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Full Opinion
STATE of Utah, Plaintiff and Appellee,
v.
Asipeli MOHI, Defendant and Appellant.
STATE of Utah, Plaintiff and Appellee,
v.
Phillip Daniel LUNDQUIST, Defendant and Appellant.
STATE of Utah, Plaintiff and Appellee,
v.
Daniel Rodrigo CHAIDES, Defendant and Appellant.
Supreme Court of Utah.
*993 Jan Graham, Atty. Gen., Carol Clawson, Julie George, J. Kevin Murphy, Asst. Attys. Gen., Salt Lake City, for plaintiff.
Ronald J. Yengich, Hakeem Ishola, Salt Lake City, for Mohi.
Linda Anderson, Provo, for Lundquist.
Thomas H. Means, Provo, and Lee C. Rasmussen, Salt Lake City, for Chaides.
DURHAM, Justice:
This case is a consolidation of appeals of defendants Asipeli Mohi, Phillip Daniel Lundquist, and Daniel Rodrigo Chaides from interlocutory orders of the Third Judicial District and Fourth Judicial Circuit Courts. Defendants challenge the constitutionality of portions of Utah's Juvenile Courts Act (the Act).[1] In all three cases, the trial courts *994 below denied defendants' motions that the trial courts rule portions of the Act unconstitutional. Defendants ask this court to reverse the trial courts' findings and hold unconstitutional the portions of the Act that allow prosecutors discretion to file some charges against juveniles directly in adult circuit or district court while leaving other similarly accused offenders in juvenile court. See Utah Code Ann. § 78-3a-25.
FACTS
Asipeli Mohi
The State alleges that on September 1, 1993, Asipeli Mohi (Mohi) intentionally or recklessly caused the death of Aaron Chapman with a firearm or facsimile thereof. Several witnesses have identified Mohi as the person who shot Chapman. A criminal information was filed against Mohi on September 8, 1993, pursuant to the direct-file provisions of Utah Code Ann. § 78-3a-25(6)(b), Mohi was born on January 3, 1976, and was thus approximately seventeen years and eight months of age at the time of the alleged crime, four months short of the age of majority.
Mohi has been represented by counsel since being charged. The direct-file statute under which Mohi was charged provided that when an information was filed in district or circuit court against a juvenile, the defendant or his or her guardian or representative could file a "recall motion" with the juvenile court within ten days of the original filing. See Utah Code Ann. § 78-3a-25(10). Neither Mohi nor his counsel filed a recall motion.
Mohi was bound over to stand trial in district court. In November and December of 1993, Mohi filed amended motions and supporting memoranda asking the court to rule the direct-file provision of Utah Code Arm. § 78-3a-25 unconstitutional pursuant to article I, sections 7 (due process) and 24 (uniform operation of laws) of the Utah Constitution. In January 1994, Judge Iwasaki entered findings of fact arid conclusions of law upholding the constitutionality of the direct-file statutes. This court granted Mohi's petition for an interlocutory appeal from that order.
Phillip Daniel Lundquist and Daniel Rodrigo Chaides
Phillip Daniel Lundquist (Lundquist) and Daniel Rodrigo Chaides (Chaides) were jointly charged by criminal information, filed March 17, 1994, with one count each of aggravated burglary, a first degree felony; aggravated robbery, a first degree felony; and theft of a vehicle, a second degree felony. Lundquist alone was charged with a fourth count, theft of a firearm, a second degree felony. The information noted the State's intent to seek penalty enhancement on each of the aggravated burglary and aggravated robbery charges for use of a firearm or a facsimile of a firearm.
Lundquist and Chaides were initially held at a juvenile detention center. However, following a bond hearing in Fourth Judicial Circuit Court, both defendants were sent to the Utah County Jail rather than to the juvenile facility to await trial. On March 24, 1994, the circuit court heard arguments regarding the appropriate housing facility for juveniles charged as adults. After this hearing, defendants were returned to the Utah County Jail for further detention.
