OCR Text |
Show THE SALT LAKE TIMES Utah Supreme Court Opinions IN THE SUPREME COURT Or BOOoQ W are indeed grateful, yea even reverential, for Magna Carta and the foundation it provided for tho to principle of tho rub of law, as the whim of men (at that tima th monarch); aad also far what we opposed regard a. the admirabb structure of bw built upon that foundation. But wa remind these who advocate it. application hero that tha great charter itself wa neither created by nor in any manner issued from the judiciary. It wa. an acknowledgment by tha sovaraiga, recognising aad granting tho rights and immunities daebrad therein. This i. comparable to constitutional dec la -ratiaa. under our system. In our form of government a. established by our constitution, it i. fundamental that the sovereign is the people. A paralbl of reasoning would bad to tho conclusion that such a constitutional or lagis-btiv- o change should coma from that aovoroign: th. poopb. THE STATE OF UTAH mmmmm Larry ShalmldiMa it L plaintiffs and Respondents, No. 14152 V. FILED May 20, 1976 A. Jon.., at al. , Juaiicaa ol th. Paaca la Salt Lake Count IT, Defendants and Appellants. Chari.. Alba E. Mscham, Clark It is equally clear that our con.titutioa rat. ap thraa separate branches bgislative, aad the judicial, each of which ha. it. particubr function to perform. Duo to the manner in which our system 1 created and h a davqloped, the judiebry ha. tha awesome prerogative and responsibility of judging tho scope at power, of the eaacutive, bgisbtive, and of its own. For this reason it ia essential that tho judiebry bo especially circumspect in maintaining an awaronem of tha natural propensity of human nature; that when anyona ha. tha power to decide wherein hi. own into roots are involved, there 1. danger of consciously or subconsciously leaning toward protection, and perhaps tho magnification, of hi. own salf interest. of government; tho eaacutive, tha rancKETT. Ju.tlca; Th... thr.a plaintiff, warn charged la separate ea.a. with drunk driving ia Salt Laka County and warn aach arraigned bafora ana of tho'dafendanta, who ar. thraa justices at the paaca. Each entarad plaa. at net guilty and jaiaad in filing a petition in tha district court for a writ prohibiting the defendant, from proceeding in their re.pactive ca... on tha ground that, ina.much a. tha defendant juaticaa of tha paaca wara not member, of tha Utah Bar, to permit them to proceed with tha trbl and di.po.itien of tha plaintiff.' ca.e. where po.aibla jail ante ace. wara involved amount, to a denial of due proceaa of Uw. On tha baaia of hi. agreement with that contention, omjuna 3, 1973, the diotrict court la.uod the writ and daf.ndanta appeal. b It i. our opinion that it is vital to tho proper functioning of our govern-ma- nt and to it. endurance that thoie procedure, be- - followed; and that the duties and prerogatives of each department should bo scrupulously respected by the other!, thus having tho function whore tha constitution put. it. U is our belief that in our 200 year.' history the American judiciary have, for tha mart part, keen aware-otho sensitivity of their position aad generally have a pretty good record for heaping within the confines of thair proper authority aad function. No free mdh .hall bo taken, imprisoned, . . . nor will Uwful proceed again.t or proaocuto him, oac.pt by tha 1 judgment of hi. poor, and by the law of tha bad. wo a a a a Consistent with that objective, it is quite universally recogniasd that courts will not strike down enactments of bw unbss there is some compelling reason W acknowledge, of course, that thare are to do so. except ions whoro courts havo yialded to the allursmauts of power and tended to overreach into the robs intended for the eaacutive and bgisbtive branches. will appoint a. ju.ticiariea, con. table, fheriffa or bailiff, only auch man a. know tha bw of tha bad and will 1 kaep it weU. Wo i. abundance of bw subsequently built uponthat foundation aad tha concept, which wa racogniao a. valid, that tha bw ought to ha adapting itaelf to the change, aad progra.. in eoclety. From thi. it i. rea.oned that tha ideal of a fair trbl under due proco.a of bw ontaila the employment of tha boat mathod. known at any given tima. Wherefore, we are urged to join ia what i. nowadaya referred to a. "Judicial activiam" and to innovate, i.o. , where tha judiciary ' think, tha legi.btura lego, it will deebre, not what tha bw ia, but what it ought to be. It i. argued that thi. requirea ue to daebro that tha conatitutionally created ju.ticc. of tha paaca, who yrera not required to bo lawyer., cannot . deal with ca.e. whoroia jail aentence. may bo impoaed, or that thoy cannot imjail aentence. in auch ca.oa. pel. 1. 2. 