                    This opinion is subject to revision before final
                         publication in the Pacific Reporter

                                    2017 UT 86


                                       IN THE

          SUPREME COURT OF THE STATE OF UTAH

                    JAMES WAITE and LUIS A. ORTEGA,
                              Petitioners,
                                          v.
       UTAH LABOR COMMISSION, FARR BETTER PREMIUM ICE CREAM,
           SANDY CITY, and WORKERS COMPENSATION FUND,
                            Respondents.

                                No. 20150384
                           Filed December 1, 2017

                Petition for Review of an Agency Decision

                                    Attorneys:
        Phillip B. Shell, Nathan Whittaker, Murray, for petitioners
           Jaceson R. Maughan, Salt Lake City, for respondent
                        Utah Labor Commission
    Hans M. Scheffler, Eugene C. Miller, Jr., Michael D. Karras, Sandy,
    for respondents Farr Better Premium Ice Cream, Sandy City, and
                      Workers Compensation Fund
          Sean D. Reyes, Att’y Gen., Tyler R. Green, Solic. Gen.,
         Stanford E. Purser, Deputy Solic. Gen., Brent A. Burnett,
         Asst. Att’y Gen., Salt Lake City, for amicus State of Utah
       Troy L. Booher, Beth E. Kennedy, Salt Lake City, for amicus
                      Utah State Board of Regents
          Colin P. King, Charles H. Thronson, Paul M. Simmons,
          Salt Lake City, for amicus Utah Association for Justice

    CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
              JUSTICE DURHAM* and JUSTICE HIMONAS joined.
               ASSOCIATE CHIEF JUSTICE LEE filed an opinion
                      concurring in the judgment.
                JUSTICE PEARCE filed a concurring opinion.


 Justice Durham sat on this case and voted prior to her retirement
on November 15, 2017.
                      WAITE v. LABOR COMM’N
                        Opinion of the Court
   CHIEF JUSTICE DURRANT, opinion of the Court:
                            Introduction
    ¶ 1 Here we address the constitutionality of Utah Code section
34A-2-417(2)(a)(ii), a provision of the Workers’ Compensation Act
(WCA) that limits the time an injured worker has to prove a claim.
The section provides that an employee claiming compensation for a
workplace injury must be “able to meet the employee’s burden of
proving that the employee is due the compensation claimed” within
“12 years from the date of the accident.” If the employee cannot, the
claim is barred. Petitioners are two workers who were injured as a
result of a workplace accident and filed claims to receive permanent
total disability benefits more than twelve years after the original
accident. Both had their claims denied and dismissed as untimely
under section 34A-2-417(2)(a)(ii). In petitioning for review of the
Utah Labor Commission’s orders, they argue that this statute acts as
a statute of repose and so is unconstitutional under the Open Courts
Clause of the Utah Constitution. We conclude that while section
34A-2-417(2)(a)(ii) is a statute of repose, it is nevertheless
constitutional under the Open Courts Clause.
                            Background
    ¶ 2 This consolidated petition stems from two separate orders of
the Utah Labor Commission (Commission) denying benefits to two
different workers, James Waite and Luis Ortega (collectively,
Petitioners). As we are called upon today to decide only questions of
law, the facts underlying the Commission’s orders will be discussed
only briefly.
    ¶ 3 Each Petitioner was injured in a workplace accident, each
filed a request for compensation within six years of the workplace
accident in accordance with Utah Code section 34A-2-417(2)(a)(i),
and each had his condition worsen after an initial determination of
compensation. As a result, each filed for additional benefits after
twelve years from the date of the original accident. Each Petitioner’s
claim was denied by an administrative law judge (ALJ) on the basis
that he had failed to “meet the employee’s burden of proving that
the employee is due the compensation claimed” within the twelve-
year period described in section 34A-2-417(2)(a)(ii). Each Petitioner
requested the Commission review the ALJ’s decision. Among the
arguments each Petitioner asserted as a basis for reversal was the
one on appeal here: that section 34A-2-417(2)(a)(ii) operates as a
statute of repose and so is unconstitutional under the Open Courts
Clause of the Utah Constitution.


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                           Opinion of the Court
    ¶ 4 The Commission, in reviewing Petitioners’ claims, noted in
each case that the statute at issue appeared to operate as an invalid
statute of repose, but concluded that it had no authority as an agency
to decide whether the statute was constitutional. Both Petitioners
petitioned the court of appeals for review of the Commission’s
orders. The court of appeals consolidated the petitions and certified
the case to us pursuant to Utah Code section 78A-4-103(3) and rule
43 of the Utah Rules of Appellate Procedure.
                            Standard of Review
    ¶ 5 The Utah Administrative Procedures Act vests our court
with “jurisdiction to review all final agency action resulting from
formal adjudicative proceedings.”1 The Act empowers us to “grant
relief” where “a person seeking judicial review has been
substantially prejudiced” because “the agency action, or the statute
or rule on which the agency action is based, is unconstitutional on its
face or as applied”2 or because “the agency has erroneously
interpreted or applied the law.”3 We first address whether the
twelve-year limitations period created by Utah Code section 34A-2-
417(2)(a)(ii) should be properly understood as a statute of repose.
Because we conclude that the section is a statute of repose, we then
address whether it is facially unconstitutional under the Utah Open
Courts Clause.4 The interpretation and constitutionality of a statute
are questions of law that we review for correctness.5



_____________________________________________________________

   1   UTAH CODE § 63G-4-403(1).
   2   Id. § 63G-4-403(4)(a).
   3   Id. § 63G-4-403(4)(d).
   4 We note that the Petitioners raised as a third argument that the
section is facially unconstitutional under the Utah Uniform
Operation of Laws Clause. This argument was inadequately briefed
as the Petitioners provided almost no analysis of how our Uniform
Operation of Laws precedent applied to section 34A-2-417(2)(a)(ii).
See State v. Thomas, 961 P.2d 299, 305 (Utah 1998) (declaring that an
issue is inadequately briefed “when the overall analysis of the issue
is so lacking as to shift the burden of the research and argument to
the reviewing court”). We therefore do not reach this issue.
   Avis v. Bd. of Review of Indus. Comm’n, 837 P.2d 584, 586 (Utah Ct.
   5

App. 1992).

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                          WAITE v. LABOR COMM’N
                            Opinion of the Court
                                  Analysis
    ¶ 6 There are two issues on appeal. First, whether Utah Code
section 34A-2-417(2)(a)(ii) should be read as a statute of limitation or
a statute of repose. If it is the former, our analysis ends as Petitioners
have not raised any argument that the section would be
unconstitutional as a statute of limitation and, indeed, such an
argument would likely be unavailing as “[s]tate legislatures possess
the discretion to enact statutes of limitations, and these statutes are
presumptively constitutional.”6 If, on the other hand, we interpret
the section as a statute of repose, we must then consider whether it is
unconstitutional under the Open Courts Clause. We address each
issue in turn and conclude that although the statute should be read
as a statute of repose, it survives under the Open Courts Clause.
             I. Section 34A-2-417(2)(a)(ii) is a Statute of Repose
    ¶ 7 The first issue in this case is whether Utah Code section
34A-2-417(2)(a)(ii) should be interpreted as a statute of limitation or
as a statute of repose. This is a difficult question, but one that turns
on when a “cause of action” accrues under the WCA, a question we
have yet to resolve definitively. We address this issue at length in the
companion case of Petersen v. Labor Commission.7
   ¶8       Section 34A-2-417(2)(a) reads as follows:
         A claim [for disability benefits] is barred, unless the
         employee: (i) files an application for hearing with the
         Division of Adjudication no later than six years from
         the date of the accident; and (ii) by no later than 12
         years from the date of the accident, is able to meet the
         employee’s burden of proving that the employee is due
         the compensation claimed under this chapter.
Thus, this section imposes two requirements on an injured worker
who seeks disability benefits: First, the worker must file an
application for a hearing within six years of the date of the accident
giving rise to the injury for which the worker seeks compensation.
Then, the worker must prove that he or she is entitled to
compensation within twelve years of the injury.8

_____________________________________________________________
   6   Id. at 587.
   7   2017 UT 87, -- P.3d --.
   8 The court of appeals has upheld the six year filing limit as a
constitutional statute of limitation. See Avis v. Bd. Of Review of Indus.
                                                            (Continued)
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                           Opinion of the Court
   ¶ 9 The initial filing of the application for a hearing invokes the
Commission’s continuing jurisdiction to hear and decide an
employee’s claims for compensation due to workplace injuries.9
Because the Commission’s jurisdiction is continuing, the
Commission, “[a]fter notice and hearing . . . may from time to time
modify or change a former finding or order” awarding
compensation.10 We have “recognized two appropriate bases for
reopening and reevaluating an award: (1) a change in condition or
new development or (2) the inadequacy of a previous award.”11
Ultimately, “the Commission may exercise its continuing jurisdiction
where a claimant’s medical condition deviates from its anticipated
course.”12
    ¶ 10 Prior to 1999, there was no limit on the Commission’s
continuing jurisdiction to revisit an award of compensation for
permanent total disability. The WCA required only that the
employee file within six years—not that he or she prove entitlement
to benefits within a set timeframe. In 1998, the court of appeals
specifically rejected a claim that the Commission’s jurisdiction ended
at the end of the six year filing period and held that the
Commission’s jurisdiction “in these cases is indefinite,”13 an
interpretation we later affirmed.14 The next year, the legislature
amended the WCA to include the requirement that the employee
“meet the employee’s burden of proving that the employee is due
the compensation claimed” within twelve years from the date of the
accident.15 As we stated in Ortega v. Meadow Valley Construction, by
enacting this amendment, “the six-year limitation for filing an
application for hearing was retained, and a twelve-year cap was

Comm’n, 837 P.2d at 586–88; Middlestadt v. Indus. Comm’n, 852 P.2d
1012, 1013–14 (Utah Ct. App. 1993).
   9   UTAH CODE § 34A-2-420(1)(a).
   10   Id. § 34A-2-420(1)(b).
   11Employers’ Reinsurance Fund v. Labor Comm’n, 2012 UT 76, ¶ 23,
289 P.3d 572.
   12   Id.
   13Burgess v. Siaperas Sand & Gravel, 965 P.2d 583, 589 (Utah Ct.
App. 1998).
   14   See Ortega v. Meadow Valley Constr., 2000 UT 24, ¶ 10, 996 P.2d
1039.
   15   UTAH CODE § 34A-2-417(2)(a)(ii).

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                         WAITE v. LABOR COMM’N
                           Opinion of the Court
established on the continuing jurisdiction of the Commission to
reexamine the claim if the employee’s physical condition
worsened.”16
    ¶ 11 Petitioners challenge this twelve-year timeframe as an
unconstitutional statute of repose. The Workers Compensation Fund
(WCF) contends that it is a statute of limitation. “Whether a statute
that bars or terminates a claim for relief is a statute of limitations or a
statute of repose depends on the nature of the statute and the
manner in which it operates to cut off the legal right of a person to
obtain a remedy for an injury.”17 We described the difference
between the two types of statutes in Berry ex rel. Berry v. Beech
Aircraft Corp., the seminal case addressing the constitutionality of
statutes of repose.18 There we stated:
         A statute of limitations requires a lawsuit to be filed
         within a specified period of time after a legal right has
         been violated or the remedy for the wrong committed
         is deemed waived. A statute of repose bars all actions
         after a specified period of time has run from the
         occurrence of some event other than the occurrence of
         an injury that gives rise to a cause of
         action. . . . Therefore, a statute of repose may bar the
         filing of a lawsuit even though the cause of action did
         not even arise until after it was barred and even though
         the injured person was diligent in seeking a judicial
         remedy.19
In short, we distinguish statutes of limitation and statutes of repose
by looking to the event that triggers the start of the statutory
timeframe: if the trigger is the accrual of a cause of action, it is a



_____________________________________________________________
   16  2000 UT 24, ¶ 12. The statute does provide for a limited
extension of the Commission’s jurisdiction in cases where “the
employee is fully cooperating in a commission approved
reemployment plan” or “the employee is actively adjudicating issues
of compensability before the commission.” UTAH CODE § 34A-2-417
(2)(c)(ii)(A)–(B).
   17   Stoker v. Workers' Comp. Fund, 889 P.2d 409, 411 (Utah 1994).
   18   717 P.2d 670 (Utah 1985).
   19   Id. at 672.

