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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
2d 572, 590-92 (Utah 1993) (Zimmerman, J., Concurring in the result, joined by Hall, C.J.) (relying on Berry to strike down medical malpractice statute of repose); Condemarin v. University Hosp., 775 P.2d 348 (Utah 1989) (divided court striking down damage cap on basis of either open courts or uniform operation); see also Crawford v. Tilley, 780 P.2d 1248, 1252 (Utah 1989) (interpreting Landowner Liability Act in manner that avoided conflict with article I, section 11). Before today, on only one occasion have we been satisfied with the legislative justification for limiting any common law cause of action created by this court. See Cruz v. Wright, 765 P.2d 869, 871 (Utah 1988) (upholding 1898 Married Woman's Act, which abolished husband's common law action for loss of consortium, under perfunctory Berry analysis). The significance of the Cruz holding is diminished by the extreme length of time since the passage of the 1898 Married Woman's Act, by the dubious existence of an action for loss of consortium in Utah common law, and by the fact that two prior cases of this court, one decided only one year earlier, had not found any constitutional problem with the Act. See Hackford v. Utah Power & Light Co., 740 P.2d 1281, 1286-87 (Utah 1987); Tjas v. Proctor, 591 P.2d 438 (Utah 1978).
I further note that legal scholars writing on open courts provisions have observed the problems of Berry's approach and have targeted it for criticism. One scholar was particularly critical of Berry's lack of deference to the legislature, writing:
"The Berry opinion is typical of the activist use of the remedies provision against products liability statutes of repose. The standard of review of the statute in question is extremely strict. The court looked no further than the stated legislative objectives. It did not consider additional plausible or even possible justifications such as the need for administrative efficiency and the need for an adjustment to the substantive law of products liability. A statute of repose could, for example, be thought to return products liability to its origins in warranty law. In addition, the decision here put the burden on the statute to be a rational means of correcting a clear social or economic evil. When the court found plausible arguments questioning the efficacy of statutes of repose in reducing the cost of product liability insurance, the law was found unconstitutional in the absence of compelling evidence that it would have the desired legislative effect."
John H. Bauman, Remedies Provisions in State Constitutions and the Proper Role of the State Courts, 26 Wake Forest L. Rev. 237, 270 (1991) (emphasis added) (footnotes omitted). These scholars also express concern that Berry usurps the legislature's power to make laws. See David Schuman, The Right to a Remedy, 65 Temp. L. Rev. 1197, 1215-16, 1217-18 (1992) (stating that approaches like Berry "permit courts to act like legislatures"). By constitutionalizing our most recent pronouncements on the common law, Berry effectively "place [this court's] view of public policy before that of the legislature and declare it inviolable." See John H. Bauman, supra, at 283.
The net result of the two problems of Berry and its progeny has been that this court's decisional law in the tort area has become enshrined as constitutionally protected from legislative modification and this court has set itself up as the final factual arbiter of the legitimacy of legislative purposes used to justify attempts to change that decisional law, granting absolutely no deference to the legislature as a Judge of the need to modify that decisional law. This result would be acceptable if an interpretation of the plain language of arti
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 Utah Personal Injury Attorneys
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