Laney v. Fairview City

1007 (Utah 1983). Exch., 93, P.2d We Ins. CONCLUSION regarding will not a decision disturb leave ¶ Accordingly, for the reasons outlined amend absent abuse of discretion result- above, part part. we affirm in and reverse prejudice complaining party. The plaintiffs’ district court’s dismissal of E.g., Appleby, v. Girard for fiduciary duty against claim breach of (Utah 1983). defendant Arnold is reversed. The district 15(a) “Rule of the Utah Rules of court’s dismissal of the claims for breach of provides respon Civil Procedure that after a joint agreement against venture both Ar- served, pleading party sive has been ‘a nold and Larson is affirmed. The district only pleading amend his leave of court or court’s dismissal of the claims of default on party; written consent of and the adverse Arnold, the trust deed note is affirmed as to freely given justice leave shall be when so but reversed as to Larson. The district ” Dev., Cook, requires.’ v. Holmes LLC request punitive dismissal court’s for ¶38, 57, (quoting R. UT 48 P.3d 895 damages is reversed as to and Arnold af- 15(a)). liberality limited, P. This how Civ. firmed as to Larson. ever, proposed are “when amendments trial, during Thus, than tri or after rather before plaintiffs’ are rein- claims two al,” Girard, 660 P.2d “the (1) when stated: for fiduciary claim breach opposing put side would be to unavoidable duty against Arnold, defendant and the ac- prejudice having adjudicated for an issue companying request punitive for damages, prepare,” which he not had Be had time (2) the claim on for contribution Huth, kins Bar Ranch v. V note, Young the Normans’ “Default Trust (Utah 1983). claim, against Deed Note” Larson. case, jury place 40 In selection took this ¶ The pro- case is remanded for further August and a mistrial was declared ceedings opinion. consistent potential juror dis- because failed to felony A close conviction. trial date new DURHAM, 44 Chief Justice Associate 16-19, 2001, for January was scheduled four DURRANT, HOWE, Chief Justice Justice 1, 2000, September months On later. RUSSON, and Justice concur in Justice Normans filed motion leave to file opinion. WILKINS’ complaint. Arguably second amended untimely. parties Normans’ motion was and, already prepared

had trial but mistrial, would have tried case. New against claims Arnold and Larson should 2002 UT 79 Plus, previously. have been added had leave LANEY, individually Lee Rhonda granted, to amend been it would have been R.A., guardian ad litem S.B. and necessary discovery. reopen The Nor- minors, Appellant, discovery claim Plaintiff mans that no new was neces- sary, proposed but four the five new defendants, likely claims new named CITY, municipal FAIRVIEW required discovery. would have new corporation, Defendant deposed, new defendants had not been nor Appellee. already-con- had involved in the been discovery. Arguably discovery ducted could No. 981729. reopened, parties have had been but already trial, prepared for a new trial date Supreme Court of Utah. hence, for four scheduled months Aug. 2002. against Normans’ claims the new defen- brought separate

dants could be in a action. Rehearing Oct. Denied circumstances, say Given we these cannot that the district abused its discretion

denying the Normans leave file a second complaint.

amended Provo, Young, plaintiff.

Brent D. Morse, Call, A. M. Keith Salt Andrew City, for defendant. Lake Shurtleff, Att’y Gen., L. Brent A. Mark Burnett, Gen., Att’y City, for Asst. Salt Lake the State of amicus Utah.

DURHAM, Chief Justice: case 1 This addresses whether Utah 63-30-2(4)(a) § (Supp.2000) Code Ann. vio- “open lates article section courts” clause, of the Utah Constitution. The dis- (the City City) trict court held that Fairview negli- alleged is immune from suit for its gence under the Utah Governmental Immu- Act, nity §§ Ann. -38 Utah Code 63-30-1 to (1997 Supp.2000).1 hold that & We amendment, municipali- declaring all acts functions, governmental ties to uncon- applied municipalities operat- stitutional as ing power systems. electrical We reverse summary judgment of the trial court and any a trial merits remand for on the without immunity. governmental defense of

BACKGROUND ¶ 2 following undisputed The facts were 16,1991, September On trial court. John Laney killed was electrocuted and while mov pipe. thirty-foot irrigation The alumi irrigation pipe Laney num water was with, carrying came into contact or within of, voltage power arcing high distance lines. City. The lines power owned were ¶ Accordingly, wife and children Lane/s wrongful brought against death action alia, City claiming, City inter that the was negligent failing power to maintain the Laneys The lines a safe condition. com- plaintiff’s statutory provisions pertinent opin- 1. The husband do not differ material respect time of statute. ion that were in effect at the death from current power municipal power did not meet mini- plain system governmental that the lines was a they safety too mum standards because were § function as defined Code Ann. 63- They allege ground. also that the low 30-2(4)(a). The court also concluded that they were unsafe because were not lines immunity was under section waived 63-30-10 warnings. insulated and did not contain plaintiffs’ against because City claim City summary judgment negligence. moved for Finally, the district court asserting that the decision whether or not to City’s concluded that the keep decision to discretionary improve lines was power lines at height and condition immunity function entitled to under Utah in at Laney’s were Mr. time of death 63-30-10(1) (1997). §Ann. Code Discretion- constituted the discretionary exercise of a an ary exception function § function under Ann. Utah Code 63-30- sovereign immunity waiver of within the 10(1), exception negli- to the waiver for Immunity Act. Utah Governmental The Utah City gence, rendering immune from suit Immunity Act declares that all Governmental Immunity under the Utah Governmental Act. immune entities are from suit any injury which results from the exer- appeal, claiming Plaintiffs that Utah “governmental cise function.” See Utah 63-30-2(4)(a) §Ann. Code is unconstitutional 63-30-3(l).2 govern- Ann. Code term because violates article section broadly function defined in mental clause, open courts of the Utah Constitution. 63-30-2(4)(a), by of that virtue broad Plaintiffs further maintain that the district definition, governmental the statute cloaks concluding erred in City that is immunity a range entities with for wide of discretionary immunity entitled function However, § activities.3 Utah Code Ann. 63- § under Utah Code Ann. 63-30-10. sovereign immunity injury waives “for 30-10 proximately by negligent caused a act or (1) Then, omission.” subsection an creates ANALYSIS exception negligence for to this waiver ¶ 7 We long-standing prin note the governmental

immunizes entities “the ex- ciple “unnecessary that decisions are to be performance ercise or the failure or to exer- ” pass avoided and that the courts should upon discretionary perform or a cise function.... 63-30-10(1). constitutionality only a statute § of when Code Ann. Utah a essential such determination is to the deci agreed City 5 The that district court Monson, in a v. Hoyle sion case.” 606 P.2d immunity was entitled its decision to (Utah 1980). 242 If the district court improve power granted lines City in concluding erred im was City’s judgment. summary motion for Fol- statute, mune from suit under the there will lowing the framework we forth in set Ledfors District, no need to be address the constitutional issue Emery County v. School (Utah 1993),4 us. before therefore address the statuto district court We City’s operation ry interpretation concluded of question first. "Except may provided Immunity 2. be otherwise in this 4."The Utah Act Governmental re chapter, governmental all entities are quires immune questions that we deter address three any injury from suit for which results from the mining entity governmental whether a is immune governmental exercise of a function....” Utah First, activity entity per from suit. was the 63-30-3(1). §Ann. Code governmental formed a function therefore general by grant immunized from suit " act, any 'Governmental function’ means fail- immunity contained in section 63-30-3. Utah act, function, operation, undertaking ure or (1989) § Code [now Ann. 63-30-3 codified at act, governmental entity a whether or not the 63-30-3(1)]. Second, activity if the act, function, operation, undertaking failure is characterized as function, governmental has some other section governmental, proprietary, Third, immunity? the Act waived that blanket function, governmental unique govern- core waived, immunity if the blanket been does has ment, capacity, undertaken in a dual essential to exception the Act also contain to that waiver government governmental not essential to a function, immunity against results in a retention performed private or could be enter- particular prise private persons.” claim asserted in this case?” Led § Utah Code Ann. 63- 30-2(4)(a). fors, 849 P.2d at 1164. above, we must address IM- As noted