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                           Opinion of the Court
statute of limitation, but if it is some other event, it is a statute of
repose.20
    ¶ 12 This, of course, raises the question of when a cause of action
accrues under the WCA. We have never directly addressed this
question.21 In general, “a cause of action accrues upon the happening
of the last event necessary to complete the cause of action.” 22 Stated
another way, “[a] cause of action arises the moment an action may be
maintained to enforce a legal right.”23
    ¶ 13 The WCF argues that a cause of action under the WCA—the
right to claim compensation for a workplace injury—arises at the
time of the workplace accident. Under the WCF’s view, once the
worker has experienced an accident causing an injury, the worker
can request compensation. The fact that the compensation award
may need to be adjusted later does not change the fact that the
worker’s claim arose on the date of the accident. As we have stated
on multiple occasions, “A claim for compensation under the [WCA]
is only one claim, no matter how many hearings are had or how
many distinct awards are made. It is a claim by the employee for
compensation for the injury he has sustained, notwithstanding the
compensation may be determined from time to time resulting in
many distinct awards.”24 Therefore, the WCF contends, because the
twelve-year limitations period begins on “the date of the accident,”
which is the same date on which the cause of action accrues, the
statute is a statute of limitations, not a statute of repose.
   ¶ 14 Petitioners respond by pointing out that the Commission
defers deciding disability claims until after a claimant’s injuries have
_____________________________________________________________
   20 See Sun Valley Water Beds of Utah, Inc. v. Herm Hughes & Sons,
Inc., 782 P.2d 188, 189 (Utah 1989) (“A statute of limitations
precludes suit a legislatively imposed number of years after the
accrual of a cause of action. A statute of repose bars suit a specified
number of years after the occurrence of a particular event without
regard to the date of the accrual of the cause of action.”).
   21 The court of appeals has held in the context of a constitutional
challenge to the six-year filing period that “a worker’s cause of
action accrues when the industrial accident occurs.” Middlestadt, 852
P.2d at 1013.
   22   Becton Dickinson & Co. v. Reese, 668 P.2d 1254, 1257 (Utah 1983).
   23   Ash v. State, 572 P.2d 1374, 1379 (Utah 1977).
   24   Aetna Life Ins. Co. v. Indus. Comm’n, 274 P. 139, 143 (Utah 1929).

                                      7
                         WAITE v. LABOR COMM’N
                          Opinion of the Court
stabilized,25 and that claimants have to essentially start a new action
for compensation when there has been either “a change in condition
or new development” or when the previous award has shown itself
to be inadequate.26 Each new request for hearing receives its own
case number and triggers all the procedures that a new request
would, such as discovery. Indeed, we have described these
additional hearings as “later claim[s] relating to the specified
industrial injury.”27 Accordingly, Petitioners argue that the last event
necessary for a claimant to gain a right to claim disability benefits is
not the workplace accident, but the later stabilization or changed
circumstance—the event that entitles the claimant to a new or
changed award. Because the twelve-year period is tied to the date of
accident, and not to the time that the worker becomes legally eligible
to claim the additional benefits,28 the statute can cut off a claimant’s
right to assert a claim and is accordingly a statute of repose.
    ¶ 15 Although this is a close question, the Petitioners present the
better reading of section 34A-2-417(2)(a)(ii). The WCF would have us
treat a claim for compensation as similar to a claim for personal
injury in that an injured worker can only assert a claim once, though
the actual payment amount may be modified at a later date.
Workers’ compensation claims, however, are a unique type of
remedy. Indeed, we have rejected comparisons to personal injury
awards in the past.29 “Workers’ compensation claims are best viewed


_____________________________________________________________
   25 See Color Country Mgmt. v. Labor Comm’n, 2001 UT App 370,
¶ 26, 38 P.3d 969.
   26 Reinsurance Fund, 2012 UT 76, ¶ 23 (citation omitted); see also
Sheppick v. Albertson’s, Inc., 922 P.2d 769, 775 n.2 (“Such changes
could include a deterioration of the former employee’s condition or
the discovery of a previously unnoticed injury.” (citation omitted)).
   27   Reinsurance Fund, 2012 UT 76, ¶ 28.
   28 See id. ¶ 29 (“When Mr. Henningson did not improve as
anticipated and was declared permanently and totally disabled by
his physician in 1997, he was eligible to file an application for
hearing seeking additional benefits because his award was
inadequate.”).
   29 Stoker, 889 P.2d at 411 (“These remedies, whether viewed
individually or together, are not analogous to an ordinary lump-sum
judgment that the common law provides for personal injury actions.
Not only may benefits be paid over a period of time rather than in a
                                                         (Continued)
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                            Opinion of the Court
as a process, rather than as a discrete event . . . .”30 Although a claim
for compensation is, as we have stated, “one claim” for purposes of
invoking the Commission’s continuing jurisdiction, it can be made
up of a series of claims, hearings, and awards.31 The WCA already
has a statute of limitations—section 34A-2-417(2)(a)(i)—which
requires a claimant to file within six years of the first accrual of the
claimant’s right to invoke the Commission’s jurisdiction. Section
417(2)(a)(ii) cuts off a claimant’s right to file additional claims based
on changed circumstances—even if those claims could not have been
asserted prior to the expiration of the twelve-year period.
    ¶ 16 We have already described section 34A-2-417(2)(a)(ii) as a
statute of repose that imposes “a twelve-year limit to the
Commission’s continuing jurisdiction,” though this description was
in dicta.32 Our prior description of the statute was correct because it
acts like a statute of repose and is not always tied to the date that the
employee becomes eligible to maintain an action for compensation.
As discussed above, section 417(2)(a)(ii) ends the continuing
jurisdiction of the Commission to adjust awards in light of changed
circumstances. The Commission’s jurisdiction otherwise extends to
hearing and deciding a claim for benefits upon “the discovery of a
previously unnoticed injury,”33 or when the Commission originally
determined that the claimant was not due any benefits, but later
became disabled.34 Thus, there may be circumstances where a
claimant was not entitled to any disability benefits until after the
twelve-year period, because he or she did not discover the injury
until after twelve years had expired. Because a claimant is “eligible
to file an application for hearing seeking additional benefits because
his award was inadequate”35 only after the changed circumstances—

lump-sum judgment, but an award of benefits does not generally
have the res judicata effect of a judgment.”).
   30   Color Country Mgmt., 2001 UT App 370, ¶ 26.
   31   See Reinsurance Fund, 2012 UT 76, ¶ 28.
   32 Id. ¶ 21 n.4. The context of the case was somewhat analogous to
the present one, in that there was a worker who was claiming
additional benefits beyond the twelve-year period. We held that the
statute was inapplicable, however, because the worker’s accident
occurred before the amendment.
   33   Sheppick, 922 P.2d at 775 n.2.
   34   See Ortega, 2000 UT 24, ¶ 13.
   35   See Reinsurance Fund, 2012 UT 76, ¶ 29.

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                          WAITE v. LABOR COMM’N
                            Opinion of the Court
the discovery of the full extent of the injury resulting from the
workplace accident—the twelve-year period is not tied to the accrual
of the worker’s right to claim benefits, and section 417(2)(a)(ii)
should be interpreted as a statute of repose.
   ¶ 17 Having held that section 34A-2-417(2)(a)(ii) is a statute of
repose, we now consider whether it violates the Open Courts Clause
of the Utah Constitution by impermissibly abrogating a person’s
right to a remedy.36 As discussed below, we conclude that it does not
violate the Open Courts Clause and so withstands scrutiny under
that constitutional provision.
                          II. Open Courts Clause
   ¶ 18 The meaning of the Open Courts Clause of the Utah
Constitution has “spawned extensive debate in our opinions.”37 The
clause itself states:
         All courts shall be open, and every person, for an
         injury done to him in his person, property or
         reputation, shall have remedy by due course of law,
         which shall be administered without denial or
         unnecessary delay; and no person shall be barred from
         prosecuting or defending before any tribunal in this
         State, by himself or counsel, any civil cause to which he
         is a party.38

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   36 We note that in our companion case of Petersen v. Labor
Commission, also decided today, we concluded that the statute at
issue there, Utah Code section 35-1-65, did not operate as an
unconstitutional statute of repose because it did not cut off a
previously existing remedy. 2017 UT 87, ¶ 17, --- P.3d ---. Specifically,
because no injured worker ever enjoyed the right of temporary total
disability compensation more than eight years after an injury, section
35-1-65 did not cut off a previously existing remedy. In this case,
section 34A-2-417(2)(a)(ii) was added to the WCA by amendment in
1999. Prior to that time, injured workers did enjoy the right of
compensation for permanent total disability more than twelve years
from the date of an accident. Because this amendment to the WCA
took away a remedy guaranteed to a previous generation of workers,
our precedent directs that we assess its constitutionality in light of
the Open Courts Clause.
   37   In re Adoption of B.Y., 2015 UT 67, ¶ 57, 356 P.3d. 1215.
   38   UTAH CONST. art. I, § 11.

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                           Opinion of the Court
In Berry ex rel. Berry v. Beech Aircraft Corp., “[t]he court’s majority . . .
embraced a substantive conception of the open courts protection.”39
Since that case, we have held that, although the “legislature may
create, define, and modernize the law[,] . . . it does not have
unbridled power” to do so.40 Thus, the Open Courts Clause acts as a
substantive check on legislative power. And although our prior cases
have viewed statutes of repose with some constitutional suspicion,
“we have clearly stated that the open courts clause does not
necessarily forbid all statutes of repose[,] but that such statutes can
be constitutional when the possibility of injury and damage is highly
remote and unexpected.”41 So, a statute of repose is not
automatically unconstitutional, but can be upheld if it satisfies the
test we adopted in Berry.
    ¶ 19 In Berry, we established a three-part test to determine
whether a legislative act runs afoul of the Open Courts Clause.
Under this test, we look first to whether the legislature has abrogated
a cause of action.42 If it has, we then determine whether “the law
provides an injured person an effective and reasonable alternative
remedy.”43 “[I]f 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.”44
    ¶ 20 The parties agree that if section 34A-2-417(2)(a)(ii) is
interpreted as a statute of repose, it has abrogated an existing
remedy and that the legislature has not provided an alternative
remedy. Accordingly, the parties dispute only whether imposing this
statute of repose eliminates a “clear social or economic evil” and, if it
does, whether it does so in an “arbitrary or unreasonable” way. We
address these two components of the test in turn.
_____________________________________________________________
   39 In re Adoption of B.Y., 2015 UT 67, ¶ 57 (citing Berry ex rel. Berry
v. Beech Aircraft Corp., 717 P.2d 670, 680 (Utah 1985)).
   40Sun Valley Water Beds of Utah, Inc. v. Herm Hughes & Son, Inc.,
782 P.2d 188, 191 (Utah 1989).
   41 Craftsman Builder’s Supply, Inc. v. Butler Mfg. Co., 1999 UT 18,
¶ 21, 974 P.2d 1194.
   42   Laney v. Fairview City, 2002 UT 79, ¶ 49, 57 P.3d 1007.
   43   Berry, 717 P.2d at 680.
   44   Id.

