Salt Lake City v. Ohms ( 1994 )

RUSSON, Justice:

Mason A. Ohms appeals his conviction of giving false or misleading information to a police officer, a class C misdemeanor, in violation of Salt Lake City Ordinance § 11.04.-100. We reverse and remand.

I. FACTS

At approximately 9:30 p.m. on August 25, 1992, a disturbance involving the distribution of beer erupted in the third-level plaza area of the Delta Center. Sergeant Foster Mayo of the Salt Lake City Police Department, who was working security duty at the Delta Center, intervened and placed Mason A. Ohms under arrest for battery, a class B misdemeanor, in violation of Salt Lake City Ordinance § 11.08.020. After taking Ohms to a holding room, Sergeant Mayo asked him for identification, at which time Ohms produced a driver’s license bearing the name Scott Smith. Sergeant Mayo asked Ohms if this was his driver’s license and if he was Smith; Ohms answered both questions in the affirmative.

After Sergeant Mayo and other officers began the requisite paperwork using the Smith identification, one officer noticed that Ohms did not match the physical description on the driver’s license. When confronted with the discrepancy, Ohms produced a second driver’s license bearing his correct name. Ohms was subsequently charged with providing false or misleading information to a police officer, a class C misdemeanor.

Prior to his trial on both misdemeanor charges, Ohms signed a waiver and consent form in which he (1) acknowledged his right to a trial before a third circuit court judge with or without a jury, (2) waived that right, and (3) consented to have his case tried and final judgment entered by a circuit court commissioner.¹ Following a trial before Third Circuit Court Commissioner Sandra N. Peuler on December 15, 1992, Ohms was convicted by her of providing false or misleading information to a police officer and sentenced to three days in the Salt Lake County Jail, which sentence was suspended upon payment of a $100 fine.²

Ohms appealed his conviction to the Utah Court of Appeals, which certified his appeal to this court, pursuant to Utah Rule of Appellate Procedure 43(a).³ On certification, Ohms challenges (1) the circuit court commissioner’s authority to enter final judgment, and (2) the sufficiency of the evidence supporting his conviction. Salt Lake City responds that (1) Ohms, having never challenged the authority of the court commissioner below, may not raise this argument for the first time on appeal; and (2) the evidence is sufficient to support Ohms’ conviction.⁴

II. AUTHORITY OF COURT COMMISSIONERS

On certification, Ohms argues that the circuit court commissioner lacked authority to enter final judgment in his case. Specifically, he asserts that Utah Code Ann. § 78-3-31 (1992) is unconstitutional insofar as it delegates ultimate judicial power to court commissioners in violation of article VIII of the Utah Constitution. Ohms bases his argument on Holm v. Smilowitz, 840 P.2d 157 (Utah Ct.App.1992). However, while addressing similar concerns, Holm is distinguishable from the present case because it addresses only the authority of court commissioners to hear nonconsent civil cases.⁵ The matter before us now is a crinjinal case involving consent.

Salt Lake City responds that since Ohms did not challenge the authority of the court commissioner or raise the constitutionality of section 78-3-31 below, he may not now raise these arguments for the first time on appeal. Alternatively, Salt Lake City contends that since Ohms (1) knowingly and voluntarily waived his right to have his case tried and final judgment entered by a third circuit court judge with or without a jury and (2) consented to have his case tried and final judgment entered by a court commissioner, he cannot now, having received an unfavorable verdict, challenge the validity of that waiver and consent.

As a general rule, we will review issues raised for the first time on appeal only if exceptional circumstances or “plain error” exists. See, e.g., State v. Brown, 853 P.2d 851, 853-54 (Utah 1992); State v. Gibbons, 740 P.2d 1309, 1311 (Utah 1987); State v. Steggell, 660 P.2d 252, 254 (Utah 1983). In the present case, or in any similar case, the only way that a defendant could challenge the constitutionality of section 78 — 3—31(6)(a) would be first to consent to a hearing by a commissioner and then to challenge the validity of that very consent. Such a procedure would likely be futile inasmuch as it would invariably result in the withdrawal of the consent, either by the defendant or by court order. Indeed, absent the approach taken by Ohms, it is unlikely that section 78-3-31(6)(a) would ever be subject to constitutional scrutiny. This is precisely the sort of exceptional circumstance that permits us to review the constitutionality of the provision in question. Accordingly, even though Ohms did not challenge the constitutionality of seetion 78-3-31 below, we nonetheless address this argument on appeal.

