Young, In re
| Decision Date | 22 January 1999 |
| Docket Number | No. 970032,970032 |
| Parties | 361 Utah Adv. Rep. 26, 1999 UT 6 In re Inquiry Concerning a Judge, the Honorable David S. YOUNG, District Judge. |
| Court | Utah Supreme Court |
Steven H. Stewart, Francis M. Wikstrom, Salt Lake City, for Judicial Conduct Commission.
Daniel L. Berman, Peggy A. Tomsic, D. Frank Wilkins, Salt Lake City, for Judge Young.
Brent M. Johnson, Richard H. Schwermer, Margaret K. Gentles, Salt Lake City, for amici Utah Judicial Council and Administrative Office of the Courts.
M. Gay Taylor, Robert H. Rees, Salt Lake City, for amici legislative members of Judicial Conduct Commission.
Jan Graham, Att'y Gen., Annina M. Mitchell, Asst. Att'y Gen., Salt Lake City, for amici Governor Leavitt and Attorney General Graham.
On Petition for Rehearing
¶1 This matter is before us on a petition for rehearing. The original decision in this case was handed down on July 10, 1998, and was published as In re Young, 961 P.2d 918 (Utah 1998) (). 1 In that decision, we held that sections 78-7-27(1)(a) and (b) of the Code were violative of article V, section 1 of the Utah Constitution. Those Code subsections provide that two members of the Senate, appointed by the President, and two members of the House, appointed by the Speaker, shall serve on the ten-member Judicial Conduct Commission. As a consequence, we held void proceedings of the commission that led it to recommend that this court enter a public sanction against Judge David S. Young.
¶2 The Judicial Conduct Commission moved for permission to file a petition for rehearing. This court granted the motion, as well as the motions of various parties for permission to file briefs as amici curiae in support of the petition for rehearing. 2 The respondent, Judge Young, filed an opposition to the petition for rehearing. Oral argument was held on December 21, 1998. We now grant the petition and issue this opinion on rehearing.
¶3 The petition for rehearing and the briefs of the various amici have raised several issues of substantial import. First and foremost, the amicus brief of the legislative members of the Judicial Conduct Commission has brought to our attention much new material about the origins of the present judicial article of the Utah Constitution, article VIII, which was rewritten in its entirety and passed by the voters in 1984. Section 13 of that article elevated the Judicial Conduct Commission to constitutional status. The legislator amici contend that this new material demonstrates that the drafters of the amended article, the judges who participated in the hearings preceding its being finalized, the legislators who then passed the proposed amendment and put it on the ballot, and the voters who approved it at a general election all understood that the amended article contemplated legislative participation on the Judicial Conduct Commission. Therefore, they argue, our original decision holding such participation unconstitutional was in error.
¶4 The objective importance of this historical material cannot be overstated. The petition of the Judicial Conduct Commission for rehearing had narrowly asked only that we declare whether the commission can continue to function without the legislative members. But at oral argument, the chair of the commission, who previously had been unaware of the historical materials provided us by the amici, apologized for failing to bring this critical material to our attention in the original proceeding. He also announced in open court that he was now convinced that our original decision was wrong and should be reversed.
¶5 The second issue presented by some of the briefs, particularly that of the Governor and the Attorney General, as well as that of the Utah Judicial Council and the Administrative Office of the Courts, is a concern that the original opinion's language about separation of powers was sufficiently broad to bring into question the constitutionality of many boards, task forces, working groups, advisory committees, and commissions on which members of more than one of the three branches of government sit together. In particular, they urge us to declare that groups with such joint representation that do not exercise "core" or "primary" functions of one branch of government do not fall under the ban of the second clause of article V, section 1. These amici ask that we clarify our original opinion as to the sorts of joint activities that are permissible so that the three branches of government can continue to work together on matters of common concern.
¶6 We are persuaded by the briefs and argument that the original opinion should be vacated to the extent that it is inconsistent with this one, and that legislative membership on the Judicial Conduct Commission should be held constitutional. As a preface to a discussion of the merits of the petition for rehearing, we review the analytical approach for determining constitutionality under article V, section 1. We then summarize the core analysis from our original opinion that led us to declare sections 78-7-27(1)(a) and (b) unconstitutional.
¶7 Article V, section 1, the separation of powers provision of the Utah Constitution, provides [i] 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 [ii] 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.
Utah Const. art. V, § 1 (bracketed material added). As indicated by the brackets in the text, this section is divided into two clauses. The first states the general separation of powers principle, and the second very specifically prohibits the exercise of certain functions of one branch by one charged with the exercise of certain powers of another branch. In the present case, the briefing and argument in both the original proceeding and on rehearing have focused exclusively on the second clause of article V, section 1. Our original opinion held that this clause was violated by sections 78-7-27(1)(a) and (b).
¶8 The analytical model derived from the second clause of article V, section 1 can be stated as a relatively straightforward three-step inquiry. First, are the legislators in question "charged with the exercise of powers properly belonging to" one of the three branches of government? Second, is the function that the statute has given the legislators one "appertaining to" another branch of government? The third and final step in the analysis asks: if the answer to both of the above questions is "yes," does the constitution "expressly" direct or permit exercise of the otherwise forbidden function? If not, article V, section 1 is transgressed. Utah Const. art. V, § 1. We applied this analytical model in our original opinion, and we do so again today in determining both the permissibility of legislators serving on the Judicial Conduct Commission and the permissibility of the President of the Senate and the Speaker of the House appointing two members each to the commission.
¶9 There was no question then, and there is no question today, that the answer to the first question is "yes." Legislators alone are charged with the exercise of the essential powers inherent in the very concept of the legislative branch--the power to vote on proposed laws. See Tite v. State Tax Comm'n, 89 Utah 404, 413, 57 P.2d 734, 738 (1936) (); see also Rampton v. Barlow, 23 Utah 2d 383, 464 P.2d 378, 381 (1970) . This is true of both the legislators appointed to the commission and the legislators appointing them. With similar certainty, we found in the original opinion and we find today that the answer to the third question is "no." The Utah Constitution contains no express provision directing or permitting service by legislators on the commission, nor is there any provision directing or permitting the President and the Speaker to appoint members of the Judicial Conduct Commission. Therefore, the resolution of this case depends entirely upon the answer to the second question: (i) As it applies to those serving on the commission, are the functions the legislators are called upon to perform as members of the Judicial Conduct Commission functions "appertaining to" the judicial branch? (ii) As it applies to the President and the Speaker, is the function they perform when appointing members of the commission "appertaining to" the executive branch? In the original opinion, we answered these questions in the affirmative. Based on historical and contextual information recently brought to our attention, we reach a different result today.
¶10 In our original opinion, we concluded with relatively little analysis that the function performed by the Judicial Conduct Commission was one "appertaining to" the judicial branch of government. Original op. p 84. Therefore, we found that it was a violation of article V, section 1 for legislators to sit on a commission exercising an exclusive judicial branch function. Id. p 89. We also found that because the members of the commission performed a function "appertaining to" the judicial branch, the power to appoint those members constitutionally belonged to the Governor 3 unless the constitution "expressly directed or permitted" someone else to make the appointments. Because the constitution did not, we held that the statute giving that power to the President of the Senate and the Speaker of the House violated article V, section 1. Although it was central to our decision, we did not explain at any length why the function performed by the Judicial Conduct...
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