Lundquist and Chaides bring this appeal to challenge first the constitutionality of the amended direct-file statute and second the order placing them in the county jail rather than in a juvenile detention center. The direct-file provision used to charge Lundquist and Chaides differs from the earlier version of the statute used to charge Mohi in that the amended statute did not, in this instance, allow for a recall hearing regarding the propriety of adult jurisdiction. Lundquist and Chaides raise the same claims regarding the Act as Mohi does, with additional arguments that the amended statute deprives them of due process under both the state and *995 federal constitutions by eliminating the chance for recall and that section 78-3a-25 violates the state constitutional provision requiring separation of powers. See Utah Const. art. V, § 1. Lundquist and Chaides also argue that the statute relied upon by the trial court to house them in the county jail rather than in juvenile detention while awaiting trial, Utah Code Ann. § 78-3a-30(9), is unconstitutionally vague for failing to clarify when it is proper for juveniles to be housed with adults.
ANALYSIS
I. Standard of Review
All issues in this case present questions of law. We therefore review the trial courts' conclusions for correctness. Erickson v. Schenkers Int'l Forwarders, Inc., 882 P.2d 1147, 1148 (Utah 1994); State v. Pena, 869 P.2d 932, 936 (Utah 1994); State v. Thurman, 846 P.2d 1256, 1269-70 (Utah 1993). While ruling on the constitutionality of a statute, we will resolve doubts in favor of constitutionality. Society of Separationists, Inc. v. Whitehead, 870 P.2d 916, 920 (Utah 1993).
II. Uniform Operation of Laws
Defendants attack the direct-file provision of the Act under article I, section 24 of the Utah Constitution, which states, "All laws of a general nature shall have uniform operation." Utah Const. art. I, § 24. Defendants contend that section 78-3a-25 of the Code violates this provision by creating a scheme that treats one class of persons charged with a particular crime differently than another class of persons charged with the same crime. Defendants define the different "classes" created by the statute as (1) those accused of serious felony offenses who remain subject to the jurisdiction of the juvenile court and (2) those accused of identical offenses against whom the prosecutor files a criminal information in circuit or district court, or against whom a prosecutor obtains a criminal indictment. This arbitrary classification scheme is not reasonably related to any state interest, defendants argue, because the legislation is devoid of any reason for permitting identically situated juveniles to receive disparate treatment, resulting in one group that is eligible for rehabilitation in the juvenile system and another that faces the very different circumstances of the adult system. Defendants argue that no state interest is served by allowing such unreasonable disparity.
The State responds to these arguments first by claiming that defendants have not proven that the statute is applied in an uneven-handed way. Because the statute does not, according to the State, on its face create unreasonable classifications, defendants should have the burden of showing that the State actually afforded specific, like-situated juveniles different, more favorable treatment than that accorded these defendants. Because no such evidence was produced, the State contends, defendants' challenge must fail. Furthermore, the State claims that contrary to defendants' contentions, this court in State v. Bell, 785 P.2d 390 (Utah 1989), already decided that the direct-file statute does not violate either the federal or state constitution.
We begin by clarifying the level of scrutiny used in deciding the constitutionality of the statutes in question under the state constitution. Defendants contend that the statute touches and concerns a "liberty" interest and therefore the legislature's actions must be reasonable in relation to the state's need to enact such statutes. The State contends, however, that being tried as a juvenile is not a constitutional right and therefore the legislature's actions in adopting the ordinance must be only rationally related to the state's interest in preserving the peace.
In State in re Clatterbuck, 700 P.2d 1076, 1079 (Utah 1985), we held that a juvenile's interest in his or her trial forum touched and concerned a "critical" interest. "We agree that whether a juvenile is to be transferred to the adult system is a `critically important' question and that a juvenile must, be afforded appropriate procedural protections when that determination is made." Id. (quoting Kent v. United States, 383 U.S. 541, 553, 86 S.Ct. 1045, 1053, 16 L.Ed.2d 84 *996 (1966)).[2] In Blue Cross & Blue Shield v. State, 779 P.2d 634, 637 (Utah 1989), we discussed at some length the level of scrutiny applied to legislation challenged under article I, section 24. There we held, "In scrutinizing, a legislative measure under article I § 24, we must determine whether the classification is reasonable, whether the objectives of the legislative action are legitimate, and whether there is a reasonable relationship between the classification and the legislative purposes." Id. (emphasis added) (citations omitted); accord Mountain Fuel Supply Co. v. Salt Lake City Corp., 752 P.2d 884, 890 (Utah 1988); Malan v. Lewis, 693 P.2d 661. 671 (Utah 1984); see also Lee v. Gaufin, 867 P.2d 572, 577 (Utah 1993). The burden of demonstrating unconstitutionality, however, remains a heavy one. Blue Cross, 779 P.2d at 637; City of West Jordan v. Utah State Retirement Bd., 767 P.2d 530, 537 (Utah 1988). Therefore, we will uphold the statute unless defendants demonstrate that the state's interest in protecting the public and addressing the needs of juveniles is not reasonably related to the state's course of action in passing the statutory provisions in question.[3]
Related questions were treated by this court in Bell. The State argues that Bell resolved the issues that are now before us. Defendants argue, on the other hand, that Bell spoke only to claims Linder the federal Equal Protection Clause and that their claims under article I, section 24 of the Utah Constitution have yet to be addressed. We agree with defendants that Bell did not fully resolve all issues now before the court.