3. -- Wo do not moan to bo understood a. saying that we shrink from tha . responsibility, when properly invoked, of giving duo consideration to claims bat legi.btivo anactment. ara subordinate to th superior bw: constitutional provisions. Abo, it should bo born ia mind that there is a definite distinction between a change in interpretation or application of a statute, which a ome tima. quite justifbbly occurs, and attempting by judicbl fbt to affect a substantial change in bw as cbarly eapr eased in a atatuta or tha constitution. Whan such a substantial change is nacossary or dosirabb, our constitution ha. set up procedure, for the change by tho bgi.bturo, or of the constitution, by tha amendment process. Plaintiff! (joined by amicu. curiae, la a well prepared aad echolarly brief), arguo that thi. court aheuld taka cegniaanco of tha fact that tima. have changed aince 1S96 whan our Utah Con.titutioa wa. adopted, and that wa ahould ca that the Con.titutioa hoop, paca with "progress" in aocial, legal aad other field, by adjudicating ia affect that our .tate Con.titutlon ha. becomo antiquated and that tha conatitutianally created juaticaa of tha paaca can no longor function in ca.e. where a jail aontonco may bo impoaed. They go back ia hiatory a. far a. Magnq Carta, 1213 A. D. : There Magna Carta, Chap. 39. Chap. 43. Utah Con.titutioa, Art. VIII, Sac. 1. Id., It will bo seen from what we have said above that we think thara ia a substantial barrier to bo encountered in making an analysis and judicbl determination of tho merits or the demerits of tho justice at the peace system as established by our state constitution. However, is view at the plaintiffs' argumonts thereon which seem to have persuaded tha trial court, and tha public intarost manifest ia this general subject, we make what w think ara soma appropriate observations: A Urge part of our State of 29 counties consists of sparsely aettbd maintain and desert areas. Less than a third of our counties could even now bo retarded as urbanised to any substantial extent. 4. Marbury v. Madison, 5 U.S. il d ranch) 137 (1303). 5. Newcomb v. Ogden City Public Schools, etc. , 121 Utah 503, 243 P. 2d 941 (1952); and aoe 16 Am. Jur. 2d, Constitutional Law, Sac. 175. 6. A multituda of examples exist. Perhaps none is better than in tho racial desegregation caeca (with the principle of desegregation w are in accord), where this courts, not contented with the correct adjudications of tha principles of bw, go on to devise pbna for implementation and supervision, such as school busing. No. 14152 Our con.titutioa wa. fashioned by the founder, ia aw.renc.a of tha ganaral nature of our State; and we 'mould a.aumo that they created the ayetem ia the realiaation of the neceeeity aad deeirability of providing a roalietic and eapeditiou. mean, for bw enforcement and tha administration of juatice, particularly ao ia tho.a rural area., ae the condition, then oni.ted and a. they .till cxi.t in our State. According to Iho annual rooter of attorney, for 1973, there an no attorney, re.ident in five of our cauntleo, one county ha. only one, three countie, havo only two, and aaveral other, have only three or four attorney. It i. thus men that ia a coueiderable portion of our State then ara ome very practical problem, in piecing re.trictiona upon juatice. of tha peace and requiring profeaeionaliaed court, to handla minor offanoea. If k ven not for theao juatice. ia our opar.aly popubted rural counties an accu.ed would often encounter inconvenience in deby of tima and dietaaco f travel before ha could havo hia cam di.poeed of. 3 (com. to bo a eound observation that our juetico of the paaca ayetem ha. and continue, to aorve a u.eful purpo.a by providing a readily accoa.ibb and eapaditiau. moan of handling of minor ca.oa; aad that it i. more of an aid ia a. raring tha con.titutianal guaranteeo of a apeedy disposition of one', ca.o, and thu. of due proc... of bw, than tha contrary. 7 For tha reasons atated heroin wo are unable to agree with tha ruling' of tha district judge: that the portion of our own conatitution which vaatod tha challenged power in ju.tlca. of the paaca, i. itaelf uncoaatitutional. 9 Con.equoatly, it ia our concluaioa that tha writ wa. improperly io.uod and it i. ordered recalled. -- 2- Thua, inasmuch as there has baea no trbl or sentence, thee accused should ba accorded tho privilege of choosing to have their respective cases handled by a judge who is a member of the state Bar if they ao deair. No Remanded for further proceeding s in accordance with this decision. costs awarded. WE CONCUR: F. Henri Hearted, Chiaf Just lea . A. H. Eliott, Justice MAUCHAN. Justice: (Concurring) With that part of tho opinion remanding the matter for farther procoedtags pursuant to tho atatuta, X concur. TUCKETT, Justice, concurs with tha vtew oxpreaeod ia the concurring opinion of Mr. Juatica Maughaa. Tha foregoing diapo.a. of tha io.ua pro. anted on thi. appeal and tha remand of them ca.ee for further proceeding., that regard C. P. , provides