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                           Opinion of the Court
                      A. Clear Social or Economic Evil
    ¶ 21 The first component of our analysis of whether the
legislature was justified in abrogating a remedy is to determine
whether the legislature was acting in response to a “clear social or
economic evil.” In order to address the parties’ arguments in this
regard, however, we must first resolve a dispute that exists in our
caselaw about the presumption of constitutionality of statutes under
the Berry test. In a series of cases we have held or suggested that
when a statute is challenged under the Open Courts Clause, and the
statute is shown to abrogate a cause of action without providing for
an alternate remedy, “we have, de facto, shifted from a presumption
that the limiting statute is constitutional to a presumption that the
statute is unconstitutional, placing the burden to show that the Berry
test is satisfied upon those seeking to uphold the challenged
statute.”45
   ¶ 22 But more recently we have clarified that the view of the
presumption of constitutionality we expressed in these cases is no
longer good law. In Judd v. Drezga, “we recognize[d] an obligation of
deference to legislative judgments in a Berry review, and to the
extent this differ[ed] from our prior application of Berry, those prior
applications [were] disavowed.”46 In that case, we looked to the
_____________________________________________________________
   45 Lee v. Gaufin, 867 P.2d 572, 591 (Utah 1993) (Zimmerman, J.,
concurring); see also Laney, 2002 UT 79, ¶ 63 (quoting with approval
Justice Zimmerman’s concurrence in Lee v. Gaufin); Wood v. Univ. of
Utah Med. Ctr., 2002 UT 134, ¶¶ 41–47, 67 P.3d 436 (Durham, C.J.,
dissenting) (stating that “our jurisprudence for many decades on this
issue has provided a wealth of justification for the standard we have
employed,” and that “this court has consistently rejected the
presumption of constitutionality of statutes challenged under the
[Open Courts Clause],” in a portion of an opinion which garnered a
majority of justices); Horton v. Goldminer’s Daughter, 785 P.2d 1087,
1092–94 (Utah 1989) (rejecting other states’ approach to the
constitutionality of statutes of repose, which included “heavy
reliance on the presumption of constitutionality generally accorded
legislative enactments . . . coupled with the requirement that there be
only a rational basis for the statutory enactment” and holding that
the balancing between the right of a person to a remedy and the
legislative purpose of “end[ing] the potential threat of a lawsuit to
some construction professionals” “has been done by the open courts
clause” in favor of the right to a remedy).
   46   2004 UT 91, ¶ 11, 103 P.3d 135.

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                           Opinion of the Court
purpose the legislature included in the statute and stated that
“[a]lthough the empirical truth of these findings is a matter of some
dispute, we will not undertake the same investigation as the
legislature.”47 We ultimately held that, “[w]hen an issue is fairly
debatable, we cannot say that the legislature overstepped its
constitutional bounds when it determined that there was a crisis
needing a remedy.”48
    ¶ 23 Although Judd apparently resolved this question, Petitioners
argue that the deferential standard we adopted in Judd applies only
when the legislature has made specific findings of purpose. They
point to the fact that the statute at issue in Judd had “stated
legislative findings” that there was “a crisis in the health care
industry” justifying the statute.49 Under Petitioners’ approach, we
would defer to “legislative judgments”50 as to the presence of an evil
to be rectified only where those judgments are clearly expressed,
which they assert tracks the Berry test of looking to whether there is
a “clear social or economic evil to be eliminated.”51
     ¶ 24 Petitioners’ approach ignores Judd’s reasoning and misstates
its holding. In Judd, we looked not only to the legislative findings
contained in the statute, but we also considered the investigation the
legislature had done—“its data-gathering methods and
conclusions”—in making those findings.52 We noted that both sides
cited “various studies and articles[] that ostensibly support their
position.”53 We deferred to the legislature not because it had codified
its findings, but because the legislature had resolved a policy dispute
after researching and debating the issue. We noted that “[a] court is
ill-suited to undertake investigation of such a nature” and held that
“our power does not extend so far as to permit imposition of our
views on such policy disputes.”54 Accordingly, “[o]ur inquiry under
the ‘clear social or economic evil’ portion of the Berry test is . . .
_____________________________________________________________
   47   Id. ¶ 13.
   48   Id. ¶ 15 (emphasis added).
   49   Id. ¶¶ 13–15.
   50   Id. ¶ 11.
   51   Berry, 717 P.2d at 680.
   52   Judd, 2004 UT 91, ¶ 13.
   53   Id. ¶ 14.
   54   Id. ¶¶ 13–14.

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                         WAITE v. LABOR COMM’N
                           Opinion of the Court
limited” to a determination of “whether the legislature overstepped
the bounds of its constitutional authority in enacting [the statute],
not whether it made wise policy in doing so.”55 Thus, “[w]hen an
issue is fairly debatable, we cannot say that the legislature
overstepped its constitutional bounds when it determined that there
was a crisis needing a remedy.”56
     ¶ 25 Turning to the statute at issue in this case, although there
are no codified legislative findings, there is an extensive record
showing that this statute was contentiously debated in the
legislature. Proponents of the bill pointed to the fact that a limitation
on the ability of a worker to file for benefits helps insurance
companies better manage their risks, informs them as to the amount
of reserves they need to keep, and protects them against limitless
litigation over old claims where causation had become tenuous.57
They also stated that the bill would help employers by reducing the
premiums they would have to pay, as insurance companies’ base
premiums on the number of potential, outstanding compensation
claims that may be filed, which is dependent on the number of
injured workers who may file claims.58 These are the types of policy
considerations that in previous cases we have found to justify a
legislative abridgment of a legal remedy.59
    ¶ 26 Of course, there were and are a number of countervailing
policy considerations, including the argument that there are only a
few claims that would ever be adjudicated beyond twelve years, so
the fiscal savings is minimal. Further, Petitioners argue that
insurance companies and employers do not face a risk of litigating
stale claims with old evidence, because the worker must have filed
within the first six years and had his or her claim to benefits decided
after a hearing in which a record of relevant evidence would be
made. A subsequent filing would only look at the recent change in
circumstances, where the evidence would be fresh, to determine
whether it was caused by the original, well-documented workplace
accident. Under Judd, however, it is not our place to investigate and
balance these competing policy considerations.

_____________________________________________________________
   55   Id. ¶¶ 13, 15.
   56   Id. ¶ 15.
   57   Id. ¶ 16.
   58   Id.
   59   See id. ¶ 13; Craftsman, 1999 UT 18, ¶ 20.

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                             Opinion of the Court
    ¶ 27 Ultimately, “[a]lthough [Petitioners’] arguments are well
taken, and the court may remain unconvinced of the wisdom of
limiting [disability benefits] for severely injured victims like
[Petitioners], our power does not extend so far as to permit
imposition of our views on such policy disputes.”60 Because the issue
in this case “is fairly debatable,” “the views of a majority of members
of this court should [not] prevail over those of the majority of the
legislature.”61 Thus, we hold that there is a “clear social or economic
evil” that was sought to be eliminated by section 34A-2-417(2)(a)(ii).
This holding, however, does not end our analysis. We must now
turn to a discussion of whether the statute of repose “is a reasonable,
nonarbitrary method for achieving the legislature’s stated
purpose.”62
                     B. Arbitrary and Unreasonable Means
    ¶ 28 The second component of the Berry test’s evaluation of the
legislative enactment is to determine whether “the elimination of an
existing legal remedy is not an arbitrary or unreasonable means for
achieving the objective.”63 To do so, we look to whether the statute is
“narrowly tailored”64 or if it “cut[s] an unnecessarily wide swath
through [the impacted] causes of action.”65 In general, a statute of
repose “can be constitutional when the possibility of injury and
damage is highly remote and unexpected.”66
    ¶ 29 In this case, the statute cuts off a worker’s right to file for
benefits only if the changed circumstances warranting benefits—the
development of the injury into a disability or the discovery of a
previously unknown injury—accrues twelve years after the original
accident. A cause of action that accrues before twelve years is
actionable, and, so long as the worker is diligent in filing for benefits,
the claim will not be cut off as the legislature specifically included a
provision extending the Commission’s jurisdiction to adjudicate an


_____________________________________________________________
   60   Judd, 2004 UT 91, ¶ 14.
   61   Id. ¶¶ 14 n.1, 15.
   62   Id. ¶ 15.
   63   Berry, 717 P.2d at 680.
   64   Judd, 2004 UT 91, ¶ 17.
   65   Hirpa v. IHC Hosps., Inc., 948 P.2d 785, 794 (Utah 1997).
   66   Craftsman, 1999 UT 18, ¶ 21.

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                            Opinion of the Court
initiated claim even if the twelve-year timeframe expires.67 Further,
there is no time limit on the insurance company’s or employer’s
responsibility to cover all medical treatment.68
    ¶ 30 Accordingly, the legislature’s purpose in enacting the
statute was to end prolonged and uncertain liability for both
insurance companies and employers—and to reduce the associated
insurance premiums. The legislature has narrowly tailored the
statute to that purpose by cutting off only those claims that have
somehow not manifested or stabilized after twelve years. Further, in
selecting twelve years, the legislature has adopted a time period that
far exceeds any statute of limitation for civil claims69 and is
equivalent to the longest period adopted by other states that have
enacted similar statutes.70 The statute “is targeted to control costs in
one area where costs might be controllable,” “gives insurers some
idea of their potential liability,” and does not reach beyond the
narrow class of claims described above.71 Accordingly, section 34A-
2-417(2)(a)(ii) is a reasonable and non-arbitrary means of achieving
the valid legislative purposes discussed above and withstands Open
Courts Clause scrutiny.
                     C. Response to Justice Lee’s Concurrence
    ¶ 31 In his concurrence, Justice Lee argues that we should
overrule Judd v. Drezga72 and adopt a new interpretation of the Open
Courts Clause—an interpretation that would limit the legislature’s
ability to eliminate vested causes of action, but would impose no

_____________________________________________________________
   67As noted above, the WCA provides for a limited extension of
the Commission’s jurisdiction in cases where “the employee is fully
cooperating in a commission approved reemployment plan” or “the
employee is actively adjudicating issues of compensability before the
commission.” UTAH CODE § 34A-2-417 (2)(c)(ii)(A)–(B).
   68   See id. § 34A-2-417(1)(a)–(b).
   69The longest statute of limitation in Utah for any kind of
personal injury is four years. See id. § 78B-2-307(3).
   70 Utah House Floor Debates, H.B. 358, 53rd Leg., 1999 Gen. Sess.
(Feb. 26, 1999) (statements of Rep. John Swallow).
   71   Judd, 2004 UT 91, ¶¶ 16–17.
   72 Justice Lee’s concurrence points primarily to Berry ex rel. Berry
v. Beech Aircraft Co., 717 P.2d 670 (Utah 1985), but Judd v. Drezga, 2004
UT 91, 103 P.3d 135, is this court’s last iteration of Berry.

