STEWART, Justice (concurring and dissenting):

I concur in the judgment that Senate confirmation of gubernatorial appointees to the offices of Justice of the Supreme Court and judges of the district and circuit courts is unconstitutional under the present method of selecting judges. Because I reach that conclusion on somewhat different grounds from those essayed by Judge Bullock and Justice Howe, I shall set forth the reasons for my conclusion. I think the conclusion unavoidable that senatorial confirmation of those judges named above, as provided in U.C.A., 1953, § 20-1-7.1, § 20-1-7.6(4), when those judges must also stand an election subject to contest, is in violation of Article VIII, § 3 and Article V, as amplified by Article VII, § 10 of the Utah Constitution which specifies when the Senate may confirm appointees. I agree that senatorial confirmation of juvenile court judges, who do not stand election, is constitutional. In brief, senatorial confirmation under the Utah Constitution is part of the appointment power, and under the constitutional provisions may be exercised only as prescribed by the Constitution. Specifically, senatorial confirmation is not permissible when an appointee for office — whether judicial, executive or legislative — must stand an election subject to contest to remain in office.

I also dissent from the holding that judicial selection committees are constitutional. In my view the issue is moot and nonjusticiable.

I.

In 1944 the people of Utah voted to amend the Constitution to dispense with the dubious practice which had existed from Statehood of selecting judges by partisan elections. Prior thereto and for a time after that, judges ran for election on a partisan ticket, as Republicans or Democrats, and generally were voted into and out of office as their political parties succeeded or failed. Merit selection, as an official, specifically designed policy to enlist the most competent candidates, was a stranger to the process. Partisan elections were not designed to promote judicial competence, impartiality, and dedication to the rule of law without regard to outside pressures. The amendment became effective in 1945. The 1945 amendment provided that the method for selecting judges was to be determined by the Legislature. As amended, Article VIII, § 3 now provides:

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, and provided further that the method of electing such judges in effect when this amendment is adopted shall be followed until changed by law. [Emphasis added.]

The initial issue to be addressed is the meaning of the term "in such manner as shall be provided by law . . ." That term was clearly intended to give the Legislature some latitude in devising the manner in which judges should be selected. For example, judges could be selected by gubernatorial appointment, some type of election, or perhaps in some other way. In this case, however, we are concerned only with determining whether the term, "as shall be provided by law . . .," authorized the Legislature to require Senate confirmation.

II.

The inherent and preeminent function of the legislative branch of government is to enact laws of general applicability, to provide normative standards of conduct for society and to provide for the organization and operation of the government. As the United States Supreme Court stated in Springer v. Philippine Islands, 277 U.S. 189, 190, 48 S.Ct. 480, 72 L.Ed. 845 (1928): "Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement." (Quoted with approval in Rampton v. Barlow, 23 Utah 2d 383, 388, 464 P.2d 378, 381 (1970).) Although the Legislature under our constitutional scheme possesses all lawmaking power not denied it by the Utah or the United States Constitutions, State ex rel. Stain v. Christensen, 84 Utah 185, 35 P.2d 775 (1934); State ex rel. Nichols v. Cherry, 22 Utah 1, 60 P. 1103 (1900), it does not possess all the powers of government. It is only "Legislative power" which has been conferred upon the Legislature by the legislative article of the Constitution, Article VI, § 1, not executive or judicial power, with minor exceptions referred to hereafter. In addition, the Constitution confers certain other powers on the Legislature in implementation of the constitutional system of "checks and balances." Such powers are not legislative powers in their nature, but powers that are either executive or judicial. Generally, they are not exercised in the same manner as are legislative powers. The legislative power, the power to make laws, can only be exercised by the joint action of both chambers in the manner prescribed by the Constitution, but not by one chamber acting alone. In re Opinion of the Justices, 303 Mass. 615, 21 N.E.2d 551 (1939); Walker v. Baker, 145 Tex. 121, 196 S.W.2d 324 (1946).

The Constitution specifically restricts the exercise of legislative power in numerous ways by specific prohibitions. E.g., Article VI, § 26, 27, 28, and 29. That power is also limited by the nature of the power itself. In an early case, the Supreme Court of Ohio, in Attorney General v. Kennon, 7 Ohio St. 546, 560-561 (1857), held that the very nature of legislative power does not encompass the appointive power:

To prescribe the manner of election or appointment to an office is an ordinary legislative function. To make an appointment to office is an administrative function. And under a constitution in which the philosophical theory of a division of the powers of government into legislative, executive, and judicial, should be exactly carried out in detail, the power of prescribing the manner of making appointments to office would fall naturally and properly to the legislative department; while the power to make the appointments themselves would fall as naturally and properly to the executive department. This exact adherence to theory, however, is seldom if ever found in any frame of government; and we refer to the distinction simply by way of reply to the claim, on behalf of defendants, in argument, that the power to prescribe the manner of appointments includes the power of appointment itself, and to show that they are acts and powers wholly different and distinct from each other.

And, in a concurring opinion, Swan, J., stated:

Upon this question, it seems to me only necessary to refer to the plain words of the constitution. It provides, in the first place, that "the election and appointment of all officers, and the filling of all vacancies, not otherwise provided for by this constitution or the constitution of the United States, shall be made in such manner as may be directed by law." Now, providing by law the manner in which an appointment shall be made, and making the appointment itself, are two different things: the first is pointing out the mode in which a thing shall be done, and the other is doing the thing itself; the one is legislative and directory, the other administrative. [Emphasis added.] Id. at 570.

