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Laney v. Fairview City8/9/2002
nd unidentifiable minority who have little influence on legislative actions. These considerations were instrumental in the adoption of the open courts clauses in a number of state constitutions."); Schuman, supra, at 1217 (stating that to permit the legislature to eliminate remedies at will runs the risk of majoritarian abuse).
As I mentioned previously, I agree that the Open Courts Clause limits legislative authority. Numerous constitutional provisions prevent the legislative branch from eliminating constitutional or inalienable rights. I do not think, however, that the Open Courts Clause guarantees one the right to a judicial remedy for every injury done to one's person, property, or reputation. The Open Courts Clause should not be interpreted as it is now; the Berry interpretation inappropriately, and as I see it, unconstitutionally, limits legislative authority to alter, change, and modernize the law.
The first Berry assumption with which I disagree is the assumption that those who suffer because of legislation preventing recovery for personal injury are individuals who are somehow part of a minority that is not represented or underrepresented in the political process. In my view, individuals who suffer injury to their person, property, or reputation are not a discreet and insular minority. All persons, regardless of ethnic background, economic background, gender, religious persuasion, or other affiliations, may suffer injury. Viewing an injured individual or group retrospectively, after they have suffered injury, they may very well be unable to rally the political process. Prospectively, however, all of us as citizens, regardless of status, are subject to legislation limiting our ability to recover for personal injury . No group is singled out by legislation that limits the ability to recover for personal injuries. All citizens face the possibility of personal injury, even those who are generally visible in society that belong to what we may think are privileged, identifiable groups. Some individuals or groups may be more or less able than others to rally the political process to their aid. Those who suffer injury to their person, property, or reputation, are not a distinct group who are without the ability to rally political support, however. Those thwarted by the Utah Governmental Immunity Act, those who have suffered personal injuries at the hands of the government, may be any of us; they do not comprise a distinct and insular group whose voice may not be heard through the political process. Rather, this "minority" is simply a random subset of the population as a whole. No group is singled out. All citizens--even legislators themselves--are subject to the possible harsh ramifications of sovereign immunity, and certainly their voices are heard through the political process.
Second, Berry assumes that the Open Courts Clause contains language which should be interpreted to protect against majoritarian abuse. I disagree. Other provisions in our constitution are more suited to protecting against majoritarian abuse. They contain language which more specifically implies protection for political minorities, and these provisions have also been interpreted to protect groups and individuals that are isolated from the political process. In my opinion, the language of the Open Courts Clause is ill-suited to protect against majoritarian abuse. I doubt that the founders of our State Constitution intended that this clause prevent the legislature from modifying the law without this court passing judgment on whether an alternate remedy is adequate or whether the legislative judgment as to whether a social or economic evil was addressed was sound. The Open Courts Clause protects against legis
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