I. FUNCTION DISCRETIONARY (cid:127) determining questions in whether a three THE UTAH GOV- UNDER MUNITY governmental entity immune from un- suit IMMUNITY ACT ERNMENTAL Immunity Act. der Utah Governmental argue that the district appellants First, City’s whether the we must address granting City’s motion for court erred governmental operation power lines is summary judgment based its conclusion function therefore immunized from suit City’s to not increase the omissions general grant contained lines, to height power not insulate 63-30-3(1). Emery v. in section See Ledfors lines, warning signs near provide and to not Dist., County P.2d Sch. lines, under the were immune suit 1993). Second, operation power if the Immunity Act. Utah Governmental function, governmental lines is we must some other section of the determine whether A. Standard Review immunity in Act has the blanket sec- waived ¶ Summary judgment appropriate 63-30-3(1). Finally, id. if the See only genuine is no issue as to when “there waived, immunity has been we must blanket moving party ... fact and material Act ex- contains an determine whether judgment law.” to a as matter of entitled ception which results in a re- to that waiver 56(c). reviewing P. When Utah R. Civ. particular immunity against tention of here, summary judgment, grant as we do plaintiffs case. claim asserted we district court’s conclusions of review the id. See Ogden Taylor correctness. See question, the first does the We answer (Utah 1996). Dist., Sch. City’s operation lines constitute a grant dis We no deference to the therefore function, in the affirmative. City is enti trict court’s conclusion 63-30-3(1) states, “Except Section discretionary immunity under tled to function chapter, gov- provided in this all otherwise Ann. 63-30-10. Code are immune from suit for ernmental entities Immunity any injury from the of Discretionary B. Function which results exercise ” governmental Utah a function.... Code argue that maintenance 10 Plaintiffs 63-30-2(4)(a) 63-30-3G).5 § Ann. Section power discretionary function lines not is states that immunity Ann. under Utah entitled to Code act, function’ means ‘Governmental Instead, they assert, City § 63-30-10. function, act, operation, failure or under- highest degree duty owes a to exercise the entity taking or governmental of a whether public protect the because it under care to act, act, operation, func- not the failure to operate .power took and maintain lines. tion, undertaking or is characterized as hand, City, on the other contends governmental, proprietary, govern- a core city improve funds to exist decisions to use function, unique government, un- mental lines, height power decisions to raise capacity, dertaken in a essential to or dual them, lines, provide insulate or to government govern- or to a essential warnings, constitute the exercise additional function, performed by mental could be or discretionary of a function. reasons For the persons. private enterprise private or follow, City’s we conclude deci 63-30-2(4)(a). § regarding height Ann. Under this sions or and Utah Code omissions— lines, definition, power City’s operation of adjacent lines insulation of the function, City governmental and the warning signs discretionary functions —are immunity gener- therefore immunized from suit sovereign for not been has grant immunity contained 63- Immu al waived under the Utah Governmental 30-3(1). nity Act. “ 30-2(7) (stating City governmental (Supp.2000) 'Political subdivi- Fairview en- Defendant town, tity any county, city, § Act. See Utah Code Ann. 63-30- ... other under the sion' means or " 2(3) entity’ (stating (Supp.2000) 'Governmental public corpora- governmental or subdivision political and its means the state subdivisions tion.”). § chapter.”); Utah 63- defined in this Code Ann. question, cently applied Keegan, answer the second this court in We also first waive the some other section Act appeared does v. Utah Little State Division of 63-30-3(1), immunity (Utah in section blanket Services, Family 1983), § Code Ann. 63-30-10 the affirmative. Utah following: and includes the states, part: pertinent (1) challenged act, omission, Does the or Immunity governmental suit of all necessarily govern- decision involve a basic injury proximately entities is waived policy, mental program, objective? or by negligent caused act or omission of an (2) act, omission, questioned Is the or employee scope committed within the decision to the essential realization or ac- employment except if.... complishment policy, program, of that section, In this has waived the objective opposed to one which would coverage sovereign immunity blanket out- change the course or direction of the 63-30-3(1) 63-30-2(4)(a) lined in sections policy, program, objective? negligence by governmental committed (3) act, omission, or Does the. decision' through employees. In this entities require policy exercise basic evalua- case, appellants allege City negli- tion, judgment, expertise part immunity gent, and the Act waives governmental agency involved? negligence. (4) governmental agency Does the in- question, 14 The third does the Act con- constitutional, possess requisite volved exception tain blanket waiver of statutory, authority duty or lawful immunity in a of immu- that results retention act, challenged omission, do or make the nity against particular claim asserted decision? case, plaintiffs complicat- is more Keegan, 1995); ed. Utah Ann. Code 63-30-10 states: See 896 P.2d at 624 Trujillo Dep’t. accord Immunity Transp., from suit of all 227, 27, 752; Little, injury App. entities 1999 UT proximately is waived for P.2d by negligent (quoting caused act P.2d Evangelical or omission of an at 51 United employee scope State, within committed of Brethren Church Adna v. employment except if injury (1965)). arises out Wash.2d of, with, in connection or results from: ¶ Although party’s entitlement to (1)the performance exercise or or the discretionary question function is a perform failure to exercise a discretion- law, a court must have sufficient facts ary function, whether or not the discretion before to determine whether the chal abused; is omission, lenged act, or decision satisfies the added). (emphasis Clearly, this section con- See, four-part e.g., Rocky Little test. Moun an exception tains of blanket waiver 459, City, tain v. Lake P.2d Salt 784 Thrift immunity, exception in a the results re- (Utah 1989); Hansen v. Lake 464 Salt Coun discretionary tention of func- (Utah 1990); 838, ty, Trujillo, 794 840 P.2d Therefore, tions. to determine whether the ¶¶ 28, 43, App. 227 at 1999 UT 986 P.2d 752. City claims, immunity against has appellants’ present record in the case contains suffi allegedly we must determine whether the apply cient facts to the Little test. negligent City or decisions omissions the discretionary constitute under the functions 17 We first note that discretion the Act. ary analysis depends function Little on act, specific omission, or decision is ¶ 15 The test used to determine see, being challenged plaintiffs, e.g., the act, omission, governmental whether a or 461-64, Rocky Thrift, at Mountain 784 P.2d qualifies discretionary decision as a function ¶¶ 29-37, Trujillo, App. 1999 227 at 986 UT 63-30-10(1) under requires a four- P.2d and whether it involves basic State, part inquiry. Keegan See v. 896 P.2d (Utah 1995). governmental policy, program, objective. An affirmative re challenged by sponse to The decisions or omissions the inquiry each leads to the conclusion are plaintiffs that the action under review this case those that resulted is a discretion lines, ary height raising power function. While the test was most re- in not of the the lines, pro- authority to decide whether or not raise insulating power and not the pertinent the viding warnings, further all otherwise make them more safe. lines or public might safety of of the who members ¶ Having parts all of the answered four challenged deci- These encounter lines. affirmative, in the we conclude Little test gov- closely sions are connected basic challenged decisions or omissions objective safety. Be- public ernmental discretionary review of were functions. Our plaintiffs’ complaint specifically cause supports law also the conclu- other case Utah City’s adequately failure to identifies City’s sion that the decisions not increase as the basis of make lines safe lines, power not to insulate height action, reviewing analysis limited our is lines, provide warning signs, not to light. in that As challenged decisions discretionary are functions entitled to immu- act, omission, such, challenged or deci- nity Act. under the necessarily policy, involve basic sion does namely public safety, objective, program, raise, First, City’s not to decisions inquiry part of the-Little 'and the first insulate, place warnings power lines affirmatively. answered involving rou operational are not decisions Rather, tine, everyday those matters. are Second, conclude that we requiring policy broad decisions evaluation regarding questioned or decisions omissions place at policy broad factors which take safety power lines are essential to level, policy-making and such decisions are poli accomplishment of the the realization or discretionary generally function entitled cy, program, objective here— identified See, Ingersoll, immunity. e.g., Bigelow v. safety. Again, plaintiffs public because the (Utah 1980) City adequately (stating allege the failed to warn or 618 P.2d power raising or make the lines safe “discretionary [immunity] function under them, insulating policy, program, or “that 63-30-10(1) is confined to those decisions analysis subject pro objective” occurring policy mak and acts the ‘basic Little, safety. public 667 P.2d at motion of level,’ ing to those extended acts safety touching the 51. Decisions taking place operational at the decisions clearly accomplishment lines affect the power n ... level, or, those which in other words safety. objective public Conse matters, routine, everyday not re concern ” inquiry quently, part of the Little is also two policy factors’ quiring evaluation broad in the affirmative. answered State, (quoting v. Frank (Utah 1980) (quoting Rd. Carroll act, Third, challenged omis Comm’n, 2d sion, regarding or decision lines Frank, 891))); (indicating 613 P.2d at 520 policy requires the exercise of basic evalua tion, though require expertise on all acts judgment, part even almost Although discretion, governmental agency degree discretionary involved. some presented regard exception we are not evidence immunizes function City actually conducted on- whether the from suit for “those decisions and entities inspections, analyzed safety various fac site occurring policy-making at the acts ‘basic conducted, tors, or collaborative review of its level,’ acts not extended to those and and lines, power we decision not to raise taking place operational at lev decisions required, mini that the decision at a think el, or, words,’ ... which con other those mum, analysis a basic cost-benefit and exer routine, matters, everyday requiring cern not by expertise judgment of financial and cise ”) policy (quoting of broad factors’ evaluation City. part This under three is sufficient Carroll, 891); at 27 2d at 496 P.2d Utah Little test. Carroll, 389-90, at P.2d 2d 496 at Utah (finding 891-92 that “the decision of road ¶20 Finally, we also answer the supervisor prevent acci to use [to berms question fourth in the affirmative. Under roadway] policy dents was not a basic on (Supp.2001), § Utah Code Ann. 10-8-14 or accom decision essential realization City and operate is authorized to own Const, policy, plishment governmental of some basic utility. also Utah art. electric Id. see XI, Thus, program, objective his decision City requisite [because] has policy- safety signals to install different require the exercise of basic devices did evaluation, expertise judgment, subject crossing and purely at the was a discre- because] part tionary [and of the Road Commission meaning function within the of sec- may properly 63-30-10(l)(a)” (1) determination be charac- [h]is because chal- operational terized level as one at omission, lenged failure to install different also, making”); Evangelical see decision devices, safety governmen- involved the basic Church, at United Brethren P.2d (2) objective public safety; tal of promoting (stating distinction discre- that “the between evaluating crossings numerous railroad and nondiscretionary tionary and administrative assigning priorities signal safety up- for acts, omissions, lie in or decisions well grades was essential realization of whether such was done determination safety, public especially light of the fact planning operational lev- made at the that unlimited funds were not available to el”) States, (citing v. Dalehite United (3) needy once; upgrade crossings all at (1953)). 956, 97 L.Ed. 1427 U.S. 73 S.Ct. improve decision sig- whether the traffic Second, City’s our conclusion that the policy nals exercise judg- was the of basic power regarding decision its is entitled lines ment because UDOT conducted on-site in- discretionary function consis analyzed spections, safety factors, several generally have that tent with cases that held participated and in collective decision-mak- safety im balancing the need decisions (4) ing; statutorily empow- and UDOT was provements against limited supervise regúlate safety ered to and funding discretionary are entitled to function crossings). the railroad State, immunity. Keegan v. P.2d at See ¶24 undisputed It is that the standards part (applying 624-26 the four Little test and power industry used electrical in the Department of concluding the Utah that follow those set forth the National Electric Transportation’s not to a con decision raise (“NESC”). Safety 232 of Code Section discretionary crete traffic was a func barrier NESC, 1987 edition which was in tion because it “resulted from a considered Laney’s accident, effect at the time of Mr. weighing of the costs and benefits of certain provides power farm that over land be lines policies safety and construction and eighteen ground. at least feet above the judgment involved the of UDOT’s exercise power twenty-eight line issue was over discretion”); Velasquez Pac. Union ground, thereby exceeding feet above R.R., 218-19, 24 Utah 2d (1970) by forth standard set NESC. NESC (finding the Utah Public Com Service (1) provides power are further lines insulat- mission immune from suit its was separated are require failure to the railroad to ed when from other con- construct (2) safety ducting space, and maintain devices and failure to air surfaces the case program dilapidated establish a to discover here. signs indicating plaintiff should however, emphasize, wish to We necessarily “simply recover because a municipality’s be within a would not discre- warning signal better could have or should systems pow- tion to electrical construct installed”); been Duncan v. Pac. Union industry safety er lines do not meet

R.R., Ct.App. 601-02 Here, City’s sys- standards. electrical 1990) (concluding that “immune UDOT was tem, including power line that caused Mr. warn its failure to do more than minimal death, Laney’s applicable industry all met control,” stating, “Every high Therefore, safety standards. a decision way probably could be made safer further City improve to not lines above expenditures, but we will not UDOT hold industry discretionary standards is and is (and implicitly, legislature) negligent the discretionary immunity entitled to function having to strike a difficult balance between under Act. the safety greater the need for of the burden ¶26 sum, In we conclude that the trial funding improvements”), 832 aff'd (Utah City 1992); concluding court in that the was correct v. Rio Gleave Denver & (Utah R.R., from Grande P.2d was immune suit under the Act. The W. 749 668-69 Ct.App.1988) (holding failing alleged negligence City failure “UDOT’s of, Corp., 717 insulate, provide fur- rule v. Beech P.2d height or the

