Lead Opinion
¶ 1 This case addresses whether Utah Code Ann. § 63-30-2(4)(a) (Supp.2000) violates article I, section 11, the “open courts” clause, of the Utah Constitution. The district court held that Fairview City (the City) is immune from suit for its alleged negligence under the Utah Governmental Immunity Act, Utah Code Ann. §§ 63-30-1 to -38 (1997 & Supp.2000).
BACKGROUND
¶ 2 The following facts were undisputed in the trial court. On September 16,1991, John Laney was electrocuted and killed while moving irrigation pipe. The thirty-foot aluminum water irrigation pipe that Laney was carrying came into contact with, or within arcing distance of, high voltage power lines. The power lines were owned by the City.
¶ 3 Accordingly, Lane/s wife and children brought a wrongful death action against the City claiming, inter alia, that the City was negligent for failing to maintain the power lines in a safe condition. The Laneys com
¶ 4 The City moved for summary judgment asserting that the decision whether or not to improve the power lines was a discretionary function entitled to immunity under Utah Code Ann. § 63-30-10(1) (1997). Discretionary function immunity is an exception to a waiver of sovereign immunity within the Utah Governmental Immunity Act. The Utah Governmental Immunity Act declares that all governmental entities are immune from suit for any injury which results from the exercise of a “governmental function.” See Utah Code Ann. § 63-30-3(l).
¶ 5 The district court agreed that the City was entitled to immunity for its decision to not improve the power lines and granted the City’s motion for summary judgment. Following the framework we set forth in Ledfors v. Emery County School District,
¶ 6 Plaintiffs appeal, claiming that Utah Code Ann. § 63-30-2(4)(a) is unconstitutional because it violates article I, section 11, the open courts clause, of the Utah Constitution. Plaintiffs further maintain that the district court erred in concluding that the City is entitled to discretionary function immunity under Utah Code Ann. § 63-30-10.
ANALYSIS
¶ 7 We note the long-standing principle that “unnecessary decisions are to be avoided and that the courts should pass upon the constitutionality of a statute only when such a determination is essential to the decision in a case.” Hoyle v. Monson,
¶ 8 The appellants argue that the district court erred in granting the City’s motion for summary judgment based on its conclusion that the City’s omissions to not increase the height of the power lines, to not insulate the lines, and to not provide warning signs near the lines, were immune from suit under the Utah Governmental Immunity Act.
A. Standard of Review
¶ 9 Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c). When reviewing a grant of summary judgment, as we do here, we review the district court’s conclusions of law for correctness. See Taylor v. Ogden Sch. Dist.,
B. Discretionary Function Immunity
¶ 10 Plaintiffs argue that maintenance of power lines is not a discretionary function entitled to immunity under Utah Code Ann. § 63-30-10. Instead, they assert, the City owes a duty to exercise the highest degree of care to protect the public because it undertook to operate and maintain .power lines. The City, on the other hand, contends that decisions to use city funds to improve existing power lines, decisions to raise the height of the lines, to insulate them, or to provide additional warnings, constitute the exercise of a discretionary function. For the reasons that follow, we conclude that the City’s decisions or omissions — regarding the height and insulation of the power lines, and adjacent warning signs — are discretionary functions for which sovereign immunity has not been waived under the Utah Governmental Immunity Act.
¶ 11 As noted above, we must address three • questions in determining whether a governmental entity is immune from suit under the Utah Governmental Immunity Act. First, we must address whether the City’s operation of power lines is a governmental function and therefore immunized from suit by the general grant of immunity contained in section 63-30-3(1). See Ledfors v. Emery County Sch. Dist.,
¶ 12 We answer the first question, does the City’s operation of power lines constitute a governmental function, in the affirmative. Section 63-30-3(1) states, “Except as may be otherwise provided in this chapter, all governmental entities are immune from suit for any injury which results from the exercise of a governmental function.... ” Utah Code Ann. § 63-30-3G).
‘Governmental function’ means any act, failure to act, operation, function, or undertaking of a governmental entity whether or not the act, failure to act, operation, function, or undertaking is characterized as governmental, proprietary, a core governmental function, unique to government, undertaken in a dual capacity, essential to or not essential to a government or governmental function, or could be performed by private enterprise or private persons.
Utah Code Ann. § 63-30-2(4)(a). Under this definition, the City’s operation of power lines is a governmental function, and the City is therefore immunized from suit by the general grant of immunity contained in section 63-30-3(1).
Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if....
In this section, the legislature has waived the blanket coverage of sovereign immunity outlined in sections 63-30-3(1) and 63-30-2(4)(a) for negligence committed by governmental entities through their employees. In this case, appellants allege the City was negligent, and the Act waives immunity for that negligence.
¶ 14 The third question, does the Act contain an exception to the blanket waiver of immunity that results in a retention of immunity against the particular claim asserted by the plaintiffs in this case, is more complicated. Utah Code Ann. § 63-30-10 states:
Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if the injury arises out of, in connection with, or results from:
(1)the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused;
(emphasis added). Clearly, this section contains an exception to the waiver of blanket immunity, and the exception results in a retention of immunity for discretionary functions. Therefore, to determine whether the City has immunity against appellants’ claims, we must determine whether the allegedly negligent decisions or omissions of the City constitute discretionary functions under the Act.
¶ 15 The test used to determine whether a governmental act, omission, or decision qualifies as a discretionary function under section 63-30-10(1) requires a four-part inquiry. See Keegan v. State,
(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?
(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?
(3) Does the. act, omission, or decision' require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved?
(4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?
See Keegan,
¶ 16 Although a party’s entitlement to discretionary function immunity is a question of law, a court must have sufficient facts before it to determine whether the challenged act, omission, or decision satisfies the four-part Little test. See, e.g., Rocky Mountain Thrift v. Salt Lake City,
¶ 17 We first note that the discretionary function analysis in Little depends on which specific act, omission, or decision is being challenged by the plaintiffs, see, e.g., Rocky Mountain Thrift,
¶ 18 Second, we conclude that the questioned omissions or decisions regarding the safety of the power lines are essential to the realization or accomplishment of the policy, program, or objective identified here— public safety. Again, because the plaintiffs allege the City failed to adequately warn or make the power lines safe by raising or insulating them, “that policy, program, or objective” subject to analysis is the promotion of public safety. Little,
¶ 19 Third, the challenged act, omission, or decision regarding the power lines requires the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved. Although we are not presented with evidence regarding whether the City actually conducted on-site inspections, analyzed various safety factors, or conducted, collaborative review of its decision not to raise the power lines, we think that the decision required, at a minimum, a basic cost-benefit analysis and exercise of financial expertise and judgment by the City. This is sufficient under part three of the Little test.
¶20 Finally, we also answer the fourth question in the affirmative. Under Utah Code Ann. § 10-8-14 (Supp.2001), the City is authorized to own and operate an electric utility. Id. see also Utah Const, art. XI, § 5. Thus, the City has the requisite authority to decide whether or not to raise the lines or otherwise make them more safe.
¶ 21 Having answered all four parts of the Little test in the affirmative, we conclude that the challenged decisions or omissions were discretionary functions. Our review of other Utah case law also supports the conclusion that the City’s decisions not to increase the height of the power lines, not to insulate the lines, and not to provide warning signs, are discretionary functions entitled to immunity under the Act.
