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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
ary, it is consistent with a procedural interpretation of article I, section 11. As one commentator on open courts provisions explained, many procedural jurisdictions view their open courts provision to be directed only to the judiciary, but that a more logical interpretation "would be that the [open courts provision] applies against all impediments to fair judicial process, be they legislative or judicial in origin." David Schuman, supra, at 1203.
Based on the foregoing, I conclude that, for example, barriers to the courthouse such as extremely high filing fees, extraordinarily short statutes of limitation, or arduous pretrial procedures may violate article I, section 11. See, e.g., Currier v. Holden, 862 P.2d 1357, 1372 (Utah Ct. App. 1993) (striking down three-month statute of limitations on petitions for habeas corpus as violative of article I, section 11). Additionally, the plain language of article I, section 11 would not permit the courts or the legislature to recognize a legal right but to entirely deny a remedy.
Applying the foregoing principles to the instant case, I would hold that the challenged statute, section 78-12-25.5 of the Utah Code, does not violate article I, section 11 because the open courts provision does not limit the legislature's power to eliminate common law causes of action, and the statute does not otherwise run afoul of article I, section 11.
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