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Laney v. Fairview City8/9/2002
" is not a source of either a substantive or procedural right. This phrase defines the persons and the subject matter to which the open courts provision, and the guarantees it espouses, apply. It suggests that the provision applies to individuals who have suffered injury to their person, property, or reputation. As was discussed above, not all harm is a legally actionable injury. What constitutes a legally actionable injury depends on the statutory and common law of this state. Thus, whether one is entitled to a remedy depends upon whether the law permits a remedy, and in order to know whether the law permits a remedy, one must be able to have that question adjudicated. It therefore follows that the courts must be open to individuals for a determination of whether the harm they have suffered constitutes an injury under the law.
The third phrase has been the source of the substantive right to a remedy in Berry which has been used to limit the ability of the legislature to alter the law without judicial oversight. The phrase "right to a remedy" should be read in light of the phrase "by due process of law." The latter phrase modifies the former phrase. When read this way, one does not have a right to a remedy, but a right to access to the courts to seek a remedy, if the particular injury provides for one "by due process of law," or, in other words, through the other processes and procedures of the law.
Consequently, I interpret the text of article I, section 11 to provide a more procedural guarantee. It guarantees access and limits the authority of the legislature to limit citizen access to the courts for resolution of disputes by due process of law. The Open Courts Clause, in my view, does limit the authority of the legislature: The legislature may not close the doors to judicial resolution of disputes. "The courts shall be open" for the determination of whether a party is entitled to an established remedy under the law as established by the legislature. I would interpret the Open Courts Clause not to limit the authority of the legislature to define legal injuries and delineate the circumstances under which one may be entitled to a remedy, but to limit the ability of the legislature to deny a party access to a judicial officer for a determination of whether a particular set of facts and circumstances constitute a legal injury for which a remedy exists under the law.
Accordingly, in my view, the statute at issue, Utah Code Ann. ยง 63-30-2(4)(a), does not infringe upon the rights guaranteed by the Open Courts Clause as I interpret it. In my opinion, the present legislation, which preserves sovereign immunity for a governmental function, does not deprive individuals who have suffered injury to their person, property, or reputation, of access to our court system to seek a determination of whether their injury constitutes a redressable injury under the law for which they are entitled to a remedy. Section 63-30-2(4)(a) sets forth the law under which individuals may seek redress from the government. It also defines those circumstances under which an injury is not redressable under the law. Section 63-30-2(4)(a) exhibits the legislative prerogative to determine the scope of sovereign immunity and the circumstances under which it is waived. The legislature, subject as always to political pressures from constituents, has broad discretion in deciding whether recovery against governmental entities should be expanded or contracted and under what circumstances. Sovereign immunity does not infringe upon one's right to a judicial determination of whether particular facts constitute an injury which the law recognizes as entitled to a remedy. Section 63-30-2(4)(a) sets forth the law to be applied by t
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