Accord: Municipality of St. Thomas St. John v. Gordon, 78 F. Supp. 440 (D.C.V.I. 1948); Handley v. Washburn, 167 Mo. 680, 67 S.W. 592 (1902); State ex rel. University of Minnesota v. Chase, 175 Minn. 259, 220 N.W. 951 (1928). The principle laid down in these cases, that the legislative power may define the manner of selection for an office, but may not make the actual appointment, is an essential part of the doctrine of separation of powers. Municipality of St. Thomas St. John v. Gordon, supra; State ex rel. University of Minnesota v. Chase, supra; Walker v. Baker, 145 Tex. 121, 196 S.W.2d 324 (1946); cf. Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). Moreover, unless the Constitution specifically provides otherwise, the legislative power to determine the manner of selection does not include the power of legislative or senatorial confirmation. The courts have been "unanimous in their holding that confirmation is not a distinct legislative power, but rather a part of the executive power of appointment which has in turn been delegated in some specific instances by constitution to the legislative branch." Bradner v. Hammond, Alaska, 553 P.2d 1, 7 (1976). Accord: Myers v. United States, 272 U.S. 56, 138-39, 47 S.Ct. 32 (1926); State v. Hagemeister, 161 Neb. 475, 73 N.W.2d 625 (1955); Wittler v. Baumgartner, 180 Neb. 446, 144 N.W.2d 62, 67 (1966); Walker v. Baker, 145 Tex. 121, 196 S.W.2d 324 (1946); State v. Dowling, 167 La. 907, 120 So. 593 (1928); People v. Shawver, 30 Wyo. 366, 222 P. 11 (1924). 81A C.J.S. States § 84 (1977).

Therefore, the phrase in Article VIII, § 3, "in such manner as shall be provided by law," only permits the legislative power to be used to determine the manner of selection and the manner of selection does not include confirmation, unless the Constitution in some other specific provision confers that power.

Despite its breadth, it is clear beyond peradventure that the language in Article VIII, § 3 does not confer on the Legislature plenary power over the appointment of judges. Indeed, if that provision were so construed, it would have to be conceded that the Legislature could itself appoint judges under virtually any conditions it chose to impose, a practice that could have the most profound and far-reaching effects for constitutional government. Such a power would enable the Legislature to assert dominance over the Judiciary and effectively destroy it as an independent branch of government. With a Judiciary subservient to the Legislature, the Executive Branch would also eventually experience erosion of its independence, and it would be virtually certain that judicial review — the doctrine which has given critical vitality and efficacy to constitutional government limited by a written constitution — would be destroyed.

Thus, the most basic framework of our constitutional scheme would be subject to revolutionary change by legislative enactment alone. Yet, it has been strenuously argued that Article VIII, § 3 is not restricted by the separation of powers principle and even that the Legislature itself could make judicial appointments. Even the dissent concedes that serious constitutional problems would arise in such a case. If the spectre raised seems extreme, it must, nonetheless, cause one to pause. For, as Mr. Justice Frankfurter stated in his concurring opinion in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 594, 72 S.Ct. 863, 889, 96 L.Ed. 1153 (1952):

The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.

The dissent espouses a theory of separation of powers that would accommodate a substantial intermingling of powers. How much, it is not possible to determine because no effort is made to lay down a standard that distinguishes that which is too much and unconstitutional from that which is not too much and constitutional. Indeed, the principle espoused is so flexible as to admit of no definition. As stated in the dissent: "The principle of separation of powers should therefore be viewed not only in terms of the functional independence of each branch of government, but also in terms of the inevitable and desirable interdependence of each of the three branches, which serves the same purpose." On that view separation of powers is made to turn on a subjective determination of what is and is not constitutional. That concept does not serve as a principled guide for decision making. Certainly no rationale is advanced which justifies expanding legislative power to include the power of confirmation or even appointment — such as was prohibited in Rampton v. Barlow, supra — but which would stop short intrusion in other powers belonging to the other departments.

III.

In my view the Utah Constitution requires adherence to that view of the doctrine of separation of powers stated by Mr. Justice Brandeis in his dissent in Myers v. United States, 272 U.S. 52, 293, 47 S.Ct. 21, 84, 71 L.Ed. 160 (1926):

The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.

The doctrine of separation of powers was explicitly made a part of the Constitution of Utah, to assure that each department would be independent within its own sphere but without the power to dominate another department. Unlike the Federal Constitution, that principle is not left to be deduced from the general structure of the Constitution. Article V, § 1 of the Utah Constitution states:

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. [Emphasis added.]

The framers of the Constitution considered the principle embodied in Article V, § 1 to be of such importance that they wrote that provision to prevent its erosion by implication, strained constructions, or any means which would have the effect of enfeebling that great, overarching principle of constitutional government. Exceptions to the general principle were to be permitted only in cases "expressly directed or permitted" by the Constitution itself, and generally for the purpose of creating checks and balances as between the departments of government.

Several examples are found in the Constitution of express provisions which intermingle some of the great powers of government to temper and restrain the powers of each of the departments. For example, the House and the Senate may exercise judicial power in the form of impeachment proceedings, Article VI, §§ 17, 18; and the Senate may exercise a part of the executive power in participating in the appointive process by consenting or refusing consent to gubernatorial appointments, Article VII, § 10. The Governor is authorized to exercise a legislative power by being invested with the power to veto legislative enactments, Article VII, § 8; to convene extra sessions of the Legislature, Article VII, § 6; and to adjourn the Legislature in case of disagreement between the two houses of the Legislature at any special session, Article VII, § 7. In each case, the exceptions to the doctrine of separation of power are explicitly stated and designed for a particular purpose.

