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Laney v. Fairview City8/9/2002
of government as established by the constitution.
Prior to Berry, this court actually addressed whether sovereign immunity violates the Open Courts Clause. In Madsen v. Borthick, we said:
Article I, § 11 of the Utah Constitution, which prescribes that all courts shall be open and persons shall not be barred from using them to redress injuries, was not meant to create a new remedy or a new right of action. Consequently, Article I, § 11 worked no change in the principle of sovereign immunity, and sovereign immunity is not unconstitutional under that section. 658 P.2d 627, 629 (Utah 1983) (citation omitted); accord McCorvey v. Utah State Dep't of Trans., 868 P.2d 41, 49 (Utah 1998) ("As stated, the right to sue the state when it performs a governmental function, as constitutionally defined, does not implicate a right protected by the open courts provision." (citations omitted) (Stewart, J., concurring and dissenting); see also, Burton v. Exam Center Indus. & General Med. Clinic, Inc., 2000 UT 18, , 994 P.2d 1261 (citing Brown v. Wightman, 47 Utah 31, 151 P. 366 (1915), for the proposition that article I, section 11 does not create a substantive right to a remedy). 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, opening the public coffers. I would not strike down section 63-30-2(4)(a) as unconstitutional, but uphold the legislation, a holding that would comport with Madsen: that the Utah Governmental Immunity Act, which defines the scope of sovereign immunity, is not unconstitutional under the Open Courts Clause.
I agree that the Open Courts Clause places limitations on legislative authority. The limitation, however, is not one that curbs the legislature's ability to define, change, and modernize the law. I interpret the Open Courts Clause as a limitation on legislative authority to reduce or inhibit the ability of the judiciary to resolve the disputes of the people, awarding remedies to those injured under the law. The legislature is prohibited from taking action that would hinder or preclude the judiciary from conducting the business of resolving cases and controversies, deciding cases by applying the law, as promulgated by the legislature, to factual circumstances on a case by case basis.
It is my opinion that before Berry, this court tacitly interpreted article I, section 11 as a procedural protection and not a substantive guarantee or right to a remedy. See, e.g., Brown, 47 Utah at 34, 151 P. at 367 (declaring that many states have read open courts provisions to prevent the legislature from barring "any person who has a legal right which is enforceable in accordance with some known remedy" from access to the courts; indicating that the Open Courts Clause does not create a substantive right to a remedy beyond the rights and remedies created by common law or statute; and noting that the right and power of creating rights and remedies lies with the legislature); Madsen, 658 P.2d at 629 (stating that "Article I, § 11 . . . was not meant to create a new remedy or a new right of action."); see also Celebrity Club Inc. v. Utah Liquor Control Comm'n, 657 P.2d 1293, 1296 (Utah 1982) (describing the article I, section 11 guarantee as one of "access to the courts"); Zamora v. Draper, 635 P.2d 78, 81 (Utah 1981) (describing the guarantee of article I, section 11, to be an "assurance that everyone must have access to the courts to avail themselves of the process of justice . . . ."); Burningham v. Ott, 525 P.2d 620, 623 (Utah 1974) ("The carrying out of this constitutional assurance [article I, section 11] requires that any person who has, or thinks he has, a right to protect
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