In Re State in the Interest of Woodward , 14 Utah 2d 336 ( 1963 )

HENRIOD, Chief Justice.

Appeal from a juvenile court judgment committing a minor to the Industrial 'School conditionally. Appellant urged that the judgment was not supported by sufficient evidence, but we cannot agree, so that the judgment is affirmed.

Appellant attacks the constitutionality of Secs. 55-10-1 and 55-10-3, Utah Code Annotated 1953, as amended, as being violative of Art. V, Sec. 1, Utah Constitution.¹ Amicus curiae supports appellant’s attack, but seeks to have the court canvass the constitutionality of a number of other sections, on the same and different constitutional grounds. We review only those points raised by the litigants on appeal and not those urged by strangers thereto; hence we will review only the two sections called to our attention by the appellant.² Our conclusions do not affect the status of the juvenile court, its jurisdiction over the subject matter or the validity of its judgment.

There is no question as to the status of tlie juvenile court: It is a court of law and an integral part of the judicial branch of government in our tripartite system, as is the Supreme District, and inferior courts sanctioned by the legislature, and the Justice Courts. This conclusion seems to be shared by the respondent itself when it concedes in its brief that:

“Art. VIII, sec. 1 of the Utah Constitution provides for the creation of inferior courts as may be established by law by the legislature” and that “the juvenile court is such an inferior court. Salt Lake County v. Salt Lake City.” ³

The juvenile court tries cases,⁴ renders decisions,⁵ jails adults,⁶ confines minors,⁷ grants clemency or probation,⁸ appoints referees,⁹ receives and hears complaints and petitions,¹⁰ issues process,¹¹ appoints process servers,¹² can hold persons in contempt,¹³ issues search and seizure warrants,¹⁴ determines when and where the court sits,¹⁵ is subject to an appeal of its decisions to the Supreme Court,¹⁶ and in some areas to the District Court,¹⁷ convicts and penalizes adults,¹⁸ in the same manner as is done in Justice’s Court,¹⁹ is subject to the same type of procedure and practice, payment of witness fees, summoning of and qualifying jurors and accounting for fines, forfeitures and penalties as are Justice’s Court,²⁰ arranges bonds,²¹ forfeits them,²² and performs other strictly judicial functions.

These matters are those generally reserved to the judiciary. Any legislative sanction looking toward their invasion is offensive to constitutional, traditional and historical precepts.

Unequivocally and without ambiguity, Sec. 55 — 10—1 says “The * * * commission shall have the general control and supervision over juvenile courts and probation officers.” The language is plain, simple unprovisional, and unqualified. It is plenary. It does not say “provided, however” or “except as herein restricted.” Distinction, grammatical legerdemain or judicial legislation cannot change this clear interdiction that offends against separation of power concepts. Respondent says that “it is obvious that the general control and supervision mentioned in sec. 55 — 10—1 * * * is only general administrative assistance and not an exercise of judicial power.” Difficulty with this assertion is that the section’s language does not say so. Such contention is unrealistic in the light of practicality and common experience and runs afoul of the plain wording of the section, which is not chameleonic depending on varying philosophies as to whether a welfare commission should or should not noose the courts. The question is not a question of now-you-see-it-now-you-don’t. You see it in plain English, and to say “control and supervision over juvenile courts” has no plenary connotation, simply is to be myopic.

The bona fides of present commission personnel, or any talk about past, present or future amours between the two branches of government, does not change the definition of “control,” nor take the word out of the section, nor is it an insurance policy against future rifts as to kind or quantum of power reserved to each, nor can it resolve the differences and misgivings of judicial and social thinkers as to where the fountain of power lies or into which channel the power flows, — that of the legislative, executive or judicial branch.

After concluding that that part of the section purporting to delegate control and supervision “over the juvenile courts” offends the constitution, there would seem to be no constitutional objection to the balance of the language, and that such can be separable, as we have held before,²³ but it may be viewed with interest by the legislature, as well as the Welfare Commission as to the source of funds with which to pay salaries and operational expenses of juvenile courts.

Having concluded that the juvenile court definitely is an integral part of the judicial branch, it would seem inimical to common sense and to Art. VIII, sec. 11, Utah Constitution ²⁴ having to do with removal of judges, to sanction their removal by an administrative agency of the executive branch, (as was attempted in Sec. 55-10-3). Judges, in the constitutional sense, as is the case with a juvenile court judge, are amenable only to the constitutional sanctions for removal. Consequently, we conclude that the words “provided, that the judge may be removed by the commission for cause" represent an effort to create an unconstitutional grant of power, — hence invalid. The remaining language in 55-10-3, U.C.A.1953, as amended, is subject to the same observations, conclusion and authority contained in the next preceding paragraph.

McDonough and callister, jj., concur.

1 . “The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exorcise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the eases herein expressly directed or permitted.”

2 . There may be some doubt as to whether we should review the two points on appeal having to do with the sections mentioned, supra, since they were raised on appeal for the first time. If what we say in this opinion would jeopardize the liberty of appellant, which it will not, so far as the two sections are concerned, there would be authority for raising a constitutional issue for the first time on appeal (3 Am.Jur. 63, sec. 293, Const. Law). Another question could be posed as to whether the rule as to appellate review would apply to many matters handled by the juvenile court, which may not be real adversary proceedings, where no legal counsel may be present to preserve rights in anticipation of a possible appeal. Any such doubt is resolved in this partic-wlar ease in favor of appellant, particularly in view of the considerable public interest and concern engendered.

3 . 42 Utah 548, 134 P. 560.

4 . 55-10-30.

5 . 55-10-30.

6 . 55-10-51.

7 . 55-10-30.

8 . 55-10-57.

9 . 55-10-10.

10 . 55-10-14.

11 . 55-10-15.

12 . 55-10-17.

13 . 55-10-18.

14 . 55-10-23.

15 . 55-10-24.

16 . 55-10-34.

17 . 55-10-61.

18 . 55-10-51.

19 . 55-10-54.

20 . 55-10-55.

21 . 55-10-58.

22 . 55-10-60.

23 . Steed v. Harvey, 18 Utah 367, 54 P. 1011 (1898).

24 . “Judges may bo removed from office by the concurrent vote of both houses of the legislature, each voting separately