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Laney v. Fairview City8/9/2002
remedies clauses with due process language and "due process of law" provisions like Utah's article I, section 7. The latter, he points out, provide a "prescription . . . against official deprivations of 'life, liberty, or property,'" and the former are "directed against the denial of a legal remedy to one who has a claim, arising from 'injury done him in his person, property, or reputation' that has its legal source outside this [remedies] section itself." Hans Linde, Without "Due Process", 49 Or. L. Rev. 125, 136 (1970). Linde goes on to observe:
The two types of guarantees were not confused with each other when the early constitutions were drafted. Other states . . . adopted them both and most state constitutions today contain both a 'remedies' clause and a 'due process' . . . clause. Id. at 138 (footnote omitted).
Justice Zimmerman's concurring opinion in Condemarin further acknowledged and discussed "the wisdom of including article I, section 11's guarantee in Utah's basic charter." Id. He explained:
The constitution's drafters understood that the normal political processes would not always protect the common law rights of all citizens to obtain remedies for injuries. See Berry, 717 P.2d at 676; cf. Developments in the Law: The Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324, 1498-1502 (1982) (protection of majority from politically powerful minorities as an approach to state constitutional interpretation); Note[,] State Economic Substantive Due Process: A Proposed Approach, 88 Yale L.J. 1487, 1498 (1979) (perfunctory judicial review is inadequate to protect against special interest legislation). Condemarin, 775 P.2d at 367 (Zimmerman, J., concurring in part).
Justice Zimmerman noted that " n declining to so characterize the guarantee of a remedy of injuries [as 'fundamental'], I do not think we intended to denigrate the importance of the rights protected from legislative abridgement by article I, section 11." Id. at 366-67 (emphasis added).
2. Substantive Protection Before Berry
Berry continues a long tradition in Utah's courts limiting the power of the legislature to abrogate remedies. SeeCraftsman, 1999 UT 18, 64, 974 P.2d 1194 (Stewart, J., concurring). Only one former justice of this court--in an opinion in which no other justice joined--has so far asserted the contrary. See id. at 108 (Zimmerman, J., concurring). The substantive protection found in article I, section 11 has been recognized throughout the history of the state of Utah. In Brown v. Wightman, as noted earlier, we held that the open courts provision acts as a protection against the legislature from abrogating legal rights to a remedy for injury . See 47 Utah 31, 34, 151 P. 366, 366-67 (1915) (recognizing that open courts provisions are treated "as placing a limitation upon the Legislature to prevent that branch of the state government from closing the doors of the courts against any person who has a legal right which is enforceable in accordance with some known remedy" (emphasis added)).
In Brown the plaintiff was asking the court to use section 11 as a basis for creating a new cause of action where one had not existed previously. See id. In denying the plaintiff's request, the court recognized that the open courts clause does not give the court the power to create new legal rights. Id. That seems to be an unremarkable proposition and one that in no way undermines the function, explicitly acknowledged in Brown, of section 11 in limiting the legislature's power to abrogate existing legal rights. See id.
The substantive protection acknowledged by this court in Brown was again recognized in Masich v. United St
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