aomething further needa to bo raid. Aula 76(a), U. that when a ca.e is remanded for furthar proceeding, th court .hall comment Alter tha filing of theao chargee again.t upon bw that may bo applicable. tha petitioner.; and after tha diotrict court' a daci.ioa and the la.ua nee of tha writ on June 3, 1975, our bgi.btur followed the correct and constitutional procedure, a. hereinabove stated, for making aubatantlvo changee la our bw by enacting Chapter 4, Section 1 of First Spacial Sea. ion. Law. of Utah, 1973. It provide, that a parson charged with an offen.o which carrlea a possible jail a judge who sentence ha. a right to request that the proceeding be handled by ' is a member of th state Bar. requires Page Seven FRIDAY, AUGUST 6, 1976 I. b We have heretofore held that if, after tha commission of tha offanoo, trbl and entry of judgmant, a atatuta ia amended to prescribe a baser penalty,- the defendant i. entitled to tho benefit of the leaser punishThis is to harmony with tho general policy of tho bw according ment. on accused of crima th moat favorable aspect of th bw which is being ". . . in case applied again.t him. A.'wa. said in Ringwood v. State, of alternativa choice., he th defendant can comply by aolocting the ona which i. the least burden.omoorbast offensive to him . . .." Consistent with that policy, tho .am. principle should apply in matter, of procedure. 7.- - See statement in Crouch v. Justice of the Peace, etc., 7 Aris.App. 460, 440 P. 2d 1000 (1961). S. The long established rub i. that lower court, should havo even greater reluctance In striking dawn law. a. unconstitutional, sea Pacific Livestock Co. v. Ellison Ranching Co. , 46 Nev. 331, 213 P. 700; State v. Taylor. 49 Haw. 624, 423 P.2d 1014; 16 C.J.S., Constitutional Law, Sec. 93; 16 Am.Jur.2d, Constitutional Law, Sac. 173. 9. W do ao in awa rones, of Cordon v. Juetico Court, 12 Cal. 3d 323, 113 CaLRptr. 632, 523 P.2d 72 (1974), which wa. decided under a statutory -- 3- -- 4- No. 14132 Multiple Sclerosis Fund Raising Radio Auction Set For November Plans for Salt Lake City's first four-da- y fund raising Radio Auction, beginning November 26, have been announced by Duane Hill, the 1976 Chairman of the Utah Chapter of the National Multiple Sclerosis Society. The proceed from the auction will go to the MS Utah Chapter. . Mr. Hill further announced the appointment of Mrs. Harold R. Tate, of Holladay, Utah, as Chairwoman of the auction. The committee headed by Mrs. Tate will seek from local businesses donations of merchandise to be auctioned. KRSP radio in Salt Lake Uty was selected by the Utah Chapter to broadcast the auction because they offer continuous, statewide coverage to an audience of all age groups. The auction is scheduled to be broadcast from 6:00 a.m. November 26 through midnight November 29, 1976. Young peoples volunteer groups will be involved with the effort. Multiple Sclerosis is a long term disease where the flow of nerve messages to the center nervous system is distorted. It most often Until the 1870's, the Utah cattle industry wasn't really a beef industry at all. CatUe (oxen in particular) were raised for "pulling power. They were an energy source. When the railroad yame and oxen were no longer in demand, Utah catUemen generally lost interest in raising catUe and the rangelands lay idle for nearly a decade. To fill the considerable demand for beef in the new railroad and mining towns in the territory, cattle were imported from Texas and California. In 1876, the Utah Horse and Cattlemen's Association was organized, and by 1878 Utah once more had a thriving catUe industry this time producing beef. At the Centennial Convention of the Utah Cattlemens Assn., Salina, this week, Utah Commissioner of Agriculture Joseph H. Francis readied this and other events of the first 50 yers of Utah's cattle industry. Noting that the first cattle to enter the state probably came with the Escalante expedition in 1776, Commissioner Francis emphasized that no herds of any size existed in Utah until the Mormons arrived, bringing with them 3,100 head of cattle, 887 cows and 2,213 working oxen. "They were, of course, founding a religious haven, he added, "not a ranching empire. By 1890, the numbers of cattle in Utah exceeded the states population for the first and only time. The affects young people between the ages of 20 and 40. The cause, prevention, and cure are unknown. About 500,000 Americans, including 2,500 Utahns, are afflicted with the disease. The National Multiple Sclerosis Society is the only national volunteer organization supporting worldwide research on MS. The funds raised during the auction will be used to further research efforts, and to aid those suffering from the disease in Utah. census showed 278,000 head of cattle and 211,000 people, or 1.32 cows per person. As much work as ranching is and always has been, latter day cowboys