Bell involved a juvenile convicted of aggravated robbery and attempted second degree murder. In part I of that opinion, a majority of this court set aside the defendant's conviction of attempted second degree murder under the felony murder provision of the statute. In parts II and III of the Bell opinion, a constitutional challenge to section 78-3a-25 of the Code was discussed. It is critical to note, however, that these sections of the lead opinion in Bell failed to carry a majority of the court. Id. at 407 (Howe, Assoc. C.J., concurring; Stewart, J., concurring in the result; Durham & Zimmerman, JJ., dissenting). Therefore, those sections of the lead opinion discussing the direct-file provision of the Utah juvenile Courts Act do not constitute binding precedent. Moreover, Bell analyzed the direct-file provisions only under the federal Equal Protection Clause. Id. at 395 n. 23. Thus, the state constitutional questions new raised by defendants have not yet been addressed by this court.[4]
*997 We begin by addressing the contours of article I, section 24 of the Utah Constitution. We most recently discussed this provision in Lee:
Although this provision is sometimes thought to have the same effect and impose the same legal standards on legislative action as the equal protection guarantee found in the Fourteenth Amendment to the United States Constitution, the language and history of the two provisions are entirely different, and even though there are important areas of overlap in the concepts embodied in the two provisions, the differences can produce different legal consequences.
Id. at 577. Utah's uniform operation of laws provision establishes different requirements than does the federal Equal Protection Clause. The most important of these requirements, for the present analysis, is the requirement that "[f]or a law to be constitutional under [the provision], it is not enough that it be uniform on its face. What is critical is that the operation of the law be uniform. A law does not operate uniformly if `persons similarly situated' are not `treated similarly'...." Id. (quoting Malan, 693 P.2d at 669). Hence, the challenged direct-file statute will not survive constitutional challenge if it is found to treat similarly situated juveniles in an unreasonably different fashion.
Analysis under Utah's uniform operation of laws provision requires two assessments. "First, a law must apply equally to all persons within a class. Second, the statutory classifications and the different treatment given the classes must be based on differences that have a reasonable tendency to further the objectives of the statute." Malan, 693 P.2d at 670 (citations omitted); accord Blue Cross, 779 P.2d at 637. Therefore, we must first determine what classifications, if any, are created by the statute. Second, we must determine whether different classes or subclasses are treated disparately. Finally, if any disparate treatment exists between classes or subclasses, we must determine whether the legislature had any reasonable objective that warrants the disparity. Id.
Defendants claim, as set out above, that section 78-3a-25 of the Utah Code establishes at least two classes of similarly situated juvenile offenders: (1) sixteen- to seventeen-year-old juveniles accused of capital or first degree felonies over whom the juvenile court retains jurisdiction for all purposes, and (2) sixteen- to seventeen-year-old juveniles accused of capital or first degree felonies against whom a criminal information is filed in district or circuit court and over whom the district or circuit court retains jurisdiction. The State responds that the classes complained of are not created until the prosecutor decides how to proceed on a particular case. Therefore, the State contends, the statute does not on its face contain a system of classification and any classes that result are created by the prosecutor, not the statute.
The State refers us to John E. Nowak et al., Constitutional Law 600 (1983) [hereinafter Nowak], for support of the argument that prosecutors, not the statute, "create" the challenged classes. Professor Nowak states that a statute creates a series of classes when "the law by its own terms classifies persons for different treatment." Id. The State argues that the statute is facially neutral because it does not "by its own terms" segregate juvenile offenders into the classes complained of. We disagree.
