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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
lth:
"That all courts shall be open, and every man, for an injury done him in his lands, goods, person, or reputation shall have remedy by the due course of law, and right and Justice administered without sale, denial, or delay. Suits may be brought against the commonwealth in such manner, and in such courts, and in such cases as the legislature may by law direct." Id. at 368 n.220 (emphasis added).
An open courts, or guaranteed remedy, provision was not contained in the United States Constitution or in the federal Bill of Rights, no doubt because the law governing rights, duties, and liabilities between individuals with respect to the protection of "person, property, or reputation" was deemed to be committed or reserved exclusively to the states. See generally id. at 368-75. While there is, of course, some overlap in the rights guaranteed by open courts provisions and other constitutional provisions, such as due process and equal protection, that overlap is not unique to open courts provisions and does not lessen their importance as basic constitutional protections. There is, for example, some overlap between the equal protection, due process, and privilege and immunities clauses of both state and federal constitutions, but no one of those clauses is wholly duplicative of the other, and each fills a specific constitutional need.
Indeed, the United States Supreme Court recently observed with respect to the Texas open courts provision, which is similar to open courts provisions in Utah and a number of other states, that it provided broader constitutional protections than those afforded by the Due Process Clause of the Fourteenth Amendment. The Supreme Court in Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 12 n.11 (1987), quoted LeCroy v. Hanlon, 713 S.W.2d 335, 340-41 (Tex. 1986), which stated:
"The open courts provision must have been intended to provide rights in addition to those in the due process provision or the former would be surplusage. Furthermore, the due process provision's general guarantees contrast with the open courts provision's specific guarantee of a right of access to the courts." See also Tennessee's Open Courts Clause at 341 n.26.
It is true that some states have adopted open courts clauses that, unlike Utah's, protect only the procedural rights of access to the courthouse and a speedy administration of judicial proceedings. But if the Framers of the Utah Constitution had intended to adopt such a limited guarantee, as Justice Zimmerman now says is all that section 11 does, the Framers had models that they could have copied. Cf., e.g., Mont. Const. art. II, § 16; Wash. Const. art. I, § 10 ("Justice in all cases shall be administered openly, and without unnecessary delay."). Obviously, they did not intend to so limit the rights guaranteed to the citizens of Utah.
Because of political abuses that existed in a number of states at the end of the 19th century when the Utah Constitution was framed, the Framers, relying on legal principles that were centuries old, included constitutional protections against such evils. The abuses included the misuse of political influence by railroads and other corporate interests to elevate their self-interests over the public interest by obtaining from state legislatures privileges and immunities that insulated them from the general laws. For reference to the origin of open courts provisions and the industrial history of certain states around the turn of the century, see Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 811-12 (Ky. 1991), and Kenyon v. Hammer, 688 P.2d 961, 971-73 n.9 (Ariz. 1984).
The history of the framing of the Arizona Constitution reflected conditions
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