 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Laney v. Fairview City8/9/2002
ould be entitled to immunity for its omissions, to not raise the height of, insulate, or provide further warnings on its power lines under section 63-30-10, a discretionary function within the discretionary function exception of the Utah Governmental Immunity Act.
Fairview City correctly argued that this Court must presume section 63-30-2(4)(a) is constitutional, resolving any reasonable doubts in favor of constitutionality. As this court stated in a prior Open Courts case:
The first and foundational [principle of law relating to the constitutionality of statutes] is that the prerogative of the legislature as the creators of the law is to be respected. Consequently, its enactments are accorded a presumption of validity; and this court should not strike down a legislative act unless the interests of justice in the particular case before it require doing so because the act is clearly in conflict with the higher law as set forth in the Constitution. Zamora v. Draper, 635 P.2d 78, 80 (Utah 1981) (internal footnote citations omitted); see also Utah Sch. Bds. Ass'n v. State Bd. of Educ., 2001 UT 2, 9, 17 P.3d 1125; Soc'y of Separationists, Inc. v. Whitehead, 870 P.2d 916, 920 (Utah 1993); Lindon City v. Engineers Const. Co., 636 P.2d 1070, 1073 (Utah 1981).
In the recent past, since 1985, the Open Courts Clause has been interpreted in such a way that it limits the legislature's ability to alter, modify, or eliminate the law by requiring legislation to meet this court's approval through the Berry test. See, e.g., Berry, 717 P.2d at 676, 680. In Berry, prior members of this court admittedly "broke new ground and read article I, section 11 . . . as imposing a strong substantive limitation on the legislature's ability to limit or eliminate a cause of action for, or the remedies available for [personal injury ]." Craftsman Builder's Supply, Inc. v. Butler Manuf. Co., 1999 UT 18, 112, 974 P.2d 1194; accord Berry, 717 P.2d at 676, 680-81. In order to ensure that the legislature was appropriately limited, or, in my view, to permit the court to pass judgment on legislative policy, this court developed the Berry analytical model. Again, in order for a statute that abrogates an existing remedy to withstand a constitutional challenge under the Open Courts Clause, Berry requires one of two conditions to be met:
First, . . . the law [must otherwise provide] an injured person an effective and reasonable alternative remedy "by due course of law" for vindication of his constitutional interest. The benefit provided by the substitute must be substantially equal in value or other benefit to the remedy abrogated in providing essentially comparable substantive protection to one's person, property, or reputation, although the form of the substitute remedy may be different . . . [; or]
econd, if there is no substitute or alternative remedy provided, abrogation of the remedy or cause of action may be justified only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means for achieving the objective. Berry, 717 P.2d at 680 (citations omitted).
In my view, this test permits a majority of this court to substitute its judgment of what constitutes good public policy for the judgment of the legislature, the branch of government that is not only best suited to determine and implement public policy under our system of government, but constitutionally obligated to do so. See Utah Const. art. VI, ยง 1. I am of the opinion that whether a substitute remedy is of "substantially equal value or other benefit to the remedy abrogated," and whether there is a clear social or economic evil
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Utah Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|