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Show gore Info on Old Complaint Water Board Appointments Probably Unconstitutional' By RANDALL WRIGHT Board members of the Central Utah Water Conservancy District, sponsor of the Central Utah Project (CUP), were probably sealed unconstitutionally, un-constitutionally, according to a recently discovered opinion by the Utah Attorney General's office. The opinion, written by Assistant Attorney General James L. Barker, says the Water Conservancy District Act of 1941 probably violates the principle of separation of powers by requiring district judges to appoint Water District board members. And if the issue were ever challenged, he said, "it is likely" that the Supreme Court would declare those provisions unconstitutional. The opinion was given in a letter dated February 8, 1977, in reply to questions raised by Senator Frances Parley - just after the release of a Utah State University study that may have prompted the inquiry. That study, released in January 1977 by the USU Water Research Laboratory, was critical of numerous aspects of water conservancy district operations and it raised questions about the propriety of judicial appointment. ap-pointment. As a result, according to , several water officials, the study was suppressed. The study raises the question of ' taxation without representation, saying that it is "sometimes alleged : that water conservancy districts operate with substantial immunity from pressures and direction of those over whom they have broad powers to ; tax." According to the study many people question the "logic and correctness" of having appointments made through the judicial rather than the executive branch. "In fact," it states, "it has been observed that having the district judge make these appointments instead in-stead of the governor may well be an unconstitutional intrusion on the executive powers. "Many have observed that a district is more viable and effective where board members are respected leaders whose current role in community com-munity or regional affairs makes them sensitive and responsive to desires and preferences of the people they represent. Yet it is very common through reappointments (that seem to be almost automatic) to continue a board member in office long after his community role has diminished and he has lost close contact with those he is expected to represent." "The justification cited for (appointments (ap-pointments by judges) rather than by the executive or legislative branch of government or free elections, is to 'lake politics out of water development,' develop-ment,' " (he study says,. In the letter to Senator Farley, Mr. Barker said the general constitutionality con-stitutionality of the Water Conservancy Con-servancy District Act was considered by the Supreme Court in 1944, and except for a provision of the Act denying a right of appeal, the Act was upheld. "However," he continued, "the court did not consider the question of the constitutional requirement of the separation of powers among the three departments of government." The legal reasoning for declaring judicial appointment invalid was established, according Mr. Barker, in a case resulting from a legislative act similar to the Water Conservancy District Act - The Higher Education Act of 1969. That act purported to grant to the President of the Stale Senate and the Speaker of the House of Representatives the power to appoint three members each to the newly created State Board of Higher Education. In declaring this provision of the Education Act to be unconstitutional the court lauded the constitutional provisions "which absolutely prevent any person charged with powers properly belonging to one department from exercising any of the functions appertaining to either of the others -except where the power was expressly ex-pressly so granted by the Constitution itself." The court explained thai under stale law the Slate Board of Higher Education "is charged with the executive responsibility of carrying out the law as enacted." It added that the legislature had performed all of its functions by providing the law and . the funds "by which the will of the people has been effected" but that the statute attempted to go beyond the power granled to the legislature by setting up a mechanism of legislative appointment. "The control of the board, which performs an executive function, is thus effectively placed in the control of the legislature," Ihe court said (Rampton v. Barlow (1970), 464 P.2d 378). Mr. Barker concluded his letter by saying, "In view of the decision in Rampton v. Barlow it is likely that our State Supreme Court would declare the provisions of Section 73-9-9 of the Water Conservancy District Act, insofar as they grant to the district courts the power to appoint members of the boards of directors of conservancy districts, to be violative of Article V, Section 1 of the slate constitution. Review Index - Enier;aiiimeii! . .. , ... 20 Socieiy Scene 4 Classified 23 Obiiuaries 13,18 Sporis 10 |