dissenting:
Today the majority takes a grave misstep. In an opinion that reflects a fundamental misunderstanding of the Utah constitutional provisions relating to the selection and retention of article VIII judges, the majority reaches the erroneous conclusion that only persons who have been selected and retained by the methods described in article VIII are constitutionally capable of exercising “the judicial power” of the state of Utah. In essence, the majority “constitutionalizes” a concept of the article VIII judge as a kind of “sacred vessel” in whose person is contained the entire quantum of the judicial power. The majority’s conclusion lacks precedential support1 and, more important, is not re*858quired by either the text or the history of article VIII. Because article VUI’s judicial selection and retention provisions were never intended to delimit who may exercise judicial power and because the article VIII. judiciary retains complete control over the commissioner system, we believe that section 78-3-31(6) of the Utah Code is not an unconstitutional delegation of the judicial power.
I. NATURE, HISTORY, AND FUNCTION OF THE JUDICIAL POWER AND THE JUDICIAL SELECTION AND RETENTION PROVISIONS
Justice Russon, writing for the majority, asserts that the constitutional provisions relating to the selection and retention of judges of courts of record create the necessary prerequisites for the legitimate exercise of the judicial power.2 The majority’s reasoning is as follows: The judicial power is a personal, not an institutional, power, embodied in and able to be exercised only by an individual judge; the constitution, by providing for specific methods of selection and retention of judges of courts of record, limits the persons who may exercise the judicial power. This “sacred vessel” theory fails because (i) the judicial power addressed by the constitution’s vesting provisions is institutional rather than personal; (ii) the judicial selection and retention provisions of the constitution are not textually linked to article VIII, section 1 and have never in a hundred years of Utah constitutional history been considered or construed to be inextricably connected to the exercise of the judicial power in any defining way, nor is there any evidence that the framers intended such a connection; and (iii) the constitution provides for the creation of non-record courts by the legislature and for the appointment of pro tempore judges (both of which are clearly understood to be constitutionally capable of exercising the judicial power), with no corresponding requirement that these judicial officers be subject to the selection and retention requirements for judges of record courts. Thus, while the selection and retention provisions certainly create a constitutional requirement for an *859individual to acquire the status of a judge of a court of record, they just as certainly do not circumscribe the limits of legitimate exercise of the judicial power within either record or nonrecord courts.
A. Nature of the Judicial Power
It is the province of the judicial branch of government to interpret the law. As a necessary incident to this role, the judiciary is empowered 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, 83 Utah 81, 90, 27 P.2d 23, 26 (1933)).3 This judicial power includes “ ‘the authority to hear and determine justiciable controversies.... [It] includes the authority to enforce any valid judgment, decree or order.’ ” Id. (quoting Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237, 242 (1967)).
Pursuant to article VIII, section 1 of the Utah Constitution, “[t]he judicial power of the state shall be vested in a Supreme Court, in a trial court of general jurisdiction ..., and in such other courts as the Legislature by statute may establish.” Utah Const, art. VIII, § 1 (emphasis added). The majority opinion mistakenly incorporates into article VIII, section 1 the notion that the judicial power belongs exclusively to individual judges rather than being vested, as the constitution specifically provides, in the courts. Even the functions that the majority refers to as “core judicial functions,” such as conviction and sentencing in criminal cases, cannot be characterized as the exercise of personal or individual power. The power in question is the institutional power that the constitution vests in the courts. When individual judges perform their functions, they are the media through which the judicial power “flows” or is manifested, but they do not “constitute” such power in and of themselves.
An individual judge adjudicates guilt, orders the entry of conviction, and imposes sentence. But until the judge’s order has been reduced to writing and has been duly filed and placed in the court’s records by auxiliary court staff, it is essentially meaningless. It cannot be enforced or relied upon as a legal basis for a deprivation of liberty. See Utah R.Crim.P. 22(d). Likewise, in civil adjudications, a judgment, although duly decided and ordered by an individual judge, must be filed and entered in the court’s docket before it becomes legally binding upon any person or eligible for appellate review. See Utah R.Civ.P. 58A(a)-(c); In re Bundy’s Estate, 121 Utah 299, 241 P.2d 462, 467 (1952) (“[A] judgement is complete and is deemed entered for all purposes when the same is signed and filed....” (emphasis added)). The majority opinion has diminished and misunderstood the judicial power by ignoring its institutional character as reflected in the language of article VIII, section 1. The majority instead insists that the personal power of the individual judge circumscribes the whole of the “judicial power of the state.” This cannot be so. Judges exercise in specific ways the judicial power that belongs to the institutions they serve. They are not the source or sole repositories of that power.
In adopting the “sacred vessel” theory, the majority paints itself into an analytical corner. It repeatedly insists that the exercise of the judicial power is limited to those persons who, like themselves, are appointed to the bench and retained in office pursuant to article VIII, sections 8, 9, and 13. Taken to *860its logical conclusion, the majority approach mandates that each and every act denominated as “judicial” must necessarily be performed by an article VIII judge. Perhaps realizing the crushing burden that such a result would impose on the judiciary of this state, the majority attempts to qualify its absolutist approach, limiting the breadth of its opinion to “powers that are core judicial junctions of courts of record.” 4 Maj.Op. at 848. The majority moves on to assert that commissioners may continue to perform most of the functions they currently perform as long as “ultimate decision-making” authority remains with the judge.5
The majority’s “compromise” defies logic. If in fact, as the majority asserts, the judicial selection and retention provisions contained in article VIII, sections 8, 9, and 13 do serve as a prerequisite for the exercise of the “judicial power of the state of Utah,” every judicial act, not just “core judicial functions,” must be performed by a judge. To conclude otherwise would, in the words of the majority,
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.