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                        Opinion of the Court
restriction on the authority of the legislature to eliminate causes of
action prospectively. In his typical fashion, Justice Lee’s arguments
are thoughtful and scholarly. And in an appropriate case, they may
well garner the support of a majority of the members of this court.
But this is not the appropriate case. This is so for two reasons.
    ¶ 32 First, reaching the issue of whether Judd should be
overturned is unnecessary to the resolution of this case.73 Petitioners
have not sought to have Judd overturned in favor of an Open Courts
Clause interpretation that would yield a different result. Nor would
the application of Justice Lee’s new proposed interpretation yield a
different result. He agrees with the majority that the Petitioners’
claims fail.
    ¶ 33 Second, not only does Justice Lee unnecessarily reach the
question of whether Judd should be overturned, he goes one step
further by proposing a new interpretation of the Open Courts
Clause—an interpretation that has not been proposed by the parties,
much less briefed, and that would represent a dramatic departure
from our existing precedent. This court has engaged over the last
three decades in a sometimes contentious debate over the correct
interpretation of the Open Courts Clause. We should not conclude
this debate by overruling precedent in a case where it is unnecessary
to reach the issue, and then sua sponte replace that precedent with a
new interpretation.
    ¶ 34 That having been said, this opinion should not be construed
as a comment upon the merits of Justice Lee’s proposed new
interpretation of the Open Courts Clause. Nor should it be read to
signal an end to this court’s debate over the interpretation of the
Open Courts Clause. In the appropriate case, we may well revisit
Judd, and we may well consider Justice Lee’s proposed
interpretation, or perhaps another. But we should grapple with


_____________________________________________________________
   73  Justice Lee argues that the resolution of the “long-festering
problem” of our interpretation of the Open Courts Clause is justified
due to the extensive supplemental briefing we requested and
received in this case. Infra ¶¶ 36–37, 53–54. We asked, in part,
whether we should uphold or overrule our past precedent
establishing the substantive interpretation of the Open Courts
Clause. We appreciate the excellent briefing provided by the parties
in this case, but find it unnecessary to reach the question of whether
Judd should be overturned.

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                        WAITE v. LABOR COMM’N
                Lee, A.C.J., concurring in the judgment
issues of this magnitude in a case where doing so is necessary to the
case’s resolution.
                               Conclusion
    ¶ 35 For the reasons discussed above, Utah Code section 34A-2-
417(2)(a)(ii) is a statute of repose that is constitutional under the
Open Courts Clause of the Utah Constitution. Accordingly, we
affirm the Utah Labor Commission’s order.


   ASSOCIATE CHIEF JUSTICE LEE, concurring in the judgment:

    ¶ 36 Today this court continues its gradual retreat from the
balancing test set forth in Berry ex rel. Berry v. Beech Aircraft Corp., 717
P.2d 670 (Utah 1985). I welcome the retreat but I think we need to go
further. Berry has outlived its usefulness. The time has come to
overrule it.
    ¶ 37 In the decades since Berry our open courts jurisprudence has
been marked by confusion, inconsistency, and ongoing revisionism.
The briefing in this case, moreover, has highlighted the
incompatibility of the Berry test with the text and original meaning of
the Open Courts Clause. I would overrule Berry. I would replace it
with a standard that is more transparent, more workable, and more
in line with the terms and historical understanding of the guarantee
of a right to open courts. And I would uphold the constitutionality of
the challenged provisions of the Workers’ Compensation Act under
the revised standard that I would adopt.
    ¶ 38 The majority attempts to avoid the question of the viability
of the Berry test. It says that it is “unnecessary” for us to reach the
question whether the Berry line of cases “should be overturned” in
order to resolve this case. Supra ¶ 32. Because the challenged
workers’ compensation provisions are, in the court’s view,
constitutional even under the Berry standard (as modified in Judd v.
Drezga, 2004 UT 91, 103 P.3d 135), the majority preserves the existing
standard. Supra ¶ 32. The court defends its approach as a matter of
judicial restraint and avoidance. And it criticizes my analysis as both
“sua sponte” and unnecessary. Supra ¶ 33.
    ¶ 39 I cannot see how this is a matter of avoidance. Or how my
approach can be deemed improper. The parties have presented
extensive briefing on the question of the textual and historical basis
for our Berry framework. And they have invited us to repudiate the
Berry framework in light of one that is more in line with the original
meaning of the Open Courts Clause. My decision to take the parties

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                Lee, A.C.J., concurring in the judgment
up on their invitation is hardly a sua sponte act. See sua sponte,
BLACK’S LAW DICTIONARY (10th ed. 2014) (defining sua sponte as
“[w]ithout prompting or suggestion”). The standard that I propose
admittedly draws a line that differs somewhat from that proposed
by any of the parties. Instead of either retaining Berry or endorsing
the view espoused in past dissenting opinions in the court I am
advocating something of a middle ground. But surely there is no bar
on a judge defining the law in a manner that strikes a balance
between the extremes proposed by the parties. As judges we always
retain the prerogative—if not the duty—to discern the applicable
standard of law as we understand it (and without being bound by
the legal standards espoused by the parties).74 That is what I seek to
do here. I am trying to do my level best to articulate the governing
law in response to the questions framed by the parties’ briefing.
    ¶ 40 The majority, moreover, is not really avoiding the question
of the viability of the standard set forth in the Berry line of cases. It is
openly affirming the viability of the standard by applying it in this
case. All that is really avoided by the court is a transparent statement
of an analytical basis for retaining the Berry-Judd standard. And the
refusal to offer that kind of explanation doesn’t strike me as a matter
of judicial restraint.
   ¶ 41 I think we need to reexamine Berry and openly decide
whether it should be retained. And I think we should overrule it and
replace it with a standard that is more workable and more faithful to
the terms of the Open Courts Clause.
    ¶ 42 I explain the basis for my conclusions in the paragraphs
below. First I offer some background on the Berry standard as it has
been applied over time and by the majority today. Then I explain the
basis for my conclusion that Berry is not entitled to deference as a
matter of stare decisis. For that reason I next return to first
principles—to a consideration of the text and original meaning of the
Open Courts Clause, which in my view require us to repudiate Berry
in favor of a more limited standard that would foreclose only the
legislative abrogation of vested causes of action. Because the
Workers’ Compensation Act does not cross that line, I close with my
conclusion that we should uphold the Workers’ Compensation Act
under the revised standard that I would apply.

_____________________________________________________________
   74See Patterson v. Patterson, 2011 UT 68, ¶ 20, 266 P.3d 828 (noting
our “responsibility” to apply the law, refusing to be bound only to
the parties’ arguments—which excluded a controlling statute).

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                       WAITE v. LABOR COMM’N
               Lee, A.C.J., concurring in the judgment
                               I. BERRY
    ¶ 43 In Berry we held that the Open Courts Clause of the Utah
Constitution limits the power of the legislature to abrogate legal
remedies recognized in the common law. Berry ex rel. Berry v. Beech
Aircraft Corp., 717 P.2d 670, 680 (Utah 1985). Berry says that the
legislature has the authority to cut back on existing causes of action
if it “provides an injured person an effective and reasonable
alternative remedy” or, absent such a substitute, if the court
determines that the legislature was pursuing a reasonable means of
eliminating a “clear social or economic evil.” Id.
    ¶ 44 For many years this court viewed the Berry standard as a
high bar. In cases in which the legislature abrogated a common law
remedy and provided no substitute, we effectively flipped the usual
presumption of constitutionality—embracing what amounted to a de
facto presumption of unconstitutionality.75 And we upheld
legislation abrogating an existing remedy without the provision of a
substitute only if the party defending the statute presented evidence

_____________________________________________________________
   75  Wood v. Univ. of Utah Med. Ctr., 2002 UT 134, ¶ 46, 67 P.3d 436
(Durham, C.J., writing for the majority on this issue) (“Contrary to
the position taken by the lead opinion, this court has consistently
rejected the presumption of constitutionality of statutes challenged
under the remedies clause of article I, section 11.”); Hipwell ex rel.
Jensen v. Sharp, 858 P.2d 987, 988 n.4 (Utah 1993) (“A majority of the
[Condemarin] court agreed that because the [O]pen [C]ourts [C]lause
was implicated, the cap must be analyzed under a heightened level
of scrutiny for constitutional purposes.”); Lee v. Gaufin, 867 P.2d 572,
591 (Utah 1993) (Zimmerman, J., concurring in result) (“[W]hen we
have found a statute to limit a right protected by the open courts
provision, we have, de facto, shifted from a presumption that the
limiting statute is constitutional to a presumption that the statute is
unconstitutional, placing the burden to show that the Berry test is
satisfied upon those seeking to uphold the challenged statute.”);
Condemarin v. Univ. Hosp., 775 P.2d 348, 366 (Utah 1989) (holding that
a statute implicating the Open Courts Clause required a heightened
level of scrutiny for constitutional purposes); id. at 368 (Zimmerman,
J., concurring in part) (“Because the interests at stake are specifically
protected by the constitution, the presumption of validity that
normally attaches to legislative action must be reversed once it is
shown that the enactment under scrutiny does, in fact, infringe upon
the interests enumerated in article I, section 11.”).

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                Lee, A.C.J., concurring in the judgment
sufficient to persuade us of the weight and significance of the “social
or economic evil” at issue.76
   ¶ 45 Many of our decisions in this field were announced by a
divided court.77 A principal hallmark of the Berry test has been the

_____________________________________________________________
   76 Berry, 717 P.2d at 680; see, e.g., Hirpa v. IHC Hosps., Inc., 948 P.2d
785, 793–94 (Utah 1997) (upholding the abrogation of a remedy
under the Good Samaritan Act; concluding that the common law
“disincentives . . . licensed medical providers” from “render[ing]
medical care,” constituting a “social evil”); Craftsman Builder’s
Supply, Inc. v. Butler Mfg. Co., 1999 UT 18, ¶ 20–23, 974 P.2d 1194
(upholding the builder’s statute of repose, Utah Code section 78-12-
25.5; noting that the legislature identified two “clear social and
economic evils”—“liability insurance costs and records storage
costs”—and concluding that the statute is a reasonable and
nonarbitrary “means to eliminate the stated evils”).
   77  Wood, 2002 UT 134, ¶ 38 (Wilkins, J., joined by Durrant, A.C.J.,
and joined in part by Howe, J.) (majority opinion holding that the
Utah Wrongful Life Act does not violate the Open Courts Clause); id.
¶ 56 (Durham, C.J., dissenting, joined by Russon, J.) (concluding that
the Utah Wrongful Life Act violated the Open Courts Clause); Lyon
v. Burton, 2000 UT 19, ¶¶ 53–66, 5 P.3d 616 (Stewart, J., joined by
Durham, A.C.J., advocating a dissenting view on the open courts
issue) (concluding that the damages cap in Utah Code section 63-30-
4 should be struck down as unconstitutional under the Open Courts
Clause); id. ¶ 83 (Howe, C.J., concurring in result, joined by Russon,
J.) (concluding that the statute should be upheld under the Open
Courts Clause because “the legislature should be accorded broad
discretion in providing an alternative remedy”); id. ¶ 88
(Zimmerman, J., concurring in the result) (asserting that the statute
should be upheld and that Berry should be overruled); Day v. State ex
rel. Utah Dep’t of Pub. Safety, 1999 UT 46, ¶¶ 46–48, 980 P.2d 1171
(Stewart, J., joined by Durham, A.C.J., and Russon, J., and with
Howe, C.J., concurring in the result) (majority decision striking
down statute under the Open Courts Clause where the legislature
did not identify any social or economic evil); id. ¶¶ 52–54
(Zimmerman, J., dissenting) (asserting that the court exceeded its
authority in assessing the legislature’s justifications for the statute);
Craftsman, 1999 UT 18, ¶ 23 (Russon, J., joined by Stewart, J., and
with Howe, J., “concurring with reservation”) (majority decision
upholding the constitutionality of a statute under the Open Courts
Clause); id. ¶ 32 (Stewart, J., joined by Durham, A.C.J.) (writing
                                                            (Continued)
                                   21
                       WAITE v. LABOR COMM’N
               Lee, A.C.J., concurring in the judgment
consistent call for its repudiation.78 For good reasons: Berry has
spawned confusion and uncertainty from the outset, and its basis in
the text and original meaning of the Open Courts Clause has quite
credibly been questioned.79
    ¶ 46 Our open courts precedent is also marked by a gradual
retreat from the Berry standard. A significant step in the retreat came
in Judd v. Drezga, 2004 UT 91. There we disavowed the notion of
independent judicial evaluation of the “social or economic evil” put
forward in defense of legislation abrogating an existing cause of
action—at least in circumstances in which the legislature has made
explicit findings on that question. Id. ¶¶ 11, 13. In Judd, the
“empirical truth” of legislative findings of a “clear social or economic
evil” was conceded to be a “matter of some dispute.” Id. ¶ 13. Yet we
declined to “undertake the same investigation as the legislature.” Id.



