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Laney v. Fairview City8/9/2002
he judicial officer to the facts presented by the individual who has suffered injury. As a result, I would uphold section 63-30-2(4)(a) as constitutional.
In my view it is the right and obligation of the legislature to waive sovereign immunity as it sees fit. While judicial exceptions to sovereign immunity do exist, it is the prerogative of the legislature to define the scope of sovereign immunity and the exceptions by which it is waived; the Open Courts Clause is not a limitation on the legislature's ability to define the scope of or waive sovereign immunity. Indeed, it is appropriate for the legislature to address the extent to which it is desirable to use public funds to compensate those injured by acts, omissions, or decisions of the government acting in the public interest.
I do not espouse deferring to legislative retention or expansion of governmental immunity which unreasonably burdens important constitutional rights. See, e.g., Condemarin v. Univ. Hosp., 775 P.2d 348, 363 (Utah 1989). For me, the Open Courts Clause provides procedural rights which may not be infringed upon by the legislature.
In summary, I agree that the acts, omissions, or decisions of Fairview City to not raise the height of, insulate, or provide further warnings on its power lines fall within the discretionary function exception of the Utah Governmental Immunity Act, specifically Utah Code Ann. ยง 63-30-10. I would overrule Berry in favor of the more procedural interpretation seen in this court's jurisprudence both before and after Berry. Under this interpretation, it is my opinion that section 63-30-2(4)(a) does not violate Article I, Section 11. I would affirm the judgment of the trial court.
Associate Chief Justice Durrant concurs in Justice Wilkins' dissenting opinion.
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