*1 UT SUPPLY, BUILDER’S CRAFTSMAN

INC., corporation, Plaintiff a Utah Appellant, COMPA BUTLER MANUFACTURING NY, corporation, and U.S. a Delaware Inc., corporation,

Construction, a Utah Appellees. Defendants and No. 970345. Supreme Court of Utah.

March

H95 Carr, Taylor Waddoups, D. Trent J. Salt City, Lake for Craftsman Builders. Hansen, Royal City, I. Lake for But- Salt Manufacturing. ler George Naegle, City, T. Lake Salt U.S. Construction.

RUSSON, Justice: Inc., Supply, ap- 1 Craftsman Builder’s peals entry the district of sum- from court’s mary judgment barring claims its defendants. sued Butler Manu- Craftsman Construction, Company facturing and U.S. Inc., damages arising collapse out of the building. The district court of Craftsman’s Ann. held that Utah Code 78-12-25.5 (the (1996) repose”) “builders statute barred Craftsman’s causes of action. We affirm.

BACKGROUND

¶2 entered into a Craftsman wherein contract with U.S. Construction U.S. agreed to locate and erect a Construction prefabricated building metal for Craftsman. provided by specifications Pursuant Craftsman, building the roof of the was to forty pounds per square foot. withstand building Construction ordered U.S. years Butler erected it in 1978. Fifteen later, February the roof of the collapsed weight of snow. building under the 24, 1995, February Craftsman On Butler, seeking damages under theo- sued products liability, express breach of ries of warranty warranty, implied breach building’s specifications merchantability, negligence. ences in the to “a Craftsman complaint, adding “40#psf LL” its U.S. live load of 40” and did not later amended Thereafter, as a defendant. “create a credible issue of material fact that Construction summary judg- that, warranty given” moved for explicit U.S. Construction ment, result, arguing that claims were warranty Craftsman’s claims barred. were *3 by applicable the statutes of limita- barred ¶ Third, the court held that under Utah by repose. statute tion and the builders 78-12-25(3), negli- § Code Ann. an action for and, August agreed The district court years gence brought must be within four 1996, granted U.S. Construction’s motion. negligent from the date on which the act ¶ First, products the court held that the giving any rise to the claim occurred and that two-year liability filed within the action was negligent by act U.S. Construction occurred products liability limitations. The statute of 1978; .thus, negligence claim was products liability requires the action statute barred. years brought within two from the time to be ¶ Fourth, any the court held cause were discov- that both the harm and its event, claims, including products all the ered or have been discovered. See should claim, liability were subsumed and barred (1996). § Ann. 78-15-3 Because Code § repose. the builders statute of See 78-12- the court found no evidence that Craftsman 25.5 prior its action should have discovered liability ¶ February products ac- 8 On October Butler moved 24, 1995, February within tion filed on was summary judgment, arguing, for as U.S. period. the limitations did, Construction that Craftsman’s claims applicable were barred statutes of Second, held that the con- the court limitation and the builders statute of re- prefabricated met- tract to locate and erect a motion, pose. opposed argu- Craftsman predominantly contract building al was ing repose builders statute of and, result, goods as a the Uni- the sale unconstitutional under article section 11 of (“UCC”) four-year form Commercial Code’s (the “open the Utah Constitution courts” applied. statute of limitations Id. 70A-2- clause). motion, granting Butler’s pro- (Supp.1998). 70A-2-725 Section applicable court ruled that statutes part: vides in repose limitation and the builders statute (2) A cause of action accrues when the barred Craftsman’s claims as set forth its occurs, regardless aggrieved breach ruling on U.S. Construction’s motion. The party’s knowledge lack of of the breach. A court also held that the builders statute of warranty when breach of occurs tender repose was constitutional. made, delivery except that where a war- ranty explicitly perfor- extends to future First, appeals. 9 Craftsman now discovery goods mance of the argues Craftsman builders statute of perfor- breach must await the time of such violates the courts clause and mance the when cause of accrues operate thus cannot to bar of its claims. the breach is or should have been discover- argues applicable Craftsman further that the ed. statutes of limitation cannot bar its claims for (1) argued following warranty Craftsman that the transaction was reasons: The and, thus, for the sale of services the UCC claims are not barred because the contract services, and, thus, apply, goods, statute of limitations should not but was for apply, specifica- apply. that even if it did the written statute of limitations does not UCC forty Alternatively, if applies, tions that the roof was to withstand the UCC statute pounds per square specification building’s a warran- then that the roof foot constituted ty explicitly extending performance. forty pounds per square to future withstand foot con- Therefore, asserted, warranty express warranty Craftsman its stituted which extended thus, performance; express causes of action not accrue until 1993 to future did warranty discovery building collapsed. when the The court re- claim falls within the rule jected argument and held that the refer- of the UCC statute of limitations

H97 (2) liability specific the more stat- negligence ucts statute is cause and is not barred. it did not ute. not barred because of action is accrue, four-year limita- statute of and its REVIEW STANDARD OF run, building until

tions did not start suffered collapsed in 1993 and Craftsman Summary judgment appro (3) liability claim is damage. products priate only genuine “there is no issue when because, previ- court had as the not barred moving any material fact and ... as to held, two-year ously it was filed within judgment party is entitled to a as a matter of liability products statute of limitations 56(c). R. P. When review law.” Utah Civ. claims. summary judgment, ing grant we review district court’s conclusions of law for Second, argues even Craftsman Dist., Taylor Ogden correctness. See Sch. *4 repose constitu- if statute of is the builders (Utah 1996). 159, 162 (1) tional, it does not bar Craftsman’s then plain language of the because the claims ANALYSIS periods repose provides that the statute rule, “subject discovery to” a are I. OPEN COURTS CLAUSE brought its claims within two Craftsman ¶ 13 We first address the constitutionali- (2) discovery; years after does bar ty repose under the of the builders statute of warranty express breach of Craftsman’s open courts clause of the Utah Constitution. alleged warranty that the claim because the injury provides That statute that actions for forty pounds per square foot roof withstand property arising persons to or out of an beyond years thus six and was extended improvement property real must be statute; preserved under the terms of the years brought number of within a certain (3) products it does not bar Craftsman’s triggering Ann. event. See Utah Code liability liability products claim because the (1996).1 § If the action is for 78-12-25.5 specific of limitations is more statute warranty, then the breach of contract or apply of the builders should instead broader brought years within after action must be six repose. statute of completion improvement or abandon- construction; Therefore, if is discov- ment of the breach the threshold issue be- however, year, ered in the sixth then the us whether the builders statute of fore is years injured party has two additional from repose under the courts is constitutional discovery bring in which to the date of that clause. Because we hold that the statute 78-12-25.5(4).2 constitutional, § All remaining the action. See id. issues we must tort, (1) actions, e.g., must repose periods other those based address are whether the (2) rule; years “subject discovery brought comple- within twelve after to” a whether be abandonment, warranty extending beyond unless the act or omis- six tion there was giving to the action is discovered years, rendering the statute of sion rise thus injured claim; year, express warranty in which case the inapplicable to the the twelfth (3) liability party years from the date of that products statute has two whether the id. apply discovery to commence the action. See of limitations should instead of the 78-12-25.5(5).3 case, any § In if the act or repose, prod- builders statute of because (1996) years injured person § has two additional 1. Utah Code Ann. 78-12-25.5 However, discovery commence an action. the amended stat- the date of amended in 1997. ute is not at issue in this case. 78-12-25.5(5) provides: 3.Subsection (3) (4), (5) Subject no to Subsections 78-12-25.5(4) provides: 2. Subsection provider against a commenced be (4) years completion Subject no action more than 12 after to Subsection warranty may improvement of construction. be or abandonment breach of contract or com- act, error, omission, provider years the event or breach against a more than six menced year duty completion improvement is discovered in the twelfth after or aban- act, injured person 12-year period, the shall have event the donment of construction. error, omission, In the discovery years duty from the date of discovered two additional or breach year year period, action. to commence an in the sixth of the six clause, the action is discover- tutional under the stat- giving rise to omission right have been discovered ute that limits a to a ed or should twelve-year peri- person, property, reputation the six- and must satis- prior time ods, injured party only fy following Berry: has two then test set forth bring years in which to his claim. See id. First, if section 11 is satisfied the law 78-12-25.5(3).4 provides injured person an effective and injured party remedy “by alternative due 14 If the discovers reasonable respective six- of law” for of his consti- his cause of action before course vindication run, provided by twelve-year periods have the statute tutional interest. The benefit equal substantially limitations. must be acts as a statute of Statutes substitute operate preclude a cause of ac in value or other benefit to the limitation essentially abrogated providing compa- and are “intended to tion after it has accrued protection compel per- the exercise of a of action within rable substantive to one’s son, suppress property, reputation, although stale and a reasonable time and remedy may claims are fraudulent claims so that advanced form of the substitute while evidence to rebut them is still fresh.” different.... Daughter, Horton v. Goldminer’s Second, if there no substitute or alter- 1989). However, if the remedy provided, abrogation native (and injured party does not discover reason *5 remedy justified or cause of action discovered) ably not have his cause could only if a or there is clear social economic twelve-year action until after the six- and evil to the be eliminated and elimination of run, periods have then the statute acts as a remedy existing legal an not an is arbi- injured cutting par repose, statute of off the trary achieving or unreasonable means ty’s cause of action before it even arises. See objective. the Corp., v. Beech Aircraft Id. at 680. (Utah 1985). case, present In the building in Craftsman’s was constructed ¶ defendants, According the collapsed weight and its roof under the repose parts builders statute of satisfies both thus, 1993; years snow fifteen later First, argue test. defendants and, repose if statute acts as a statute of provides repose that the builders statute of constitutional, causes ac bars Craftsman’s an alternative because it does not

tion. an express eliminate action for breach of warranty argues express warranty when there an 15 Craftsman warranty repose open period beyond builders statute of violates the and the extends six 78-12-25.5(6) clause, provides part years. provides Subsection (4) (5) open, every person, part, apply “[a]ll courts shall be “Subsections do not injury person, against provider for an to him in his an ... for done breach of property reputation, remedy by express warranty shall where the war written Const, ranty period beyond years due course of art. extends law.” Utah six as (4).” However, § purpose provided ll.5 In Berry, we stated that the Subsection open “impose language purport courts clause the statute does not rather, legislature’s “great remedy; merely up some limitation” on the set substitute defining, changing, prescribes latitude in and moderniz certain situations to which the Moreover, ing periods repose apply. the law.” To 717 P.2d at 676. be consti- will not 78-12-25.5(3) provides: improvement 4. Subsection of con- abandonment struction, year period begins the two to run (3) provider An action shall be upon completion or abandonment. years commenced within two from the date of act, error, omission, discovery of the or breach analytical act, error, majority 5. As the framework of the duty upon or the date which the omission, opinion suggests, agrees Justice Russon with the duty or breach of should have been interpretation open through diligence. courts clause as set discovered If reasonable act, error, omission, duty concurring opin- forth Justice Stewart in his or breach of completion discovered or before ion. discoverable

H99 argument provider support In of its that the guarantee that the will is no there beyond improvement agree unconstitutional, to warrant repose statute of builders thus, may provide no years; six cites Horton v. Goldminer’s Craftsman addition, In alternative whatsoever. (Utah 1989), Daughter, P.2d 1087 repose applies to claims statute of builders Valley Hughes Beds v. Hemn Sun Water & April even if the after that accrue Son, Inc., (Utah 1989), 782 P.2d 188 wherein completed prior to that improvement was § we held Utah Code Ann. 78-12-25.5 78-12-25.5(10). Code Ann. time. See Utah prior version of the builders statute of Hence, warranty provision was an al- if the repose, unconstitutional under remedy, discriminate ternative it would argues courts clause. Craftsman pri- into contracts against those who entered legislature’s findings stated do not describe they unaware to 1991 as would have been that, clear social or economic evils and even warranty. express an of the need to obtain did, they injured if the elimination of an that the builders statute We therefore hold party’s periods after the time provide adequate stated repose does not alter- remedy. arbitrary native is an and unreasonable means in disagree. which to eliminate those evils. We Second, argue defendants repose statute of eliminates clear builders 19 It is true that Horton and Sun economic evils in a reasonable and social and Valley prior we struck version of down nonarbitrary enacting manner. that stat- violating the builders statute ute, legislature specifically found that However, statute of courts clause. liability possi- exposing providers to after repose at issue in those was substan- cases bility injury highly has become remote is a tially from the one before us now.7 clear social and economic evil that it cre- different hardships providers and ates costs and prior statute eliminated all causes of (1) liability which include citizens of state design to defective action for due (3) (2) costs, costs, storage insurance records *6 years completion of construction seven after liability during the undue and unlimited risks Furthermore, prior in the stat- construction. provider improvement, life of both a and an ute, legislature identify any did not social (4) defending against and difficulties or economic evil. We were left to review many years completion claims asserted after what we considered the obvious: improvement. § of an See id. 78-12- “purpose legislation to end the [was] (c).6 25.5(2)(a), (b), per- this & To potential threat of a lawsuit to some con- evil, legislature enacted ceived Horton, professionals.” at struction 78-12-25.5, §Ann. which eliminates an Code acknowledged that while that 1094. We injured party’s remedy injury person for objective by a be a meritorious driven valid arising improvement property or out of an repose providing societal interest in a time of property years real after set number possible so as not to allow mistakes injury damage possibility and when individual, highly unexpected. past forever burden an elimi- becomes remote and 78-12-25.5(2)(a), (b), (c) prior pro- the builders statute of and 7. The version of 6. Subsections vide: pertinent part: repose provided in (2) Legislature finds that: any injury damages No action to recover for (a) liability exposing provider to suits and any injury acts, errors, omissions, property, personal, real or or for duty or breach of possibility injury damage wrongful person, bodily injury or after or unexpectedly highly [sic] become remote and death, arising and unsafe out of the defective hardships provider and creates costs and property, improvement an to real condition of state; the citizens damages on ac- action for sustained nor (b) hardships liabili- these costs and include injury, brought against count of such shall be costs, costs, storage ty un- insurance records furnishing any person performing the de- liability during the life due and unlimited risks sign, planning, supervision of construction improvement, provider an and of both and improvement of such to real construction many defending against claims difficulties in years property after the com- more than seven years completion improvement; of an after pletion of construction. (c) hardships constitute clear these costs and Utah Code Ann. 78-12-25.5 and economic evils. social justify identify nating the elimination concerns clear social and this evil did years injured parties’ remedies evils. seven economic at 1094-95. after construction. See id. We repose prior statute of

