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Laney v. Fairview City8/9/2002
to be eliminated, are two questions that should be answered by the legislature, not this court, and that we overstep our bounds in so doing. In my view, application of the Berry queries to a set of facts can result in a decision either in favor of, or opposed to, the legislation, and the decision depends completely upon one's opinion of what is in the public good. This case demonstrates why the Berry test is a straw man analytical framework that permits one to justify a predetermined outcome. To borrow Justice Zimmerman's language, it is "subject to manipulation." Craftsman, 1999 UT 18 at 108, 974 P.2d 1194.
How one answers the first Berry query, whether the act provides an effective and reasonable alternative remedy equal in value or other benefit to the abrogated legal remedy, depends upon one's point of view. From the plaintiffs' perspective, the 1987 amendment including section 63-30-2(4)(a) eliminated their possible remedy; they can no longer recover for wrongful death because the legislation abrogated their right to sue for wrongful death without offering any substitute remedy, let alone an effective, reasonable, alternative one. To them, the amendment precludes recovery. From the plaintiffs' point of view, prior to the date on which section 63-30-2(4)(a) became effective, they would have had a remedy against Fairview City for Mr. Laney's death as the City's operation of the power lines was, to them, a proprietary function; but now, because section 63-30-2(4)(a) broadly defines governmental function to encompass the operation of power lines, they no longer have a remedy of any sort against the City. From Fairview City's perspective, on the other hand, section 63-30-2(4)(a) did not abrogate an existing remedy, and, therefore, the legislature did not need to provide an adequate alternative remedy. In Fairview City's view, at the time section 63-30-2(4)(a) was enacted, the doctrine of sovereign immunity provided that no remedy against the City existed without the legislature's permission. The legislature dictates under what circumstances sovereign immunity is waived and recovery is permitted against the State; and therefore where no remedy is guaranteed, modification does not abrogate a remedy. The City reasons that the Act did not abrogate a remedy because sovereign immunity as it existed at the time of statehood would have prevented the plaintiffs from recovering against Fairview City. Even looking to whether the amendment abrogated a cause of action existing at the time of its enactment, a cause of action exists against the state only as the legislature sees fit to waive immunity. In my view, both positions are rational. It is only after one inserts his or her view as to what the law should be, in this case how sovereign immunity functions, that one determines whether the amendment permits an adequate and reasonable alternative remedy. If one agrees that the legislature has authority to waive sovereign immunity, the legislature does not abrogate a remedy. If one believes that injured individuals are entitled to a remedy from state funds, then legislation that prevents this abrogates a remedy.
The second part of the Berry test permits one to second-guess legislation and justify a predetermined outcome even more so than the first part. Whether, if no adequate substitute or alternative remedy is provided, the act remedies a clear social or economic evil, clearly depends upon one's point of view. In my view, this court has no business passing judgment on what constitutes a clear social or economic evil in this manner. Then, analyzing whether legislation is a reasonable or non-arbitrary means of eliminating such a perceived social or economic evil simply permits one to decide constitutionality
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