Our analysis of the constitutionality of section 78-3-31 begins with the premise that “statutes are presumed to be constitutional.” State v. Rio Vista Oil, Ltd., 786 P.2d 1343, 1349 (Utah 1990). As this court stated in In re Estate of Baer:

The decisions of this court unanimously support a presumption of constitutionality of legislative enactments. In determining constitutionality, statutes are presumed to be constitutional until the contrary is clearly shown. It is only when statutes manifestly infringe upon some constitutional provision that they can be declared void. Every reasonable presumption must be indulged in and every reasonable doubt resolved in favor of constitutionality.

In re Estate of Baer, 562 P.2d 614, 616 (Utah), appeal dismissed sub nom. Baer v. Baer, 434 U.S. 805, 98 S.Ct. 35, 54 L.Ed.2d 63 (1977); see also Murray City v. Hall, 663 P.2d 1314, 1317-18 (Utah 1983) (holding that statutes “‘are endowed "with a strong presumption of validity; and that they should not be declared unconstitutional if there is any reasonable basis upon which they can be found to come within the constitutional frame work [sic]’” (quoting Greaves v. State, 528 P.2d 805, 807 (Utah 1974))). Nonetheless, when a proper challenge to the constitutionality of a given statute is made, the said statute must be examined to determine if it is unconstitutional, either on its face or as applied. See, e.g., In re Criminal Investigation, 7th Dist. Court No. CS-1, 754 P.2d 633, 640 (Utah 1988); Wells v. Children’s Aid Soc’y of Utah, 681 P.2d 199, 204 (Utah 1984); Ellis v. Social Servs. Dep’t of Church of Jesus Christ of Latter-day Saints, 615 P.2d 1250, 1255 (Utah 1980).

The statute at issue in this ease provides in part:

Court commissioners are quasi-judicial officers of courts of record and have judicial authority as provided by this section and rules of the Judicial Council.⁶

It further states:

Upon the informed consent of the defendant, the court commissioner may conduct a jury or nonjury misdemeanor trial in accordance with the law. Upon conviction, the commissioner may impose sentence and enter final judgment. The judgment entered by the commissioner shall be the final judgment of the court for all purposes, including appeal.⁷

Article VIII, section 1 of the Utah Constitution, much like article III, section 1 of the United States Constitution, provides that the judicial power of the state shall be vested in the courts. However, unlike its federal counterpart, the Utah Constitution further delineates certain requirements concerning the selection and retention of those who will exercise that judicial power. See Utah Const, art. VIII, §§ 8, 9, & 13. Thus, under state law, examination of the constitutionality of section 78-3-31 consists of two inquiries: (1) whether section 78-3-31 violates the Utah Constitution’s exclusive vesting of the state’s judicial power in article VIII courts,⁸ and (2) whether section 78-3-31 violates the Utah Constitution’s requirements for those persons exercising that judicial power in courts of record.⁹

A Constitutional Powers of Article VIII Courts

Core functions or powers of the various branches of government are clearly nondelegable under the Utah Constitution. See, e.g., Sandy City v. Salt Lake County, 827 P.2d 212, 221 (Utah 1992) (holding that legislative functions, such as powers of zoning and rezoning, cannot be delegated); State v. Gallion, 572 P.2d 683, 687 (Utah 1977) (holding that Utah Const, art. VI, § 1 limits legislature’s ability to delegate legislative powers or functions to others); In re Bridwell, 25 Utah 2d 1, 2, 474 P.2d 116, 116 (Utah 1970) (holding that Utah Supreme Court cannot delegate its duty to discipline an erring attorney to others); accord State v. Green, 793 P.2d 912, 916 (Utah Ct.App.1990) (holding that “crime definition and penalty powers are essential legislative functions that cannot constitutionally be delegated by the Utah Legislature to any other person or body”). For example, a legislator cannot appoint another person to cast his or her vote on the floor of the legislature. Although a legislator can utilize assistants for various purposes, these assistants cannot exercise the legislator’s voting power since such is a core legislative function. It is the legislator, not his or her staff, who is elected for that purpose, and it is the legislator who is accountable to the people.

Likewise, a judge cannot appoint another person to enter final judgments and orders or impose sentence. While he or she can utilize referees, court commissioners, and other assistants for various purposes, those persons cannot exercise that judge’s ultimate judicial power, for such is a nondelegable core judicial function. In courts of record, it is the judge who is selected by a precise constitutional procedure to exercise judicial power, and it is the judge, not other “quasi-judicial” officers, who is subject to the accountability provisions of the Utah Constitution.

