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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
hip between the legislature and the courts," 122, is based squarely on the erroneous proposition that Berry constitutionalized the common law.
V. SOVEREIGN IMMUNITY AND ARTICLE I, SECTION 11
Of course, common law tort immunities, such as sovereign and official immunity, may clash with the right to a remedy for injuries to one's person and property under Article I, section 11 and have presented an important and somewhat difficult subset of issues. Justice Zimmerman states, " he cold fact is that whether a cause of action existed in 1896 has become the determinative factor for whether article I, section 11 is transgressed by the enactment of governmental immunity." 123. That statement is in flat contradiction to the law established in DeBry v. Noble. As a consequence, his "analysis" of Utah sovereign immunity cases misstates Utah law.
By way of background, the law of sovereign immunity originated as a Judge-made law in the United States and was adopted in this state in case law. It remained a common law doctrine until the Legislature enacted the Utah Governmental Immunity Act in 1965, which codified the general common law doctrine but modified and liberalized its specific application in certain ways. See 1965 Utah Laws 390, ch. 139; DeBry, 889 P.2d at 432-40. See generally Guymon, 1997 Utah L. Rev. at 880-81. As a general rule, the law of governmental immunity bars remedies against government agencies for personal and property injuries, but there have long been numerous exceptions to the general rule. This Court has made clear that governmental immunity, as such, is not overridden by Article I, section 11. Governmental immunity was a clearly recognized part of the law when the Utah Constitution was framed, and the Framers of the Constitution must have deemed governmental immunity to be an exception to the right to a remedy protected by Article I, section 11. See DeBry, 889 P.2d at 435, 436; see also Madsen v. Borthick, 658 P.2d 627 (Utah 1983).
In discussing the relationship of governmental immunity and Article I, section 11 rights, Justice Zimmerman states that "despite Berry's disclaimer that article I, section 11 does not constitutionalize the common law as it existed at statehood, the cold fact is that whether a cause of action existed in 1896 has become the determinative factor for whether article I, section 11 is transgressed by the enactment of governmental immunity." 123. That is not correct.
Both DeBry and Madsen squarely held that the doctrine of sovereign immunity did not, as a general proposition, violate Article I, section 11. DeBry, 889 P.2d at 432-42; Madsen, 658 P.2d at 629. In addition, DeBry established the standard for determining what government activity is immune and falls outside Article I, section 11 protections. Clearly, not all government action was subject to governmental immunity, and the government action that was not immune would give rise to tort liability and recovery of damages. See DeBry, 658 P.2d at 436-40.
The government activity at issue in Madsen was the supervision and regulation of financial institutions. The plaintiff claimed damages from the state for negligence in performing those functions. The Court held that the supervision and regulation of financial institutions was a "core governmental function" that was clearly within the scope of the governmental immunity doctrine. Therefore, there was no cause of action for damages based on negligence. And that was so irrespective of whether negligent government regulation of financial institutions would have been protected by governmental immunity from actions for damages in 1896. See Madsen, 658 P.2d at 631; see also Gillman v. Department
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