OCR Text |
Show I THURSDAY. JANUARY POORICOPY THE DAILY RECORD 1971 The Supreme Court Of The State Of Utah 111 No. 12258 Joseph E, Nelson, Plaintiff, FILED January 25, 1971 v. Clyde L. Miller, as Secretary of Stole of the State of Ui.r.h, L. M. Cummings, Clerk Defendant. CROFT, THREE PAGE The Legislature may provide uniform standards for mandatory retirement and for removal of judges from office. Legislation implementing this section shall be applicable only to conduct occurring subsequent to the effective date of such legislation. Any determination requiring the retirement or removal of a judge from office shall be subject to review, as to both law and facts, by the Supreme Cour t. TT"l'hat statute provides: "If no member of the bar has filed a declaration of candidacy for such office, then at the general election the ballots shall contain as to each justice of the Supreme Court or judge of a district court to be voted on fn said county the following question: Shall (name of justice or judge) be retained in the office, of (name of office, such as 'Justice of the Supreme Court of Utah' or 'Judge of the District Court of the Third Judicial District1)? Yes ( ) No. ( )." 4. At the general election a majority of the voters in the Fourth Judicial Dis-- ti ict voting upon the judicial ballut voted "yes" to that question which, in the absence of the mandatory retirement provisions of the act, would have entitled term as such district court judge. Judge. Nelson to another full six-ye5 Article VIII. Section 5, Constitution of Utah. District Judge: This is a petition for a writ of mandamus filed in this court as an "f original proceeding pursuant to the provisions of Article VIII, Section 4 2, Utah Code Annotated 1955. the Constitution of Utah and Section which specifically provides that the Supreme Court shall have original jurisdiction to issue writs of mandamus and t.lior extraordinary writ;. ar 78-2-- .ibhriursl in, and cumulative with, the This section methods of removal or j.i'jiins and judges provided in Sections 11 and Z1 of this Article." The facts are not in dispute, have been stipulated by the parties and may he summarized as follows: This constitutional amendment became effective The petitioner, Joseph E. Nelson, is a duly qualified, elected and of the State of Utah. His acting judge of the Fourth Judicial District Court term, to which he was duly elected in 1964, expires on present six-ye- ar 74 years of age. On January 4, 1971. On December 7, 1970, he became of State June 26, 1970, Judge Nelson presented to the defendant as Secretary Disa declaration of candidacy for the office of judge of the Fourth Judicial the of trict Court and tendered his statutory filing fee $50.00. However, fee and prefiling defendant refused to accept the declaration of candidacy 70 of over the was then Nelson age sented by Judge Nelson because Judge was therefore precluded years, and, in the opinion of the Secretary of State, befrom further eligibility for election to the office of district court judge cause of the mandatory retirement provisions of the Judges' Retirement Act. 1 of that act (enacted by the Laws of 1969, Chapter 122, Section 1. Section 1) had provided that: 49-7-- 1. The above quoted constitutional amendment clearly authorizes the Legislature to provide uniform standards (or mandatory retirement of judges. Such standards are separate and distinct from standards to be established under that amendment for removal of judges. The challenged statute is a part of our state's Judges' Retirement Act which provides for retirement upon retirement pay. In Houghton v. Price, Sue. of 'jtat.e, 70 Ida. 243, 215 P. 2d 286, the Supreme Court of Idaho had before it a case similar to the case at bar. In that case the. Legislature of Tdaho had enacted a statute providing that no person shall be eligible to appointment or election to the office of supreme court justice or district court judge who shall iave attained the age of 70 years at the beginning of th" term to Abicl he aspires. The constitutionality of that statute was challenged as containi'-- an additional qualification for the office of district judge to those mentioned in the Idaho constitution. However, in Boughton it is apparent '.hat