raise Aircraft lines, (Utah 1985), warnings power explained on its resulted principles ther and the (cid:127) discretionary func- performance of twenty years from the early only therein. As Consequently, the under Little test. tions adopted, after Utah’s constitution was this City immunizes from suit for the Act the the I, acknowledged that article section 11 alleged by plaintiffs. negligence Legislature upon placed “a limitation government prevent that branch of the state OF UTAH II. CONSTITUTIONALITY against closing the the courts from doors of 63-30-2(4)(a) § ANN. CODE any person legal right which who has a City’s 27 Because we find that with some known enforceable accordance power constitutes a maintenance of lines remedy.” Wightman, 47 Utah Brown v. discretionary meaning function within the 1915). Thus, 34, 151 P. 366-67 Act, Immunity we must the Governmental provision the State’s assertion that plaintiffs’ challenge to the consti address the only judicial and not speaks branch § Ann. 63-30- tutionality of Utah Code branch, departure novel is a 2(4)(a) (Supp.2000). Berry did a new indeed. not create constitu- above, explained the Utah Govern- 28 As rule; rather, developed and tional articu- City Immunity grants Act immu- mental by might rule lated a test which the be nity for its decision not to increase from suit applied. is, part, safety power its This lines. City’s operation municipal of its because Meaning Purpose 1. Plain and Historical governmental system is function un- power I, arguing In30 for article section 11 to 63-30-2(4)(a). Code Ann. Ac- der Utah solely right, procedural treated as a be statutory cordingly, absent or constitutional meaning disregards plain his- State City contrary, provision to the entitled provi- purpose open courts torical Utah’s immunity regarding the mainte- from suit Throughout history, state’s sion. our lines, nance of consistently recognized that court has Plaintiffs contend that district function. meaning guarantee “impose[s] plain City determining court erred substantive some limitation on to claim because section entitled judicial capricious in a to abolish remedies 63-30-2(4)(a)’s “governmental definition of Supply fashion.” Builder’s renders it unconstitutional. Article function” Craftsman ¶18, 36, pro- I, Mfg., Butler 11 of Utah Constitution UT section added). (Stewart, J., concurring) (emphasis vides: every person, open, All courts shall provisions' general, open courts injury person, him in his for an done to prin- and other states have served two reputation, property, or shall have cipal purposes: law, course of which shall be ad- due First, they help were intended establish unnecessary without ministered denial judicia- independent an foundation for person delay; and no shall be barred from ry as an institution. See Jonathan M. any defending before tribu- prosecuting Hoffman, By the Law: The the Course of state, by himself or counsel nal in this Origins Clause State party. cause to he is a civil Constitutions, (1995); Or. L.Rev. Act, specifically argue that the sec- Plaintiffs Evans, Industrial Comm’n v. 52 Utah 63-30-2(4)(a), deprives them their (1918) (“[T]he question 174 P. rights guaranteed article section legal liability ultimate cannot be withdrawn clause. open courts courts.”). Second, from Analysis A. v. Beech grant intended to remedies clauses were Aircraft rights judicial individuals to a urges this court abandon property, protection person, century precedent, arguing for nearly a reputation abrogation and unreason- virtually interpretation that write arti- would interests able limitation economic 11 out of Constitution. cle the Utah legislatures. to over- could control state See Schu- Specifically, the State the court asks man, 1208; Temp. Berry, legislators L.Rev. state private to favor interests P.2d at 675. through legislative insulating enactments them general from the (citing laws. Id. Craftsman, 1999 18 at 974 P.2d Per- UT added). (Stewart, J., Homes, concurring) kins v. (emphasis Log Northeastern 808 S.W.2d (Ky.1991); Hammer, 811-12 Kenyon holding Berry, recog- in 32 Our (1984) 142 Ariz. 971-73 n. 9 I, protection nizes the substantive of article origin demonstrate open provi- courts general section is consistent with these however, sions and purposes. importantly, history industrial More we of certain states rely history should on our own state around the turn of century). prevent To precedent purpose type abuse, determine the political Framers, “the I, meaning protection. of article section ll’s relying legal principles that were centu- Schuman, Right Remedy, See David ato old, ries included protections constitutional (1992) (“[T]he Temp. L.Rev. against such evils.” Id. when the identical.”). best tee the best ^[6] interpretation in one state interpretation wording “[A] text’s of the two in another differ meaning radically provisions state, cannot be guaran- even limit interest abuse. numerous 34 Utah’s legislative provisions reflecting constitution, addition to basic prevent. special fact, an intent to contains provi- process, sions for due audience, operation uniform separated speaker, from its its laws, genre equality (citing Stanley political its context.” Id. civil and —from Fish, rights, Working Gang: on the we find in Interpre- Chain the Utah Constitution the Literature, tation in Law following sections, 60 Tex. L.Rev. clearly motivated (1982)). inquiry Our should focus on legislative wariness of unlimited power:7 open provision what the courts means our 1. Article section 23 “No phall be Schuman, Temp. own constitution. See passed granting irrevocably any fran- (“[T]he appropriate inquiry L.Rev. at 1220 chise, privilege imnaunity.” or not, remedy guarantee ‘What does the mean?,’ remedy guaran- but ‘What does the VI, 2. Article 22 (single-subject ”). tee mean in the constitution of X?’ rule) “Except general appropriation bills and bills for the codification and Although open some states with laws, general revision of no bill shall be provisions courts have construed them' to passed containing more than one guarantee only procedural sub- rights and court access, ject, clearly expressed which shall such a construction has never been accepted in Utah. Article its title.” section ll’s con- guarantee interpreted stitutional has been VI, 3. Article private section 26 “No or protect rights substantive to remedies special law shall be enacted where throughout history. open our state’s general applicable.” law can be provision adopted, part courts VI, 4. Legislature Article section 28 “The itself, original Constitution at the end delegate any special shall not com- century, during period nineteenth when mission, private corporation or associa- generated abuse had concern and distrust of make, any power supervise branch numerous states. Craftsman, any municipal improve- interfere with 1999 UT 18 at 974 P.2d 1194 (Stewart, J., ment, concurring). money, effects; property That abuse includ- ... political taxes, site, ed levy capítol misuse of influence railroads to select a interests, corporate and other perform any who convinced municipal functions.” "open provision” 6. The produced terms courts and "reme- ments that the document "tried to ad- dy guarantee" "remedy provision” semiarid, are used capital-starved dress the needs of interchangeably by some commentators to refer territory, western but it also reflected the late provisions to found in states with this various forms of nineteenth-century growing concern over the type provision in their powers corporations and trusts.” Bick- Jean constitutions. White, Story more Charter Statehood: The Constitution, (Univ. Utah’s State of Utah Press histoiy In her of Utah’s 1895 constitutional 1996) (hereinafter "White”). convention, Prof. Jean Bickmore White corn- deliberate, I, in article VII, Legisla- vision section “The section 29 5. Article state, from given textual differences especially not authorize its ture shall town, city, township, dis- any county, contemporary constitutions. See other political subdivision or other trict 974 P.2d 1194 Craftsman, 1999 UT 18 Const, its credit or subscribe to lend State (Stewart, J., concurring) (citing Mont. railroad, Const, in or bonds aid to stock (“Jus- 16; I, II, § 10 art art. Wash. private individual telegraph or other openly, shall be administered tice in all cases undertaking.”8 enterprise or corporate unnecessary delay.”)). Because and without XVI, right “The section 5 6. Article follow limited models framers did not Utah’s resulting injuries recover for action to these, “[ojbviously, did not intend to like death, abrogated, and shall never be rights guaranteed to the citizens limit the so shall not be recoverable the amount Id. of Utah.” limitation, any statutory ex- subject Focusing entirely “proce on the compensation for cept in cases where in sec language found content of the dural” provided resulting in death is injuries does, misleading. is as the State by for law.”9 language be viewed must Constitutional Commenting arti- on Utah’s history purpose context, meaning (Article VI), Bickmore historian Jean cle determining its mean must be considered points out that it White be language that a shall ing. The late-nineteenth-century typical the law by of law” describes had “due course neigh- by written its western constitutions _It secured, as well as by which the legisla- that the ... mandated bors protected procedural guarantees also ... special laws not enact ture should already apply-but went this section. Article section general laws could where eighteen specific process provision guarantee cases where on to list a due contains special laws private or Thus, there be no should if ing procedural rights. the State’s (Art. 26). VI, (except specified that It sec. correct, section reading of section 11 is for appropriation bills and bills general surplusage has no redundant and mere —it general revision of the codification is not role or function constitutional laws) more than one should contain no bill already 7. That view performed section amend- subject-a provision that made the by any Utah deci has never been embraced difficult. articles ment of entire sion. at 64. “White always court has adhered 38 This very Professor White’s It is clear from imposes some view that article history the discussions recorded and from that former legislature, view limits on Proceedings and Report the Official placed in context as fol- Zimmerman Justice Convention of The Constitutional Debates lows: Utah, Proceedings: Consti- see drafting very act a constitution [T]he (Star Print- 'passim Convention tutional ours, bestow unlim- which does not such as 1898), were framers ing that Utah’s Co. on the and which ited contemporary constitu- knowledgeable about rights people, reserve certain does debates, to economic and and sensitive tional recognition that there must constitutes a sibling common in rights issues individual legislature, be some limits on so, entirely plausible being it is That states. people special pro- interest of the deserve specific remedies some that the inclusion clause, "except beginning ...” corporation’s in the 9. The last articles 8. "A review of permit amendment in was added legislature original of other western states constitutions compensation amount to fix the legislatures pattern: future a consistent shows (for Compensation example in the Workmen’s granting special prohibited fran- were to be death, Act) wrongful continu while Industrial advantages, corporations were to chises or prohibit complete abrogation price-fixing, monopolies, regulated to avoid generally Halling v. Indus. to recover. See trusts, in restraint or other combinations (1927); Utah, 71 Utah 263 P.78 Comm’n of (citations & 97 to other trade.” White at 73 n. Corp., Rocky Packing Mountain Henrie omitted). state constitutions (1948). 196 P.2d 487 Condemarin, protection in (Zimmerman, the maelstrom of interest 775 P.2d at 367 J., group politics legislative pro- concurring part). that is the in Justice Zimmerman noted declining “[i]n cess. to so characterize guarantee injuries .of a [as 348, Hosp., Condemarin v. Univ. ‘fundamental’], I do not think we intended to (Utah 1989) (Zimmerman, J., concurring denigrate importance rights pro- added).10 part) (emphasis in tected abridgement by article from ¶39 That section is redundant should 1, section 11.” Id. (emphasis at 366-67 add- not be assumed. Hans Linde articulated a ed). cogent compelling distinction between process language remedies clauses with due 2. Substantive Protection Before process provisions and “due of law” like ¶ 41 Berry long continues a tradition in I, latter, Utah’s article section 7. The he limiting Utah’s power legis- courts out, points provide “prescription ... abrogate lature to Craftsman, remedies. See against ‘life, deprivations liberty, official 18, 64, (Stewart, J., 1999 UT 974 P.2d 1194 ” property,’ and the former are “directed concurring). Only justice one former of this against legal remedy the denial of a to one opinion court —in justice in which no other claim, arising ‘injury who has a from done joined contrary. so far asserted the —has person, him in property, reputation’ his (Zimmerman, J., id. See at 108 concurring). legal that has its source outside this [of] protection The substantive found in article Linde, [remedies] section itself.” Hans recognized section 11 has been throughout Process”, 125, “Due Without 49 Or. L.Rev. history of the state of Utah. In Brown v. (1970). goes Linde to observe: Wightman, earlier, as noted we held that the guarantees types The two were not con- open provision protection courts acts as a early fused with each other when the con- against abrogating legal from stitutions were drafted. Other states ... rights injury. to a See 47 Utah adopted them both and most state consti- 31, 34, 366, (1915) 151 P. (recognizing 366-67 today tutions contain both a open ‘remedies’ provisions courts are treated “as process’ clause and a ‘due ... clause. placing upon a limitation Legislature prevent government that branch of the state (footnote omitted). Id. at 138 closing from against the doors of the courts concurring 40 Justice opin- Zimmerman’s any person legal right who has which is acknowledged ion Condemarin further enforceable in accordance some known including discussed “the wisdom of arti- added)). remedy” (emphasis guarantee cle section ll’s in Utah’s basic plaintiff 42 In asking Brown the explained: charter.” Id. He court to creating use section 11 as a basis for The constitution’s drafters understood a new cause of action where one had not political processes that the normal would previously. denying existed In See id. always protect rights the common law the, plaintiffs request, recognized all inju- citizens to obtain remedies for open give courts clause does not 676; Berry, ries. See 717 P.2d at De- cf. legal court the rights. to create new velopments Interpreta- in the Law: The Id. That propo- seems to be an unremarkable Rights, State Constitutional way sition and one that in no undermines the (1982) Harv. L.Rev. (pro- 1498-1502 function, Brown, explicitly acknowledged in majority politically power- tection of 11 in limiting legislature’s pow- section ful approach minorities as an to state con- abrogate existing legal er to rights. id. See Note[,] interpretation); stitutional Economic Substantive Due A Process: protection substantive acknowl- Th.e Proposed Approach, 88 Yale L.J. edged by again this court Broum was (1979) (perfunctory judicial recognized review is in Masich v. United States Smelt- inadequate protect against Co., special ing, Refining in- Mining & 113 Utah (1948). legislation). Masich, terest 191 P.2d 612 discussed at man, ¶ 108, subsequently changed 10. Justice Zimmerman his 1999 UT 18 at 974 P.2d at He urged mind about article was unsuccessful effort. court to overturn in Craftsman. Crafts- ¶44 Likewise, meaning plain opinion in length Justice Stewart’s Crafts- ¶¶ 83-86, protec- a substantive clause as man, 1999 UT 18 see court, determining the since with our case law tion is consistent 11 of the Oc- constitutionality under section 18 at Craftsman, UT Masich. See Act, al- explained that ¶¶ cupational (Stewart, J., Disease 38, 86, concur- 974 P.2d 1194 rights and reme- individual though “certain exception of Justice the sole ring). With good,” public yield to the be made to dies can view, meaning revised Zimmerman’s all com- to abolish legislature were “[i]f been unani- open provision has courts negli- rights for and common pensation every justice sitting mously concurred employer, no contention could gence anof I, before this 11 cases Article section proper it was a reasonably be made that concur- (noting unanimous See id. court. Masich, 113 police power.” exercise of justices this court of rence of all thirteen 125, (emphasis add- P.2d at 624 191 Utah 101, Masich, 191 P.2d 612 113 from Utah ed). Rather, be true reverse would “[t]he Inc., (1948), Hospitals, 948 Hirpa v. IHC to vice concomitants of pauperism with its (Utah 1997) (Howe, J., applying P.2d 785 flourish.” Id. Under crime would opinion)). This analysis in unanimous Berry 11, section interpretation of article State’s analy- apply continued to court has entirely free to would be legislature reservations, absolutely no other with sis common law compensation and all “abolish of his Zimmerman’s recantation than Justice in the employer,” rights negligence of See, at 15 e.g., original views. Craftsman indeed of opinion, or of the Masich words J.) (“As (Russon, 5, n. 974 P.2d 1194 pock- with any potential defendants class of majority opinion analytical of the framework lobby- enough mount a successful deep ets agrees with the in- Russon suggests, Justice Thus, argument ing campaign. State’s open courts clause as set terpretation of the position the Masich rejects explicit of concurring in his Justice Stewart forth Brown court that section well as the court as Burton, 2000 Lyon v. UT opinion.”); see also a limitation on remedy clause contains ll’s ¶¶ 19, 82-85, (following the two- 5 P.3d 616 guaran- procedural legislature as well as Zim- analysis Berry, where Justice step of analysis set affecting courts. The tees justice criticizing Ber- only merman was the contrast, completely Berry, forth 1, ). Furthermore, reading of article our ry Masich, protects consistent any way unusual or not in way in a that has been obvious citizens law.11 unique in constitutional state court since 1915. attorney malpractice repose from six ute of commentator has observed: 11. One Moore, years); 786 So.2d three Mitchell open continue to insist that Few courts (Fla.2001) open (using courts the Florida application legisla- provision has no courts effectively provision a statute that to invalidate explicitly es- Most courts have tive actions. to the courts because denied inmates access scope on the chewed this limitation Chartier, fees); high filing Neher v. statute’s remedy clause or have constitutional 156, (1994) (finding a 879 P.2d 319 Or. by considering implicitly the merits done so employees immunity public granting statute challenges to statutes based on constitutional Oregon’s liability in violation for common-law open They recognize legislatures the clause. provision abro- because the statute courts circumstances, may, proper abolish alter or provide did gated a but common-law remedies; however, rights and common-law alternative, legislature nor did the a reasonable provi- open that the have also held strong policy sufficiently for the provide a social power. legislature's places limits on the sion Panzer, remedy); Kyllo v. elimination Koch, Jr., Reopening Tennessee’s William C. (S.D.1995) (finding a statute N.W.2d 896 Clause: A Historical Reconsidera- Court employees for com- granted to state the Tennessee Article Section 12 tion Constitution, open liability Dakota’s violated South mon-law 333, 437-38 27 U. Mem. L.Rev. abrogated provision the statute because courts omitted). (1997) (citations provide a rea- but did not common-law Greenwald, See, Conn.App. e.g., alternative, Sanborn v. legislature pro- nor did sonable that, (1995) (holding A.2d sufficiently strong policy social vide a Wasson, provision open remedy); will while Connecticut’s courts Weiner v. of the elimination (Tex.1995) (holding legislature that a to eliminate remedies stat- not allow the 900 S.W.2d 316 strong policy, free off a minor's cause ute of limitations that cut absent social majority age, the the minor reaches place on a cause of action before age reasonable restrictions her action, can sue on his or at which the minor finding the reduction of stat- here valid Decisis only 3. Stare result of the State’s view can do harm to our constitution and to the delicate the doctrine of 45 Under stare de- process balance of purpose creates. The cisis, asking prior us to overturn “[t]hose provision behind the pre- is to precedent per have a substantial burden of corporate private special vent or other inter- Menzies, suasion.” State v. unduly ests from influencing (Utah 1994). precedent We will not overturn for their own expense self-interest and at the clearly “unless convinced that the rule was public good rights and the originally longer or is erroneous no sound individual. change There has been changing conditions no because and that more good by departing than harm will conditions that would come make this of a less Hanna, precedent.” (quoting Id. at possibility John than it was at the our time consti- Decision, The Role Precedent in Judicial tution was drafted or when was decid- (1957)). 2 Vffl.L.Rev. The State has ed. not met its burden. argument 48 The State’s in effect would ¶46 Menzies, In State v. we overruled remove from Utah’s Rights Declaration of precedent place approxi- that had been in any legislative power limitation on to abolish Menzies, mately twenty years. 889 P.2d at drastically restrict tort redress. As the However, lightly, 399. we did not do so dissenting justices observed in Meech v. Hill justified in that decision case was West, Inc., haven 238 Mont. 776 P.2d 488 applicable three reasons that are not here. (1989), such a decision would “clean[se] the First, precedent in Menzies was “not scalpel legislature away to cut unre- weighty precedents.” Berry most Id. The strainedly at the whole field of tort redress. rule, however, is based on a constitutional ..., Perhaps worse the Court throws mandate, judicial understanding and on a sponge co-equal a tripartite our state it, provided protection that has substantive government.” Id. at 507. The remedies for the citizens of this state since the earliest clause thoughtful of article section 11 was Second, days precedent of statehood. ly included in Rights Utah’s Declaration of rejected in Menzies was established “with ensure that the would not be free analysis little and without reference to au- arbitrarily rights eliminate law common Menzies, thority.” Berry’s 889 P.2d at 399. establishing significant without social and model, analytical contrast, by was established policy providing need or reasonable alterna only thorough analysis after a of Utah’s case protection tives for the and vindication of regarding open provision courts Brown, Masich, rights. those Berry and history the case law and of other states with progeny safeguard continue to this provisions. similar Berry, See 717 P.2d at principle. Third, precedent 674-81. overruled in Menzies, very Menzies “not did work well.” Application Berry B. to Subsection Although 889 P.2d 400. the State claims 63-30-2(1) (a) well, Berry does not work our case law Berry since indicates that it does. The two- analysis 49 We now turn to the part Berry test is a functional method of constitutionality of subsection 63-30- preserving protections 2(4)(a) Article section ll’s using Berry. the test set forth in A permitting while still rational evolution of legislative enactment that does not eliminate tort law. remedy a is not unconstitutional under the Const, open provision. courts See Utah art. 47 The has not demonstrated that Therefore, § 11. we must first determine Berry wrongly was decided or that abrogated whether a cause of action has been change in application conditions makes the by remedy enactment. If no showing unsound. Rather than good eliminated, by “more than depart- proceed harm will come was there is no need to Menzies, precedent,” 889 P.2d at with the test. behalf, open provision); legislature’s ability violates abrogate Texas’s courts tions on the com- Sheldon, cf., 231, remedies, Cronin v. refusing apply 195 Ariz. mon-law but (1999) (recognizing open provision statutorily 238-39 that Arizona's courts created open provision places rights). courts substantive restric- only unique nature that it can Remedy be “of such Abrogation of

