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Show Pm" TNI Six WEDNESDAY, DAILY RECORD JUNE 16, 1971 OFFICE OF THE ATTORNEY GENERAL OPINION NO. 71-0- 13 Question as to render the act a felony. Breaches of the peace, committing (3) a wilful injury to property, and all misdemeanors punishable by a fine less than $300 or by imprisonment in the county jail or by both such fine and imprisonment." 1 responsibility for dividing the counties into the purposes of electing justices of the peace has for precincts been given to the county commissioners. Utah Code. Ann. $ The 17-1- 6-5 states: (1953) It -4 should be emphasized that Utah Code Ann. (1953) refers to those public offenses outlined in the Utah Code as offenses against the state law. "The board of county commissioners as public convenience may require shall divide the county into precincts for the purpose of electing justices of the peace The The ..." constable. and statute also provides that cities having a popula- tion in excess of 5,000 people should have a justice of the peace or a city court. Where such courts are available no overlapping precinct should be established by the county, as the county powers and ordinances may not diminish, impair, or in any wise affect the power conferred upon incorporated cities and towns." "... Utah Code Ann. $ 17-5-- (1953) . 51 Question Recognizing the fact that an offense against county ordinances or state law may occur anywhere within the county, it is the opinion of this writer that public convenience requires that precinct coverage be available to all areas within the county. justices In counties where there only exists town and city of the peace, the county commissioners would be required to establish at least one precinct to cover al strictly county areas. The precincts of the city and town justices of the peace axe limited to their town or cty or portion thereof as may be determined by the town council or city commissioners. Precinct coverage must also extend to all parts of the county because no part of the county is so remote asto be immuned from the possi- bility peace officer of the state, county or city or any person making an arrest without a warrant for an alleged public offense under state law must present the individual in question before the justice of the peace over the precinct wherein the alleged offense was committed. If unavailable, the nearest available magistrate may be used to charge the individual with the offense. This would indicate that highway patrolmen must refer state law violators to the justice of the peace in the precinct where the violation occurred. A officers of a precinct, except in cities in which a city court exists, are one justice of the peace one and constables. 78-5- of unlawful acts. Question may not utilize city judges or as county justices of the peace. A justices of the peace town or city judge justice is limited in jurisdiction to handle state cases that have come from the town or city precinct and also handle any local ordinance violations. The county ordinances have no effect within the boundaries of a town or city and any actions by a city judge relating to county ordinances or state law violations from the county would not be proper. Likewise, county justices of the peace have no jurisdiction over city or town ordinance violations or violations of state law within the Justices of the peace may not function dually in behalf city. of a county and a city as a jurisdiction of the county and city are both mutually exclusive. Utah Code Ann . (1953). town County commissioners 17-5-- 77-5- the above stated rule is where a state law violation is brought before the "nearest available magistrate" (see Question 2) . 2 Question (1971 amendment) : 7-2 "...before a jurisdictions of the city and county are mutually exclusive and a justice of the peace may not function in a dual position, this question becomes moot. Even if a matter is before a magistrate as the "nearest available magistrate" a justice of the peace may not try the case unless he has proper jurisdiction to do so. In such cases, any fines derived from the case would go to the relevant local authority as the only cases tried would be those that were properly before the court or justice of the the precinct of the county or city in which the offense is alleged to have been committed, except at the permanent state weigh stations wherein alleged offenses may be referred to the nearest city judge." (Emphasis added.) only exception to this jurisdictional rule is found in Utah Code Ann. (1971 amendment) as stated in Senate Bill No. 11. This section is limited in its application as it only applies to situations where an arrest is made without warrant and the prisoner is entitled to be taken before The 4 Because the shall be magistrate within The complaint commenced 51 The only exception to The jurisdiction of the justice of the peace in cases is related directly to the precinct criminal trying over which the justice of the peace presides. Senate Bill No. 11 (Utah Laws 1971, ch. 204) provides in Utah Code Ann. S 3 peace. 77-13- -17 a 77-1- magistrate to be properly charged by complaint. provides: Section 3-7 '!,! "When an arrest is made without a warrant by a peace officer or private person, the person arrested must, without unnecessary delay, be taken to the magistrate in the precinct of the county or city in which the offense occurred, and a complaint, stating the charge against the person must be made before such magistrate. In the event the magistrate of that precinct is not available, the arrested person shall be taken before the nearest available magistrate to the scene of the alleged offense, . . . ." (Emphasis added.) . and in the It is Question 5 In light of the duties of the county commissioners to establish precinct coverage throughout the county (Question 1) and in light of the requirement that violators of the law must be referred to the precinct wherein the alleged offense occurred (Question 2) , and because city and county jurisdiction is mutually exclusive (Question 3) , the prior practice of dividing the county into precincts surrounding the cities and towns is not proper. Highway patrolmen must send their traffic offenders presides over the precinct committed. That is to say if an offense occurs in a city or town, the accused must be taken to the city judge or town justice of the peace. If it occurs in the county, he must be taken to the justice of the peace in whose precinct the offense occurred. to the justice of the peace wherein the alleged offense who was only because of unavailability of the magistrate interest of efficient criminal procedure that an individual may be brought before the nearest available magistrate. .Even in this event, the magistrate may not take jurisdiction over the defendant to try the case unless the offense is triable by him. "... is The such charge magistrate before if whom the oTm:p is h:ivn ful juris diction over the offense and the defendant to try and determine such offense. I f he tri.-bl- o by him, L Question 6. The fact that a city judge be an ex officio justice of the peace does not grant any power to the judge to assume judicial responsibilities in connection with county ordinances. County ordinances are completed outside of the limits of a city judge or town justice of the jurisdictional peace. A judge will not be allowed to function in a dual role. See Question 3. has not jurisdiction to try the defendant for the offense charged, he must proceed as provided in chapter 15 of this title." (Emphasis added. may Respectfully submitted, t individual is brought before a magistrate to be charged, he may only try such individuals if the offense (1953) is triable by that magistrate. Utah Code Ann. have which may the offenses limits jurismagistrates public diction over to the following: Where an 78-5- "(1) -4 VLKNON H. 3o;-HJE- Attorney General Petit larceny. (2)' Assault or battery not charged to have been committed upon a public officer in the discharge of his duties or to have been committed with such intent -- LAUREN N. BEASI.EY Chief Assistant Attorney Ccncrnl |