¶ 22 First, the City’s decisions not to raise, insulate, or place warnings on its power lines are not operational decisions involving routine, everyday matters. Rather, those are broad policy decisions requiring evaluation of broad policy factors which take place at the policy-making level, and such decisions are generally entitled to discretionary function immunity. See, e.g., Bigelow v. Ingersoll,
¶ 23 Second, our conclusion that the City’s decision regarding its power lines is entitled to discretionary function immunity is consistent with cases that have generally held that decisions balancing the need for safety improvements against limited governmental funding are entitled to discretionary function immunity. See Keegan v. State,
¶24 It is undisputed that the standards used in the electrical power industry in Utah follow those set forth in the National Electric Safety Code (“NESC”). Section 232 of the 1987 edition of the NESC, which was in effect at the time of Mr. Laney’s accident, provides that power lines over farm land be at least eighteen feet above the ground. The power line at issue was over twenty-eight feet above the ground, thereby exceeding the standard set forth by the NESC. The NESC further provides that power lines are insulated when they are separated from other conducting surfaces by air space, as was the case here.
¶ 25 We wish to emphasize, however, that it would not be within a municipality’s discretion to construct electrical systems and power lines that do not meet industry safety standards. Here, the City’s electrical system, including the power line that caused Mr. Laney’s death, met all applicable industry safety standards. Therefore, a decision by the City to not improve its power lines above industry standards is discretionary and is entitled to discretionary function immunity under the Act.
¶26 In sum, we conclude that the trial court was correct in concluding that the City was immune from suit under the Act. The alleged negligence of the City in failing to
II. CONSTITUTIONALITY OF UTAH CODE ANN. § 63-30-2(4)(a)
¶ 27 Because we find that the City’s maintenance of the power lines constitutes a discretionary function within the meaning of the Governmental Immunity Act, we must address the plaintiffs’ challenge to the constitutionality of Utah Code Ann. § 63-30-2(4)(a) (Supp.2000).
¶ 28 As explained above, the Utah Governmental Immunity Act grants the City immunity from suit for its decision not to increase the safety of its power lines. This is, in part, because the City’s operation of its municipal power system is a governmental function under Utah Code Ann. § 63-30-2(4)(a). Accordingly, absent a statutory or constitutional provision to the contrary, the City is entitled to immunity from suit regarding the maintenance of its power lines, a governmental function. Plaintiffs contend that the district court erred in determining that the City is entitled to claim immunity because section 63-30-2(4)(a)’s definition of “governmental function” renders it unconstitutional. Article I, section 11 of the Utah Constitution provides:
All courts shall be open, and every person, for an injury done to him in his person, property, or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel any civil cause to which he is a party.
Plaintiffs argue that the Act, specifically section 63-30-2(4)(a), deprives them of their rights guaranteed by article I, section 11, the open courts clause.
A. Berry v. Beech Aircraft Analysis
¶ 29 The State urges this court to abandon nearly a century of precedent, arguing for an interpretation that would virtually write article I, section 11 out of the Utah Constitution. Specifically, the State asks the court to overrule Berry v. Beech Aircraft Corp.,
1. Plain Meaning and Historical Purpose
¶ 30 In arguing for article I, section 11 to be treated solely as a procedural right, the State disregards the plain meaning and historical purpose of Utah’s open courts provision. Throughout our state’s history, this court has consistently recognized that the plain meaning of the guarantee “impose[s] some substantive limitation on the legislature to abolish judicial remedies in a capricious fashion.” Craftsman Builder’s Supply v. Butler Mfg.,
¶ 31 In general, open courts provisions' in Utah and other states have served two principal purposes:
First, they were intended to help establish an independent foundation for the judiciary as an institution. See Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or. L.Rev. 1279 (1995); Industrial Comm’n v. Evans,52 Utah 394 ,174 P. 825 , 831 (1918) (“[T]he question of ultimate legal liability cannot be withdrawn from the courts.”). Second, open courts or remedies clauses were intended to grant individuals rights to a judicial remedy for the protection of their person, property, or reputation from abrogation and unreasonable limitation by economic interests that could control state legislatures. See Schu-man, 65 Temp. L.Rev. at 1208; Berry, 717 P.2d at 675 .
Craftsman,
¶ 32 Our holding in Berry, which recognizes the substantive protection of article I, section 11, is consistent with these general purposes. More importantly, however, we should rely on our own state history and precedent to determine the purpose and meaning of article I, section ll’s protection. See David Schuman, The Right to a Remedy, 65 Temp. L.Rev. 1197, 1220 (1992) (“[T]he best interpretation of the remedy guarantee
¶ 33 Although some states with open courts provisions have construed them' to guarantee only procedural rights and court access, such a construction has never been accepted in Utah. Article I, section ll’s constitutional guarantee has been interpreted to protect substantive rights to remedies throughout our state’s history. The open courts provision was adopted, as part of the original Constitution itself, at the end of the nineteenth century, during a period when abuse had generated concern and distrust of the legislative branch in numerous states. Craftsman,
¶ 34 Utah’s constitution, in fact, contains numerous provisions reflecting an intent to limit legislative power and prevent. special interest abuse. In addition to basic provisions for due process, uniform operation of the laws, and equality in civil and political rights, we find in the Utah Constitution the following sections, clearly motivated by a wariness of unlimited legislative power:
1. Article I, section 23 “No law phall be passed granting irrevocably any franchise, privilege or imnaunity.”
2. Article VI, section 22 (single-subject rule) “Except general appropriation bills and bills for the codification and general revision of laws, no bill shall be passed containing more than one subject, which shall be clearly expressed in its title.”
3. Article VI, section 26 “No private or special law shall be enacted where a general law can be applicable.”
4. Article VI, section 28 “The Legislature shall not delegate to any special commission, private corporation or association any power to make, supervise or interfere with any municipal improvement, money, property or effects; ... to levy taxes, to select a capítol site, or to perform any municipal functions.”
5. Article VII, section 29 “The Legislature shall not authorize the state, or any county, city, town, township, district or other political subdivision of the State to lend its credit or subscribe to stock or bonds in aid of any railroad, telegraph or other private individual or corporate enterprise or undertaking.” 8
6. Article XVI, section 5 “The right of action to recover for injuries resulting in death, shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, except in cases where compensation for injuries resulting in death is provided for by law.”9
¶ 35 Commenting on Utah’s legislative article (Article VI), historian Jean Bickmore White points out that it
is typical of the late-nineteenth-century constitutions written by its western neighbors _It ... mandated that the legislature should not enact special laws ... where general laws could apply-but went on to list eighteen specific cases where there should be no private or special laws (Art. VI, sec. 26). It specified that (except for general appropriation bills and bills for the codification and general revision of laws) no bill should contain more than one subject-a provision that made the amendment of entire articles difficult.
“White at 64.
¶ 36 It is very clear from Professor White’s history and from the discussions recorded in the Official Report of the Proceedings and Debates of The Constitutional Convention for the State of Utah, see Proceedings: Constitutional Convention in 'passim (Star Printing Co. 1898), that Utah’s framers were knowledgeable about contemporary constitutional debates, and sensitive to economic and individual rights issues common in sibling states. That being so, it is entirely plausible that the inclusion of a specific remedies provision in article I, section 11 was deliberate, especially given its textual differences from other contemporary constitutions. See Craftsman,
¶ 37 Focusing entirely on the “procedural” content of the language found in section 11, as the State does, is misleading. Constitutional language must be viewed in context, meaning that its history and purpose must be considered in determining its meaning. The language that a remedy shall be had by “due course of law” describes the law by which the remedy is secured, as well as the procedural guarantees also protected by this section. Article I, section 7 already contains a due process provision guaranteeing procedural rights. Thus, if the State’s reading of section 11 is correct, section 11 is redundant and mere surplusage — it has no constitutional role or function that is not already performed by section 7. That view has never been embraced by any Utah decision.
¶ 38 This court has always adhered to the view that article I, section 11 imposes some limits on the legislature, a view that former Justice Zimmerman placed in context as follows:
[T]he very act of drafting a constitution such as ours, which does not bestow unlimited power on the legislature and which does reserve certain rights to the people, constitutes a recognition that there must be some limits on the legislature, that some interest of the people deserve specialprotection in the maelstrom of interest group politics that is the legislative process.
