Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
rgued, cited, or adopted in any court, during any trial, except those enacted by the Governor and Legislative Assembly of this Territory, and those passed by the Congress of the United States when applicable; and no report, decision, or doings of any court shall be read, argued, cited, or adopted as precedent in any other trial."
Laws, Territory of Utah ch. LXIV, 260 § 1 (1855). Additionally, unlike many states, Utah does not have a provision in its constitution that adopts the common law as the rule of decision in its courts. The common law was not adopted as the rule of decision in Utah courts until 1898, when the legislature enacted a statute adopting the common law. See Revised Statutes of Utah, ch. 2 1898, title 65, § 2488 (currently codified at Utah Code Ann. § 68-3-1). Even that statute qualifies the common law adoption, stating:
"The common law of England so far as it was not repugnant to, or in conflict with, the constitution or laws of the United States, or the constitution or laws of this state, and so far only as it is consistent with and adapted to the natural and physical conditions of this state and the necessities of the people hereof, is hereby adopted, and shall be the rule of decision in all courts of this state." Utah Code Ann. § 68-3-1 (1998). An interpretation of article I, section 11 as constitutionalizing in 1896 the common law, which was not even qualifiedly made the law of the state until 1898, is inconsistent with this history.
Furthermore, Berry's constitutionalization of the common law is inconsistent with our pre-Berry case law. Pre-Berry jurisprudence on article I, section 11 focuses on the procedural guarantee of the provision, not on substantive protection. Both Salt Lake City v. Utah Light & Traction Co., 52 Utah 210, 173 P. 556 (1918), and Brown v. Wightman, 47 Utah 31, 151 P. 366 (1915), reflect a procedural interpretation of article I, section 11. In Utah Light & Traction Co., we stated that article I, section 11 "applies only to judicial questions." 52 Utah at 227, 173 P. at 563. This statement indicates that the open courts provision concerns only injuries and remedies recognized by law and, therefore, does not provide substantive limitations on the legislature, but instead is a procedural guarantee. This interpretation is even more apparent in Brown, where we stated, "Where no right of action is given . . . or no remedy exists, under either the common law or some statute, [open courts] provisions create none." 47 Utah at 34, 151 P. at 367; see also Madsen v. Borthick, 658 P.2d 627, 629 (Utah 1983) ("Article I, § 11 . . . was not meant to create a new remedy or a new right of action."). Elaborating on this point, the Brown court added:
"The right and power, as well as the duty, of creating rights and to provide remedies, lies with the Legislature, and not with the courts. Courts can only protect and enforce existing rights, and they may do that only in accordance with established and known remedies." 47 Utah at 34, 151 P. at 367. This passage from Brown, a case decided less than twenty years after the constitution's adoption, focuses exclusively on the procedural guarantee of article I, section 11: Courts are open to give due process for existing rights by providing established remedies, but the legislature possesses the power to determine what rights are enforceable and to establish remedies.
Later, in Masich, 113 Utah at 124, 191 P.2d at 624, we stated the well-settled legal principle that "no one has a vested right in any rule of law." Proceeding from this statement, we noted that "both statutory rights and common law rights can be taken away[;] otherwise, there can be no question that acts which abolish
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