1. agency or performed governmental be ¶50 argues in case The State governmen- essential to the core of abrogated because the that no was activity.” Id. at 1236-37. This definition tal Immu amendment to the Governmental governmental function was used of the term nity 63-30- Act contained subsection activity was covered to determine whether 2(4)(a) years enacted four before had been until the redefined the the Act Laney was electrocuted Mr. term in the 1987 amendment. provision, howev under the issue er, already not whether a statute has been City’s opera- argue that the 52 Plaintiffs arises, a claim but rather enacted before municipal of a electri- tion and maintenance abrogates the statute a cause whether system would not have been cal existing at time of its enactment.12 action under the function Standiford ¶¶ State, 35-38, Day See 1999 UT maintaining power lines is standard because (“The determination of whether only it can unique “of such a nature that injured ‘person, property, person who is governmental agency or performed remedy by due reputation’ has been denied a govern- ... to the core of is essential by reference course law should be decided immunity.” agree. Id. We mental general rights law of and remedies at amendment, 53 Prior to the 1987 Legislature abrogates a the time that power system operation of an electrical was Thus, argument that remedy.”). State’s function, which proprietary considered abrogation of a if a there is no See, Act. under the not entitled already in at the time a statute is effect 237, Meiling, e.g., City v. 87 Utah 48 Lehi inapplicable. cause of action arises is (1935) J., (Wolfe, concur P.2d 546 amend- 51 Plaintiffs assert that the 1987 water, supplying light, and ring)(“[T]he abrogated remedy the law in ment a because and sub gas were considered as commodities provided prior to the amendment indi- effect jects performed commerce and were al injured by municipality- negligently viduals altogether beginning by private most operated power a action lines with cause of Egelhoff Ogden City, v. 71 corporations.”); against municipality. Prior to the (Utah 1928) 267 P. amendment, sovereign immunity scope (“A municipality supplies water to its depended governmental ac- on whether therefor, citizens, charges is liable for tivity “gov- complained of was found to be a _” (quoting McQuillin, Mun. negligence “proprietary a func- ernmental function” or 5514)); Note, § Corps. Defining Gov Only tion.” those activities determined to be ernmental Function Under the Utah Gov governmental were afforded immu- functions Act, Immunity Contemp. L. ernmental 9 J. nity. City Corp., Lake See v. Salt Standiford (“[T]he (1983) 193, 195, supplying of n. 10 (Utah 1980) (“The gener- water, subjects light gas were considered immunity injuries grant only al extends to historically per of commerce and had been resulting governmen- of a from ‘the exercise by private corporations.”). Under formed ”). tal define function.... The Act did not amendment, however, a claim function, governmental what constituted a municipality negligent against a mainte a therefore this court established standard power nance of lines can be barred whereby a function could be considered a immunity scope protection afforded the (“Th[e governmental function. See id. stat- City. Although the Act waives language gives ute’s] this Court negligence if governmental functions there is understandably logically define the term 63-30-10, function.’”). involved, § plaintiff suing a see ‘governmental Standiford, subject exceptions governmental municipality is now to the we held that a function must Although past are not defined those causes of action that Utah courts have in the looked 1896.”). Although to the law at the time of statehood to common the state of the law existed in remedy abrogated, whether a has heen determine bearing some at the time of statehood have proper question. we reiterate that this is not the issue, determining factor. See on the it is not tire See, State, 46, 35, Day e.g„ 1999 UT id. ("[T]he rights protected by Article see, § immunity, e.g., 63-30- determine the for its enactment and reason the waiver of (19). 10(1) By defining governmental arbitrary abrogation whether the was ‘an entity, governmental of a act achieving’ function unreasonable means for the elimi- activity is characterized whether or not the nation of a ‘clear social or economic evil.’” proprietary, the 1987 State, 46, 44, Day v. 1999 UT 980 P.2d 1171 effectively immunity pro- grants amendment 680). (quoting Berry, 717 P.2d at In a num- formerly activities that were tection for some ber of cases have whether we examined proprietary and were not entitled considered abolishing remedy identified Therefore, immunity. we find evil, a clear social or economic and then partially abrogated a reme- amendment employed means to reasonable eliminate the negligence. dy municipality’s Because evil. proceed abrogated, we has been Inc., Hirpa Hospitals, 57 In v. IHC the consti- with the test to determine P.2d at this court held that Utah’s Good tutionality open under the of the amendment Act, Samaritan Utah Code Ann. 58-12-23 provision. courts (1996), Berry’s step met the second two- step analysis. analysis Id. at 793. The Remedy Alternative 2. No Reasonable Hirpa prior assumed Good Sa- prong of the the first Under passage, maritan common Act’s law rule analysis, when a has been physician who is under no affirmative abrogated, first determines wheth this court duty person to assist a is held to a distress provided a “reasonable er the has duty of due care if he or chooses she remedy ‘by course of law for alternative due respond voluntary emergency and render as- plaintiffs] in vindication of constitutional [a sistance, applied. Id. at 793. We held that Berry, Berry, 717 P.2d at 680. In terest.” the Good Samaritan Act did not violate the we held that the substitute benefit “must provision by displacing the com- substantially equal in value or other benefit legislature legiti- mon law rule because the remedy abrogated providing essen mately characterized the common law rule as tially comparable protection to substantive by discouraging physicians a social evil property, reputation, al person, one’s responding emergencies rendering remedy though the form of the substitute threatening medical care in life situations. case, In may be Id. the instant different....” Hirpa particular Id. at took notice 793-94. legislature we find no indication that legislature sought of the which the manner remedy, provided substitute nor does the goal. opinion accomplish stressed Therefore, argument. make we provisions of the Good Samaritan Berry prong must turn to the second of the Only narrowly at 794. Act were tailored. Id. test. good providers faith immunized. Id. were immunity applied only physicians or Economic ren- 3. Elimination of Clear Social dering emergency Evil after care and not to care emergency had ended. Id. The court if 55 The State contends even continued: remedy abrogated, is was the amendment act, Finally, interpreted the as we have prong of the constitutional under the second test, applies only to medical who had no doctors Berry provides that where no Thus,- remedy preexisting duty to render aid. provided, alternative has been “abro remedy only gation of the or cause of action act true volunteers who immunizes justified only if there is a clear social or though they are not obli- aid even render economic evil to be eliminated and the elimi gated think limitations to do so. We these existing legal-remedy is not an nation of an reasonableness of the act. indicate the arbitrary or unreasonable means for achiev unnecessarily The statute does cut an ing objective.” Id. through causes of action wide swath Rather, against providers. medical immu- legislature 56 To determine whether nity provided under limited circum- justified abrogating remedy was only purpose of encour- stances and for the negligence municipality, of a we review the emergency aging potentially life-saving legislative history “to of the 1987 amendment Therefore, think medical care. we the act down because barred actions without attempt is a reasonable to eliminate a clear regard injury to the occurrence of an and did I, evil social and does not violate article provide a reasonable amount of time to section 11 of the Utah Constitution. file a lawsuit. No effective and reasonable provided, abrogation alternative was Id. and the arbitrary of the was held to be (Utah Wright, 58 In Cruz 765 P.2d 869 unreasonable. Horton v. Goldminer’s 1988), similarly we considered whether the (Utah Daughter, 1989); Sun Married Act of Women’s 1898 violated article Utah, Valley Water Beds Inc. v. Herm prior section 11. We assumed Son, Act,' 1989); passage Hughes & of the Married 782 P.2d 188 Women’s applied allowing Berry common law rule v. Beech Corp., husband 717 P.2d 670 Aircraft (Utah 1985). a cause of action for of consortium loss against party injured a third negligently who Legislature responded 60 The to the con- Act, his wife. The Married Women’s as in- requirements stitutional outlined in the fore- court, terpreted by this eliminated the hus- going by enacting cases a new statute of remedy. band’s stressed under We repose, considered this court Crafts- test, legislature may eliminate or Supply man Builder’s v. Butler Manufactur- abrogate entirely a cause of action if there ing, 1999 UT 974 P.2d 1194. In that sufficient and the reason elimination or abro- case, upheld repose barring we a statute .of gation arbitrary is not an or unreasonable against years actions builders after twelve achieving objective. means of We wrote: against an article section 11 attack. We Therefore, if even a loss-of-consortium given held that the clear social and economic cause of action did exist at common law in enacting evils identified (and there no evidence that such repose together the statute of with the re- exist), an action did prevent that would not injury mote damage chance of after a modifying’or abolish- years, period of twelve the statute was not an necessary that cause of if action arbitrary or unreasonable means of eliminat- sufficiently strong legislative serve ends. ing the Having question, stated evils considered the we con- constitutional. passage clude that summary, foregoing of the Married in all of the cases in Women’s Act was a reasonable legislation legal which the rule under ex- reasonably enactment intended and tai- passed amination constitutional muster under place lored to equal men and women on test, prong the second abro- footing respect ability to their gation “arbitrary was not an bring injuries actions for their own and to achieving” unreasonable means for extinguish concept that wife was the elimination of a clear social or economic evil. property If, of her pro- husband. Berry, 717 P.2d cess, right the husband’s to sue for loss of only 61 In the case that we have found consortium, his wife’s which have nev- legisla- which did not involve an act of the Utah, abolished, er existed in was we con- ture, this court abolished the common law clude that the abolition was not an unrea- n ; tort of criminal justified conversation and its step. sonable open provision abolition under the courts Cruz, (citations 765 P.2d at 871 and footnote ground cause action was omitted). “serve[dj” policy,” “unfair and bad no useful ¶ 59 involving Cases statutes of limitation purpose, subject abuse, was protected repose and statutes of have come before this already interests adequately were case, court with mixed In an early results. served the tort of alienation of affections. I, 11, we held that article section did not Macfarlane, Norton v. 818 P.2d 16-17 preclude prescribing (Utah 1991). one-year statute of limitations for the time ¶ Recently, State, Day in v. 1999 UT within regularity orga- to assail the we on the irrigation nization of an relied district. v. Horn (1915). Shaffer, provision granting 47 Utah to strike P. 555 In down statute cases, three repose statutes of negligent operation were struck of an emer- I, protected by immu- where of action article in ch'cumstances gency vehicle section 11. declared nity previously existed. We had leg- unconstitutional because