It has been argued that the phrase in Article VIII, § 3, "as provided by law" was intended to permit the Legislature to act without regard for the limitations established by Article V. There is no valid basis in reason or law for such a revolutionary construction. Indeed, the term "as provided by law" is found in numerous places throughout the Constitution, and if that phrase could be interpreted to empower the Legislature to override the separation of powers doctrine with respect to the Judiciary, that doctrine could itself be utterly destroyed, the basic nature of constitutional government completely altered, and the liberties of the people subverted to the extent they depend on separation of powers. For example, the Legislature which has constitutional power to "provide by law" the duties of various state officials, could, if the construction asserted were correct, authorize the Lieutenant Governor or Attorney General to enact laws or the State Auditor or Treasurer to perform judicial functions. See Article VII, §§ 14, 15, 16. It strains credulity past all reason to maintain that the electorate in adopting the present version of Article VIII, § 3 ever intended such a radical, if not revolutionary, destruction of a fundamental precept of government in this State. When the separation of powers doctrine is to be overriden, specific language sufficient to that end was employed in the Constitution in the emergency powers provision. See Article VI, § 30.

It is clear that Article VII, § 3 empowers the Legislature to authorize the Governor to make judicial appointments. That section is the source of the Governor's power, but it is not the case that the position of this opinion rests on the proposition that the executive "has inherent power to select judges," notwithstanding Article VIII, § 3. Nevertheless, the power granted the Legislature is confined within its own limitations and the limitations of the doctrine of separation of powers. The dissent rejects "the idea that the power to select judges is an executive power" in the constitutional sense. That may be. However, although the Legislature might conceivably have selected another means, it authorized the Governor to make appointments, just as it has done in myriad other cases. Having done so, it cannot then go beyond what is "authorized by law."

The key question then is, does the Constitution authorize the Senate to confirm? If not, the Senate may not. To the extent that the Constitution deals generally with the power of appointment, it is dealt with exclusively in the Executive Article, Article VII. Section 9 of that Article vests in the Governor the power to fill a vacancy in any State or district office which becomes vacant when there is no mode provided either by the Constitution or the laws for filling such vacancy. The appointment or commission extends until the next election and qualification of the person elected to such office.

Section 10 authorizes one of the most important of the checks and balances, senatorial confirmation, under certain circumstances. It vests in the Governor the power to nominate "all State and district officers whose offices are established by this Constitution, or which may be created by law . . ." and in the Senate the power to consent to nominations if the officer is not subject to election or his appointment in some other manner than by the Governor. That section states:

The Governor shall nominate, and by and with consent of the Senate, appoint all State and district officers whose offices are established by this Constitution, or which may be created by law, and whose appointment or election is not otherwise provided for. If, during the recess of the Senate, a vacancy occurs in any State or district office, the Governor shall appoint some qualified person to discharge the duties thereof until the next meeting of the Senate, when the Governor shall nominate some person to fill such office. If the office of Lieutenant Governor, State Auditor, State Treasurer or Attorney General be vacated by death, resignation or otherwise, it shall be the duty of the Governor to fill the same by appointment, from the same political party of the removed person; and the appointee shall hold office until a successor shall be elected and qualified, as provided by law. [Emphasis added.]

As stated in Part II, the power of confirmation conferred on the Senate by § 10 is not an exercise of legislative power; it is an aspect of the appointive power. Harman v. Harwood, 58 Md. 1 (1881); Walker v. Baker, 145 Tex. 121, 196 S.W.2d 324 (1946). Indeed, the Legislature, which is the only body that can exercise legislative power, does not perform the act of consenting or not consenting to a gubernatorial appointment; only one chamber of the Legislature acts, and that is not an act of the Legislature under our Constitution. Accord, Chadha v. Immigration and Naturalization Service, 634 F.2d 408 (9th cir. 1980); In Re Opinion of the Justices, 303 Mass. 615, 21 N.E.2d 551 (1939); Walker v. Baker, supra. The power of the Senate to give advice and consent under Article VII, § 10 is a part of the appointment power conferred on the Governor by that provision. Harman v. Harwood, supra; Walker v. Baker, supra. Cf., State v. Di Salle, 172 Ohio St. 363, 176 N.E.2d 428 (1961); State v. Kennon, 7 Ohio St. 546 (1858).

The power of selection under § 10 may be exercised directly by the people in the form of an election, if required by the Constitution or statutes, or by appointment by the Governor, with the consent of the Senate, depending upon whether the appointee must stand election, and possibly in other ways.

The purpose of Article VII, § 10 is to provide a check on the appointment power of the Governor in one of two ways: either by senatorial confirmation or by election, if that follows appointment, but not both. A requirement of both confirmation and an election subject to contest would be, at best, a redundancy; and senatorial denial of a Governor's appointment would deny the people the right to vote on the Governor's first choice. This construction of Article VII, § 10 is not only required by the explicit language of that provision, but it is also consistent with the proposition that the power of senatorial consent should be narrowly construed. Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). The construction is also consistent with the policy underlying the language in § 10 that the Governor shall fill unexpired vacancies in the major elective State offices, i.e., Lieutenant Governor, State Auditor, State Treasurer, and Attorney General without senatorial confirmation. In such cases, the sole restriction upon the power of the Governor in making the appointment is that the appointee must be from the same party as the party of the person who previously held that office.

That a short period will elapse between the time a judge is appointed and the time he must stand election under the present system is of no consequence. The plain fact is that a judge must stand election. Monson v. Hall, Utah, 584 P.2d 833 (1978). The same is also true of other officials who may be appointed subject to later standing election. Exercising the powers of office for the short interim period does not call for confirmation.