thus held the builders perhaps 21 We now consider doing, In so we found it unconstitutional. inquiry important more of whether the build significant prior repose statute of repose ers statute of which eliminates injuries likely to cut off that should was “too injured party’s remedy under certain circum However, compensated.” Id. at we nonarbitrary stances is a reasonable and specifically stated that the courts clause means to eliminate the stated evils. Crafts “necessarily and forbid[] does not forever argues man that the builders statute of re always forgiveness all such of mistake” and pose arbitrary because it unreasonable clearly it does is make certain “[w]hat they cuts off causes of action before accrue periods repose only be allowed when periods repose apply and because the to all injury damage possibility has be- improvements property kinds of to real with highly unexpected.” come remote and Id. However, regard out to their useful life. we clearly stated that ¶20 repose The builders statute of necessarily clause does not forbid all statutes present specific issue in the case lists but that such statutes con can be it desires to eliminate. evils Two of the possibility injury stitutional when the stated evils concern costs to the construction damage highly unexpected. remote and industry: liability insurance costs and rec- Horton, present P.2d at storage ords costs. Absent statute of re- case, legislature specifically found that pose, these costs would continue for the life possibility damage “the be provider improvement. of both the and the highly unexpected comes remote and toas significant costs could be Such and would warranty claims for breach of contract or six likely building, increase the cost of years following completion improve undoubtedly passed would on to be- consum- ment or the abandonment of construction may very adversely impact ers. This well and, claims, years as to all other ten follow economy by increasing the state’s the cost of ing completion or abandonment.” Utah living. also found liabili- 78-12-25.5(2)(d). §Ann. Code While Crafts ty extending provid- risk for the lifetime of a legislative findings man asserts that improvement er and an constituted a social merely parrot some of the statements we Many buildings economic evil. Valley, produces made Horton and Sun ago, state were constructed decades *7 suggest possibility no evidence to that the century. some are even older than a While injury highly unexpected is not remote and responsible some the business entities ten-year fact, periods. after the six- and In exist, may such construction still the individ- Craftsman states in its brief that after twelve providers ual who assisted the construc- years, very brought. During few claims are may long passed tion have since retired or Represen debate of the bill the House of away. perpetual liability risk of to re- tatives, it was stated that the claims the tired individuals or to businesses whose cur- repose rep builders statute of cut would off nothing rent owners had to do with construc- percent resented than less one of the claims projects past undoubtedly tion in the creates Further, brought. Virgi Gibson v. West hardship a to those involved. We have rec- Department Highways, nia 185 W.Va. ognized hardship such and have stated that 406 S.E.2d the court cited to “[cjertainly there is a valid social interest study which revealed that of claims providing 99.6% repose wiping a time of —in brought against architects or allowing builders for possible slate clean and not mis- design brought defects were within past takes of the ten becloud an individual’s years. practice wip- life We conclude that less than a “[t]he forever” —and that one rooted, ing one, percent injury damage past out debts an ancient chance of is suffi indeed, Horton, ciently in Old Testament times.” remote to survive an challenge. 785 P.2d at 1095. We hold that the above ¶22 duty upon reasonableness is fur- breach of or the date which the The statute’s act, error, provisions omission, duty ther illustrated the other or breach of recently to the builders have been added through should been discovered rea- First, although legis- repose. statute of diligence. sonable injury damage high- lature found that or (4) (S), Subject to Subsection no action ly periods remote after the of six ten warranty may for breach of contract or years, period years for all it chose a of twelve against provider commenced more than claims other than for breach of contract and years completion improve- six after discovery provi- warranty. Then it added a ment or abandonment of construction. respective period each sion which extends act, error, omission, the event or eight years much or fourteen in the as duty breach of in the discovered sixth giving event the act or omission rise to the year year injured period, of the six year cause of action is discovered in the last person years has two additional from the § period. of each Ann. 78- See Utah Code discovery date of to commence an action. 12-25.5(4) (5). Second, repose periods & (5) (S) (I), Subject to Subsections (1) apply against provider who do not no action be commenced fraudulently giv- act conceals the or omission provider years comple- more than 12 after (2) action, ing rise to the cause of whose act improvement tion of the or abandonment (3) intentional, or omission is willful or or act, of construction. In the event the er- parties where the have entered into an ex- ror, omission, duty or breach of is discov- press warranty warranty written and the year 12-year ered in the twelfth period beyond years. extends six See id. period, injured person shall have two 78-12-25.5(6). Third, § minors or those who years discovery additional from the date of years mentally incompetent “have two to commence an action. disability from the date the is removed to (5) 78-12-25.5(3), (4), § Utah Code Ann. & § commence [their] action.” Id. 78-12- added). (emphasis argues Craftsman 25.5(7). Finally, the time limitations do not emphasized “subject language to” ex- apply any against any person “to presses discovery the intent that the rule in possession improve- actual control (3) precedence subsection takes over the re- owner, tenant, otherwise, ment as at the (4) (5) pose periods in subsections time defective or condition unsafe effectively subjects periods repose to a improvement proximately injury causes the Thus, discovery injured party if rule. § brought.” for which the action is Id. 78- (3) requirements meets the of subsection 12-25.5(8). years commences his action within two after statutory provisions 23 Given the above discovery, repose periods then the do not percent and the less than one chance of Craftsman, apply. According to the result of damage, the builders statute of repose such a would construction be that the arbitrary is not an or unreasonable periods any given would never be relevant means to eliminate the stated There- evils. situation and thus the term “statute of re- fore, we hold that Ann. Utah Code 78-12- pose” is a misnomer because the statute is *8 (1996), repose 25.5 builders statute effectively requiring a statute of limitations case, issue in this is under the constitutional injured party bring his action within open courts clause of the Utah Constitution. years discovery. disagree two after We with analysis. Craftsman’s II. DISCOVERY RULE AND REPOSE STATUTE statute, construing a When “ ¶ ‘give We now turn to the issue of whether we seek to effect to the intent plain language subjects light purpose of the statute in of the the statute ” repose discovery periods to a rule. The Corp. was meant to achieve.’ Mariemont Dist., repose provides part: builders statute of in City Improvement v. White Water (3)An (Utah 1998) (quoting against provider P.2d action a shall be Sullivan Utah, years commenced within two from the date Scoular Grain Co. omitted)). (Utah 1993) (other act, error, omission, discovery of the citation (or uncertainty injured party if exists as to the an discovers should have “‘[I]f doubt or discovered) provisions, an meaning application prior act’s his cause of action entirety analyze act in and har running repose its periods, [we] time of the of the provisions its in accordance applicable monize period then the time is the two- ” purpose.’ legislative intent and Id. at 225 year period limitations and not the six- or George-Dixie Lodge (quoting Beynon v. St twelve-year period repose. of the statutes (Utah 1993)). # 854 P.2d example, injured party if For an discovers a year negligence cause of action for one after 26 When 78-12-25.5 completion improvement, then the in- whole, purpose its and effect are viewed as jured only years party in two which to legislature’s stated find clear. One action, Likewise, commence not his eleven. ings that “it is the best interests of the “subject language, without the to” a contract impose periods citizens of the state to year action discovered in the fifth or a tort chapter.” repose provided this Utah Code year action discovered the eleventh would 78-12-25.5(2)(e). (4) §Ann. Subsections i.e., only year, be barred after one more after (5) go provide periods on to set time after twelve-year respective period six- or no which be commenced. Id. completion improvement. How- 78-12-25.5(4) peri & Because these ever, subjects statute as written such run completion ods start to on the date of injured scenarios to subsection and the improvement abandonment without re party provided years two to commence his gard to the “occurrence of an Therefore, repose action.8 the statute of action,” gives they rise to a cause of are provisions subject discovery are not to a rule repose. Berry, statutes of 717 P.2d at 672. rather, case, present operate but in the Therefore, it is clear section 78-12-25.5 bar Craftsman’s causes of action. repose. was intended to include a statute of provisions, In addition to the subsec (3) III. provides EXPRESS WARRANTY

tion a statute of limitations requires brought an action to be within ¶ 28 next We discuss whether years two after the cause of action is discov express warranty there written ex ered or should have been discovered. Utah beyond years. tending six Section 78-12- 78-12-25.5(3). §Ann. Code 25.5(6)(c) (4) provides part, “Subsections (5) apply do not to an action pro The statute of limitations provider express ... repose provisions vision and the statute of for breach of a written Although warranty warranty period where the are inconsistent. subsections extends (4) (5) “subject beyond years provided to” the statute six Subsection (4).” provision, simply argues limitations means that Craftsman that the references interpreting provide per- deny same,two-year person the statute period to a discovering year sons contract actions in the fifth who discovers his action in the fifth or the elev- year year. and all other actions eleventh enth The cases cited Chief Justice action, years bring inapposite less than two their Chief Howe are as neither case involves Second, ignore justify Justice Howe and Justice Zimmerman similar inconsistencies. his statutory interpretation, fundamental First, rules of construction. Chief Justice Howe substitutes the interpretation illogical "notwithstanding” phrase their "subject creates the re- word for the to,” allowing party despite obviously sult conflicting meanings. who discovers his action their (i.e., year) doing, later in the sixth or the twelfth In so he contradicts the cardinal rule that longer period bring of time in which to "courts are not to infer substantive terms into the Rather, party already action than a who discovers his action text that are not there. the inter- (i.e., used, year). pretation language earlier in the fifth or the eleventh See. must be based on the Hurst, power Alta Indus. Ltd. v. 1292 n. and the court has no to rewrite the statute (Utah 1993) (stating expressed.” that "statutes are inter- to conform to an intention not Ber- *9 (citation Edwards, (Utah preted to avoid absurd results” omit- rea v. Purser & 876 P.2d ted)); Stoker, (Utah 1994). confusing, Nelson v. 669 P.2d While the statute is indeed 1983) (stating interpret only interpretation that "we will not a stat- reasonable rational is way absurdity" prior ute in (citations omitted)). a such that results in an if that an action is discovered to the end of simply respective twelve-year period, party There no rational six- or a person years years discovery basis to allow a two to that file an action has two to commence action; year if it is discovered in the sixth or the twelfth his otherwise it is barred. omitted.) (Citations asks us to LL” in the Craftsman psf “40# load of 40” and to “a live liability products statute of hold that buildings specifications meaning — governs ease it is limitations this because support pounds building would roof specific than the builders statute of more express warran- per square foot—created Craftsman, prod- According repose. to performance. to future ty that extended liability specific is more because minimum, ucts statute that, at a Craftsman asserts only products, applies it to whereas fact exists as to whether question of broader, repose is much builders statute years. beyond six How- warranty extended Craftsman, applying, in to “all the words ever, language consti- assuming the above any entity that took causes of action warranty, points to no Craftsman tutes any improve- any part in the construction warranty period, let alone one of a evidence However, any property.” real as the ment to beyond years. Without such that extends six clear, quote makes our cited Craftsman evidence, satisfy cannot Craftsman intent, goal determining legislative 78-12-25.5(6)(c), requires a “written which legislative intent is the the best evidence warranty warranty period express where plain language. present In the statute’s beyond years.” six While Craftsman extends case, legislative intent is clear from the argue logic to argues [the] that it “defies plain language. 78-12- load, statute’s Section a 40 lb. building was warranted to bear (a) 25.5(l)(a) states, in this section: “As used future,” decline to let the not we but arbitral, judicial, ‘action’means claim for warranty go jury pur- period issue acts, errors, omis- 78-12-25.5(6)(c), or administrative relief for where such poses of section sions, duty that causes or breach of expressed by parties period was not tort, persons property, whether based in evidence that the war- and there is no other contract, warranty, liability, indemnity, strict beyond years. ranty six extended (Em- contribution, or other source law.” added.) clearly in- phasis STATUTE OF REPOSE IV. BUILDERS repose apply the builders statute of tended we address is wheth- 29 The final issue liability they products actions when relate liability products statute of limitations er the property. improvements real When apply of the builders statute should instead plain language of the intent is clear from the specific repose it is the more because statute, beyond go lan- we need not liability lim- products statute of statute. The guage. years an action two after itations bars injured party or should have dis- discovers CONCLUSION covered the harm and its cause. See summary judgment in We affirm the undisputed § It is Ann. 78-15-3. Code Manu- and Butler favor of U.S. Construction liability claim products filed its Craftsman repose, facturing. The statute of builders period. the limitation within is con- Ann. 78-12-25.5 Utah Code 11 of the under article stitutional support argument, of its periods Utah Constitution. following language from cites the Craftsman rule, discovery “subject and there to” a Inc., Hospitals, v. IHC Jensen any warranty extending be- no evidence 1997): except yond years that Craftsman’s six would pur- faced with two statutes [W]hen Further, warranty the build- express claim. subject, pri- our port to cover the same repose applies to bar Crafts- ers statute of duty legislative in- mary “is to determine liability products claim. man’s tent, legislative and the best evidence language plain of the statute.” intent is the Justice, STEWART, concurring: construction, statutory A rule of settled care- Russon’s 32 I concur with Justice helps us determine majority correctly opinion. fully reasoned intent, specific provides that “a more stat- necessary I I not because believe general stat- write governs ute instead of a more thereto, respond anything but rather to add ute.” *10 taurant, Inc., lone to Justice Zimmerman’s concurrence 107 N.M. (1988)). long-standing

which he attacks Utah case law reviewing After the law from I, construing Article section 11 of the states, Utah other Schuman Professor has stated Constitution, open provi- the so-called courts “interpret remedy guar- that most courts sion.1 Justice Zimmerman aims much of his proscribe legislation affecting antee to some Corp., attack at v. Beech completely restraining remedies without law- Aircraft (Utah 1985); however, P.2d 670 the attack on courts, however, makers.” Id. at All guise nullify serves as a this Court’s appear recognize that “lawmakers cannot I, and, jurisprudence Article more deprive plaintiffs rights.” of vested Id. very importantly, purpose the Framers’ and primary origin rights pro- 34 The of the adopting intent in clause I, by open tected Article section 11 and the Rights. Declaration of He would re- Utah provisions courts most other state consti- verse case law that has existed for over Magna Nevertheless, tutions Carta.2 fifty years nullify important the most adoption open provisions by courts I, clause —the remedies clause'—in Article various states has been influenced to some section 11. Justice Zimmerman’s current by threatening rights extent conditions those opinion prior inis stark contrast to his con- at the provi- time the various constitutional positions opinions sistent in numerous sus- adopted. sions were taining applying Berry giving effect plain meaning. Article and its Magna 35 The in the Carta stated, Simply position current his would genesis that is the of American courts deny citizens of this state the constitutional provisions King was directed at John’s cor- right by remedy by secured the Framers to a ruption English courts. At the time of injury due course of law for an to their Revolution, the American when the first state persons, property, reputations. or drafted, constitutions were the evil aimed at closing was the of American colonial civil I. INTRODUCTION by English courts purpose for the all, thirty-eight 33 In states have denying civil remedies to the colonists. provisions in their constitutions. See However, Schuman, David Right Remedy, to a [b]y quarter eighteenth the last Temp. L.Rev. 1201 & n. 25 A century, during which the American reme- guarantee only procedural few of them ac- dy guarantees appeared, courts, most, first the focus Utah’s, cess to the but like also popular distrust impose had shifted from some substantive limitation on the King’s power people’s representa- courts to the judicial to abolish Indeed, capricious early period tives. After an unsuccessful remedies fashion. state, Mexico, during one which state constitutions recognized New contained implicit expansive grants authority right legis- substantive constitutional to a constitution, branch, though people, lative its state even disillusioned they specific provision, perceived its constitution has no what corrup- such as interest), (capture private Article to that effect. id. tion See enacted (citing Carnegie Library Richardson v. Res- a “second wave” of state constitutions delay, right Article section 11 states: justice.” one will we refuse or or Schuman, (internal Temp. open, every person, L.Rev. All courts shall be at 1199 omitted). injury person, prop- quotes for an erty done to him in his Lord Coke later wrote an influ- reputation, remedy by shall have due commentary Magna ential Carta and ex- law, course of which shall be administered plained phrase "Every Subject this as follows: unnecessary delay; without denial or person and no Realm, injury goods, done to him in land prosecuting shall be barred from person, remedy by ... take his the course State, defending any before tribunal in this Law, justice and have for tire counsel, any himself or civil cause to which he him, sale, freely fully done without without party. is a denial, speedily delay.” without Id. (internal omitted). quotes and alterations Carta, part Magna King 2. See II. In the infra sell, promised: John "To no one will we to no

1205 ¶ addition, pre- many of their 38 In Zimmerman’s stripping legislatures of Justice the of stare position flouts doctrine decisis. vesting power in rogatives increased and fifty years He of would overrule unanimous many the time that judiciary.... [A]t the legal precedent Utah from Masich v. United remedy guarantees American modern Co., Smelting, Mining Refining States & 113 themselves, predecessors, their direct 191 P.2d 612 to Hirpa Utah existence, evil brought were into the was Inc., IHC P.2d 785 Hospitals, 948 had, renegade for exam- legislatures that 1997), by decided case unanimous court deprived injured ju- of their ple, creditors barely year ago. justices one thirteen Some by against passing dicial remedies debtors long who the of Court have decided line legislation impairing existing contractual Hirpa of cases Masich in in from obligations. Zimmerman, including Justice Id. at 1200-01. plain meaning in the construction concurred of line Article section 11. This of Utah ¶36 Open provisions courts have served rulings cases is the of consistent with the First, they principal purposes. were two majority vast of courts from other states independent help establish an intended construing provisions. similar constitutional judiciary foundation the as an institution. for argues Zimmerman that the Hoffman, Justice By M. the See Jonathan Course of Berry determining in adopted test how Origins Open Law: the Courts the of in applied section 11 should be chal- cases Constitutions, 74 Or. L.Rev. Clause State of lenging constitutionality in the statute Evans, (1995); Industrial Comm’n v. the effect “constitutionalizes” common law (“[T]he (1918) 174 P. statutory and it over law. elevates See legal liability question of ultimate cannot be incorrect; simply it flatly His assertion is courts.”). Second, open from the withdrawn contrary express language holding the courts or remedies clauses were intended to Berry and numerous other Utah cases judicial remedy grant rights individuals to a decided under Article section 11. Al- protection property, person, for the of their though claims that the test undu- he reputation abrogation and unreason ly legislative power, restrictive of the fact is interests able limitation economic legisla- that the is no restrictive of test more legislatures. could control state See Schu power tive than the orthodox standard for man, 1208; Berry, at Temp. L.Rev. applying process respect the due clause with P.2d at 675. today legislative power. No one asserts opinion totally process 37 Justice Zimmerman’s that the due clause of our constitu- unduly tion because ignores history purposes the should be abandoned power. therefore, legislative restricts provisions, he does not purport even to construe Article Schackel, Although Ross v. light purpose history. Although its (Utah 1996), the which decided issue of analyze purports language he sec- prison immunity of a doctor medical plain tion he in fact abandons mean- malpractice prisoner, committed on a was ing language of that favor part on of whether a decided the basis interpretation a skewed that nullifies its cause an official was of action such important purpose. most The result would recognized by the common when judiciary undermine a foundation stone of the adopted, analysis Utah Constitution right judicial that a citizen to a has indeed, Berry; Ross was not dictated property, to protect person, one’s simply employ Berry analysis at did reputation by broadening power immunity resolving all in issue.3 While power special wholly interests to misuse the common law is not irrelevant to 11,4 expense rights proper construction of section the Ross citizens. constitutionality opinion Hirpa partially sustaining of a Good Samar- 3. The reflects his- Ross, itan statute. approach torical that Justice Howe took Ross, Hirpa, applied but unlike test in Clearly, law in 1896 some the state adopting vari- bearing the Framers’ intent in opinion suggesting except is aberrant rights protected by for those to a process defined the common due rights clause.6 Those became *12 as it important principles law existed basis for of En-

