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IN THE SUPREME COURT OF THE STATE OF UTAH
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In re Inquiry Concerning The Honorable David S. Young,
A District Judge

No. 970032

F I L E D
July 10, 1998

From the Judicial Conduct Commission
Attorneys: Daniel L. Berman, Frank D. Wilkins, Peggy A. Tomsic, Salt Lake City, for Judge Young
Steven H. Stewart, Salt Lake City, for Judicial Conduct Commission
STEWART, Justice:
The Judicial Conduct Commission proposed that a public reprimand be issued against Judge David S. Young for ex parte communications with an attorney for a party in a case pending before Judge Young. Judge Young petitioned for review of the Commission's findings and recommendation, asserting that the Commission's findings were in error and that the Commission as constituted under Utah Code Ann. 78-7-27(1) violates the Separation of Powers provision of the Utah Constitution. We hold that the Commission as currently constituted violates Article V, section 1 of the Constitution.
I. BACKGROUND
Gannon v. Park City Board of Education, Case No. 940300027 CV., was filed by the parent of a student who was expelled from school for possession of a gun on school grounds, seeking reinstatement of the student in school. Judge Young was assigned the case during two different time periods. Before presiding over the case the second time, Judge Young had an ex parte communication with the attorney for the school district and allegedly threatened to award attorney's fees to the plaintiffs and against the district if the district attempted to undertake further punitive action against the student. The attorney fee issue was settled by the parties after Judge Young was reassigned the case. The school district alleged, however, that Judge Young had coerced the settlement through his threat of awarding attorney's fees against the district. The district superintendent filed an official complaint with the Judicial Conduct Commission, accusing Judge Young of "direct extortion . . . to secure an agreement from the [Park City] Board [of Education]."
The Commission scheduled a formal hearing. Judge Young moved to disqualify from participating in the panel all members of the Commission appointed by the President of the Senate and the Speaker of the House. The Commission denied the motion, and a formal hearing was conducted by a panel of six members of the Commission. Three of the six panel members were members of the Utah State Legislature. The Commission found that Judge Young had engaged in conduct prejudicial to the administration of justice and recommended a public reprimand as the appropriate discipline. Judge Young filed objections to the Commission's findings. The Commission denied these objections and certified the record to this Court.
Judge Young attacks numerous findings of fact by the Commission. In addition, he contends that the composition of the Judicial Conduct Commission violates principles of separation of powers established by Article V, section 1 of the Utah Constitution.
Article VIII, section 13 of the Utah Constitution requires this Court to review all proceedings conducted by the Judicial Conduct Commission and to approve any proposed sanction before a sanction may be imposed against a judge. See In re Worthen, 926 P.2d 853, 862-63 (Utah 1996); see also Utah Code Ann. 78-7-30(5). The issue of whether the Judicial Conduct Commission is lawfully constituted under Article V, section 1 and Article VIII, section 13 raises an issue of law which requires no deference by this Court to the Commission's rulings. See In re Worthen, 926 P.2d at 862-63.
The Legislature established the Judicial Conduct Commission pursuant to the terms of the Judicial Article of the Utah Constitution, Article VIII, section 13.(1) This provision authorizes the Commission to investigate and conduct
confidential hearings concerning complaints against judges. The Commission may recommend to this Court sanctions such as a reprimand, censure, suspension, removal, or compulsory retirement of judges found to have engaged in improper conduct.(2)
Section 13 also provides that the Legislature shall "provide for the composition and procedures of the Judicial Conduct Commission." Utah Code Ann. 78-7-27(1) provides:
The membership of the Judicial Conduct Commission established by Article VIII, Section 13 of the Utah Constitution consists of:
(a)
two members of the House of Representatives to be appointed by the speaker of the House of Representatives for a two-year term, not more than one of whom may be of the same political party as the speaker;

(b)
two members of the Senate to be appointed by the president of the Senate for a two-year term, not more than one of whom may be of the same political party as the president;

(c)
three members from the board of commissioners of the Utah State Bar who shall be appointed by the board of commissioners of the Utah State Bar for a four-year term;

(d)
two persons not members of the Utah State Bar, who shall be appointed by the governor, with the advice and consent of the Senate, for four-year terms, not more than one of which may be of the same political party as the governor; and

(e)
one judge of a trial court of record, to be selected by the Judicial Conduct Commission for a four-year term.