Maj.Op. at 850.
We think it is far more logical to read the language of article VIII, section 1 in accord with its plain meaning — the judicial power of the state of Utah shall be vested in the “courts.” Under this reading of article VIII, section 1, all judicial power, not just “core judicial functions,” must remain firmly under the control of the judiciary. Because section 78-3-81 operates in harmony with this constitutional mandate, we would uphold its validity.
B. Textual and Historical Analysis of Judicial Selection and Retention Provisions
The lack of any meaningful textual or historical analysis in the majority opinion further demonstrates the fallacy of the “sacred vessel” theory. The majority has simply created a theory out of whole cloth by treating article VIII as if it were an undifferentiated grab bag of constitutional provisions. To locate a basis in reason supporting its desired result, the majority appears to have arbitrarily seized upon the judicial selection and retention provisions found in sections 8, 9, and 13. The majority, however, fails to provide any textual analysis to support a connection between these provisions and its notions about the judicial power. The reason the majority opinion fails in this respect is quite clear — no textual support exists. Article VIII, section 1 does not state that it is conditioned by article VIII, sections 8, 9, and 13, nor do these latter provisions refer to the judicial power or even mention article VIII, section 1.
The majority opinion also fads to subject its “sacred vessel” theory to even a cursory historical analysis. The reason is again quite clear — no historical support exists. The Utah Constitution’s judicial selection and retention provisions have undergone two amendments since the constitution was draft*861ed in 1896: first in 1944 and again in 1985. From 1896 to 1944, the only language bearing on judicial selection or retention read as follows: “Every judge of the Supreme Court shall be at least thirty years of age, and, before his election, shall be a member of the bar, learned in the law, and a resident of the Territory or State of Utah for five years next preceding his election.” Utah Const, art. VIII, § 3 (1896). In 1944, the constitution was amended to include the following reference to the selection of Utah judges:
Judges of the supreme court and district courts shall be selected for such terms and in such manner as shall be provided by law, provided, however, that selection shall be based solely upon consideration of fitness for office without regard to any partisan political considerations and free from influence of any person whomsoever....
Utah Const, art. VIII, § 3 (1945). Article VIII’s current language on judicial selection and retention was adopted in 1985. It is clear, however, that from 1896 to 1985, the constitution never dealt with any specific method of judicial selection or retention. Because the judicial selection and retention provisions serve as the sole basis for the majority’s “sacred vessel” theory, this theory could only have been incorporated into the constitution with the 1985 amendments. We therefore turn to the history of the 1985 amendments.
During the tenure of Governor Scott M. Matheson (1977-1985), the legislature made significant revisions to the statutory scheme for judicial selection and retention. These revisions were in turn challenged by Governor Matheson on separation of powers grounds. See Matheson v. Ferry, 641 P.2d 674 (Utah 1982) (“Matheson I ”); Matheson v. Ferry, 657 P.2d 240 (Utah 1982) (per cu-riam) (“Matheson II”). Because the outcome of these cases was unfavorable to the legislature’s position, pressure arose to amend the constitution to authorize the specific feature of judicial selection (senatorial confirmation of gubernatorial appointments) favored by the legislature. Utah Constitutional Revision Comm’n, Report of the Constitutional Revision Comm’n Submitted to the Governor and 45th Legis. of the State of
Utah 15-17, 31-33 (2d prtg. 1984). In response to that pressure, the Constitutional Revision Commission (“CRC”) recommended the current language on judicial selection and retention. Id. This language was ultimately placed on the ballot as Proposition No. 3 in 1984. Id. See generally Minutes of Constitutional Revision Comm’n (May 25-26,1984). A thorough review of all the relevant minutes and committee reports of the CRC, the legislative floor debates on the judicial article revision, and the voter information supplied in connection with Proposition No. 3 reveals no discussion, reference, or even suggestion that the inclusion of these provisions in the constitution was in any way intended to alter article VIII, section l’s mandate that judicial power be vested in the courts. It is perfectly clear, in fact, that the sole motivation for constitutionalizing the judicial selection and retention process was to insulate the practice of senatorial confirmation from constitutional attack on the basis of the separation of powers doctrine.
Thus, the majority’s ipse dixit conclusion that the presence in article VIII of specific methods for judicial selection and retention automatically means that such methods are somehow an integral component of the judicial power is without textual or historical support.
C. Powers of Judges of Nonrecord Courts and Pro Tempore Judges in Record Courts
The conclusion noted in the preceding paragraph is buttressed by the fact that the constitution itself contemplates that persons not subject to the selection and retention process of article VIII, sections 8 and 9 may nonetheless exercise the judicial power of the state of Utah, including the power to convict of criminal acts and impose criminal penalties. See Utah Const, art. VIII, § 1 (legislature may establish nonrecord courts), § 4 (establishing judges pro tempore); Utah Code Ann. §§ 78-5-104 to -106 (1992 & Supp.1993) (establishing criminal jurisdiction of justice courts). Both the majority opinion and Justice Howe’s concurrence conclude that the specific constitutional provisions for courts not of record and for the use of pro *862tempore judges reflect an intention to permit those individuals to exercise the judicial power, despite the fact that they are exempt from the otherwise mandatory selection and retention processes. There is no textual or historical support for this argument. Indeed, this theory illogically renders the constitution inherently inconsistent. It makes no sense to read the constitutional language as intended to limit the legitimate exercise of the judicial power solely to persons selected by a precise method and simultaneously to maintain that the constitution itself permits the broad exercise of such powers by an unknown and undescribed set of persons, subject to no such selection and retention restrictions. If the constitution defines and restricts the nature of the judicial power by virtue of its selection and retention language, why should it simultaneously contemplate the exercise of the judicial power by nonconstitu-tional officers, which it clearly does? It is far more logical and historically consistent to view the selection and retention provisions as parallel to, but not a definitional part of, the constitutional role of judges of courts of record. Under this approach, the authorization to the legislature to create nonrecord courts and the broad provisions permitting the use of pro tempore judges in all courts raise no unanswerable questions about the legitimacy of the judicial power.