In sum, the Governor has power to appoint judges pursuant to legislation which expressly confers that power and which was enacted pursuant to Article VIII, § 3. However, because of the intrinsic nature of legislative power itself, Article VIII, § 3 does not give the Legislature the power to authorize Senate confirmation of a state official. The authority for Senate confirmation can only be found, if it exists at all, in the Constitution. Such authority does not exist in this case as to Supreme Court justices, district court and circuit court judges, because under § 10 their election is otherwise provided for. The dissent and plurality opinion agree that § 10 does not apply — on that there is agreement, although for different reasons. As to juvenile court judges, confirmation is required because they do not stand election.

To contend, as does the dissent, that § 10 is a "backup measure designed to prevent the dilemma of a legally authorized office without a legally prescribed method for filling it," is to misperceive the highly important nature and purpose of § 10. That construction relegates that section to a constitutional redundancy as a "backup" measure for a situation that is covered by Article VII, § 9. The relationship between the branches of government intended by the framers of the Constitution would be seriously disjointed if that construction of § 10 were to prevail.

The practice in the State follows the pattern laid out in § 10. The Department of Social Services is one example. The chief administrative officer of the department is the executive director who is appointed by the Governor with the advice and consent of the Senate. U.C.A., 1953, § 63-35-5. Various division directors are appointed by a board having direction of the particular division, with the concurrence of the executive director of social services. Section 63-35-6. The members of the various boards are appointed by the Governor with the advice and consent of the Senate. See, for example, Section 63-36-1. Thus, the Governor's appointments, who hold major positions of responsibility are subject to Senate confirmation.

Where does the Legislature obtain the power to require the Senate confirmation of the executive director? From § 10. He is appointed by the Governor, and he does not stand election. Those of lesser rank and authority, the division directors, are not confirmed because they are not appointed by the Governor. Numerous other examples of the same general procedure are found throughout the statutes relating to a host of governmental departments and agencies.

If Justice Oaks' interpretation of § 10 were correct, the result would be a wholesale shift of power from the Legislative Branch to the Executive Branch. The immediate consequence of the dissent's conclusion that § 10 is a minor, "back-up" provision is to shatter the constitutional foundation for senatorial confirmation of the literally hundreds of gubernatorial appointments which now are subject to confirmation, and to destroy a firmly rooted principle of constitutional government in Utah.

IV.

The issue of the constitutionality of the judicial nominating commissions is, in my view, moot, and the opinions of the Court addressing that issue are advisory opinions. Prior to the submission of this appeal, the Governor, plaintiff in this action, made his judicial appointments from the names submitted by various judicial nominating commissions. These commissions were formed in compliance with the statutory provision now being challenged. In such a posture, the Governor is not in a position to challenge the constitutionality of the nominating commissions because there is no controversy. Counsel for the parties both conceded before this Court that the issue is nonjusticiable. I agree and think that we should follow well-established rules to the effect that the case which becomes moot on appeal is not justiciable. Duran v. Morris, Utah, 635 P.2d 43 (1981); Baird v. Utah, Utah, 574 P.2d 713 (1978); Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Not only is the case moot but both parties in effect withdrew the issue on oral argument. That the issue may recur is of no consequence when neither party seeks to have this Court pronounce an opinion on an issue. The opinions on the nominating commissions are, therefore, gratuitous. As to this issue, the case should be remanded to the district court for an order of dismissal.

OAKS, Justice (concurring and dissenting):

I concur that the judicial nominating commissions are constitutional, but I dissent from the majority's holding that the law requiring Senate consent to judicial appointments is unconstitutional.

In brief, I differ with Judge Bullock's opinion that the challenged legislation constitutes an unconstitutional legislative exercise of an executive power, because that opinion fails to show that the power to appoint judges is an executive power under the Utah Constitution. (Part III herein.) I differ with Justice Howe's opinion that this legislative involvement in judicial selection violates the separation of powers by giving the Legislature "control" over the judicial branch, because I see no such control on the facts of this case. (Part IV herein.) While I agree with Justice Stewart's opinion that Senate confirmation of juvenile court judges is constitutional, I differ with his conclusion that Article VII, § 10 prohibits Senate confirmation of judges who are subject to contested elections, because in my view that section neither applies to this case nor describes confirmation and election as mutually exclusive alternatives. (Part V herein.)

I. SEPARATION OF POWERS

Separation of powers is a foundation principle in our national and state constitutions. In combination with the complementary devices of checks and balances, separation of powers restrains and regulates the exercise of government power in order to protect individual liberties.

Experience with constitutional government has taught that separation of powers must be applied in a practical rather than a doctrinaire manner. The theoretical separateness and independence of each branch of government is important, but something more is needed to assure that the initial independence of one branch will not be used in practice to infringe upon the independence of another, and to assure that the three branches will harmonize their efforts into an effective government. As the United States Supreme Court observed in its most recent holding on the separation of powers in the United States Constitution:

Yet it is also clear from the provisions of the Constitution itself, and from the Federalist Papers, that the Constitution by no means contemplates total separation of each of these three essential branches of Government. . . . The men who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.

Buckley v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 683, 46 L.Ed.2d 659 (1976). To counter that danger, our constitutions contain a system of checks and balances under which one branch can directly forestall another branch or participate to some extent in its functions.