the statute Id. at 592. acting a “clear was not to obviate islature backdrop 64 With of the histo (citation Id. at 46 evil” in this state. social ry applied we have cases where the second omitted). legislation sponsor of the had test, prong we turn to the necessary be- explained that the statute was outset, ease. At the instant we call attention lawsuits, “espe- frivolous cause of rash of strong Brigham words of caution in v. cially in Id. noted that on Ass’n, California.” We Moon Lake Electric 24 Utah 2d face, identify (1970): sponsor’s statement did 470 P.2d 393 economic, social, any other evil highA tension transmission wire one of presented No evidence was that Utah dangerous things Utah. the most known to man. lawsuits, only deadly, Not is the experienced had a rash of similar current but the danger away is hidden in an innocent look- likely to. Id. ing ready injure wire at all times to kill or case, Gaufin, another Lee anyone who touches it or comes too near to 1993), three members of average way it. For the citizen there is no repose down a statute of this court struck knowing whether the wire is harmless malpractice under minors in medical cases anything or lethal until it is too late to do operation uniform article section Therefore, high degree duty about it. remaining justices provision. The con- laws upon electricity one who transmits ground that the in the result on the high curred tension wires to see that no harm person rightfully proximity 11. Id. at befalls statute violated article person guilty thereto when that is himself (Zimmerman, J., Hall, C.J., concur- words, wrongdoing. of no In other required ring.) The at issue a minor statute highest degree care must be used to years bring to four an action within two prevent coming harm from others. injury. alleged malpractice Id. at after an added). (emphasis Id. at 395 The 1987 However, legal a minor has no 574-75. since 63-30-2(4)(a) elimi- amendment of section ordinarily ability bring no actual appellants’ right nates the for Mr. sue action, statute was to the net effect of the Laney’s wrongful statutory death. The deprive the minor of the cause of action sharply amendment thus limited instances legally as- before the minor was entitled to operating power sys- municipalities where two-judge sert it. Id. at 578. The concur- negligence. tem could be held liable for their rence states: cases, prior we 65 As we have done not car- legislation’s supporters have [T]he legislature’s purpose examine the curtail- majori- proof. ried their burden of As the previously existing for the demonstrates, justifications ty opinion municipal power sys- negligent operation of a legislature’s severe advanced proposed tem. The 1987 amendment was abridgment right of this narrow Immunity Task Force of Governmental bring category potential plaintiffs specifically legislature. The Task Force injuries their actions for actual suffered found: charitably. speculative, put it The are years, naming past In the several lawsuits legislation certainly have defenders of this governmental have entities as defendants not shown that the effective elimination of dramatically. large damage The increased legal to sue for medical minor’s against governmental entities that awards reasonable, nonarbitrary malpractice is a plaintiffs have obtained these lawsuits lowering malpractice means for medical gov- increasingly for has made it difficult showing, premiums in Absent such a Utah. to obtain or afford liabili- ernment entities presumption ty government entity have failed to rebut the insurance.... If a insurance, unconstitutionality leg- liability that attaches to not have does entity pay damages,- severely orders the limits a common islation so Inc., entity pay by objective. Hirpa would need to the award Hospitals, IHC taking money general emphasized from its fund. 948 P.2d this court the nar- tailoring row of the Good Samaritan Act in Fellows, L. Mem- See John Memorandum to upholding constitutionality. Id. at 794. bers of the and Local Affairs Interim State only good providers We noted that faith were 1986) (on Committee, (Sept. at 1 file immunity applied only immunized. Id. The Legislative Re- Office Counsel). during emergency and not after search and General emergency Additionally, had ended. Id. ¶ According history, legislative only applied to medical doctors who had no proposed the task force 1987 amendment duty preexisting to render aid. Id. We com- “hope passage in the of these bills will mented: cheaper government make it easier or for a We think these limitations indicate rea- entity liability to obtain insurance.” Id. Thus sonableness 'of the act. The legislative objective appears statute does to have been liability unnecessarily not cut an to make insurance more wide swath affordable government by liability through against reducing for entities causes of action medical objective worthy, Rather, providers. risks. While that is provided is legislature swept broadly too when it severe- only under limited circumstances and for ly negligence against curtailed actions munic- purpose encouraging potentially life- ipalities operating power systems. The saving emergency medical care. There- partially abrogated amendment fore, we think the act ais reasonable at- injured persons by high a breach of the tempt to eliminate a clear social evil and duty imposed operators. of care on The such does not violate article damage about concern increased Utah Constitution. against governmental awards entities stat- Id. terms; very general ed in specifics no are case, 69 In the instant given. We do not know whether munici- has municipalities defined all activities of pality in operating this state an electrical action, governmental regardless of their na- system large damage has sustained award. sweep, operation ture. In its of both a only oper- We do know that a small fraction system golf govern- sewer and a course is municipal power systems. ate general mental, along operation with the of a munici- legislative findings nature of the do not show pal power system, though electrical even large damage awards have made been potential negligently causing by for death against municipalities in connection with municipality vastly greater in the lat- operation power system, anof electrical activity ter and the standard care is thus operation or that such has been affected in higher. much any way by potential liability. large 70 If verdicts are vexatious to cit- City generates profit an annual ies, a approach might reasonable be to create operating power system. its electrical It is very limited specific immunities to address operation not an subsidized tax dollars. problems, place “caps” toor on the amount insurance, therefore, liability The cost of damages, has done else- might paid not even be for taxpayers Immunity where in the Governmental Act. City, but rather consumers of the (Supp.2001). Utah Code Ann. power, 63-30-34 may electrical some of whom live has, City. Obtaining liability example, upheld statutory outside This court insurance caps power plant doing judgments damages one of the costs personal of a business, private municipal injury whether it is a against entity. power system. City If DOT, cannot afford to McCorvey v. Utah purchase liability (Utah 1993). reasonable amounts of in- The immunization of all munic- care, high surance to meet its standard of ipal justified by any legisla- activities was not justified rate increases and neces- investigation, findings, tive or relevant histo- sary. ry. ¶ Equally disturbing is the broad We therefore hold that the 1987 sweep legislature that the applies took to meet its amendment is unconstitutional as it perform govern- entities power 75 Government operating electrical municipalities functions, proprietary to meet the and sometimes amendment fails mental systems. The Berry test. No clear prong of the functions. functions are those Governmental second specifically evil has been performed only by or economic gov- social functions that can be identified, sweep of the and the broad functions, performing gov- ernment. In such arbitrary and unreasonable is amendment enjoy immunity ernment entities absolute municipal operation to the applied when sued, liability. They from cannot be even high duty of system, where a power electrical negligently per- where such activities are opinion on express no imposed. care is We formed, Indeed, they unless so consent. constitutionality as of the amendment legislature enacted the Utah Governmental municipal since a applied other activities Act, Immunity immunity which waives in cer- may apply and differ- standard of care lower situations, subject tain enumerated to condi- may be relevant. ent considerations can, time, legislature tions. And immunity modify withdraw such waiver CONCLUSION n same, meeting without do so acts, omissions,’ 72 We hold that requirements by set forth test. City height not to raise the decisions of the apply forth in The test set does of, insulate, warnings provide further immunity governmental cases. Governmen- discretionary fall lines within immunity applies governmental core tal when exception Governmental function Utah involved., functions are Act, Immunity Ann. 63-30-10. Utah Code hand, government 76 On the other occa- §Ann. 63-30- also hold that Utah Code We sionally in becomes involved activities that 2(4)(a), Berry analysis, violates Arti- under a but, rather, governmental nature are clause, open courts cle proprietary. functions are those are Such thus reverse the We Constitution. by private persons normally performed summary judgment and remand trial court’s performing proprietary businesses. When claims. appellants’ the merits of for a trial on functions, enjoy government does not immunity. subject It is to the concurs Chief 73 Justice HOWE govern private and standards that same risks opinion. Justice DURHAM’S govern- persons or businesses. Whenever RUSSON, Justice, concurring: beyond into ment moves its core functions ¶74 concur, I but for different reasons realm, into direct proprietary it enters Durham. The than stated Chief Justice with, instances, competition certain accept legis- that the seems to Chief Justice private enterprise. In cer- supplants, even can, statute, pre- lature declare activities instances, government at a decided tain viously govern- proprietary held to be to be advantage competes private en- when it Berry test. mental if that statute meets the sector, gov- private because the tities disagree. my opinion, I doing business does not ernment’s cost of proprietary that which is cannot declare liti- the cost of insurance or adverse include legislature can governmental. While the be government gation awards and because affecting “governmental activities” pass laws captive taxpayer base. On subsidized activities,” it cannot “proprietary well as hand, private in- other businesses often change of such activities. the true nature through the inconsequential costs cur not farm, course, golf operation of a or store necessity carrying insurance and defend- regardless always proprietary of what will be ing against litigation, because are not legislature says it is. The can protections or afforded the same pertaining operation of auto- pass laws government. mobiles, cannot declare automobiles to but ¶77 engage in government chooses to If be sailboats or houses. “Govern- henceforth activities,, on the proprietary it must do so “pro- mental functions” differ nature private persons. It has been same basis as may be af- prietary functions.” While each government, per- long when established by legislation, fected one cannot be declared functions, liable for its forming proprietary the other. brought legislation actions. The cases this modifying, restricting, before or eliminat- required for decades have a determination right people remedy to seek a government entity whether the involved against was private persons, government or a performing governmental a function for entity, operating power plant, a but such proprietary which it could not be"sued or a legislation Berry must meet the test. function for which it could be sued. ¶ Therefore, us, in the case before Fair- ¶ right people of the to seek a City acting private view proprie- in a or remedy against persons, private for harm tary operation function in its of an electrical entities, government performing pri- when plant power subject which it was liabil- proprietary guaranteed vate or functions is ity negligence, any, if and the amendment by article section 11 of the Utah Constitu- change, the statute did not nor could it however, right, tion. Such does not exist change, Furthermore, status. against government agency a involved core amendment to purport the statute did not unless, course, governmental activities im- City’s liability operation affect the of the munity expressly has been waived. power function, plant proprietary aas but ¶ However, did, does have even if it it Berry failed to meet the test. circumstances, power, in certain limited * reasons, 83 For the I above concur that right or even eliminate the persons limit the 1987 amendment is it unconstitutional as seeking against a those who have applies municipalities operating electrical them, including government entity harmed power systems and violates article manner, acting proprietary when in a if such open of the courts clause of the Utah legislation Berry Berry meets the test. The Constitution. The case must therefore be applies test acts that would reversed and remanded to the trial court for or eliminate the people restrict of the trial appellant’s on the merits of claims. open to seek under the provision against of the Utah Constitution a WILKINS, Justice, concurring and business, person, government entity par- dissenting: ticipating private proprietary in a action nearly 84 I concur with all I of section of allegedly harmed them. opinion, the lead the well-reasoned discre- us, 80 In the before case the amended tionary analysis. opinion, function I state no question gov- statute declares act of however, compliance as to whether with in- ernment, act, proprietary even a to be a dustry necessary standards is for an act or function, thereby enjoying ab- municipality omission of a to constitute a solutely immunity liability. In other ¶¶ function, discretionary 24-25, supra see as words, act, government entity under this I unnecessary analysis. deem it to the course, operate golf can own and an amuse- dissent, however, I85 with section II of resort, farm, store, park, ment a ski a retail opinion, majority’s lead interpretation private or other such business and not be Open of the Courts Clause. negligently view the doing liable for so. It can com- interpretation current pete place private persons Open in the market with originating but Clause legally responsible Berry businesses not be Berry ex rel. for its harms. This is an Corp., abandonment of Beech 717 P.2d 670 Aircraft economic, long-held legal, political 1985), princi- accompanying test, and the ples way fundamental to our of life. When places this court outside of its constitutional government participates in private pro- separation role and powers prob- creates prietary sphere, subject lems. I would overturn in favor of the just courts clause of the Utah Constitution procedural interpretation more government are those with whom the is com- jurisprudence Courts Clause advanced in our .peting. to, since, prior Berry. disagree I also concurring opinion, with Justice operation 81 The Russon’s plant by of a 63-30-2(4)(a) government entity he proprietary. also declares the section This sta- changed by tus legislature. cannot be unconstitutional and continues to adhere to do, however, What the can pass Berry.