glish jurisprudence developed by as Lord century7 Coke in the 17th and II. AND Sir William ORIGINS PURPOSE OF I, century. Blackstone in the 18th Their ARTICLE SECTION 11 work far-reaching had a effect in the fram- RIGHTS ing of American state constitutions. See ¶ 41 Framers of The the Utah Constitu- Koch, Jr., William C. Reopening Tennes- I, tion included Article section 11 to anchor Open see’s Court’s Clause: A Historical rights originated in the Constitution I, Reconsideration Article Section 17 of of English Magna Carta of 1215 and that Constitution, the Tennessee Memphis St. among peaceful are those essential to a so- (1997) L.Rev. 357-64 [hereinafter Ten- ciety. purpose rights of those is to Open nessee’s Court’s Clause ]. sovereign power, bar kingly, parli- whether ¶ 42 gave One of the abuses that rise to amentary, legislative, from undermining Magna King’s practice Carta was the of judiciary an independent arbitrarily and conditioning right writ, royal to a and abolishing protect person, remedies that right remedy thus the King’s from the property, reputation of each individual.5 Court, payment on the of a fee. The arbi- I, rights protects Article are trary granting withholding royal writs ephemeral rights; they or time-bound by King judicial protection made the today just important peace- as to a goods, property, person, reputation pro- society they ful historically. have been capricious. blematic and origins go Their history back further any provision than other in the Utah Decla- 43 In describing analysis Lord Coke’s or, indeed, Rights ration of in the Bill of Chapter Carta,8 Magna 29 of the 1225 Rights Constitution, of the United States Koch stated: provisions. example, ous persons constitutional For similarly between situated. See v. Malan Lewis, sovereign Court has held that the 1984). doctrine of immunity, general proposition, as a could bar against government agencies remedies notwith right self-representation 6. The that is also con- standing ble, DeBry Article section 11. See v. No is, course, tained in section 11 of more mod- (Utah 1995); 889 P.2d 428 Madsen v. Borth origin right ern than the of access to the courts ick, (Utah 1983). That, however, 658 P.2d 627 corollary right remedy. and the to a does not mean that the law in 1896 was constitu- tionalized or that a court should decide an Arti Institute, 7. See Coke's Second discussed in Has- cle section 11 case on the basis of whether a Block, Coke, tings, Lyon & Hetman Edward Ora- particular gave set of facts rise to a “cause of cle the Law 346-48 action,” Appeals Day as the Utah Court of did in State, (Ct.App.1994), grant P.2d 1150 cert. ed, (Utah 1995). Magna 8. The by 892 P.2d 13 Carta was a reissuance King Henry King Magna III of John's 1215 Car- remedy 5.The duplica- clause of section 11 is not Open ta. See Tennessee’s Court’s Clause at 353- clause, process although tive of the due the latter authority 57. The latter states: jurisdictions clause has been used in some While remedy Magna the evolution of have no Carta’s lan- clause where a clause guage appropriately growth would ended in giving more evolution and used. significance protection of its "person, through constitutional continued values of property, reputation,” present centuries into the Magna time. section 11 differs Carta clause, process protects “life, the due was the first manifestation lib- of the fundamental Const, erty, principle property." governor gov- that both art. and the Section availability subject 11 is concerned history with the erned are to the rule of law. Its injuries reinterpretation, remedies to vindicate “civil” inflicted has been one of and thus its one importance individual on another’s vital interests. The lies not in the literal intent of the process due arbitrary clause Runnymede is directed more to men at meaning but rather in the government government’s action and generations relation- future have read into its ship centuries, duplicative individuals. Nor is section 11 Chapters words. Over the 39 and operation "uniform King of the laws” Chapter 40 of John's Charter and 29 of in section which is Magna concerned that laws en- Carta of 1225 have evolved into two Legislature acted should not Anglo-Ameri- discriminate of the most dominant themes in subject, by any other be he ecclesiasti- pro- Chapter son] 29 also The discussion any exception, temporal, without opportunity to cal or -with the vided Lord Coke law, his the course significance of the common take explain the rights. justice right individual and have importance of and the him, sale, freely fully without law as the “surest without the common done He viewed ” take, denial, delay.’ speedily and the without sanctuary, that a man can protect the weakest strongest fortresse (em- at 363 Open Tennessee’s Court’s Clause Coke, the common law Lord of all.” For added) Blackstone, (quoting 1 phasis William everyone to have their was the *141). *13 Commentaries lands, body, life, and hon- families, goods, ¶45 Commencing of with the outbreak In injury wrong. and protected or War, Revolutionary the new the American Chapter 29’s concluding of his observation states, England, had been colonies of “As the stated: importance, Lord Coke Beginning adopted with the constitutions. dust, threds, or of the goldfiner will not out Virginia adoption the of of Constitution crum, in gold, passe the least shreds of let 29, 1776, original thirteen June eleven excellency the metall: so the of respect of constitutions, of adopted new and six states passe reader to let ought not the learned “open constitutions contained the eleven law, respect any syllable of this remedy” provisions root- “right or to courts” excellency the matter.” of Magna King Chapter 40 of John’s ed added) (footnotes omit- (emphasis Id. at 360 Magna Chapter 29 of the 1225 and Carta ted). XII of the id. at 367. Section Carta. See ¶44 rights asserted that the Blackstone Rights of 1776 was Delaware Declaration Magna for Englishmen had little value but typical. It stated: right to guarantee of the of access Carta’s Injury every done every That Freeman for right respect to that and the courts. With Person, Goods, by any him in his Lands or remedy wrongs, civil Black- right to a for Person, Remedy by ought have other stone stated: Land, Law of the and Course every right of En- “A third subordinate Right ought have and Justice glishman applying to the courts is that Sale, freely Injury him without done to injuries. justice for redress of Since Denial, speedily any and fully without England, supreme arbiter of law in Delay, according to the Law of the without life, liberty, property, every and man’s Land. justice open all be must at times courts Id. subject, duly law admin- and the be by provi- rights protected those 46 The emphatical words of istered therein. just right more than sions included spoken person in the magna carta The substantive (says the courthouse. judgment of law sir enter King, who in “remedy Coke) protected by the claus- repeat- rights to be present and Edward is ever courts, recognized in several implicitly nulli was ing in all are these: es” them his constitutions, as evidenced early state vendemus, negabimus, aut differemus nulli immunity sovereign every that the law of jusütiam: ‘and the fact restum vel therefore rights exception to be subject,’ same learned au- stated continues the open e., thor, protected by the clauses injury [i. done to him in bonis example, open provisions.9 For [per- courts persona vel goods] [land] in terris that the pro- “remedy of law." I note principles due course jurisprudence of due can —the "pro- referred to as guarantee is sometimes law of remedies of law and the universal cess law,” law, opposed as to “substantive justice cedural” equal for all. omitted). rights that are (footnotes and liabilities which defines the Id. at 356-57 of action given legal the form of causes effect in Looking past the terms of for relief. referring rights protected or claims to substantive "procedural,” the critical art "substantive” I do clause of Article and me Zimmerman between Justice particular difference "causes of action” not mean view, language my in Article when is that in term "substantive” technical sense. The right "every person" to a giving right referring rights to a to section 11 means IX, Hanlon, provision quoted LeCroy in Article courts 713 S.W.2d Pennsylvania (Tex.1986), of 1790 includ- Constitution 340-41 which stated: providing specifically legis- ed a sentence courts must have been power with the lature determine when provide rights intended in addition to against be how suits could maintained process provision in the due those commonwealth: surplusage. former would be Further- every all open, That courts shall be more, process provision’s general the due man, lands, for an him his done guarantees contrast with the person, goods, reputation shall have specific provision’s guarantee right aof law, remedy by due course of to the courts. access sale, justice administered without de- Open See also Tennessee’s Clause at Courts nial, delay. brought Suits 341 n. 26. such the commonwealth in man- ¶ 49 It is true that some states ner, courts, and in such such cases that, adopted open courts unlike clauses legislature may by direct. Utah’s, protect only rights procedural added). (emphasis n. Id. at 368 220 *14 speedy the access to courthouse and a admin open courts, An guaranteed 47 rem- judicial proceedings. istration of ifBut the edy, provision was not contained Unit- of the in Framers had Constitution ed federal Bill States Constitution or adopt guarantee, tended to such a limited as Rights, govern- of no doubt because the says Zimmerman that Justice now is all sec rights, duties, ing in- and liabilities between does, tion 11 the Framers had models that respect protection with dividuals to the of they copied. e.g., Cf., could Mont. “person, property, reputation” was Const, Const, II, 16; § art. Wash. art. to deemed be committed or reserved exclu- (“Justice in all 10 cases shall be adminis sively to the generally states. See id. at openly, unnecessary tered and without de is, course, 368-75. While there some ov- lay.”). Obviously, they did not intend to so by erlap rights guaranteed open rights guaranteed limit the to citizens provisions courts and other constitutional Utah. provisions, process equal such and as due political 50 Because of that abuses ex- unique protection, overlap open that is not to isted in number of states at the end of the provisions courts and does not lessen their century 19th when the Utah Constitution importance protec- as basic constitutional framed, Framers, relying legal princi- is, example, overlap There for some tions. old, ples that were centuries consti- included equal protection, process, between due protections against tutional such evils. The privilege immunities clauses of both political abuses included the influ- misuse of constitutions, and federal state but no one of by corporate ence railroads and other inter- wholly duplicative those clauses is ests to elevate their over self-interests other, specific and each fills a constitutional public by obtaining legis- interest from state need. privileges and latures immunities that insu- ¶48 Indeed, Supreme the United States general from lated them For ref- laws. recently respect Court observed with origin open provisions erence to courts provision, Texas courts similar history and the industrial of certain states provisions in Utah and a turn century, around the see Perkins states, provided number other Homes, 809, Log v. Northeastern 808 S.W.2d protections broader constitutional than those (Ky.1991), Hammer, 811-12 Kenyon v. afforded the Due Process Clause 142 Ariz. 971-73 n. Supreme Fourteenth Amendment. The Texaco, Inc., Court history framing Pennzoil Co. v. 51 The 1, 12 11, 107 n. U.S. S.Ct. L.Ed.2d Arizona Constitution reflected conditions "remedy by injuries Legislature abrogate due course legal of law” er of the remedies. "person, property, reputation” one's Justice Zimmerman no finds such limitation. pow- enforceable on the constitutional limitation Constitution, Berry, P.2d at century. the Utah see turn of the As around the existed 674-81, lengthy and Justice Zimmerman’s explained: one commentator explanation in and accurate Condemarin history the Arizona Constitutional The University Hospital, protection the broad reveals Convention (Utah 1989) (Zimmerman, J., concurring). intended the anti- the framers with Arizona Con- abrogation provisions. The 53 Article of the Utah “high-wa- during the drafted stitution was much flexible much Constitution is more progressive mark” movement. ter power less than restrictive corpora- big progressives did trust The protects provision. Arizona Section a citi- during powerful tions. industries than zen’s rather causes mining corpora- time were the railroad such, gave but the abuses that rise corporations notorious These were tions. provision no doubt to the Arizona influenced corruption. political domination and significant that the the Utah Framers. It is Constitution, labor in the Utah Article article progressive allied movement itself XVI, 5, gave protection, constitutional Together, interests. prolabor constitution, wrongful as does Arizona’s labor interests set out progressive and provides death “causes action” big protect individuals business damages that can recovered in amount be by curbing regulating corporations and XVI, cannot limited statute. Article legislature. This power of the substantive (as later of the Utah Constitution influenced Arizona “tenacious” alliance to accommodate the Workers’ Com- amended Ultimately, convention Constitution. *15 Act) pensation states: provisions that approved a of fa- number business, including vored individuals over damages right of to recover The anti-abrogation provisions. death, the injuries resulting for shall never abrogated, and amount recoverable the Sorensen, Comment, Johnny Adiós Statute J. subject any statutory limita- shall to not be A Repose: Temporary Aberration Con- of tion, except compensation in cases where Interpretation, 26 Ariz. St. L.J. stitutional injuries provided resulting for death is (footnotes omitted). (1994) 1101,1107-08 for law. developed The had under 52 law that I, clause in Article Although the remedies Carta, Chapter Magna according 29 of to the particular protect section 11 does not causes Blaekstone, provided the means for Coke action, neces safeguard of it does remedies dealing generally with abuses. See such person, prop sary protect to the interests of Open Court Clause 358-63. Tennessee’s abroga erty, arbitrary reputation from Arizona, XVIII, adopted example, for Article Evans, tion, P. 825 52 174 as Utah constitution, part 6 as of its the section Masich, v. Berry, Horton Goldmin strongest pro- of all such state constitutional (Utah 1989), 785 P.2d 1087 Daughter, er’s visions, right only protect of citi- to the Hughes Valley Beds v. Herm and Sun Water injuries inflicted, legal for zens to a (Utah Son, 1989), Inc., show. & 782 P.2d 188 protect specific “rights of actions” also to but XVIII, that his- 54 Zimmerman asserts damages. recover Article Justice to states, of tory the that the Framers right supports “The view Arizona Constitution the damages did not intend to shall the Utah Constitution of action recover law of the common abrogated, and the amount recov- constitutionalization never be I, adopted Article subject any statutory language the ered shall not be to correct, histo- ll.10 course is but his explanation of related That of limitation.” For ry Zimmerman’s statement underlying 11 of is not. Justice purposes Article constitutionalizing com- the action, of He thereby contends: the that Utah law, is made absurd fact mon Interpreting to the con- statehood, to is a state that of causes history, prior tain substantive protection particular 1210 (Utah Comm’n, 1992); “abjur[ed] the common law Utah entire- 965 Ameri-

ly,” 144, City far from an accurate Crosgrove, assessment can Fork v. 701 P.2d 1069 history.11 deny, 1985). To Justice Zim- Utah does, merman law common part governed fundamental of the law III. THE PLAIN MEANING OF Territory history the Utah is revisionist ARTICLE SECTION cursory

wholly most detached read- See, ing history Territory. e.g., preeminent obligation judges R.R., Thomas v. Pac. Utah Union adjudication give is to constitutional force Kinner, (1875); Nat’l First Bank v. Utah provisions pro- to intended constitutional to Green, (1873); People Utah rights tect people intru- warp 13-14. The and the woof of the law in by majorities overreaching special sions Territory was the law. The common legislative powers interests who misuse Supreme Reports volumes of the Court private advance their self-interests at Territory replete of Utah are with the expense people. of the liberties of the application principles of common law in all meaning provisions of the constitutional property, personal injury, kinds of and con- judges under oath apply is found first cases, procedural tract as well as on issues. plain meaning foremost Indeed, provisions various Utah Decla- language. constitutional Rights ration of cannot be understood with- out reference the common law and the history Anglo-American law. For exam- A. Language Remedy The Plain ple, provisions in the Declaration of Clause Section Rights respect right free Plainly ¶. put, Justice Zimmerman speech, privilege against self-incrimina- plain language would rewrite the of section

tion, etc., jury trial, are all rooted thorough parsing He that “a asserts in, of, grew heritage out common article demonstrates me that scope meaning many defines incorrectly concluded that provisions in both the and the United *16 provision provides very specific courts Indeed, sub- States Constitutions. this Court has legislature.”12 stantive limitations on the often to resorted the common law in constru- ¶ ing provisions various in the Utah The answer to his assertion that Declara- sec- See, Rights. e.g., tion of only procedural right Jensen State Tax tion 11 a establishes of abjuring entirely. governing of interpretation the common law This law in the insofar state as it did pre- is also with our inconsistent statutory not conflict with constitutional or law. law, which, above, Berry case as noted ¶ I fo- See Rev. Utah Stat. 1898 2488. procedural guarantee cused on the provision. inconsistency courts Given the of present 12. The term "substantive” in the context interpretation Berry’s provi- courts power deny means a limitation on to history, interpreta- sion with this a substantive of rights abrogating substantive enforcement greater tion is into even doubt cast because of judicial In remedies. another sense of the sub- separation tension creates under stantive-procedural dichotomy, it could be said V, powers doctrine of article section 1 of the that all the clauses in section 11 "substan- Utah Constitution. legislative prerogative. tive” limitations on the ¶ 144. Evans, However, Utah 52 174 P. 825. to Cf. entirely 11. Justice Zimmerman relies on an 1855 speak power of a "substantive” limitation on the support extraordinary territorial to law that as- Legislature Legisla- does not mean that the Laws, Territory sertion. See of Utah 260 ch. change modify ture cannot or the substantive law LXIV, That was enacted a liabilities, rights, and remedies. substan- eight years Brigham Young mere after and the legislative power prohibits tive limitation group pioneers first of Mormon entered the Salt Legislature arbitrarily abrogating remedies Valley. Asserting provision, Lake that this enact- rights to enforce those and liabilities. It should forty years ed before the Constitutional Conven- however, noted, be that the law remedies is Constitution, tion drafted Utah reflects the "procedural” sometimes called law and some- history of is farfetched. times called "substantive” law. Legislature formally adopted the common law as Article access to the which shall be administered his fending before every person, for shall be barred from or ^[1] unnecessary delay; himself person, remedy by All courts shall courts is the property 11 itself. Section counsel, any any due course tribunal injury or prosecuting be plain reputation, done to open, [2] without denial ^[4] civil in this language no cause to law, person or states: him in State, shall de- ^[3] dy other three harmed ceedings. dural glish language can guage shall have the course of law.” stantive” ” specific, that shall requirements pertaining Rather, requirement “every clear, clauses, person, property be right person “by clause be. Clause does to mandatory as the En- due course not that one a ” imposes the “shall “remedy by deal with to or judicial pro- have reme- unlike reputation who law is proce- “sub- ” due party. is a he ¶ 60 In flat to the clear contradiction language, meaning of the above Justice Zim- reference, ease of bracketed For remedy argues that the clause does merman beginning been at the numbers have inserted injured person, provide person that a separate of each Sec- clause reputation remedy, property, or shall have a 1, 3, clauses. tion 11 contains four Clauses only language but means that reme- rights procedural prescribing and deal with expeditiously. dies be should administered judicial proceedings how should Thus, him, according Leg- See 148. to remedy be administered. Clause wholly power islature has unrestrained clause, right person in- establishes abrogate all remedies that would jured person, property reputation” “in his injuries person, property, one’s redress judicial injuries. remedy redress those correctly reputation. that the He states 58 Clause states “all courts shall remedy merely that a clause does not state “every per- open.” Clause states that remedy” person and that “shall have son, person, for an done to him his law,” “by remedy shall be due course of but property reputation shall have sequitur illogically jumps to then the non that all due course of law.” Clause states remedy guarantee” is thus cast “in “the judicial proceedings “shall be administered light.” procedural 148. That conclusion is unnecessary delay.” without denial or ungrammatical; say it makes no sense right self-repre- Clause establishes the substantive in civil Each these sentation cases. claus- procedural only it is because to be adminis- es has been held to bind the Thus, “unnecessary delay.” tered without Legislature. v. State Tax See Jensen “parsing” purported Justice Zimmerman’s Comm’n, 1992); Berry, 835 P.2d 965 *17 ungram- 11 language both Club, 670; Liquor Celebrity Inc. v. 717 P.2d flatly contrary plain to its mean- matical Comm’n, (1982); P.2d 1293 Nel- Control 657 stated, remedy ing. phrase that a As Smith, v. 154 P.2d 634 son 107 Utah by of law” does not shall be “due course Evans, (1944); P. 52 174 825. language per- a change that the declarative remedy injury have for an son shall a ¶ only 59 11 mandates not Section reputation. person, property, The “due or litigants, the courthouse door be to all requirement simply of law” means course that, courthouse, inside the but also once by remedy be administered es- that a shall remedy “by litigants to a due are entitled procedures. legal Zimmer- tablished Justice injuries. Thus, legal course of law” for “which shall argues man that the clause also right courthouse make the of access or unneces- be administered without denial 2 gesture, empty more than an clause man- emphasis. sary delay” procedural a reinforces “every person, dates that an done for ¶ does But that clause adverbial person, property reputation, to him in his or meaning pre- of the change in the least the by due law.” remedy shall have course of inju- an phrase “every person ceding more 2 could not be clear. lan- Clause for 1212