In his concurring opinion, Justice Howe contends that by expressly authorizing judges pro tempore to perform judicial duties, the constitution implicitly restricts others from performing similar tasks. This court rejected an analogous inference in two early cases. The original language of article VIII provided that judges of the supreme court and the district courts and justices of the peace were “conservators of the peace” and could conduct preliminary hearings in “cases of felony.” Utah Const, art. VIII, § 21 (1896). This court held that the grant of power was not exhaustive and did not prevent the legislature from authorizing judges named in the section to hold preliminary hearings in cases involving crimes less serious than felonies. State v. McIntyre, 92 Utah 177, 182-85, 66 P.2d 879, 881-82 (1937). More significantly, the court earlier held that the power to hold preliminary hearings did not he exclusively with the persons named in the section and that the legislature had the power to give city courts the same authority. State v. Shockley, 29 Utah 25, 32-35, 80 P. 865, 867-68 (1905).
It is conceded that by virtue of said section 1, Constitution, the Legislature had authority to create the city court, but it is contended that the foregoing provision of the statute, so far as it attempts to confer jurisdiction upon the judge of said court to sit as a committing magistrate, is in conflict with said section 21 of the Constitution. Counsel for appellant insists that the word “may” in section 21 should be construed to mean “shall,” and, when so construed, the doctrine of expressio rnius est exclusio alterius applies, which, they claim, limits the jurisdiction to hold preliminary examinations to cases of felony exclusively to the officers mentioned in said section. By a careful reading of this section of the Constitution it at once becomes apparent that such could not have been the intention of the framers of that instrument.
Id. at 32-33, 80 P. at 867. It seems equally apparent to us that the framers of the judicial selection and retention provisions of the constitution did not intend to limit statutory authorization of the performance of judicial duties exclusively to persons so selected, so long as the fundamental requirements of separation of powers are maintained.
II. CONSTITUTIONALITY OF UTAH’S COMMISSIONER SYSTEM
Having demonstrated that there is no textual, logical, or historical support for the conclusion the majority forces upon this case, we proceed to analyze the challenge to the commissioners’ power as we think an orthodox approach to legal issues demands. Ohms’ challenge in this case is to section 78-3-31(6)(a), which empowers commissioners, upon the consent of the defendant, to preside over misdemeanor trials, impose sentence, and enter final judgments of conviction.6 *863Ohms claims, and the majority agrees, that section 78-3-31(6) “is unconstitutional insofar as it delegates ultimate judicial power to court commissioners in violation of article VIII of the Utah Constitution.” Maj. Op. at 846. Because a trial before a commissioner may be held only with a defendant’s consent and because section 78-3-31(6) does not impinge on the essential powers and independence of the judiciary, we conclude that section 78-3-31(6) does not violate article VIII, section 1.
Ohms’ attack on section 78-3-31(6) is strikingly similar to recent attacks on the Federal Magistrate Act of 1979, Pub.L. No. 96-82, 93 Stat. 643 (“FMA”). The FMA grants powers to federal magistrates which, although broader, are analogous to the powers given commissioners under section 78 — 3—31(6).7 In a series of cases decided since 1984, litigant after litigant has challenged the FMA on the ground that it violates the mandate contained in the United States Constitution that judicial power be vested in the courts.8 Federal court after federal court has rejected these challenges and upheld the constitutionality of the FMA.9
The seminal federal case in this area is 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).10 In Pace*864maker, the United States Court of Appeals for the Ninth Circuit rejected a claim that the FMA violated article III, section 1 of the United States Constitution. Id. at 547. The Pacemaker court recognized that article Ill-based challenges to the FMA implicated the doctrine of separation of powers: “Article III is one of the provisions of the Constitution which delineates the separation of powers among the branches of government.” Id. at 540-41. In this vein, the court observed that
separation of powers protections ... have two components. One axis reaches to the person affected by government action and encompasses his or her relation to a constitutional branch; the other axis runs from each governmental branch to the others to insure separation and independence in the constitutional structure.
Id. at 541; see also Peretz v. United States, 501 U.S. 923, 931-32, 936-37, 111 S.Ct. 2661, 2666-67, 2669, 115 L.Ed.2d 808, 819, 822 (1991); Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 848, 106 S.Ct. 3245, 3255, 92 L.Ed.2d 675 (1986). This concept, according to Pacemaker, necessitates a two-pronged analysis of statutes such as the FMA. 725 F.2d at 541. Under this two-pronged analytical model, a court should consider (i) whether transfer of a case to an adjunct invades rights personal to the defendant; and (ii) whether, even if the transfer does not invade the defendant’s rights, “the existence or operation of the alternate forum compromises the essential independence of the judiciary.” Id.
