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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
Justice Zimmerman's repeated assertions:
" either the due process nor the open courts provision constitutionalizes the common law or otherwise freezes the law governing private rights and remedies of the time of statehood. It is, in fact, one of the important functions of the Legislature to change and modify the law that governs relations between individuals as society evolves and conditions require." Id. at 676 (emphasis added) (citation and footnote omitted).
Having established that fundamental principle, Berry explicitly recognized--contrary to Justice Zimmerman's repetitious assertions otherwise--the broad power the Legislature necessarily has in "defining, changing, and modernizing the law," albeit without eradicating the rights of citizens to a remedy under the law for civil wrongs:
"Necessarily, the Legislature has great latitude in defining, changing and modernizing the law, and in doing so may create new rules of law and abrogate old ones. Nevertheless, the basic purpose of Article I, section 11 is to impose some limitation on that power for the benefit of those persons who are injured in their persons, property, or reputations since they are generally isolated in society, belong to no identifiable group, and rarely are able to rally the political process to their aid." Id. (emphasis added). Berry also recognized that section 11 rights are not always paramount and that they do
not sweep all other constitutional rights and prerogatives before them. They, too, like many constitutional rights, must be weighed against and harmonized with other constitutional provisions. The accommodation of competing, and sometimes clashing, constitutional rights and prerogatives is a task of the greatest delicacy, although common and necessary in constitutional adjudication. Id. at 677.
Berry held that the Legislature is not free to abrogate legal remedies for injuries to one's person, property, or reputation for arbitrary or capricious reasons. To achieve that purpose, Berry established a two-part test to determine the constitutionality of a statute which abrogates remedies that vindicate the interests protected by section 11:
"First, section 11 is satisfied if the law provides an injured person an effective and reasonable alternative remedy "by due course of law" for vindication of his constitutional interests. The benefit provided by the substitute must be substantially equal in value or other benefit to the remedy abrogated in providing essentially comparable substantive protection to one's person, property, or reputation, although the form of the substitute remedy may be different. . . ."
"Second, if there is no substitute or alternative remedy provided, abrogation of the remedy or cause of action may be justified only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means for achieving the objective." Id. at 680.
Justice Zimmerman's contention that the Berry test is flawed because it is unduly restrictive of legislative power is absurd. The irrefutable fact is that, applying that test, this Court has held only two statutory provisions unconstitutional: the products liability statute of repose in Berry and the architect and builders statute of repose. Today this Court properly holds a revised (and far less arbitrary) architect and builders statute of repose constitutional. Given today's ruling, the net effect of the Berry test has been to strike one statute, the products liability statute of repose. That hardly supports Justice Zimmerman's repeated assertions that the Berry test has unduly intruded on legislative po
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