The amended statute plainly states that a certain class of juveniles will be treated in one way (remain in juvenile jurisdiction) while another class of like-accused juveniles will be treated in another (singled out by prosecutors to be tried as adults). See Utah Code Ann. § 78-3a-25(6)-(7). Although a prosecutor's decision triggers the assignment of any given defendant to one class or another, the statutory scheme itself contemplates the two classes. Even Professor Nowak's treatise, relied on by the State, clarifies that *998 such a statutory arrangement, is considered a statutory classification for purposes of constitutional analysis. On the same page from which the State takes the language quoted above, Nowak goes on to state that a statute which does not on its face create classes may nonetheless result in classification during the actual application of the statute by those empowered to administer the law. Nowak, at 600. In sum, we conclude that section 78-3a-25 does create a system of classification. See Bell, 785 P.2d at 400-01 (plurality opinion) (discussing the classification system of Utah Code Ann. § 78-3a-25); id. at 408-09 (Durham & Zimmerman, JJ., dissenting) (discussing the classes contained in Utah Code Ann. § 78-3a-25).
We next consider whether the law in question "applies equally" to all members within each class or subclass. Malan, 693 P.2d at 670. Defendants contend that because they are being tried as adults for the same crimes: that some of their peers will be tried for as juveniles, they are treated disparately. The, State counters that being tried as a juvenile is not a "right" of anyone per se and that by bestowing a benefit on some juveniles but choosing not to bestow that same benefit on others, the legislature is not taking any rights away but merely giving benefits to appropriate persons. We are unable to reconcile this argument with the concept of uniform operation of laws because the selection process for beneficial treatment is arbitrary and standardless.
We agree with defendants that the present Act treats a certain subclass of juveniles nonuniformly. Juveniles against whom indictments or informations are filed are statutorily indistinguishable from those who remain in juvenile jurisdiction. By the very terms of the statute, they are accused of the same offenses and fall into the same age ranges. There is absolutely nothing in the statute to identify the juveniles to be tried as adults; it describes no distinctive characteristics to set them apart from juveniles in the other statutory class who remain in juvenile jurisdiction. However, there are critically important differences in the treatment of those juveniles tried as adults compared to those left in the juvenile system. For instance, cases tried in the juvenile court are considered civil rather than criminal proceedings. Utah Code Ann. § 78-3a-44(1). This has significant ramifications for an individual's future criminal record. Moreover, any juvenile committed to a secure facility under the direction of the Division of Youth Corrections must be released at age twenty-one. Utah Code Ann. § 62A-7-108(1). Therefore, because section 78-3a-25 applies only to individuals sixteen years of age or older, a juvenile in the statutory class who is left in the juvenile system faces a maximum potential sentence of five years or less.
The foregoing scenario is a dramatic contrast to that facing another juvenile in the same statutory class who is charged as an adult. "The effect of certification is to conduct the proceedings in every way as if the juvenile were an adult." State v. Strunk, 846 P.2d 1297, 1299 (Utah 1993). Aside from acquiring a permanent criminal record, this juvenile faces a potential life sentence or, in the case of a capital felony, death, obviously a much greater deprivation of personal liberty than that risked by his or her counterpart who is tried as a juvenile. Moreover, rather than facing detention at a juvenile facility, these offenders are eligible for housing in the state prison or other adult, facilities. See Utah Code Ann. § 78-3a-30(9); see also Bell, 785 P.2d at 409 (Durham & Zimmerman, JJ., dissenting). Therefore, the statute permits two identically situated juveniles, even coconspirators or co-participants in the same crime, to face radically different penalties and consequences without any statutory guidelines for distinguishing between them. This amounts to unequal treatment as that term has been used in the context of article I, section 24. See Blue Cross, 779 P.2d at 637; Malan, 693 P.2d at 670; see also Kent v. United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 1053-54, 16 L.Ed.2d 84 (1966) (highlighting significant differences between juvenile and adult criminal proceedings). However, this finding alone does not invalidate the statute. The principle of uniform operation of laws requires invalidation of the statute only if defendants can demonstrate that this disparity is unreasonable in relation to the purpose of the statute. The final step in our analysis, therefore, is to determine *999 whether there is a "reasonable relationship" between the purpose of the Act and the means adopted by the legislature to enact that purpose. Blue Cross, 779 P.2d at 637; Malan, 693 P.2d at 670.
