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Laney v. Fairview City8/9/2002
lative action that would limit or hinder the courts from serving the people by doing anything less than properly and efficiently assist in resolving disputes and performing other judicial functions.
I believe it is misleading to aver that construing the Open Courts Clause as I propose presents a significant danger of majoritarian abuse. The concern, as far as I can tell, is that a majority of legislators will be able to implement as law their views of social and economic policy at the expense of the minority. Legislation should not be questioned as unconstitutional simply because a majority of the people may benefit from it and a minority of the people may not. Legislation, by its very nature, presents the risk of majoritarian abuse; a majority is required to pass legislation. The legislature rightfully weighs competing interests and determines, by majority vote, what is best for society as a whole. Our system of government vests this obligation in the legislative branch. Accordingly, I think we should interpret the Open Courts Clause so as to permit the legislature to define, change, and modernize the law for the benefit of society.
The real danger presented by the Berry test is that of majoritarian abuse by the members of this court. The risk, in my mind, lies in requiring that new legislation satisfy the policy predilections of a majority of the members of this court by providing, in the eyes of this court, an adequate alternative remedy; or by eliminating what is viewed as a clear social or economic evil by this court. By continuing to adhere to Berry, we are overstepping our constitutional role. The constitution vests power in the legislature to implement, as law, the will of the majority of the citizens of this State. In short, I think that the perceived "risk of majoritarian abuse" by the legislature is not a sufficient reason for interpreting the Open Courts Clause to limit the prerogative of the legislature to circumscribe under what circumstances to permit recovery against the state. In my view, the greater risk lies in a majority of the members of this court substituting their policy judgments for the policy judgments of the legislature.
Third, the Berry interpretation assumes that each individual who suffers an injury to his or her person, property, or reputation, is constitutionally entitled to a remedy. The idea that a remedy can be fashioned for every injury is optimistic and well-intentioned, but, as a practical matter, impossible. The law cannot, and therefore does not, guarantee a remedy for every injury. Not every injury can or must be remedied. "There is still such a thing as damnum absque injuria." Masich v. United States Smelting, Ref. & Mining Co., 113 Utah 101, 128, 191 P.2d 612, 626 (1948)(Wolfe, J., concurring). This Latin phrase recognizes that loss or harm may occur without causing an injury in the legal sense. With good reason, the law does not permit recovery for many injured feelings, acts of God, and other injuries which are not compensable.
Individuals who have been injured in their persons, property, or reputation, are entitled to a remedy only when the law, statutory or common, recognizes an injury and permits a remedy. The Open Courts Clause should not be interpreted to provide a right to a remedy. It should be interpreted to guarantee access to seek a judicial determination as to whether the law grants a remedy for the injury suffered. The courts, through the common law, may create remedies when public policy dictates that certain interests are worthy of protection and the legislature has not spoken. Likewise, the legislature creates remedies when it determines, as a matter of public policy, that certain interests are worth
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