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Day v. State5/11/1999
m the Conclusion that section 63-30-4 is unconstitutional because it violates article I, section 11 of the Utah Constitution. I would affirm the grant of judgment to the defendants.
Today's majority opinion marks yet another twist in the Berry v. Beech Aircraft saga. While our cases applying the Berry analysis in the area of governmental immunity have heretofore looked to the state of the law at the time of statehood as a reference point for determining the tort rights that the legislature may not reduce without meeting Berry's high standards, see Craftsman Builder's Supply, Inc. v. Butler Mfg. Co., 364 Utah Adv. Rep. 22, 42, 44-45 (March 5, 1999)(Zimmerman, J., Concurring in the result), today Justice Stewart explicitly abandons that reference point. See supra 36-40. This may be because of the absurdities that this standard has introduced into the law, as highlighted by the court of appeals analysis in this case. See Craftsman, 364 Utah Adv. Rep at 44-45 (Zimmerman, J., Concurring in the result). But in any event, Justice Stewart now says that under Berry, the sole referent against which any legislative attempt to limit tort liability will be measured is the "general law of rights and remedies at the time that the Legislature abrogates a remedy." See supra 38. The majority, then, no longer even purports to refer to any fixed historical point or fact to set the measure of the rights that article I, section 11 protects. It reads the Utah Constitution to effectively enshrine safe from legislative diminishment our tort case law and any pertinent legislative enactments on any day that the legislature tries to act.
It cannot be doubted that the Berry analysis puts this court in the role of second guessing the wisdom of the legislature by a standard that can seldom be met. The majority opinion, like other of our Berry precedents, closely reviews the whys and wherefores of the legislation under attack and finds them wanting. Here, as in Berry and Sun Valley Water Beds of Utah, Inc. V. Herm Hughes & Son, Inc., 782 P.2d 188, 193 (Utah 1989), for example, the majority finds that the legislature was naive and poorly informed, and concludes that "the stated factual and legal bases justifying the amendment were simply in error." See supra 48. The evil that the legislature thought it was addressing just doesn't exist, according to this court. Therefore, the statute is unconstitutional. Whatever I may think of the profundity of the legislature's justifications for section 63-30-4--justifications it found unpersuasive only a year later when it repealed the statute--I reject this court's claim of entitlement to constitutionally second guess the legislature in this fashion under the guise of article I, section 11. I continue to view this ad hoc constitutionalization of the existing law to put it beyond the legitimate reach of the legislature as an unjustifiable judicial arrogation of power, one certainly never intended by the drafters of the constitution and never anticipated by this court before Berry. See Craftsman, 364 Utah Adv. Rep at 45-48 (Zimmerman, J., Concurring in the result).
My views on this matter, and on Berry v. Beach Aircraft where this claim originated, are fully set forth in my concurrence in Craftsman, and will not be repeated here. But I will persist in asserting the illegitimacy of the course we are embarked on under Berry.
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