separately in response to Justice Zimmerman); id. ¶ 108
(Zimmerman, J., concurring in the result) (arguing that Berry should
be overruled); Condemarin, 775 P.2d at 366 (Durham, J., with
Zimmerman, J., and Stewart, J., concurring in part) (majority
decision striking down provision of Governmental Immunity Act
limiting amount of claim against uninsured government entity
because of injury or death, as applied to University Hospital); id. at
375 (Hall, C.J., dissenting, joined by Howe, A.C.J.) (disagreeing with
the majority’s “depart[ure] from the traditional rational basis
standard of review in assessing the constitutionality of the Utah
Government Immunity Act”).
   78  Laney v. Fairview City, 2002 UT 79, ¶ 89, 57 P.3d 1007 (Wilkins,
J., concurring in part and dissenting in part) (opining that “the Berry
test is a straw man analytical framework that permits one to justify a
predetermined outcome”); Craftsman, 1999 UT 18, ¶ 108
(Zimmerman, J., concurring in the result) (asserting that Berry “has
proven to be unworkable,” “is subject to manipulation,” “leads to
absurd results,” and “distorts our relationship with the legislature”).
   79 Laney, 2002 UT 79, ¶ 94 (Wilkins, J., concurring in part and
dissenting in part) (“[T]he accompanying Berry test has proven to
create more problems than it has solved. Compelling to me is that
Berry has proven to be unworkable over a period of 17 years, has not
been adhered to unanimously, has been questioned and chastised by
members of this court, including one who agreed with the Berry
interpretation initially, has been criticized by legal scholars, and
presents separation of powers problems.”).

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               Lee, A.C.J., concurring in the judgment
Instead we held that the legislature is within its bounds when the
basis for its findings “is fairly debatable.” Id. ¶ 15.
    ¶ 47 This case is an important one in this significant series. The
parties ask us either to reinforce the Berry standard or to extend the
Judd restriction on that standard a step further. Mr. Waite says that
the Berry requirement of a “clear social or economic evil” necessarily
requires independent judicial evaluation of the policies advanced in
favor of the workers compensation provision at issue. And he views
Judd as a limited exception to the rule—under which we defer to the
legislature (asking only where the social or economic evil is a matter
of fair debate) only in the face of express legislative findings. The
Labor Commission, on the other hand, asks us to extend the Berry-
Judd standard to all cases, whether or not there are express legislative
findings. It says that courts should never engage in an independent
assessment of whether there is a sufficient “social or economic evil”
to support the abrogation of an existing remedy.
    ¶ 48 This is an important question. Resolving it implicates not
just a policy question of whether to extend Judd but the bigger
jurisprudential question of the legal basis for the Berry standard that
started us down this path. That is why we issued a supplemental
briefing order in this case—asking the parties to present argument
on whether the “text and original meaning” of the Open Courts
Clause “provide a substantive guarantee against the elimination of
remedies recognized by the law in the past”; on whether Berry and
its progeny are entitled to deference “under the stare decisis
standards discussed in Eldridge v. Johndrow, 2015 UT 21, ¶¶ 20-41,”
345 P.3d 553; on whether the test announced in Berry is the “proper
test” for assessing legislation abrogating existing remedies; and on
whether “the elements of the Berry test should be revised or
adjusted.”
    ¶ 49 The parties and their amici—represented by able counsel—
presented extensive briefing on these important questions. Yet the
majority attempts to avoid them. It does not expressly consider the
constitutional propriety of the Berry test (as adjusted in Judd). And it
offers no analysis of the propriety of preserving these standards as a
matter of stare decisis. Instead it claims the important questions
presented—and argued by the parties—are “unnecessary to the
resolution of this case.” Supra ¶ 32. Thus, the court upholds the Berry
standard on principles of judicial restraint and avoidance. Id.
    ¶ 50 I find no logical or legal basis for this approach. In resolving
this case by applying and extending the Berry-Judd standard, the
majority is continuing to uphold the standard; it is simply

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                       WAITE v. LABOR COMM’N
                Lee, A.C.J., concurring in the judgment
withholding the basis for its analysis of these questions from public
view.
    ¶ 51 The decision to extend Judd (and further limit Berry) may be
a step in the right direction. It is if the Berry framework is either not
true to the text and original meaning of the Open Courts Clause or if
Berry is not entitled to deference as a matter of stare decisis. But the
majority doesn’t offer those (or other) reasons for this decision. It just
assumes the propriety of the Berry-Judd framework. And that strikes
me as problematic. It is “emphatically” our “province and duty . . . to
“say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). We
should fulfill that duty here.
   ¶ 52 The decision only to extend Judd, moreover, may be
insufficient. If the Berry framework is not the correct constitutional
standard and if it is not entitled to stare decisis respect then we
should repudiate it entirely.
    ¶ 53 The lack of an explicit rationale in support of the court’s
decision leaves lower courts and future litigants without the benefit
of much-needed guidance in this long-muddled field. The watered-
down Berry-Judd standard may be the substantial equivalent of
federal “rational basis” review. If it is then the substantive
component of the open courts guarantee has been effectively diluted
out of existence.80 Alternatively, the “fairly debatable” formulation
may imply some level of scrutiny beyond that required as a matter of
federal constitutional law. The court doesn’t tell us. And by kicking
this can down the road the majority is further perpetuating a long-
festering problem—our establishment of a legal regime that has long
been fueling costly litigation and extensive uncertainty about the
scope of the power of our legislature to cut back on common law
remedies.
   ¶ 54 We should stop kicking this can down the road. We should
address the viability of the Berry test head-on. I would do so here.
                          II. STARE DECISIS
   ¶ 55 A threshold question presented is whether our Berry line of
cases is entitled to deference as a matter of stare decisis. We asked the

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   80 See Wood, 2002 UT 134, ¶ 43 (Durham, C.J., writing for majority
on this issue) (concluding that “most, if not all, [article I] rights have
generated some form of heightened judicial scrutiny” and that a
“mere rational basis is insufficient for the legislature to intrude upon
or eliminate” such rights).

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               Lee, A.C.J., concurring in the judgment
parties to present arguments on this question under the standards
set forth in our opinion in Eldridge v. Johndrow, 2015 UT 21, 345 P.3d
553. And that briefing persuades me that Berry and its progeny are
ripe for reconsideration.
     ¶ 56 A key question under Eldridge is “how firmly” a line of
“precedent has become established in the law since it was handed
down.” 2015 UT 21, ¶ 22. In evaluating this question, we consider
“the age of the precedent, how well it has worked in practice, its
consistency with other legal principles, and the extent to which
people’s reliance on the precedent would create injustice or hardship
if it were overturned.” Id. We also assess “the persuasiveness of the
authority and reasoning on which the precedent was originally
based.” Id.
    ¶ 57 The point of this inquiry is to balance the important goal of
maintaining stability in the law against our ongoing commitment to
getting the law “right.” The first-listed set of considerations is aimed
at assessing the downsides of overruling precedent. If a law is
working well in practice and sustains significant reliance interests, it
may be costly to reform the law by overruling precedent. And that is
a strike in favor of deference to precedent. The second consideration
goes to the upside of overruling an erroneous precedent. The more
clearly errant a prior decision, the greater the need to set it aside in
advancing our commitment to the rule of law.
    ¶ 58 The argument for overruling a prior decision is strongest
when the costs of overruling (from a reliance or stability standpoint)
are low and the benefits (from a rule of law standpoint) are high. In
my view that is the case here. Berry has never become “firmly”
established. Quite the contrary, as noted, this decision has spawned
extensive debate and ongoing revisionism (which continues in the
majority opinion today). The Berry standard has not worked well “in
practice.” Litigants and courts have long struggled with how to
define and implement the standards set forth in these cases. 81 The
_____________________________________________________________
   81  See supra ¶ 45 n.77 (highlighting the division among members
of the court in the application of the Berry standard in our cases);
Laney v. Fairview City, 2002 UT 79, ¶ 93, 57 P.3d 1007 (Wilkins, J.,
concurring in part and dissenting in part) (noting that “Justice
Zimmerman, an initial Berry proponent, reluctantly reached the
conclusion that the Berry interpretation of the Open Courts Clause
and its progeny do not provide a workable analytical framework”
(citations omitted)); id. ¶ 94 (Wilkins, J., concurring in part and
dissenting in part) (noting “that Berry has proven to be unworkable
                                                         (Continued)
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                       WAITE v. LABOR COMM’N
                Lee, A.C.J., concurring in the judgment
stated standards, moreover, are inherently fuzzy and difficult to
apply with any predictability.82 This is simply not a field in which a
litigant can claim that substantial “reliance” on our case law “would
create injustice or hardship if it were overturned.” So the costs of
repudiating the Berry framework are in my view limited.
    ¶ 59 The benefits, on the other hand, seem to me to be
substantial. The Berry decision itself upset more than seventy years
of settled precedent.83 And as explained in some detail below, there
is little or no support in the text or original meaning of the Open
Courts Clause for the Berry standard. This is just not a case in which
we can find persuasive “the authority and reasoning on which th[is]
precedent was originally based.” Eldridge, 2015 UT 21, ¶ 22.
   ¶ 60 For these reasons I would take up the invitation to revisit
the proper standard for assessing the scope of the legislature’s power



over a period of 17 years, has not been adhered to unanimously, has
been questioned and chastised by members of this court, including
one who agreed with the Berry interpretation initially, has been
criticized by legal scholars, and presents separation of powers
problems”); Craftsman Builder’s Supply, Inc. v. Butler Mfg. Co., 1999
UT 18, ¶ 108 (Zimmerman, J., concurring in the result) (asserting that
the Berry test “has proven to be unworkable,” “is subject to
manipulation,” “leads to absurd results,” and “distorts our
relationship with the legislature”).
   82See Laney, 2002 UT 79, ¶ 89 (Wilkins, J., concurring in part and
dissenting in part) (asserting that the Berry “test permits a majority
of this court to substitute its judgment of what constitutes good
public policy for the judgment of the legislature”).
   83 Compare Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670,
680 (Utah 1985) (establishing for the first time in 1985 a constitutional
limitation on legislative authority to prospectively alter the law
giving rise to legal rights), with Union Sav. & Inv. Co. v. Dist. Court of
Salt Lake City, 140 P. 221, 225 (Utah 1914) (interpreting the clause to
require that the “courts must always be open to all alike” and
precluding the legislature from “curtailing” this right of access), and
Brown v. Wightman, 151 P. 366, 366–67 (Utah 1915) (reiterating that
the clause imposes “a limitation upon the Legislature to prevent that
branch of the state government from closing the doors of the courts
against any person who has a legal right which is enforceable in
accordance with some known remedy”).

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                Lee, A.C.J., concurring in the judgment
to abrogate remedies recognized in the common law. I would not
feel foreclosed from so doing by the doctrine of stare decisis.
III. THE ORIGINAL MEANING OF THE OPEN COURTS CLAUSE
    ¶ 61 The Open Courts Clause is not unique to Utah. Most states
have some variation on this sort of provision.84 And there is
widespread agreement in the historical record that the language of
the clause is rooted in principles passed down from as far back as
England’s Magna Carta.85 So, to uncover the original meaning of this
clause, we should treat its language as written in the language of the
law86—as a legal term of art.87 I would therefore frame my
interpretation of the Open Courts Clause with an understanding of
the open courts case law in place at the time of the adoption of the
Utah Constitution.


