Opinions/Tools

AG Opinion Number 91-005

Opinion No. 91-005

May 23, 1991

Mr. Guy Burningham
Chief Deputy, Civil Division
Utah County Attorney's Office
Salt Lake City, Utah

Re: Legalities of marriages performed by Justices of the Peace Informal Opinion 91-5

Dear Mr. Burningham:

Your February 11, 1991 request for an opinion has been referred to me for a response. Your initial question concerns whether a retired Justice of the Peace has the authority to solemnize a marriage. In accordance with this office's policies, you provided us with your preliminary research and conclusions concerning the question, which was greatly appreciated.

Section 30-1-6, Utah Code Annotated (1989) sets forth who may solemnize marriages. As you note in your letter, subsection 2 formerly provided:

"A judge, magistrate, or justice of the peace who holds office in Utah may solemnize marriages when retired, under rules set by the Supreme Court."

That subsection was amended in 1990, and now reads:

"A judge or magistrate who hold office in Utah may solemnize marriages when retired, under rules set by Supreme Court."

Your preliminary conclusion was that the change indicated a legislative intent to delete the authority of retired Justices of the Peace to perform marriages. While that is a reasonable conclusion and interpretation, it is not the only conclusion possible. In various sections of the Utah Code, Justices of the Peace are included with the term "judge" and "magistrate", see e.g., Section 78-5-101, U.C.A. (1987), 77-1-3, U.C.A.

(1990). Thus, it is also reasonable to conclude that the change was a modernization of the language of the section, and not a deletion of authority to allow retired Justices of the Peace to solemnize marriages - a conclusion which I adopt.

This letter interpretation is also the construction and interpretation which has been put upon it by the Utah Supreme Court. Effective July 6, 1990, the Utah Supreme Court adopted Rule 11-203, Utah Code of the Judicial Administration (U.C.Jd.Adm.). That code section parallels Rule 11-201, Senior Judges. Rule 11-201 allows for the certification to the status of "Senior Judge" of retired judges of the Supreme Court, Court of Appeals, District Court, Juvenile Court, and Circuit Court, and authorizes Senior Judges to solemnize marriages. Rule 11-203 similarly allows for the certification to the status of "Senior Justice Court Judge" of retired or terminated Justices of the Peace and Justice Court judges and authorizes them to solemnize marriages. See Rule 11-203(1)(c). Additionally, I have been informed by Mr. Ron Gibson, Deputy Court Administrator, Administrative Office of the Courts, that since July of 1990 some Senior Justice Court Judges have been certified.

It is, therefore, my opinion that a retired or terminated justice of the peace or justice court judge, who has been properly certified under Rule 11-203, Utah Code of Judicial Administration, as a Senior Justice Court Judge, is authorized to solemnize marriages pursuant to the provisions of 30-1-6(2), U.C.A. (1989). That would be their only source of authority to solemnize marriages, since I agree with you that retired or terminated justices of the peace are not "justices of the peace" and therefore they are not authorized to solemnize marriages under 30-1-6(1), U.C.A. (1989).

You asked a second, related question in connection with the problem you pose. That question is if the individual who solemnized the marriage was without legal authority, what is Utah County's responsibility regarding any notification to the applicants of the marriage license of the problem, and further, was the marriage valid.

Concerning the validity of a marriage solemnized before an unauthorized person, 30-1-5, U.C.A. (1989) provides:

"No marriage solemnized before any person professing to have authority therefor shall be invalid for want of such authority, if consummated in the belief of the parties or either of them that he had such authority and that they have been lawfully married."

Therefore, assuming that at least one of the parties believed the statement of the former justice of the peace that he had the authority to marry the parties, even if that former justice of the peace were not a certified Senior Justice Court Judge, the marriage would be valid.

The duties of the County Clerk are generally set forth in 17-20-4 U.C.A. (1987). Concerning marriages, it provides that the Clerk shall:

"(1) issue all marriage licenses and keep a register of marriages as provided by law."

Additional duties of the clerk are set forth in 30-1-1, et seq., U.C.A. (1989), the Utah Code chapter on Marriage. Those duties again revolve around the issuance of marriage licenses and the indexing of the certificates after their return. There thus appears to be no general duty or requirement concerning the clerk determining the validity of a marriage or advising the parties to a marriage of its validity. See, e.g., 30-1-12 and 30-1-17. Therefore, the clerk need not (but may) give advice or review the marriage certificate upon its return. However, the validity of a marriage can only be determined in and by a court of law, and a County Clerk does not have legal standing to bring an action in court to determine the validity of any particular marriage. See e.g. 30-1-17, supra.

If you have any further questions or problems concerning this, please feel free to contact me.

Sincerely,

Thom D. Roberts
Assistant Attorney General

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