(concurring and dissenting):
I concur with part I of the majority decision, but dissent from part II because I am persuaded that the statutory scheme under examination results in a violation of the concept of equal protection guaranteed by the uniform operation of the laws provision of the Utah Constitution.1
“Whether a statute meets equal protection standards depends in the first instance upon the objectives of the statute and whether the classifications established provide a reasonable basis for promoting those objectives.” Malan v. Lewis, 693 P.2d 661, 670 (Utah 1984).
Article I, section 24 protects against two types of discrimination. First, a law must apply equally to all persons within a class. Second, the statutory classifications and the different treatment given the classes must be based on differences that have a reasonable tendency to further the objectives of the statute.
*408Id. (citations omitted). We recently described the analytic process in Blue Cross & Blue Shield v. State of Utah, 779 P.2d 634 (Utah 1989):
Article I, section 24 of the Utah Constitution commands that “[a]ll laws of a general nature shall have uniform operation.” Utah Const. art. I, § 24. The concept underlying this provision is “the settled concern of the law that the legislature be restrained from the fundamentally unfair practice” of classifying persons in such a manner that those who are similarly situated with respect to the purpose of a law are treated differently by that law, to the detriment of some of those so classified. In scrutinizing a legislative measure under article I, § 24, we must determine whether the classification is reasonable, whether the objectives of the legislative action are legitimate, and whether there is a reasonable relationship between the classification and the legislative purposes.
Id. at 637 (citations omitted).
The class created by the statute in question is not limited to juveniles against whom the prosecutor has filed an information. Rather, all juveniles over sixteen named in petitions alleging certain crimes (criminal homicide, aggravated robbery, forcible sodomy, aggravated arson, aggravated sexual abuse of a child, aggravated sexual assault, aggravated burglary, or aggravated kidnapping) constitute the initial class. The class is then subdivided by the statute into those over whom jurisdiction is retained by the juvenile court and those against whom “an indictment on the charge is returned by the grand jury or a criminal information is filed by the county attorney.” As to the second subclass, the juvenile court is automatically “divested of jurisdiction.” Utah Code Ann. § 78-3a-25(6) (1987).
Those juveniles against whom indictments or informations are filed are indistinguishable under the statute from those who remain in the jurisdiction of the juvenile court, with all of the attendant benefits the latter disposition implies. While it is true, as the majority observes, that there is no right to treatment as a juvenile, that does not permit arbitrary and irrational statutory divisions between identically situated juveniles.
The differences in treatment under the statutory system at issue here are significant. In Utah, one of three things can happen to a person between the ages of sixteen and eighteen alleged to have committed any of the offenses enumerated in section 78-3a-25(6). First, the person may be left in the juvenile system. If this occurs, the prosecutor may not proceed in the adult system against such a juvenile and the juvenile will therefore be subject only to the relatively lenient procedures of the juvenile court. See Utah Code Ann. §§ 78-3a-22, -23, -24, -29, -30, -33, -35 (1987). Proceedings in juvenile cases are regarded as civil proceedings, with the juvenile court able to exercise equitable powers. Utah Code Ann. § 78-3a-44(1) (1987). Furthermore, a juvenile kept in the juvenile court system who is adjudged in need of incarceration is committed to the Division of Youth Correction, not to the state prison system. Any juvenile offender who has been committed to a secure facility under the direction of the Division of Youth Corrections must be released from that facility when he attains the age of twenty-one or sooner if he is paroled or discharged. Utah Code Ann. § 62A-7-108(1) (Supp.1988). See generally Utah Code Ann. tit. 62A, ch. 7.
Second, the person may be charged by petition in the juvenile court under section 78-3a-25(1). In that case, the prosecutor may seek a certification hearing. At the certification hearing, the juvenile court is required to consider all of the factors enumerated in section 78-3a-25(2). Any of the factors enumerated in that subsection could be grounds for the juvenile court to retain jurisdiction over the juvenile and keep that juvenile in the juvenile system. Furthermore, at the certification hearing, all of the rights guaranteed by section 78-3a-25(5) would inure to the juvenile.
Finally, the juvenile may be charged by information or grand jury indictment directly in the adult system at the sole discre*409tion of the prosecutor in the case. In that situation, the juvenile court is divested of jurisdiction and the only involvement of the juvenile court comes if the juvenile requests that a recall hearing be held.
The purposes of the Juvenile Courts Act, namely to serve the welfare of the child and the best interest of the state, particularly the protection of the public against juvenile crime and violence are legitimate state objectives. Utah Code Ann. § 78-3a-1 (1987). The majority correctly observes that the legislature was justified in believing that permitting certain juvenile offenders to be prosecuted as adults was necessary and reasonable. The problem arises in the arbitrary distinction made between some violent juvenile offenders charged with specific offenses against whom a grand jury indictment is successfully sought or an information filed and other violent offenders charged with those same offenses who are left in the juvenile system and still others charged with the same offenses for whom a waiver of jurisdiction is sought pursuant to section 78-3a-25(2). I do not see how these distinctions further the legitimate state objectives of the Juvenile Courts Act. Nothing in the statute suggests any basis, legitimate or otherwise, for the differences in treatment between juvenile offenders assigned to any of the different possible statutory paths.