1029 63-30-2(4)(a) [personal injury].” Builder’s of my opinion, In section Craftsman Act, Co., Immunity Utah Supply, Inc. v. Butler 1999 UT the Utah Governmental Manuf. (1997 Supp. & 112, 1194; §§ to -38 18, Berry, Ann. 63-30-1 accord Code 2000), section violate article does not at In order to ensure that P.2d 680-81. Constitution, Open the Courts the Utah limited, or, appropriately the affirm the district therefore I would Clause. view, my pass permit the court City immune Fairview is ruling that court’s legislative policy, judgment on this court de- my negligence. In alleged for the from suit analytical Again, veloped Berry model. view, its consti- Legislature acted within abrogates a statute that order for setting the current authority in forth tutional remedy existing to withstand a constitutional immunity in Un- sovereign Utah. scheme Clause, Open challenge under the Courts statute, City be enti- Fairview should der Berry requires one of two conditions to be omissions, for its tled to met: insulate, of, provide fur- height raise First, pro- [must ... the law otherwise power lines under sec- warnings on its ther injured person an effective and vide] an 63-30-10, discretionary within function a remedy “by alternative due reasonable discretionary exception of function law” for vindication of his consti- course of Immunity Act. Utah Governmental provided by The benefit tutional interest. argued City correctly 87 Fairview substantially equal must the substitute be presume section 63-30- Court must remedy in value or other benefit to 2(4)(a) constitutional, resolving any reason- is essentially compa- abrogated providing constitutionality. As in favor of doubts able per- protection to one’s rable substantive Open case: prior in a this court stated son, reputation, although the property, or [principle lawof The first and foundational remedy may be form of the substitute constitutionality statutes] relating [; or] ... different legislature as prerogative of the is that the [s]econd, al- if there is no substitute or respected. law is to be creators of the remedy provided, abrogation of are accorded ternative Consequently, its enactments validity; this court presumption of or cause of action' a legislative act not strike down justified only should if there is a clear social partic- justice in the the interests of unless eliminated and economic evil to be doing require so be- ular case before legal remedy existing elimination of an clearly in conflict with the cause the act is arbitrary unreasonable means for not an forth the Constitution. higher law as set achieving objective. (Utah Draper, P.2d v. Zamora omitted). (citations Berry, 717 P.2d at 680 omitted); 1981) (internal citations footnote view, majori- permits a my In this test Bd. Bds. Ass’n v. State see also Utah Sch. judgment of ty to substitute its of this court 1125; Educ., 2, 9, 17 Soc’y P.3d 2001 UT good public policy for the what constitutes Whitehead, P.2d Inc. v. Separationists, judgment legislature, branch (Utah 1993); City Engi Lindon only best suited to government that is not Co., neers Const. public policy under implement determine 1981). system government, constitutional- our but ¶88 past, In recent since art. Const: ly obligated to do so. See Utah interpreted has been Courts Clause VI, opinion that whether 1. I am of the legislature’s way it limits the such “substantially equal substitute alter, modify, ability or eliminate the remedy abrogat- value or other benefit legislation to meet this court’s by requiring ed,” a clear social or whether there is See, e.g., through Berry test. approval eliminated, ques- are two evil to be economic Berry, prior In Berry, 717 P.2d legisla- be answered tions that should admittedly “broke new members of this court, overstep ture, we our and that not this 11 ... as article ground and read view, my application doing. In in so bounds strong limitation imposing a substantive can queries to a set of facts ability to limit or eliminate legislature’s of, in favor either for, in a decision available result of action or the remedies cause to, enactment, legislation, action opposed decision the time of cause of completely upon opinion depends one’s against only legisla- exists state as the public good. is in the This case demon- what view, immunity. to waive ture sees fit why test straw man strates positions only are rational. after both It is to, analytical jus- permits framework that one one his or her view the inserts as to what tify predetermined a To borrow outcome. be, sovereign this case how im- should “subject language, Zimmerman’s it is Justice functions, munity that one determines manipulation.” Craftsman, 1999 UT 18 at permits amendment ade- whether the an ¶ 108, 974 P.2d 1194. remedy. quate If and reasonable alternative Berry 90 How one answers the first agrees legislature authority one the has an query, provides whether the act effective sovereign immunity, legislature to waive the remedy equal in and reasonable alternative abrogate remedy. does not a If one believes abrogated legal value or other benefit to the injured rem- individuals are entitled to a remedy, depends upon of view. point one’s funds, edy legislation that from state then plaintiffs’ perspective, From the the 1987 prevents abrogates remedy. this a 63-30-2(4)(a) including amendment section part second test 91 The the possible remedy; they their eliminated can permits second-guess legislation one longer wrongful recover death no for be- justify predetermined a outcome even more legislation abrogated cause the part. Whether, so than the first if no ade- wrongful offering any death without sue quate pro- remedy or alternative is substitute effective, remedy, substitute let alone an rea- vided, the act remedies a clear social sonable, them, alternative one. To the evil, clearly depends upon economic one’s precludes recovery. amendment From the view, view, my In plaintiffs’ point prior point of has no to the date on view. this court 30—2(4)(a) effective, which section passing judgment became business on what consti- 63— they remedy against have would had a Fair- tutes a social or this clear economic evil in City Laney’s City’s view for Mr. as the death Then, analyzing legislation manner. whether was, them, operation power lines nonarbitrary is a reasonable means function; now, proprietary because but sec- eliminating perceived such a social eco- 63-30-2(4)(a) broadly govern- defines simply permits nomic evil one con- to decide encompass operation mental function to stitutionality upon personal based his or her lines, longer remedy no have opinion regarding policy. From any against City.13 sort From Fairview perspective, plaintiffs’ legislature did hand, City’s perspective, on the other identify social not or economic to be evils 63-30-2(4) (a) abrogate existing did not an eliminated, and prong therefore this second and, remedy, therefore, legislature did Arguably, not is met. from provide not need to adequate alternative plaintiffs’ position, it is a clear eco- social or remedy. view, City’s Fairview at prohibit recovery against nomic evil to 63-30-2(4)(a) enacted, time section was personal injury; State for sovereign provided immunity doctrine of eliminating recovery amendment such is an remedy against City no existed without arbitrary, unreasonable what elimination of legislature’s permission. City’s should be remedied. From Fairview sovereign dictates under what circumstances hand, perspective, legisla- on the other recovery permit- is waived and clear ture identified social and ev- economic against State; ted and therefore where ils, through which it eliminated non-arbi- guaranteed, no modification does trary, legislation. Specifically, reasonable abrogate City remedy. not reasons high viewed ex- insurance abrogate that the Act did be- penses municipalities, potential borne bur- sovereign immunity cause as it existed at the dens on the tax base of enti- time of prevented statehood would have ties, unpredictability municipal and the plaintiffs recovering against Fairview City. managers, risk as clear It looking Even economic evils. to whether amend- abrogated existing ment through cause of action reduced these economic re- evils 63-30-2(4)(a) Immunity 13. Utah Code Ann. was added to the Utah Governmental Act in Open disagree I Courts Clause. under which structuring the circumstances inju- that, prior personal Berry, claim recovery against opinion’s lead view, Nevertheless, ry permitted. interpreted Clause deciding what no this court has business guarantee remedy, to a substantive evil in or economic a clear social constitutes “unanimously in.” it has been concurred so, way. Permitting court to do this this Berry lightly. I I do disavow am wheth- this court to determine requiring then cognizant respect principle of and economic evil was perceived social or er decisis, gives stability pre- stare unreasonable, non-arbitrary in an eliminated dictability system. legal to our See Clark v. way, to sit as a second requires ¶¶ Clark, 25-29, UT reevaluating public policy of legislature, al- “[tjhis J., However, (Wilkins, concurring). legislation. ready-debated ... ‘not reverse has hesitated case ¶ may, certainly 92 other cases and While firmly law we are that we when convinced will, clearly positions more reveal reasonable ” Clark, have erred earlier.’ Clark v. 2001 framework, Berry the on either side the ¶44, (quoting n. UT 32 27 P.3d 538 Staker Berry permits fact remains that the test Ainsworth, n. v. 785 P.2d my on either side. reasonable conclusions 1990)) (Russon, A.C.J., dissenting, joined by view, simply Berry sets forth a the test C.J.). Howe, agree I that “we should not position justifying policy the framework for perpetuate clearly wrong for that the this court. majority of the members of Clark, sake of stare decisis.” Clark v. the com- re-arguing for The test is vehicle (Russon, n. 27 P.3d UT legislature already peting the policies that C.J.). Howe, A.C.J., dissenting, by joined I people’s rightfully so the had before it— firmly Berry interpre- am convinced that the debating enacting representatives and —in Open tation the Courts Clause is errone- legislation. requires judges It to deter- the ous; accompanying Berry prov- the test has remedy is mine ade- whether substitute problems en to create than has competing more quate, again debate the social and legis- Berry Compelling evils connected with the to me is that has and economic solved. me, disguise of lation. For this reveals the proven period over a of 17 to be unworkable test: it functions as a vehicle for Berry unanimously, years, not adhered to has been permits judicial legislation and it members of by questioned has and chastised mem- been justify through judiciary to a straw man court, agreed including who bers this one politically-based, poten- legal analysis, a initially, Berry interpretation with has tially predetermined, outcome. scholars, pres- by legal been criticized powers problems. It my opinion, following separation ents 93 In our case law by Berry problems created Ber- to the more reveals that we should return view court, past Clearly, of this ry. members interpretation Open procedural Courts Berry present, agree do that is the Berry test rather Clause and abolish Open analyzing chal- best method for Courts quagmire persist than in the of decisions Zimmerman, Berry lenges. an initial Justice by permitted this generated Berry that have proponent, reluctantly reached the conclusion thereby legislative policy, court to reevaluate Berry interpretation Open role, judiciary in a placing legislative progeny provide its do Courts Clause role with our constitutional au- inconsistent See, analytical e.g., a workable framework. thority. ¶¶ Burton, 85-92, Lyon 5 P.3d v. 2000 UT subject of criti- Berry has been (Zimmerman, J., concurring in the re- Indeed, Berry demon- our cases since cism. sult); Inc. Supply, Builder’s Craftsman proven to be this criticism has strate ¶¶ Co., 108-155, Butler 1999 UT Manuf. substantive interest rec- well-founded. (Zimmerman, J., concurring in 974 P.2d 1194 Berry of case ognized has led to a morass result). agree. I I would abandon See, e.g., Craftsman, 1999 UT 18 at law. prior inter- progeny and its and return ¶ 136, (Zimmerman, J., concur- 974 P.2d 1194 court, suggested by particular- pretation result) ring (discussing the evolution ly interpretation suggested Justice progeny). The ana- Crockett, Berry test and its addressing challenges based lytical developed permit model has been to eliminate remedies abuse). proponent, an initial majoritarian described Justice at will runs the risk of Zimmerman, as “unworkable” because it is previously, agree 97 As I mentioned I “subject manipulation, ... leads absurd Open legislative that the Courts Clause limits results, judiciary’s] [the and it distorts rela- authority. provi- Numerous constitutional ¶ 108, tionship legislature.” Id. at legislative prevent sions branch 1194; Lyon, see also UT 19 eliminating inalienable constitutional ¶ 89, explained later, 5 P.3d 616. isAs for- rights. think, however, I do not interpreted mer members this court have Open guarantees Courts Clause one the differently, contrary Clause judicial remedy every injury to a done Furthermore, Beiry interpretation. person, property, reputation. one’s Beri'y was also criticized scholars even Open interpret- Courts Clause should not be See, developed. progeny e.g., before John now; Berry interpretation ed as it is Bauman, H. Remedies Provisions in State it, inappropriately, I and as see unconstitu- Proper and the Constitutions Role tionally, authority alter, limits Courts, Wake Forest L.Rev. change, and modernize the law. (1991) (describing Beiry “typical 270-71 Berry assumption The first with which provision” use of the activist of the remedies disagree assumption I is the who those criticizing Beii'y infringing on the legislation preventing suffer because of re- policy-making legislature); role of the David covery personal injury are individuals Schuman, Right Remedy, Temp. The to a part who minority are somehow of a that is (1992) (discussing L.Rev. 1215-17 the represented underrepresented in or the “complex methodology” Berry stating of view, political process. In my individuals existing “[n]one that of the solutions-to the injury person, property, who suffer to their problem completely clause is satis- reputation or are not a discreet and insular factory”). minority. persons, All regardless ethnic of ¶ Upon contemplation, further and with background, background, gender, economic hindsight, persuaded the benefit of I am religious persuasion, affiliations, or other assumptions upon Berry the which was based may injury. Viewing injured suffer an indi- are, part, faulty. tell, in As far can as I group retrospectively, they vidual or after premised following: is on the injury, they may have very suffered well be purpose [T]he basic of Article section 11 rally political process. to unable the Pro- impose power tois some limitation on that however, citizens, spectively, all of us as re- power legislature define, of [the the to status, gardless subject legislation are to change, and modernize law] the for the ability limiting our to personal recover for persons injured benefit of those who are injury. singled by legisla- No is group out persons, property, reputations their ability limits the to recover for they generally since society, are isolated in personal injuries. possi- All citizens face the belong group, rarely to no identifiable bility personal injury, even those who are rally political are process able to the to generally society belong visible to their aid. may what privileged, we are think identifi- Berry, 717 P.2d at quoted in Condema groups. groups able Some individuals or (Utah rin v. Hosp., Univ. may more rally be or less able than others to 1989); Valley see also Sun Water Beds of political process the to their aid. Those who Utah, Son, Inc., Inc. Hughes v. Herm & injury suffer person, property, to their 188, 191 1989); Lyon, 2000 UT 19 reputation, group are not a distinct who are ¶ 29, at (“By large, persons 5 P.3d 616 ability rally support, the to political without personal who suffer property inju serious by however. Those thwarted the Gov- are ries an isolated and unidentifiable minori Act, Immunity ernmental those ty who have who have little influence on personal injuries suffered the hands the actions. These considerations were instru us; government, may mental in adoption be do not constitutions.”); comprise clauses in a number group of state distinct and insular whose Schuman, supra, (stating through at 1217 voice political be heard define, Rather, change, “minority” simply is and modernize law for this process. society. population a whole. benefit random subset singled All citizens —even group out. No is danger presented by 101 The real subject legislators themselves —are majoritarian Berry test is that of abuse sovereign im- ramifications possible harsh risk, my this the members of court. certainly munity, voices are heard mind, legislation in requiring lies that new process. through political satisfy policy predilections majority aof Second, Open that the assumes by providing, this court of the members of language contains Clause Courts court, eyes adequate of this alterna- against protect ma- interpreted should remedy; by eliminating tive what provi- I joritarian disagree. Other abuse. as a social or economic viewed clear evil are more suited sions our constitution By continuing court. to adhere to Ber- this majoritarian They protecting against abuse. overstepping we are constitutional ry, our specifically im- language which more contain vests in the role. constitution minorities, political plies protection for law, implement, the will of provisions interpreted have been these also majority of this State. In citizens are protect groups and individuals that short, perceived I think that “risk of my political process. In isolated from majoritarian is not abuse” Open language opinion, the interpreting a sufficient reason protect against majori- Clause ill-suited prerogative to limit Courts Clause I doubt that founders tarian abuse. legislature to circumscribe under what cir- intended that our State Constitution recovery against permit cumstances to modifying prevent legislature from clause view, greater in a risk state. lies passing judgment this court without majority of members of this court substi- adequate an alternate on whether tuting judgments policy their for the policy legislative judgment to as or whether the legislature. judgments of the or evil was ad- whether a social economic Open The Courts dressed was sound. Third, Berry interpretation as- the protects against legislative that action Clause that individual who suffers an sumes each serving hinder courts from would limit or the person, property, her or injury to or his prop- people by doing anything less than the constitutionally to a reputation, entitled is efficiently resolving dis- erly and assist remedy remedy. idea that a can be The judicial func- putes performing other and optimistic every injury is and fashioned for tions. but, matter, well-intentioned, practical as a misleading 100 I it is to aver that cannot, believe law and therefore impossible. The pro- construing Open Clause as I Courts not, guarantee remedy every inju- a for does presents significant danger majori- pose a of be ry. every injury can or must remed- Not concern, far I can The tarian abuse. thing as “There still such a damnum ied. is tell, majority legislators will be is that a of injuria.” Masich v. States absque United social implement able to as law their views of Co., 101, Mining Smelting, Utah &Ref. expense policy and at the of economic (1948)(Wolfe, J., con- minority. ques- Legislation should be recognizes curring). phrase This Latin simply a as unconstitutional because tioned may causing without an or harm occur loss majority people may benefit from of the reason, good legal in the injury sense. With may Leg- minority people a of the not. and recovery many permit for law does islation, nature, very by presents the risk God, inju- and injured feelings, acts of other abuse; majoritarian majority required a of compensable. ries which are not rightfully pass legislation. legislature The to injured in who have been 103 Individuals determines, weighs competing and interests property, reputation, are persons, vote, by majority society for as a what is best law, remedy only to when the a entitled system this government whole. Our of vests common, recognizes injury statutory or legislative obligation in branch. Accord- remedy. Open Courts permits a interpret Open ingly, I think we should provide a interpreted to should not be permit legislature so as to Clause Courts Clause right seduction, remedy. interpreted promise, It be should breach of criminal con- guarantee judicial versation, affections, access seek deter- of and alienation would grants as to law mination whether 124-25, be unconstitutional.” Utah at courts, remedy injury for the suffered. The Wolfe, speaking 191 P.2d at 624. Justice law, may through the common create reme- directly question legislature’s public policy dies when dictates that certain change law, wrote, power to the common “I worthy protection interests are of do not understand that Article Sec. Likewise, legislature spoken. has not Utah, prohibits the Constitution of the modi- legislature creates when it remedies deter- entire fication even the removal or de- mines, public policy, as a matter right by legislative struction of a common law worthy protection. certain If interests are Masich, enactment.” provides Open a remedy, for then the (Wolfe, J., concurring). P.2d at 626 “The guarantees right Courts Clause seek right power, duty, as well as the remedy permitted through the courts. remedies, creating rights provide and to lies provision Open our constitu- Legislature, with the and not with the not, however, interpreted tion should Wightman, courts.” Brown v. 47 Utah law, guarantee, as a matter of constitutional (1915). only 151 P. can “Courts ¿very to a injury done protect existing rights, and enforce person, property, reputation. to one’s only do that in accordance with estab- Moreover, Berry infringes also lished and known Id. remedies.” permitting this view, Courts Clause should not be while, rights increase individual substantive interpreted guarantee every time, denying legislature at the same previously injury recognized by the law be- limit, abolish, ability to modify them. unduly cause to do so would restrict “ratcheting This completely effect” con- legislature legitimate lawmaking in its func- court; pow- trolled legislature I am opinion prerog- tion. that it is the abrogate any erless to remedies or causes ative to decide under what approval action without this court. will circumstances waive its sover- past years Berry, Under the seventeen eign immunity public coffers to once recognized the court has cause claimants. injury way action certain of common law, effectively pro- has been great 106 Of concern to me is abolishing hibited from it unless V, Berry test violates article the (ad- provides adequate an remedy alternative Separation of In its Powers Clause. amicus equate according majority to a of the mem- brief, argues Beiry the the inter- court), or, not, legislation bers of if this the is pretation Open of the Courts Clause violates harmony in policy perspectives the of a separation provision powers of in the majority of the members of this This court. Utah Constitution because it limits ratcheting effect, essence, permits this legislature of the to determine what causes of court to increase individual substantive recognized having will legal action be rights essentially while the same time remedy, and what of causes action will not. limit, denying legislature ability to mind, position, my This compelling. is abolish, them, course, modify or of unless ¶ V, 107 Article section of the Utah Con- court approves legislation of the as a matter stitution reads: policy. of powers government The of the of the State 105 This limitation the court is incon- of Utah shall be divided into three distinct sistent judicial with the of legisla- roles and departments, Legislative, the Execu- system government. tive branches in our Judicial; tive, person and and no legislature authorized, The obligated, is even charged powers with the exercise of be- change to society needs law longing departments, to Masich, one these shall change. In we noted that “both appertaining statutory rights exercise to can functions ei- rights common law away[;] otherwise, others, except be taken ther of there can no be cases question that acts which expressly permitted. abolish actions herein or directed presented my judgment, when posi- in the In this court Berry places The test challenges legislation, to legislature, second re- with constitutional sitting as a tion policy, pass judgment in- the role of this court is not to social or economic weighing the legislature. of con- of the court analyzing, as other methods on wisdom “This stead do, analysis ignore the law is an act whether cannot strike down because stitutional purpose. In rationally to its avowed it is either wise or unwise. wisdom related view, Open interpre- Courts lack wisdom is to deter- my the current judiciary Berry place unjust, test mine. If the act is amendments to and the tation evaluating inequities so- incongruous position of correct the should be made in the evils, judicial interpreta- “whether there is a and not or economic cial Masich, eliminat- P.2d evil to be tion.” 113 Utah clear social or economic (1948). ed,” permitting the or economic Beiry interpretation social judges judgment be substituted for court on policy passing of three results in this Legislature, people’s policy wisdom—whether alternative Further, reasonable; representatives. this court remedy, any, adequate elected if whether, legislation is not, when new reviews if law whether the new eliminates remedy adequately re- passed, prior permits clear or economic evil. It this social remedy. This with a new court placed unconstitutional, legisla- court to declare as judgment legislative poli- pass should three of the court deem members good a new is as cy such as whether unwise. one, whether the substitute reme- as the old I Because would disavow the “substantially equal in value” to the old dy is interpretation Open Courts Clause policy of three or one. Substitution model, would, analytical present, I for the policy legislature, judges more interpreting Open return the case law authority, specific constitutional absent view, prior Berry. In Clause contrary system government. By to our maintains, interpretation than rather this test, continuing our apply the case strains, the framework of our three-branch “define, usurps legislative power system by the government as established change, the law.” and modernize constitution. 108 As Crockett stated Stoker Justice actually Berry, Prior this Stoker, court should leave v. sovereign immunity vio- whether addressed represent the will of the legislature, who lates Madsen Courts Clause. prerogative it people, and function and whose Borthick, we said: public policy and is to and consider discuss Constitution, I, § 11 of the Utah Article that, policies enact into law those prescribes that all courts shall judgment, public serve the welfare. 616 best persons not be barred shall 1980) (Crockett, J., dis- injuries, using them redress senting). should adhere to constitu- We a new meant to create new separation powers tionally prescribed doc- I, right Consequently, Article of action. trine, legislature’s and intrude into the not change principle § 11 no in the worked Instead, change law. Id. prerogative to the sovereign immu- sovereign immunity, and restraint, judicial keeping we should exercise nity under that sec- is not unconstitutional ought the to ideas to what law our as tion. upholding Id. the constitution and check. In (Utah 1983) (citation 627, omit- 629 step ensuring legislature does that the ted); Dep’t McCorvey v. accord Utah restraints, we of its constitutional outside 1993) (“As Trans., 41, P.2d 49 868 stray permit must not ourselves to into the stated, it right to the state when the sue arena, thereby creating the legislative risk function, as consti- performs governmental a judgment policy the of three more that defined, right implicate a tutionally does not court to what the law members this as (ci- by open provision.” protected courts policy judgment ought to override the be will omitted) J., (Stewart, concurring and body, directly tations legislative those most of the also, v. Exam Cen- dissenting)); see Burton people. accountable to the 1036 Inc., Clinic, courts”); ter Indus. & General Med. 2000 as one “access Zamora v. ¶ 18, 18, (Utah 1981) (describ (citing UT 994 P.2d 1261 Brown v. Draper, 635 P.2d 81 (1915), Wightman, 47 P. Utah 366 I, ing guarantee of article section to I, proposition that article section 11 does everyone be an “assurance that must have right remedy). a not create substantive to a access to the to avail courts themselves of the opinion prerogative I am of the that is the Ott, process justice....”); Burningham v. legislature of the to decide under what cir- (Utah 1974) (“The carrying sovereign cumstances State will waive its I, of this [article out constitutional assurance immunity, opening public I coffers. requires has, person 11] section that who 63-30-2(4)(a) strike section would not down has, right protect or thinks he a to or a unconstitutional, uphold legisla- as but wrong rectify, go to be entitled to to court tion, holding comport that would with Mad- grievance air difficulty and his and have the Immunity sen: the Utah that Governmental by jus peaceable processes resolved Act, scope sovereign which defines the tice.”) (Crockett, J., concurring, but dissent immunity, is not unconstitutional under part). proce I would return to this Open Courts Clause. interpretation Open dural of the Courts agree Open that Clause I Courts Clause. places legislative authority. limitations on I agree our that state constitution limitation, however, is not one curbs “ circumstances, may, ‘provide under some define, legislature’s ability change, greater protections for our citizens than are interpret Open the law. modernize I ” required under the federal constitution.’ Courts Clause as a limitation on Berry, (quoting Daugaard P.2d at authority ability to reduce or inhibit the Ass’n, Coop. Bldg. Supply Baltic 349 N.W.2d judiciary disputes of the resolve (S.D.1984)). However, I do not people, awarding injured remedies to those I, interpret article section ll’ of the Utah legislature prohibited