We find much of the Pacemaker analysis useful and, unlike the majority, are unwilling to blithely dismiss the accumulated wisdom of a judicial system which has struggled with this issue for over ten years.11 First, the language of the federal and state constitutions is similar. Both are couched in terms of the vesting of “judicial power” in “courts.” Compare U.S. Const, art. Ill, § 1 with Utah Const, art. VIII, § 1. Second, both constitutions share a conceptual grounding in the separation of powers doctrine that is an essential part of our common constitutional heritage. Compare Buckley v. Valeo, 424 U.S. 1, 120-21, 96 S.Ct. 612, 682-83, 46 L.Ed.2d 659 (1976) with Timpanogos, 690 P.2d at 565. Third, the federal magistrate system and the Utah commissioner system are analogous, and the legal challenges to each have been raised in similar contexts. Compare 18 U.S.C. § 3401 and 28 U.S.C. § 636(e) with Utah Code Ann. § 78-3-31(6). See also Judicial Council, Court Comm’rs in the Utah State Court System, Report to the Ad Hoc Comm^ on Court Comm’rs 3 (June 14, 1993) (noting that Utah’s system is modeled after federal magistrate system and that federal system has withstood constitutional challenge). For these reasons, we conclude that Pacemaker provides a sound analytical model to use in determining whether the commissioner’s actions before us violated article VIII, section 1.
The first question is whether the transfer of this case to a court commissioner invaded rights personal to defendant. We recognize that as a general principle, criminal defen*865dants are entitled to have a judge of an article VIII court preside over their trials, impose sentence, and enter final judgments of conviction.12 Thus, if section 78-3-31(6) were to mandate that certain classes of offenses be tried before a commissioner rather than a judge of an article VIII court, we would be obliged to find it unconstitutional as a legislative interference with the judicial power vested by the Utah Constitution in article VIII courts.13 See Pacemaker, 725 F.2d at 542. That is not, however, the case before us.
A defendant’s right to have an article VIII judge conduct his trial is a personal right, and as such, it is subject to waiver. See Peretz, 501 U.S. at 931-32, 936-37, 111 S.Ct. at 2666-67, 2669, 115 L.Ed.2d at 819, 822; Schor, 478 U.S. at 848-49, 106 S.Ct. at 3255-56; United States v. Ferguson, 778 F.2d 1017, 1019 (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, 1143 (10th Cir.), cert. denied, 474 U.S. 818, 106 S.Ct. 63, 88 L.Ed.2d 52 (1985); Goldstein v. Kelleher, 728 F.2d 32, 35 (1st Cir.), cert. denied, 469 U.S. 852, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984); Pacemaker, 725 F.2d at 541. Given that we allow criminal defendants to waive virtually every other constitutional right, we find it peculiar that the majority opinion does not even analyze whether criminal defendants may waive the right to be tried by an article VIII judge. By ignoring this issue, the majority attempts to hide yet another flaw in its reasoning.
That a criminal defendant can waive a personal right and not thereby compromise the fundamental fairness of the judicial proceeding is not a novel concept. As the Supreme Court pointed out in Peretz:
We have previously held that litigants may waive their personal right to have an Article III judge preside over a civil trial. See Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 848, 92 L.Ed.2d 675, 106 S.Ct. 3245 [3255] (1986). The most basic rights of criminal defendants are similarly subject to waiver. See, e.g., United States v. Gagnon, 470 U.S. 522, 528, 84 L.Ed.2d 486, 105 S.Ct. 1482 [1485] (1985) (absence of objection constitutes waiver of right to be present at all stages of criminal trial); Levine v. United States, 362 U.S. 610, 619, 4 L.Ed.2d 989, 80 S.Ct. 1038 [1044] (1960) (failure to object to closing of courtroom is waiver of right to public trial); Segurola v. United States, 275 U.S. 106, 111, 72 L.Ed. 186, 48 S.Ct. 77 [79] (1927) (failure to object constitutes waiver of Fourth Amendment right against unlawful search and seizure); United States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir.1987) (failure to object results in forfeiture of claim of unlawful postarrest delay); United States v. Bascaro, 742 F.2d *8661335, 1365 (11th Cir.1984) (absence of objection is waiver of double jeopardy defense), cert. denied sub nom. Hobson v. United States, 472 U.S. 1017, 87 L.Ed.2d 613, 105 S.Ct. 3476 (1985); United States v. Coleman, 707 F.2d 374, 376 (9th Cir.) (failure to object constitutes waiver of Fifth Amendinent claim), cert. denied, 464 U.S. 854, 78 L.Ed.2d 154, 104 S.Ct. 171 (1983). See generally Yakus v. United States, 321 U.S. 414, 444, 88 L.Ed. 834, 64 S.Ct. 660 [677] (1944) (“No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right”). Just as the Constitution affords no protection to a defendant who waives these fundamental rights, so it gives no assistance to a defendant who fails to demand the presence of an Article III judge at the selection of his jury.
501 U.S. at 936-37, 111 S.Ct. at 2669, 115 L.Ed.2d at 822; see also Pacemaker, 725 F.2d at 543; State v. Archuleta, 850 P.2d 1232, 1238-40 (Utah) (recognizing that defendant may waive Miranda rights), cert. denied, - U.S. -, 114 S.Ct. 476, 126 L.Ed.2d 427 (1993). In the instant case, defendant waived his right to be tried before an article VIII judge when he, while represented by counsel, voluntarily consented to trial before a court commissioner. Because section 78-3-31(6) provides for trial before a commissioner only upon the “informed consent” of the defendant and because Ohms does not contend that his waiver does not meet this standard, the first prong of the Pacemaker analysis is satisfied.
In an effort to overcome the conclusion that the right to be tried before an article VIII judge is subject to waiver, Ohms tries to recast the issue as one of subject matter jurisdiction. He argues that the commissioner had no jurisdiction to hear this ease and that such jurisdiction could not be created by consent. We agree with the majority that this is an improper attempt to recharacterize the issue.