_____________________________________________________________
   84 See Michael J. DeBoer, The Right to Remedy by Due Course of
Law—a Historical Exploration and an Appeal for Reconsideration, 6
FALKNER L. REV. 135, 137 n.3 (2014) (identifying constitutional open
courts clauses in Alabama, Arkansas, Colorado, Connecticut,
Delaware, Florida, Idaho, Illinois, Indiana, Kansas, Kentucky,
Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi,
Missouri, Montana, Nebraska, New Hampshire, North Carolina,
North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode
Island, South Carolina, South Dakota, Tennessee, Texas, Utah,
Vermont, West Virginia, Wisconsin, and Wyoming).
   85See, e.g., Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670,
674 (Utah 1985) (noting that the clause “originated with the Magna
Carta”).
   86 Michael B. Rappaport & John O. McGinnis, The Constitution and
the Language of the Law 7–8 (San Diego Legal Studies Paper No. 17-
262 March 8, 2017).
   87 See Utah Stream Access Coal. v. Orange St. Dev., 2017 UT 82, ---
P.3d --- (“A ‘cardinal rule of statutory construction’ says that a
legislature’s use of an established legal term of art incorporates ‘the
cluster of ideas that were attached to each borrowed word in the
body of learning from which it was taken.’” (quoting FAA v. Cooper,
566 U.S. 284, 292 (2012)). This same principle applies in the context of
constitutional interpretation. Where the terms employed in the
constitution have a well-established legal meaning, we should
interpret them consistent with that meaning.

                                   27
                       WAITE v. LABOR COMM’N
               Lee, A.C.J., concurring in the judgment
    ¶ 62 Nineteenth-century open courts cases from other states are
instructive in discovering the original public meaning of this
provision at the time of Utah’s statehood in 1896.88 They make clear
the meaning of the terms of art employed in the clause during the
time period in which Utah adopted its similar provision. And based
on those cases, I conclude that the Berry formulation is wrong. I find
no basis for an open courts prohibition on legislative abrogation of a
common law right of action—much less for the standard set forth in
the Berry line of cases.
    ¶ 63 That said, I do not agree with the broad conclusion
articulated in some prior opinions of members of this court—stating
that the Open Courts Clause provides only a procedural limitation,
and has no effect on the legislature’s substantive power to regulate.89
Instead, and as explained, I find a historical basis for a limited
restriction on the legislature’s substantive power to abrogate a
common law cause of action: To the extent a given cause of action
was vested as of the time of the legislature’s enactment, the Open
Courts Clause prohibits retroactive abrogation of such claims.




_____________________________________________________________
   88  My analysis is based on a review of all pre-statehood cases
listed in the Westlaw citing references for the open courts provisions
of each state that had enacted a clause prior to Utah’s statehood.
   89  See Laney v. Fairview City, 2002 UT 79, ¶ 85, 57 P.3d 1007
(Wilkins, J., concurring in part and dissenting in part) (urging that
Berry be overruled “in favor of the more procedural interpretation of
the Open Courts Clause advanced in our jurisprudence prior to, and
since, Berry”); Craftsman Builder’s Supply, Inc. v. Butler Mfg. Co., 1999
UT 18, ¶ 120, 974 P.2d 1194 (Zimmerman, J., concurring in result)
(concluding that “the constitutional protections of article I, section 11
are procedural, not substantive”). Contra Tindley v. Salt Lake City Sch.
Dist., 2005 UT 30, ¶ 13, 116 P.3d 295 (“[T]he [O]pen [C]ourts [C]lause
provides more than procedural protections; it also secures
substantive rights, thereby restricting the legislature’s ability to
abrogate remedies provided by law.”); Laney, 2002 UT 79, ¶ 30
(“Throughout our state’s history, this court has consistently
recognized that the plain meaning of the guarantee ‘impose[s] some
substantive limitation on the legislature to abolish judicial remedies in
a capricious fashion.’” (alteration in original) (emphasis in original)
(quoting Craftsman, 1999 UT 18, ¶ 36 (Stewart. J, concurring))).

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                  A. Nineteenth-Century Case Law
    ¶ 64 I find no basis in the nineteenth-century cases to conclude
that the Open Courts Clause limits the legislature’s general power to
abrogate an existing remedy. At most, the nineteenth-century open
courts cases recognized a limit on the abrogation of a vested claim.
And in that context, the courts sometimes spoke of the question
whether the legislature had preserved an adequate substitute
remedy. But the broad notion of an open courts limitation on
legislative power to reform the scope of the injuries or claims
protected by our substantive law was no part of open courts
jurisprudence in the relevant time frame.
   ¶ 65 The nineteenth-century cases addressed a range of issues:
the availability of a forum to assert a legal claim90; filing fee

_____________________________________________________________
   90 See Ouachita Baptist Coll. v. Scott 42 S.W. 536, 537 (Ark. 1897)
(applying principles of constitutional avoidance and interpreting
statute in a manner that provided a forum for the parties to raise
their claims); Sellars v. Myers, 34 N.E. 496, 497 (Ind. App. 1893)
(holding that the Open Courts Clause protects the right “not only to
institute . . . suit, but to prosecute to final judgment, unless he has
forfeited this right by his vexatious conduct”); Liberty Twp. Draining
Ass'n v. Brumback, 68 Ind. 93, 95–97 (1879) (applying principles of
constitutional avoidance and interpreting statute to allow challenge
to the regularity of proceedings not just amount of damages caused
by an appropriation of lands to railroad); State v. Rightor, 2 So. 385,
386–87 (La. 1887) (opinion of Todd, J.) (noting the role of the Open
Courts Clause in protecting against an injunction being issued to
stop a court of competent jurisdiction from hearing a case); Davis v.
Pierse, 7 Minn. 13, 18 (1862) (law prohibiting those aiding the
rebellion against the United States from maintaining any suit in
courts within Minnesota violated Open Courts Clause, among other
constitutional provisions); Agin v. Heyward, 6 Minn. 110, 115 (1861)
(“The bill of rights declares that every person is entitled to a certain
remedy in the laws, for all injuries which he may receive in his
person, property or character. This includes the enforcement of
rights as well as the redress of wrongs. But how can we carry this
provision or declaration into effect, if we deny, to the tribunals, in
which the judicial power is vested, jurisdiction in any given case?
There must of necessity, therefore, be some court of general
jurisdiction, and among those established by the constitution, the
District Court is the only court not limited by express words—the
only one not in fact prohibited from entertaining original jurisdiction
                                                           (Continued)
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                        WAITE v. LABOR COMM’N
                Lee, A.C.J., concurring in the judgment
requirements and amounts91; the impact of statutes of limitation and
repose on court access92; vested rights, including the degree to which


beyond specified limits.” (citation omitted)); Balt. & O.R. Co. v.
Stankard, 46 N.E. 577, 578–79 (Ohio 1897) (holding that a contract
provision foreclosing any recourse to the courts was invalid under
the Open Courts Clause); Mullen v. Peck, 31 N.E. 1077, 1079 (Ohio
1892) (discussing Open Courts Clause issue as right to have your
“day in court”); McClain v. Williams, 73 N.W. 72, 74 (S.D. 1897) (“The
provisions of section 20 [for open courts] . . . are satisfied by a trial in
a court of competent jurisdiction, in which the right to trial by jury,
in proper cases, is afforded . . . . None of the provisions of the
constitution prohibit the legislature from limiting appeals to a
defined class of cases . . . .”); Dodd v. Weaver, 34 Tenn. (2 Sneed) 670,
672 (1855) (“The court cannot be closed; but must be open to the
injured party, who is entitled to ‘remedy by due course of law.’”
(citation omitted)).
   91  See Lassitter v. Lee, 68 Ala. 287, 290 (1880) (holding that where
the law establishes “a condition precedent [that] is so unreasonable
as to seriously impede, impair or cripple the rights designed to be
guaranteed by these articles of the constitution, it can not be upheld
or sustained by the courts” (citations omitted)); Wilson v. McKenna,
52 Ill. 43, 48–49 (1869) (holding unconstitutional a requirement to
pay a tax before challenging it); Succession of Grover, 22 So. 313, 315
(La. 1897) (holding bond requirement for costs was not unreasonable
under Open Courts Clause); Knee v. Balt. City Passenger Ry. Co., 40 A.
890, 893 (Md. 1898) (discussing reasonableness of fees and propriety
at common law and distinguishing these fees from historical
payments made to expedite or slow down a case); Lommen v. Minn.
Gaslight Co., 68 N.W. 53, 54 (Minn. 1896) (discussing original legal
term of art meaning of “justice freely and without purchase”);
Dutcher v. Culver, 24 Minn. 584, 589–90 (1877) (upholding
requirement of posting security as a prerequisite to asserting a claim
for replevin); Willard v. Bd. of Cty. Comm’rs of Redwood Cty., 22 Minn.
61, 64–65 (1875) (upholding provision requiring payment of costs);
State ex rel. Davidson v. Gorman, 41 N.W. 948, 949–50 (Minn. 1889)
(striking down requirement to pay tax assessment prior to
challenging the assessment); Adams v. Corriston, 7 Minn. 456, 461
(1862) (“We can see no valid objection to a reasonable fee of this
kind. The constitution does not guar[]antee to the citizen the right to
litigate without expense, but simply protects him from the
imposition of such terms as unreasonably and injuriously interfere
with his right to a remedy in the law, or impede the due
                                                             (Continued)
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administration of justice.”); Weller v. City of St. Paul, 5 Minn. 95, 100–
01 (1860) (reversing dismissal of action based on failure to comply
with requirement to pay all taxes owed with interest as a condition
precedent to challenging the assessment); State v. McCarver, 20 S.W.
1058, 1058–59 (Mo. 1893) (discussing the right to be heard—“open to
every person”—and finding that the inability to pay transcript fee
due to indigence cannot bar from having case decided); Perce v.
Hallett, 13 R.I. 363, 364 (1881) (“The provision has a history which
sheds light on its meaning. It was borrowed from Magna Charta, and
in England the generality of jurists and legislators have supposed
and acted on the supposition that it does not prohibit such fees. The
better opinion is that it was designed to abolish, not fixed fees,
prescribed for the purposes of revenue, but the fines which were
anciently paid to expedite or delay law proceedings and procure
favor.” (citation omitted)); Spalding v. Bainbridge, 12 R.I. 244, 244
(1879) (“We certainly should not dismiss the suit, if it clearly
appeared that the non-compliance was because of the plaintiff's
inability on account of poverty.”); Whittaker v. City of Janesville, 33
Wis. 76, 90 (1873) (applying principles of constitutional avoidance to
allow equitable claim to be raised in opposition to allegedly
unlawful tax assessment).
   92 See Thornton v. Turner, 11 Minn. 336, 339–40 (1866) (interpreting
statute not to impose statute of repose because to do so would
violate the Open Courts Clause); Baker v. Kelley, 11 Minn. 480, 491–94
(1866) (finding unconstitutional a statute of limitations as too short
and cutting off a cause of action in the law before it can accrue);
Preston v. Drew, 33 Me. 558, 560–63 (1852) (applying constitutional
avoidance and interpreting a statute to allow replevin of unlawfully
confiscated liquors because the property rights in the confiscated
liquors had vested, but noting that it would be within the power of
the legislature to prospectively declare that no one may acquire a
property interest in liquors on account of their adverse effects to
society); Byers v. Penn. R.R. Co., 5 Pa. D. 683, 683–86 (Pa. Ct. Com. Pl.
1896) (striking down a statute of limitations on an as applied
challenge brought by litigants whose cases were pending when the
act was passed because to apply the act to these cases would deprive
the litigants of a vested right to recover under the law that existed at
the time they filed their claims). But see Hill v. Lund, 13 Minn. 451,
452–53 (1868) (concluding that a reasonable statute of limitations
does not violate the Open Courts Clause).

