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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
o. Some thirteen Justices of this Court who have decided the long line of cases from Masich in 1948 to Hirpa in 1997, including Justice Zimmerman, have concurred in the plain meaning construction of Article I, section 11. This line of Utah cases is consistent with the rulings of the vast majority of courts from other states construing similar constitutional provisions.
Justice Zimmerman argues that the test adopted in Berry for determining how section 11 should be applied in cases challenging the constitutionality of a statute in effect "constitutionalizes" the common law and elevates it over statutory law. See 122. His assertion is simply incorrect; it is flatly contrary to the express language and holding of Berry and numerous other Utah cases decided under Article I, section 11. Although he claims that the Berry test is unduly restrictive of legislative power, the fact is that the test is no more restrictive of legislative power than the orthodox standard for applying the due process clause with respect to legislative power. No one today asserts that the due process clause of our constitution should be abandoned because it unduly restricts legislative power.
Although Ross v. Schackel, 920 P.2d 1159 (Utah 1996), which decided the issue of the immunity of a prison doctor for medical malpractice committed on a prisoner, was decided in part on the basis of whether a cause of action against such an official was recognized by the common law when the Utah Constitution was adopted, that analysis was not dictated by Berry; indeed, Ross simply did not employ the Berry analysis at all in resolving the immunity issue. While the common law is not wholly irrelevant to a proper construction of section 11, the Ross opinion is aberrant in suggesting that the right to a remedy is defined by the common law as it existed in 1896.
II. ORIGINS AND PURPOSE OF ARTICLE I, SECTION 11 RIGHTS
The Framers of the Utah Constitution included Article I, section 11 to anchor in the Constitution rights that originated in the English Magna Carta of 1215 and that are among those essential to a peaceful society. The purpose of those rights is to bar sovereign power, whether kingly, parliamentary, or legislative, from undermining an independent judiciary and arbitrarily abolishing remedies that protect the person, property, or reputation of each individual. The rights Article I, section 11 protects are not ephemeral or time-bound rights; they are today as important to a just and peaceful society as they have been historically. Their origins go back further in history than any other provision in the Utah Declaration of Rights or, indeed, in the Bill of Rights of the United States Constitution, except for those rights protected by the due process clause. Those rights became the basis for important principles of English jurisprudence as developed by Lord Coke in the 17th century and Sir William Blackstone in the 18th century. Their work had a far-reaching effect in the framing of American state constitutions. See William C. Koch, Jr., Reopening Tennessee's Open Court's Clause: A Historical Reconsideration of Article I, section 17 of the Tennessee Constitution, 27 Memphis St. L. Rev. 333, 357-64 (1997) [hereinafter Tennessee's Open Court's Clause].
One of the abuses that gave rise to the Magna Carta was the King's practice of conditioning the right to a royal writ, and thus the right to a remedy from the King's Court, on the payment of a fee. The arbitrary granting and withholding of royal writs by the King made the judicial protection of goods, property, person, and reputation problematic and capricious.
In describing Lord Coke's analysis of Chapter 29 of the 1225
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