Judge Young contends that subsections (a) and (b) of section 78-7-27(1) violate Article V, section 1 of the Constitution. He submits two grounds for this challenge. He argues that (1) Article V, section 1 prohibits the Legislature from appointing members of the Judicial Conduct Commission and (2) Article V, section 1 bars individual legislators from sitting as members of the Commission. We address each ground in turn.
II. ARTICLE V, SECTION 1 AND THE
JUDICIAL CONDUCT COMMISSION

A. Constitutionality of the Power of the Speaker of the House and the President of the Senate to Appoint Members of the Judicial Conduct Commission
Article V, section 1 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 cases herein expressly directed or permitted.
The doctrine of separation of powers has been viewed historically as an essential principle in the protection of individual rights and liberties and in the prevention of the abuse of governmental power. "The framers of [Utah's] Constitution considered the principle embodied in Article V, section 1 to be of such importance that they wrote that provision to prevent its erosion by implication, strained constructions, or any means which would have the effect of enfeebling that great, overarching principle of constitutional government." Matheson v. Ferry, 641 P.2d 674, 689-90
(Utah 1982) (Stewart, J., concurring and dissenting) (hereinafter Matheson I).(3)
Unlike the federal Constitution and the constitutions of many states, the Utah Constitution includes a written
separation of powers provision, and that provision has degree of specificity that is greater than is found in most state constitutions that have a separation of powers provision.(4) Separation of powers in the federal system, for example, is mandated merely by implication from the general structure of the United States Constitution. As a result, the United States Supreme Court can be more flexible and less specific in establishing the federal doctrine's outer boundaries. See Lawrence H. Tribe, American Constitutional Law (2d ed. 1987) 18, 19 (noting greater lattitude in current judicial interpretations of the doctrine since the late nineteenth century). By contrast, interpretations of the Utah doctrine by this Court must conform to the express language employed by the Constitution in Article V, section 1 in delineating the principles that specify how the doctrine of separation of powers should be applied.
Article V, section 1 goes far beyond simply proscribing the exercise of the power of one branch by another.(5) The Utah provision also prohibits officials in one branch from exercising powers properly belonging to another branch. Moreover, by requiring the separation of powers among the branches of government, except as otherwise provided in the Constitution itself, Article V, section 1 preserves the sanctity of the judiciary and helps to ensure that the rule of law, and not political partisanship or transient majoritarian preferences, shall govern in our courts. The legislative and executive branches, both of which are staffed through popular elections, are naturally attuned to the volatile opinions of voters, evolving moral standards, and shifting economic forces. Adherence to the impartial rule of law, so crucial to our system of government, can only prevail if the judiciary is able to apply the rule of law free from partisan influence.
"[A] direct or indirect influence of either of the other branches over the judiciary through the power of appointment, by itself or in conjunction with other powers, is coercive and undermines the independent functioning of the judiciary." Matheson I, 641 P.2d at 681 (Howe, J., concurring). Without judicial independence,
the whole fundamental concept of a tripartite system of government with coequal and coordinate branches of government, as well as our deep-rooted tradition of limiting the powers of government by a written constitution, would be jeopardized, if not destroyed.
Matheson II, 657 P.2d at 247 (Utah 1982) (Stewart, J., concurring). Other provisions of the Constitution combine with and give specific effect to the doctrine underlying Article V to assure that the exercise of governmental power shall be based on the rule of law and not caprice. See Utah Const. Art. I, 7 ("No person shall be deprived of life, liberty or property, without due process of law."); id. 11 (guaranteeing that "every person, for an injury done him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay").
Article V, section 1, prohibits the officials of one branch of government from exercising those functions of government that properly belong to another branch. See Timpanogos Planning, 690 P.2d at 567. In addition, one branch may not delegate its functions or powers to another branch. See Ohms, 881 P.2d at 848 (enumerating cases in which functions or powers were held to be nondelegable). The essential function of the legislative branch of government, as a general proposition, "is to enact laws of general applicability, to provide normative standards of conduct for society and to provide for the organization and operation of the government." Matheson I, 641 P.2d at 686 (Stewart, J., concurring and dissenting). More precisely, the Legislature "possesses all lawmaking power not denied it by the Utah or the United States Constitutions, [but] it does not possess all the powers of government." Id. (internal citations omitted); see also, 16A Am. Jur. 2d Constitutional Law 262 (1998).
Article VII of the Constitution vests the executive branch with the general power to appoint officers whose positions are established under the Constitution. See Rampton v. Barlow, 464 P.2d 378, 381 (Utah 1970); see also Matheson I, 641 P.2d at 678 (stating that the separation of powers provisions of Article V, section 1 protects the executive's
