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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
he constitutionalization of the common law by the language adopted in Article I, section 11. That of course is correct, but his history is not. Justice Zimmerman's statement that Utah "abjur the common law entirely," 144, is far from an accurate assessment of Utah history. To deny, as Justice Zimmerman does, that the common law was a fundamental part of the law that governed the Utah Territory is revisionist history wholly detached from the most cursory reading of the history of the Territory. See, e.g., Thomas v. Union Pac. R.R., 1 Utah 232, 234 (1875); First Nat'l Bank v. Kinner, 1 Utah 100, 107 (1873); People v. Green, 1 Utah 11, 13-14. The warp and the woof of the law in the Territory was the common law. The volumes of the Supreme Court Reports for the Territory of Utah are replete with the application of common law principles in all kinds of property, personal injury, and contract cases, as well as on procedural issues. Indeed, various provisions of the Utah Declaration of Rights cannot be understood without reference to the common law and the history of Anglo-American law. For example, the provisions in the Declaration of Rights with respect to the right of free speech, the privilege against self-incrimination, the right to jury trial, etc., are all rooted in, and grew out of, the common law heritage that defines the scope and meaning of many provisions in both the Utah and the United States Constitutions. Indeed, this Court has often resorted to the common law in construing various provisions in the Utah Declaration of Rights. See, e.g., Jensen v. State Tax Comm'n, 835 P.2d 965 (Utah 1992); American Fork City v. Crosgrove, 701 P.2d 1069 (Utah 1985).
III. THE PLAIN MEANING OF ARTICLE I, SECTION 11
The preeminent obligation of Judges in constitutional adjudication is to give force to constitutional provisions intended to protect the rights of the people against intrusions by majorities and overreaching special interests who misuse legislative powers to advance their private self-interests at the expense of the liberties of the people. The meaning of the constitutional provisions that Judges are under oath to apply is found first and foremost in the plain meaning of the constitutional language.
A. The Plain Language of the Remedy Clause of Section 11
Plainly put, Justice Zimmerman would rewrite the plain language of section 11. He asserts that "a thorough parsing of article I, section 11 demonstrates to me that Berry incorrectly concluded that the open courts provision provides very specific substantive limitations on the legislature." 120. The answer to his assertion that section 11 establishes only a procedural right of access to the courts is the plain language of Article I, section 11 itself. Section 11 states:
" All courts shall be open, and 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; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party."
For ease of reference, bracketed numbers have been inserted at the beginning of each separate clause in section 11. Section 11 contains four clauses. Clauses 1, 3, and 4 deal with procedural rights prescribing how courts and judicial proceedings should be administered. Clause 2, the remedy clause, establishes the right of a person injured "in his person, property or reputation" to a judicial remedy to redress those injuries.
Clause 1 states that "all courts shall be open." Clause 2 states that "every person, for an injury
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