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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
actions for seduction, breach of promise, criminal conversation, and alienation of affections, would be unconstitutional." 113 Utah at 124-25, 191 P.2d at 624. Justice Wolfe, speaking directly to the question of the legislature's power to change the common law, wrote:
"I do not understand that Article I, Sec. 11, of the Constitution of Utah, prohibits the modification or even the entire removal or destruction of a common law right by legislative enactment. There is still such a thing as damnum absque injuria [damage without the violation of a legal right] . . . . I see no reason why the common law which recognized rights, duties and liabilities to meet the conditions of a certain period may not later recede from those or modify them if the needs of the people require that." 113 Utah at 128, 191 P.2d at 626 (Wolfe, J., Concurring). In light of this history, Berry and its progeny's almost casual operative placement of the common law on a pedestal is quite incongruous.
I next move on to consider Berry's second major problem or failing: the extreme strictness in application of the second prong of its test. As formulated and applied by this court, the second prong of the Berry analysis, which requires the legislature to justify its limitation by showing that "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," has placed the courts' common law beyond the legislature's reach. Berry, 717 P.2d at 680 (citations omitted); see also Horton, 785 P.2d at 1094-95 (summarily dismissing justifications for architects and builders statute of repose); Sun Valley, 782 P.2d at 193 (same); Berry, 717 P.2d at 681-83 (relying on law review notes and cases from other jurisdictions to dismiss justifications for products liability statutes of repose). Such an impediment to modifications of the common law exacerbates the separation of powers problem with Berry's constitutionalization of the common law, is inconsistent with the legislature's constitutional role in remedying defects in the common law, and is particularly ironic given the position of the common law in the normal hierarchy of laws and the fact that the common law is the rule of decision in all courts of this state by virtue of the 1898 legislative decision to adopt the common law by statute. See Utah Code Ann. ยง 68-3-1 (1996).
The problem with the severe strictness of the Berry test is perhaps better understood in light of the history of article I, section 11 jurisprudence in this state. Since Berry was issued, we have experienced a proliferation in the number of cases arguing that the legislature has abridged article I, section 11. During the eighty-nine years prior to Berry, we never once found an act unconstitutional under article I, section 11. In the past twelve years from Berry onward, we have issued three cases striking down statutes as interfering with causes of action that we concluded were insulated from legislative tampering absent a strong showing of necessity. See Horton, 785 P.2d at 1096 (striking down architects and builders statute of repose as unconstitutional); Sun Valley, 782 P.2d at 194 (same); Berry, 717 P.2d at 683 (striking down products liability statutes of repose). Additionally, several Justices, including myself, have relied upon Berry to state that they would find particular statutes unconstitutional. See Ross, 920 P.2d at 1168 (Stewart, Assoc. C.J., Dissenting, joined by Durham, J.) (arguing that section 63-30-4 is unconstitutional under article I, section 11); Bott v. DeLand, 922 P.2d 732, 744-45 (Utah 1996) (Stewart, Assoc. C.J., Dissenting, joined by Durham, J.) (same); Lee v. Gaufin, 867 P.
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