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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
tehood and that, therefore, no cause of action existed at statehood for negligent provision of care) with id. at 1171 (Stewart, Assoc. C.J., Dissenting) (relying on Richardson v. Capwell, 63 Utah 616, 176 P. 205 (1918), which held that jailers may be held liable for negligence in failing to provide food to prisoners, to conclude that medical care is ministerial and that, therefore, prison doctors were liable at statehood for negligence). Due to the enigmatic condition of the common law regarding whether a particular act was ministerial or discretionary at statehood, Berry creates incentives for Judges to determine the constitutionality of a statute on the basis of whether an action existed at common law rather than by Berry's due process balancing test, because once this initial decision is made, the constitutionality of the statute has effectively been determined. Compare id. at 1166 (stating that because no cause of action existed at statehood, immunity statute is constitutional) with id. at 1176 (Stewart, Assoc. C.J., Dissenting) (finding that cause of action existed at statehood and then declaring, without analysis, that immunity statute is therefore unconstitutional "because it deprives [plaintiff] of a remedy by due course of law for an injury to his [or her] person"). These problems alone place a cloud of doubt over the validity of the post-Berry line of cases on governmental immunity, which effectively exalt the fruits of questionable legal archeology over the decisions of the legislature to modernize the judicially created governmental immunity law.
Turning next to the post-Berry line of cases dealing with issues other than governmental immunity, I note that the common law at statehood has played a less significant role. These cases therefore avoid the difficulty of finding that the constitution deems sacred the common law as it existed at statehood. However, these cases suffer from their own analytical infirmities.
Instead of focusing exclusively on the common law of 1896, these cases state that the legislature cannot restrict any judicially created cause of action, no matter when created, unless the legislature can show that it has provided an alternative remedy or that there is a clear social or economic need for the restriction. See Berry, 717 P.2d at 680 (" brogation 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." (emphasis added)); see also Cruz v. Wright, 765 P.2d 869, 871 (Utah 1988) (determining whether legislature had sufficiently strong justifications for abolishing common law loss-of-consortium cause of action). As a result, Berry has distorted the relationship between the legislature and the courts when it comes to who is in charge of making the law. Under orthodox notions of priority, the common law, made by Judges alone, can be modified or superseded by any legislative act. See 15A Am. Jur. 2d Common Law § 18 (1976). A legislative act can be struck down only if it conflicts with a constitutional provision. See 16 Am. Jur. 2d Constitutional Law §§ 3, 70, 150 (1979). But Berry, by the device of importing the common law into the constitution, has exalted the common law--the Judge-made law that is at the bottom of the law-making pecking order--to the top, beyond the legislature's effective reach. Thus, this court is placed in the position of gatekeeper of any effort of the legislature to restrict any common law cause of action, no matter when created. Absent our finding that the legislature has offered a justification that we are satisfied with, it cannot so act.
This gateke
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