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Laney v. Fairview City8/9/2002
y of protection. If the law provides for a remedy, then the Open Courts Clause guarantees the right to seek that permitted remedy through the courts. The Open Courts provision of our constitution should not, however, be interpreted to guarantee, as a matter of constitutional law, the right to a remedy for every injury done to one's person, property, or reputation.
Moreover, Berry also infringes on legislative power by permitting this court to increase individual substantive rights while, at the same time, denying the legislature the ability to limit, abolish, or modify them. This "ratcheting effect" is completely controlled by this court; the legislature is powerless to abrogate any remedies or causes of action without the approval of this court. Under the past seventeen years of Berry, once the court has recognized a cause of action for a certain injury by way of common law, the legislature has effectively been prohibited from abolishing that right unless it provides an adequate alternative remedy (adequate according to a majority of the members of this court), or, if not, the legislation is in harmony with the policy perspectives of a majority of the members of this court. This ratcheting effect, in essence, permits this court to increase individual substantive rights while at the same time essentially denying the legislature the ability to limit, abolish, or modify them, unless of course, the court approves of the legislation as a matter of policy.
This limitation by the court is inconsistent with the roles of judicial and legislative branches in our system of government. The legislature is authorized, even obligated, to change the law as the needs of society change. In Masich, we noted that "both statutory rights and common law rights can be taken away[;] otherwise, there can be no question that acts which abolish actions for seduction, breach of promise, criminal conversation, and alienation of affections, would be unconstitutional." 113 Utah at 124-25, 191 P.2d at 624. Justice Wolfe, speaking directly to the question of the legislature's power to change the common law, wrote, "I do not understand that Article I, Sec. 11, of the Constitution of Utah, prohibits the modification or even the entire removal or destruction of a common law right by legislative enactment." Masich, 113 Utah at 128, 191 P.2d at 626 (Wolfe, J., concurring). "The right and power, as well as the duty, of creating rights and to provide remedies, lies with the Legislature, and not with the courts." Brown v. Wightman, 47 Utah 31, 34, 151 P. 366, 367 (1915). "Courts can only protect and enforce existing rights, and they may do that only in accordance with established and known remedies." Id. In my view, the Open Courts Clause should not be interpreted to guarantee a remedy for every injury previously recognized by the law because to do so would unduly restrict the legislature in its legitimate lawmaking function. I am of the opinion that it is the prerogative of the legislature to decide under what circumstances the State will waive its sovereign immunity and open the public coffers to claimants.
Of great concern to me is that the Berry test violates article V, section 1, the Separation of Powers Clause. In its amicus brief, the State argues that the Berry interpretation of the Open Courts Clause violates the separation of powers provision in the Utah Constitution because it limits the power of the legislature to determine what causes of action will be recognized as having a legal remedy, and what causes of action will not. This position, in my mind, is compelling.
Article V, section 1 of the Utah Constitution reads:
The powers of the government of the State of Utah shall be d
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