appointment power).(6)
In Rampton, the Court stated that the issue to be decided was, "Can the Legislature reserve unto itself or confer upon its presiding officers, the power of appointment? " 464 P.2d at 380. That is also the precise issue in the instant case. Rampton held that a statute that authorized both the president of the Senate and the speaker of the House to appoint three members of the State Board of Higher Education violated Article V, section 1. Id. at 383. In Rampton, this Court quoted Opinion of the Justices, 302 Mass. 605, 19 N.E.2d 807 (1939):
We are of the opinion, however, that the power of appointing such members cannot be conferred by law upon the President of the Senate and the Speaker of the House of Representatives, whether or not such members are required to be chosen from among the members of the Senate and of the House. "The power to appoint and the power to remove officers are in their nature executive powers."
(Emphasis added.)
The principle on which Rampton was based governs here. Subsections (a) and (b) of Utah Code Ann. 78-7-27(1) permit both the speaker of the House of Representatives and the president of the Senate to appoint two members of the Judicial Conduct Commission. By vesting in these legislative officers the power to appoint officials exercising judicial power, the Legislature authorized a breach of the principle that one branch of government may not exercise the power of another branch absent a specific constitutional provision authorizing the exercise of such power.
The Commission argues that the language in Article VIII, section 13 of the Constitution, which provides that "[t]he Legislature by statute shall provide for the composition and procedures of the Judicial Conduct Commission," specifically authorizes the Legislature to make appointments to the Commission. This Court has previously rejected that argument. See Matheson II, 657 P.2d at 245 (Stewart, J., stating majority view in "concurring" opinion); Rampton, 464 P.2d 378 at 380; see also Matheson I, 641 P.2d at 680-81 (Howe, J., concurring). Indeed, this Court has specifically held that even when the Legislature is given the power by the Constitution "to provide by law" for the appointment of officials, that merely means that the Legislature has the power to provide for how appointments should be made, but not that the Legislature itself may make such appointments. Matheson II, 657 P.2d at 245 (Stewart, J., concurring). The power "to provide by law, for the appointment of officials does not include the power to make appointments to positions in the executive and judicial departments." Id. Because Article VIII, section 13, does not "expressly direct[] or provide[]" for the Legislature or legislative officers to exercise the power of appointment to the Judicial Conduct Commission, that language of Article VIII, section 13 does not fall within the exception to Article V, section 1, that allows one government branch to exercise the powers of another. Consistent with what this Court held in Rampton, the Legislature may not "usurp any of the functions confided by the constitution to [another] department, such as the power to make appointments to office." Rampton, 464 P.2d at 380 (quotations omitted); see also Matheson I, 641 P.2d 674 (Utah 1982).
B. Competence of Legislators to Sit as Members of the Judicial Conduct Commission
Under Utah Code Ann. 78-7-27(1)(a) and (b), two members of the Judicial Conduct Commission are appointed from the of the House of Representatives and two members are appointed from the Senate. Judge Young argues that the Commission performs a judicial function and that 78-7-27(1)(a) and (b), in providing that legislators may sit as members of the Commission, allows legislators to exercise both legislative and judicial functions contrary to the prohibition of Article V, section 1. We agree.
Article V, section 1 precludes legislators from serving as members of the Commission. Article V, section 1 provides that "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." (Emphasis added.) The language of this provision is plain and must be interpreted "as it would be understood by persons of ordinary intelligence and experience." State v. Phillips, 540 P.2d 936, 938 (Utah 1975).
The Judicial Conduct Commission plays a highly important, albeit not a determinative, role in the administration of judicial discipline by investigating and conducting confidential hearings regarding complaints against justices and judges. Consequently, the Commission exercises a type of judicial authority and operates within the judicial branch of government. See 16A Am. Jur. 2d Constitutional Law 260 (1998). Necessarily, the judicial branch has the power "'necessary to protect [its] fundamental integrity'" and that power may not be delegated, except to judicial officers.
Ohms, 881 P.2d at 849 (quoting In re Criminal Investigation, 754 P.2d 633, 642 (Utah 1988)).
Indeed, it is the judicial article itself, Article VIII, section 13, that establishes the Judicial Conduct Commission and specifically recognizes the judicial nature of the powers the Commission is authorized to exercise by mandating that this Court review all Commission findings pertaining to recommended discipline of judges and by requiring that actual orders of discipline be entered by the Court, not the Commission. See Utah Const. Art. VIII, 13; In re Worthen, 926 P.2d at 863. Other jurisdictions have also held judicial conduct commissions with similar authority to be within the judicial branch. See Whitehead v. Nevada Commission on Judicial Conduct Discipline, 878 P.2d 913 (Nev. 1994) (holding that executive branch prosecution of disciplinary charges against a judge violated the separation of powers
provision in the Nevada Constitution, a provision identical to Article V, section 1 of the Utah Constitution).(7)
