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Laney v. Fairview City8/9/2002
ivided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.
The Berry test places this court in the position of sitting as a second legislature, re-weighing the social or economic policy, instead of analyzing, as other methods of constitutional analysis do, whether the law is rationally related to its avowed purpose. In my view, the current Open Courts interpretation and the Berry test place the judiciary in the incongruous position of evaluating social or economic evils, "whether there is a clear social or economic evil to be eliminated," and permitting the social or economic policy of three judges to be substituted for the policy of the Legislature, the people's elected representatives. Further, this court reviews whether, when new legislation is passed, a prior remedy is adequately replaced with a new remedy. This court should not pass judgment on legislative policy such as whether a new remedy is as good as the old one, whether the substitute remedy is "substantially equal in value" to the old one. Substitution of the policy of three or more judges for the policy of the legislature, absent specific constitutional authority, is contrary to our system of government. By continuing to apply the Berry test, our case law usurps legislative power to "define, change, and modernize the law."
As Justice Crockett stated in Stoker v. Stoker, this court should leave it to the legislature, who represent the will of the people, and whose function and prerogative it is to discuss and consider public policy and enact into law those policies that, in their judgment, best serve the public welfare. 616 P.2d 590, 592 (Utah 1980) (Crockett, J., dissenting). We should adhere to the constitutionally prescribed separation of powers doctrine, and not intrude into the legislature's prerogative to change the law. Id. Instead, we should exercise judicial restraint, keeping our ideas as to what the law ought to be in check. Id. In upholding the constitution and ensuring that the legislature does not step outside of its constitutional restraints, we must not permit ourselves to stray into the legislative arena, thereby creating the risk that the policy judgment of three or more members of this court as to what the law ought to be will override the policy judgment of the legislative body, those most directly accountable to the people.
In my judgment, when presented with constitutional challenges to legislation, the role of this court is not to pass judgment on the wisdom of the legislature. "This court cannot ignore or strike down an act because it is either wise or unwise. The wisdom or lack of wisdom is for the legislature to determine. If the act is unjust, amendments to correct the inequities should be made by the legislature and not by judicial interpretation." Masich, 113 Utah 101, 126, 191 P.2d 612, 625 (1948). The Berry interpretation results in this court passing judgment on legislative wisdom--whether an alternative remedy, if any, is adequate or reasonable; and if not, whether the new law eliminates a clear social or economic evil. It permits this court to declare as unconstitutional, legislation that three members of the court deem unwise.
Because I would disavow the Berry interpretation of the Open Courts Clause and its analytical model, I would, for the present, return to the case law interpreting the Open Courts Clause prior to Berry. In my view, this interpretation maintains, rather than strains, the framework of our three-branch system
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