Condemarin v. Univ. Hosp.,
¶39 That section 11 is redundant should not be assumed. Hans Linde articulated a cogent and compelling distinction between remedies clauses with due process language and “due process of law” provisions like Utah’s article I, section 7. The latter, he points out, provide a “prescription ... against official deprivations of ‘life, liberty, or property,’ ” and the former are “directed against the denial of a legal remedy to one who has a claim, arising from ‘injury done him in his person, property, or reputation’ that has its legal source outside [of] this [remedies] section itself.” Hans Linde, Without “Due Process”, 49 Or. L.Rev. 125, 136 (1970). Linde goes on to observe:
The two types of guarantees were not confused with each other when the early constitutions were drafted. Other states ... adopted them both and most state constitutions today contain both a ‘remedies’ clause and a ‘due process’ ... clause.
Id. at 138 (footnote omitted).
¶ 40 Justice Zimmerman’s concurring opinion in Condemarin further acknowledged and discussed “the wisdom of including article I, section ll’s guarantee in Utah’s basic charter.” Id. He explained:
The constitution’s drafters understood that the normal political processes would not always protect the common law rights of all citizens to obtain remedies for injuries. See Berry,717 P.2d at 676 ; cf. Developments in the Law: The Interpretation of State Constitutional Rights, 95 Harv. L.Rev. 1324, 1498-1502 (1982) (protection of majority from politically powerful minorities as an approach to state constitutional interpretation); Note[,] State Economic Substantive Due Process: A Proposed Approach, 88 Yale L.J. 1487, 1498 (1979) (perfunctory judicial review is inadequate to protect against special interest legislation).
Condemarin,
2. Substantive Protection Before Berry
¶ 41 Berry continues a long tradition in Utah’s courts limiting the power of the legislature to abrogate remedies. See Craftsman,
¶ 42 In Brown the plaintiff was asking the court to use section 11 as a basis for creating a new cause of action where one had not existed previously. See id. In denying the plaintiffs request, the, court recognized that the open courts clause does not give the court the power to create new legal rights. Id. That seems to be an unremarkable proposition and one that in no way undermines the function, explicitly acknowledged in Brown, of section 11 in limiting the legislature’s power to abrogate existing legal rights. See id.
¶ 43 Th.e substantive protection acknowledged by this court in Broum was again recognized in Masich v. United States Smelting, Refining & Mining Co.,
¶44 Likewise, the plain meaning of the open courts clause as a substantive protection is consistent with our case law since Masich. See Craftsman,
¶ 45 Under the doctrine of stare de-cisis, “[t]hose asking us to overturn prior precedent have a substantial burden of persuasion.” State v. Menzies,
¶46 In State v. Menzies, we overruled precedent that had been in place for approximately twenty years. Menzies,
¶ 47 The State has not demonstrated that Berry was decided wrongly or that any change in conditions makes the application of Berry unsound. Rather than showing that “more good than harm will come by departing from precedent,” Menzies,
¶ 48 The State’s argument in effect would remove from Utah’s Declaration of Rights any limitation on legislative power to abolish or drastically restrict tort redress. As the dissenting justices observed in Meech v. Hillhaven West, Inc.,
B. Application of Berry to Subsection 63-30-2(1) (a)
¶ 49 We now turn to the analysis of the constitutionality of subsection 63-30-2(4)(a) using the test set forth in Berry. A legislative enactment that does not eliminate a remedy is not unconstitutional under the open courts provision. See Utah Const, art. 1, § 11. Therefore, we must first determine whether a cause of action has been abrogated by the legislative enactment. If no remedy was eliminated, there is no need to proceed with the Berry test.
¶50 The State argues in this case that no remedy was abrogated because the 1987 amendment to the Governmental Immunity Act contained in subsection 63-30-2(4)(a) had been enacted four years before Mr. Laney was electrocuted in 1991. The issue under the open courts provision, however, is not whether a statute has already been enacted before a claim arises, but rather whether the statute abrogates a cause of action existing at the time of its enactment.
¶ 51 Plaintiffs assert that the 1987 amendment abrogated a remedy because the law in effect prior to the amendment provided individuals negligently injured by municipality-operated power lines with a cause of action against the municipality. Prior to the amendment, the scope of sovereign immunity depended on whether the governmental activity complained of was found to be a “governmental function” or a “proprietary function.” Only those activities determined to be governmental functions were afforded immunity. See Standiford v. Salt Lake City Corp.,
¶ 52 Plaintiffs argue that the City’s operation and maintenance of a municipal electrical power system would not have been a governmental function under the Standiford standard because maintaining power lines is not “of such a unique nature that it can only be performed by a governmental agency or that ... is essential to the core of governmental immunity.” Id. We agree.
¶ 53 Prior to the 1987 amendment, the operation of an electrical power system was considered a proprietary function, which was not entitled to immunity under the Act. See, e.g., Lehi City v. Meiling,
2. No Reasonable Alternative Remedy
¶ 54 Under the first prong of the Berry analysis, when a remedy has been abrogated, this court first determines whether the legislature has provided a “reasonable alternative remedy ‘by due course of law for vindication of [a plaintiffs] constitutional interest.” Berry,
3. Elimination of Clear Social or Economic Evil
¶ 55 The State contends that even if a remedy was abrogated, the amendment is constitutional under the second prong of the Berry test, which provides that where no alternative remedy has been provided, “abrogation of the remedy or cause of action may be justified only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal-remedy is not an arbitrary or unreasonable means for achieving the objective.” Id.
¶ 56 To determine whether the legislature was justified in abrogating the remedy for negligence of a municipality, we review the legislative history of the 1987 amendment “to determine the reason for its enactment and whether the abrogation was ‘an arbitrary or unreasonable means for achieving’ the elimination of a ‘clear social or economic evil.’” Day v. State,
¶ 57 In Hirpa v. IHC Hospitals, Inc.,
Finally, as we have interpreted the act, it applies only to medical doctors who had no preexisting duty to render aid. Thus,- the act immunizes only true volunteers who render aid even though they are not obligated to do so. We think these limitations indicate the reasonableness of the act. The statute does not cut an unnecessarily wide swath through causes of action against medical providers. Rather, immunity is provided under limited circumstances and only for the purpose of encouraging potentially life-saving emergencymedical care. Therefore, we think the act is a reasonable attempt to eliminate a clear social evil and does not violate article I, section 11 of the Utah Constitution.
Id.
¶ 58 In Cruz v. Wright,
Therefore, even if a loss-of-consortium cause of action did exist at common law in Utah (and there is no evidence that such an action did exist), that would not prevent the legislature from modifying’or abolishing that cause of action if necessary to serve sufficiently strong legislative ends. Having considered the question, we conclude that the passage of the Married Women’s Act was a reasonable legislative enactment intended and reasonably tailored to place men and women on equal footing with respect to their ability to bring actions for their own injuries and to extinguish the concept that a wife was the property of her husband. If, in the process, the husband’s right to sue for loss of his wife’s consortium, which may have never existed in Utah, was abolished, we conclude that the abolition was not an unreasonable step. ■;
Cruz,
¶ 59 Cases involving statutes of limitation and statutes of repose have come before this court with mixed results. In an early case, we held that article I, section 11, did not preclude the legislature from prescribing a one-year statute of limitations for the time within which to assail the regularity or organization of an irrigation district. Horn v. Shaffer,
¶ 60 The Legislature responded to the constitutional requirements outlined in the foregoing cases by enacting a new statute of repose, considered by this court in Craftsman Builder’s Supply v. Butler Manufacturing,
¶ 61 In the only case that we have found which did not involve an act of the legislature, this court abolished the common law tort of criminal conversation and justified its abolition under the open courts provision on the ground that the cause of action was “unfair and bad policy,” “serve[dj” no useful purpose, was subject to abuse, and protected interests that were already adequately served by the tort of alienation of affections. Norton v. Macfarlane,
¶ 62 Recently, in Day v. State,
¶ 63 In another case, Lee v. Gaufin,
[T]he legislation’s supporters have not carried their burden of proof. As the majority opinion demonstrates, the justifications advanced for the legislature’s severe abridgment of the right of this narrow category of potential plaintiffs to bring their actions for actual injuries suffered are speculative, to put it charitably. The defenders of this legislation certainly have not shown that the effective elimination of the minor’s legal right to sue for medical malpractice is a reasonable, nonarbitrary means for lowering medical malpractice premiums in Utah. Absent such a showing, they have failed to rebut the presumption of unconstitutionality that attaches to legislation that so severely limits a common law right of action protected by article I, section 11.
