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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
be open [and all proceedings] shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal . . . ."
When judicial restraint evaporates to such an extraordinary degree that a provision of the Constitution can be nullified by a judicial rewriting of it, no provision in the Constitution is safe from the personal predilections of Judges, and the whole foundation of constitutional restraint of governmental power is imperiled. There is no legally legitimate justification for substituting a Judge's personal view of what the law should be for what the people of Utah, through their Constitution, have stated the law shall be.
Justice Zimmerman's rewriting of clause 2 also violates Article I, section 26 of the Declaration of Rights, which states, "The provisions of this Constitution are mandatory and prohibitory unless by express words they are declared to be otherwise." There is nothing in any of the language of section 11 that declares it to be other than mandatory and prohibitory. Section 26 "rivets section 11, and all the other rights in the Declaration of Rights, into the fundamental law of the state and makes them enforceable in a court of law." Berry, 717 P.2d at 676.
B. Utah Case Law
In an apparent attempt to show that Berry constituted a break with prior law, Justice Zimmerman states that Berry was the first Utah case to recognize that section 11 limits the power of the Legislature to abrogate remedies. See 112. That is totally incorrect. In 1948, this Court decided Masich v. United States Smelting, Refining & Mining Co., 113 Utah 101, 191 P.2d 612 (1948), which clearly recognized that section 11 places some reasonable limitation on the power of the Legislature to abolish remedies. I discuss Masich at length infra but now simply note that, in harmony with Masich, Berry restated the plain meaning of section 11:
"Section 11 protects remedies by due course of law for injuries done to the substantive interests of person, property, and reputation. What section 11 is primarily concerned with is not particular, identifiable causes of action as such, but with the availability of legal remedies for vindicating the great interest that individuals in a civilized society have in the integrity of their persons, property, and reputations." 717 P.2d at 677 n.4 (emphasis added).
Berry's statement that the remedy clause preserves a right to a remedy by "due course of law" is consistent with the interpretation of section 11 that all Utah cases involving the issue have employed. See Hirpa v. IHC Hosp. Inc., 948 P.2d 785 (Utah 1997); Ross v. Schackel, 920 P.2d 1159 (Utah 1996); Horton v. Goldminer's Daughter, 785 P.2d 1087 (Utah 1989); Sun Valley Water Beds v. Herm Hughes & Son, Inc., 782 P.2d 188 (Utah 1989); Cruz v. Wright, 765 P.2d 869 (Utah 1988); Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985); Stoker v. Stoker, 616 P.2d 590 (Utah 1980); Masich v. United States Smelting, Ref. & Mining Co., 113 Utah 101, 191 P.2d 612 (1948); Industrial Comm'n v. Evans, 52 Utah 394, 174 P. 825 (1918); see also Currier v. Holden, 862 P.2d 1357 (Utah Ct. App. 1993); cf. Brown v. Wightman, 47 Utah 31, 151 P. 366 (1915).
Utah case law on this fundamental point of the effect of the remedy clause is in accord with the law recognized by a majority of courts in other states having similar constitutional provisions, although in any particular case, the courts might differ in applying the general rule. In The Right to a Remedy, Professor Schuman stated:
"Thus, no court has adopted a rule of absolute deference to legislatures; even the most radical c
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