under the law. The provide right Constitution to a substantive taking pre- from action that would hinder or remedy beyond legislature that which the judiciary conducting clude the from the busi- resolving controversies, modifies, grants, ness of cases or limits. Even rec deciding by law, applying pro- cases ognized important that “one functions mulgated legislature, cir- to factual Legislature change modify [is] to on a cumstances case case basis. governs law relations between indi society viduals as evolves and conditions re my opinion Berry, 113 It that before quire.” Berry, 717 P.2d at It is tacitly interpreted article section prerogative change II procedural protection as a and not sub- modify guarantee right remedy. injury stantive what constitutes an to a entitled to See, Brown, e.g., remedy. Consequently, Utah 151 P. at 367 article (declaring many states have read prohibit legisla should not be read to provisions prevent defining from govern ture what constitutes a barring “any person legal who has a mental function entitled to im right which is enforceable accordance munity as it did in the Utah Governmental remedy” some known from access to the Immunity Act. courts; indicating Open Courts opinion, prior law case Clause does create a substantive Berry interprets Clause remedy beyond rights and remedies procedural protection. The real break statute; created common not- from stare decisis was when this court ing right creating that the and of ground” Berry “broke new with the cur- rights legislature); and remedies lies with the interpretation given rent more substantive to Madsen, (stating 658 P.2d at 629 “Arti- that Open the Courts and Clause the invention of I, § ... cle 11 was meant to a not create new accompanying Ben"y the test. remedy action.”); a right or new of also see Celebrity Wightman, 116 Brown Liquor Inc. v. court Club Utah Control Comm’n, (Utah 1982) plaintiff a 1296 addressed whether could recover the (describing guarantee article from the estate the of deceased defendant continued, Wightman injuring The court “While the after the killed himself shot and who one, 31, 32, a 151 P. rule is harsh and its common-law plaintiff. 47 Utah (1915). the death the holding particularly that in this case is un- After enforcement action, thereby plaintiffs way wrongdoer just, abated we can no of es- nevertheless see plaintiff recovering, from id. preventing power, the caping right it. and The as well as the P. at the court addressed at duty, creating rights provide the and to Open argument the Courts plaintiffs that remedies, Legislature, with the lies and right to maintain guaranteed her the Clause only protect with the Courts can and courts. estate, id. against the defendant’s an action existing rights, they may enforce that do 33-34, P. The listed at 366. at only in accordance with established and constitutions that contained simi- other state known Id. remedies.” “Open provisions, Courts” stated: lar Mortgage v. National Lyman Bond have, however, always consid- The Corp. suggests procedural interpreta- also a provisions, and treated those ered In Nyman, plaintiffs sought quiet tion. to rights, placing limi- creating new but by title to that land claimed to own prevent to that upon legislature the tation receipt posses- tax deed and adverse government from of the state clos- branch 123, 124, sion. 7 2d against any doors of the courts the (1958). statute, By the holder a tax title to right legal has which is person who required pay- to real estate was demonstrate with accordance some enforceable upon property ment taxes assessed the remedy. right no of action known Where years delinquency. the tax Id. prior four exists, remedy however, given, or no P.2d at 323. The defendants law or either the common some under plaintiffs produced conceded had that statute, provisions cre- those constitutional ownership sufficient evidence of adverse ate none. argued that possession, the tax deed was but agree I that Id. at 366-67. While plaintiffs insufficient failed because legisla- places limitation on provision paid years prove had been for the four taxes ture, disagree espoused limitation I with the delinquent, landowner prior before the was majority interpretation. evidence clear that all though even interpretation emphasizes solely opinion’s necessary paid taxes had been since 1941. places a limita- Open Courts Clause that constitutionality Id. court considered note, legislature. It fails how- tion on court, that, legislation according of this fever, language Wightman rest of an action or forbade the commencement of places “a limita- Open Courts Clause ownership plain- claiming defense unless the prevent upon the tion “seized, occupied” possessed tiffs closing government the state branch from years prior filing suit. property four ” Further, .... Id. doors the courts justices, Wade and Justice Two Justice states the courts must be Wightman Crockett, as not to statute so construed legal “any person right open to who has presenting bar defendants in accordance with some which is enforceable quiet in court because to do so title claim wjhere right remedy[, ac- no known deny access to “would in effect them exists, however, given, no proper- litigate right a valid the courts to law or some stat- under either common [Open to be ty[, and] this seems what ute, provisions those constitutional create view, these prohibits.” In Clause] Courts my view, re- language, Id. This none.” interpreted the members of the court Wightman court viewed veals guarantee “access to Clause to procedural a more Open Courts Clause as remedies, rights litigate” courts to one’s do, I unlike the guarantee, like any. if Wightman respects the proponents. consti- me, City Lake v. Interna- Salt To authority right and tutional Firefighters suggests a tional Association under to determine circumstances created, interpretation. In International procedural “under of action held Firefighters, the court statute,” [by] Association common either the required dis- “creat[ing] a statute that unconstitutional Open Courts none.” the Clause putes municipal ing corpo- permit- firemen that as well men between and women as were hours, regarding wages, rations and other ted to the have legal access courts to employment be disputes conditions of to submitted to Id. resolved. Justice Crockett dis- arbitration, process, the sented, where arbitration discussing dangers “judicial the act, binding declared the was final and legislation,” majority opin- as he the viewed dispute salary all except matters in for and usurpation ion as an of the constitutional role wage 563 P.2d 787-789 matters. legislature change modify to the 1977). majority opinion noted that The the law. Id. at 592-94. Justice Crockett advo- private arbitrators citizens with no re- were cated that the law not have should been sponsibility public the that to and the act did court, changed by the legislature. but safeguard judicial not include a review and mind, my majority Id. at 594. In viewed proceeded then to Act an declare the uncon- Open guaranteeing a Courts Clause as delegation authority stitutional legislative citizens, procedural right to all male and VI, under Article section 28. Id. at 789. female, judicial remedy through to seek separately, Justice Crockett concurred not- litigation “open in the courts” this state. legislature that for the to “force arbitra- Burningham supports v. Ott also upon it parties and to make final and prior procedural interpretation. In Bum- binding,” forcing parties proceed through to ingham, plaintiff apparently promised dispute resolution mechanism other than defendant the defendant’s stock judicial which courts for there is no re- plaintiffs company would increase in val view, “deprive[s] aggrieved party an of ac- (Utah 1974). ue. 525 P.2d The courts, contrary cess to the to assurance plaintiff fraud, for granted sued but the court Open of Section Article [the Courts summary judgment, affirmed on view, at 791. legis- Clause].” Id. appeal. separate opinion Id. at 620-22. In a lation reviewed International Association why discussing “summary judgments should Firefighters Open violated the of Clause restraint,” be invoked caution with and Jus “deprive[d] it an aggrieved because stated, tice founding Crockett “[Utah’s] fa party courts,” and access had the fully thers were aware that access to the majority legislation not held that the was an courts for the settlement of controversies delegation unconstitutional au- peace good essential to and order of VI, thority under Article would society.” Id. 623. He then recited article have followed Crockett. Justice continued, section 11 and “The carrying Stoker, 119 In Stoker the court deter- out of requires this constitutional assurance completely mined that had has, has, person who or thinks he antiquated abolished the doctrine of Inter- wrong protect rectify, or a be spousal Immunity, prohibited Tort which had go entitled grievance court air his suing injury married woman difficulty peace and have the resolved person property her without husband’s justice.” process able Id. prohibited being consent and her from sued ¶ 121 In Zamora v. Draper, plaintiff (Utah 1980). individually. 616 P.2d challenged constitutionality aof statute The declared that married women required, sheriff, in order to sue a con- “prosecute could all defend actions for stable, peace officer act for an or omission preservation protection rights of her performance committed in the of his or her property if unmarried....” Id. The duty, filing of “a undertaking written court interpreted legislation permit payment two sufficient sureties” married to sue woman her husband for an defendant of all expenses costs and tort, intentional noted that against plaintiff. awarded guarantees Courts Clause —which that “ev- (Utah 1981). plaintiff ery 79-80 person, claimed injury done to him in his person, that he should have to furnish the property reputation, bond shall have remedy by law, impecuniosity, because his and he chal- due course of which shall be lenged unnecessary administered without the statute as unconstitutional. denial or delay upheld constitutional, [in a court law]” act as “credence to and in —lent statute,” interpretation suggest- [their] discussing impecuniosity alleged by

