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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
he open courts provision provides scant indication as to the extent of the remedy guarantee. Even so, dissecting the language of the open courts provision, two profitable clues are found. First, the provision states that "every person, for an injury done to him in his person, property or reputation shall have remedy." Utah Const. art. I, § 11 (emphasis added). Thus, the plain language of article I, section 11 prohibits the legislature and the courts from denying entirely any remedy for a legal right. Cf. Noonan v. City of Portland, 88 P.2d 808, 822 (Or. 1938) ("The legislature cannot . . . abolish a remedy and at the same time recognize the existence of a right."). Second, the provision does not merely state "shall have remedy" but instead provides "shall have remedy by due course of law." Utah Const. art. I, § 11 (emphasis added). This serves to cast the remedy guarantee in a procedural light. The subsequent phrase "which shall be administered without denial or unnecessary delay" reinforces this procedural emphasis. See id. Parties suffering legal injuries shall have remedy according to the dictates of the substantive law governing their action.
This procedural interpretation of the remedy guarantee is bolstered by the procedural nature of the injury clause and by our early article I, section 11 jurisprudence. First, as to the support provided by the injury clause, I note that interpreting the remedy guarantee to contain substantive limitations on the legislature's ability to limit remedies would be anomalous given the fact that the legislature possesses the greater power to abolish the cause of action. Second, regarding our pre-Berry cases, these cases deferred not only to the legislature's power to create rights, but also to the legislature's power to establish remedies. For example, the court in Brown stated:
"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." Brown v. Wightman, 47 Utah at 34, 151 P. at 367. For these reasons, I conclude that the remedy guarantee of the open courts provision provides procedural, not substantive, rights.
I recognize that this Conclusion is inconsistent with my prior opinions in Lee v. Gaufin, 867 P.2d at 590-92; Horton v. Goldminer's Daughter, 785 P.2d at 1096 (Zimmerman, J., Concurring); and Condemarin v. University Hospital, 775 P.2d at 366-69 (Zimmerman, J., Concurring in part). However, as this court has applied the Berry test in an increasing number of cases, the problems with Berry have become more apparent to me, prompting this review of that opinion and article I, section 11. As this analysis demonstrates, Berry, in its attempt to closely review tort reform legislation, led to the constitutionalization of the common law and to too-close scrutiny of the legislation.
Although I depart today from Berry and its substantive interpretation of article I, section 11, I believe there are other adequate grounds to prevent the legislature from unreasonably limiting the ability of the citizens of this state to recover for injuries to person, property, or reputation. But, having said that, I acknowledge that I would largely withdraw from an area of substantive law and leave the field in the hands of the legislature. Whatever misgivings I may have about the potential consequences of that decision, this court cannot continue to operate on the basis that we alone are entrusted with ensuring that tort violations are dealt with fairly. That burden legitimately rests on the shoulders of the legislature. Furthermore, my review
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