Based on these principles, our present inquiry focuses on whether the authority delegated to the commissioner here involves core judicial power of a court of record.¹⁰ “The term ‘judicial power of courts’ is generally understood to be the power to hear and determine controversies between adverse parties and questions in litigation.” Timpanogos Planning & Water Management Agency v. Central Utah Water Conservancy Dist., 690 P.2d 562, 569 (Utah 1984) (quoting Citizens’ Club v. Welling, 88 Utah 81, 90, 27 P.2d 23, 26 (1933)). Such core judicial powers include ‘“the authority to hear and determine justiciable controversies’ ” as well as “ ‘the authority to enforce any valid judgment, decree or order.’ ” Id. (quoting Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237, 242 (1967)). Further, core judicial functions necessarily include all powers that are “necessary to protect the fundamental integrity of the judicial branch” and, as such, may not be delegated to persons other than judicial officers. Criminal Investigation, 754 P.2d at 642.

Article VIII, section 1 of the Utah Constitution states:

The judicial power of the state shall be vested in a supreme court, in a trial court of general jurisdiction known as the district court, and in such other courts as the Legislature by statute may establish. The Supreme Court, the district court, and such other courts designated by statute shall be courts of record. Courts not of record shall also be established by statute.

Thus, article VIII, section 1 specifically creates a supreme court and district courts as courts of record and gives the legislature the power to create other courts, including additional courts of record, by statute. The legislature has created circuit courts, as well as the court of appeals and juvenile courts, as additional courts of record.¹¹ The Utah Constitution also establishes the jurisdiction of the various state courts of record: article VIII, section 1 provides that district courts have general jurisdiction; article VIII, section 3 sets forth the jurisdiction of the supreme court, and article VIII, section 5 states that the jurisdiction of courts of record established by the legislature shall be provided by statute.¹² Moreover, article VUI’s explicit vesting of jurisdiction in the various courts of the state is an implicit prohibition against any attempt to vest such jurisdiction elsewhere.

B. Constitutional Requirements for Exercise of Judicial Power

The Utah Constitution specifically provides that individuals who exercise the judicial power of the state in courts of record must be selected “solely upon consideration of fitness for office without regard to any partisan political consideration,” Utah Const. art. VIII, § 8, and further dictates how those individuals are chosen.

Article VIII, section 8 provides that judicial appointments to courts of record are made by the governor from a list of names submitted by a judicial nominating commission,¹³ which appointment must then be approved by the state senate. Only upon completion of this process can the selected individual assume the office of judge of a court of record. Even then, that judge must submit to a retention election by the electorate after serving in office for three years, and on a regular basis thereafter. Utah Const, art. VIII, § 9. Furthermore, that judge is subject to review by a judicial conduct commission, which has the power to investigate complaints and recommend sanctions where appropriate. Utah Const, art. VIII, § 13. Thus, throughout their tenure, article VIII judges of courts of record remain accountable for their actions.¹⁴

In short, those persons who exercise judicial power in courts of record are subject to both careful selection and continuing review as set forth in the Utah Constitution. Any attempt by either the legislature or the judicial council to transfer or assign the power of such judges to others would plainly circumvent and violate the Utah Constitution. It would deprive the judicial nominating commission of its constitutional right to select and submit judicial nominees to the governor, it would deprive the governor' of the constitutional right to choose judges of courts of record, and it would deprive the people of the state of Utah of their constitutional right to vote on judges of courts of record in retention elections.

C. Section 78-3-31

Returning to the statute at issue, Utah Code Ann. § 78-3-81 (1992) provides for the appointment of court commissioners to exercise the judicial authority of courts of record without subjecting them to the selection and retention requirements mandated by the Utah Constitution. Specifically, that statute states:

Court commissioners are quasi-judicial officers of courts of record and have judicial authority as provided by this section and rules of the Judicial Council.¹⁵

The statute further provides:

Upon the informed consent of the defendant, the court commissioner may conduct a jury or nonjury misdemeanor trial in accordance with the law. Upon conviction, the commissioner may impose sentence and enter final judgment. The judgment entered by the commissioner shall be the final judgment of the court for all purposes, including appeal.¹⁶

Insofar as these sections purport to grant ultimate judicial power and authority to court commissioners in courts of record, such as the power to enter judgment and impose sentence in the case at bar, they violate article VIII of the Utah Constitution. This is true for the following reasons.