th; loal.o constitution did not con- 49-7-- upon attaining the age of seventy Court a and judge shall retire upon attaining Supreme years, the age of 72 years; provided, however, any judge serving a term as judge on the effective date of this act, who has attained the age of retirement, or attains that age during his present term Bhall retire on completion of his present term. A November 5, on 1968, and the 1969 Legislature thereafter enacted into law Section 1 providing for the mandatory retirement of district court judges upon attaining the age of 70 years and oi Supreme Court judges upon attaining the age of 72 years. trial judge shall retire tain a provision authorizing the legislative to provide for the mandatory , the Supreme Court of Idaho ruled that retirement of judges. Nevertliel was the challenged statute constitutional, holding that the constitutional qualifications for the. office of district, judge were minimum qualifications and did not limit the power of the leehilprui v to prescribe additional reasonof the maximum age limit at 70 able qualifications, and said that the years did not appear umeasonabl-:- a Thereafter, on September 21, 1970, Judge Nelson filed a petition for writ such issue Court this writ of mandamus in the Supreme Court praying that Fourth Judicial Disrequiring the county clerks of the six counties within the as a district trict to place his name upon the ballot as a candidate for election 7. 7(5), with Section judge within that judicial district in accordance U.C.A. 1953 (as amended in 1969) provides that any 1. Section incumbent judge of a district court who holds office pursuant to election end whose term of office expires in January next following a general election, of candidacy with, may, if he desires to retain such office, file a declaration and pay a filing fee of $50 to, the secretary of state during the month of Jure any qualified member of prior to such general election. If he does so,office such for a may also file such a decladesiring to become candidate in July prior to such general elecration by 5:00 p. m. on the second Friday tion. If the incumbent judge does not file a declaration of candidacy, no member of the bar may file and the resulting vacancy is filled by gubernacomnom-naUtorial appointment from three nominees selected by a judicial 20-1-- 20-1-7- . In the case before tni cuor tl e ments by which he rout ends that Ll.-h'be unconstitutional. T' .7, th.-ba- ide back 1 two-thir- r.vi i'.iu Tl Vl-ii- ri,iiiici.l u. I .1 5 . establishing .; . ,: T-'-- e !" nf '58. . .w -- from office by the , provided li'iiog pro ides that r j 1 for m sepursti.-ly' i I vjr'. : r t i !. tc v. ..ht ..oi ! . 1 ' . - . l !'. ! : . 1 r.;-'..;:- : y p.-ro- vi'iiL t.o of is -- ; i with., n 'T-.n;.i.- courts ii,U'-'.- in " th: Idaho in.i; 3 of the c -- property right. u v, S' a..cs !' ..! ilv -' rent to the Conslitu-)- f .f rciug any law asserting that prohibiting the due process of law," again Ir...'' i i .o- lb A mend '? . pr.-r-rt- w.i-- k . in m. d hiu office A. 1953, :' - - 5 .onlnoti Vill, arti-ii- !l,-i- ; w :a 1 - n !.' . . !. .. s - .fr.i- - 'I'ci.on 44 -- ti, L.v7. will!..l i!iisv'Ciiil'JCt, .icugts rlcr-dune, Aid iiai.ilual use i o !. rcti disability ' ( onut.i-si- 'i f-di- i rrmn-r- i? i.'.'t .' iit.inj! es a long served ai guidelines ourt therein said: , li.i'tsn C - ."im 'M trr.i, Inc., 't 21 Utah 2d 431, District ludge Joseph E. -s which have legal constiiutional issues. This .ifrn.j, to' li pti-.npi- c held in order to be declared unconstituviolate some constitutional protional, U'? ftat.lc must vision, awl fa! ;i: r, the tnlatioii trust lie clear, complete and uutiiis'. ik :dile, V- - h.iv.'. t op'-aterl- cl rally - . 2d. M V bay- ; ..'l.j,oit - i P. : . ay i- i aisl 1 asserting the right to In Trade iidesi ii. . o; r ..i.m-n- i ji :. n i dcpriing l e . p .a i" c-- '. r. the vou n of the State general clcUiun held November 5, 1968, 28 to Article VIII which Section Utah of by adding Utah amended the Constitution readas follows: I ib- - : it-- - . ri at ' yf ..I.i.',: bri'ly.i.,' I oi his cjn.'l t .tv. : . i)i. W-- ,i feJt"-v- r.) u.i.: Vc et each judge of the district active member of the bar in good standing, borne.! ir zsy.nr.1 of ny, :lf tii... .,'redil! t nf ll.c H lb! for the three years next primer!, of H stitution arc.r'Ji. ;V I' CcnstU !li:p (itUfiK 1 -!. - pT-c-'u'1!