ry remedy by Berry have Zimmerman done him shall due Justice states that latter is an recognize law.” The clause inde- the first Utah case course that section of pendent, power declarative clause that creates a Legislature 11 limits the right remedy, language to a and the that the abrogate remedies. See That is total- remedy “shall administered without denial ly incorrect. this Court decided delay” unnecessary merely describes how Smelting, Refining Masich v. United States right remedy to a should be adminis- Co., & Mining 113 Utah 191 P.2d 612 tered. clearly recognized which that section places 11 some reasonable limitation on the “parsing” Justice Zimmerman’s of power Legislature to abolish remedies. language nothing play than a more length I Masich at but discuss now infra plain words seeks to obscure the mean- that, Masich, simply harmony note with ing remedy nullify clause so toas its plain meaning restated the of section meaning effectively erase clause 11: from the Constitution. As he rewrites sec- tion it would read: protects Section remedies due course injuries of for done to the substantive proceed- All courts shall be all [and person, property, reputa- interests ings] shall be administered denial without primarily tion. 11 is What section con- unnecessary delay; person and no shall particular, cerned with is not prosecuting defending be barred from identifiable such, causes with but any before tribunal.... availability legal remedies vindicat- ¶62 judicial evaporates When restraint ing great interest individuals extraordinary degree provi- to such that a society integrity civilized have sion can Constitution be nullified persons, property, reputations. their judicial it, rewriting no in the added). (emphasis 677 n. 4 P.2d at personal predi- Constitution is safe from the judges, lections and the whole foundation n statement that the governmental constitutional restraint of preserves clause to a “due power imperiled. legally legit- There is no interpre- course of law” is consistent justification substituting judge’s imate all tation of section that Utah cases involv- personal view of what the law should be for ing employed. Hirpa issue See v. Utah, people what through their Con- Inc., (Utah 1997); Hosp. IHC stitution, have stated the law shall be. Schackel, (Utah 1996); Ross v. 920 P.2d 1159 rewriting 63 Justice Zimmerman’s Daughter, Horton v. Goldminer’s clause also violates Article section 26 of 1989); Valley Sun Beds v. Water states, Rights, the Declaration of “The Son, Inc., Hughes Herm & 782 P.2d 188 provisions mandatory of this Constitution are (Utah 1989); Wright, Cruz v. P.2d 869 prohibitory by express they unless words (Utah 1988); Berry Corp., v. Beech Aircraft are declared to be otherwise.” There is (Utah 1985); Stoker, 717 P.2d 670 Stoker nothing language of section 11 (Utah 1980); 616 P.2d 590 Masich v. United mandatory that declares it to be other than Co., Smelting, States & Mining Ref. prohibitory. Section 26 “rivets section *18 101, (1948); Utah 191 P.2d 612 Industrial 11, rights and all the other the Declaration Evans, 394, Comm’n v. 52 Utah 174 P. 825 Rights, into law the fundamental (1918); Holden, see also v. 862 Currier P.2d state and makes them a enforceable court (Utah Ct.App.1993); 1357 Brown v. cf. Berry, of law.” 717 P.2d at 676. 31, Wightman, 47 Utah 151 P. 366 ¶ 66 ease on this fundamental

B. Utah Case Law point remedy of the effect of the clause is in recognized by majority In an the law apparent attempt 64 to show accord with law, prior having a break constituted courts in other states similar con-

1213 Fieser, (Fla.1973), 1, 4 Lemuz v. any partic- 281 So.2d although in provisions, stitutional 936, 134, (1997), 141-44 261 Kan. 933 P.2d applying case, might differ ular the courts Hall, (Ky.1973), 218 v. S.W.2d Saylor 497 Remedy, to a Right In The general rule. Housing Authority, v. 854 S.W.2d Waldon stated: Schuman Professor 777, (Ky.Ct.App.1991), Nutbrown v. 778 Thus, adopted a rule of court has no Cranmore, Inc., 675, 140 N.H. 671 Mount legislatures; even deference absolute 548, (1996), v. RMI 550 Brennaman A.2d recognize law- most radical courts 460, (1994), Co., 639 N.E.2d 425 70 Ohio St.3d plaintiffs deprive of vested cannot makers 59, Co., Burgess Lilly v. Eli & 66 Ohio St.3d Further, no court has taken rights. 140, (1993), v. Hardy 142 Ver- 609 N.E.2d the other end of the approach at absolute Meulen, 45, 32 512 N.E.2d 626 Ohio St.3d remedy guaran- holding that the spectrum, 281, (1987), Phillips, Or. 906 Greist v. 322 all elimi- prohibits tee (1995),Kennedy En 789 v. Cumberland That of remedies. nation modification (R.I.1984), Co., gineering 471 A.2d 195 Dau changes on approach work radical would gaard Cooperative Building Supply v. Baltic doctrines such as statutes of settled well (S.D.1984), Ass’n, 419, 424 349 N.W.2d Jen limitations, compensation, and workers’ (Tex. 790, 793 nings Burgess, v. 917 S.W.2d sovereign immunity. Most find Votteler, 661, 1996), 648 664-65 Sax v. S.W.2d ground: they interpret middle some (Tex.1983), Valley v. Re and Lewis Canaan guarantee proscribe legis- remedy some 634, sorts, Inc., 684, 408 185 S.E.2d W.Va. without com- affecting remedies lation (1991).13 645 pletely constraining lawmakers. Framers of the Utah Constitu- 67 The added). (emphasis Temp. 1208 65 L.Rev. at tion, 11, intend- adopting Article section expressly implicitly For cases that either principle ed a fundamental to establish recognize the restrictive effect just society. provides the law civil Unless see, action, arbitrary legislative for clause on “by due law” for vindica- remedies course of Liberty In example, v. Mutual Kruszewski wrongs persons, their tion of inflicted (Ala. 935, Co., 937-38 653 So.2d surance society reputations, their civil property, or Sullivan, 1995), Long Hager v. & Lankford exist, William as Lord Coke and Sir cannot 996, (Ala.1982),Hayes ty, 1000-04 416 So.2d long ago observed. The Framers Blackstone Co., 264, 178 Ariz. v. Insurance Continental just clearly recognized peaceful that a (1994), 668, 676 Hazine v. Mont 872 P.2d society provide civil remedies must Co., 340, gomery 176 Ariz. 861 P.2d Elevator protection personal interests of fundamental (en (1993) banc), City 625, v, White protect integrity people so can 667, 800, Ark. Newport, 326 933 S.W.2d injuries inflicted oth- persons from their Ganim, 557, (1996), Conn. Moore v. ers, rights from interference property their 742, Young n. v. O.A. A.2d 751 & 31 others, and their misappropriation Co., 1071, & 477 A.2d Newton Son In good and slander. character from libel Davis, (Del.Super.1984), Gallegher v. 183 A. addition, important goal 11 serves the 620, (Del.Super.1936), Agency judi- buttressing independence 624-25 v. against improper Care Administration Associated other ciary Health interference Florida, Inc., sum, 11, government. 678 So.2d Industries branches Scanlan, bottom, (Fla.1996), principle of secure a basic Martinez v. seeks to will, end, White, persons justice in the deter (Fla.1991), Kluger v. So.2d added); City (emphasis Leg- Noonan argument 13. Justice Zimmerman's cf. (1938) Portland, power abrogate reme- Or. islature has unlimited reputa- protect person, property, ("The dies to one’s ... abolish a cannot meaning only contrary plain tion is not recognize the existence of and at the same time with his state- but is also inconsistent explain right.”). Zimmerman does not Justice *19 I, “plain language section article ment of section 11 can be recon- his construction how prohibits legislature and the courts 11 from with that statement. ciled legal right.” entirely any remedy denying for 1214 resorting from,

wronged prohibits altering from others self- or help and the inevitable violence that ensues abolishing rights even certain which exist- people when take the law into their own ed at law. Berry common See ex rel. judicial seeking hands rather than remedies. Berry Aircraft, Beech P.2d (Utah 1985). fact, Berry, In in we specifically legislature may stated IV. BERRY DOES NOT IMPROPERLY abrogate eliminate a cause THE INTERFERE WITH LEGISLA- entirely there is reason and if sufficient PREROGATIVES AND TIVE DOES or abrogation the elimination not an “is NOT CONSTITUTIONALIZE THE arbitrary or unreasonable means LAW, [off AND COMMON SECTION achieving objective.” 717 P.2d at 680. ARE RIGHTS NOT DETERMINED BY THE AS IT EX- COMMON LAW added) (some (emphasis 765 P.2d at 871 cita- ISTED IN 1896 n omitted). tions Consistent with this lan- guage, ¶68 Cruz held that the Married Woman’s Zimmerman contends that Justice Act, Berry which abolished a married man’s com- constitutionalized the common law as ¶¶ it in existed 1896. See 122-34. That con- law mon of action for loss of his wife’s unequivocally wrong. Berry tention is I, did consortium, did not violate Article section that; fact, not in do it made clear that the 11. See id. at 871. Justice Zimmer- n Legislature not bound was the common man’s statement in Cruz Berry about effect law.14 legislative power and the common law is says. irreconcilable with what he now turn 69 I first to the law that was actu- ally Berry. established Justice Zimmer- Nothing Berry sup- itsor doctrine man Berry asserts that had the effect ports Justice newfound Zimmerman’s conten- constitutionalizing the common law and that Berry opinion explicit tion. The is as as improperly it preroga- restricted language proper can construction tives. Zimmerman’s Justice words for application I, Article does v. Wright, unanimous Court Cruz not constitutionalize the common law. See (Utah 1988), written, true were when Berry, 676; Guymon, 717 P.2d at 1997 Utah now, true newly and refute his contrived L.Rev. at 898-99. position constitutionalized the improperly common law and interferes with ¶ 71 The in Berry issue was the constitu- Cruz, legislative power. Justice Zimmer- tionality products liability of a statute of quite correctly Berry’s man described con- abrogated legal all remedies struction Article and its rela- personal property injuries caused tionship to the common law: products arbitrarily an defective after fixed time, period irrespective jurisprudence Nowhere in it the nature this state’s suggested flatly that article particular product potential or its dan- support analysis 14. To the extent that his employed conclusion finds Ross not consistent Ross, which, part, at least in looked to the Berry. constitutionality with Issues of the resolving law it existed common in 1896 in immunity official under Article section 11 are constitutionality statutory issue of the of a official correctly principles decided under stated in immunity provision, departure Ross was a Berry. Berry explicitly It is undeniable that Berry. Beny opinion adopted and the test it pointedly emphasized that section did not require justify did not reliance Ross’s on the See, e.g., constitutionalize the common law. Ber- deciding law common in 1896 in the issue 676; Note, ry, Guymon, Paxton R. immunity. official The decision in Ross did Physiciaris: They Utah Prison Can Commit Mal- all, apply comply test at did nor practice Impunity With or Does Their Official apply Berry. principles other laid down in Clause?, Immunity Open Violate the Courts prisoner Ross held that a had no Utah L.Rev. 898-99. I shall discuss Ross in malpractice against prison doctor because un- greater detail infra. prison der the common doctor immunity. could have entitled been to official *20 society as justification relations between individuals The for the stat gerousness.15 require. evolves and conditions necessary solve the that was to ute was escalating products liabili rapidly problem of added) (citation (emphasis Id. and at below, premiums. ty As shown insurance omitted). footnote pretense “justification” was mere with that Having established that fundamental no factual basis. Berry explicitly recognized principle, —con- trary repetitious as- to Justice Zimmerman’s Berry damages an action for power the sertions broad otherwise —the from a husband’s and father’s death arising necessarily “defining, has in Legislature complaint airplane crash. The caused law,” modernizing changing, and the albeit negli- law alleged actions on common based rights eradicating of citizens to a without the warranty. liability, gence, strict and breach wrongs: remedy under the law for civil holding the ab- unconstitutional statute’s Necessarily, Legislature great the lati- rogation legal remedies before the all changing and moderniz- defining, tude in occurred, plain relied the Court on law, doing may ing the and in so create remedy clause in section 11. meaning of the abrogate rules law old ones. new and “injury” for an to legal The to recover Nevertheless, purpose of Article basic clearly “person” was established one’s impose is to limitation some products liability tort extant substantive and on for the benefit of those power carefully assessing Legisla- After law. persons, persons injured are in their who jus- findings supposedly ture’s “factual” reputations they property, or since remedies, abrogation of the Court tified its society, belong no generally isolated in to repose was an arbi- held that the statute group, rarely are to identifiable and able trary wholly unjustified abrogation of rally political process to their aid. plaintiffs every legal remedy had for possible added). (emphasis Berry recognized Id. also injuries. their rights always para- are not that section Nevertheless, Berry they clear that made mount do right" a rule of person no has a “vested rights sweep not all other constitutional such, law, courts or as under either too, They, prerogatives before them. process provision of the Consti- the due many rights, must be like constitutional corollary tution. 717 P.2d at 675. As weighed against and harmonized oth- declared, contrary principle, provisions. The accom- er constitutional repeated competing, Zimmerman’s assertions: and sometimes Justice modation of preroga- clashing, rights constitutional process due nor the [NJeither greatest delicacy, is tives a task constitutionalizes necessary in although consti- common and the law common law or otherwise freezes adjudication. tutional private rights and governing remedies of Id. at is, fact, It one time statehood. Legislature Legislature important held that functions of inju- abrogate legal remedies for modify governs not free to change placing culpability all of the manufacturer’s statute of barred remedies irre- spective of whether the defendant's conduct was stream of commerce. product defective in the reckless, grossly negligent, Thus, or even intentional: immunity actions limited immunity protects liability, conferred all but extends also from suit on strict based manufacturers, foreign, both domestic and gross negligence, negligence, based on actions persons misconduct, in a manufacturer’s chain distri- recklessness, all and even in- willful bution, last sell- from the manufacturer misconduct, such as a manufacturer’s tentional abolishing is not aimed nui- er. Section 3 dangerous warn of known intentional failure to suits; contrary, purpose, sance its widespread injury or could cause defects that below, judi- injured plaintiffs’ shown bar death. wholly cases. The cial remedies in meritorious added). (first emphasis Berry, 717 at 673 granted degree immunity is not related to *21 statute, reputation person, property, products or has one ries to one’s been strike the arbitrary capricious liability repose. hardly sup- That for or reasons. To statute ports repeated Berry asser- purpose, that established a Justice Zimmerman’s achieve unduly Berry tions that the test two-part test determine the constitutional- has intruded legislative power. on abrogates ity aof statute which remedies protected by that vindicate the interests sec- Furthermore, Berry is test es- tion 11: sentially the same test that the United States First, is satisfied if the law Supreme in determining Court has used provides injured person an an effective and “life, liberty, property” whether or been has remedy “by reasonable alternative due interpretation denied under a substantive course of of his consti- law” vindication the Fourteenth Amendment Due Process provided by The tutional interests. benefit not, Clause. That test is as Justice Zimmer- substantially equal the substitute must be it, highly stringent man would restric- remedy in value or other benefit to the legislative power. tion Berry test abrogated providing essentially compa- process equal also similar to the due protection per- rable substantive to one’s protection of the laws tests this Court son, property, reputation, although or historically applied. Using Berry has remedy may form of test, the substitute be recently this Court has sustained different.... Legislature’s power to enact statutes change abrogate or to a Second, if there is no substitute alter- See, e.g., Hirpa, number cases. remedy provided, abrogation native 794; Cruz, 869; Ross, at 765 P.2d at see also justified or cause of action be Masich, 1166; at 920 P.2d 191 P.2d at 624. only if there is clear social or economic Indeed, Legislature this Court and the both evil to be eliminated and the elimination of actions, have abolished obsolete common law legal remedy existing an is not arbi- irrespective of their status in notwith- trary or achieving unreasonable means for See, standing e.g., section 11. Norton v. objective. (tort 1991) Macfarlane, 818 P.2d Id. at 680.16 abolished); Stoker, of criminal conversation (intra-family immunity tort ¶ 76 Justice Zimmerman’s contention abolished); partially Sessions v. D. Thomas Berry that the test is flawed because Ass’n, Hosp. Dee Memorial 94 Utah unduly legislative power restrictive is ab- (1938) (tort immunity P.2d 645 for charities that, applying surd. The irrefutable fact abolished). test, only statu- Court held two tory provisions prod- unconstitutional: products liability statute of re- liability repose Berry ucts statute of pose Berry totally abrogated at issue in all repose.17 the architect and builders legal persons injured statute remedies for after Today properly this Court holds a revised statutory repose period elapsed. Because (and arbitrary) far less architect Legislature provided and builders no rem- alternative edy, analysis statute constitutional. to- Given the Court’s sec- moved to the day’s ruling, (a) Berry net part Beimy effect test ond test to determine that, argues opin- Berry 16. Justice sequitur. properly Zimmerman in his non Whether the test ion, "failings” Berry's analytical applies model the remedies clause of Article why provides pro- illustrate Article wholly separate 11 is from the issue of whether cedural rather than substantive limitations. clause establishes limitation on ¶¶ Assuming arguendo 120-38. that the power. flawed, “analytical model” is that does not logic prove interpretation that a substantive Valley 17. Sun Water Beds and Horton held both remedy provision in Article section 11 is the exact same architect builders statute of reading meaning. plain not a correct of its Jus- repose unconstitutional. "plain tice Zimmerman’s assertion dial meaning” of section 11 is demonstrated inadequacy glaring asserted test is a trary and unreasonable because statute a clear social economic whether there was (b) products all presumed useful life of whether eliminated evil same, lipstick dynamite, arbi- was the abrogation legal remedies was an aircraft, achieving falsi- automobiles. Given the trary unreasonable means *22 ty Legisla- of the stated factual basis for the objective. that ture’s actions and the arbitrariness of the justifica- Legislature 79 asserted The used, the held the means Court that statute injured person’s for elimination of an tion the unreasonable, repose “arbitrary was [and] of it legal by the to solve what remedies need statutory objec- not the [would] achieve premium crisis.” an “insurance said was tive.” Id. that Berry, P.2d This held 717 at 681. Court legal 81 contention abrogation person’s remedies Justice Zimmerman’s the of “unworkablef,] Berry ... the of that the test is because statute was unconstitutional subject manipulation, ... arbitrary in the leads to absurd repose and unreasonable was results, relationship ... our possibly the could not distorts sense that statute ¶ 108, presumed legislature,” simply factually is solving the the to the contribute two-part wrong. test premium Id. at 681-82. The allows “insurance crisis.” modify Legislature for abrogation legal remedies considerable latitude The statute’s judicial injuries products and even eliminate remedies where produced defective test, liability appropriate. part products insurance Under first would not reduce part, simple quid pro quo Legisla- that premiums in for the reason the so-called manufacturing statutory remedies in the premiums for Utah ture establish insurance data, remedies, Legis- place of as the companies were on “nationwide common law based enacting lature done in the Workers’ experience on manufacturer’s in Utah.” has not Occupational Thus, prod- Compensation Act Dis- abrogation Id. even a total all they also Automo- liability ucts whenever arose— ease Act. See Utah No-Fault claims §§ Act, Ann. 31A- running of the statute of Insurance Utah Code even if before the bile (1998); 717 at repose Berry, had insur- 22-301 to -310 P.2d no effect on —would 677; Masich, fact, at Act 612. Each ance rates Utah. truth totally abrogates was a common law remedies assertion of an insurance crisis Utah finding statutory ad- legislative therefor remedies pure sham. The substitutes agency in arising by an administrative damages for from ministered number claims and, in case greatly in case the first two Acts products defective had increased Act, factually an contract years simply recent not true No-Fault insurance was remedy. survey A of 500 members the Utah Utah.