Any attempt by the Legislature, therefore, to make judicial discipline subject to the influence of legislators could threaten "'the fundamental integrity of the judicial branch.'" Ohms, 881 P.2d at 867 (Durham, J., and Zimmerman, J., dissenting) (quoting In re Criminal Investigation, 754 P.2d 633, 642 (Utah 1988)); see id. at 850; see also Matheson I, 641 P.2d at 681 (Howe, J., concurring ("[A] direct or indirect influence of either of the other branches over the judiciary . . . is coercive and undermines the independent functioning of the judiciary."); 16A Am. Jur. 2d Constitutional Law 260 (1998); ABA Standards Relating to Judicial Discipline and Disability Retirement, Standard 2.1 (1978).
Moreover, no branch of government should be able to control or even to embarrass another branch. See Matheson I, 641 P.2d at 681 (Howe, J., concurring); State v. Shumaker, 164 N.E. 408, 409, 63 A.L.R. 218, 221 (Ind. 1928). Of course any disciplinary sanction recommended against a judge will undoubtedly embarrass that judge. But that is not the point of the proposition that one branch of government should not be able to embarrass another branch. What is to be strictly protected from embarrassment in this case is the integrity of judicial discipline from any politically partisan influence, indeed, even the appearance of such an influence. The participation of members of the legislative branch in the highly sensitive area of judicial discipline has the distinct possibility of embarrassing the judicial branch by interjecting the potential of partisan influence in the disciplinary process, with the potential effect of altering the thinking and actions of judges in cases over which they preside. Thus, even though the Commission's recommended sanctions are not self -executing, a high barrier must insulate commission proceedings from any kind of partisan political influence. Having made this point, we emphasize, however, that our reasoning rests solely on general policy considerations and not on the conduct of legislators who have heretofore sat on the Commission. It is constitutional policy with which we are concerned here, not personalities.
Finally, we note that one of the great constitutional checks and balances is the power of the Legislature to impeach judges and executive officials. See Utah Const. Art. VI, 17-19.
II.
We conclude that 78-7-27(1)(a) and (b) violates Article V, section 1 of the Utah Constitution. The composition of the Commission was unconstitutional; therefore, the Findings, Conclusions, and Order of the Commission are not properly before this court and have no force. However, the existence of the impeachment process does not in any way lessen the need for strict adherence to the dictates of Article V, section 1 as that provision applies to the Judicial Conduct Commission.
For the foregoing reasons, we hold Utah Code Ann. 78-7-27(1)(a) and (b) unconstitutional. It follows that the Judicial Conduct Commission was illegally constituted and its findings of fact and proposed sanction are null and void.
Associate Chief Justice Durham, Justice Zimmerman, and Justice Russon concur in Justice Stewart's opinion.
HOWE, Chief Justice, concurring:
I concur and write only to state that in my opinion membership of legislators on the Judicial Conduct Commission also violates article VI, section 6 of the Constitution of Utah which provides:
No person holding any public office of profit or trust under authority of the United States, or of this State, shall be a member of the Legislature: Provided, That appointments in the State Militia, and the offices of notary public, justice of the peace, United States commissioner, and postmaster of the fourth class, shall not, within the meaning of this section, be considered offices of profit or trust.
This section emphasizes that a legislative office is with a few exceptions not compatible with any other state office and underscores the intent of the constitution's framers that legislators should perform only legislative duties. By accepting appointment to the Judicial Conduct commission, a legislator serves in a second office. While article VI, section 10 makes each house, and not the courts, the judge of the qualifications of its members, State v. Evans, 735 P.d. 29 (Utah 1987), legislators should not be exposed to the risk of forfeiting their membership in the legislature by assuming a second office.
ZIMMERMAN, Justice, concurring:
I agree with the basic proposition of the majority's opinion that the appointment of legislators to the commission by the president of the Senate and speaker of the House and service by legislators on the committee violate article V, section 1 and article VII, section 10 of the Utah constitution. I also agree with Chief Justice Howe's statement that service by legislators on the conduct commission implicates article VI, section 6 of the Utah constitution.
I cannot agree with the majority opinion, however, because I cannot agree with some of its rhetoric regarding the nature of the legislative and judicial branches. I think it important to note that I find nothing in the record to suggest that service by legislators on the conduct commission has in any way affected the proceedings against Judge Young. However, the constitution prohibits establishment of structures that are inconsistent with Utah's separation of powers doctrine, not merely actions by individuals which constitute evils at which the doctrine is directed.
I am sure that the legislature can and will remedy the defects of the Judicial Conduct Commission as presently
constituted so it can continue to fulfill its important role in helping to assure the public that judges are subject to
appropriate, nonpartisan oversight. See In re Worthen, 926 P.2d 853 (Utah 1996).