This counter-balancing or sharing of powers is not inimical to the principle of separation of powers as that principle is implemented by our constitutions. The objectives of separation of powers are, in fact, achieved more by a dynamic relationship of interdependence among the three branches of government than by doctrinaire walls of separation dividing them. Justice Robert Jackson gave classic expression to that idea in his concurring opinion in Youngstown Sheet Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952), which has been quoted and adopted by the entire Court in two subsequent cases on the separation of powers, Buckley v. Valeo, 424 U.S. at 122, 96 S.Ct. at 683, and United States v. Nixon, 418 U.S. 683, 707, 94 S.Ct. 3090, 3107, 41 L.Ed.2d 1039 (1974):

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but independence, autonomy but reciprocity.

A noted constitutional scholar has summarized the practical meaning of the doctrine of separation of powers in these words: "Thus, along both dimensions, that of federalism as well as that of separation of powers, it is institutional interdependence rather than functional independence that best summarizes the American idea of protecting liberty by fragmenting power." L. Tribe, American Constitutional Law, p. 17 (1978).

The principle of separation of powers should therefore be viewed not only in terms of the functional independence of each branch of government, but also in terms of the inevitable and desirable interdependence of each of the three branches, which serves the same purpose.

In the Utah Constitution, the principle of separation of powers is expressed in Article V, § 1, which reads as follows:

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 two clauses of this section express distinct but complementary aspects of the principle.

The reference to "distinct departments" in the first clause establishes the separateness and independence of each branch of government. It therefore prohibits one department from controlling, dominating, or coercing another to the point that it lacks independence in performing its functions, including its serving as a check upon the other two branches of government. E.g., Humphrey's Executor v. United States, 295 U.S. 602, 629-30, 55 S.Ct. 869, 874, 79 L.Ed. 1611 (1935). Justice Howe's opinion, discussed in Part IV herein, relies on this principle.

The prohibition in the second clause against an official in one branch "exercis[ing] any functions" pertaining to another branch is an application of the principle of separation of powers to a circumstance falling short of control or domination but amounting to an invasion by one branch of a part of the prerogatives or functions of another. E.g., Rampton v. Barlow, 23 Utah 2d 383, 464 P.2d 378 (1970); Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928). Judge Bullock's opinion, discussed in Part III herein, relies on this clause.

The reasons for my dissent are elaborated in Parts III, IV, and V. Part II provides essential background by reviewing the history and constitutional basis of the power of judicial selection in this state.

II. HISTORY

From the time of statehood until 1945, district and supreme court judges were chosen by popular election, as required by the original provisions of Article VIII, §§ 2, 5 of the Constitution. Candidates were nominated in political conventions. Article VII, § 10 authorized the Governor to fill vacancies in these offices by appointment, with the appointees serving until their successors were elected and qualified as provided by law. These specific provisions kept judges from being selected under the general provision in the first sentence of Article VII, § 10, still in effect, which provides:

The Governor shall nominate, and by and with the consent of the Senate, appoint all State and district officers whose offices are established by this Constitution, or which may be created by law, and whose appointment or election is not otherwise provided for.

By constitutional amendment effective in 1945, these provisions for the election of judges were deleted, and the following was added to Article VIII, § 3:

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, and provided further that the method of electing such judges in effect when this amendment is adopted shall be followed until changed by law.

From 1945 until 1951, district and supreme court judges continued to be chosen by popular election pursuant to the final proviso of Article VIII, § 3, since the Legislature had not exercised its delegated power to pass a law providing otherwise. In 1951, the Legislature provided for nonpartisan election of district and supreme court judges on the so-called "headless ballot." 1951 Utah Laws ch. 38. The Governor filled vacancies by appointment to serve until the next election. Article VII, § 9.

In 1967, the Legislature enacted a law establishing a judicial nominating commission, consisting of the Chief Justice of the Supreme Court, one commissioner chosen by the Senate, and one by the House of Representatives, two by the Governor, and two by the Utah State Bar Association. The Governor was authorized to fill vacancies in the supreme and district courts "by appointment . . . of one of three persons nominated" by the judicial nominating commission, but the persons so appointed were subject to election by the voters at the next succeeding general election. 1967 Utah Laws ch. 35.

Since 1967, district and supreme court judges have been appointed by the Governor from the three persons nominated by the judicial nominating commission. In those 14 years, which included the selection of numerous judges, the nominating commissions have not been challenged as a violation of the separation of powers. In fact, the commission's composition of designated representatives of all three branches of government and of the legal profession, who must be equally divided according to political affiliation, seems well calculated to offset concerns about disproportionate influence from any particular faction in the selection of judges. Limiting the Governor to appointing one of three persons so nominated is an appropriate implementation of the constitutional command that "selection shall be based solely upon consideration of fitness for office without regard to any partisan political considerations. . . ." Article VIII, § 3.

The controversy in this case arose in 1981 when the Legislature, over the Governor's veto, provided that the Governor's appointments of district, circuit, juvenile, and supreme court judges must be made "with the advice and consent of the Senate." 1981 Utah Laws ch. 106, §§ 1, 2, 3.

III. SELECTION OF JUDGES AS AN EXECUTIVE POWER

It is easy to demonstrate that the separation of powers principle in the Utah Constitution forbids legislative exercise of a function of another branch. That circumstance is covered by the plain language of the second clause of Article V, § 1, and that was the holding in Rampton v. Barlow, supra, (executive function), and In re Handley's Estate, 15 Utah 212, 49 P. 829 (1897) (judicial function). There will be circumstances where it is difficult to distinguish between the forbidden intermingling of functions, on the one hand, and the inevitable and desirable interdependence of the three branches of government, on the other. But that difficulty is not a matter of controversy in this dissent. My difference with Judge Bullock's opinion lies in my conclusion that it has failed to demonstrate that the power to select judges is one of the "functions appertaining to" the executive department under the Utah Constitution. Unless the Constitution confers that power on some branch other than the legislative, the second clause of Article V, § 1 obviously does not condemn the exercise of some of that power by the legislative branch.