For the juvenile, the consequences of the statutory path to which he or she is consigned are enormous. Those consequences include the allocation of the burden of proof, the statutory standards to be applied, and even the availability of a hearing on the disposition-track issue. Furthermore, the sentencing options after conviction and the location and length of any incarceration are very different in the adult and the juvenile systems.
This is not a traditional “prosecutorial discretion” case; it is an unusual case in which the statutory scheme itself takes one class of persons in identical circumstances and subdivides it into subclasses indistinguishable from one another. There is no basis for the subdivision except the prosecutor’s arbitrary and standardless choice between filing options for the same criminal charges. This is not a classic “charging” option where the prosecutor decides which criminal statute best suits the circumstances of the crime and the offender. Nor is it a plea-bargaining option or a sentencing or diversion procedure, all of which entail court supervision. It is an option which creates two parallel but unequal disposition tracks for the same statutory class of offenders but permits assignments to one or the other of the tracks without a rational basis. Although it is the prosecutor’s choice of where to file that triggers the arbitrary operation of the statute, the capriciousness is in the statute itself. The juveniles who end up in district court are statutorily indistinguishable from those who remain in juvenile court.
While a number of cases from other jurisdictions have upheld similar statutes against constitutional claims (maj. op. at note 22), each one of those cases is in some way distinguishable from the current case.2 *410None of the cases clearly appears to involve the unequal, multiple-choice statutory process we have here, which seems to be unique to Utah. Rather they involve statutes which treat all similarly situated juveniles alike. The prosecutorial discretion discussed in the majority of these cases is discretion to charge or not to charge a specific offense that will uniformly trigger the differential statutory treatment. All juveniles charged with the same offense are treated alike by these statutes.
The distinctions between the type of case referred to above and the instant case are critical. Jones v. State, 654 P.2d 1080 (Okla.Crim.App.), for example, is a typical prosecutorial discretion case. That opinion discusses prosecutorial discretion at length and with approval. But the Jones court was dealing with discretion to choose what offense to charge, a choice traditionally permitted the prosecution. The statute at issue in Jones provided that a sixteen- or seventeen-year-old who was charged with an enumerated felony “shall be considered as an adult," so that, once charged, all juveniles were treated alike. 10 Okla.Stat. tit. 10, § 1104.2 (1981). Under the Utah statute, by way of contrast, identically charged juveniles may be treated entirely differently and unequally.
In Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the United States Supreme Court held that the determination of whether to transfer a child from the juvenile court to the criminal process of the adult court is a “critically important” proceeding, that it must satisfy basic requirements of due process and fairness, and that it is incumbent on the juvenile court, after a hearing, to accompany a waiver of jurisdiction with a statement of the reasons for the waiver. 383 U.S. at 560-61, 86 S.Ct. at 1056-57. Under the Utah law in question here, that “critically important” decision concerning which court has jurisdiction over a juvenile offender is accompanied by numerous constitutional safeguards for some juveniles and not for others, even though all are identically situated vis-a-vis the statute. For example, the decision of a juvenile court judge in Utah to certify a juvenile as an adult is governed by numerous guidelines and is subject to appellate review as a final order.3 How*411ever, under the statute in question here the same decision may be cursorily made, without standards and without benefit of the record, by a prosecutor. As Judge Skelly Wright observed in his dissent in United States v. Bland, 472 F.2d 1329 (D.C.Cir.1972), cert. denied, 412 U.S. 909, 93 S.Ct. 2294, 36 L.Ed.2d 975 (1973),
The decision by a juvenile [court] judge or by the United States Attorney to treat the child as an adult for prosecution purposes marks the beginning of precisely the same process of adjudication. And it cannot be doubted that the United States attorney is certainly a less disinterested decision maker than the [j]uvenile [cjourt judge. It would seem then that, in order to compensate for lack of neutrality, ... procedural niceties should be more rather than less carefully observed when the prosecutor is the decision maker.
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It is, of course, still widely believed that prosecutors have a broad, unreviewable discretion to determine which offenders to charge and what crimes to charge them with, although even this notion is now widely challenged by the leading scholars.... But it should be readily apparent that the usual notions of prosecutorial discretion have nothing to do with this case. The defendant does not ask us to review the substance of the prosecutor’s charging decision or to place limits on the scope of his discretion.
472 F.2d at 1344, 1347 (Wright, J., dissenting) (emphasis in original; citations omitted).
It is noteworthy that the statute in Bland, like those in Jones and almost all of the eases cited by the majority, provided for automatic exemption from the jurisdiction of the juvenile system for all juveniles over a certain age and charged with certain enumerated crimes. It seems likely to me that Judge Wright’s dissent would have prevailed had the Bland court been dealing with a statute like ours.