1. Article VIII, Section 8

Permitting court commissioners to perform core judicial functions, as section 78-3-31(l)(a) and (6)(a) purports to do, violates article VIII, section 8’s provision that all article VIII judges of courts of record must be certified by a judicial nominating commission to the governor, who then makes the appointment with the approval of the state senate. While court commissioners, as “quasi-judicial officers,” Utah Code Ann. § 78-3-31(l)(a) (1992), may perform many important functions in assistance to courts of record,¹⁷ they are not duly appointed judges and thus may not exercise core judicial functions without violating article VIII of the Utah Constitution. Court commissioners are employees of the judiciary, not duly appointed judges. There are no provisions which subject them to the constitutional checks and balances imposed upon duly appointed judges of courts of record. Similarly, while court commissioners are, under present statutory law, subject to continuing review by a judicial conduct commission, see Utah Code Ann. § 78-3-31(8)(b) (1992), they are not constitutionally subject to such review, nor are they subject to judicial retention elections that do apply to judges of courts of record. Utah Const, art. VIII, §§ 9 & 13.¹⁸

2. Separation of Powers

Permitting the legislature to grant court commissioners authority to enter final judgment and impose sentence violates the separation of powers doctrine. The dissent argues that since, under the court commissioner system, the judicial power is being delegated to persons entirely within the control of the judiciary, there is no separation of powers problem. However, their argument misses the point. By granting commissioners “judicial authority as provided by this section," Utah Code Ann. § 78-3-31(l)(a) (1992) (emphasis added), the legislature has assumed the right to vest commissioners with judicial power and define the bounds of commissioner authority. The very attempt by the legislature to designate an individual other than a duly appointed judge to wield ultimate judicial power is, in and of itself, a violation of the separation of powers doctrine. Oversight of that individual by the judiciary is irrelevant because of the constitutional requirement that only duly appointed judges exercise ultimate judicial power in courts of record.¹⁹

3. Subject Matter Jurisdiction

Subject matter jurisdiction is “the authority and competency of the court to decide the case.” Department of Social Servs. v. Vijil, 784 P.2d 1130, 1132 (Utah 1989) (emphasis added) (citing 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (1969)). The jurisdiction of circuit courts is set forth in Utah Code Ann. §§ 78-4 — 5 and -7 (1992 & Supp.1993) and clearly includes the power and authority to decide the matter at issue in the present case. Thus, the third circuit court had jurisdiction in this case.

However, that does not resolve the question of whether the individual exercising that court’s jurisdiction had the authority to do so. Although the language of article VIII, section 5 grants the legislature authority to bestow jurisdiction on statutorily created courts, City of Monticello v. Christensen, 788 P.2d 513, 518 (Utah), cert. denied, 498 U.S. 841, 111 S.Ct. 120, 112 L.Ed.2d 89 (1990), it does not give the legislature the discretion to determine who has the authority to exercise that jurisdiction. Thus, while the circuit court clearly had jurisdiction to decide this matter, it does not necessarily follow that the circuit court commissioner had authority to enter judgment and impose sentence in her capacity as a circuit court commissioner.

By enacting section 78 — 3—31(l)(a) and (6)(a), the legislature has attempted to grant authority to enter final judgments and impose sentence in courts of record to nonjudg-es, in violation of article VIII of the Utah Constitution. Such a grant is plainly unconstitutional because, pursuant to article VIII, only judges may enter judgments and impose sentence in courts of record since they are the only judicial officers constitutionally appointed to perform such functions. Moreover, as stated in Justice Howe’s concurring opinion, the fact that Ohms signed a waiver and consent form is irrelevant to our analysis because “it [was] not within his power to invest by a ‘waiver’ the right to perform core judicial duties in persons to whom that right has not been granted by [article VIII,] section 4.” Accordingly, we conclude that section 78-3-31 violates the Utah Constitution insofar as it attempts to vest authority to enter final judgments and impose sentence in criminal misdemeanor cases, which are core judicial functions, upon persons other than article VIII judges.²⁰

III. DE FACTO AUTHORITY

However, because the circuit court to which the commissioner was assigned had jurisdiction to decide this matter, we must address Commissioner Peuler’s authority to hear this case as a “judge de facto” of the third circuit court.

A judge de facto is defined as:

One who holds and exercises the office of a judge under color of lawful authority and by a title valid on its face, though he has not full right to the office, as where he was appointed under an unconstitutional statute, or by an usurper of the appointing power, or has not taken the oath of office.

Black’s Law Dictionary 841 (6th ed. 1990); see also State ex rel. Farmer v. Edmonds Mun. Court, 27 Wash.App. 762, 621 P.2d 171, 175 (1980) (holding that when a judicial office “is created by legislative act or municipal ordinance ... the office is regarded as a de facto office until the act or ordinance is declared invalid”); accord O’Neill v. O’Neill, 420 So.2d 261, 263 (Ala.Civ.App.), affd sub nom. Ex Parte O’Neill, 420 So.2d 264 (Ala.1982); Mitchell Mill Remnant Corp. v. Long, 223 Ky. 242, 3 S.W.2d 639, 639 (1928); Sheldon v. Green, 182 Okla. 208, 77 P.2d 114, 115-16 (1938).