Id. at 592.
¶ 64 With that backdrop of the history of cases where we have applied the second prong of the Berry test, we turn to the instant ease. At the outset, we call attention to the strong words of caution in Brigham v. Moon Lake Electric Ass’n,
A high tension transmission wire is one of the most dangerous things known to man. Not only is the current deadly, but the danger is hidden away in an innocent looking wire ready at all times to kill or injure anyone who touches it or comes too near to it. For the average citizen there is no way of knowing whether the wire is harmless or lethal until it is too late to do anything about it. Therefore, a high degree of duty is upon one who transmits electricity in high tension wires to see that no harm befalls a person rightfully in proximity thereto when that person is himself guilty of no wrongdoing. In other words, the highest degree of care must be used to prevent harm from coming to others.
Id. at 395 (emphasis added). The 1987 amendment of section 63-30-2(4)(a) eliminates the appellants’ right to sue for Mr. Laney’s wrongful death. The statutory amendment thus sharply limited instances where municipalities operating a power system could be held liable for their negligence.
¶ 65 As we have done in prior cases, we examine the legislature’s purpose in curtailing the previously existing remedy for the negligent operation of a municipal power system. The 1987 amendment was proposed by the Governmental Immunity Task Force of the legislature. The Task Force specifically found:
In the past several years, lawsuits naming governmental entities as defendants have increased dramatically. The large damage awards against governmental entities that plaintiffs have obtained in these lawsuits has made it increasingly difficult for government entities to obtain or afford liability insurance.... If a government entity does not have liability insurance, and a court orders the entity to pay damages,the entity would need to pay the award by taking money from its general fund.
See John L. Fellows, Memorandum to Members of the State and Local Affairs Interim Committee, at 1 (Sept. 4, 1986) (on file with the State of Utah Office of Legislative Research and General Counsel).
¶ 66 According to the legislative history, the task force proposed the 1987 amendment in the “hope that passage of these bills will make it easier or cheaper for a government entity to obtain liability insurance.” Id. Thus the legislative objective appears to have been to make liability insurance more affordable for government entities by reducing liability risks. While that objective is worthy, the legislature swept too broadly when it severely curtailed negligence actions against municipalities operating power systems. The amendment partially abrogated the remedy of persons injured by a breach of the high duty of care imposed on such operators. The legislative concern about increased damage awards against governmental entities is stated in very general terms; no specifics are given. We do not know whether any municipality in this state operating an electrical system has sustained a large damage award. We do know that only a small fraction operate municipal power systems. The general nature of the legislative findings do not show that large damage awards have been made against municipalities in connection with their operation of an electrical power system, or that such operation has been affected in any way by potential liability.
¶ 67 The City generates an annual profit operating its electrical power system. It is not an operation subsidized by tax dollars. The cost of liability insurance, therefore, might not even be paid for by the taxpayers of the City, but rather by consumers of the electrical power, some of whom may live outside the City. Obtaining liability insurance is one of the costs of a power plant doing business, whether it is a private or municipal power system. If the City cannot afford to purchase reasonable amounts of liability insurance to meet its high standard of care, rate increases may be justified and necessary.
¶ 68 Equally disturbing is the broad sweep that the legislature took to meet its objective. In Hirpa v. IHC Hospitals, Inc.,
We think these limitations indicate the reasonableness 'of the act. The statute does not cut an unnecessarily wide swath through causes of action against medical providers. Rather, immunity is provided under limited circumstances and only for the purpose of encouraging potentially lifesaving emergency medical care. Therefore, we think the act is a reasonable attempt to eliminate a clear social evil and does not violate article I, section 11 of the Utah Constitution.
Id.
¶ 69 In the instant case, the legislature has defined all activities of municipalities as governmental action, regardless of their nature. In its sweep, the operation of both a sewer system and a golf course is governmental, along with the operation of a municipal electrical power system, even though the potential for negligently causing death by the municipality is vastly greater in the latter activity and the standard of care is thus much higher.
¶ 70 If large verdicts are vexatious to cities, a reasonable approach might be to create very limited immunities to address specific problems, or to place “caps” on the amount of damages, as the legislature has done elsewhere in the Governmental Immunity Act. Utah Code Ann. § 63-30-34 (Supp.2001). This court has, for example, upheld statutory caps on judgments for damages for personal injury against a governmental entity. McCorvey v. Utah DOT,
¶ 71 We therefore hold that the 1987 amendment is unconstitutional as it applies
CONCLUSION
¶ 72 We hold that the acts, omissions,’ or decisions of the City not to raise the height of, insulate, or provide further warnings on its power lines fall within the discretionary function exception of the Utah Governmental Immunity Act, Utah Code Ann. § 63-30-10. We also hold that Utah Code Ann. § 63-30-2(4)(a), under a Berry analysis, violates Article I, section 11, the open courts clause, of the Utah Constitution. We thus reverse the trial court’s summary judgment and remand for a trial on the merits of appellants’ claims.
Notes
. The statutory provisions pertinent to this opinion that were in effect at the time of death of plaintiff’s husband do not differ in any material respect from the current statute.
. "Except as may be otherwise provided in this chapter, all governmental entities are immune from suit for any injury which results from the exercise of a governmental function....” Utah Code Ann. § 63-30-3(1).
. " 'Governmental function’ means any act, failure to act, operation, function, or undertaking of a governmental entity whether or not the act, failure to act, operation, function, or undertaking is characterized as governmental, proprietary, a core governmental function, unique to government, undertaken in a dual capacity, essential to or not essential to a government or governmental function, or could be performed by private enterprise or private persons.” Utah Code Ann. § 63-30-2(4)(a).
."The Utah Governmental Immunity Act requires that we address three questions in determining whether a governmental entity is immune from suit. First, was the activity the entity performed a governmental function and therefore immunized from suit by the general grant of immunity contained in section 63-30-3. Utah Code Ann. § 63-30-3 (1989) [now codified at section 63-30-3(1)]. Second, if the activity was a governmental function, has some other section of the Act waived that blanket immunity? Third, if the blanket immunity has been waived, does the Act also contain an exception to that waiver which results in a retention of immunity against the particular claim asserted in this case?” Ledfors,
. Defendant Fairview City is a governmental entity under the Act. See Utah Code Ann. § 63-30-2(3) (Supp.2000) (stating " 'Governmental entity’ means the state and its political subdivisions as defined in this chapter.”); Utah Code Ann. § 63-30-2(7) (Supp.2000) (stating “ 'Political subdivision' means any county, city, town, ... or other governmental subdivision or public corporation.”).
6. The terms "open courts provision” and "remedy guarantee" or "remedy provision” are used interchangeably by some commentators to refer to the various forms of open courts provisions found in states with this type of provision in their constitutions.
. In her histoiy of Utah’s 1895 constitutional convention, Prof. Jean Bickmore White corn-ments that the document produced "tried to address the needs of a semiarid, capital-starved western territory, but it also reflected the late nineteenth-century concern over the growing powers of corporations and trusts.” Jean Bick-more White, Charter for Statehood: The Story of Utah’s State Constitution, 46 (Univ. of Utah Press 1996) (hereinafter "White”).
