Scott v. Ryan

¶1(dissenting).

¶2I dissent because:

¶31) This case is moot, and to entertain it is to decide a case on a constitutional ground that does not require expediency.1 This matter has been a comedy of errors to date and to issue an opinion on the state of the record is to renege under and ignore something that calls for a declaratory judgment scenario. The record, such as it is, indicates that defendant was afforded due process at a preliminary hearing and that bail was denied, since he had been and was on probation in a series of misdemeanors, and was bound over for trial on a felony charge which now is pending, and will be tried in two weeks. His own counsel, in a letter to this court, dated March 3, 1976, said, in referring to “State v. George Scott and Darletha Scott,” that “We have postponed the Darletha Scott trial until Monday, March 8, so the issue will not become moot until after that time.” The right to bail is sacred but not absolute under the Federal Constitution’s Eighth Amendment2 nor under Utah’s Article 1, Section 8, which was passed as a result of some kind of a “Commission” tinkering with the Constitution.

¶42) The main opinion, with what appears to be a degree of naivete, says that the subject constitutional provision (Article 1, Section 8), which says the offense may not be bailable if, having been charged with felony, is “on probation or parole,” really means “on probation or parole on a felony charge.” The amendment says no such thing, and the main opinion is tinkering with the Constitution, not only by judicial legislation, but by what I believe to be un*238authorized illogic, by adding to it the words “on a felony charge.” These words just aren’t there and- personal opinion cannot supply them.

¶5All the main opinion is doing is saying we have a hot potato and we’ll cool it with icy verba ge. Best we leave it to burn our digits than to prostitute ourselves to an easy alley exit, — which will never condone judicial pandering about constitutional language.

¶6Matter of fact: This case is moot, — needs no deciding now, — has no absolute or other kind of necessity for determination at this time, — and should be ignored.

¶7Failing that, this court simply should say the language of the amendment may be unfortunate and illy drafted, but is neither obscure nor ambiguous. Any luxury to twist it must lie with us, not rhetoric, — if published. The case should be rejected as being moot, frivolous, premature and dangerously academic. If there must be a more than useless gesture here for the edification of an already over-burdened attempt to edify the Bench and Bar, — the trial court soundly should be affirmed.

¶8Someone suggested that probation or parole applies only to felonies, but this is unsupported by any suggested or cited authority.

¶9I am convinced that whoever concocted the 1971 Amendment did not have in mind such a conclusion, but more reasonably may have examined Black’s Law Dictionary, where “parole” is defined as:

A conditional release: condition being that, if prisoner makes good, he will receive an absolute discharge from balance of sentence, but, if he does not, he will be returned to serve unexpired time.

¶10And where “probation” is defined as:

In modern criminal administration, allowing a person convicted of some minor offense (particularly juvenile offenders) to go at large, under a suspension of sentence, during good behavior, and generally under the supervision or guardianship of a “probation officer.”

¶11There is nothing I know of m our State Constitution or statutes that says the words “probation” or “parole” enjoy the luxury of any connotation restricted to felonies, and my guestimate is that the word “probation” is employed descriptively and practically 10,000 times more frequently to “misdemeanors” such as reckless driving, riots, shoplifting, assaults, batteries, and the like, than to “felonies.”

¶12Whether our Constitution Article 1, Section 8, is vulnerable to unconstitutionality as may some day be decreed by the United States Supreme Court, or as some irreverent one might say an “act of God,” is one thing, but for this court to change our State Constitution by adding convenient, but completely unwarranted language to it, is to Marshall it with an undisguised interdiction amounting to not only judicial legislation, but judicial usurpation of power reserved to another branch of government, — and to the people, who voted for the amendment that contains no words even remotely assimilative in its language.