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Laney v. Fairview City8/9/2002
or a wrong to rectify, be entitled to go to court and air his grievance and have the difficulty resolved by the peaceable processes of justice.") (Crockett, J., concurring, but dissenting in part). I would return to this procedural interpretation of the Open Courts Clause.
I agree that our state constitution may, under some circumstances, "'provide greater protections for our citizens than are required under the federal constitution.'" Berry, 717 P.2d at 677 (quoting Daugaard v. Baltic Coop. Bldg. Supply Ass'n, 349 N.W.2d 419, 425 (S.D. 1984)). However, I do not interpret article I, section 11, of the Utah Constitution to provide a substantive right to a remedy beyond that which the legislature grants, modifies, or limits. Even Berry recognized that "one of the important functions of the Legislature to change and modify the law that governs relations between individuals as society evolves and conditions require." Berry, 717 P.2d at 676. It is the prerogative of the legislature to change and modify what constitutes an injury entitled to a remedy. Consequently, article I, section 11, should not be read to prohibit the legislature from defining what constitutes a governmental function entitled to governmental immunity as it did in the Utah Governmental Immunity Act.
In my opinion, Utah case law prior to Berry interprets the Open Courts Clause as a procedural protection. The real break from stare decisis was when this court "broke new ground" in Berry with the current more substantive interpretation given to the Open Courts Clause and the invention of the accompanying Berry test.
In Brown v. Wightman, this court addressed whether a plaintiff could recover from the estate of the deceased defendant who shot and killed himself after injuring the plaintiff. 47 Utah 31, 32, 151 P. 366, 366 (1915). After holding that the death of the wrongdoer abated plaintiff's action, thereby preventing the plaintiff from recovering, id. at 33, 151 P. at 366, the court addressed the plaintiff's argument that the Open Courts Clause guaranteed her the right to maintain an action against the defendant's estate, id. at 33-34, 151 P. at 366. The court listed other state constitutions that contained similar "Open Courts" provisions, and stated:
The courts have, however, always considered and treated those provisions, not as creating new rights, but as placing a limitation upon the legislature to prevent that branch of the state government from closing the doors of the courts against any person who has a legal right which is enforceable in accordance with some known remedy. Where no right of action is given, however, or no remedy exists, under either the common law or some statute, those constitutional provisions create none. Id. at 34, 366-67.
While I agree that the provision places a limitation on the legislature, I disagree with the limitation espoused by the Berry interpretation. The majority opinion's interpretation emphasizes solely that the Open Courts Clause places a limitation on the legislature. It fails to note, however, the rest of the language in Wightman that the Open Courts Clause places "a limitation upon the legislature to prevent that branch of the state government from closing the doors of the courts . . . ." Id. Further, Wightman states that the courts must be open to "any person who has a legal right which is enforceable in accordance with some known remedy[, and w]here no right of action is given, however, or no remedy exists, under either the common law or some statute, those constitutional provisions create none." Id. This language, in my view, reveals that the Wightman court viewed the Open Courts Clause as a more procedural guarantee, like I do, and unli
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