. "A review of the corporation’s articles in the original constitutions of other western states shows a consistent pattern: future legislatures were to be prohibited from granting special franchises or advantages, and corporations were to be regulated to avoid price-fixing, monopolies, trusts, or other combinations in restraint of trade.” White at 73 & n. 97 (citations to other state constitutions omitted).
. The last clause, beginning with "except ...” was added by amendment in 1920, to permit the legislature to fix the amount of compensation (for example in the Workmen’s Compensation or Industrial Act) for wrongful death, while continuing to prohibit the complete abrogation of the right to recover. See generally Halling v. Indus. Comm’n of Utah,
. Justice Zimmerman subsequently changed his mind about article 1, section 11, and urged the court to overturn Berry in Craftsman. Craftsman,
. One commentator has observed:
Few courts continue to insist that the open courts provision has no application to legislative actions. Most courts have explicitly eschewed this limitation on the scope of their constitutional right to remedy clause or have done so implicitly by considering the merits of constitutional challenges to statutes based on the clause. They recognize that legislatures may, in proper circumstances, alter or abolish common-law rights and remedies; however, they have also held that the open court provision places limits on the legislature's power. William C. Koch, Jr., Reopening Tennessee’s Open Court Clause: A Historical Reconsideration of Article I, Section 12 of the Tennessee Constitution, 27 U. Mem. L.Rev. 333, 437-38 (1997) (citations omitted).
See, e.g., Sanborn v. Greenwald,
. Although Utah courts have in the past looked to the common law at the time of statehood to determine whether a remedy has heen abrogated, we reiterate that this is not the proper question. See, e.g„ Day v. State,
Concurrence Opinion
concurring:
¶74 I concur, but for different reasons than stated by Chief Justice Durham. The Chief Justice seems to accept that the legislature can, by statute, declare activities previously held to be proprietary to be governmental if that statute meets the Berry test. I disagree. In my opinion, the legislature cannot declare that which is proprietary to be governmental. While the legislature can pass laws affecting “governmental activities” as well as “proprietary activities,” it cannot change the true nature of such activities. The operation of a golf course, farm, or store will always be proprietary regardless of what the legislature says it is. The legislature can pass laws pertaining to the operation of automobiles, but cannot declare automobiles to henceforth be sailboats or houses. “Governmental functions” differ in nature from “proprietary functions.” While each may be affected by legislation, one cannot be declared to be the other.
¶ 75 Government entities perform governmental functions, and sometimes proprietary functions. Governmental functions are those functions that can be performed only by government. In performing such functions, government entities enjoy absolute immunity from liability. They cannot be sued, even where such activities are negligently performed, unless they so consent. Indeed, the legislature enacted the Utah Governmental Immunity Act, which waives immunity in certain enumerated situations, subject to conditions. And the legislature can, at any time, withdraw such waiver of immunity or modify the same, and do ■ so without meeting the requirements set forth by the Berry test. The test set forth in Berry does not apply to governmental immunity cases. Governmental immunity applies when core governmental functions are involved.,
¶ 76 On the other hand, government occasionally becomes involved in activities that are not governmental in nature but, rather, are proprietary. Such functions are those normally performed by private persons or businesses. When performing proprietary functions, the government does not enjoy governmental immunity. It is subject to the same risks and standards that govern private persons or businesses. Whenever government moves beyond its core functions into the proprietary realm, it enters into direct competition with, and in certain instances, even supplants, private enterprise. In certain instances, government is at a decided advantage when it competes with private entities in the private sector, because the government’s cost of doing business does not include the cost of insurance or adverse litigation awards and because government is subsidized by the captive taxpayer base. On the other hand, private businesses often incur not inconsequential costs through the necessity of carrying insurance and defending against litigation, because they are not afforded the same protections or immunity as the government.
¶77 If government chooses to engage in proprietary activities,, it must do so on the same basis as private persons. It has been long established that government, when performing proprietary functions, is liable for its
¶ 78 The right of the people to seek a remedy for harm against persons, private entities, or government when performing private or proprietary functions is guaranteed by article I, section 11 of the Utah Constitution. Such right, however, does not exist against a government agency involved in core governmental activities unless, of course, immunity has been expressly waived.
¶ 79 However, the legislature does have power, in certain limited circumstances, to limit or even eliminate the right of persons seeking a remedy against those who have harmed them, including a government entity when acting in a proprietary manner, if such legislation meets the Berry test. The Berry test applies to legislative acts that would restrict or eliminate the right of the people to seek a remedy under the open courts provision of the Utah Constitution against a person, business, or government entity participating in a private or proprietary action that allegedly harmed them.
¶ 80 In the case before us, the amended statute in question declares any act of government, even a proprietary act, to be a governmental function, thereby enjoying absolutely immunity from liability. In other words, under this act, a government entity can own and operate a golf course, an amusement park, a ski resort, a farm, a retail store, or other such private business and not be liable for negligently doing so. It can compete in the market place with private persons or businesses but not be legally responsible for its harms. This is an abandonment of long-held legal, economic, and political principles fundamental to our way of life. When government participates in the private proprietary sphere, it is subject to the open courts clause of the Utah Constitution just as are those with whom the government is com.peting.
¶ 81 The operation of a power plant by a government entity is proprietary. This status cannot be changed by the legislature. What the legislature can do, however, is pass legislation modifying, restricting, or eliminating the right of people to seek a remedy against private persons, or a government entity, operating a power plant, but such legislation must meet the Berry test.
¶ 82 Therefore, in the case before us, Fair-view City was acting in a private or proprietary function in its operation of an electrical power plant for which it was subject to liability for negligence, if any, and the amendment to the statute did not change, nor could it change, this status. Furthermore, the amendment to the statute did not purport to affect the City’s liability for operation of the power plant as a proprietary function, but even if it did, it failed to meet the Berry test.
¶ 83 For the above reasons, I concur that * the 1987 amendment is unconstitutional as it applies to municipalities operating electrical power systems and violates article I, section 11 of the open courts clause of the Utah Constitution. The case must therefore be reversed and remanded to the trial court for trial on the merits of appellant’s claims.
Concurrence Opinion
concurring and dissenting:
¶ 84 I concur with nearly all of section I of the lead opinion, the well-reasoned discretionary function analysis. I state no opinion, however, as to whether compliance with industry standards is necessary for an act or omission of a municipality to constitute a discretionary function, see supra ¶¶ 24-25, as I deem it unnecessary to the analysis.
¶ 85 I dissent, however, with section II of the lead opinion, the majority’s interpretation of the Open Courts Clause. In my view the current interpretation of the Open Courts Clause originating with Berry ex rel. Berry v. Beech Aircraft Corp.,
¶ 87 Fairview City correctly argued that this Court must presume section 63-30-2(4)(a) is constitutional, resolving any reasonable doubts in favor of constitutionality. As this court stated in a prior Open Courts case:
The first and foundational [principle of law relating to the constitutionality of statutes] is that the prerogative of the legislature as the creators of the law is to be respected. Consequently, its enactments are accorded a presumption of validity; and this court should not strike down a legislative act unless the interests of justice in the particular case before it require doing so because the act is clearly in conflict with the higher law as set forth in the Constitution.
Zamora v. Draper,
¶88 In the recent past, since 1985, the Open Courts Clause has been interpreted in such a way that it limits the legislature’s ability to alter, modify, or eliminate the law by requiring legislation to meet this court’s approval through the Berry test. See, e.g., Berry,
First, ... the law [must otherwise provide] an injured person an effective and reasonable alternative remedy “by due course of law” for vindication of his constitutional interest. The benefit provided by the substitute must be substantially equal in value or other benefit to the remedy abrogated in providing essentially comparable substantive protection to one’s person, property, or reputation, although the form of the substitute remedy may be different ... [; or]
[s]econd, if there is no substitute or alternative remedy provided, abrogation of the remedy or cause of action' may be justified only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means for achieving the objective.
