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Laney v. Fairview City8/9/2002
ased on a constitutional mandate, and on a judicial understanding of it, that has provided substantive protection for the citizens of this state since the earliest days of statehood. Second, the precedent rejected in Menzies was established "with little analysis and without reference to authority." Menzies, 889 P.2d at 399. Berry's analytical model, by contrast, was established only after a thorough analysis of Utah's case law regarding the open courts provision and the case law and history of other states with similar provisions. See Berry, 217 P.2d at 674-81. Third, the precedent overruled in Menzies did "not work very well." Menzies, 889 P.2d at 400. Although the State claims that Berry does not work well, our case law since Berry indicates that it does. The two-part Berry test is a functional method of preserving Article I, section 11's protections while still permitting rational evolution of tort law.
The State has not demonstrated that Berry was decided wrongly or that any change in conditions makes the application of Berry unsound. Rather than showing that "more good than harm will come by departing from precedent," Menzies, 889 P.2d at 399, the result of the State's view can only do harm to our constitution and to the delicate balance of process it creates. The purpose behind the open courts provision is to prevent corporate or other private special interests from unduly influencing the legislature for their own self-interest and at the expense of the public good and the rights of the individual. There has been no change in conditions that would make this any less of a possibility than it was at the time our constitution was drafted or when Berry was decided.
The State's argument in effect would remove from Utah's Declaration of Rights any limitation on legislative power to abolish or drastically restrict tort redress. As the dissenting justices observed in Meech v. Hillhaven West, Inc., 776 P.2d 488 (Mont. 1989), such a decision would "clean the scalpel for the legislature to cut away unrestrainedly at the whole field of tort redress. Perhaps worse . . ., the Court throws in the sponge as a co-equal in our tripartite state government." Id. at 507. The remedies clause of article I, section 11 was thoughtfully included in Utah's Declaration of Rights to ensure that the legislature would not be free to arbitrarily eliminate common law rights without establishing significant social and policy need or providing reasonable alternatives for the protection and vindication of those rights. Brown, Masich, Berry and their progeny continue to safeguard this principle.
B. Application of Berry to Subsection 63-30-2(4)(a)
We now turn to the analysis of the constitutionality of subsection 63-30-2(4)(a) using the test set forth in Berry. A legislative enactment that does not eliminate a remedy is not unconstitutional under the open courts provision. See Utah Const. art. 1, ยง 11. Therefore, we must first determine whether a cause of action has been abrogated by the legislative enactment. If no remedy was eliminated, there is no need to proceed with the Berry test.
1. Abrogation of Remedy
The State argues in this case that no remedy was abrogated because the 1987 amendment to the Governmental Immunity Act contained in subsection 63-30-2(4)(a) had been enacted four years before Mr. Laney was electrocuted in 1991. The issue under the open courts provision, however, is not whether a statute has already been enacted before a claim arises, but rather whether the statute abrogates a cause of action existing at the time of its enactment. See Day v. State, 1999 UT 46, 35-38, 980 P.2d 1171 ("The determination of whether a person who is injured in 'p
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