1039 stated, every- one-year enacted legislature a statute of “This assurance that plaintiff, response ninety-day to to avail in stat- have access the courts limitations to the one must imple- process justice being ute of limitations declared unconstitu- themselves of indigent permitting asserting in statutes Id. at 251. After that [the mented tional. upon filing persons powers file without separation provision, to suit oath Article “[t]he Y, Constitution, court further de- required fees].” The 1 Section Utah re- provided by Open guarantee Open scribed the quires, and the Courts Provision of the to the “right 11, as the to access Rights, I, Courts Clause Article Declaration Section that a trial permitting and stated courts” presupposes, judicial department armed with an fix a bond accordance court to process sufficient fulfill its role to as “al- indigent plaintiffs circumstances 253, government,” would branch of id. at third justice, as low him access court to seek opinion apply] announced lead that “[to 11 of I of our State Sec. Article assured petitions catch-all statute to bar not habeas Id. Constitution....” only open violates the Utah Constitution’s I, 11, provision in but courts article section sug- Berry have If122 Even cases since separation powers provi- also violates the gested Open is a Clause Courts V, in article section 1.” Id. Inasmuch as sion procedural guarantee, guarantee of “rea- adamantly this court has insisted judicial access to review.” sonable “may impose restrictions impairing the Legislation limiting 123 corpus] [of limit the writ as a habeas habeas right petition for a writ of to file judicial procedure, except provided in the as has been declared unconstitutional corpus constitution,” we should also refrain from based, part, Open Courts Clause. role, placing impos- in a ourselves State, 249, See, 253 e.g., v. 966 P.2d Julian policy judgments upon legisla- our (Utah State, 849, 1998); v. P.2d Frausto 966 ture, clearly provided except as in the consti- 1998) (Utah Julian); (discussing see 850-51 tution, Clause, Open which the Courts Holden, 1357, v. P.2d 1372 also Currier mind, legisla- If does not. we hold that “the (Utah Ct.App.1993) (declaring Utah Code impose which limit ture restrictions (1992) § Ann. 78-12-31.1 to be unconstitu judicial procedure, ex- the writ as rule of 11). solely under section tional article cept “ provided in the because constitution” Open court has even used the Courts This belongs judicial to ‘the branch Writ guarantee procedural citizens a Clause to government’” and “ n im- of the most one cer protect access to the courts to right to judicial protection portant of all tools for the See, rights. e.g., v. tain individual Jenkins Julian, liberty,’” 966 P.2d of individual 1998) Percival, (Utah (sug P.2d Cook, (quoting Hurst v. 777 P.2d gesting right of access the courts and to (Utah 1989)), respect we should also 1033-34 court”); day guarantee “a constitutional role the constitutional Comm’n, P.2d v. Tax Jensen Open longer provision no read Courts 1992) (Utah (finding that “to the extent legislature to limiting prerogative precludes Ann.] Code 59-1-505 [Utah remedies are change the law as what review, judicial it vio reasonable access injuries. available provision”); open Maryboy courts lates the Comm’n, State Tax Jensen, plaintiffs In failed to file 1995) (finding petitioners 670-71 beginning proper state income tax returns access to constitutional at 967. Tax Com- 1978. 835 P.2d The State petitioners was not violated because information, requested further mission ability pay alleged tax defi had the not re- claimed he was which Mr. Jensen Evans, ciency); Indus. Comm’n v. 52 Utah quired file a state return. Id. (Utah 1918). 394, 174 P. plaintiffs sued the Tax Commission $16,608 plain- taxes. at 968. The Julian, in back Id. four-year 124 In we held that the redetermination, petitioned for a tiffs provision catch-all statute limitations responded V, Division which the Collection post-conviction article sec- relief violated taxes to increasing the of back demand separation powers provision, $344,419. Id. The Commission sustained and article to this deficiency, plaintiffs appealed at 253. arose after Julian Clause. issue, preliminary court. the court the courts under article section 11.” Id. As 962 added). jurisdiction (emphasis it to considered whether had re- P.2d at Jenkins de- Open guarantee the as ruling plain- view the scribes Courts one of Commission’s because taxes, day in deposit parties potential “a court to all tiffs the full amount of failed to liability disputed in interest, insurance claims.” required statute Id. penalties as discussing judicial to review. After obtain ¶ Undoubtedly those who favor the Open Com- the Courts Clause and Industrial Berry interpretation procedural both find Evans, P. 825 mission v. Utah guarantees and substantive within the lan- (1918), stated, in “[Plaintiffs] the court are guage Open my of the Clause. It Courts in position employer Evans similar view, however, Berry the substantive right legality and have the to test the of their interpretation of Open the Courts Clause liability ruling the of the Tax Commis- under Open the in construes Courts Clause such a Jensen, sion a court law.” 835 P.2d at way infringe upon province to as of the they deposit requirement 969. “The legislature, creating separation powers deficiency full amount of the assessed problems that should be avoided. case, is, on the Commission facts of this an procedural interpreta- Critics judicial “Thus, effective bar to review.” Id. Open tion of the Courts Clause insist that a requiring [the to the extent that tax statute procedurally-oriented interpretation more protesters deposit to the amount the defi- Open meaning- renders Courts Clause ciency precludes assessed] reasonable access less, surplusage mere procedural pro- to due review, judicial to it open violates the rights. being cess The contention that due provision applied.” and is unconstitutional as already process guarantees, among other clearly procedur- opinion suggests Id. This things, right judicial dispute to resolu- guarantee Clause, Open al within Courts hand, though, give tion. On the other and, view, my type this is the of case that Open interpreta- Courts Clause a substantive Open equipped Courts Clause is to ad- arguably Open renders Courts dress. provision meaningless surplusage Clause Maryboy 126 In v. Utah Tax Com- process rights. State to substantive due Instead of mission, Navajo members of the Native relying Open on the Courts Clause for au- protested American Tribe income tax assess- thority, just credibly one argue could (Utah 1995). They ments. process right substantive due to a appealed the injury Tax Commission’s person, property, done to one’s or $10,855.38 required pay said, decision that them reputation. regardless That of one’s taxes, penalties, they and interest language guarantees before view as whether the appeal. were protesters rights allowed to Id. The procedural open courts whether asserted that the Commission’s order that guarantees right remedy, it .to alleged deficiency deposit responsibility tax “vio- simply interpret before us is lated right them have Open constitutional give Courts so as to Clause access to the courts of this Id. at meaning doing state.” and effect without violence to Open court then discussed the view, Courts other constitutional doctrines. Jensen, application Clause and but interpretation goes held beyond the current Maryboys’ case, that in the language the statute re- provision, of the which I deem un- quiring deficiency deposited necessary, that the be did and crosses bounds set forth in preclude judicial reasonable powers access to separation clause of the Utah because, review protesters unlike the in Jen- Constitution. sen, Maryboys pay were able to my position It is indeed alleged deficiency. ground that, new broke and charted a course Percival, 127 In Jenkins v. P.2d 796 although well-intentioned, proven has to (Utah 1998), this court misguided. cites Jensen and problems The constitutional reads section 11 'procedural article as a have arisen and will continue to arise guarantee. said, impose test, This court “To lia- through application partic- bility on an for an over insured amount ularly separation powers problem, policy proceeding limit arbitration by overturning should be averted Berry and would returning procedural violate the insured’s interpreta- access to to the more me, justice F Berry. unnecessary under the law without prior to tion that existed delay. analysis Berry, a prior to contextual case law language, problematic phrase, “every person, 133 The second Berry, responsibility decisions since injury person, for an to him in his done way in such interpret the constitution so property reputation,” is not a source of proper each recognize as to role of procedural right. either a substantive in government relation to each branch of phrase persons This defines the and the sub- abandoning point Berry. other toward all ject provi- to open matter the courts which sion, guarantees espouses, and the apply. it ¶ my Open text of opinion, 131 In suggests applies It provision that the to indi- clearly supports proce- a more Courts Clause injury viduals who to have suffered interpreting guarantee. “In dural state person, property, reputation. As was dis- constitution, primarily we look to the lan- above, legally cussed all harm is a not action- guage constitution itself....” Grand of the injury. legally able constitutes a What ac- ¶57, 28, County Emery County, 2002 UT v. injury statutory depends tionable on the Gardner, (quoting 52 P.3d Thus, law common state. of this whether 1997)). “Therefore, our remedy depends upon one is to a entitled interpreting a stai’ting point in constitutional remedy, a permits whether provision language the textual itself.” permits order to know whether the law a Gardner, P.2d at 633. remedy, ques- one must be able to have Open 132 The text of the Courts Clause adjudicated. follows It therefore guarantees that article section indicates the courts must be to individuals for a procedural rights; the extent that it limits determination of whether the harm have legislative authority, prevents legisla- injury suffered an under the constitutes law. restraining inhibiting ture or otherwise The phrase third has been source people go to ability of the the courts to right remedy in Berry of the substantive to a adjudicat- have and controversies their eases ability limit the which has been used to separat- can Open ed. Clause be The Courts judicial legislature to the law without alter (i) phrases:14 ed into ‘All “four interrelated oversight. phrase “right remedy” to a (ii) ‘every open,’ person, shall be phrase “by light should be read in of the due person, injury property him in his done to phrase process of law.” The latter modifies (iii) by reputation,’ remedy ‘shall have due way, phrase. former read this When one (iv) law,’ course “whichshall admin- be remedy, a a right right does not have a but unnecessary istered denial or de- without remedy, to access to the courts to seek if (Zim- lay.’” at Craftsman, 974 P.2d “by particular injury provides for one due result). merman, J., concurring in the words, law,” or, process through in other interrelated, phrases are must be read processes procedures of the other together, light of one another. These law. whole, guarantee phrases, interpret Consequently, I the text of judicial adjudication where one in- has been provide proce- article 11 to more jured repu- person, property, her to his or guarantee. guarantees dural access and It phrases tation. The first and fourth are authority legislature to limits the of the limit “All procedural in nature. courts shall citizen access to the courts for resolution of system open” admonition that a court is an by disputes process Open of law. The due seeking shall redress. be available view, Clause, limit does Courts “[WJhich shall be administered without deni- legislature authority legislature: The of the unnecessary delay” directs al or the courts to may judicial close resolution the doors delay. conduct their business without undue open” disputes. courts shall be “The phrases together, When these direct party read enti- the determination of whether exist, system

that a shall of courts to an under the law tled established accessible, I system legislature. shall be and that as established would system interpret the Clause not to limit Open function so as to administer Courts shall analytic Craftsman, offered framework. Justice Zimmer- man this useful his dissent authority legal legislature to define to address the extent to which

injuries public and delineate circumstances un- it is compen- desirable to use funds to may remedy, acts, omissions, injured by der which one be entitled to a sate those or deci- ability government but to limit the acting public sions of the in the deny party judicial access to a officer for a interest. particular determination of whether a set of espouse deferring 138 I legisla do legal facts and circumstances constitute a expansion tive retention or injury for which a exists under the unreasonably which burdens im law. See, portant rights. e.g., constitutional view, Accordingly, my Hosp., statute Condemarin v. Univ. issue, (Utah 1989). 63-30-2(4)(a), me, Ann. Utah Code Open For infringe upon rights guaranteed does not provides procedural rights Clause interpret infringed Courts Clause as I it. upon legislature. not be my opinion, present legislation, summary, agree acts, 139 In I that the preserves sovereign immunity govern- for a omissions, City or decisions of Fairview function, mental deprive does not individuals of, insulate, height provide raise the injury who person, have suffered to their warnings further on its lines fall with- property, reputation, of access to our discretionary in the exception function of the system to seek a determination of Act, Immunity specifical- Utah Governmental injury whether their constitutes a redressa- ly Ann. I Code 63-30-10. would injury ble under the law for which are overrule in favor of proce- the more 63-30-2(4)(a) remedy. entitled to a Section interpretation juris- dural seen in this court’s sets forth the law under which individuals prudence Berry. both before and after Un- government. seek redress from the It interpretation, my opinion der this it is also defines those circumstances under which 63-30-2(4)(a) section does not violate Article injury is not redressable under the law. 11. I judgment Section would affirm the 30—2(4)(a) Section exhibits the 63— of the trial court.

prerogative to scope determine the of sover- eign immunity and the circumstances under ¶ 140 Associate Chief Justice DURRANT legislature, which it is waived. subject concurs Justice dissenting WILKINS’ always political pressures from constit- opinion. uents, has broad in deciding discretion recovery whether against governmental enti- expanded

ties should be or contracted and

under Sovereign what circumstances. immu- nity infringe upon right does not one’s to a 2002 UT 82 judicial particular determination of whether HEGARTY, Petitioner, Patrick injury facts constitute an which the law rec- ognizes remedy. as entitled ato Section 63- 2(4)(a)sets forth the applied by law to be 30— OIL, GAS, MINING, BOARD OF AND DE judicial presented by officer to the facts PARTMENT OF NATURAL RE injury. individual who has suffered As a SOURCES, Utah, State of River Gas result, 63-30-2(4)(a) uphold I would Corporation, Exploration Texaco as constitutional. Production, Inc., and Dominion Re 137 In view it is the and obli- Inc., Respondents. serves-Utah. gation sovereign to waive No. 20000917. immunity judicial excep- sees fit. While Supreme Court of Utah. sovereign immunity exist, tions to do it is the prerogative to define the Aug. 2002. scope sovereign excep- and the Rehearing Denied Oct. waived; tions which it is legislature’s Clause is not a limitation on the

ability scope to define the orof waive sover- Indeed,

eign immunity. appropriate it is

Case Details

Case Name: Laney v. Fairview City

Court Name: Utah Supreme Court

Date Published: Aug 9, 2002

Citation: 57 P.3d 1007

Docket Number: 981729

Court Abbreviation: Utah