dissenting.
That the Court today upholds the constitutionality of its own self-promulgated rule will not surprise those members of the bar who have observed the ease with which the Court has in recent years on a rather wholesale scale enacted new rules and modifications to and amendments of old rules. My own recollection does not tell me that there was even any discussion of constitutionality when the subject rule came into being.
While it is flattering to be asked by an Idaho federal court to tell that court what the law is in the state of Idaho, there is nothing in the Idaho Constitution which authorizes this Court or any of the district courts of Idaho to give such advisory opinions, and, advisory is exactly what they are, and no more than that. That the federal district courts apparently will accept such opinions and apply them in pending litigation does not alter the fact that this Court’s activity transcends constitutional limits.
The most disturbing aspect of the situation is the Court’s willingness to bypass that article of our Constitution which declares the procedure for amending the Constitution, when deemed necessary or beneficial. Unlike amending the Constitution of the United States, it is not difficult to amend Idaho’s Constitution — as witnessed by the people’s ready acceptance of amendments proposed to them by the legislature at the 1982 General Election last year. The Court cannot in good conscience examine our Idaho Constitution and statehood history of almost 100 years and maintain that the framers of the Constitution envisioned that this Court was, sub silentio, cloaked with authority to gratuitously render advisory opinions to federal district courts. I do not argue that it might not be beneficial to have such a procedure, but I do maintain that this Court assumes too much in promulgating a rule which supplants the functions of the article pertaining to the amendments of our Constitution. The Court today would better serve the saving of some semblance of constitutional order were it to simply accept the persuasion of the Utah Court — which faced a similar question— rather than indulge in nit-picking around that court’s opinion. The Court would do better to follow the persuasion of an earlier Idaho Court opinion, Neil v. Public Utilities Commission, 32 Idaho 44, 52, 178 P. 271, 273 (1919), which stated that “[t]he jurisdiction of this court is fixed by the constitution .... ” This decision was handed down at a time when this Court was comprised of justices who were not in time so far distant from the constitutional convention in 1889. It must be remembered that at that convention there was far more than a sprinkling of men learned in the law, and logically far more conversant with the separation of state and federal systems of government. A teaching in first year law school is that the diversity of the federal courts was created for a purpose. Now, concededly that purpose may have been to circumvent prejudice which foreign litigants might encounter at the hands of local juries, but at the same time the purpose may have been aimed at local judges. Whatever the underlying motive for creating diversity jurisdiction, the fact remains that it was creat*139ed, it is still with us, and thereunder, federal courts sitting on Idaho diversity • cases properly apply Idaho law as it has been declared by this Court, and where it has not, then the federal courts in Idaho should apply that which is divined to be Idaho law. In my view, this is what diversity jurisdiction entails. On the other hand, true diversity jurisdiction is to a large extent nullified when a diversity litigant who has opted for the federal courts rather than a state court thereafter discovers that the federal court has temporarily shelved the litigation while the federal court shifts to a state court the burden of deciding an issue of law which may not have been theretofore passed upon in the state court system.
The rule not only is constitutionally infirm, but is plagued with economic frailities as well. Federal litigation will come to a standstill while this Court gratuitously absorbs into its already over-crowded calendar one more case which it will eventually decide — while at the same time holding back in the pipeline a case which is legitimately in this Court. The economic suffering of the rule is thus twofold — delay in the federal litigation, and delay occasioned to some case which is rightfully before this Court in the exercise of its original jurisdiction or its appellate jurisdiction. If this Court has any jurisdiction other than that, I am unable to discern it from the Idaho Constitution.
Philosophically, I am not persuaded that the Constitution can be so lightly taken as the majority today so views it. It has been an experience of man-kind that the money goes where the talent is. Idaho is blessed with an excellent federal judiciary, all members of which have been admitted to the Idaho Bar and who, prior to accepting federal bench appointments, made active and distinctive contributions to the Idaho judicial system. To my knowledge, however, no member of the Idaho federal judiciary has ever sought office on this Court, which is not to say that each of our five federal judges off iced in Boise do not have the qualifications. There may be some reason why those five judges — whose total years of experience in Idaho law exceed the total of the five members who comprise this Court — cannot, when presented with a question of Idaho law thought to have not been previously decided, sit down together and declare that which they in their wisdom and years of experience determine to be Idaho law. If there is such a reason, I am not aware of it, other than that Judge Anderson, who sits on the bench of the Ninth Circuit Court of Appeals, might for that reason not deign to engage in such a conference or discussion. It could be said, too, that there is no precedent for such a procedure, but it cannot be gainsaid that there was no Idaho precedent for the Court’s rule which is today under fire. As a practical matter, based on rumblings, rumors, and reports, one can be certain that there are many trial practitioners and trial judges in Idaho who would have preferred that Chandler Supply Co., Inc. v. City of Boise, 104 Idaho 480, 660 P.2d 1323 (1983), had been decided somewhere other than in the Idaho Supreme Court and who, for that very reason, can not be all enthralled at having questions involving interpretation of Idaho statutory law shifted from the federal system into the state system. If there be a science known as jurisprudence, and I have ever maintained that it is impossible to perform as a trial judge or trial attorney without such a science, some are saying that that science is at low ebb in our Idaho system, and most, I think, would hesitate to visit this condition upon the federal system. Constitutionally it cannot be done.