While the State could choose to prosecute as adults all juveniles named in petitions pursuant to section 78-3a-25(6), the problem here is that the legislature has not chosen to do so. Instead it has permitted such prosecution of some but not others identically situated, and it has provided no rational basis (in fact, no basis at all) for telling which are which.
The direct filing/recall portion of Utah’s statute does not apply equally to all persons within a class (i.e., persons between sixteen and eighteen who are alleged to have committed certain specified violent crimes). Furthermore, the statutory distinctions between persons assigned to different disposition tracks are not based on “differences that have a reasonable tendency to further the objectives of the statute.” Malan v. Lewis, at 670. As currently written, section 78-3a-25 permits disparate treatment of similarly situated juveniles and constitutes a violation of article I, section 24 of the Utah Constitution.
ZIMMERMAN, J., concurs in the concurring and dissenting opinion of DURHAM, J.. People in re D.G., 733 P.2d 1199 (Colo.1987), dealt with a challenge to the sentencing provision of the Colorado Children’s Code. The court determined that regardless of which of two courses the prosecution chose, the result would be the same. 733 P.2d at 1201. Furthermore, the court determined that under the sentencing provision in question, the juvenile court judge retained a great amount of sentencing discretion. 733 P.2d at 1203-04. In People v. Thorpe, 641 P.2d 935 (Colo.1982), the court upheld the constitutionality of a statute which required prosecution as an adult of a juvenile committing certain enumerated crimes. 641 P.2d at 937-38. In State v. Cain, 381 So.2d 1361 (Fla.1980), the court noted that the statute being challenged was part of a "logical progression of the statutory transfer scheme [which] demonstrates that, far from being arbitrary, the transfer scheme is entirely reasonable.” 381 So.2d at 1364. Furthermore, the statute in question did provide some guidelines for the prosecutor before an information could be filed in adult court against a juvenile. 381 So.2d at 1364-65. People v. Handley, 51 Ill.2d 229, 282 N.E.2d 131, cert. denied, 409 U.S. 914, 93 S.Ct. 247, 34 L.Ed.2d 175 (1972), upheld the constitutionality of a statute which required the filing of removal petitions by the prosecutor with the juvenile court judge and a hearing at which the juvenile court judge had the opportunity to object to the removal of the case from the jurisdiction of the juvenile court. 51 Ill.2d at 233, 282 N.E.2d at 135. Furthermore, offenders were not sentenced to incarceration in adult facilities, but *410rather were committed to the Illinois Youth Commission for incarceration. 51 Ill.2d at 230, 282 N.E.2d at 133. In State v. Grayer, 191 Neb. 523, 215 N.W.2d 859 (1974), the court upheld the constitutionality of a statute which authorized each county attorney to file charges in either juvenile or criminal courts at his discretion without any guidelines. While this case at first seems indistinguishable from the current case, in that opinion the Nebraska Supreme Court stated that part of the basis for decision was the fact that in Nebraska, juvenile and adult courts had equal and concurrent jurisdiction. In other words, the juvenile courts are not courts of exclusive jurisdiction. 191 Neb. at 526, 215 N.W.2d at 861. Compare this with Utah Code Ann. § 78-3a-16(1) which, in all but a few cases, creates exclusive jurisdiction over juvenile offenders. Furthermore, Grayer has been legislatively altered because the county attorney in Nebraska is now required to consider nine different factors which serve as guidelines in determining which juveniles should be prosecuted in the juvenile court and which should be prosecuted in the adult system. Neb. Rev.Stat. § 43-276 (1988). In People v. Mason, 99 Misc.2d 583, 416 N.Y.S.2d 981 (Sup.Ct.1979), the court upheld the constitutionality of legislation which made thirteen-, fourteen-, and fifteen-year-olds criminally responsible for certain enumerated felonies. 416 N.Y.S.2d at 983. However, the same legislation provided that such juvenile offenders were to be confined in separate facilities. 416 N.Y.S.2d at 985. Jones v. State, 654 P.2d 1080 (Okla.Crim.App.1982), upheld the constitutionality of a statute which provided that someone sixteen- or seventeen-years-old charged with an enumerated felony “shall be considered as an adult.” 654 P.2d at 1082 (emphasis added). Jahnke v. State, 692 P.2d 911 (Wyo.1984), upheld the constitutionality of the statute which placed concurrent jurisdiction in juvenile and district courts for purposes of criminal prosecutions of minors charged with felonies. 692 P.2d at 928. However, in Jahnke, the juvenile received a full evi-dentiary hearing on her motion to transfer her case to the juvenile court and the district court applied the criteria suggested by Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), in reaching a decision that the juvenile should be prosecuted as an adult. 692 P.2d at 929.
. See State in re Clatterbuck, 700 P.2d 1076 (Utah 1985), where we held that orders under section 78-3a-25 "must contain a sufficiently detailed statement of facts to permit us to determine that a full investigation has been made and that each of the statutory factors has been considered.” Id. at 1081.