1. Article VIII, section 13 of the Utah Constitution provides:
A Judicial Conduct Commission is established which shall investigate and conduct confidential hearings regarding complaints against any justice or judge. Following its investigations and hearings, the Judicial Conduct Commission may order the reprimand, censure, suspension, removal, or involuntary retirement of any justice or judge for the following:
(1)
action which constitutes willful misconduct in office;

(2)
final conviction of a crime punishable as a felony under state or federal law;

(3)
willful and persistent failure to perform judicial duties;

(4)
disability that seriously interferes with the performance of judicial duties; or

(5)
conduct prejudicial to the administration of justice which brings a judicial office into dispute.


Prior to the implementation of any commission order, the Supreme Court shall review the commission's proceedings as to both law and fact. The court may also permit the introduction of additional evidence. After its review, the Supreme Court shall, as it finds just and proper, issue its order implementing, rejecting, or modifying the commission's order. The Legislature by statute shall provide for the composition and procedures of the Judicial Conduct Commission.
The judicial article was rewritten in 1984. 1984 Utah Laws S.J.R. 1. Prior to the revision, Article VIII did not provide for a judicial conduct commission. Rather, the former section 11 of Article VIII provided that judges could "be removed from office by the concurrent vote of both houses of the Legislature, each voting separately." Utah Const. art. VIII, 11 (1971).
2.
"[W]hile the constitution speaks of the Commission's entering an 'order,' that term is a misnomer, . . . because the Commission's order has no effect whatsoever unless it is first reviewed by this court and this court determines to enforce it." In re Worthen, 926 P.2d 853 at 862.

3.
Matheson I held that a statute providing for the Legislature's participation in nominating candidates for judge and requiring Senate approval of the Governor's appointment of the candidate selected, amounted to effective control by the Legislature and was therefore offensive to Article V, section 1. This case was followed by Matheson v. Ferry, 657 P.2d 240 (Utah 1982) (per curiam) (hereinafter Matheson II), which held that senatorial confirmation of gubernatorial judicial appointments, in addition to judicial retention elections, violated the Utah Constitution. Matheson II preceded the 1984 revision to the judicial article of the Constitution. Article VIII, section 8 now expressly permits the Senate to confirm judges appointed to courts of record by the Governor.

4.
Alaska, Delaware, Georgia, Hawaii, Kansas, Maryland, New York, North Carolina, North Dakota, Ohio, Pennsylvania, South Carolina, Washington, and Wisconsin do not expressly provide in their constitutions for a separation of powers among the three branches of government. See Timpanogos Planning & Water Mgt. Agency v. Central Utah Water Conservancy Dist., 690 P.2d 562, 565 n.2 (Utah 1984).

5.
"[T]he 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." Timpanogos Planning, 690 P.2d 562 at 565.

6.
The executive branch's appointment power is not exclusive, however. Each branch of government possesses the inherent power to appoint its own "agents, clerks, and ministers engaged in the work pertaining to such branch of government." Rampton, 464 P.2d at 383. "[F]or," as stated in Rampton, "to allow the executive to appoint the officers necessary to the carrying out of the functions of an independent branch or division of government would prevent that division from being independent." Id.

7.
In support of its position, the Commission cites In re Arrigan, 610 A.2d 1232 (R.I. 1996). Some members of the Rhode Island Commission on Judicial Tenure and Discipline also served as members of the Rhode Island Legislature. The Arrigan court was evenly divided on the issue of whether the composition of the Commission violated the Rhode Island constitutional separation of powers provision. Given the equal division of the court on that critical issue, the court decided the case solely on the basis that the statute providing for the composition of the Commission was presumed to be constitutional. Therefore, In re Arrigan does not support the Judicial Conduct Commission's position in the instant case. Indeed, given the language of Article V, section 1 of the Utah Constitution that no person charged with exercising the powers of one department of government "shall exercise any functions appertaining to either of the other" departments, which does not appear in the Rhode Island constitutional separation of powers provision, there can be little doubt that the Rhode Island Supreme Court would have held that the Rhode Island Commission was illegally constituted had the Rhode Island Constitution contained language similar to the Utah provision.

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