 (1938), and People ex rel. Keyes v. Lee, 72 Colo. 598, 213 P. 583 (1923), held the judges' power to appoint directors to the board of a water conservancy district incidental to the exercise of judicial functions. Those cases have been criticized by the Oklahoma court, as pointed out below. However, since the Letford decision, substantial changes have been made in the Colorado law which may moot that criticism. Colo.Rev.Stat. § 37-45-112(7) (1973) vests Colorado's water conservancy districts with all the powers of municipal corporations. The Colorado constitution expressly empowers its general assembly to provide for the appointment of municipal officers as "public convenience New Mexico: In re Proposed Middle Rio Grande Conservancy District, 31 N.M. 188, 242 P. 683 (1925), followed the holding of People ex rel. Keyes v. Lee, supra, and other cases upholding district courts' appointment powers. Court-appointed boards of directors have been abolished in New Mexico and the directors must now submit to election. N.M.Stat.Ann. §§ 73-14-18 through 73-14-32, and 73-14-54 through 73-14-69 (1978).

                may require." 3  In addition to the constitutional ground, section 37-45-114(2) of the Colorado Water Conservancy Article provides for a further check and balance on the judges' power of appointment.  It allows the electorate to initiate the elective process if it is dissatisfied with the judges' appointment of directors.  Matthews v. Tri-County Water Conservancy, 200 Colo. 202, 613 P.2d 889 (1980);  William R. Kelly, Water Conservancy District, 22 Rocky Mtn.L.R. 432 (1949-50).  No such provision is contained in Utah's act
                

Indiana: Martin v. Ben Davis Conservancy District, 238 Ind. 502, 153 N.E.2d 125 (1958), held appointment power by judiciary under the 1957 Indiana act constitutional. In 1967 the Indiana legislature changed that law to provide for direct election of the directors by freeholders. Holland v. Ballard, 270 Ind. 173, 383 N.E.2d 1032 (1978); Ind.Code Ann. § 13-3-3-34 (Burns 1981, 1984 Supp.).

Minnesota: State ex rel. Skordahl v. Flaherty, 140 Minn. 19, 167 N.W. 122 (1918) upheld the constitutionality of a court-appointed board of directors. Under Minn.Stat. § 111.07 (1982) of the Minnesota Drainage and Conservancy Act, the court names and appoints the first board of directors; the court fills vacancies and each director holds office until he is elected and qualifies. Minn.Stat. § 111.10. Moreover, the board of directors appoints three disinterested citizens to act as viewers. Minn.Stat. § 111.11.

Ohio: Miami County v. City of Dayton, 92 Ohio St. 215, 110 N.E. 726 (1915), the earliest of the cases, may well have set the tone in finding court-appointed directors constitutional and in considering the powers conferred quasi-legislative, quasi-administrative and quasi-judicial. In addition, Ohio even provides its judges with extra compensation for this duty. In canvassing the case law relied upon by CUWCD, we find Ohio is one of only three states that grants its judges unfettered...