The assertion or assumption that the appointment of judges is an executive power or function is an explicit premise in Judge Bullock's opinion and is implicit in the other opinions explaining the majority's result. But the existence of such an important power must be demonstrated by identifying its source. Questions addressed to the sources of government power are not technical or academic questions. The courts should be vigilant to scrutinize the sources of, as well as the limitations upon, the powers exercised by any branch of government. Since it is not granted expressly in our Constitution, any executive power of this nature must be inherent in the executive or impliedly granted in other provisions of the Constitution.

Article I, § 2 of the Utah Constitution expresses a fundamental principle of American political life: "All political power is inherent in the people; . . . ." The executive, legislative, and judicial branches of government may exercise only the powers conferred on them by the people through the Constitution or through statutes enacted under the Constitution. Conversely, if the people have not conferred a power on any of these branches of government, they do not have it. The idea that the executive can possess a power not actually delegated by the people typifies a monarchy and is repugnant to a republic where the people, not the crown, are sovereign.

Our Constitution does not expressly confer the power to appoint judges on the executive or on any other branch of government. Until 1967, the Constitution provided that judges would be selected by popular election, with executive power to fill vacancies until the next election. Since 1967, judges have been appointed by the executive pursuant to statutory authority in the legislation creating the judicial nominating commissions. The power to enact that legislation was specifically conferred by Article VIII, § 3 of the Constitution, quoted above. The only constitutional provision authorizing executive appointment of judges is the general provision in Article VII, § 10, also quoted above, which provides that the Governor shall appoint "by and with the consent of the Senate" all state and district officers whose appointment or election is not otherwise provided for.

The Utah Constitution provides no basis for an implied power in the executive or Legislature to appoint judges. The very existence of an express constitutional provision (Art. VIII, § 3) specifying that judges shall be selected as provided by law stands as an insurmountable barrier to the existence of an implied power on the same subject. The separation of powers provision in Article V, § 1, which forbids one branch from exercising "any functions appertaining to either of the others," provides no basis for implying a power of judicial selection in any branch of government. "The separation of powers is a limitation and not a grant" of power; "it does not designate the character of the appointive power. . . ." 1 Sutherland, Statutes and Statutory Construction § 3.20 (4th ed. D. Sands 1972).

The power to select judges is not inherent in the executive or any other branch of government. The idea of inherent powers is repugnant to our government of popular sovereignty and delegated powers.

Tradition obviously demonstrates the acceptability and workability of executive appointment of judges, just as in the United States Constitution, where judges are appointed by the executive with the consent of the senate. Like Utah, a large majority of states have executive appointment of judges. But this "tradition" proves rather than contradicts the rule that the power to appoint judges is not inherent in the executive. A majority of state governors exercise judicial appointive power — usually to fill interim vacancies — for the straightforward reason that a majority of state constitutions expressly grant their governors this power. In a few states, the legislature appoints judges, or dominates the selection process, a practice that also prevailed in five of the original thirteen states at the time the United States Constitution was adopted. But these practices do not prove that the power of judicial selection is inherent in the Legislature, only that the power resides where the individual states, through their constitutions, have seen fit to place it.

So far as I am aware, the authorities are unanimous in holding that the power of judicial selection is not an inherent executive power. E.g., State ex rel. Swope v. Mechem, 58 N.M. 1, 265 P.2d 336, 338 (1954); 48A C.J.S., Judges §§ 12, 13 (1981); 46 Am.Jur.2d, Judges § 9 (1969). In fact, the weight of authority holds that the power to appoint nonjudicial government officers does not reside in the executive inherently or by implication, but only as specifically granted by state constitutions or statutes. As to judicial officers, the opinions of members of the majority have failed to cite a single state whose governor exercises the power to appoint judges inherently, by implication, by tradition, or by any authority other than a specific grant of such power by the constitution or laws of the state.

Since there is no basis for holding that the Utah Constitution makes the power to appoint judges an executive power, I cannot see how legislative participation in the selection process can violate the second clause of Article V, § 1. The irony behind the majority's argument of unconstitutionality is that the source of the executive power to participate in the selection process is precisely the same as the source of the legislative power to participate. Both branches trace their authority to the same statute enacted pursuant to express delegation in the same constitutional provision, Article VIII, § 3, quoted above. I cannot see how this law can be constitutional as to the Governor's power and function but unconstitutional as to the Legislature's power and function.

IV. LEGISLATIVE CONTROL OVER THE JUDICIARY IN THE APPOINTMENT OF JUDGES

Article V, § 1 of the Constitution provides that "[t]he powers of the government of the State of Utah shall be divided into three distinct departments. . . ." I agree that there is a point at which one branch's control over another would violate the distinctness mandated by this section. However, I do not agree that that point has been reached in this case.

Justice Howe's opinion argues that Senate consent to judicial appointments, in combination with the Legislature's right to designate two members of the seven-member judicial nominating commission, tips the scales into unconstitutionality by giving the Legislature, in effect, unlimited control over the judicial branch. I dissent from that conclusion, since I believe that the level of legislative control over the judicial branch in the statutes at issue in this case falls far short of offending the prohibition against one branch controlling or dominating another. The procedure outlined in these statutes exemplifies the sharing of powers and the interdependence of different branches of government discussed in Part I, which are familiar manifestations of separation of powers and checks and balances. Indeed, despite the variety of appointment and removal provisions at work in the 50 states of our nation over its 200-year history, the majority has failed to cite a single case where a law has been held unconstitutional on the basis of one branch's control of another. This suggests that more than minimal control is required for a finding of unconstitutionality.

