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Laney v. Fairview City8/9/2002
lation was an unconstitutional delegation of legislative authority under Article VI, section 28, it would have followed Justice Crockett.
In Stoker v. Stoker, the court determined that the legislature had completely abolished the antiquated doctrine of Inter-spousal Tort Immunity, which had prohibited a married woman from suing for injury to person or property without her husband's consent and prohibited her from being sued individually. 616 P.2d 590, 591 (Utah 1980). The legislature declared that married women could "prosecute and defend all actions for the preservation and protection of her rights and property as if unmarried . . . ." Id. The court interpreted this legislation to permit a married woman to sue her husband for an intentional tort, and noted that the Open Courts Clause--which guarantees that "every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay [in a court of law]"--lent "credence to [their] interpretation of the statute," suggesting that women as well as men were permitted access to the courts to have their legal disputes resolved. Id. Justice Crockett dissented, discussing the dangers of "judicial legislation," as he viewed the majority opinion as an usurpation of the constitutional role of the legislature to change or modify the law. Id. at 592-94. Justice Crockett advocated that the law should not have been changed by the court, but by the legislature. Id. at 594. In my mind, the majority viewed the Open Courts Clause as guaranteeing a procedural right to all citizens, male and female, to seek a judicial remedy through litigation in the "open courts" of this state.
Burningham v. Ott also supports a prior procedural interpretation. In Burningham, the plaintiff apparently promised the defendant that the defendant's stock in the plaintiff's company would increase in value. 525 P.2d 620, 620 (Utah 1974). The plaintiff sued for fraud, but the court granted summary judgment, which was affirmed on appeal. Id. at 620-22. In a separate opinion discussing why "summary judgments should be invoked with caution and restraint," Justice Crockett stated, "[Utah's] founding fathers were fully aware that access to the courts for the settlement of controversies is essential to the peace and good order of society." Id. at 623. He then recited article I, section 11 and continued, "The carrying out of this constitutional assurance requires that any person who has, or thinks he has, a right to protect or a wrong to rectify, be entitled to go to court and air his grievance and have the difficulty resolved by the peaceable process of justice." Id.
In Zamora v. Draper, the plaintiff challenged the constitutionality of a statute that required, in order to sue a sheriff, constable, or peace officer for an act or omission committed in the performance of his or her duty, the filing of "a written undertaking with two sufficient sureties" for payment to defendant of all costs and expenses that may be awarded against the plaintiff. 635 P.2d 78, 79-80 (Utah 1981). The plaintiff claimed that he should not have to furnish the bond because of his impecuniosity, and he challenged the statute as unconstitutional. The court upheld the act as constitutional, and in discussing the impecuniosity alleged by the plaintiff, stated, "This assurance that everyone must have access to the courts to avail themselves of the process of justice is implemented in [the statutes permitting indigent persons to file suit upon oath without filing the required fees]." The court further described the guarantee provided by the Open Courts Clause as the "right to access to the courts" and stated
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