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Show PAGE FOUR of power of government, except only as expressly restricted by the Constitution. In order to preserve the independence and the integrity of the three branches of government, it is of the utmost importance that the judicial exercise restraint and not intrude into the legislative prerogative. It cannot strike down and nullify a legislative enactment unless it is clearly and expressly prohibited by the Constitution or in violation of some plain mandate thereof. The court must make every reasonable presumption which favors constitutionality. The courts have a duty to investigate and, insofar as possible, discover any reasonable avenues by which the statute can be upheld. Every reasonable doubt must be in favor of the constitutionality of the statute. Those who the assert invalidity of the statute must bear the burden of showing it to be unconstitutional. re-solv- ed The court is not the conscience of the State or its people. It does not fall within its duty to express the personal desires or philosophy of its personnel. The court must voluntarily restrain itself by holding strictly to the exercise and expression of its delegated or innate power to interpret and adjudicate. We have been called upon to state what the law is and not what we think it should be. As to the plaintiff's first contention that the only basis for mandatory retirement is the conduct of any given judge, we find no merit to such contention. Mandatory retirement is not to be equated with removal for misconduct. A judge removed for statutory reasons gets no retirement benefits, whereas one retired for age or disability gets full retirement benefits. In the verbalization of the dissenting opinion of Justice Henriod, whose loquacity is recognized as unsurpassable, we are taken to task for what he considers to be a "circumlocutious rape" of clear, unambiguous, meaningful and understandable English. He, with emphasis, points out that the constitutional amendment "in clear, understandable English" with no mention to age of retirement, interdicts and cautions that "Legislation implementing this section shall be applicable only to conduct. " (Emphasis his.) In doing so, he ignores the balance of the sentence in that constitutional amendment which states, in clear, unambiguous, meaningful and understandable English that the legislation implementing this section shall be applicable to conduct "occurring subsequent to the effective date of such legislation. " What this provision of this constitutional amendment means from this writer's point of view is that legislation implementing the establishment of uniform standards for mandatory retirement and for the removal of judges cannot apply to conduct occurring prior to such legislation. It certainly does not limit implementing legislation "only to conduct. " At the time the Legislature enacted the mandatory retirement provisions of Section 49r7-l..- l, it also enacted into law legislation fixing grounds and procedures for the removal of any judge of this state, as well as legislation relating to retirement for disability. The retirement of a judge for "disability seriously interfering with the performance of his duties which is, or is likely to become, of a permanent character" 10 may well be the result of physical disability that has no relation whatsoever to "conduct," and to thus limit "implementing" legislation only to "conduct, " as the learned justice would have us do, would exclude all retirement legislation not based upon conduct. The Chief Justice in his dissenting opinion recognizes two possible interpretations of the second sentence of the constitutional amendment, preferring the interpretation that mandatory retirement standards refer to "conduct" caused by age or disability, and suggesting that if rerement be based solely upon age and without reference to conduct, the retirement legislation as to age might be retroactive while the legislation concerning conduct only must be prospective. While that may be so, we will not be confronted with a constitutional question based on that possibility, because the Legislature in enacting the mandatory age retirement statute specifically provided that this retirement legislation did not apply to judges who had reached or would reach the retirement age during their present term, and provided that Even so, such they shall retire on the completion of their present term. a possibility does not justify limiting mandatory retirement to "conduct" matters only. The Ciiief Justice considers that the third sentence of the constitutional amendment providing that "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 Court" resolves the potential conflict created by the second sentence, because the review of a "determination requiring retirement" would be meaningless if retirement were determined solely by age. This presupposes that reaching 70 is a "determination" as that term is used in the constitution and that each uniform standard for mandatory retirement provided by the Legislature constitutes a "determination" subject to court review. We do not believe tnatthe term "determination" should be so construed nor that "conduct" is the only constitutionally allowable basis for mandatory retirement. The "determinations" subject to court review are those of fact finding commissions established by the Legislature to consider the individual case of each judge, not the "uniform standards" provided by the . Legislature. The second contention of the petitioner - that the statute in question contravenes other constitutional provisions establishing qualifications for the office of a judge - was rejected by the Supreme Court of Idaho in Boughlon v. Price, supra, and furthermore, the constitutional amendment itself authorizes mandatory retirement legislation and in the society of today mandatory retirement has become a way of life. By today's standards retirement at 70 is not unreasonable. In support of this contention that mandatory retirement at 70 years of age contravenes other constitutional provisions establishing qualifications for the office of district judge, petitioner cites the annotation in 34 A.L.R. 2d at page 171, a part of which reads as follows: It is quite generally considered that where the constitution lays down specific eligibility requirements for a particular constitutional office, the constitutional specification in that regard is exclusive and the legislature (except where expressly authorized to do so) has no power to require additional or different qualifications for such constitutional office. (Emphasis added.) With regard thereto we note in passing that the Constitution of Utah "expressly" authorizes mandatory retirement legislation. dissenting opinion Justice Henriod states that if thes concurrences of the district court judges concurring in this majority