Section 78-3a-1 of the Code states that the purpose of the Act is to
promote public safety and individual accountability by the imposition of appropriate sanctions on persons who have committed acts in violation of law [and];
. . .;
consistent with the ends of justice, strive to act in the best interests of the children in all cases and attempt to preserve and strengthen family ties where possible.
Utah Code Ann. § 78-3a-1(1), (7).[5] Defendants concede that this is a legitimate purpose for enacting a juvenile courts act. The only consideration, then, is whether the scheme imposed by section 78-3a-25 is reasonable in relation to this purpose. We conclude that it is not.
The State argues that the direct-file provision of the Act is reasonably related to the statute's stated purpose because there is a legitimate need to try certain violent juveniles as adults. We agree with the State's assertion of need but observe that the legislature has failed to specify which violent juveniles require such treatment, instead delegating that discretion to prosecutors who have no guidelines as to how it is to be exercised. Legitimacy of a goal cannot justify an arbitrary means. The State asserts that this problem is cured by the fact that prosecutors often have legitimate reasons for wanting to leave persons eligible for adult prosecution in juvenile court. But the statute does not require the prosecutor to have any reason, legitimate or otherwise, to support his or her decision of who stays in juvenile jurisdiction and who does not. Legitimacy in the purpose of the statute cannot make up for a deficiency in its design. Section 78-3a-25 is wholly without standards to guide or instruct prosecutors as to when they should or should not use such influential powers.[6] The total absence of such standards makes the Utah statute unique among those of all other states employing any type of adult prosecution of juvenile offenders. It is ironic that the Act sets out in thirteen full paragraphs all of the factors that a court must consider to certify a juvenile into the adult system, Utah Code Ann. § 78-3a-25(2)(a)-(j), but contains no guidelines for a prosecutor who may choose for any reason or no reason to place that juvenile into the adult system. Id. § 78-3a-25(6)(b).[7]
The parties in these cases have briefed this court at length on the use of direct-file statutes in other jurisdictions; pursuant to rule 24 of the Utah Rules of Appellate Procedure, both the State and Mohi filed supplemental briefs on this point. All parties contend that the use or nonuse of discretionary direct-file schemes in other jurisdictions should be persuasive on the question of the reasonableness *1000 of Utah's statute. Unfortunately, the parties' reports regarding the discretion given to prosecutors in other jurisdictions are in conflict.
In his opening brief, Mohi alleged that only five jurisdictions in the United States employ impure direct-file acts[8] in which prosecutors have discretion as to which juveniles to remove from juvenile to adult criminal jurisdiction.[9] In his brief and in oral argument, Mohi argued that because only one comparable statute has been challenged on constitutional grounds, there is relatively little guidance for this court from other jurisdictions. In response to this contention, the State filed a supplemental "All-states Summary" which, together with the State's oral argument, contended that thirteen statutes[10] contain impure direct-file provisions and that no court has ever ruled such a statute unconstitutional on any ground.
Having reviewed the applicable juvenile courts acts of all fifty states and the District of Columbia, together with any published opinions in which the constitutionality of such statutes has been treated, we conclude that Utah's Act is unique in the amount of uncircumscribed discretion given to prosecutors.