Manufacturers’ Association disclosed Zimmerman’s assertion 82 Justice only reported prod- one manufacturer had Berry test is unworkable leads it. liability claim made id. ucts See wholly detached from absurd results also at 681. objective Re- appraisal of Utah case law. an Furthermore, if, unnecessary. A contrary sponding point point 80 even fact, reading cases the error an crisis” of our demonstrates there were “insurance say, Utah, arbitrary an the assertion. Suffice to the statute of is the same test that the United States accomplishing pur- means test applied under Due purport Supreme has pose. “The does not even Court statute of the Fourteenth Amend- approximate average expected an life of Process Clause deciding has de- covered, products ment whether one been products nor is based See, e.g., life, liberty, property. safety nied presented particular difficulties. Hill, toasters, automobiles, & Co. v. road Trust Sav. applies It alike to Brinkerhoff-Faris 673, 680-82, 74 L.Ed. 50 S.Ct. prescription drugs.” Id. 281 U.S. graders, and Hahlo, (1930); ten-year v. 258 U.S. statutory periods after Crane six- and (1922); see also 66 L.Ed. were barred were arbi- S.Ct. which all remedies Robins, damages against employer Shopping PruneYard Ctr. v. and because 74, 94, statutory L.Ed.2d he was U.S. accorded no substitute rem- S.Ct. (1980) (Marshall, J., edy concurring) (stating under the Act. Court stated: pro reasonable alternative must be partially The contention is made that if a rights vided when common law are abol core employee granted compen- disabled ished); Duke Power Co. Carolina Envtl. and, further, sation is denied common his Inc., Study Group, U.S. S.Ct. right of he been then de- (1978); Condemarin, 2620, 57 L.Ed.2d 595 prived his remedy due course lawof (Zimmerman, J., concur 366-69 person, done to him in his ring) (explaining process approach); due Mi contrary provisions Constitu- *23 Comm’n, neer v. Industrial tion of this state. Mason, 1977); State I, quoted Id. at 623. The Court then Article 925-26 acknowledged Leg- and that if the ¶83 Zimmerman’s Justice further asser- right compen- islature to all were abolish to Berry pre- tion our that is “inconsistent with sation all rights negli- common law for law,” 144, unequivocally incor- case gence by employee, an “no contention could Forty years decided, rect. before was reasonably proper be made that it was a remedy held in Masich that the Court police the power. exercise of The reverse clause in section 11 a substantive limita- pauperism would be true and its con- Legislature’s power tion on the to abolish comitants of vice and crime would flourish.” Nevertheless, remedies. the Court held that Id. at 624. issue, Occupational the statute at the Disease Although provided the Act no alter- Act, which barred all common law tort ac- statutory remedy partial native for disabili- disability partial tions caused an for occu- ty,18 the that Court stated overall the Act disease, pational did not violate limitation the provided respects broader remedies some I, 11 imposed legisla- that Article on employees to than existed at common law. power. tive See 191 P.2d at 624-25. The Act abolished the common law fellow- ¶84 The issue in Masich was whether servant assumption rule the defenses of remedy provision the exclusive the Act negligence, of risk contributory and im- constitutionally abrogate posed, could common law actions, damage lieu common law negligence employer by (not statutory compensation actions actions for dam- partially ages) worker who was liability. disabled silico- on based strict The Court provided compensation sis. stated, The Act for total principles “The humanitarian the only. disability argued occupational The worker that the part, disease do act overcome Act was unconstitutional under Article sec- inadequacy at relief common law for a remedy provi- tion 11 because the exclusive employees, class of act and the should not be abrogated sion his common law for discarded because some members class explained: 18. The Court controlled the forum. We are convinced the Legislature, ease, because of nature of the dis- There must have been some reason for the length development, of time for Legislature compensation to limit to those difficulty proof, inability properly to employees totally who are disabled and to the apportion negligence employers, between dependants of those who are deceased. We expense litigation the cost and and the Legislature opinion not employee, small return to the to decided deal deny compensation partially intended through with silicosis commission employees deny disabled them enforce- require employer employee both the and the right ment of their common law without rea- part occupational shoulder of the costs of just dis- opin- son or cause. Neither are we of the regard negligence ease without of ei- Legislature preserve ion intended to employee ther. their common law to share the burden dur- when it was well ing partial brought disability, employer aware of the and the abuses had about when occupational legislation disease the confu- disablement or death occurred. degree disability sion that would if the exist Id. at 625. adversely emergency, care in an affect- volunteered medical rights, The Court stated: ed.” Id. at 624. Receiving physician-rendered medical care Significantly, all members significantly the likelihood of can increase Latim- that decided Masich—Justices- Court surviving life-threatening situation. Wolfe, Pratt,

er, McDonough, and Wade Therefore, it must be a social considered (who ground narrow that as dissented actually con- evil that the common law statutory construction Act a matter of to licensed medical tained disincentives partial not a common law claim did bar potentially providers to re- who were able view Article disability) were of the spond emergency to an and render medical imposed guarantee a substantive situa- care. remedied this due course of law by immunizing pro- licensed medical tion Legislature ignore having could without sought good who faith to aid viders substantial, nonarbitrary doing so. basis by rendering emergency others medical That, indeed, view of has been unanimous care. every justice who of this Court each and Id. 793-94. on the of Article ever ruled construction *24 all, justices in in- section 11—some thirteen ¶ also It is true that the under Court cluding Zimmerman —until his lone Justice analysis took an of whether the common law opinion in this case. provided time of statehood would have the immunity negligence and a volunteer’s Inc., Hospitals, v. Hirpa IHC that have been immu concluded there would (Utah 1997), barely a year P.2d 785 decided nity. inquiry, ap See id. at 793. But that of Justice Zimmer- ago with the concurrence by in parently prompted opinion the Ross v. Court, man all other members of the and Schackel, wholly unnecessary; was it was assertion that refutes Justice Zimmerman’s Berry by opinion certainly required in our unduly rigid and unwork- Berry the test holding was Hirpa’s that the statute .19 sustaining in Hirp Berry a relied on able. Berry the test under constitutional constitutionality the of the Utah Good Sa- dispositive. itself against challenge maritan under Article Act sum, in In has made clear this Court I, That Act the Constitution. Legislature the has the numerous cases that negligence against actions doctor barred all create, modify, power abolish causes and emergen- volunteered in an who his services “ quoted that ‘no Berry of action. Masich test, cy Berry In applying the the situation. ” law,’ any in rule of one has a vested interest plaintiff found the had no Court first that “ ‘[njeeessarily, that 717 P.2d at and an alternative to that of defining, in Legislature great latitude against allegedly a doctor who committed law, changing, modernizing and malpractice emergency as a volunteer in an doing create new rules law so Nevertheless, the Id. at stat- situation. 792. ” abrogate Id. at 676. These old ones.’ ute was held constitutional under second re- principles have been restated and same part Berry found that test. Court See, emphasized numerous other cases. legislative of the was to purpose statute Horton, 1087; Valley, P.2d at Sun e.g., deterring “evil” doctors from eliminate the 782 P.2d at 188.20 emergencies giving medical assistance be- Norton, sum, Cruz, legal Berry, Hirpa, common law rule that In cause of the clearly that our sec- imposed demonstrate liability on a doctor who Masich could injuries Article supra unconstitutional under note 19. See any repose argues that He now statute II. opinions joined Justice Zimmerman Horton and Sun be unconstitutional under would Valley argues that Sun but now those Horton and ignore plain Valley. He fact chooses Berry rigidity in the test. cases illustrate Indeed, undue Berry expressly opinions in both Horton and Gaufin, v. 867 P.2d in Lee repose proposition that reject all statutes of 1993), concurring opinion separate he wrote a violate section 11. holding claims for a statute of minors’ wife; Stoker, ery “freeze 616 P.2d at tion 11 do not the common cases law, law,” intra-family immunity statutory tort over the abolished with re- elevate Indeed, power. spect unduly legislative to intentional batteries restrict committed above, rings present position spouse on Justice Zimmerman’s one another. As noted advocacy prior recovery ardent Act light hollow of his No-Fault Insurance barred tort principles Berry,21 including damages laid of certain down in kinds of automobile its construction of Article section 11. accident victims in lieu of an reme- insurance dy. far-reaching legislative most aboli- repetitious as- 91 Justice Zimmerman’s tion tort is in of common law remedies sertions constitutionalized Compensation Occupa- Workers’ Act simply common as of 1896 law incorrect. Act, tional Disease which bar common law nothing Berry opinion There against negligence actions fellow workers fact, supports that contention. ex- employers statutory and created new plicitly opposite: the exact “[NJeither states provide remedies limited insurance ben- process the due nor the liability employer. efits based on strict constitutionalizes the common law or other- specifically Masich sustained the constitu- governing private rights wise the law freezes tionality Occupational and, Disease Act Ber- remedies as time of statehood.” implication, constitutionality 676; Noble, ry, DeBry 717 P.2d at see also Act, Compensation Workers’ an at- (Utah 1995). Indeed, 435-36 tack under Article section 11. The Court this Court has abolished outmoded common give slightest suggestion did not that the causes action and immunities that abrogated common law remedies were existed in has sustained status, had constitutional Justice Zim- *25 Norton, doing enactments the same. 818 it. merman would have P.2d at abolished the of criminal con- tort ¶ versation; Light short, In v. Power & 92 Utah Justice Zimmerman’s con- Hackford Co., (Utah 1987), 740 P.2d 1281 construed a that our tention cases have constitutionalized (or right statute that abolished the common the common law existed in 1896 at as time) of a personal injuries any to husband recover for other the that misstates cases I, gave right to his wife and that the of recov- been decided Article 11 under section concurring opinion protect against Justice inadequate special Zimmerman’s in to review Condemarin, 366-69, provides time, 775 P.2d at an legislation). any only interest At one a eloquent exposition important of one of the rea- citizenry percentage of small will have undergirds rights: sons that 11 section recently been harmed and therefore will need Berry, firmly In this Court staked as itself out obtain a to from the members of I, finding protections substantive sec- article particular majority vast defendant class. The guarantee "every person” tion ll’s to of a populace oppos- will have no interest "remedy by due course law” for "an protect ing efforts to a defen- such person, done [or her] [or to him in his her] majority readily dant class because will property reputation.” Today’s a decision is identify persons unlucky with those few logical Berry. ... successor to enough to have harmed. been And those few present ap- given case me a better will, likelihood, persons directly affected in all I, preciation including of the wisdom of article political power prevent passage lack to guarantee section ll’s in Utah's basic charter. that, essence, legislation requires every The constitution’s drafters understood that citizenry injured by member of the who is political processes always normal would not members defendant class to bear some protect rights the common law of all to citizens injuries. all of those the cost of injuries. Berry, obtain remedies for See 676; Developments P.2d at in the Law: The cf. rights respect To accord tire draft- these Interpretation Rights, State Constitutional requires approach intended that we ers chal- (1982) (protec- Harv.L.Rev. 1498-1502 lenges legislation alleged infringe to to article majority politically powerful tion of mi- I, differently than we otherwise approach norities an state as constitutional Note, unconstitutionality that interpretation); view claims of are di- State Economic Substan- Approach, ordinary legislation. at Proposed tiveDue A rected economic Process: 88 Yale (1979) (perfunctory judicial L.J. Id. at 366-68. Immunity Act in codified govern application principles that n general doctrine modified common law but provision. His conclusion specific application in cer- and liberalized its “unworkable, analytical leads model is 139; ways. Laws ch. tain See 1965 Utah results, quixotic analyses and strained DeBry, generally at 432-40. See legisla- relationship between the distorts a Guymon, 1997 L.Rev. 880-81. As Utah ¶ courts,” 122, squarely and the based ture rule, general governmental law of immu- Berry con- proposition that on the erroneous nity against government agen- bars remedies the common law. stitutionalized personal property injuries, for but cies long exceptions to there have been numerous AND V. SOVEREIGN IMMUNITY general made clear rule. This Court has I, ARTICLE SECTION such, immunity, governmental as is not I, by Article section 11. Govern- overridden course, immuni- 93 Of common law tort clearly recognized immunity mental was ties, immunity, sovereign such official part of the law when the Utah Constitution right for may clash framed, the Framers of the Consti- injuries under person property one’s governmental im- must tution have deemed I, presented Article section and have munity exception to be an important and somewhat difficult subset I, 11.23 remedy protected Article states, “[T]he Zimmerman issues. Justice 435, 436; DeBry, 889 P.2d at see also See fact is whether a cause of cold Borthick, v. 658 P.2d 627 Madsen existed has become the determinative 1983). I, 11 is factor whether article discussing relationship gov- govern- transgressed by the enactment of immunity and Article ernmental immunity.” mental 123. That statement “de- rights, Justice Zimmerman states that flat contradiction law established spite Berry’s disclaimer article sec- DeBry consequence, As a his Noble. common tion 11 does not constitutionalize the “analysis” sovereign immunity cases statehood, fact is law as it existed at the cold misstates Utah law.22 of action in 1896 that whether cause existed the determinative factor has become By background, law of way transgressed *26 11 is article section whether immunity originated judge- sovereign as a by governmental immuni- the enactment of law in States and was made the United 24¶ correct. ty.” 123. That is not in in It re- adopted this state case law. ¶ squarely the DeBry law doctrine until Both and Madsen mained common immunity sovereign that the of Legislature the Utah held doctrine enacted Governmental "absurdity" McCorvey to example, v. 24.Justice Zimmerman refers 22. For he contends that (Utah Transportation, Department 868 P.2d 41 law that allowed an individual of common rules of 1993), damages cap government held on injured city that the recoverable on a road because of entity government Ann. Utah Code damages from § negligence to but did not allow recover I, 63-30-34(1) not violate Article section did injured a state because of an individual road damages no to because there was recover damages. See government negligence to recover injuries resulting from the from the state for negligent Indeed, absurdity, it is not 124. that is an but public But in maintenance of roads. absurdity anything to Article that has do with ruling, Court did not refer to the common so I, of of 11. It is an artifact the doctrines section course, Of com- as it 1896. existed in immunity sovereign municipal doc- and as those general law in is relevant to whether mon inconsistency developed historically. That trines remedy by provides of law" law simply "due course Legislature now has waived does not exist. The historically and because the common law types immunity respect with to both of roads and today repository of of the reme- still most immunity pur- exactly for them the same treated provides protection dies that the law McCorvey, at poses. 868 P.2d 47. See reputation.” "person, property, and DeBry and is that The effect of Condemarin immunity governmental to scope of in relation noted, states 23. As constitutions in several state I, on the should decided Article section 11 sovereign immunity specifically recognized as an policy considerations by of fundamental protected basis exception rights to the substantive conditions, See, light with consider- e.g., due provisions. Tennes- modern their given presumption to constitutionali- Open ation Clause at & n. 602. see’s Court’s not, proposition, general University Hospital, did as a violate Arti 98 Condemarin v. I, 432-42; 1989), DeBry, P.2d 348 was the cle section 11. 889 P.2d at first case Madsen, addition, I, at 629. In De address interface between Article determining Bry rights sovereign immunity. standard for established the government activity majority up what is immune and falls That case was decided made I, Zimmerman, Durham, protections. section 11 outside Article Justices and Stew- Clearly, government opinion action was sub art. Durham not all Justice wrote lead ject governmental immunity, gov in which Justice Zimmerman concurred to a large was not would ernment action that immune extent. Zimmerman Justices give liability recovery separate concurring opin- rise to also tort Stewart wrote damages. agreed DeBry, justices 889 P.2d at 436-40. All three See ions. that sover- eign immunity liability limited, for tort was government activity issue in The extent, by rights protected by to some supervision regulation Madsen was the I, Article section 11. Justices Durham and plaintiff financial institutions. Zimmerman, relying process on due and Ar- negli- damages claimed from the state for statutory cap ticle held that gence performing those functions. The $100,000 damages per person limiting was supervision regula- Court held that the unconstitutional an action a state- gov- tion of financial institutions was a “core operated hospital. Stewart Justice also held clearly ernmental that was within function” unconstitutional, cap but relied on the immunity scope governmental doc- operation provision, uniform of the laws Arti- Therefore, trine. there was no of ac- cause holding opera- cle 24. In that the damages negligence. tion for based on And subject tion of a hospital state-owned was not negligent irrespective was so whether immunity, justices majority did not government regulation of financial institu- look common law as existed in 1896. protected by govern- tions been would have immunity damages mental govern- actions for 99 The relationship between Madsen, 631;25 immunity See 658 P.2d at see mental and Article Inst., Department also rights Gillman again Fin. was addressed the Court in a (Utah 1989). short, 782 P.2d 506 the more definitive manner after an extensive analysis nothing had to do days with whether review of Utah case law from territorial negligent there was a cause present DeBry, sustained government supervision governmental immunity respect financial institu- to en- analysis tions in building regulations. on an based forcement of code De- liability Bry analysis assessment of the effect that tort added the Condemarin government operations. would have on focusing concept on the historical of “core *27 ty Immunity provision] accorded the Act. jeopardize Governmental See Kansas courts would DeBry, 889 P.2d at 440. governmental immunity retention of even for governmental functions.” Id. at 1024. That is 25. Madsen relied on Brown v. Wichita State Uni position adopted the same that this Court 2, 8-12, 1015, versity, 219 Kan. 547 P.2d 1022- Madsen, (Utah 1983), 658 P.2d 627 Condemarin (1976), proposition 24 for the sec Article (Utah University 1989), Hospital, v. P.2d 348 775 sovereign immunity, tion 11 does not malee as Noble, (Utah 1995). DeBry and v. P.2d 428 889 such, “open under unconstitutional courts” states, holdings For similar other see Fire- clause. The in Madsen it Court stated that con County, Insurance men’s Co. v. Washburn 2 reasoning curred in “the and result” of Brown. 214, Madsen, (1957) (construing 85 Supreme Wis.2d N.W.2d 840 658 P.2d 629. The Kansas Court guaranteed in Brown made clear that its Wisconsin constitutional similar to Utah's), Columbus, 75, clause its provision, Williams v. 33 Ohio St.2d Utah's, virtually State, which is identical to a sub (1973), N.E.2d 891 v. 294 42, Cords 62 Wis.2d legislative power, stantive limitation on as are a (1974), N.W.2d 405 v. Board Hazlett guaranteed remedy pro number of other states’ Commissioners, 168 Okla. 32 P.2d 940 Brown, visions that are referred in Brown. Department and Lundbeck v. State Supreme P.2d at 1024. The Kansas Court Highways, 95 Idaho P.2d application held that "a [the broad of Section 18 willing functions,” key judges of this to construe determi- Court governmental as immunity. In De- governmental nant of tort as the Framers drafted it the Constitution to sue Salt Bry, plaintiffs asserted plain meaning, or whether —for apply and its ground County negligence on the Lake judges pick can and whatever reason — supervising county agents, in and its that the provisions constitutional we will choose which issuing building regulations and code apply and which we will construe into a negligent- denying building permits, had nullity. plaintiffs. The ly damage to the caused protection person, property, The ground govern- county on the defended reputation by of law is funda- due course immunity. undertook an The Court mental society peaceful to a based on the mental sovereign history of extensive review protection, proper- rule of law. Without that immunity applied. it had and how been concept ty rights can violated at will and the that had be held that central Court functionally govern- historically destroyed. defined capitalism Without foundation of immunity time was that “core mental over loses safe- protection, the individual were immune from governmental functions” ty integrity person of his or her short, immu- liability. governmental In tort reputation. that the The Framers intended nity on “considerations rele- should be based people have constitution- of Utah those basic necessary pro- providing task of vant to the “inter- protections. al Justice Zimmerman’s governmental activities.” tection for essential 11 inconsis- pretation” of Article DeBry, P.2d at 440. But those consider- section; plain language of that tent with the By or fixed as of 1896. ations are not static context of it is inconsistent with the historical been, necessity, they continue and must section; is inconsistent with this be, govern- time somewhat flexible over section; and it is Court’s case law under response change in ment and its role pre- inconsistent with his own statements society. needs and demands vious cases. Parenthetically, it should also has not been hostile to noted that this Court Justice DURHAM 103 Associate Chief appraisal po- undertaking a realistic concurring in Justice concurs STEWART’s liability pro- effect on the need to tential opinion. agencies government from lawsuits that tect ability carry might impair their out then- HOWE, Justice, concurring with Chief addition, has estab- duties. Court reservation: that, apart govern- the doctrine lished govern- immunity, certain mental kinds express a 104 I concur but write to subject liability activities are not ment majori- certain dicta reservation about duty no tort of due care on because there is majority opinion ty opinion. The states part government agency or em- “subject language to” of sub- because of the though government agency ployee, even (5) (4) Code Ann. 78- sections duty public. “general” protect has 12-25.5, always person would have two Borthick, See, e.g., v. 850 P.2d Madsen if it years bring an action was discovered Martinez, (Utah 1993); C.T. or the expiration of the sixth before the State, 1992); 247-48 Ferree v. agree person I that a year. twelfth do not (Utah 1989). Court *28 year in discovering action the fifth a contract for natu- government held entities not liable year in the eleventh would or a tort action Rocky catastrophes, or “acts of God.” See ral years bring action. two to an have City, v. Salt Lake Mountain Stores Thrift (Utah 1994). ¶ My interpretation of the statute is may brought later than the that no action be VI. CONCLUSION year except the action where sixth or twelfth year. ¶ In in the sixth or twelfth is discovered sum, put In is at stake what circumstance, injured person has opinion whether the such a Zimmerman’s Justice years an require additional two from the date of periods repose that the contained discovery yield to an those commence action. No such subsections to the of a (3) person under granted persons always subsection extension is who discover have years bring However, two an action. years once their actions in other than the sixth or (3) it is conceded para- that subsection year. person twelfth It is true that a discov- (4) mount to subsections and then it ering year his action the fifth or eleventh discovery follows that the rule subsection years would have less than a full two (3) paramount would periods also be to the However, commence an action. that is not (4) (5). repose in subsections and This inter- Sturm, Co., In Ruger, unusual. Atwood v. & pretation statute, would eviscerate the essen- (Utah 1992), 823 P.2d 1064 again tially removing periods Howard, Williams v. 970 P.2d 1282 Therefore, are the heart of the statute. 1998), plaintiff we held that a was not enti- my opinion, “subject language to” of sub- tled to bring additional time to his action (4) must be read to mean “notwith- during where he running discovered it standing (3),” subsection since it modifies and the statute of limitations and a reasonable “subject restricts subsection to” time bring remained for him to his action (5) language of subsection must be read to expiration before the of the limitations. The (3) “notwithstanding mean subsection applies injured same rule An person here. (4).” subject to subsection discovering his action in the fifth or eleventh year year would still have more than one ZIMMERMAN, Justice, concurring in the bring it. result: statutory 106 While the language is Although agree I with the result confusing, appears somewhat it to me that majority reached opinion, I disagree 78-12-25.5(3) broadly provides that way with the in which it is reached.1 More provider may be com- specifically, disagree I with reasoning years menced within two discovery from the the opinion to the grounded extent that it is act, error, omission, duty, or breach of upon the article jurisprudence section 11 or when the same should have been discover- having origins in Berry its v. Beech Aircraft through ed diligence.1 reasonable Subsec- (Utah 1985). Corp., 717 P.2d 670 if For we (4) (5) qualify tions and restrict are to remain Berry, true to I think we would (3) broad by provid- subsection have to reverse However, the court below. I ing that no action for breach of contract or today concur in the only result because I warranty may be commenced more than six would Berry. overrule I think operative years completion after improvement, test it sets proven forth has to be unwork- type and no other of action be com- subject able. It manipulation, as to- years menced more than twelve after com- day’s illustrates, decision it leads to absurd However, pletion. discovery when is made in results, distorts relationship our year, the sixth or twelfth respectively, the legislature. Furthermore, Berry’s sub- injured person has an years additional two interpretation stantive of article discovery from the date of to commence an is inconsistent with language history action. provision.2 of that majority interprets the “sub- I if said that we are true to ject (4) (5) language to” of subsections to Berry, we should reverse the court below. I 5, 1997, May 78-12-25.5(3)(a) 1. Effective only my Berry, personally. views on but me years” was amended and "five was substituted my opinion Given that is written on behalf of years.” for "two only one member of this court and that Justice Stewart seems satisfied with the result reached 1. I concur interpretation in Chief Justice Howe's court, by this I find the vehemence of his attack concurring of the statute as opinion. stated in his surprising. may explainable by person- It his allegiance Berry opinion al proge- and its response concurring opinion, *29 to this Justice Peterson, ny. Magelby J. See & J. Justices the Stewart has attacking chosen to write a screed ease, In instant at 193. 782 P.2d Valley Beds In Water explain. Sun will Inc., Son, that than one majority relies on the fact less Utah, Hughes & Herm Inc. v. (Utah 1989), years brought v. Gold after ten percent and Horton of claims are P.2d 188 justify upholding the stat- Daughter, completion to miner’s from 1989), noted, earlier version down the Valley we struck this fact cuts ute. As Sun repose,” 78- section the “builders statute it because undercuts the statute pre Berry logic of those 12-25.5. Under reducing insur- legislative purpose of stated cedents, statute of re present builders costs, percent of claims is since one ance again found to violate be pose should once percent discussed in than the 2.1 much less I, 11. The addition section article Furthermore, “insignificant.” Valley as Sun 78-12-25.5(2), findings in section defending old respect to difficulties majority in relied on findings that are “[wjhile claims, Valley we stated Sun statute, logical furnish a fail to upholding difficulty causes inherent passage of time distinguish the new statute to on which basis lawsuit, equal, any it also causes defending one. from the old initiating just legal difficulty in greater, if not result, reaching the instant action.” Id. In notes, majority legisla- As the therefore, majority may reciting the four in the revised statute ture set forth rubric, departing it is Berry but hardships that result from specific costs explicitly requires without that rubric result liability possi- after the exposing providers to majority can saying fact that so. The highly remote. bility damage has become to follow purporting while reach this result 78-12-25.5(2)(b) Ann. See Utah Code Valley, including Sun progeny, its (i) liability insur- are: (Supp.1998). Those n I Berry many weaknesses. (iii) (ii) costs; shows one costs; storage records ance easily Berry ’s ma- explicitly overrule during would liability risks and unlimited undue propose a new rule that improvement; nipulable test and provider of both a life I, (iv) defending against section properly accords with article difficulties more completion of an many years after claims improvement. First, history. to Ber- a little Prior however, article Valley, ry, we consid- this court had addressed 111 In Sun justifications occasion, never set out almost all of these but had ered uphold to seven- them insufficient determine the found to be used to definitive test example, with year repose. For power statute of legislature’s on the limits it set liability costs and risks respect insurance In existing legal rights or remedies. modify we stated: read article ground new Berry, we broke “open courts” also known as industry protect the statute does not [T]he strong imposing a substantive provision, as significant number of lawsuits since