When faced with an assertion similar to the one Ohms makes here, the United States Court of Appeals for the Third Circuit recognized that “jurisdiction in the usual sense may not be conferred by consent ... [and] may not be waived by agreement of the parties.” Wharton-Thomas v. United States, 721 F.2d 922, 926 (3d Cir.1983). The Wharton-Thomas court went on, however, to explain:
In this case ... jurisdiction was given to the district court by Congress, see 28 U.S.C. § 1346(b) — the consent of the litigants had no part in that process. The judgment in this Tort Claims Act case is that of the district court, the forum specified by the statute.
The parties’ consent went not to the jurisdiction of the district court as an entity, but to the judicial officer within the court who conducted the trial.
Id. (emphasis added).
Just as Congress granted the federal district court jurisdiction over causes of action arising under the Tort Claims Act, the Utah legislature specifically granted the circuit court jurisdiction over class misdemeanors. Utah Code Ann. § 78-4-5. Ohms’ consent to be tried before a commissioner had no part in that process. Furthermore, according to section 78-3-31(6), the commissioner’s judgment was that of the circuit court, the forum specified by the jurisdictional statute. In other words, the commissioner presided over Ohms’ trial, imposed sentence, and entered final judgment of conviction as an adjunct of the circuit court, the court with specific statutory authority to hear Ohms’ case. Thus, as in Wharton-Thomas, Ohms’ “consent went not to the jurisdiction of the [circuit] court as an entity, but to the judicial officer within the court [i.e., the commissioner] who conducted the trial.” 721 F.2d at 926 (emphasis added); see also Gordy v. State, 262 Ind. 275, 315 N.E.2d 362, 366-67 (1974) (‘We agree that subject matter jurisdiction may be raised for the first time on appeal. However, the qualifications of a judge and his authority to act in a given case are not determinative of subject matter jurisdiction. We look instead to the court in which the matter was tried to determine if there is subject matter jurisdiction.” (citations omitted)); State ex rel. Smith v. Starke Circuit Court, 275 Ind. 483, 417 N.E.2d 1115, 1123-24 (1981) (same).
*867Having concluded that Ohms’ consent waived any claim he had of invasion of a personal right, we move to the second prong of the Pacemaker analysis: whether section 78-8-31(6) “compromises the essential independence of the judiciary.” Pacemaker, 725 F.2d at 541.
The separation of powers doctrine protects the whole constitutional structure by requiring that each branch retain its essential powers and independence. Buckley, 424 U.S. at 120, 96 S.Ct. at 682-83; accord Timpanogos, 690 P.2d at 564-65; Matheson I, 641 P.2d at 676; id. at 681-82 (Howe, J., concurring).14 Accordingly, we note at the outset, “The component of the separation of powers rule that protects the integrity of the constitutional structure, as distinct from the component that protects the rights of the litigants, cannot be waived by the parties.” Pacemaker, 725 F.2d at 543-41. Such a result is necessary because this prong of the separation of powers doctrine serves to protect “institutional interests that the parties cannot be expected to protect.” Schor, 478 U.S. at 850-51, 106 S.Ct. at 3256-57; cf Timpanogos, 690 P.2d at 564-65 (discussing importance of independent judicial institution); Matheson' I, 641 P.2d at 681-82 (Howe, J., concurring) (same).
Any attempt to place the exercise of the judicial power outside the control of the judiciary threatens “the fundamental integrity of the judicial branch.” In re Criminal Investigation, 7th Dist. Ct. CS-1, 754 P.2d 633, 642 (Utah 1988). Thus, if we were to conclude that section 78-3-31(6) represents an attempt by the legislature or executive branch to encroach on the judiciary’s constitutionally mandated role, we would be obliged to strike it down. Utah Const. art. V, § 1; Timpanogos, 690 P.2d at 564-65; Matheson I, 641 P.2d at 681-82 (Howe, J., concurring); Rampton v. Barlow, 23 Utah 2d 383, 464 P.2d 378, 382-83 (1970). The statute before us, however, has no such infirmity.
Section 78-3-31(6) contains sufficient protections against the erosion of judicial power to overcome the cursory separation of powers objections raised by the majority. Section 78-3-31(6) invests judges of article VIII courts with extensive and exclusive control over the composition, management, and operation of the commissioner system. As a primary and necessary incident of this control, we recognize that the power to appoint and remove court commissioners is vested entirely in the judicial branch. Utah Code Ann. § 78-3-31(2)(a), (8)(a); Utah R.Jud.Admin. 3-201(3), (6). By retaining control over both the selection and the retention of commissioners, the judicial branch insulates commissioners from undue influence by members of other branches of government. See Collins v. Foreman, 729 F.2d 108,115 (2d Cir.), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984); Whartorir-Thomas, 721 F.2d at 927. In addition to appointment and removal powers, section 78-3-31 charges the presiding judge in the district in which the commissioner primarily serves with the “day-to-day supervision” of the commissioner. Utah Code Ann. § 78 — 3—31(7)(b). This broadly framed language allows the judiciary considerable flexibility in designing the specific means by which it will supervise its commissioners. Finally, section 78-3-31 empowers the judicial council to establish “rules defining the duties and authority of court commissioners for each level of court they serve.” Id. § 78-3-31(9). Because the judiciary retains ultimate and exclusive control over the administration of the commissioner system, we conclude that section 78-3-31(6) does not violate the Utah Constitution. See In re Criminal Investigation, 754 P.2d at 642 (“As long as the district court retains ultimate precompliance control over the enforcement of a subpoena issued pursuant to the [Subpoena Powers] Act, the judicial function is not delegated unconstitutionally to the executive branch.”).