were able to find time to pursue a favorite sport, Comm. Francis observed. "During the early 1900s a considerable number of wild cows infested the rough winter range on the desert, reports the Commissioner. "To prevent the , contamination of their herds, the cowmen attempted to eliminate the wild stock by rounding up all that they, could and taking them to market. Sometimes 15 or 20 cowboys would gather from the ranches and pack into the brushy basins or canyons to make a sustained drive for two weeks in an attempt to rid the area of wild demons. The satisfaction was not merely due to the $18.00 your crittpr would bring if you got it to the railroad, it was the hunger for victory. Nothing else mattered but getting your critter." Diseases such as Blind Staggers and Sudden Death that plagued early cowmen have been replaced by the Shipping Fever Complex and Sleeper's Disease of today. Other problems. . .such as trespassing and strays. . .have taken a new form. Todays trespass problems involve human strays, said the Commissioner. Commissioner Francis address was preceded by a parade through downtown Salina and followed by a barbecue beef lunch for the public Bill Designed To Ease Burden Of Rural Hospitals Support was announced this week by Senator Jake Garn of a bill designed to ease the burden of Federal regulations on small rural hospitals. Garn said he is joining Senator Paul Laxalt in sponsoring Senate bill 3661 to amend Title 18 of the Social Scurity Act to make less stringent the requirements rural hospitals with 50 beds or less must meet in order to qualify for medicare reimbursement. "Everyone wants safe, clean, hosd and "and is Sen. said it Garn, pitals, not the intent of this legislation to in any way weaken Federal standards for health care facilities. But Title 18 regulations are better suited to large urban hospitals with impressive facilities and numerous trained personnel than to small rural ones which lack both facilities and trained staff. This bill seeks only to add additional flexibility to the law in order to make the Federal standards better suited to small rural health care facilities. Senator Garn said the bill would require the Secretary of HEW to consider regional availability in establishing nursing care' requirements and would forbid hospitals from being decertified on the basis of a temporary shortage of nursing personnel; would allow the Secretary to deem a rural facility in compliance with fire and safety regulations in the event that the facility met sufficiently stringent state fire and safety codes; would relax the prescription against merging hospitals and nursing home patients in the same facility because of the extreme cost to rural units; would require that the Secretary modify existing rules to ensure that personnel requirements are consistent with the availability of technical personnel in rural areas and the scope of services rendered by such rural facilities. "However well intentioned the Title 18 rules may be, they are too and do not take well-equipp- ed but before a schema different from Utah's. 10. Saa aim, Johnson Corp. v. Peterson, IS Utah 2d 260, 420 P. 2d 613 (1966 11. See State v. Tapp, 26 Utah 2d 392, 490 P. 2d 334 (1971), and Belt v. Turner, 23 Utah 2d 230, 479 P. 2d 791 (1971). 12. 0 Utah 2d 2S7, 333 P.2d 943 (1939); and am 21 Am. Jur. 24. Criminal Law, Sac. 579. No. 14152 Utahns Recall Begone Days of Cattlemen ' into account the particular needs of the small rural hospitals, Garn said. "This bill will make them much more fair and workable. Mandatory System In Retirement Both Arbitrary And Wasteful well-staffe- Bob Springmeyer has called for elimination of the mandatory requirement that Salt Lake County employees retire at age 65. Springmeyer, Democratic canSalt Lake didate for the four-yeCounty Commission post, said that the present mandatory retirement ar system "is wasteful. both- - arbitrary and In a speech before a Democratic organization meeting in Holladay, Springmeyer proposed "a tapering of the retirement schedule so that it would be based not on age, but on the employees job performance. "If an employee with years of experience is still working at a high rate of productivity, then it makes absolutely no sense for the County to sever that person simply because he or she happens to be 65 years old, Springmeyer said. He noted that there are other instances where the most economical solution would be to put an older employee on a part-tim- e schedule. "We should not have to choose between keeping on employees at a rate of 40 hours per week or letting them gq. altogether. Many times the County would be able to get the most for its money by hiring an experienced hand on a part-tim- e basis, Springmeyer said. He stated that the Countys retirement policy should be changed to reflect the complementary goals of fairness to senior citizens and economy in -- -- |