from a ability limit legislature’s limitation on nationally only percent 2.1 appears it for, or the a cause of action or eliminate subsequent initiated all claims are for, “injury ... ... available remedies anyway.... completion year from seventh Having reputation.” person, property, or claims affected the number of since [Thus] 11 contains article concluded highly insignificant, it is statute are limitation, out an we set a substantive such in- rates are unlikely that lower insurance determining whether analytical model of the ar- extricably to the existence tied an individu- improperly deprived had repose. statute statute of chitects and builders analytical abandoning way its unworkable On Supreme 1896-1996 66 Court event, hand, I do infra, attributable to the note 12. also be model. See the other premise respond the truth of Justice Stew- fact that he sees to most of choose to here: It in the result reached dispas- me to concur leads it to the I leave attacks. art's individual cases, past and it with our is not consistent posi- which of our to determine reader sionate vitality ebbing Berry's to me demonstrates sound. tions is the most majority is well on its of this court and that a *30 “remedy by appear al of a due course of law” for an all originated to have with Sir “injury person, property, gloss chapter done to him his Edward Coke’s 29 of the reputation.” agree Magna or I do not either with Carta. No effort was made scope meaning Berry open of the substantive limitation determine the of the courts I, provision in the found article section 11 or with the historical context of this “injury” state or to analytical define what is an upon model founded it. “person, property reputation.” or See id. at explain position, I 113 To start with 675-80. recapitulation Berry a more detailed Next, There, Berry sought to establish a decision. we considered the constitu- analytical detailed determining model for tionality pair ten-year of a of six- and stat- protections when the pro- substantive repose. utes of To determine whether these so, vision Berry were violated. But to do open provision, statutes violated the courts give explicit operative first had to substan- began analysis I, we an of article section general tive content to purposes it found plain language. interpretation IPs This did I, searching article section 11. In for that systematic not involve a examination of the content, substantive we stated that “[t]he language provision, of the entire courts meaning only of section 11 must be taken not merely phrases but instead fixed on the history plain language, from its but also “remedy by “injury due course law” and from its functional relationship to other con- person, him in property repu- done to his provisions.” stitutional Id. at 675. To that tation.” superficial The result was a inter- end, we noted the similarities between article pretation provisions. See I, I, section 11 and article the due 674-75. process clause.3 ¶ 114 parsing provision Without analysis 117 Based on this limited meaning key phrases, words and we I, the substantive limitations article found that article designed section was place was intended to legislature, on the accomplish primary purposes. three two-part we announced a implement- test for First, “guarantees access to the courts and ing those substantive limitations: judicial procedure that is based on fairness (citations omitted). equality.” Id. at 675 First, section 11 is satisfied if the law Second, “section 11 also establishes that the provides injured person an an effective and framers of the Constitution intended that an remedy “by reasonable alternative due arbitrarily individual could not deprived be course of law” for vindication of his consti- designed protect effective remedies basic tutional interest. provided by The benefit rights.” Finally, individual Id. and most crit- substantially substitute must equal be ically, “guarantee we found that the of access remedy value or other benefit to the to the courthouse was not intended abrogated in providing essentially compa- empty gesture; founders to be an individuals rable protection substantive per- to one’s are also remedy by entitled to a ‘due course son, property, reputation, although injuries ‘person, of law’ for property form of the may substitute be ” reputation.’ Id. different.... declaring general 115 After pur- Second, if there is no substitute or alter- poses of article analyzed we remedy provided, abrogation native “historically.” article Unfortu- justified or cause of action n historical view, nately, my analy- only if there is a clear social or economic noting thirty-seven sis limited to evil to be eliminated and the elimination of states have provisions similar constitutional existing legal remedy is not an arbi- not, however, 3. We did protected by articulate what process interests were not the due clause. protected by were *31 repose impact achieving of would be too small to insur- trary unreasonable means for (v) rates; ance the concern that objective. repose reduce statutes of would incentives to Id. at 680.4 produce products. Berry, 717 safe P.2d at 681-83. applied test to strike then this We repose at issue in that down the statutes of Berry’s policy concern for main- prong analy- Slapping the first case. taining produce financial incentives to safe sis,5 objectives Berry examined the ie., products, liability for tort manufacturers Liability Products Act and determined suppliers, sheds illumination on the ex- repose therein were unreason- the statutes of gave legis- treme lack of deference this court arbitrary able and and did not further findings. Speaking purely lative fact from a statutory objectives. at See id. 681-83. Ber- viewpoint, theoretical without hard em- prong ry’s analysis under the second illus- pirical support evidence to our dissatisfaction very stringent trates that it is a test legislature’s pass decision to gives legislature. Al- little deference to the repose, explained safety statutes of we our though legislature its codified concerns as follows: findings purpose and the of both statutes of repose products [for Utah statute of (1987) §Ann. repose, see Utah Code 78-15-2 liability likely provide claims] less Liability (repealed Products Statute of incentive to to take ade- manufacturers Limitation, 119, 3,§ eh. 1989 Utah Laws quate safety precautions in the manufac- 268), quickly legislature’s dispatched we design products having ture and a useful justifications on the basis of several observa- repose life of than statute of [the more (i) tions, including: arbitrary nature of period], thereby increasing time the al- applied periods the set time which to all ready persons number of substantial who (ii) life; regardless products of their useful injured by shoddy have been or killed de- finding may while there have been our Thus, sign workmanship. the statute products an increase in the liabili- number may counterproductive well be in terms of ty nationally, claims such was not the case public safety. (iii) time; “[p]rod- Utah at that the fact that liability premiums uct insurance for Utah added). (emphasis safety at Id. While manufacturing companies are established on relevant, may incentives be the court’s dis- data, the basis of nationwide not on a manu- gave cussion of them shows that we no defer- (iv) Utah”; experience facturer’s our find- legislature Berry ence to the on this matter. ing products liability that because insurance essentially legislature ei- assumed basis, usually provided safety on an “occurrence” ther had not considered this obvious wrongly it and con- the number claims barred the statutes issue had considered justify imposing quid pro quo police power. 4. To the first test a state’s In the context of this his- acts, requirement legislature, on the this court seized challenge torical to such court in Ma- this passage upon a brief in Masich v. United States legislature "[i]f sich stated that were to abol- Co., 101, Smelting, Refining Mining & compensation rights all and all ish common law 612, dismissed, 866, appeal P.2d 335 U.S. negligence employer, of an no contention 138, Berry S.Ct. 93 L.Ed. 411 See at 680. reasonably proper it was a could made that Masich, however, passage did This not con- police power.” 113 Utah at exercise of Instead, analysis. cern article section 11 Irrespective questionable P.2d at 624. discussing court in Masich was whether support provides requiring a that Masich Compensation Workmen's Act was valid exer- pro analysis quid quo under article 123-25, police power. cise of 113 Utah at Berry imposed requirement on the Historically, compensa- workmen's abrogated remedy or common law cause of if it challenged being beyond legis- tion acts were action. power latures’ constitutional to enact. See 113 challenge Utah at 191 P.2d at 624. This Berry's prong failure to address the first YorkCentral Rail- such acts was resolved New likely White, due to the fact that no framework S.Ct. road 243 U.S. upheld compulsory substitute was evident from statute. L.Ed. 667 Thus, compensation Berry merely act failed to state the obvious. workmen's basis of ten-year procedural, statutes of article eluded that the six- not sub- enough present great did not risks stantive. public prevent their enact- interest 121 The test suffers from two view, Although leg- ment. the court’s First, failings. fundamental never stating islature have erred the bal- clearly question precisely dealt with the safety ance between the risks and the benefit *32 open provision pro- interests the what courts industry repose, nothing from a statute of Berry simply right tected. assumed that the I, upon in article section bestows injury by product for an recover caused a second-guess court the unfettered protection fell within the of the provision and matter; legislature nothing on such a analyze validity legis- moved on to provision that eliminates the traditional def- Second, attempt right. lature’s to limit that give legislature erence we when it prong Berry prov- the second test policy judgments. makes and fact Yet we application en to be such a standard in strict gave Relying it no deference. almost exclu- satisfied, rarely that it can depriving be thus sively upon law review notes and cases from legislature discretion in the area. jurisdictions dismissing legisla- other failings I address these in turn. justifications, simply ture’s we re-found the legislative differently opined facts First, Berry identify did not people “injured more would now be or killed I, protected by interests article 11. section by design workmanship.” See id. at 681- “every person, That states that for 83. person, him in property done to his reputation, remedy by shall have due recognize I that we should not Const, I, § course of law.” Utah art. lightly prior overrule our cases. See State v. Berry interpretation, claimed that under its Menzies, (Utah 1994). 398-400 process “neither the open due nor the courts why The burden is on me to demonstrate provision constitutionalizes the common law step necessary. open As the sole governing or otherwise pri- freezes the law today dissenter from our continued adher- rights vate and remedies as of the time of scheme, Berry’s analytic ence to and as one Indeed, Berry, statehood.” 717 P.2d at 676. attempted who heretofore has to make it Berry recognized important that “one of the case, recognize work in case after I that I Legislature change functions is to carry heavy particularly burden.6 But I modify governs the law that relations finally be- have past become convinced that the society tween individuals as evolves and con- years Berry regime fourteen under the However, require.” ditions Id. because of operative shown that decision’s test to be Berry n failure to articulate a test for deeply deter- flawed in formulation its and articula- mining rights protected, tion. courts importantly, thorough parsing More I, implementing Berry of article over time resorted sub demonstrates to me Berry incorrectly silentio to the common law as concluded that declared decisions, provision provides very courts this court in specific its either as it existed presently, legislature. substantive limitations on the I 1896 or as the definition of the shortcomings protected rights.7 will first address the article Ber- n ry analytical consequence adopting model in order to better ex- this court’s common plain why varied, protections the constitutional depending upon particular below, something focusing Justice Stewart finds troublesome in 7. As I discuss on the common following the fact that I now state that I erred thereby constitutionalizing law and the common Berry years. suggests by calling over the He Berry’s law was an inevitable result conclu- overturning Berry, displaying for the I am provision imposed sion that the sub- judicial temperament. flawed sponse, See 38. In re- legislature. stantive limitations on the reject any judge’s duty I formulation of a precludes rethinking him or her from issues light experience admitting past and from mistakes. n 63-30-10, prog- excepted limitation at issue. such activi- general immunity ties from the categories: waiver of eny into two those can be divided injuries by negligence, caused did not run involving expansion governmental cases afoul of article section 11. immunity concerning limitations on and those of action. To- any other common law cause ¶ 124 Absurd results can occur when the gether, two lines of cases have shown these existence of an action at common law at the that whatever the laudable motivation under- time of statehood is used as the litmus test it, analytical un- lying model is determining whether an article workable, analyses leads to strained 11 right example, is involved. For while no results, quixotic relationship and distorts the right of action existed at common law to sue I between the and the courts. negligence the state for in maintenance of address these two lines of cases turn. roads, public McCorvey, 868 P.2d at *33 right of action existed at common law to sue 11123 The first of these lines of cases city negligence in public maintenance of immunity. governmental concerns this City, roads. See Bowen v. Riverton 656 P.2d n context, despite Berry disclaimer that arti 434, (Utah 1982); City, Bills v. Salt Lake I, section 11 does not constitutionalize the cle 507, 512-15, 745, 37 Utah 109 P. 746-47 statehood, common law as it existed at (Utah 1910). policy No coherent ex- reason cold fact is that whether a cause of action distinguishing ists for between the individual existed in 1896 has become the determinative injured city on a state road within limits and factor for whether article 11 is injured city Yet, the individual on a road. transgressed by govern the enactment of history development this accident of in the of immunity. example, mental For in McCor the common law at statehood is outcome vey Department Transporta v. Utah State of Berry. determinative under tion, (Utah 1993), 41, 868 P.2d 47-48 we example difficulty 125 Another 63-30-34(1), impos found that section which using the common law at statehood as the cap damages gov on es a recoverable from determining test for whether a constitutional entities, ernmental did not violate article State, right Day v. exists is 882 P.2d 1150 case, under the facts of that be cert, (Utah Ct.App.1994), granted, 892 P.2d cause at common law there was no (Utah 1995). Day, with facts somewhat injuries resulting recover from the state for case, analogous to this involved an automo- paaintenanee public negligent from the plaintiff po- bile accident between the and a Noble, Similarly, DeBry roads. v. closely pursued by high- suspect being lice (Utah 1995) 428, (citing Madsen v. way patrol id. at The officer. See 1151-52. Borthick, 627, 1983)), 658 P.2d we by fleeing suspect plaintiff was struck scope protections reiterated that “the suspect through light. when the ran a red by afforded article 11 had to be Section plaintiff brought suit See id. at 1152. light viewed of the immunities that were Highway Patrol and the Utah recognized when the was Utah Constitution case, trooper individual involved but adopted.”8 DeBry proceeded then to deter granted summary judgment the trial court inspection buildings mine that the and the for the defendants on the basis of section 63- temporary occupancy permits issuance of 30-7(2) (re- (Supp.1990) Code Utah government immune activities were 10, pealed by Act of Feb. eh. liability legal regime that from under the 230, 233), provided Laws Utah Therefore, the time of immunity existed at statehood. to both defendants under the facts we concluded that subsections 3 and of of that case. id. See DeBry discussing our current Whether le- Justice Stewart some time spends predicament. gitimately whether Madsen Madsen is irrelevant. reverence for the relied expresses DeBry criticizing as of statehood and me for mischarac- is that did demonstrate concern that point governmental that case. Whether or not Madsen cared terizing be measured stan- immunity me, about the law at statehood does not concern dards that were reflective of its dimensions Berry, since Madsen starting statehood. precedes point controversies and the grant of the fit between current whether that 126 To determine imprecise law at statehood is so immunity under common was constitutional appeals first deter- of the common law at analysis, the court because the state determine, of action existed at given a cause mined whether statehood is so difficult to case. In so the facts of that paucity prestatehood statehood under the relative decisions appeals doing, was reduced court, the court the 1896 common law standard searching near the turn of the for cases subject manipulation. Compare v. Ross involving pursuit by a law en- century hot (Utah 1996) Schackel, 1162-65 fleeing suspect, pre- officer of a forcement (majority relying upon to conclude that Garff horse, bicycle, sumably on foot or prison provision medical services doctor’s Finding buggy. id. at 1157-58. no cases See prisoners discretionary at statehood issue, appeals stated the on this the court that, therefore, of action existed no cause harm at “Certainly the likelihood of obvious: care) negligent provision at statehood for century by- to an innocent the turn (Stewart, Assoc.C.J., with id. at 1171 dissent- considerably pursuit stander was less ing) (relying Capwell, on Richardson compared high speed by horseback as 176 P. 205 which held that high- congested streets and automobiles on jailers may negligence in be held liable for added). ways.” (emphasis Id. at Ulti- prisoners, failing provide food to to con- mately, appeals court of was forced to that medical care is ministerial and clude *34 rely involving deputy sheep on a case state that, therefore, prison doctors were liable at director, allegedly negligently im- who had negligence). enig- Due to the statehood quarantine, posed a to determine whether regarding matic condition of the common law under the cause of action would have existed particular whether a act was ministerial or (finding at id. common law statehood. See statehood, discretionary at creates in- Smith, 86 P. 772 Garffv. judges centives for to determine the constitu- that cause of action necessitated conclusion tionality of a statute on the basis of whether not lie at common law under facts of would law rather than an action existed common conclusion, appeals Day). the court of n due test, by Berry process balancing be- admitted: “Our determination of common made, cause once this initial decision is existing law remedies at or near the time of constitutionality effectively of the statute has simply statehood is our best assessment of Compare been determined.9 id. at 1166 during that would have what a court era (stating because no cause of action exist- if ruled the issue had arisen.” Id. statehood, immunity ed at statute is constitu- tional) (Stewart, Assoc.C.J., with id. at 1176 Day provides example a clear (finding dissenting) that cause of action exist- in why Berry proven to unworkable has be declaring, without ed at statehood and then immunity. governmental the area of Courts immunity analysis, is therefore statute required engage analytical wild deprives [plain- unconstitutional “because it goose law cases that are chase for common remedy by course of law for an tiff] of a due modern-day controversy. point with a prob- person”). to his These [or her] increasing complexity society mul- has place lems alone a cloud of doubt over today tiplied variety brought of cases validity post -Berry of the line of cases on compared to 1896. This variance the fact immunity, effectively governmental ex- patterns presented contemporary cases questionable legal archeology alt the fruits compared places to those at statehood legislature mod- over the decisions of the position trying in the to force awkward judicially governmental ernize the created pigeon by the current cases into holes crafted Furthermore, immunity law. common law of because triggered. problems explained discussing Berry Beny I test Additional As above when contained in flowing and the extreme lack of deference test are from the strictness of test, prong the second of its a statute is almost explored greater detail below. certain to be unconstitutional once the declared Turning post-Rem/ constitution, next to the line law into the has exalted the dealing gov- judge-made with other than common of cases issues law—the law that is at immunity, law-making I pecking ernmental note that the common bottom or- top, beyond legislature’s der —to the played significant at statehood ef- law less Thus, placed fective reach. this court is role. These cases therefore avoid the diffi- position gatekeeper any effort of the culty finding that the constitution deems legislature any to restrict common law cause sacred the common law as it existed at state- action, no matter when created. Absent However, hood. these cases suffer from finding our legislature has offered a analytical their own infirmities. justification with, that we are satisfied focusing exclusively 129 Instead of on cannot so act.10 the common these cases state gatekeeper 130 This role is in tension legislature judi- any that the cannot restrict separation traditional notions of the action, cially created cause of no matter when powers V, doctrine. Article section 1 of the created, legislature unless the can show that provides: Utah Constitution provided it has an alternative or that there is clear social or economic need powers government Berry, the restriction. See 717 P.2d at 680 State of Utah shall be divided into three (“[Abrogation or cause of departments, distinct Legislative, justified only if there a clear Judicial; Executive and the person and no social economic evil to be eliminated and charged powers prop- with the exercise of existing legal remedy the elimination of an erly belonging to depart- one of these arbitrary not an or unreasonable means for ments, apper- shall exercise functions objective.” added)); achieving (emphasis taining others, to either of except see also Wright, Cruz v. expressly permit- cases herein directed or 1988) (determining whether ted. *35 sufficiently strong justifications had for abol- Const, V, VI, § Utah art. 1. Article ishing common law loss-of-consortium cause Legislative power adds: “The of the State action). result, Berry of As a has distorted shall be ... [i]n vested a Senate and House relationship legislature between the Representatives designated of which shall be charge the courts when it comes to who inis ” Legislature of the State of Utah.... making of the law. Under orthodox notions Const, VI, § Utah art. law, priority, of by judges the common made alone, can superseded by any be modified or 131 scope We delineated the of these legislative act. See 15A Am.Jur.2d Richards, Common provisions in Ritchie v. 14 Utah (1976). § Lato 345, A act 363, 670, can be 47 P. where we only struck down if it conflicts with a consti- power stated: “The to declare what the law provision. tutional See 16 Am.Jur.2d legislative. Consti- power shall be is The to declare (1979). 3, 70, §§ tutional Law But Ber- judicial.” Furthermore, what is the law is ry, by importing the device of the common we in City Light noted Salt Lake v. Utah & Berry Richards, 345, permits legislature 363, to create new See Ritchie v. 14 Utah 47 P. scope governmen- 670, Yet, causes of (1896). action or limit the similarly court this is not immunity, legislature may tal but the not cut development constrained in its of the common any meeting back on cause of action without permitted law. This court has itself the very high by threshold set this court’s test. away meeting do with causes of action without DeBry, As we stated in "the restriction or aboli- Brown, stringent Berry test. See Jackson immunity tion of an raises no constitutional issue (Utah 1995) (abolishing under article section 11 because a restriction promise marry for breach without conduct- enhance, only an or minish, abolition serves not di- ing Berry analysis though even this court had rights protected by provision.” action); previously recognized such an Norton v. 436; Ross, 889 P.2d at see also 920 P.2d at 1169 (Utah 1991) (find- Macfarlane, 818 P.2d 16-17 (Stewart, Assoc.C.J., dissenting). & n. 4 This ing nothing Berry opposes in the abolition of one-way analysis legislative changes street action”). "obsolete causes severely legisla- the common law curtails the ability ture's to "declare what the law shall be.” However, n. 3. little reason exists 11 does P.2d that article