*868In addition to the extensive administrative control over the commissioner system vested in the judiciary, article VIII courts retain full authority over questions of law through the availability of appellate review. In arguing that section 78-3-31(6) is unconstitutional, Ohms asserts that no court has appellate jurisdiction to the review a commissioner’s entry of final judgment. This claim is wholly without merit. Section 78-3-31(6) specifically provides, “The judgment entered by the commissioner shall be the final judgment of the court for all purposes, including appeal.” Utah Code Ann. § 78-3-31(6)(a). As this provision makes clear, when a commissioner is acting as an adjunct of the circuit court, any final order of that commissioner is a final order of the circuit court. Accordingly, the court of appeals would have jurisdiction pursuant to section 78-2a-3(2)(d). Thus, article VIII judges retain control over the “interpretation, declaration, and application” of Utah law. See Pacemaker, 725 F.2d at 544.
The extensive administrative control exercised by article VIII judges, when coupled with the availability of appellate review by article VIII judges of all commissioners’ decisions, leads us to conclude that section 78-3-31(6) does not compromise the essential independence of the judiciary. Because both prongs of the Pacemaker analytical model are met, we would hold that section 76-3-31(6) does not violate the Utah Constitution.
Furthermore, Utah’s history and practice regarding the use of court commissioners demonstrate no abuses that would threaten the independence of the judiciary on the one hand or its accountability on the other. The requirement of consent from a criminal defendant before a commissioner can hear misdemeanor cases ensures due process, as does the availability of appellate review on the merits of the decision. The majority opinion posits potential “horribles,” such as legislative authorization for commissioners to adjudicate capital cases. It is difficult to envision the political atmosphere in which the Utah legislature would so act or the Utah judicial council (which is responsible for rules governing the use of commissioners) would approve, but in any event, such an abuse would be reviewable on numerous constitutional grounds. The statute before us, by contrast, merely empowers commissioners, subject to the procedures authorized by the judicial council, to hear misdemeanor offenses with the consent of the defendant. That statute is constitutional.
Finally, we note that the legislature has long regarded the use of court commissioners as constitutional. In 1965, the legislature passed the Juvenile Court Bill, which authorized juvenile court commissioners. See eh. 165, § 13, 1965 Utah Laws 595, 602. In 1969, the Family Court Act authorized court commissioners to perform counseling, reconciliation, and other services. See ch. 72, § 15,1969 Utah Laws 327, 332. The authority of the district court to appoint commissioners to conduct civil mental commitment proceedings has existed at least since 1951, see ch. 113, § 3, 1951 Utah Laws 366, 374, and has been exercised continuously since 1974. See Judicial Council, Court Comm’rs in the Utah State Court System: Report to the Ad Hoe Comm, on Court Comm’rs 1 (June 14, 1993). In 1985, the legislature expanded the authority of commissioners in domestic relations cases. See eh. 151, §§ 1-5, 1985 Utah Laws 266, 266-67. Five years later, in 1990, the legislature repealed most of the existing statutory grants of authority and directed the judicial council to adopt rules governing the authority of court commissioners. See eh. 230, §§ 2, 4, 1990 Utah Laws 1111, 1111-13. Finally, in 1991, the legislature extended the authority of commissioners to include most criminal magistrate functions and the adjudication of class A misdemeanors (and below) with the consent of the defendant. See ch. 268, § 29, 1991 Utah Laws 1070, 1086-87.
The history of legislative authorization for and use by the courts of commissioners demonstrates two truths: (i) Use of commissioners is a successful method for dealing with certain kinds of demands on the resources of the courts; and (ii) neither the legislature nor the courts themselves have ever perceived in such use an unconstitutional delegation of the judicial power vested by the constitution in the courts or a violation of the separation of powers doctrine.
*869III. CONCLUSION
Today, in a broadly worded opinion, the majority incorporates into the Utah Constitution the grandiose notion of the person of the judge as a “sacred vessel.” In so doing, the majority places severe restrictions on the ability of the judicial branch to manage litigation in Utah. In an opinion that summarily dismisses persuasive federal ease law and fails to conduct even a cursory analysis of the text or history of article VIII, the majority concludes that article VUI’s selection and retention provisions operate as a limit on those who may exercise the judicial power of the state of Utah. The majority reaches this result even though the statute in question preserves the essential independence and integrity of the judiciary by placing Utah’s commissioner system under the exclusive control of the judiciary. The majority opinion is neither constitutionally required nor analytically sound, and we anticipate that constitutional revisions may be necessary to alleviate the mischief it does.15 In any event, today’s decision will require pervasive changes in the way Utah’s judiciary does business, changes that for all the majority’s concerns over the status of the decision maker will be largely of form and not substance.
