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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
eper role is in tension with traditional notions of the separation of powers doctrine. Article V, section 1 of the Utah Constitution provides:
"The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in cases herein expressly directed or permitted." Utah Const. art. V, § 1. Article VI, section 1 adds: "The Legislative power of the State shall be vested . . . n a Senate and House of Representatives which shall be designated the Legislature of the State of Utah . . . ." Utah Const. art. VI, § 1.
We delineated the scope of these provisions in Ritchie v. Richards, 14 Utah 345, 363, 46 P. 670, 675 (1896), where we stated: "The power to declare what the law shall be is legislative. The power to declare what is the law is judicial." Furthermore, we noted in Salt Lake City v. Utah Light & Traction Co. that article I, section 11 does not allow this court to "reach out and usurp powers which belong to another independent and co-ordinate branch of the state government." 52 Utah 210, 227, 173 P. 556, 563 (1918). Though the general principles of separation of powers do not require us to interpret article I, section 11 to retreat from constitutional analysis of legislative enactments, Berry has, as I noted above, distorted the relationship between the legislature and the judiciary by effectively constitutionalizing the common law as we determine it by very opaque hindsight. The legislature, not this court, is primarily charged with making the determination of the degree to which the law will recognize an injury . Such a determination involves the social policy choices best left to the citizens of this state acting through their elected legislators. This separation of powers conflict is most troubling in the post-Berry line of cases dealing with issues other than governmental immunity, because this court can continue to develop the common law either by eliminating or creating common law causes of action, but the legislature may only eliminate or modify a common law action, no matter when created, if the legislature can meet the difficult showing required under Berry. However, the governmental immunity line of cases also creates tension under the separation of powers doctrine, because in those cases, the legislature's ability to expand governmental immunity is shackled by the Judge-created common law as it existed in 1896.
When viewed in the historical context of this state, the validity of both lines of post-Berry cases is dubious. The Berry court said that "the common law at the time of statehood provides at least a measure of the kinds of legal rights that the framers must have had in mind for the protection of life, property, and reputation." Berry, 717 P.2d at 676 n.3. However, little reason exists for thinking that the drafters held the common law in such high regard. The early Mormon settlers of Utah were hostile to the common law, lawyers, and courts. As a result, there are relatively few reported cases in Utah in the almost fifty years between settlement and statehood. Most private controversies were either dealt with in Mormon ecclesiastical courts or mediated informally through local means. See Edwin B. Firmage, Religion and the Law: The Mormon Experience in the Nineteenth Century, 12 Cardozo L. Rev. 765, 788, 794 (1991). The hostility toward the common law is perhaps best illustrated by an early Utah territorial law that actively repudiated the common law, stating:
" o laws nor part of laws shall be read, a
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