Traction Co. thinking held the com- usurp drafters court to “reach out not allow this early high regard. mon law such independent belong to another powers which hostile to the Mormon settlers of Utah were govern- the state branch of and co-ordinate law, lawyers, and courts. As a re- common 173 P. ment.” 52 Utah sult, relatively reported few cases there (1918). principles of Though general fifty years in the almost between in Utah require us to separation powers do private Most con- settlement statehood. 11 to retreat from interpret article dealt with Mormon troversies were either analysis legislative enact- constitutional informally ecclesiastical courts or mediated above, ments, has, distorted as I noted B. Fir- through local means. See Edwin legislature and relationship between mage, Religion and the Law: The Mormon effectively constitutionalizing judiciary Century, 12 Experience in the Nineteenth by very determine it as we the common law (1991). 765, 788, L.Rev. Cardozo legislature, hindsight. The not this opaque hostility perhaps the common law is toward court, charged making the primarily early an territorial best illustrated degree to which the law determination of law, actively repudiated law that the common injury. a determina- recognize will Such stating: policy choices best left tion involves the social acting through of this state to the citizens read, part nor of laws shall be [N]o laws separation of legislators.11 This court, their elected cited, any argued, adopted in or troubling post- in the powers trial, conflict is most any during except those enacted dealing with issues other Berry line cases Legislative Assembly the Governor and immunity, governmental because this Territory, passed by than and those develop the common Congress appli- when court can continue of the United States decision, cable; doings by eliminating creating report, common and no law either read, cited, action, any argued, court shall but law causes adopted precedent other trial. modify only a common law ac- eliminate or created, tion, legisla- if the no matter when LXIV, Laws, Territory ch. of Utah showing required ture can meet difficult states, Additionally, many unlike However, governmental Berry. under provision in Utah does not have a its consti- immunity creates tension line of cases also adopts tution that the common law as the doctrine, powers be- separation under the rule courts. The common of decision its cases, legislature’s ability cause those *36 adopted in law was not as the rule of decision immunity expand governmental is shack- 1898, until when the Utah courts as it judge-created led common law adopting enacted a statute the common law. existed Utah, 1898, 2 ch. title See Revised Statutes 65, (currently § 2488 codified at Utah Code in the historical con- viewed When 68-3-1). qualifies §Ann. Even that statute state, validity text of both lines of of this adoption, stating: the common law dubious. The post-Berry cases is at the time said that “the common law England court The common law of so far as it with, provides to, at least measure repugnant of statehood or in was not conflict legal rights that the framers the kinds of the constitution or laws of the United States, protection laws of this must have had mind for or the constitution or state, only life, and so far as it is consistent property, reputation.” Berry, illustration, party easily By way example can more bear the economic burden take for injury? nonnegligent injures the members of motorist The decision situation where regarding pedestrian. pedestrian's court these issues should not Whether unquestionably being infallible that legally cognizable so- viewed as so should be involves difficult state, through people acting their necessary of this cial How are automobiles decisions. liability question legislature, traveling cannot resolve the in this How does this need state? differently pedestrians? we. What than balance the risks to years adapted physi- adoption, to the natural and after the constitution’s focus- exclusively procedural guarantee cal conditions of this state and the necessi- es on the hereof, I, hereby people give article section 11: ties Courts adopted, process existing rights by providing and shall be the rule of decision due remedies, legislature pos- in all courts of this state. established but the power rights sesses the to determine what §Ann. 68-3-1 An inter- Utah Code are enforceable and to establish remedies. I, pretation of article constitu- law, Later, Masich, 124, tionalizing 1896 the common at 113 Utah 624, qualifiedly was not even made the law of the 191 P.2d at we stated the well-settled 1898, legal principle state until is inconsistent with this his- right that “no one has a vested tory. Proceeding rule of law.” from this statement, statutory we noted that “both n constitution- Furthermore, Berry rights rights and common law can be taken alization of the common law inconsistent otherwise, away[;] question can there be no pr ju e-Berry e-Berry with our case law. Pr seduction, that acts which abolish actions for I, risprudence on article focuses on promise, conversation, breach of criminal procedural guarantee provision, affections, alienation of would be unconstitu- protection. not on substantive Both Salt 124-25,191 tional.” 113 Utah P.2d at 624. Co., City Light Lake v. Utah & Traction Wolfe, speaking directly ques- Justice 210, (1918), 173 P. and Brown legislature’s power tion of change 31, Wightman, 47 Utah 151 P. 366 law, common wrote: procedural interpretation reflect a of article I do not understand that Article Co., Sec. Light section 11. In Utah & Traction Utah, prohibits of the Constitution of 11 “applies we stated that article the modification or even the entire removal only judicial questions.” 52 Utah at right by or destruction of a common law 173 P. at 563. This statement indicates that legislative enactment. There is still such a only inju concerns thing absque injuria [damage as damnum and, recognized by ries and remedies legal right].... without the violation of a therefore, provide does not substantive limi why I see no reason the common law which legislature, tations on the but instead is recognized rights, duties and liabilities to procedural guarantee. interpretation This period meet the conditions of a certain Brovm, apparent even more where we modify not later recede from those or stated, given “Where no of action is ... people if require them the needs of the exists, or no under either the com that. statute, [open provi mon law or some courts] create sions none.” 47 Utah at 151 P. at (Wolfe, J., 113 Utah at 191 P.2d at 626 367; Borthick, see also Madsen v. concurring). light history, Berry of this (Utah 1983) (“Article I, § 11 ... was progeny’s operative and its almost casual not meant to a new create or a new placement pedestal of the common law on a action”).

