Laney v. Fairview City8/9/2002
'not hesitated . . . to reverse case law when we are firmly convinced that we have erred earlier.'" Clark v. Clark, 2001 UT 44, 32 n.3, 27 P.3d 538 (quoting Staker v. Ainsworth, 785 P.2d 417, 424 n.5 (Utah 1990)) (Russon, A.C.J., dissenting, joined by Howe, C.J.). I agree that "we should not perpetuate a law that is clearly wrong for the sake of stare decisis." Clark v. Clark, 2001 UT 44, 32 n.3, 27 P.3d 538. (Russon, A.C.J., dissenting, joined by Howe, C.J.). I am firmly convinced that the Berry interpretation of the Open Courts Clause is erroneous; the accompanying Berry test has proven to create more problems than it has solved. Compelling to me is that Berry has proven to be unworkable over a period of 17 years, has not been adhered to unanimously, has been questioned and chastised by members of this court, including one who agreed with the Berry interpretation initially, has been criticized by legal scholars, and presents separation of powers problems. It is my view that we should return to the more procedural interpretation of the Open Courts Clause and abolish the Berry test rather than persist in the quagmire of decisions generated by Berry that have permitted this court to reevaluate legislative policy, thereby placing the judiciary in a legislative role, a role inconsistent with our constitutional authority.
Berry has been the subject of criticism. Indeed, our cases since Berry demonstrate that this criticism has proven to be well-founded. The substantive interest recognized in Berry has led to a morass of case law. See, e.g., Craftsman, 1999 UT 18 at 136, 974 P.2d 1194 (Zimmerman, J., concurring in the result) (discussing the evolution of the Berry test and its progeny). The analytical model developed in Berry has been described by an initial proponent, Justice Zimmerman, as "unworkable" because it is "subject to manipulation, . . . leads to absurd results, and it distorts [the judiciary's] relationship with the legislature." Id. at 108, 974 P.2d 1194; see also Lyon, 2000 UT 19 at 89, 5 P.3d 616. As is explained later, former members of this court have interpreted the Open Courts Clause differently, contrary to the Berry interpretation. Furthermore, Berry was also criticized by scholars even before its progeny developed. See, e.g., John H. Bauman, Remedies Provisions in State Constitutions and the Proper Role of the State Courts, 26 Wake Forest L. Rev. 237, 270-71 (1991) (describing Berry as "typical of the activist use of the remedies provision" and criticizing Berry for infringing on the policy-making role of the legislature); David Schuman, The Right to a Remedy, 65 Temp. L. Rev. 1197, 1215-17 (1992) (discussing the "complex methodology" of Berry and stating that " one of the existing solutions to the remedy clause problem is completely satisfactory.").
Upon further contemplation, and with the benefit of hindsight, I am persuaded that the assumptions upon which Berry was based are, in part, faulty. As far as I can tell, Berry is premised on the following:
he basic purpose of Article I, section 11 is to impose some limitation on that power [the power of the legislature to define, change, and modernize the law] for the benefit of those persons who are injured in their persons, property, or reputations since they are generally isolated in society, belong to no identifiable group, and rarely are able to rally the political process to their aid. Berry, 717 P.2d at 676, quoted in Condemarin v. Univ. Hosp., 775 P.2d 348, 357 (Utah 1989); see also Sun Valley Waterbeds of Utah, Inc. v. Herm Hughes & Son, Inc., 782 P.2d 188, 191 (Utah 1989); Lyon, 2000 UT 19 at , 5 P.3d 616 ("By and large, persons who suffer serious personal or property injuries are an isolated a
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