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                       WAITE v. LABOR COMM’N
               Lee, A.C.J., concurring in the judgment
the legislature could retroactively alter the law governing a cause of
action that accrued prior to the new legislation93; the sale of justice,
including one-sided attorney fee provisions and other unequal
burdens in litigation94; unnecessary delay, including statutes staying
_____________________________________________________________
   93 See Parker v. Sanders, 46 Ark. 229, 234–36 (1885) (holding that
vested rights do not include rights in a particular procedure for
adjudicating claim or particular remedies); Commercial Bank of
Natchez v. Chambers, 16 Miss. (8 Sneeds) 9, 56–58, 61 (Miss. Err. &
App. 1847) (holding that legislative enactments that undermine
vested rights are contrary to Open Courts Clause); Lafferty v. Shinn,
38 Ohio St. 46, 48–49 (1882) (noting that shortening a limitation
period as to existing rights might violate the Open Courts Clause);
Templeton v. Linn Cty., 29 P. 795, 795–97 (Or. 1892) (reasoning that
while vested rights cannot be deprived, no one can have a vested
right in the general state of the law); Menges v. Dentler, 33 Pa. 495,
498–99 (1859) (“The law which gives character to a case, and by
which it is to be decided (excluding the forms of coming to a
decision), is the law that is inherent in the case, and constitutes part
of it when it arises as a complete transaction between the parties. If
this law be changed or annulled, the case is changed, and justice
denied, and the due course of law violated.”); Byers, 5 Pa. D. at 683–
86 (holding that as to a cause of action that has already accrued the
legislature cannot enact a law eliminating the claim retroactively);
Von Baumbach v. Bade, 9 Wis. 559, 576–80 (1859) (citing U. S. Supreme
Court cases holding that existing laws of remedies are a legal
backdrop relied on by parties entering contracts such that changing
the remedies may impair the vested rights if the changes upset
reliance interests).
   94 See Randolph v. Builders’ & Painters’ Supply Co., 106 Ala. 501, 501
(1895) (ruling one-sided attorney fee provision violated Open Courts
Clause placing litigants on an unequal footing); Kan. Pac. Ry. Co. v.
Mower, 16 Kan. 573, 582–83 (1876) (rejecting an open courts challenge
to a one-sided attorney fee statute); Russell v. Belcher, 76 Me. 501,
503–04 (1884) (linking judicial disqualification requirements to the
requirement that “justice shall be administered freely and without
sale”); Cameron v. Chi., Milwaukee & St. Paul Ry. Co., 65 N.W. 652,
653–54 (Minn. 1896) (upholding attorney fee provision); Lommen, 68
N.W. at 54 (rejecting an open courts challenge to a law requiring the
party requesting a “struck jury” pay the costs associated with the
procedure, looking to the original term of art understanding of
“justice freely and without purchase”); Chi., St. Louis & New Orleans
R.R. Co. v. Moss, 60 Miss. 641, 648–52 (1882) (holding that one-sided
                                                            (Continued)
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                Lee, A.C.J., concurring in the judgment
execution of judgments or delaying specific cases95; and the scope of
the public’s right to observe legal proceedings.96
   ¶ 66 Not surprisingly, this focus on court access to vindicate
vested legal rights is reflected in the text of Utah’s Open Courts
Clause. Our clause, which contains language similar to that adopted
by other states, reads as follows:
        All courts shall be open, and every person, for an
        injury done to him in his person, property or
        reputation, shall have remedy by due course of law,
        which shall be administered without denial or
        unnecessary delay; and no person shall be barred from
        prosecuting or defending before any tribunal in this
        State, by himself or counsel, any civil cause to which he
        is a party.
UTAH CONST. art. I, § 11. The phrases “courts shall be open” and
“administered without denial or unnecessary delay” speak
unequivocally to access to the courts. In light of my research, I would
hold that the phrase “for an injury done to him in his person,


attorney fee provision violated the clause as imposing unequal
access or advantage in asserting a claim); Vierling v. Stifel Brewing
Co., 15 Mo. App. 125, 132–33 (1884) (discussing term of art meaning
of “sale of justice” going back to Magna Carta); Helena Steam-Heating
& Supply Co. v. Wells, 40 P. 78, 79–80 (Mont. 1895) (discussing one-
sided attorney fees); Wortman v. Kleinschmidt, 30 P. 280, 284–85
(Mont. 1892) (same).
   95 See Bumgardner v. Howard Cty. Cir. Ct., 4 Mo. 50, 51 (1835)
(concluding that law postponing execution of a judgment in
particular cases violated Open Courts Clause protection against
delay of justice); City of Toledo v. Preston, 34 N.E. 353, 355–56 (Ohio
1893) (discussing issue of delay with respect to hearing a claim);
Townsend v. Townsend, 7 Tenn. (Peck) 1, 21 (1821) (holding that
statute delaying cases for two years is unconstitutional).
   96 See State v. Rogers 19 So. 909, 912–13 (Ala. 1895) (determining
that public board at issue was not exercising judicial power so it was
not required to meet in public); Swann v. Kidd, 79 Ala. 431, 432 (1885)
(“This clause is known to have been taken in substance from Magna
Charta; and history shows that its chief purpose was to assail the
existing evil of anciently holding courts in clandestine sessions, and
of paying fines to the king and his officers, for delaying or
expediting law-suits, and for obtaining justice.”).

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                         WAITE v. LABOR COMM’N
                  Lee, A.C.J., concurring in the judgment
property or reputation, shall have remedy by due course of law”
reinforces the principle of access to the courts to vindicate vested
legal rights. But it does not mean that the legislature cannot
prospectively adjust the substantive law as it deems appropriate.
                 B. Utah Open Courts Clause Jurisprudence
   ¶ 67 Much of what we said in Berry ex rel. Beech v. Beech Aircraft
Corp., 717 P.2d 670 (Utah 1985), is consistent with the original
meaning of the Open Courts Clause—including the conclusion that
the Open Courts Clause is implicated by a statute of repose. In Berry
we indicated that “[t]he clear language of the section guarantees
access to the courts and a judicial procedure that is based on fairness
and equality.” Id. at 675 (citations omitted). The Berry court further
asserted that
         the framers of the Constitution intended that an
         individual could not be arbitrarily deprived of effective
         remedies designed to protect basic individual rights. A
         constitutional guarantee of access to the courthouse
         was not intended by the founders to be an empty
         gesture; individuals are also entitled to a remedy by
         “due course of law” for injuries to “person, property,
         or reputation.”
Id.
    ¶ 68 The Berry court also concluded that “‘no one has a vested
right in any rule of law’ under either the open courts or the due
process provision of the Utah Constitution.” Id. at 675–76 (quoting
Masich v. U.S. Smelting, Ref. & Mining Co., 191 P.2d 612, 624 (Utah
1948)). And it further determined that “neither the due process nor
the open courts provision constitutionalizes the common law or
otherwise freezes the law governing private rights and remedies as
of the time of statehood.” Id. at 676 (citation omitted).
      ¶ 69 Berry also stated that
         [i]t is . . . one of the important functions of the
         [l]egislature to change and modify the law that governs
         relations between individuals as society evolves and
         conditions require. However, once a cause of action
         under a particular rule of law accrues to a person by
         virtue of an injury to his rights, that person’s interest in
         the cause of action and the law which is the basis for a
         legal action becomes vested, and a legislative repeal of
         the law cannot constitutionally divest the injured
         person of the right to litigate the cause of action to a
         judgment.
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               Lee, A.C.J., concurring in the judgment
Id. (citations omitted). In addition, the Berry court rejected the
contention that the Open Courts Clause “is only a ‘philosophical
statement’ that imposes no limitations on legislative power.” Id. And
it ultimately concluded that the legislature’s enactment of a statute of
repose for product liability claims implicated the Open Courts
Clause.
     ¶ 70 All of this is consistent with the nineteenth-century case law
that I have reviewed. Yet Berry also departed from the standards set
forth in the nineteenth-century cases in one important respect. The
court interpreted the Open Courts Clause as a limit on the authority
of the legislature to alter the law that gives rise to legal rights and
available remedies, rather than a limitation on the state’s authority to
restrict access to the courts to vindicate vested legal rights. To
support its view the court mostly cited contemporary case law from
other jurisdictions. See id. at 677–78 (citing contemporary cases from
other jurisdictions striking down statutes of repose). And in so doing
it strayed from the original meaning of our Open Courts Clause.
    ¶ 71 In addition the Berry court emphasized dicta from our
decision in Masich. In that dicta the Masich court considered a
hypothetical: “Assuming the legislature can abolish the common law
right of action for negligence, must it return a substitute right to each
and every employee in some way affected by the abrogation to meet
the test of constitutionality?” 191 P.2d at 624. Masich said no: “If the
legislature were to abolish all compensation and all common law
rights for negligence of an employer, no contention could reasonably
be made that it was a proper exercise of police power.” Id.
    ¶ 72 But this dicta is irreconcilable with the dicta that
immediately preceded it, in which the Masich court indicated that
“no one has a vested right in any rule of law” and reasoned that
“[m]any states must have held that both statutory rights and
common law rights can be taken away.” Id. If not so, reasoned the
Masich court, any statutes “which abolish actions for seduction,
breach of promise, criminal conversation, and alienation of
affections, would be unconstitutional.” Id. The court in Masich offers
no principle to reconcile its contradictory views on the
constitutionality of legislative abrogation of some common law
rights but not others.
   ¶ 73 In contrast to the standard laid down in Berry, the
nineteenth-century cases consistently recognized legislative power to
change the substance of the law establishing liability and to alter




                                   35
                       WAITE v. LABOR COMM’N
                Lee, A.C.J., concurring in the judgment
available remedies. Those cases uniformly rejected open courts
challenges asserting the contrary.97 So our Berry line of cases is
_____________________________________________________________
   97 See Ex parte Pollard, 40 Ala. 77, 93 (1866) (“This provision had its
origin in ‘Magna Charta,’ and was intended as a restriction upon
royal power. It is an historical truth, that in England, the struggle has
constantly been to place limitations upon the power of the crown,
and not upon that of the parliament. We admit, however, that in our
country, it applies to legislative and all other power. But, whilst it is
the promulgation of a wholesome restriction, and is of no little value
as a safeguard against error and injustice, the landmarks of
legislative authority are rather to be found in the division of power
contained in the constitution, among the three branches of
government, and the specific limitations imposed by the instrument
on the law-making branch, than in this general declaration of the bill
of rights.” (citations omitted)); Parker, 46 Ark. at 235–36 (“The
general assembly is vested with the power to change, control,
modify and abolish remedies in the manner and to the extent the
state can do so, subject to the limitations on that power, if any,
contained in the constitution of the state. It is true, every person is
entitled to a certain remedy for all injuries or wrongs to his person,
property or character; but to the legislature belongs the power to
determine and provide the remedy. He ought to obtain justice freely
and without purchase; promptly and without delay; but it is the
duty of the legislature to provide the mode and proceedings in
which it shall be administered. In the absence of constitutional
limitations, the courts have no right to interfere with the exercise of
this power. Section 13 of article 2 of the constitution is an abstract
declaration of right, and is not a limitation on the power of the
legislature. It is too uncertain and indefinite to form rules for judicial
decisions, and serves rather as an admonition addressed to the
judgment and the conscience of all persons in authority than a
limitation.” (citation omitted)); Johnson v. Higgins, 60 Ky. (3 Met.) 566,
571 (1861) (“To say that the [open courts] provision was, in any wise,
designed to regulate the jurisdiction of the courts, would at once
bring it into collision with art. 4, sec. 17, which, in so many words,
gives that power to the legislature.”); State v. Dubuclet, 28 La. Ann.
698, 703 (1876) (“The [open courts] article of the constitution does not
prescribe this process of law that he is entitled to. Justice shall be
administered without denial or unreasonable delay. The article is
silent as to how justice shall be administered. Yet, in seeking the
adequate remedy, due process of law must be followed; justice is to
be administered by due process of law. It is for the Legislature to
                                                             (Continued)
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incompatible with the historical standard on this point. These cases,
as noted, purport to limit legislative authority to eliminate causes of
action—whether through statutes of repose or by changing rules
governing liability or limiting available remedies. See, e.g., Berry, 717
P.2d 670; Judd v. Drezga, 2004 UT 91, 103 P.3d 135. This is inconsistent
with the original meaning of the Open Courts Clause.
    ¶ 74 In fact, I have not found a single open courts case in the pre-
statehood era striking down a statute on account of a prospective
legislative abrogation of a common law cause of action. A Minnesota
case, Allen v. Pioneer Press Co., 41 N.W. 936 (Minn. 1889), comes
closest to stretching an Open Courts Clause in this manner. Allen
suggested in dicta that “principles of natural justice” might impose
an outer bound on the legislature’s authority to change common law
causes of action. See id. at 938. But the Allen court nonetheless upheld
the legislative abrogation of several remedies in libel suits, noting the
“wide latitude [that] must, of necessity, be given to the legislature in
determining both the form and the measure of the remedy for a
wrong.” See id. at 938–39.
    ¶ 75 Thus, Allen generally invoked open courts principles and
referred (in dicta) to a nebulous outer limit on legislative authority.
But the Allen court never connected that limit to the text of the Open


