The problem confronted here involves the validity of the law under which most of the presently serving judiciary of our state has been selected and/or elected. Each of the Justices of this Court presents his views thereon. Inasmuch as my analysis and rationale is somewhat different from that of my colleagues, I likewise present my views.
The purpose of the 1944 amendment to Article VIII, Sec. 3 of our Constitution was to provide a foundation for a change from the previous method of choosing judges. In doing so it stated two main objectives, which are interrelated, but which can also be looked at separately. The main objective was to provide for a non-partisan method, as reflected in the language that the selection shall be "without regard to any partisan political considerations"; and the other was that the "selection shall be based solely upon consideration of fitness for office."
As noted in the other opinions, it is not open to question that the main objective, that of creating a non-partisan judiciary, has been achieved in each of the legislative *Page 150 enactments implementing that constitutional amendment since its adoption.1 The matter of critical concern is whether the method of choosing a judge as provided in Sec. 20-1-7 sufficiently meets the second mandate that: the selection shall be based solely upon consideration of fitness for the office. The views of our dissenting colleagues pointedly indicate that this is the aspect of the law in which there is possible vulnerability; and concerning which it perhaps should be recognized that reasonable minds may differ. I therefore acknowledge that the question raised deserves forthright and logical treatment.
In addition to what has been said by my colleagues, I think there are further observations that have a legitimate bearing on the question whether the procedure set forth in Sec. 20-1-7 complies with the requirement that the selection of the judge shall be based solely upon consideration of fitness for the office, or whether it so wholly fails in that objective that it must be declared unconstitutional.
The most important of these additional observations is that our constitution itself sets forth the qualifications for the office of District Judge. Article VIII, Sec. 5, states:
. . . Each judge of a district court shall be at least twenty-five years of age, an active member of the bar in good standing, learned in the law, a resident of the state of Utah three years next preceding his selection, and shall reside in the district for which he shall be selected.
It is not entirely without reason to argue that inasmuch as the constitution thus prescribes the qualifications, no further refinements thereon are necessary or justified; and that if a candidate meets those requirements he should be deemed to be qualified for that office. To be considered in connection with that thought is the fact that in order to become "an active member of the bar in good standing" a person must have been investigated as to his integrity and moral character, and examined as to his learning in the law.
Coupled with the foregoing is the fact that the candidate must run for the office at the earliest opportunity, i.e., at the next general election, and thus have public approval, which is an additional assurance of selection on the basis of fitness for office. In that regard, it should be observed that defendant Wilkinson's position was that his name should be placed on the November 7th ballot for public approval or disapproval of his selection to the judiciary; and that if so approved, he would be sworn in January 1, 1979. I think that position was correct because, although not expressly so stated in the statute, this procedure would comport with the objective: that the selection of judges should be on the basis of fitness for office.
Even though this case involves the validity and operation of the statute referred to as it affects the judiciary generally, the rights of defendant Homer Wilkinson himself should not be lost sight of entirely. As a member of the Bar in good standing, he had the right to assume that he had the qualifications to file and run for the office of District Judge. It seems manifestly unfair that some totally unexpected and fortuitous event should so operate as to deprive him of that opportunity.
My final observation is that all of what has been said in this and other opinions in this matter should be considered in the light of certain fundamental propositions relating to consideration of the constitutionality of statutes. The legislature of a sovereign state has all powers of government, including that of providing methods for election of public officers, except only as expressly limited by the state constitution;2 and the courts should exercise restraint in intruding into the legislative prerogative.3 Correlated to the foregoing is another foundational principle: that legislative enactments carry a strong presumption of constitutionality *Page 151 and the court should not declare otherwise unless the necessity is impelled because it appears clearly that there is irreconcilable conflict between the enactment and some constitutional mandate.4
On the basis of what has been said above, I agree that the judicial selection act should not be declared unconstitutional; and it is my opinion that the defendant Homer F. Wilkinson is entitled to be certified as a District Judge to serve until the next general election.