This court has defined an officer de facto as follows:

“An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised,

First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to' submit to or invoke his action, supposing him to be the officer he assumed to be.

Second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like.

Third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public.

Fourth, under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such.”

Vance v. Fordham, 671 P.2d 124, 131 n. 5 (Utah 1983) (emphasis added) (quoting State v. Carroll, 38 Conn. 449, 471-72 (1871)), cert. denied sub nom. Vance v. Utah, 465 U.S. 1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984); see also State v. Menzies, 845 P.2d 220, 226 (Utah 1992) (stating that under de facto officials doctrine, persons “may be considered de facto officials if they assume official authority under color of a valid appointment and public acquiescence in the authority”); Hussey v. Smith, 99 U.S. 20, 24, 25 L.Ed. 314 (1878) (stating that “[a]n officer de facto is not a mere usurper, nor yet within the sanction of law, but one who, colore officii, claims and assumes to exercise official authority, is reputed to have it, and the community acquiesces accordingly”); accord 46 Am.Jur.2d Judges § 243 (1969). Although Vance did not specifically address judges de facto, but rather a member of a committee recommending revocation of the license of a doctor who lacked statutory qualification, the court nonetheless stated in broad language that when an officer lacks authority to perform the duties he or she has performed but acts as an officer de facto, the action taken by that officer is valid. Vance, 671 P.2d at 130-31.

Also of note is this court’s decision in In re Thompson’s Estate, 72 Utah 17, 269 P. 103 (1927), which rejected a petition for rehearing that objected to a district judge’s sitting on the state supreme court following a justice’s death but before a new justice was named and sworn in. The court held that the district judge had, at least, de facto authority to sit with the supreme court, given that (1) the district judge had authority in other instances to sit with the court, and (2) the parties had knowledge of and did not object to the district judge’s participation. Id. at 87, 269 P. at 128.

In light of the above authority, it is clear that although the statute granting commissioners authority to enter final judgments and impose sentence must be declared unconstitutional, actions taken by commissioners in the past are not subject to challenge since court commissioners in those cases acted with de facto authority. See, e.g., Farmer, 621 P.2d at 175 (holding that judgments rendered by courts not having authority to enter such are not subject to collateral attack because judges entering those judgments were de facto officers).

However, it would be unconscionable to deprive Ohms, who has sustained the burden of attacking an unconstitutional statute, of the fruits of victory, thereby discouraging challenges to statutes of questionable validity. See Rio Algom Corp. v. San Juan County, 681 P.2d 184, 196 (Utah 1984). In cases like the one at bar, “considerations of judicial integrity require us to extend the benefit of our decision to [the] petitioner.” Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 914 (Utah 1993). Accordingly, we do not apply the de facto authority doctrine to Ohms’ ease. See Rio Algom, Corp., 681 P.2d at 196.

IV. CONCLUSION

In conclusion, we hold that Utah Code Ann. § 78-3-31 (1992) is unconstitutional to the extent that it purports to vest ultimate judicial power of courts of record in persons who have not been duly appointed as article VIII judges pursuant to the requirements of the Utah Constitution. Specifically, we hold that section 78-3-31 violates the Utah Constitution by granting commissioners the ultimate judicial power of entering final judgments and imposing sentence in criminal misdemeanor cases. Ohms’ conviction is reversed, and this matter is remanded for further proceedings consistent with this opinion.

STEWART, Associate C.J., concurs.

1 . The waiver and consent form signed by Ohms stated:

As defendant in the above entitled case, I acknowledge my right for a trial before a Circuit Court Judge with or without a jury. I hereby waive this right and give consent for my case to be tried and for final judgment to be entered by a Court Commissioner.

2 . Commissioner Peuler held that the battery charge had not been proved beyond a reasonable doubt and therefore dismissed that charge.

3 . Rule 43(a) provides, “In any case over which the Court of Appeals has original appellate jurisdiction, the court may, upon the affirmative vote of four judges of the court, certify a case for immediate transfer to the Supreme Court for determination." Utah R.App.P. 43(a).

4 . Because we dispose of this case on the basis of the circuit court commissioner’s lack of authority to enter judgment and impose sentence, we do not address Ohms’ sufficiency of the evidence claim.

