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Laney v. Fairview City8/9/2002
based upon his or her personal opinion regarding legislative policy. From the plaintiffs' perspective, the legislature did not identify any social or economic evils to be eliminated, and therefore this second prong of Berry is not met. Arguably, from the plaintiffs' position, it is a clear social or economic evil to prohibit recovery against the State for personal injury; and the 1987 amendment eliminating such recovery is an arbitrary, unreasonable elimination of what should be remedied. From Fairview City's perspective, on the other hand, the legislature identified clear social and economic evils, which it eliminated through non-arbitrary, reasonable legislation. Specifically, the legislature viewed high insurance expenses borne by municipalities, potential burdens on the tax base of governmental entities, and the unpredictability for municipal risk managers, as clear economic evils. It reduced these economic evils through restructuring the circumstances under which recovery against the State for personal injury is permitted. Nevertheless, in my view, this court has no business deciding what constitutes a clear social or economic evil in this way. Permitting this court to do so, and then requiring this court to determine whether the perceived social or economic evil was eliminated in an unreasonable, non-arbitrary way, requires this court to sit as a second legislature, reevaluating public policy of already-debated legislation.
While other cases may, and certainly will, more clearly reveal reasonable positions on either side of the Berry framework, the fact remains that the Berry test permits reasonable conclusions on either side. In my view, the Berry test simply sets forth a framework for justifying the policy position of a majority of the members of this court. The test is a vehicle for re-arguing the competing policies that the legislature already had before it--rightfully so as the people's representatives--in debating and enacting the legislation. It requires judges to determine whether a substitute remedy is adequate, and debate again the competing social and economic evils connected with the legislation. For me, this reveals the disguise of the Berry test: it functions as a vehicle for judicial legislation and it permits members of the judiciary to justify through a straw man legal analysis, a politically-based, and potentially predetermined, outcome.
In my opinion, our case law following Berry reveals the problems created by Berry. Clearly, the members of this court, past and present, do not agree that Berry is the best method for analyzing Open Courts challenges. Justice Zimmerman, an initial Berry proponent, reluctantly reached the conclusion that the Berry interpretation of the Open Courts Clause and its progeny do not provide a workable analytical framework. See, e.g., Lyon v. Burton, 2000 UT 19, 85-92, 5 P.3d 616 (Zimmerman, J., concurring in the result); Craftsman Builder's Supply, Inc. v. Butler Manuf. Co., 1999 UT 18, 108-155, 974 P.2d 1194 (Zimmerman, J., concurring in the result). I agree. I would abandon Berry and its progeny and return to the prior interpretation suggested by this court, particularly the interpretation suggested by Justice Crockett, for addressing challenges based on the Open Courts Clause. I disagree with the lead opinion's claim that, prior to Berry, the Open Courts Clause was interpreted as a substantive guarantee to a remedy, and that it has been "unanimously concurred in."
I do not disavow Berry lightly. I am cognizant of and respect the principle of stare decisis, which gives stability and predictability to our legal system. See Clark v. Clark, 2001 UT 44, 25-29, 27 P.3d 538 (Wilkins, J., concurring). However, " his court has
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