Berry,
¶ 89 In my view, this test permits a majority of this court to substitute its judgment of what constitutes good public policy for the judgment of the legislature, the branch of government that is not only best suited to determine and implement public policy under our system of government, but constitutionally obligated to do so. See Utah Const: art. VI, § 1. I am of the opinion that whether a substitute remedy is of “substantially equal value or other benefit to the remedy abrogated,” and whether there is a clear social or economic evil to be eliminated, are two questions that should be answered by the legislature, not this court, and that we overstep our bounds in so doing. In my view, application of the Berry queries to a set of facts can result in a decision either in favor of, or
¶ 90 How one answers the first Berry query, whether the act provides an effective and reasonable alternative remedy equal in value or other benefit to the abrogated legal remedy, depends upon one’s point of view. From the plaintiffs’ perspective, the 1987 amendment including section 63-30-2(4)(a) eliminated their possible remedy; they can no longer recover for wrongful death because the legislation abrogated their right to sue for wrongful death without offering any substitute remedy, let alone an effective, reasonable, alternative one. To them, the amendment precludes recovery. From the plaintiffs’ point of view, prior to the date on which section 63 — 30—2(4)(a) became effective, they would have had a remedy against Fair-view City for Mr. Laney’s death as the City’s operation of the power lines was, to them, a proprietary function; but now, because section 63-30-2(4)(a) broadly defines governmental function to encompass the operation of power lines, they no longer have a remedy of any sort against the City.
¶ 91 The second part of the Berry test permits one to second-guess legislation and justify a predetermined outcome even more so than the first part. Whether, if no adequate substitute or alternative remedy is provided, the act remedies a clear social or economic evil, clearly depends upon one’s point of view. In my view, this court has no business passing judgment on what constitutes a clear social or economic evil in this manner. Then, analyzing whether legislation is a reasonable or nonarbitrary means of eliminating such a perceived social or economic evil simply permits one to decide constitutionality based upon his or her personal opinion regarding legislative policy. From the plaintiffs’ perspective, the legislature did not identify any social or economic evils to be eliminated, and therefore this second prong of Berry is not met. Arguably, from the plaintiffs’ position, it is a clear social or economic evil to prohibit recovery against the State for personal injury; and the 1987 amendment eliminating such recovery is an arbitrary, unreasonable elimination of what should be remedied. From Fairview City’s perspective, on the other hand, the legislature identified clear social and economic evils, which it eliminated through non-arbitrary, reasonable legislation. Specifically, the legislature viewed high insurance expenses borne by municipalities, potential burdens on the tax base of governmental entities, and the unpredictability for municipal risk managers, as clear economic evils. It reduced these economic evils through re
¶ 92 While other cases may, and certainly will, more clearly reveal reasonable positions on either side of the Berry framework, the fact remains that the Berry test permits reasonable conclusions on either side. In my view, the Berry test simply sets forth a framework for justifying the policy position of a majority of the members of this court. The test is a vehicle for re-arguing the competing policies that the legislature already had before it — rightfully so as the people’s representatives — in debating and enacting the legislation. It requires judges to determine whether a substitute remedy is adequate, and debate again the competing social and economic evils connected with the legislation. For me, this reveals the disguise of the Berry test: it functions as a vehicle for judicial legislation and it permits members of the judiciary to justify through a straw man legal analysis, a politically-based, and potentially predetermined, outcome.
¶ 93 In my opinion, our case law following Berry reveals the problems created by Berry. Clearly, the members of this court, past and present, do not agree that Berry is the best method for analyzing Open Courts challenges. Justice Zimmerman, an initial Berry proponent, reluctantly reached the conclusion that the Berry interpretation of the Open Courts Clause and its progeny do not provide a workable analytical framework. See, e.g., Lyon v. Burton,
¶ 94 I do not disavow Berry lightly. I am cognizant of and respect the principle of stare decisis, which gives stability and predictability to our legal system. See Clark v. Clark,
¶ 95 Berry has been the subject of criticism. Indeed, our cases since Berry demonstrate that this criticism has proven to be well-founded. The substantive interest recognized in Berry has led to a morass of case law. See, e.g., Craftsman,
¶ 96 Upon further contemplation, and with the benefit of hindsight, I am persuaded that the assumptions upon which Berry was based are, in part, faulty. As far as I can tell, Berry is premised on the following:
[T]he basic purpose of Article I, section 11 is to impose some limitation on that power [the power of the legislature to define, change, and modernize the law] for the benefit of those persons who are injured in their persons, property, or reputations since they are generally isolated in society, belong to no identifiable group, and rarely are able to rally the political process to their aid.
Berry,
¶ 97 As I mentioned previously, I agree that the Open Courts Clause limits legislative authority. Numerous constitutional provisions prevent the legislative branch from eliminating constitutional or inalienable rights. I do not think, however, that the Open Courts Clause guarantees one the right to a judicial remedy for every injury done to one’s person, property, or reputation. The Open Courts Clause should not be interpreted as it is now; the Berry interpretation inappropriately, and as I see it, unconstitutionally, limits legislative authority to alter, change, and modernize the law.
¶ 98 The first Berry assumption with which I disagree is the assumption that those who suffer because of legislation preventing recovery for personal injury are individuals who are somehow part of a minority that is not represented or underrepresented in the political process. In my view, individuals who suffer injury to their person, property, or reputation are not a discreet and insular minority. All persons, regardless of ethnic background, economic background, gender, religious persuasion, or other affiliations, may suffer injury. Viewing an injured individual or group retrospectively, after they have suffered injury, they may very well be unable to rally the political process. Prospectively, however, all of us as citizens, regardless of status, are subject to legislation limiting our ability to recover for personal injury. No group is singled out by legislation that limits the ability to recover for personal injuries. All citizens face the possibility of personal injury, even those who are generally visible in society that belong to what we may think are privileged, identifiable groups. Some individuals or groups may be more or less able than others to rally the political process to their aid. Those who suffer injury to their person, property, or reputation, are not a distinct group who are without the ability to rally political support, however. Those thwarted by the Utah Governmental Immunity Act, those who have suffered personal injuries at the hands of the government, may be any of us; they do not comprise a distinct and insular group whose voice may not be heard through the political
¶ 99 Second, Berry assumes that the Open Courts Clause contains language which should be interpreted to protect against ma-joritarian abuse. I disagree. Other provisions in our constitution are more suited to protecting against majoritarian abuse. They contain language which more specifically implies protection for political minorities, and these provisions have also been interpreted to protect groups and individuals that are isolated from the political process. In my opinion, the language of the Open Courts Clause is ill-suited to protect against majori-tarian abuse. I doubt that the founders of our State Constitution intended that this clause prevent the legislature from modifying the law without this court passing judgment on whether an alternate remedy is adequate or whether the legislative judgment as to whether a social or economic evil was addressed was sound. The Open Courts Clause protects against legislative action that would limit or hinder the courts from serving the people by doing anything less than properly and efficiently assist in resolving disputes and performing other judicial functions.
¶ 100 I believe it is misleading to aver that construing the Open Courts Clause as I propose presents a significant danger of majori-tarian abuse. The concern, as far as I can tell, is that a majority of legislators will be able to implement as law their views of social and economic policy at the expense of the minority. Legislation should not be questioned as unconstitutional simply because a majority of the people may benefit from it and a minority of the people may not. Legislation, by its very nature, presents the risk of majoritarian abuse; a majority is required to pass legislation. The legislature rightfully weighs competing interests and determines, by majority vote, what is best for society as a whole. Our system of government vests this obligation in the legislative branch. Accordingly, I think we should interpret the Open Courts Clause so as to permit the legislature to define, change, and modernize the law for the benefit of society.