5 . The dissent incorrectly asserts that the federal cases relied upon in Holm are “stale and outdated.” This is simply not the case. While the cases cited in Holm pre-date the 1979 amendment of the Federal Magistrates Act, 28 U.S.C. §§ 631-639, they still stand for the valid legal principle that absent consent of the parties, magistrates cannot enter final judgments in civil cases. However, the differences between the Utah commissioner system and the federal magistrate system nonetheless compel our nonreliance on federal case law in the present case. See infra note 18.

6 . Utah Code Ann. § 78-3-31(l)(a) (1992) (emphasis added).

7 . Utah Code Ann. § 78-3-31(6)(a) (1992). Inasmuch as (1) commissioners are quasi-judicial employees of courts of record, as opposed to courts not of record, and (2) the commissioner in this case, in entering judgment and imposing sentence, intended to act as and for a court of record, i.e., the circuit court, this opinion addresses only the actions of commissioners in courts of record.

8 . The dissent refers to this as the "institutional” dimension of judicial power.

9 .The dissent states that the reasoning behind the majority opinion is that "[t]he judicial power is a personal, not an institutional, power.” This is not true. The majority opinion does not adopt such a “sacred vessel” theory, as the dissent calls it, but is simply based on the constitutional provisions concerning where the judicial power of the state lies and who is qualified to exercise that power. The Utah Constitution expressly provides that the judicial power is in the courts and then clarifies that only article VIII judges can exercise that judicial power in courts of record.

10 . The dissent asserts that according to our opinion, "each and every act denominated as 'judicial,' " an expression the dissent fails to define, "must necessarily be performed by an article VIII judge." This is not so. Our opinion’s breadth is expressly limited to those powers that are core judicial functions of courts of record.

11 . The Utah Constitution also gives the legislature the power to create courts not of record, which has resulted in the legislature’s creation of the "justice court” system. See Utah Code Ann. §§ 78-5-101 to -139 (1992 & Supp.1993). The requirements outlined in our opinion do not apply to justice courts inasmuch as they are courts not of record duly created by the legislature. Article VIII, section 11 of the Utah Constitution specifies that the manner of selection, term, and qualifications of judges of courts not of record shall be provided by statute, and sections 78-5-101 to -139 delineate these criteria. However, if a party is dissatisfied with the justice court’s decision, that party is entitled to a de novo proceeding before the circuit court of the county. See Utah Code Ann. § 78-5-120 (1992); South Salt Lake v. Burton, 718 P.2d 405, 406 (Utah 1986). At any rate, both the Utah Constitution's and the Utah Code’s provisions regarding courts not of record are immaterial to the case at bar because the legislature, by the very language of the statute creating court commissioners, did not create a new court, but merely created "quasi-judicial" officers of already existing courts of record. See Utah Code Ann. § 78 — 3—31 (1 )(a) (1992). Similarly, provisions in the Utah Constitution and the Utah Code governing judges pro tempore are not controlling here for the reasons set forth in Justice Howe’s concurring opinion.

12 . In accordance with article VIII, section 5, Utah Code Ann. §§ 78-4-5 and -7 (1992 & Supp. 1993) delineate the jurisdiction of the circuit courts, which includes the power and authority to decide the matter at issue in the present case.

13 . Judicial nominating commissions are constitutionally created bodies, the composition of which is provided for by the legislature. Utah Const, art. VIII, § 8.

14 . The dissent accuses the majority of treating article VIII as “an undifferentiated grab bag of constitutional provisions.” To the contrary, our reading of article VIII treats the article as a cohesive whole. It is the dissent that is trying to "grab bag” one provision, namely section 1, and interpret it separate and apart from the rest of the article.

Moreover, because the language of article VIII is plain, it is improper to explore its legislative history, as the dissent would have us do. "The rule which should be applied is that laws, and especially foundational laws such as our Constitution, should be interpreted and applied according to the plain import of their language as it would be understood by persons of ordinary intelligence and experience.” State v. Phillips, 540 P.2d 936, 938 (Utah 1975), disavowed on other grounds, State v. Taylor, 664 P.2d 439, 448 n. 4 (Utah 1983); see also University of Utah v. Board of Examiners, 4 Utah 2d 408, 428, 295 P.2d 348, 361 (1956) (holding that if constitutional provision is clear, “then extraneous or contemporaneous construction may not be resorted to”); Society of Separationists, Inc. v. Whitehead, 870 P.2d 916, 944 (Utah 1993) (Stewart, J., dissenting) (stating that because this court is sworn to uphold language of constitution, we must enforce plain and unambiguous language contained therein); cf. Brinkerhoff v. Forsyth, 779 P.2d 685, 686 (Utah 1989) (“Where statutory language is plain and unambiguous, this Court will not look beyond the same to divine legislative intent.”). The reason for such a rule is clear. It prevents judges from “finding" an ambiguity in even the most plain language of a constitutional or statutory provision as an excuse to search the legislative history in an attempt to justify an interpretation they prefer. The dissent’s laborious investigation into the history of prior versions of article VIII is a prime example of such an attempt, as that information is of no analytical assistance in interpreting the plain language of current constitutional provisions.