- i l i . i,-- r . i:u-i'-:h-- judicial oflii conviction of ds'-r-H.i- il'.i ?' ,!-- ti h.irh pt im-mh- (".ot.-- .t - -'.i : more than ninety 7. At the same tinu th" ord - p-- tv another provision of the . r-- 7 which pro- nit a i dae can he called i)i.',ii1 'he S'.'prcmc Court. -- of thu ds iiy '! i'll- .:.! -- Said Section ll providin concurrent vote jf l.tfh i c The sole question for our determination is the constitutionality of the upon that issue wc note that the defendant, ha: tory retirement statute. In passim l -, efudge Nelson meets all the coinr.u-iioiiAstipulated that, cvcepi far hi.i c of district court judge. Intk--d, statutory qualifications of the offi. i r ,t the iji i.i our concurrence with that stipulation, for we os judges and as of faithful service that Judge Nelrr.n State liar are all cognizant of the many years the cilizeus of this st un, and particuto lias rendered, and now continue to render, in thn Fourth Judicial District as a district c.ouit "id,. larly to the people residing to .Ti.d.pf. w,.i .wi.ru tlvt a' though the passing of lime has added nH--l il. rtiu,. from hlu legal abilities or .: riels ...'-it ha.-- -t 'ft, baJiotl-irin bn- v. thai November the noresults p,.t e.'iih. r tb ;? factors c.alled we are vpou djtpni, duOii.iiil upon the issue Disintt hv.c ;v.y Unde! attaining the age of .v i .ph V i'. 6. ; . !. 'vu! . conflict n at 70 a..i. manda- -- r : i . ' srr'i cither 1971. 5 is the conduct of n.e extent it demonstrably mient that u 'emi '.t1 3r.dii 3 f;r ,r . "unifcvi adopted in that a distinction is drawn hoi ween retirement of district court judges called upon to decide the constitutionality of Section court judges upon attaining providing for the mandatory retirement of district is Judge Nelson must retire statute constitutional, that I; vears. lie anc of 7d Nelsor at the (mil of his pi os our term. It the statute is unc.onslili;i.iond, Jndg" rnit-;tir-- l six-yethe new a cffictern, for beg! will hr n tlel to Via Uinl y-- sri m T y.v. (5), Januar v - : r.j, - Pursuant to that order Judge Nelson's name appeared upon the judicial ballot in the general election at which time the voters of the Fourth Judicial U.C. A. District were, in accordance with the provisions of Section or the to "no" question of 1953, as amended, given an opportunity to vote "yes" office of Judge r f th:. whether or nut Judge Nelson "shall be re! si !;." in the District Court of ihat district.. Monday nf at t1 1 1. ar statute (3) Tin; U.C.A. 1953, as amended. In the alternative, the petition requested tlraj the defendant be ordered to issue a certificate of election to Judge Nelson for whirh we believe he had no constitutional or statutory right. After the petition wss filed, this Court then ordered the Secretary of State to accept Judge Nelson's declaration of candidacy and filing fee and to certify to the county clerks of the Fourth Judicial District the name of Judge Joseph E. Nelson to appear on the future detergeneral election ballot for the November election, reserving for mination after more studied consideration the issue as to whether or not the 1 as set out above are conmandatory retirement provisions of Section stitutional. - inil'.w.j; at-'i- The act became effective on May 13, 1969, on which date Judge Nelson was then over 72 years of age. now . -- ) -- 2. arc .a1 vv.-ait.- r qii--The .r it .:; 70 yr.irs on' r; vi : , 'th ft- 'v quail1 ( mission. Wi- - r titio'ier has set forth five arguretirement statute is , i The only basis for m ly ii i,r.v irivcn j.idue and a coud oi irt affects the judicial judus. (1) r 49-?- iu?-nJator- n-a- ng 49-7-- o- - s 1 i are In o?n3ilering the question a to whether constitutional provisions fundamental some are principles we a the court said there violated by slat.i., .ih v.d 1 keep in n in:., setting them forth as follows: The first is that the legislature of the state is not a government of powers limited to those expressly granted, as is the The legislature of the state.whlch federal government has all the residuum represents the people and thus the sovereign, t |