Currently, only eight jurisdictions, including Utah, employ impure direct-file provisions to any degree.[11] Of these eight, three *1001 provide statutory guidelines to help the prosecutor determine whether juvenile or adult jurisdiction would be proper.[12] Therefore, there are only five states, including Utah, in which prosecutors are granted "unguided" discretion. In one of these five states, Colorado, statutory prerequisites narrow the field of juveniles who face potential prosecutor discretion. For example, one prerequisite is that only juveniles with prior records may be removed to adult jurisdiction. See Colo.Rev. Stat. § 19-2-805 (Supp.1994). Therefore, in actuality, there are only three states with schemes substantially similar to Utah's.[13]
In oral argument, the State claimed that "no other court in any jurisdiction had ever ruled any of the direct-file provisions unconstitutional on any grounds." Close examination reveals, however, that this statement is not as forceful as it initially appears.[14]
As indicated, there are only seven jurisdictions in addition to Utah that allow prosecutors discretion to select jurisdictions for juvenile offenders. In only two states has the constitutionality of these statutes been directly tested.[15] In Louisiana, constitutionality was tested in a case cited as persuasive authority by the State, State v. Gachot, 609 So.2d 269 (La.Ct.App.1992), cert. denied, ___ U.S. ___, 114 S.Ct. 478, 126 L.Ed.2d 429 (1993). However, contrary to the State's representations, Gachot offers no support for its position because the case was decided before Louisiana adopted an impure direct-file system. In other words, Gachot upheld the constitutionality of a prior scheme that did not allow prosecutor discretion. 609 So.2d at 272-73. Defendants all concede that Utah's scheme regarding juvenile transfer would be rendered constitutional if the element of prosecutor discretion were removed. Therefore, this case does not support the State's contention that Utah's discretionary scheme is constitutional.
The State also cites Chapman v. State, 259 Ga. 592, 385 S.E.2d 661 (1989), as persuasive authority. However, Chapman addresses primarily a separation-of-powers question. Id. 385 S.E.2d at 663. It offers little guidance on the questions of uniform operation and due process now before us. Furthermore, Georgia's statute currently vests adult criminal courts with jurisdiction over an enumerated class of juvenile offenders, absent any discretionary leeway for the prosecutor. Ga.Code Ann. § 15-11-5 (1994). Therefore, Georgia's scheme is now similar to Vermont's, wherein prosecutor discretion is generally limited to deciding which cases to remove to juvenile court and is not usually allowed in deciding which cases to remove to adult jurisdiction. Therefore, the Georgia cases do not squarely consider a scheme allowing the scope of discretion available to prosecutors under Utah's Juvenile Courts Act.[16]
*1002 The other case that analyzes the constitutionality of a transfer scheme is People v. Thorpe, 641 P.2d 935 (Colo.1982). Thorpe considered an act that allowed prosecutors to decide whether to prosecute a certain class of offenders as juveniles or as adults. The court made two applicable pronouncements: First, the court observed that the legislature was the proper place to remedy undesirable laws.[17]Id. at 940. Second, the court rejected the appellant's claims of unconstitutionality because they had failed to demonstrate that the statutory scheme was applied in a selective way by prosecutors. Id. Therefore, the court did not specifically hold that Colorado's juvenile charging system was constitutionally sound; it held only that Thorpe had not met his burden of showing discrimination, which would allow the court to reach the constitutional issue. Id. Thorpe, therefore, is of limited value to us because of its failure to grapple with the constitutional issues, and we do not regard its analysis as persuasive.
Having considered the authorities cited by all parties, we conclude that Utah's Act, which grants prosecutors totally unguided discretion in deciding which members of the class of potential juveniles to actually try as adults, is unique among statutes currently in use in the United States. Our statutory scheme is at the extreme end of the spectrum of systems employing prosecutor discretion. While not dispositive, the fact that no other state has, at present, undertaken a process as arbitrary and unbridled as Utah's contributes significantly to our conclusion that the statute goes too far. There is no rational connection between the legislature's objective of balancing the needs of children with public protection and its decision to allow prosecutors total discretion in deciding which members of a potential class of juvenile offenders to single out for adult treatment. Such unguided discretion opens the door to abuse without any criteria for review or for insuring evenhanded decision making. No checks exist in this scheme to prevent such acts as a prosecutor's singling out members of certain unpopular groups for harsher treatment in the adult system while protecting equally culpable juveniles to whom a particular prosecutor may feel some cultural loyalty or for whom there may be broader public sympathy. Furthermore, the State has offered no plausible explanation of the necessity for such open-ended discretion.