15 .Utah Code Ann. § 78-3-31(l)(a) (1992) (emphasis added).

16 . Utah Code Ann. § 78-3-3l(6)(a) (1992),

17 . As adjuncts of the court to which they are appointed, court commissioners are authorized to exercise certain functions to assist the court in the exercise of its core judicial powers. For example, Utah Code Ann. § 78-3-31(9) (1992) provides that the judicial council establish the types of orders and relief commissioners may recommend. Such provisions are constitutionally sound, since ultimate decision making remains with the judge.

The dissent claims that our decision today is contrary to almost thirty years of historical support for the use of commissioners. This is simply not true. Court commissioners have provided a valuable service to the judiciary for over thirty years pursuant to constitutionally valid statutes. They have conducted fact-finding hearings, held pretrial conferences, made recommendations to judges, and provided counseling and other worthwhile functions. However, over that thirty-year period, commissioners were never allowed to perform ultimate or core judicial functions such as entering final orders and judgments or imposing sentence. In every case, commissioner actions led to recommendations which resulted in final review and signature by a judge. It was not until April 1990 that the current version of section 78-3-31 became effective, giving rise to Holm v. Smilowitz, 840 P.2d 157 (Utah Ct.App.1992), and the present case.

For example, prior to the 1990 amendment of that section, the Utah Code section addressing mental health commissioners provided:

In any case in which the court refers an application to the commissioner, the commissioner shall promptly cause the proposed patient to be examined and, on the basis of that examination, shall either recommend dismissal of the application or hold a hearing, as provided in this part, and make findings of fact and recommendations to the court regarding the order for involuntary commitment of the proposed patient.

Utah Code Ann. § 62A-12-233(2) (1989) (emphasis added). Thus, prior to April 1990, mental health commissioners had authority to hold hearings and make findings and recommendations to the court, duties which our decision today does not impact, but they did not, and constitutionally cannot, have authority to sign final court commitment orders.

Likewise, with respect to domestic relations, prior to the ill-advised 1990 amendment of section 78-3-31 which granted them the power to enter final judgments and orders, court commissioners had the authority to "require the personal appearance of parties and their counsel," "require the filing of financial disclosure statements and proposed settlement forms by the parties,” "obtain child evaluations,” "make recommendations to the court regarding any issue in domestic relations and spouse abuse cases,” "keep records, compile statistics, and make reports as the courts may direct,” and require counsel to file certain certificates with the pleadings. Utah Code Ann. § 30-3-4.2 (1989) (emphasis added). Further, court commissioners had the duty to "review all pleadings in each case," "certify all cases directly to the court which [did] not appear to require further intervention by the commissioner,” "conduct hearings with parties and their counsel present ... for the purpose of submitting recommendations to the court,” "provide any other information or assistance to the parties as appropriate,” "coordinate information with the juvenile court,” "refer appropriate cases to mediation programs," and "adjudicate default divorces." Utah Code Ann. § 30-3-4.3 (1989) (emphasis added). With the possible exception of adjudicating default divorces, which is not before the court today, all of these functions may still be properly exercised by commissioners. Thus, our decision in no way affects the authority and functions that court commissioners have enjoyed for over thirty years and will undoubtedly continue to enjoy in the future.

