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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
nterpreting the open courts provision to place a substantive limitation on the legislature's ability to change the law regarding what constitutes an "injury." Because Berry's focus was on the change enacted by the legislature, Berry effectively defined "legal injury" as any injury that is or was recognized at some point in this state's history as an injury that supported a cause of action. Though Berry tried to avoid constitutionalizing the common law, see 717 P.2d at 676, this result was an inevitable consequence of Berry's substantive interpretation of the open courts provision.
By giving article I, section 11 a substantive interpretation, Berry left the courts with the need to find some baseline against which to Judge legislative alterations of the law. Only when the legislature changes the law and thereby deprives a person of a remedy that could have been received prior to the change does an article I, section 11 question arise. The question in such cases becomes whether the legislature can justify the change from the earlier state of the law. Because Judge-made common law existed prior to legislatively made statutory law, the common law is the baseline against which such changes in the law must eventually be Judged.
Interpreting the open courts provision to contain substantive protection of particular causes of action, thereby constitutionalizing the common law, is made absurd by the fact that Utah is a state that has a history, prior to statehood, of abjuring the common law entirely. This interpretation is also inconsistent with our pre-Berry case law, which, as I noted above, focused on the procedural guarantee of the open courts provision. Given the inconsistency of Berry's interpretation of the open courts provision with this history, a substantive interpretation is cast into even greater doubt because of the tension it creates under the separation of powers doctrine of article V, section 1 of the Utah Constitution.
All this has, as noted above, distorted the relationship that ordinarily would be thought to obtain between the legislature and the judiciary respecting common law causes of action. Any such shift in all the ordinary assumptions about who is in charge of what functions cannot realistically be thought implicit in the vague generalization of article I, section 11. I conclude that Berry erred by reading such a fundamental shift in the relationship into the malleable language of article I, section 11.
Having rejected Berry's reading of article I, section 11, it is incumbent on me to offer an alternative interpretation, one that addresses the need to make the provision meaningful and consistent with related constitutional provisions. First, to determine whether an "injury" to person, property, or reputation has occurred, we should look to the statutes and common law in existence at the time of the accrual of the claim. Thus, I would find that the open courts provision permits the legislature to abolish or limit both statutory and common law causes of action.
Having resolved how to define "injury," I would next determine the meaning of the phrase "shall have remedy by due course of law." As was the case with the term "injury," the open courts provision does not provide any guidance as to the precise meaning of "remedy." But the term "remedy" is one that the courts have greater experience in applying. A "remedy" is " he means by which a right is enforced or the violation of a right is prevented, redressed, or compensated." Black's Law Dictionary 1294 (6th ed. 1990). Though we know what a "remedy" is, we still face the task of demarcating the scope of the remedy guarantee.
Turning to this task, I initially note that t
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