In determining the constitutionality of the level of legislative control of the judiciary permitted by the appointment legislation challenged here, we must be mindful of two vital principles of law and construction. First, statutes are presumed to be constitutional, and will not be invalidated if, resolving every reasonable doubt in favor of their constitutionality, there is any reasonable basis upon which they can be sustained. Zamora v. Draper, Utah, 635 P.2d 78, 80 (1981); Greaves v. State, Utah, 528 P.2d 805, 806-7 (1974); Trade Commission v. Skaggs Drug Centers, Inc., 21 Utah 2d 431, 446 P.2d 958 (1968); State v. Packard, 122 Utah 369, 373, 250 P.2d 561, 563 (1962); Broadbent v. Gibson, 105 Utah 53, 62, 140 P.2d 939, 943 (1943). Second, "It is a well-established rule of constitutional law that where there are two alternatives as to the interpretation of a statute, one of which would make its constitutionality doubtful and the other would render it constitutional, the latter will prevail." Wagner v. Salt Lake City, 29 Utah 2d 42, 49, 504 P.2d 1007, 1012 (1972). Accord, Gord v. Salt Lake City, 20 Utah 2d 138, 143, 434 P.2d 449, 453 (1967); State Water Pollution Control Board v. Salt Lake City, 6 Utah 2d 247, 255, 311 P.2d 370, 375 (1957). As a result of these well-settled principles, all doubts must be resolved in favor of constitutionality, and the Court is obligated to adopt any reasonable construction of a statute that will assure its constitutionality in preference to any construction that would jeopardize it.

These principles surely refute the district court's construction of the Senate's power of "advice and consent" as, in effect, a power to appoint its own preference among the three persons nominated by the commission. Being required to adopt the construction that will sustain constitutionality, we should conclude that the Senate's power is not a power to appoint but only a power to veto. If an appointment is vetoed, the nominating commission must again submit three names, so the Governor can again exercise his statutory power to appoint one of three nominees. The Senate cannot veto in succession two of the three persons originally nominated by the commission and thus preempt the Governor's power of appointment.

It is hard to see how the Senate's veto power can be an effective instrument of control when its exercise is so strictly limited by our Constitution. Article VIII, § 3 binds each department of government to exercise its powers of judicial selection "solely upon consideration of fitness for office without regard to any partisan political considerations and free from influence of any person whomsoever. . . ." Consequently, unlike appointments made under other legal authority, gubernatorial appointments under Article VIII, § 3 can be vetoed by the Senate only when the appointee can be shown to be unfit for office. Like other constitutional limitations regulating the process of selecting judges, this restriction is enforceable in the courts. This Court's decision in Rampton v. Barlow, supra, though not in point in resolving the question posed in this case, shows that the courts will provide a remedy where constitutional limitations are exceeded in the appointment process.

In addition to the Senate's power to veto, each house of the Legislature has the power to designate one commissioner on the seven-member judicial nominating commission. In total, the Legislature designates two of seven, the same number as the Governor. Since these two branches designate the same number of persons on the judicial nominating commission, and the Governor has the power to appoint one of the three nominees while the Senate only has a limited veto power, how can the judicial branch be "controlled" by the Legislature? On the contrary, the balance of power seems to be in the Governor's favor. In any case, the power of judicial selection is shared sufficiently to protect the judicial branch from control or domination by either of the others.

It is also said that the Legislature's power to impeach public officers, including judges, "for high crimes, misdemeanors, or malfeasance in office," Article VI, § 19, and its power, upon a two-thirds vote of both houses, to remove a judge for "cause," Article VIII, § 11, makes the legislative control even more offensive. But these constitutional provisions do not grant the Legislature carte blanche power to replace judges. The decisions of legislative bodies are final and unreviewable on the questions the Constitution commits to their judgment, but the courts can always review whether they have acted outside their jurisdiction or otherwise in excess of their powers. Ferguson v. Maddox, 114 Tex. 85, 263 S.W. 888, 893-94 (1924). Cf. Powell v. McCormack, 395 U.S. 486, 506, 549, 89 S.Ct. 1944, 1956, 1978, 23 L.Ed.2d 491 (1969). This would include correction of actions taken without the due process appropriate to the circumstances or without a reasoned finding of the guilt or "cause" required by the Constitution. Consequently, these provisions add relatively little to the Legislature's quantity of control over the judicial branch.

In view of the intricate system of limitations, checks, and balances involved in the selection of judges, involving the electorate (who vote on appointees at the next general election) and representatives of all three branches of government and the State Bar, the contention that the Legislature's right to appoint two of seven members of the nominating commission, to veto the Governor's appointment, and to remove for cause amounts to control or dominance over the judicial branch strikes me as entirely unpersuasive. This kind of shared or balanced power is commonplace in the interaction of the three branches of our government. It is entirely consistent with the interdependence of the three branches of government that is an essential complement of the separation of powers. To hold that this limited interdependence violates the separation of powers is to run counter to practical experience with constitutional government and to invite a flood of pointless litigation challenging official acts.

V. THE REQUIREMENTS OF ARTICLE VII, § 10

I am also unable to agree with Justice Stewart's opinion that the constitutional power to enact laws specifying the manner of selection of judges cannot be exercised to require both Senate confirmation and contested election. My difference with Justice Stewart stems from a difference on the source of executive and legislative power to participate in the selection of judges.