right Elaborating point, on this quite incongruous. the Brovm court added: Berry’s 135 I next move on to consider power, duty, as well as the major problem failing: second the ex- remedies, creating rights provide and to in application treme strictness of the second Legislature, lies with with the prong applied formulated and of its test. As only protect courts. Courts can and en- court, by prong Berry this the second of the existing rights, they may force do analysis, requires legislature which only in accordance with established and justify by showing its limitation that “there is known remedies. a clear economic evil to eliminat- social or passage existing legal 47 Utah at 151 P. at 367. This ed and the elimination of an Brown, twenty arbitrary from a case decided less than is not an or unreasonable (same); Berry, 717 P.2d at objective,” 782 P.2d at 194 achieving the has means liability (striking products statutes beyond down common law placed the courts’ justices, in Additionally, repose). several Berry, 717 P.2d at 680 legislature’s reach. myself, upon Berry Horton, cluding have relied (citations omitted); P.2d see also they particular statutes would find justifica- state dismissing (summarily at 1094-95 Ross, 920 P.2d at 1168 unconstitutional. See statute of and builders tions for architects (Stewart, C.J., joined dissenting, by (same); Assoc. at 193 Valley, 782 P.2d repose); Sun J.) Durham, (arguing that section 63-30-4 is (relying at 681-83 on law Berry, 717 P.2d I, 11); under article unconstitutional jurisdic- eases from other review notes and (Utah DeLand, 732, 744-45 Bott v. 922 P.2d justifications products tions to dismiss 1996) C.J., (Stewart, dissenting, Assoc. impedi- liability repose). Such statutes of J.) Durham, (same); joined by Gaufin, Lee v. of the common ment to modifications (Utah 1993) (Zimmer 867 P.2d 590-92 separation powers prob- exacerbates result, man, J., joined concurring by in the Berry’s lem with constitutionalization C.J.) Hall, (relying Berry to strike down on law, legisla- with the is inconsistent common repose); malpractice medical statute remedying role in de- ture’s constitutional University Hosp., 775 P.2d Condemarin law, particularly in the common and is fects 1989) (divided (Utah striking court down given position of the common law ironic damage cap either courts or on basis of hierarchy of laws and the fact in the normal operation); v. Til uniform also see. Crawford that the common law is the rule of decision (inter (Utah 1989) ley, by virtue of the 1898 all courts of this state preting Liability Act in manner Landowner adopt legislative the common law decision I, that avoided conflict with article by Utah Code Ann. 68-3-1 statute. See 11). today, only Before one occasion have justifi we been satisfied with problem the severe 136 The with strict- limiting any law cause of cation for common perhaps Berry test better ness by action created this court. See Cruz v. history article light understood (Utah 1988) (up Wright, 765 P.2d jurisprudence in this state. Since Act, holding 1898 Married Woman’s issued, experienced Berry was we common law action for abolished husband’s arguing proliferation in the of cases number consortium, perfunctory Berry loss of under abridged article analysis).12 significance of the Cruz years During eighty-nine section 11. holding length extreme is diminished Berry, once found an act prior we never passage of time since the of the 1898 Married article section 11. unconstitutional under Act, by of an Woman’s the dubious existence onward, years past Berry In the twelve action for loss of consortium Utah common striking we have issued three cases down law, prior the fact that two cases of interfering causes of action court, earlier, statutes as with only year one decided one legis- insulated from that we concluded were problem had not found constitutional tampering strong showing lative absent with the Act. See v. Utah Power & Hackford (Utah Horton, Co., necessity. 785 P.2d at 1096 1286-87 Light See Proctor, 1987); Tjas v. 591 P.2d 438 (striking down architects and builders statute 1979). unconstitutional); Valley, as Sun earlier, decision, signifi- significantly prior appli- Today's from our cases in its as I noted so test, only easily Berry prong cant insofar it shows how of the second cation balancing manipulated. test can be To- today's ruling may that some members indicate day it is used in a manner inconsistent with uneasy Berry's legacy of of this court are Valley. Today progeny, particularly and its Sun temper judicial supremacy sub *38 and wish upholds legislative produces a result that the test silentio, Berry applied. modifying is how The giving up without this court’s claim of action authority course, view, my to be candid and better is legislative to strike another ac- down Beny outright. overrule spirit moves us. tion if today's possible is But it is that decision also departs significant way. Because it in another legal I up further note scholars court has set itself as the final factual writing provisions legitimacy courts have ob- arbiter of legislative of pur- n problems approach poses justify served the attempts change used to targeted law, it granting for criticism. One decisional absolutely no defer- particularly Berry’s legislature scholar was critical of judge ence to the as a of the need legislature, lack writing: modify of deference to the that decisional law. This result acceptable would be if interpretation an Berry opinion typical The of the activ- plain language of article provision against ist use of the remedies supported history it or if the of this state products liability repose. statutes of The suggested ambiguous language ques- standard review the statute in interpreted should be to achieve this result. extremely tion is strict. The court looked However, neither is the cáse. legislative objec- no further than the stated It did plausi- tives. not consider additional plain language 139 The of article sec- possible justifications ble or even such as tion 11 does not mandate a substantive inter- efficiency need for administrative pretation that constitutionalizes the common adjustment the need for an to the substan- provision law. That states: products liability. tive law of A statute of open, All courts be every per- shall could, repose example, thought son, injury done to him in his products liability return origins its person, property reputation, or shall have warranty addition, law. the decision law, remedy by due course which shall put here the burden on the statute to be a be administered without denial or unnec- rational correcting means of a clear social essary delay; person and no shall be or economic evil. When the court found barred prosecuting defending from or be- plausible arguments questioning the effica- State, by fore tribunal in this himself cy reducing of statutes of counsel, any civil cause to which he is a insurance, product liability cost of the law party. unconstitutional in the absence found Const, compelling evidence that it would have added). (emphasis art. legislative the desired emphasized language The is central to effect. under- standing scope protection afforded Bauman, John H. Remedies Provisions in the context of Proper State Constitutions and the Role of immunity damage caps. statutes and Courts, the State Wake Forest L.Rev. emphasized portion contains four interrelated (1991) added) (footnotes (emphasis omit (i) (ii) phrases: “All open,” courts shall be ted). express These scholars also concern “every person, injury for an done to him in Berry usurps legislature’s power (iii) person, property his reputation,” Schuman, Right make laws. See David remedy by law,” “shall have due course of Remedy, Temp. 1197, 1215-16, to a L.Rev. (iv) “which shall be administered without (1992) (stating approaches 1217-18 like unnecessary denial delay.” The last Berry “permit legisla courts to act like phrase, requiring the courts to administer tures”). By constitutionalizing our most re person’s right remedy by ato due course pronouncements law, cent on the common law “without unnecessary delay,” denial or Berry effectively “placets] [this court’s] view plainly procedural guarantee, directing public policy before that of the provide process courts to due of law declare[s] inviolable.” See John H. unnecessary delay. without denial or See id. Bauman, supra, at 283. added). (emphasis The command “[a]ll ¶ 138 The problems net result of the two open” procedural courts shall be also progeny right: and its pro- been that this The courts shall be available to court’s decisional law in legal injuries. the tort area has vide remedies for This leaves constitutionally protect- become phrases, enshrined as single the two here stated as a ed phrase, “every modification and person, for an done to *39 1236 a limita- provision place to substantive reputation courts property or person,

him in his ability change the law,” legislature’s as tion on the remedy by due course of shall have “injury.” regarding constitutes an law what justifications for a substan- only possible change was on the constitutionalizing Berry's Because focus interpretation tive effectively legislature, Berry enacted next address the I therefore common law. injury” any injury “legal as that is or defined phrases. meaning of these point in this state’s recognized at some was. ¶ any notion I from the start 140 dismiss history supported a cause of as an remedy guarantee a phrases two these Though Berry tried to avoid consti- action. simply does not every injury. The law law, 717 P.2d at tutionalizing the common see every harm should be recognize that suffered 676, was an inevitable conse- this result principle abs- damnum compensated. n substantive interpretation quence Berry damage with- injuria, that there can be que open provision. courts legal right, is too well the violation of a out give ¶ jurisprudence to such in our By established 11 a giving article the obscure interpretation to expansive an interpretation, Berry left substantive provision. open courts See phrasing of the need to find some baseline courts with the 50, Co., 2d 28 Utah Demman Star against judge legislative alterations Homes, 1378, (1972); Taylor v. United legislature Only when the of the law. 140, Inc., P.2d 2d Utah changes thereby deprives per- the law and Norton, (1968); 123 Utah Tiller v. re- of a that could have been son Inc., Cab, (1953); v. Blue P.2d Gibbs change an article prior ceived does A question question Utah arise. The analysis required to un- thoughtful more is legislature cases becomes whether such phrases. For the sake of derstand these justify change from the earlier state can clarity, phrase each analytical I will examine judge-made the law. Because common separately. prior legislatively made statu- law existed law, tory the common is the baseline meaning of the 141 I first consider the changes in the law must which such “every injury done to phrase person, for an eventually judged. property reputation,” person, him in his injury, open provi- such an Interpreting because until there has been courts protection par- arise. To under- issue does not sion to contain substantive action, thereby meaning phrase, one must ticular causes of constitution- of this stand law, “injury.” alizing made what an Unfortunate- the common is absurd determine “injury” ambiguous, the fact that is a state that has ly, word statehood, any history, prior abjuring provision provide open courts does “injury.” entirely. interpretation is meaning of I common law This guidance as to the law, pre-Berry already rejected interpreting “injury” also inconsistent with our case above, which, pro- property, I focused on the person, harm as noted to mean provi- therefore, “injury” guarantee open courts reputation; must have a cedural n inconsistency Berry in- so- sion. Given the more restrictive definition. obvious “injury” any “legal terpretation of the lution define is to history, words, “injury” interpretation is injury.” this a substantive In other greater reputation into even doubt because of person, property, harm cast separation it creates under the support tension will a cause of action. V, article 1 of the powers doctrine of “injury” interpretation 142 This is to Utah Constitution. interpreta- ’s point consistent with above, has, distort- However, Berry my 145 All this as noted diverge I tion. ordinarily inju- relationship that would be determining “legal ed the what is method thought to obtain between ry.” Berry interpreting the erred

1237 denying entirely ture judiciary respecting common law causes and the courts from the any remedy legal ordinary right. for a Any shift all the Noonan v. of action. such Cf. Portland, City assumptions charge of what 161 Or. 88 P.2d about who is (1938) (“The legislature 822 cannot ... realistically thought im- abol functions cannot I, remedy recognize ish and at the same time vague generalization of article plicit the Second, right.”). pro the existence of a the by 11. I conclude that erred section merely vision does not state “shall have rem reading such a fundamental shift the rela- edy” provides but instead “shall have language tionship into the malleable of article Const, by I, due course law.” Utah art. I, section added). § (emphasis This serves to cast n ¶ rejected Having reading remedy guarantee procedural light. the in a I, article it is incumbent on me to subsequent phrase “which shall be ad interpretation, offer an alternative one that unnecessary ministered without denial or de provision addresses the need to make the lay” procedural emphasis. reinforces this meaningful and consistent with related con- injuries suffering legal See id. Parties shall First, provisions. stitutional to determine remedy according have to the dictates of the “injury” person, property, whether an governing substantive law their action. occurred, reputation has we should look to procedural interpretation 149 This the statutes and common law existence at remedy guarantee by is bolstered the Thus, the time of the accrual of the claim. I procedural injury nature of the clause and open provision would find that courts I, early jurisprudence. our article permits to abolish or limit First, support provided by as to the statutory both and common law causes of clause, injury interpreting I note that action. remedy guarantee to contain substantive lim- Having resolved how to define “in- legislature’s ability itations on the limit jury,” meaning I next would determine given would remedies be anomalous the fact phrase remedy by “shall have due course legislature possesses greater of law.” As was the case with the term Second, power to abolish the cause of action. “injury,” open provision courts does not eases, regarding pre-Berry our these cases any guidance provide precise as to the mean- only legislature’s power deferred not ing “remedy.” “remedy” But the term rights, legislature’s to create but also to the greater experience one that the have courts power example, For establish remedies. applying. “remedy” A means “[t]he the court in Brown stated: right which a is enforced or the violation of a right power, duty, as well redressed, prevented, compensat- remedies, creating rights provide and to (6th Dictionary ed.” Black’s Law Legislature, lies with the and not with the ed.1990). Though “remedy” what a we know only protect courts. Courts can and en- is, demarcating we still face the task existing rights, they may force do scope remedy guarantee. only in accordance with established and task, initially Turning to this I note known remedies. open provision provides that the courts scant 34, 151 Wightman, Brown v. 47 Utah at P. indication as to the extent of the reasons, these I conclude that the For so, guarantee. dissecting language Even provi remedy guarantee courts provision, profitable two substantive, provides procedural, sion First, clues are found. states rights. “every person, for an done to him reputation person, property recognize in his shall I that this conclusion is Const, remedy.” my art. prior opinions in Lee v. inconsistent added). Thus, 590-92; (emphasis plain language Gaufin, P.2d at Horton v. Gold (Zimmer- prohibits legisla- Daughter, at 1096 of article miner’s provisions, other constitutional is limited man, J., concurring); and Condemarin (due including process article at 366-69 Hospital, 775 P.2d University *41 clause); clause); I, (takings 22 article section (Zimmerman, J., concurring part). in How- (uniform I, operation); article section ever, applied the test as this court XVI, (wrongful death ac- article cases, prob- increasing in number DeLand, tions). See, e.g., v. 922 P.2d Bott apparent become more Berry have lems with 1996) 732, statutory (striking down opinion me, that prompting this review of to I, 9); damages article section cap on under I, analysis 11. As this section and article (Utah 1993) 572, Gaufin, Lee v. 867 P.2d closely demonstrates, attempt to Berry, in its under article (striking down statute legislation, led to the con- tort reform review 24). Furthermore, I, legislature section law and to of the common stitutionalization make that it cannot is also constrained scrutiny legislation. too-close rights. That affecting vested modifications today Ber- Although depart I from vests, is, right an action once the to arti- interpretation of ry and its substantive legislature is not free to thereafter eliminate I, there are other I believe cle section of action. As we stated Sun the cause legislature prevent the adequate grounds to Valley: ability unreasonably limiting the from “[Ojnce particu- under a a cause of action injuries recover for to citizens of this state to person accrues to a lar rule law But, having property, reputation. person, rights, per- of an to his virtue largely that, acknowledge that I would I said action and the son’s interest the cause of an area of substantive withdraw from legal a law which is the basis for legisla- field in the hands of and leave the vested, legislative repeal becomes misgivings I have about ture. Whatever constitutionally divest the the law cannot decision, potential consequences of injured person right litigate operate on the court cannot continue to judgment.” cause of action to a ensur- alone are entrusted with basis that we fairly. ing violations are dealt that tort (quoting Berry, 717 P.2d at 782 P.2d at 192 legitimately the shoul- That rests on burden 676); Payne Myers, see also Furthermore, my legislature. ders of the (Utah 1987). exception I that this note jurisdictions interpret their review ability change legislature’s the law provisions procedurally reveals open courts Schuman, nearly See David su- universal. legislatures in those states have not that the pra, at 1206. law causes of ac- declared war on common procedural protection afforded 153 The provisions remedies tion. Commentators I, empty. not I article section See, e.g., observation. have made the same prohibits that it both the courts and conclude (“[F]ew Bauman, supra, at 276 com- H. John closing from the doors of the have ever been mon law causes of action any person legal right courts to who has Thus, outright.”). I trust that the abolished Applying open provi- courts vindicate. responsi- legislature would bear its burden procedural legisla- on the sion’s limitations bly. pre-Berry eases. ture is consistent with our summarize, 152 To I conclude that the early these cases concentrated on While procedural guaran- I, open provision courts is a requirements of article procedural provision II, being tee. courts does they provision Because not limit that did place legis- provide substantive limitations on due a mere mandate to the courts lature, legislature may Savings eliminate a cause In- process. Union & Court, stated, action, narrow the factual circumstances District we vestment Co. v. merely a reiteration give particular 11] rise to cause of “[Article that will action, pre-existing [that common-law or limit the remedies available for course, pre- power open] with a limitation legal injury. courts must be Of any way venting Legislature changes in the law legislature to make such from impairing curtailing right.” because the does added). (1914) (emphasis legislature’s power not limit the 140 P. to eliminate action, ¶. common law causes of and the statute Similarly, Wightman the court in Brown does not otherwise run afoul of article “plac[ed] stated article section 11. upon Legislature prevent limitation government

that branch of the state closing against any the doors of the courts person legal right who has a which is en-

forceable accordance with some known *42 remedy.” 47 Utah at 151 P. at 366-67 added). (emphasis These statements from Savings Union & Investment Co. Brown I, concentrate on article section IPs com- open,” mand that “[a]ll courts must be impose legislature. this command limit the 1999 UT 23 Though legislature this limitation on the CORPORATION, S.W. ENERGY interpretation inconsistent with the that rem- corporation, Utah Plaintiff provisions judi- only edies are directed to the Appellant, ciary, it procedural is consistent with a inter- I, pretation of article section 11. As one provisions commentator on courts ex-

plained, many procedural jurisdictions view CONTINENTAL INSURANCE COMPA- their courts to be directed NY and Marine Office of America Cor- only judiciary, poration, logical Appellees. but that a more Defendants and interpretation [open “would be that No. 970520. provision] applies against all impedi- judicial process, they ments to fair legisla- Supreme Court of Utah. judicial origin.” Schuman, tive David supra, at 1203. March foregoing, 154 Based on the I conclude that, example, barriers to the courthouse extremely fees,

such high filing extraordi- narily limitation, short statutes of or arduous pretrial procedures may I, violate article sec- See, Holden,

tion 11. e.g., Currier v. (Utah Ct.App.1993) (striking down three-month statute of limitations on petitions corpus for habeas as violative of 11). Additionally, plain

article language article would not

permit recog- courts or legal right entirely

nize a deny but remedy.13 Applying foregoing principles case, to the instant I would hold that challenged statute, section 78-12-25.5 of the Code, does not violate article

13. There be a at which the constitute a as a matter of law. point insignificant is so or nominal as to not provided