The type of discretion incorporated in the Act is unlike traditional prosecutor *1003 discretion. Selecting a charge to fit the circumstances of a defendant and his or her alleged acts is a necessary step in the chain of any prosecution. It requires a legal determination on the part of the prosecutor as to which elements of an offense can likely be proved at trial. Moreover, such discretion is also beneficial to the public; it allows prosecutors to plea-bargain with offenders in some cases, saving the public the expense of criminal prosecutions. However, none of these benefits accompany the discretion to choose which juveniles to prosecute in adult rather than in juvenile court. The elements of the offense are determined by the charging decision, and it is only the charging decision that is protected by traditional notions of prosecutor discretion. See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668-69, 54 L.Ed.2d 604 (1978) (decisions of whether and which charges to prosecute are within prosecutors' realm of discretion; no decision made by prosecutors may be based on "arbitrary classifications").[18] Choosing which court to file charges in has significant consequences for the offender, and the statute does not indicate what characteristics of the offender mandate that choice. The scope for prosecutor stereotypes, prejudices, and biases of all kinds is simply too great. If it is the legislature's determination to have all members of a certain group of violent juveniles (such as repeat offenders, those who use guns, etc.) tried as adults, it is free to do so.[19] However, the legislature may not create a scheme which permits the random and unsupervised separation of all such violent juveniles into a relatively privileged group on the one hand and a relatively burdened group on the other. See Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985) (prosecutor discretion is "limited"); United States v. Bourgeois, 964 F.2d 935, 938 (9th Cir.) (prosecutor discretion should not be "unfettered"), cert. denied, ___ U.S. ___, 113 S.Ct. 290, 121 L.Ed.2d 215 (1992); United States v. Mastroianni, 749 F.2d 900, 911 (1st Cir.1984) (prosecutor discretion limited by fundamental conceptions of justice).
Utah's uniform operation of laws provision speaks directly to the type of discretion involved in section 78-3a-25, as opposed to the traditional discretion allotted prosecutors to determine what crime to charge. The challenged statute permits prosecutors to treat different offenders accused of the same criminal *1004 offense differently. Thus, the same law operates disparately and nonuniformly on similarly situated juveniles. In a case where the prosecutor chooses to charge like-situated suspects with different crimes, the classic "prosecutorial discretion" question is which law to apply to an offender rather than how to apply the same law to different offenders. See Bell, 785 P.2d at 409 (Durham & Zimmerman, JJ., dissenting) ("This is not a traditional `prosecutorial discretion' case."). Once an offender is charged with a particular crime, that offender must be subjected to the same or substantially similar procedures and exposed to the same level of jeopardy as all other offenders so charged to satisfy the constitutional requirement of uniform operation of the laws.[20]
We conclude that the provisions in section 78-3a-25 of the Code giving prosecutors undirected discretion to choose where to file charges against certain juvenile offenders are unconstitutional under article I, section 24 of the Utah Constitution.[21] Therefore, Mohi, Lundquist, and Chaides are remanded to the appropriate juvenile jurisdictions for certification proceedings consistent with the requirements in section 78-3a-25.[22]
III. Statutory Recall Provisions
Because we have already remanded the cases of these defendants for certification hearings in juvenile court, there may be no immediate need for a ruling on the use or the lack of an appropriate recall remedy. However, because this issue is likely to recur and because Lundquist and Chaides challenge the repeal of the recall provision in the amended statute, we nevertheless consider defendants' claims concerning the need and use of recall procedures to reclaim juvenile jurisdiction for minors tried as adults.
Mohi individually attacks the recall provision of the Act effective when he was prosecuted. Specifically, he challenges the constitutionality of section 78-3a-25 (1993), *1005 which states that if a juvenile against whom a direct criminal information has been filed or a grand jury indictment returned wishes to have his or her case retained by the juvenile court, he or she must file a recall petition with the juvenile court within ten days of either the information or the indictment. Utah Code Ann. § 78-3a-25(10) (1993). Mohi never filed a recall petition with the juvenile court. While he admits he was apprised of the statute, he argues that he did not need to comply with its terms because he believed it patently unconstitutional. The State argues that Mohi's failure to file a recall petition precludes him from now attacking this section of the Act. We agree.[23]
We have previously held that before a party can challenge the constitutionality of a statute, he must be adversely affected by its operation. State v. Hoffman, 733 P.2d 502, 505 (Utah 1987) (party may challenge statute only if basis of challenge would be, or is, applied to his detriment); Sims v. Smith, 571 P.2d 586, 587 (Utah 1977) (party must be adversely affected by statute to acquire standing); see also Alabama State Fed'n of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 1389-90, Additional Information