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Day v. State5/11/1999
in DeBry v. Noble, 889 P.2d 428 (Utah 1995):
"The fundamental interests of "life, liberty, and property," as protected by the due process clause and of "person, property and reputation" as protected by article I, section 11 were to be protected as societal and jurisprudential concepts of those terms evolved. For the law to freeze the meaning of those clauses as of one point in time would be to deny the essential meaning and purpose that was built into those clauses by the broad, expansive language that the Constitution uses." 889 P.2d at 435.
The Legislature does, of course, have the power to abrogate such remedies. However, that power is not absolute. Under the test stated in Berry, an abrogation of remedies must meet the following standards:
"First, section 11 is satisfied if the law provides an injured person an effective and reasonable alternative remedy "by due course of law" for vindication of his constitutional interest. The benefit provided by the substitute must be substantially equal in value or other benefit to the remedy abrogated in providing essentially comparable substantive protection to one's person, property, or reputation, although the form of the substitute remedy may be different. . . ."
"Second, if there is no substitute or alternative remedy provided, abrogation of the remedy or cause of action may be justified only if 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." Berry, 717 P.2d at 680.
Thus, if the Legislature abrogates a remedy, and if it provides an "effective and reasonable alternative remedy," id., the abrogation meets the requirements of Article I, section 11. See Payne v. Myers, 743 P.2d 186, 190 (Utah 1987) (suit against the State for negligence in lieu of suit against state employee). In a number of instances, the Legislature has provided non-common law alternative remedies in lieu of common law remedies that it abrogated, such as in the No-Fault Insurance Act, the Worker 's Compensation Act, and the Occupational Disease Act. See Masich v. United States Smelting, Refining & Mining Co., 113 Utah 101, 191 P.2d 612, 624-25 (Utah 1948).
We examine now the first part of the Berry test. In 1983, the Legislature amended section 63-30-4(3) and abrogated all remedies against the tortfeasors themselves for negligence and recklessness of government employees acting in the course and scope of their employment. 1983 Utah Laws ch. 129, ยง 3. Government employees are now personally liable only for fraud or malice. See id. The consequence of that amendment was to abrogate the remedies that one who had been injured by the negligence or recklessness of a government employee had against the government employee personally. However, in lieu of that remedy, one injured by the negligence or recklessness of a government employee was provided a remedy against the government agency.
Thus, Mrs. Day was barred by section 63-30-4 from asserting an action against Officer Colyar. However, the amendment to section 63-30-7 in 1990 also barred her action against the government agency. Thus, for a period of a year and six days, the State barred all actions of the type asserted by Mrs. Day against both the government agency and its employees.
Under this circumstance, we must turn to the second part of the Berry test. If the Legislature provides no alternative remedy, the abrogation is valid if it is justified by 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 object
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