18 . We recognize that in the federal system, various circuit courts have found an arguably similar provision involving magistrates constitutional. See, e.g., United States v. Ferguson, 778 F.2d 1017 (4th Cir. 1985), cert. denied sub nom. Wilson v. United States, 476 U.S. 1123, 106 S.Ct. 1990, 90 L.Ed.2d 671 (1986); United States v. Dobey, 751 F.2d 1140 (10th Cir.), cert. denied, 474 U.S. 818, 106 S.Ct. 63, 88 L.Ed.2d 52 (1985); United States v. Byers, 730 F.2d 568 (9th Cir.), cert. denied, 469 U.S. 934, 105 S.Ct. 333, 83 L.Ed.2d 270 (1984). However, the differences between Utah’s judicial system and the federal system dictate a different result here. First, the Utah judiciary, unlike its federal counterpart, is subject to numerous procedures which provide for certification by a judicial nominating commission, Utah Const, art. VIII, § 8, retention elections, Utah Const, art. VIII, § 9, and review by a judicial conduct commission, which has the power to investigate complaints and recommend sanctions where appropriate. Utah Const, art. VIII, § 13. Second, in criminal matters, the federal system requires not only that the defendant consent to the magistrate trying the case, but that the prosecution and the district court consent as well. Under the Utah system, neither the consent of the State nor the consent of the trial court is required in order to transfer a case to a commissioner. Third, under the federal magistrate system, a defendant must appeal the matter heard by the magistrate to the district court prior to appealing to a United States court of appeals. 18 U.S.C. § 3402. This procedure allows the district court to maintain control over the magistrate and guarantees that the appeal to the United States court of appeals has been reviewed and ruled on by a district court judge, neither of which is provided for under the Utah commissioner system. Fourth, the federal cases which hold that magistrates may enter judgment and pass sentence in criminal misdemeanor cases with the consent of the defendant uniformly rely on the fact that the district court retains control over the magistrate, control which is not present under the Utah commissioner system. See Ferguson, 778 F.2d at 1019; Dobey, 751 F.2d at 1142; Byers, 730 F.2d at 570. Lastly, federal statutes also support the proposition that a federal district judge must remain ultimately responsible over matters heard by magistrates, responsibility which is not provided for under section 78-3-31. See, e.g., 28 U.S.C. § 636(b)(1)(A).

Furthermore, the dissent's argument, based on Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc., 725 F.2d 537 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984), that this right is one personal to the defendant and therefore subject to waiver plainly ignores “the people's" right to have cases tried in courts of record before article VIII judges who are subject to retention elections.

19 . The dissent asserts that since section 78-3-31 grants court commissioners ultimate judicial authority only in misdemeanor cases with consent of the defendant, it is constitutional. However, the broad language of section 78-3-31(l)(a) that court commissioners "have judicial authority as provided by this section and rules of the Judicial Council,” Utah Code Ann. § 78 — 3—31(l)(a) (1992) (emphasis added), if valid, would allow either the legislature or the judicial council to expand the authority of court commissioners at will. There would be nothing to prevent the legislature from amending section 78-3-31 to utilize court commissioners to enter final judgments in any type of case, even capital minder cases, or to adjudicate nonconsent cases. Although the dissent argues that such a danger is unlikely, the purpose of a constitution is to assure that it never happens.

20 . We also note that our conclusion is supported by other states with commissioner systems. See, e.g., State ex rel. Smith v. Starke Circuit Court, 275 Ind. 483, 417 N.E.2d 1115, 1121-23 (1981); K.C. v. State, 771 P.2d 774, 777-78 (Wyo.1989). Additionally, other jurisdictions have determined that judicial power is to be exercised solely by judges and thus cannot be delegated to any other group or person. See, e.g., In re Santa Cruz, 8 Ariz.App. 349, 446 P.2d 253, 255 (1968); C.C.C. v. District Court for Fourth Judicial Dist., 188 Colo. 437, 535 P.2d 1117, 1119 (1975); General Motors Corp. v. Erves, 399 Mich. 241, 249 N.W.2d 41, 49 (1976); Lewis v. Texas Dep’t of Pub. Safety, 407 S.W.2d 855, 856 (Tex.Civ.App.1966).

For example, the Wyoming Supreme Court has specifically held that "[t]he district court cannot delegate the power to hear, try, or determine a case to a court commissioner.” K.C., 771 P.2d at 778. The reason for such a rule is plain: “Simply put, '[g]eneral court commissioner responsibilities as-a hearing examiner cannot be outspread, absent expansion of constitutional authorization, to include power of decisional finality within present constitutional terms. The differentiation is between adjunct fact finding and plenary judicial responsibility.’" Id. (quoting Foster v. Foster, 768 P.2d 1038, 1042 (Wyo.1989) (Urbigkit, J., specially concurring)).

Similarly, the Indiana Supreme Court has stated that the state legislature is forbidden to vest commissioners with judicial duties that, under the Indiana constitution, only judges are allowed to exercise. Smith, 417 N.E.2d at 1121-23. "'A master commissioner is not a court, and judicial duties which courts only can exercise, can not be conferred upon him.’” Id. at 1121 (quoting Shoultz v. McPheeters, 79 Ind. 373, 376 (1881)); see also Rivera v. State, 601 N.E.2d 445, 446 (Ind.Ct.App. 1992) (holding that "a commissioner acts as an instrumentality to inform and assist the court; only the court has authority to make final orders or judgments”).