In my opinion, the Governor's power to appoint and the Senate's power to confirm judicial appointments are rooted in Article VIII, § 3, which provides that judges shall be selected "in such manner as shall be provided by law. . . ." As noted in Parts III and IV, I concede that laws enacted under that section must be consistent with constitutional limitations, including the separation of powers principles in Article V, § 1, but I conclude that the laws providing for judicial nominating commissions, gubernatorial appointment, Senate confirmation, and ensuing election meet that test.

Although Justice Stewart's opinion cites Article VIII, § 3, I can only interpret its reasoning as a rejection of that section and its implementing legislation as a source of power for executive appointment and Senate confirmation or veto. Thus, he states that the Governor's power of appointment and the Senate's power of confirmation are both granted by Article VII, § 10. He also states that both of these powers are subject to the limitations he finds in Article VII, § 10, notably that the law cannot require both Senate confirmation and popular election. Finally, he states that the Senate's power of confirmation is not a legislative power but "an appointive power," which cannot be exercised by a legislative body without the specific authorization he finds only in Article VII, § 10. In this context, this contrast between "legislative" and "appointive" powers persuades me that Justice Stewart equates "appointive power" with executive power and impliedly joins the other opinions in concluding that the power to select judges is inherent in the executive branch except as expressly limited by the Constitution. I have four disagreements with the analysis in his opinion.

First, for the reasons detailed in Part III, I reject the idea that the executive under our Constitution has an inherent power to select judges. The power to select judges exists where the Utah Constitution expressly places it: in the authorities designated by a law enacted under Article VIII, § 3 (provided the law is constitutional), or, in the absence of such a law, in the authorities the Constitution designates in Article VII, § 10.

Second, I do not accept Justice Stewart's apparent premise that the terms of Article VII, § 10 limit the power to select judges under legislative enactments pursuant to Article VIII, § 3 or any other constitutional provision. Article VII, § 10 merely specifies a procedure for selecting state officers "whose appointment or election is not otherwise provided for." It is a backup measure designed to prevent the dilemma of a legally authorized office without a legally prescribed method for filling it. Rampton v. Barlow, 23 Utah 2d at 385, 464 P.2d at 379. Since the "appointment or election" of judges is "otherwise provided for" by Article VIII, § 3 and legislation thereunder, Article VII, § 10 is, by its own terms, inapplicable to this case. If there is no alternate selection mechanism for other state officers, they will be selected under Article VII, § 10, and subject to its limitations, but that is not the case with judges.

Third, I also disagree with Justice Stewart's interpretation of the terms of Article VII, § 10. The selection mechanism prescribed in the first sentence of that section does not apply as to officers "whose appointment or election is . . . otherwise provided for." The laws challenged here require that district, circuit, and supreme court judges shall be subject to election following their appointment and confirmation. As a result of that requirement, he concludes that Senate confirmation cannot also be required. But why does the fact that judges must stand for election invalidate the Senate's power to confirm but not the Governor's power to appoint? The answer lies in the apparent premise that the power to appoint is an executive power, existing independent of its conferral in Article VII, § 10, but subject to regulation by it. Thus, as he says, the references to senatorial consent and election in that section are alternative checks on the appointive power of the Governor. But since the Governor's power is not dependent on its conferral in Article VII, § 10, the law requiring an election, which renders senatorial confirmation invalid under his view of that section, does not invalidate the Governor's power. Since I reject the premise, I also reject the conclusion that senatorial consent and popular election are permissible in the alternative but not together.

Fourth, I also disagree with Justice Stewart's conclusion that the issue of the constitutionality of the judicial nominating commission is moot. In his complaint in this case, the Governor seeks a judgment declaring that the statute establishing the composition of the nominating commission is unconstitutional. So long as the Governor has an appointive role in filling judicial offices that may become vacant at any time, his complaint is justiciable under the declaratory judgment statutes, U.C.A., 1953, § 78-33-1 et seq., and cannot be mooted by appointments he has made in the past. This is especially true since the Governor had to make an appointment during the pendency of this litigation in order to preserve his rights under U.C.A., 1953, § 20-1-7.6(3), which specifies that if "the governor fails to appoint one of the three [nominees] within 30 days . . . the chief justice of the Supreme Court shall forthwith appoint one of the persons named on the list. . . ." Since 30 days is obviously an insufficient period to litigate the controversy, even if this case were technically mooted by an appointment it would nevertheless be justiciable under "well-established rules which permit a court to litigate an issue which . . . is of wide concern, affects the public interest, is likely to recur in a similar manner, and, because of the brief time any one person is affected, would otherwise likely escape judicial review [citations omitted]." Wickham v. Fisher, Utah, 629 P.2d 896, 899 (1981).

VI. CONCLUSION

For the reasons set out above, I find no constitutional infirmity in the laws, enacted pursuant to Article VIII, § 3 and consistent with separation of powers principles, which utilize nominating commissions, gubernatorial appointment, senatorial confirmation, and popular election in the selection of judges.

I reach my conclusion notwithstanding my skepticism about the desirability of a law requiring Senate confirmation of judicial appointments. Participation in judicial selection by a Legislature that is only occasionally in session may delay the process of filling judicial vacancies and thereby hamper the courts in overcoming current heavy caseloads, even as the supreme and district courts have been hampered by the delays incident to resolving this controversy. But the wisdom or desirability of legislation is a matter for the constitutional lawmakers — the Legislature, subject to executive veto. "It does not lie within the province of the court to pass upon the wisdom, the need or the desirability of any legislation, nor to choose between two opposing political philosophies." Trade Commission v. Skaggs Drug Center, Inc., 21 Utah 2d at 439, 446 P.2d at 963. The only question before this Court is whether the legislation providing for judicial selection is constitutional. I have no doubt that it is.