. In footnote 20 of the majority opinion, the majority claims that its conclusion is supported by the decisions of other states. The state law upon which the majority opinion relies, however, *858is largely inapposite. For example, the majority points to State ex rel. Smith v. Starke Circuit Court, 275 Ind. 483, 417 N.E.2d 1115, 1121-23 (1981), for the proposition that judicial powers cannot be vested in officers such as commissioners appointed by judges of the courts. While that language is contained in Smith, the Indiana court refused to set aside the order in question because the appellant had failed to object to the authority of the commissioner at the trial level. Id. at 1123-24; see also Bivins v. State, 485 N.E.2d 89, 92 (Ind.1985) (asserting that first question court should consider in cases such as the one at hand is whether "[a]ppel-lant waived his right to challenge [the] selection" of a commissioner or special judge); Rodgers v. Rodgers, 503 N.E.2d 1255, 1257 (Ind.Ct.App.1987) ("The authority of one who acts as judge de facto under color of authority cannot be collaterally attacked. ... Where a party does not object to an irregularity in the appointment of a special judge, he accepts the appointment, submits to the jurisdiction, and waives the irregularity.” (citations omitted)). Furthermore, many of the cases cited in the majority opinion rely for their analysis on constitutional and statutory grounds, invalidating certain uses of commissioners largely because they fail to follow a statutorily prescribed scheme. See, e.g., In re Santa Cruz, 8 Ariz.App. 349, 446 P.2d 253, 254-55 (1968); C.C.C. v. District Court for the Fourth Judicial Dist., 188 Colo. 437, 535 P.2d 1117, 1119 (1975) (en banc); Lewis v. Texas Dep't of Pub. Safety, 407 S.W.2d 855, 856 (Tex.Civ.App.1966). Even the Indiana Supreme Court in Smith, after striking down a statute which purported to "give ... appointed commissioners the full scope of powers held by [a] regular ... judge,” went on to observe that “the appointment of a [commissioner] by a circuit court judge is not necessarily constitutionally improper.” 417 N.E.2d at 1118, 1123. The court pointed out that if proper limitations on authority were observed, the use of commissioners was proper, and specifically approved the extant use in Indiana of referees, probate commissioners, masters, and judges in small claims courts. Id. at 1124.
. It is interesting to note that the majority opinion is not Justice Russon's first opportunity to comment on Utah’s commissioner system. In Holm v. Smilowitz, 840 P.2d 157, 165-68 (Utah Ct.App.1992), then Judge, now Justice, Russon indicated in dicta that Utah's commissioner system was unconstitutional to the extent that it allowed court commissioners to "exercise ultimate judicial power.” In reaching this result, Justice Russon relied almost exclusively on federal case law, case law that turned out to be stale and outdated. Now, after the federal case law upon which he previously relied has proven to be inapposite, Justice Russon relies on a new rationale to strike down Utah's commissioner system — the selection and retention provisions contained in article VIII. The conclusion reached by Justice Russon and the majority appears to be a result in search of a reason.
. In his treatise on Utah constitutional law, Professor Martin Hickman comments that the Welling definition is probably incomplete:
At federal law, the term “judicial power" embraces not only the "right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction,” but also the power: "to punish for contempt of their authority, to issue writs in aid of jurisdiction when authorized by statute, to make rules governing their process in the absence of statutory authorization or prohibitions; inherent equitable powers over their own process to prevent abuse, oppression and injustice, and to protect their own jurisdiction and officers in the protection of property in custody of law, the power to appoint masters in chancery, referees, auditors, and other investigators; and to admit and disbar attorneys.”
Martin B. Hickman, Utah Constitutional Law 135-36 (1954) (unpublished Ph.D. dissertation, University of Utah) (quoting United States Constitution, Revised and Annotated 511-12 (1953)).
. The majority does not cite to any constitutional provision in support of its distinction between "core” and "noncore” judicial functions. Article VIII, section 1 specifically provides that the "judicial power” shall be vested in the “courts.” The term “core judicial functions” does not appear anywhere in the Utah Constitution. Indeed, the term is unknown, to the legal lexicon.
. Implicit in this assertion is the notion that most of the functions exercised by court commissioners are not exercises of the "judicial power of the state of Utah," for if these functions were exercises of judicial power, they would have to be exercised by the judge rather than by a commissioner. If these functions are not, in fact, exercises of the judicial power, the legislature is free to assign them as it will. Theoretically, the legislature could create a system of nonarticle VIII tribunals whose responsibilities would include ruling on pretrial motions, conducting jury trials, recommending sentences, and so forth, as long as the legislature reserves for article VIII judges the ultimate task of signing the final order. In effect, the majority has reduced the "judicial power of the state of Utah" to little more than a ministerial function.
. Utah Code Ann. § 78-3-3 l(6)(a) provides as follows:
The court commissioner may accept pleas of guilty or no contest, impose sentence, and en*863ter final judgment in misdemeanor cases. Upon the informed consent of the defendant, the court commissioner may conduct a jury or nonjury misdemeanor trial in accordance with 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.
. Both section 78-3-31(6) and the Federal Magistrate Act (“FMA”) allow court adjuncts, upon consent of the defendant, to try criminal misdemeanors, impose sentences, and enter final judgments. Compare Utah Code Ann. § 78-3-31(6) with 18 U.S.C. § 3401. In addition, the FMA empowers federal magistrates, upon consent of the parties, to adjudicate civil matters and enter final judgments. 28 U.S.C. § 636(c).
. As does article VIII, section 1 of the Utah Constitution, article III, section 1 of the United States Constitution requires that judicial power be vested in the courts. Article III, section 1 provides:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
. The following courts have upheld the authority of federal magistrates to adjudicate civil matters upon consent of the parties: Goldstein v. Kelleher, 728 F.2d 32, 36 (1st Cir.), cert. denied, 469 U.S. 852, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984); Collins v. Foreman, 729 F.2d 108, 114-15 (2d Cir.), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984); Wharton-Thomas v. United States, 721 F.2d 922, 929-30 (3d Cif.1983); Gairola v. Virginia Dep't of Gen. Servs., 753 F.2d 1281, 1284-85 (4th Cir.1985); Puryear v. Ede's Ltd., 731 F.2d 1153, 1154 (5th Cir.1984); K.M.C. Co. v. Irving Trust Co., 757 F.2d 752, 755 (6th Cir.1985); Geras v. Lafayette Display Fixtures, Inc., 742 F.2d 1037, 1045 (7th Cir.1984); Lehman Bros. Kuhn Loeb, Inc. v. Clark Oil & Ref. Corp., 739 F.2d 1313, 1314-16 (8th Cir.1984) (en banc), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985); Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc., 725 F.2d 537, 543-46 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984); Sinclair v. Wainwright, 814 F.2d 1516, 1519 (11th Cir.1987); Fields v. Washington Metro. Area Transit Auth., 743 F.2d 890, 894-95 (D.C.Cir.1984); D.L. Auld Co. v. Chroma Graphics Corp., 753 F.2d 1029, 1031-32 (Fed.Cir.), cert. denied, 474 U.S. 825, 106 S.Ct. 83, 88 L.Ed.2d 68 (1985).