¶ 101 The real danger presented by the Berry test is that of majoritarian abuse by the members of this court. The risk, in my mind, lies in requiring that new legislation satisfy the policy predilections of a majority of the members of this court by providing, in the eyes of this court, an adequate alternative remedy; or by eliminating what is viewed as a clear social or economic evil by this court. By continuing to adhere to Berry, we are overstepping our constitutional role. The constitution vests power in the legislature to implement, as law, the will of the majority of the citizens of this State. In short, I think that the perceived “risk of majoritarian abuse” by the legislature is not a sufficient reason for interpreting the Open Courts Clause to limit the prerogative of the legislature to circumscribe under what circumstances to permit recovery against the state. In my view, the greater risk lies in a majority of the members of this court substituting their policy judgments for the policy judgments of the legislature.
¶ 102 Third, the Berry interpretation assumes that each individual who suffers an injury to his or her person, property, or reputation, is constitutionally entitled to a remedy. The idea that a remedy can be fashioned for every injury is optimistic and well-intentioned, but, as a practical matter, impossible. The law cannot, and therefore does not, guarantee a remedy for every injury. Not every injury can or must be remedied. “There is still such a thing as damnum absque injuria.” Masich v. United States Smelting, Ref. & Mining Co.,
¶ 103 Individuals who have been injured in their persons, property, or reputation, are entitled to a remedy only when the law, statutory or common, recognizes an injury and permits a remedy. The Open Courts Clause should not be interpreted to provide a
¶ 104 Moreover, Berry also infringes on legislative power by permitting this court to increase individual substantive rights while, at the same time, denying the legislature the ability to limit, abolish, or modify them. This “ratcheting effect” is completely controlled by this court; the legislature is powerless to abrogate any remedies or causes of action without the approval of this court. Under the past seventeen years of Berry, once the court has recognized a cause of action for a certain injury by way of common law, the legislature has effectively been prohibited from abolishing that right unless it provides an adequate alternative remedy (adequate according to a majority of the members of this court), or, if not, the legislation is in harmony with the policy perspectives of a majority of the members of this court. This ratcheting effect, in essence, permits this court to increase individual substantive rights while at the same time essentially denying the legislature the ability to limit, abolish, or modify them, unless of course, the court approves of the legislation as a matter of policy.
¶ 105 This limitation by the court is inconsistent with the roles of judicial and legislative branches in our system of government. The legislature is authorized, even obligated, to change the law as the needs of society change. In Masich, we noted that “both statutory rights and common law rights can be taken away[;] otherwise, there can be no question that acts which abolish actions for seduction, breach of promise, criminal conversation, and alienation of affections, would be unconstitutional.”
¶ 106 Of great concern to me is that the Berry test violates article V, section 1, the Separation of Powers Clause. In its amicus brief, the State argues that the Beiry interpretation of the Open Courts Clause violates the separation of powers provision in the Utah Constitution because it limits the power of the legislature to determine what causes of action will be recognized as having a legal remedy, and what causes of action will not. This position, in my mind, is compelling.
¶ 107 Article V, section 1 of the Utah Constitution reads:
The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.
¶ 108 As Justice Crockett stated in Stoker v. Stoker, this court should leave it to the legislature, who represent the will of the people, and whose function and prerogative it is to discuss and consider public policy and enact into law those policies that, in their judgment, best serve the public welfare.
¶ 109 In my judgment, when presented with constitutional challenges to legislation, the role of this court is not to pass judgment on the wisdom of the legislature. “This court cannot ignore or strike down an act because it is either wise or unwise. The wisdom or lack of wisdom is for the legislature to determine. If the act is unjust, amendments to correct the inequities should be made by the legislature and not by judicial interpretation.” Masich,
¶ 110 Because I would disavow the Berry interpretation of the Open Courts Clause and its analytical model, I would, for the present, return to the case law interpreting the Open Courts Clause prior to Berry. In my view, this interpretation maintains, rather than strains, the framework of our three-branch system of government as established by the constitution.
¶ 111 Prior to Berry, this court actually addressed whether sovereign immunity violates the Open Courts Clause. In Madsen v. Borthick, we said:
Article I, § 11 of the Utah Constitution, which prescribes that all courts shall be open and persons shall not be barred from using them to redress injuries, was not meant to create a new remedy or a new right of action. Consequently, Article I, § 11 worked no change in the principle of sovereign immunity, and sovereign immunity is not unconstitutional under that section.
¶ 112 I agree that the Open Courts Clause places limitations on legislative authority. The limitation, however, is not one that curbs the legislature’s ability to define, change, and modernize the law. I interpret the Open Courts Clause as a limitation on legislative authority to reduce or inhibit the ability of the judiciary to resolve the disputes of the people, awarding remedies to those injured under the law. The legislature is prohibited from taking action that would hinder or preclude the judiciary from conducting the business of resolving cases and controversies, deciding cases by applying the law, as promulgated by the legislature, to factual circumstances on a case by case basis.
¶ 113 It is my opinion that before Berry, this court tacitly interpreted article I, section II as a procedural protection and not a substantive guarantee or right to a remedy. See, e.g., Brown,
¶ 114 I agree that our state constitution may, under some circumstances, “ ‘provide greater protections for our citizens than are required under the federal constitution.’ ” Berry,
¶ 115 In my opinion, Utah case law prior to Berry interprets the Open Courts Clause as a procedural protection. The real break from stare decisis was when this court “broke new ground” in Berry with the current more substantive interpretation given to the Open Courts Clause and the invention of the accompanying Ben"y test.
¶ 116 In Brown v. Wightman, this court addressed whether a plaintiff could recover from the estate of the deceased defendant
The courts have, however, always considered and treated those provisions, not as creating new rights, but as placing a limitation upon the legislature to prevent that branch of the state government from closing the doors of the courts against any person who has a legal right which is enforceable in accordance with some known remedy. Where no right of action is given, however, or no remedy exists, under either the common law or some statute, those constitutional provisions create none.
Id. at 34, 366-67. While I agree that the provision places a limitation on the legislature, I disagree with the limitation espoused by the Berry interpretation. The majority opinion’s interpretation emphasizes solely that the Open Courts Clause places a limitation on the legislature. It fails to note, how-fever, the rest of the language in Wightman that the Open Courts Clause places “a limitation upon the legislature to prevent that branch of the state government from closing the doors of the courts .... ” Id. Further, Wightman states that the courts must be open to “any person who has a legal right which is enforceable in accordance with some known remedy[, and wjhere no right of action is given, however, or no remedy exists, under either the common law or some statute, those constitutional provisions create none.” Id. This language, in my view, reveals that the Wightman court viewed the Open Courts Clause as a more procedural guarantee, like I do, and unlike the Berry proponents. Wightman respects the constitutional right and authority of the legislature to determine the circumstances under which a right of action or remedy is created, “under either the common law or [by] statute,” with the Open Courts Clause “creat[ing] none.” The Wightman court continued, “While the common-law rule is a harsh one, and its enforcement in this case is particularly unjust, we nevertheless can see no way of escaping it. The right and power, as well as the duty, of creating rights and to provide remedies, lies with the Legislature, and not with the courts. Courts can only protect and enforce existing rights, and they may do that only in accordance with established and known remedies.” Id.
¶ 117 Lyman v. National Mortgage Bond Corp. also suggests a procedural interpretation. In Nyman, plaintiffs sought to quiet title to land that they claimed to own by receipt of a tax deed and by adverse possession.