opinion would have been the same had the legislature set the retirement age at 45, our judicial tenure In lWs THURSDAY. JANUARY 28. THE DAILY RECORD 1971 Be that as it may, if such were the law we trust would have been short-live- d. that in considering its constitutionality we would at least give consideration to that courts may the principles of constitutional construction and whether it has inquire as to whether legislation is arbitrary or capricious As already noted, we believe rea reasonable relation to a legitimate end. tirement at 70 is not unreasonable. long-establish- ed In stating as we do that in today's society retirement has become a way of life, we do not contend, as the dissent suggests, that such a philosophy is "infallible. " However, we would recognize as "infallible" the right of the people of this state to amend its own constitution. The dissent suggests that if retirement is a way of life, this court should hasten to recommend to the legislature that it pursue the same course and enact legislation to prohibit any elected official from holding office or running for election who has attained a particular age. Should the citizens of Utah choose to provide by constitutional amendment that the Legislature could provide uniform standards for mandatory retirement of its own members and other elected officials, we would assume it could do so. If, in doing so, the people of this state also provided, as they have done for justices and judges, that the selection of legislators and other public officials shall be based solely upon consideration of fitness for office, without regard to any partisan political considerations, that their terms of office might be for six or ten years as the case may be; that certain advantages be accorded them on a nonjudicial ballot, resulting, as a practical matter, in lifetime tenure in office, with full retirement benefits at the age of 70, it is doubtful that mandatory retirement at that age would seem so repulsive to such public officials. As judges, we naturally support the nonpolitical selection of judges as now provided in the constitution as being in the best interests of better judicial administration for the people of this state. Under these circumstances, in accepting such benefits bestowed upon judges by the constitution and its implementing legislation, we find the glue of which the dissent speaks is not as sticky as the learned justice would have us believe. The dissent suggests that had the framers of the constitutional amendment intended it, they "could have put 70 therein." By the same line of reasoning, it can be said that they could have set forth all other "uniform standards" for mandatory retirement which they intended in their own minds to have established. They did not do so. Instead, they followed the pattern established by the original framers of the Constitution of Utah who, in Article VIII relating to the Judicial Department of State government, provided for implementing legislation by the Legislature with respect to that Judicial Department in at least the following par- ticulars: To establish other courts inferior to the Supreme Court. (1) To increase or decrease the number of Supreme Court judges from the five established by the Constitution. (2) To establish the terms for which and the manner in which supreme court and district court judges shall be selected under constitutional quidelines, and to extend the terms of office of such (3) judges. 17 To provide for the number of times a district court shall be held at the county seat in each county, and for a change of (4) venue therefrom. 10 To change the limits of any judicial district or to crease or decrease the number of judges thereof. (5) (6) To restrict matters civil in- and criminal over which the District Court would have original jurisdiction. To determine the number of justices of the peace to be elected, to fix their powers,21 duties and compensation and to (7) restrict their jurisdiction. To regulate appeals from the district court to the supreme court from all final judgments and with regards to probate and disguardianship matters and to limit and restrir4 appeals to the trict court from justice oi the peace courts. (8) To prescribe the powers and duties of county attorneys and of such other attorneys for the state as the legislature may (9) provide. two-thir- ds 2 (10) To remove judges from office by 2"the concurrent vote of of the members of each house. (11) To fix compensation of judges.2 With these constitutional powers of the Legislature over the Judicial Department, in existence now for 75 years without seerrine abuse, it hardly seems fair to say, as does the dissent, that this decision knifes away the independence of the judiciary. This court has heretofore said: So much has been said and written about the powers belonging to the three departments of government that it would be trite to attempt to restate them. It will be enough to say that the legislative branch should make the law, the judicial branch should be confined to interpreting it, and all other power must of necessity be vested in the executive branch, which is charged writh the enforcement of the l.-i- te The dipsent suggests that our government system and the three- branches are destroyed in part by the of the of independence philosophy decision in this case. The philosophy of independence is not so autonomous in its nature as the dissent implies. The system itself has its own controls. The executive proposes legislation, the legislature enacts it and the judiciary voids it. The legislature acts and the executive vetoes. The judges interpret the law, the legislature changes it. The constitution controls all branches and the people change it, the latest change of which was an affirmative vote by 81 of the people of this state giving constitutional authorization for the legislature to provide uniform standards for mandatory retirement ol judges. To now rule as the dissent would have us rule would instead destroy ir. part the independence of the people of this state to amend their own constitution. tri-partl- - The dissent laments the lack of a more discerning and critical examination of the "clear language of the amendment." After reading it, 1 have chosen to supplement my original draft, not only in an effort to respond to that criticism but also because it is my belief that the comments contained therein justify a response as few, if any, dissenting opinions from this court have ever done The sarcasms thereof, enhanced by the author', are extraordinary the more evident by its author's failure to consider constitutionalvocabulary of law. It is regrettable that the learned justice would go so far as toprinciples suggVet , that the judges concurring in this opinion are motivated in the decision reached j herein by our "disposition to become beholden to the legislative and executive |