The foEowing courts have upheld the authority of federal magistrates to try criminal misdemeanors upon consent of the defendant: United States v. Ferguson, 778 F.2d 1017, 1019 (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. Byers, 730 F.2d 568, 570 (9th Cir.) (per curiam), cert. denied, 469 U.S. 934, 105 S.Ct. 333, 83 L.Ed.2d 270 (1984); United States v. Dobey, 751 F.2d 1140, 1143 (10th Cir.), cert. denied, 474 U.S. 818, 106 S.Ct. 63, 88 L.Ed.2d 52 (1985).
.We note that the analytical model established in Pacemaker has subsequently been utilized by courts in analyzing both civil and criminal adjudications by federal magistrates. For instance, in Byers, the United States Court of Appeals for the Ninth Circuit was called upon to analyze the constitutionality of 18 U.S.C. § 3401, which permits magistrates to preside over criminal misdemeanor trials with the consent of the parties. In analyzing that statute, the court held that the appellant’s "arguments must be evaluated in light of Pacemaker." Byers, 730 F.2d at 570. The court went on to hold:
*864Given the Pacemaker majority's emphasis on the curative effects of consent by the parties and control by Article III judges, we cannot, consistent with Pacemaker, hold that consensual reference of criminal misdemeanors violates the constitution.
Id..; see also Dobey, 751 F.2d at 1142-43.
. Justice Russon and the majority claim that "differences between Utah's judicial system and the federal system” mandate a rejection of persuasive federal case law. This assertion is surprising in light of Justice Russon’s heavy reliance on earlier federal case law in Holm. See supra note 2. In support of its contention that federal case law is not persuasive, the majority asserts that "the Utah judiciary, unlike its federal counterpart, is subject to numerous procedures [including nomination by a nominating commis-sión, retention elections, and review by the judicial conduct commission].” Maj.Op. at 852. As indicated above, however, the framers never intended that the judicial selection, retention, and review provisions convert individual judges into "sacred vessels.” Instead, as we have detailed, those provisions were added to the constitution in an effort to settle a dispute between the executive and legislative branches over judicial selection. The majority's reliance on the judicial selection and retention provisions in an effort to distinguish persuasive federal case law is simply misplaced. The majority lists several other differences between the FMA and section 78-3-31. It makes no effort, however, to explain why these superficial differences are significant and, more important, why they dictate the wholesale rejection of a large body of persuasive federal case law.
. Cf. Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 848, 106 S.Ct. 3245, 3255, 92 L.Ed.2d 675 (1986) (holding that one purpose of separation of powers doctrine is to safeguard litigant’s right to have claim decided before judge “ 'free from potential domination by other branches of government'" (citations omitted)); Pacemaker, 725 F.2d at 541 ("[W]e recognize the principle that parties to a case or controversy in a federal forum are entitled to have the cause determined by Article III judges....”); Ferguson, 778 F.2d at 1019 (implicitly recognizing right of criminal defendants to be tried and sentenced before Article III judge); Dobey, 751 F.2d at 1142-43 (same); Byers, 730 F.2d at 570 (same).
. Article VIII mandates the creation of a supreme court and a district court of general jurisdiction. It also grants the legislature broad discretion in creating and defining additional courts. Utah Const, art. VIII, § 1. These legislatively created courts are article VIII courts, whether they be courts of record or courts not of record. The judicial officers that preside over these courts are article VIII judges if they are selected and retained in office in the manner set forth in article VIII. Court commissioners sit as adjuncts of and render decisions as district and circuit courts, which are courts of record. Utah Code Ann. § 78-3-31(6). Therefore, commissioners qualify for article VIII status only if they are selected and retained pursuant to the provisions governing courts of record: (i) nomination by the appropriate nominating commission, appointment by the governor, and confirmation by the senate; (ii) life tenure subject to retention election or discipline by the judicial conduct commission; and (iii) undiminished salary during tenure in office. Utah Const, art. VIII, §§ 8, 9, 13, 14. Commissioners are hired by the judicial council and serve a four-year term subject to removal by the judicial council or judges in the district in which they serve. See Utah R.Jud.Ad-min. 3-201. Thus, commissioners are not article VIII judges.
. Unlike the United States Constitution, the Utah Constitution contains a specific provision mandating separation of powers. Article V, section 1 of the Utah Constitution provides:
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 exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.
. The majority engages in a lengthy analysis of whether prior actions of commissioners are valid under the doctrine of de facto authority. Although we find it unnecessary to conduct such an analysis given our determination that section 78-3-31(6) is constitutional, we agree with the majority’s conclusion, though not its rationale, that prior actions of commissioners are valid. We are puzzled, however, by the majority's further conclusion that it would be "unconscionable” to uphold Ohms’ conviction. According to the majority’s analysis, the commissioner in this case had de facto authority and Ohms' conviction should therefore be upheld. Indeed, this is the result reached by the Indiana Supreme Court in Smith, a case upon which the majority heavily relies. State ex rel. Smith v. Starke Circuit Court, 275 Ind. 483, 417 N.E.2d 1115, 1124 (1981) (invalidating master commissioner system but upholding commissioner's decision based on de facto authority doctrine).