¶ 118 To me, Salt Lake City v. International Association of Firefighters suggests a procedural interpretation. In International Association of Firefighters, the court held unconstitutional a statute that required dis
¶ 119 In Stoker v. Stoker, the court determined that the legislature had completely abolished the antiquated doctrine of Inter-spousal Tort Immunity, which had prohibited a married woman from suing for injury to person or property without her husband’s consent and prohibited her from being sued individually.
¶ 120 Burningham v. Ott also supports a prior procedural interpretation. In Bum-ingham, the plaintiff apparently promised the defendant that the defendant’s stock in the plaintiffs company would increase in value.
¶ 121 In Zamora v. Draper, the plaintiff challenged the constitutionality of a statute that required, in order to sue a sheriff, constable, or peace officer for an act or omission committed in the performance of his or her duty, the filing of “a written undertaking with two sufficient sureties” for payment to defendant of all costs and expenses that may be awarded against the plaintiff.
If 122 Even cases since Berry have suggested that the Open Courts Clause is a procedural guarantee, a guarantee of “reasonable access to judicial review.”
¶ 123 Legislation limiting or impairing the right to file a petition for a writ of habeas corpus has been declared unconstitutional based, in part, on the Open Courts Clause. See, e.g., Julian v. State,
¶ 124 In Julian, we held that the four-year catch-all statute of limitations provision for post-conviction relief violated article V, section 1, the separation of powers provision, and article I, section 11, the Open Courts Clause.
¶ 125 In Jensen, the plaintiffs failed to file proper state income tax returns beginning in 1978.
¶ 126 In Maryboy v. Utah State Tax Commission, members of the Navajo Native American Tribe protested income tax assessments.
¶ 127 In Jenkins v. Percival,
¶ 128 Undoubtedly those who favor the Berry interpretation find both procedural and substantive guarantees within the language of the Open Courts Clause. It is my view, however, that the substantive Berry interpretation of the Open Courts Clause construes the Open Courts Clause in such a way as to infringe upon the province of the legislature, creating separation of powers problems that should be avoided.
¶ 129 Critics of the procedural interpretation of the Open Courts Clause insist that a more procedurally-oriented interpretation renders the Open Courts Clause meaningless, mere surplusage to procedural due process rights. The contention being that due process already guarantees, among other things, the right to judicial dispute resolution. On the other hand, though, to give the Open Courts Clause a substantive interpretation arguably renders the Open Courts Clause provision meaningless as surplusage to substantive due process rights. Instead of relying on the Open Courts Clause for authority, one could just as credibly argue a substantive due process right to a remedy for injury done to one’s person, property, or reputation. That said, regardless of one’s view as to whether the language guarantees procedural rights to open courts or whether it guarantees the right .to a remedy, the responsibility before us is simply to interpret the Open Courts Clause so as to give it meaning and effect without doing violence to other constitutional doctrines. In my view, the current interpretation goes beyond the language of the provision, which I deem unnecessary, and crosses bounds set forth in the separation of powers clause of the Utah Constitution.
¶ 130 It is my position that Berry indeed broke new ground and charted a course that, although well-intentioned, has proven to be misguided. The constitutional problems that have arisen and will continue to arise through application of the Berry test, particularly the separation of powers problem, should be averted by overturning Berry and returning to the more procedural interpreta
¶ 131 In my opinion, the text of the Open Courts Clause clearly supports a more procedural guarantee. “In interpreting the state constitution, we look primarily to the language of the constitution itself....” Grand County v. Emery County,
¶ 132 The text of the Open Courts Clause indicates that article I, section 11, guarantees procedural rights; to the extent that it limits legislative authority, it prevents the legislature from restraining or otherwise inhibiting the ability of the people to go to the courts to have their eases and controversies adjudicated. The Open Courts Clause can be separated into “four interrelated phrases:
¶ 133 The second phrase, “every person, for an injury done to him in his person, property or reputation,” is not a source of either a substantive or procedural right. This phrase defines the persons and the subject matter to which the open courts provision, and the guarantees it espouses, apply. It suggests that the provision applies to individuals who have suffered injury to their person, property, or reputation. As was discussed above, not all harm is a legally actionable injury. What constitutes a legally actionable injury depends on the statutory and common law of this state. Thus, whether one is entitled to a remedy depends upon whether the law permits a remedy, and in order to know whether the law permits a remedy, one must be able to have that question adjudicated. It therefore follows that the courts must be open to individuals for a determination of whether the harm they have suffered constitutes an injury under the law.
¶ 134 The third phrase has been the source of the substantive right to a remedy in Berry which has been used to limit the ability of the legislature to alter the law without judicial oversight. The phrase “right to a remedy” should be read in light of the phrase “by due process of law.” The latter phrase modifies the former phrase. When read this way, one does not have a right to a remedy, but a right to access to the courts to seek a remedy, if the particular injury provides for one “by due process of law,” or, in other words, through the other processes and procedures of the law.
¶ 135 Consequently, I interpret the text of article I, section 11 to provide a more procedural guarantee. It guarantees access and limits the authority of the legislature to limit citizen access to the courts for resolution of disputes by due process of law. The Open Courts Clause, in my view, does limit the authority of the legislature: The legislature may not close the doors to judicial resolution of disputes. “The courts shall be open” for the determination of whether a party is entitled to an established remedy under the law as established by the legislature. I would interpret the Open Courts Clause not to limit
¶ 136 Accordingly, in my view, the statute at issue, Utah Code Ann. § 63-30-2(4)(a), does not infringe upon the rights guaranteed by the Open Courts Clause as I interpret it. In my opinion, the present legislation, which preserves sovereign immunity for a governmental function, does not deprive individuals who have suffered injury to their person, property, or reputation, of access to our court system to seek a determination of whether their injury constitutes a redressa-ble injury under the law for which they are entitled to a remedy. Section 63-30-2(4)(a) sets forth the law under which individuals may seek redress from the government. It also defines those circumstances under which an injury is not redressable under the law. Section 63 — 30—2(4)(a) exhibits the legislative prerogative to determine the scope of sovereign immunity and the circumstances under which it is waived. The legislature, subject as always to political pressures from constituents, has broad discretion in deciding whether recovery against governmental entities should be expanded or contracted and under what circumstances. Sovereign immunity does not infringe upon one’s right to a judicial determination of whether particular facts constitute an injury which the law recognizes as entitled to a remedy. Section 63-30 — 2(4)(a) sets forth the law to be applied by the judicial officer to the facts presented by the individual who has suffered injury. As a result, I would uphold section 63-30-2(4) (a) as constitutional.
¶ 137 In my view it is the right and obligation of the legislature to waive sovereign immunity as it sees fit. While judicial exceptions to sovereign immunity do exist, it is the prerogative of the legislature to define the scope of sovereign immunity and the exceptions by which it is waived; the Open Courts Clause is not a limitation on the legislature’s ability to define the scope of or waive sovereign immunity. Indeed, it is appropriate for the legislature to address the extent to which it is desirable to use public funds to compensate those injured by acts, omissions, or decisions of the government acting in the public interest.
¶ 138 I do not espouse deferring to legislative retention or expansion of governmental immunity which unreasonably burdens important constitutional rights. See, e.g., Condemarin v. Univ. Hosp.,
¶ 139 In summary, I agree that the acts, omissions, or decisions of Fairview City to not raise the height of, insulate, or provide further warnings on its power lines fall within the discretionary function exception of the Utah Governmental Immunity Act, specifically Utah Code Ann. § 63-30-10. I would overrule Berry in favor of the more procedural interpretation seen in this court’s jurisprudence both before and after Berry. Under this interpretation, it is my opinion that section 63-30-2(4)(a) does not violate Article I, Section 11. I would affirm the judgment of the trial court.
. Utah Code Ann. § 63-30-2(4)(a) was added to the Utah Governmental Immunity Act in 1987.
. In his dissent in Craftsman, Justice Zimmerman offered this useful analytic framework.