prescribe the due process of law . . . .”); Stratton v. European & N. Am.
Ry. Co., 74 Me. 422, 428 (1883) (“But, says the counsel, it is a ‘legal
maxim that for every right there is a remedy,’ and therefore one of
these actions must be maintainable. The maxim we admit in its full
force, but the conclusion does not follow. In the legal sense there is
no difficulty about the remedy, which is a ‘judicial means of
enforcing a right or redressing a wrong.’ The trouble here is in
establishing the right. The right to redress for such an injury as is
here complained of, is given by the statute and by that alone. . . .
What the statute gives it may take away.”); Preston, 33 Me. at 560–61
(“The State, by its legislative enactments, operating prospectively,
may determine that articles injurious to the public health or morals,
shall not constitute property, within its jurisdiction. . . . If a
legislature should declare that no person should acquire any
property in them, for such a purpose, there would be no occasion for
complaint that it had violated [the Open Courts Clause or any other]
provision of the constitution.”); Templeton, 29 P. at 797 (Or. 1892)
(distinguishing vested rights from mere expectancies and concluding
that legislature has authority to change the law giving rise to rights,
so no one can have a vested right in the general state of the law).

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               Lee, A.C.J., concurring in the judgment
Courts Clause per se; it attributed that limit to “principles of natural
justice.”98 And it nevertheless recognized broad legislative discretion
to define legal rights and available remedies. Id. at 938.
    ¶ 76 The “natural justice” limit in Allen is not only dicta; it is an
outlier in the cases from the relevant time period. The overwhelming
majority of cases roundly rejected the theory that the Open Courts
Clause limited the legislature’s authority to change the law giving
rise to legal rights and the available remedies. See supra ¶ 73 n.97.
And again, no open courts case from the nineteenth century struck
down legislation for abrogating a common law cause of action.
   ¶ 77 The open courts cases in place at the time of our
constitution’s framing recognized a limit on the legislative
_____________________________________________________________
   98 Allen, 41 N.W. at 938 (“The guaranty of a certain remedy in the
laws for all injuries to person, property, or character, and other
analogous provisions, such as those against exacting excessive bail,
imposing excessive fines, inflicting cruel and inhuman punishments,
and the like, inserted in our bill of rights, the equivalents of which
are found in almost every constitution in the United States, are but
declaratory of general fundamental principles, founded in natural
right and justice, and which would be equally the law of the land if
not incorporated in the constitution. There is unquestionably a limit
in these matters, beyond which, if the legislature should go, the
courts could and would declare their action invalid. But inside of
that limit there is, and necessarily must be, a wide range left to the
judgment and discretion of the legislature, and within which the
courts cannot set up their judgment against that of the legislative
branch of the government. These constitutional declarations of
general principles are not, and from the nature of the case cannot be,
so certain and definite as to form rules for judicial decisions in all
cases, but up to a certain point must be treated as guides to
legislative judgment, rather than as absolute limitations of their
power. And in determining whether in a given case a statute violates
any of these fundamental principles incorporated in the bill of rights,
it ought to be tested by the principles of natural justice, rather than
by comparison with the rules of law, statute or common, previously
in force. Again, it must be remembered that what constitutes ‘an
adequate remedy’ or ‘a certain remedy’ is not determined by any
inflexible rule found in the constitution, but is subject to variation
and modification, as the state of society changes. Hence a wide
latitude must, of necessity, be given to the legislature in determining
both the form and the measure of the remedy for a wrong.”).

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abrogation of “vested rights”—rights in claims that had accrued
prior to the enactment of the legislation in question.99 But there was a
general consensus in the cases that no one had a general vested right
in the law; only vested causes of action were protected. With this in
mind, courts routinely held that the legislature had plenary
authority to prospectively amend or abrogate existing causes of
action or available remedies.100
   ¶ 78 The vested rights cases might be the root of the modern
notion of a general open courts limit on legislative power to abrogate
causes of action.101 In the vested rights context, after all, courts
_____________________________________________________________
   99  See, e.g., Commercial Bank of Natchez, 16 Miss. at 56–58, 61
(holding that legislative enactments that undermine vested rights are
contrary to the Open Courts Clause); Lafferty, 38 Ohio St. at 48–49
(noting that shortening a limitation period as to existing rights might
violate the Open Courts Clause); Templeton, 29 P. 795 at 795–97
(reasoning that while vested rights cannot be deprived, no one has a
vested right in the general state of the law); Menges, 33 Pa. at 497–99
(“The law which gives character to a case, and by which it is to be
decided (excluding the forms of coming to a decision), is the law that
is inherent in the case, and constitutes part of it when it arises as a
complete transaction between the parties. If this law be changed or
annulled, the case is changed, and justice denied, and the due course
of law violated.”); Byers, 5 Pa. D. at 683–86 (holding that as to a cause
of action that has already accrued the legislature cannot enact a law
eliminating the claim retroactively); Von Baumbach, 9 Wis. at 576–80
(citing U.S. Supreme Court cases holding that existing remedies laws
are a legal backdrop relied on by parties entering contracts, such that
changing the remedies might impair vested rights where there are
reliance interests).
   100  See, e.g., Stratton, 74 Me. at 428 (“But, says the counsel, it is a
‘legal maxim that for every right there is a remedy,’ and therefore
one of these actions must be maintainable. The maxim we admit in
its full force, but the conclusion does not follow. In the legal sense
there is no difficulty about the remedy, which is a ‘judicial means of
enforcing a right or redressing a wrong.’ The trouble here is in
establishing the right. The right to redress for such an injury as is
here complained of, is given by the statute and by that alone. . . .
What the statute gives it may take away.”).
   101For example, in Horton v. Oregon Health and Science University,
the Oregon Supreme Court characterized the nineteenth century
consensus as supporting limits on legislative authority, but cited
                                                        (Continued)
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                  Lee, A.C.J., concurring in the judgment
sometimes considered whether the law preserved an adequate
substitute remedy.102 But on closer scrutiny, these cases do not
establish a general open courts limitation on the legislative power,
and so there is no general requirement that the legislature preserve a
substitute remedy in all cases. Instead, nineteenth-century open
courts cases simply recognize constitutional limits on the retroactive
application of legislation in a manner abrogating or limiting vested
claims or remedies.
    ¶ 79 For these reasons I would overrule the holdings in the Berry
line of cases that the Open Courts Clause restricts the legislative
power to reform the common law under a test that balances our
sense of social policy. The nineteenth-century understanding of the
open courts guarantee does not encompass a restriction on
legislative reassessment of common law causes of action. Courts in
the relevant time frame repeatedly acknowledged the legislature’s
plenary authority to prospectively alter laws giving rise to legal
rights.103 That principle, moreover, leads to the conclusion that the
legislature likewise has the power to impose statutes of limitation
and repose on a prospective basis. And if the legislature has the
greater power to abrogate a cause of action altogether, it must also
have the lesser power to place time limitations on asserting claims.

only vested rights cases for this proposition. 376 P.3d 998, 1021–1025
(Or. 2016). In fact, the first case cited by the Oregon court expressly
rejected the proposition for which Horton cited it. The Oregon court
reasoned that Stowell v. Flagg, 11 Mass. 364 (1814), supports the view
that the legislature must substitute one remedy for another. Horton,
376 P.3d at 1021–22. But that court misinterpreted Stowell, which
expressly identified plenary legislative authority to alter the law that
gives rise to rights. Stowell stated that “[a]s the common law action is
founded on a wrong done by the defendant, and the process itself
presupposes a tort, when the legislature has authorized the act itself
complained of, we cannot conceive that the action remains.” 11
Mass. at 365. In other words, if a statute expressly authorizes a
course of conduct that the common law once deemed tortious, the
common law is overruled, no injury is done by the conduct, and no
remedy need be afforded.
   102  See Parker, 46 Ark. at 235–36 (1885) (asserting plenary
legislative authority to establish and alter remedies); Byers, 5 Pa. D.
at 683–86 (suggesting that the legislature may change remedies
retroactively only if some substitute remedy remains).
   103   See cases cited supra note 101.

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    ¶ 80 As noted above, there are a few cases from the era of the
Utah founding that express open courts concerns regarding statutes
of limitation or repose.104 On examination, however, these courts
were protecting against legislative interference with access to courts
to vindicate vested rights.
    ¶ 81 And “vested rights” is itself a term of art with a specific,
historical meaning. Thomas Cooley’s treatise on constitutional
limitations illuminates the meaning of vested rights during the
period. In the treatise, Cooley states that
         a right cannot be considered a vested right, unless it is
         something more than such a mere expectation as may
         be based upon an anticipated continuance of the
         present general laws: it must have become a title, legal
         or equitable, to the present or future enjoyment of
         property, or to the present or future enforcement of a
         demand, or a legal exemption from a demand made by
         another.
THOMAS M. COOLEY, CONSTITUTIONAL LIMITATIONS 511 (2d ed. 1871).
Under this definition, there is no legislative interference with vested
rights where the legislature alters the “general laws” changing the
legal landscape under which rights might vest in the future. See id.
(“Acts of the legislature . . . cannot be regarded as opposed to
fundamental axioms of legislation, ‘unless they impair rights which
are vested; because most civil rights are derived from public laws;
and if, before the rights become vested in particular individuals, the
convenience of the State procures amendments or repeals of those
laws, those individuals have no cause of complaint. The power that
authorizes or proposes to give may always revoke before an interest
is perfected in the donee.’”(quoting Merrill v. Sherburne, 1 N.H. 199,
213–14 (1818))).
    ¶ 82 Thus, vested rights would not be disrupted by the
enactment of a prospectively applicable statute of repose. The repose
period would become part of the general law governing the accrual
of a right of action; where a claim fails to accrue in the repose period,
no right would vest and, therefore, no right could be improperly
disturbed by the statute. This notion of vested rights is consistent
with the pre-statehood cases articulating plenary legislative
authority to alter the law that gives rise to rights.105
_____________________________________________________________
   104   See cases cited supra note 92.
   105   See cases cited supra note 101.

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               Lee, A.C.J., concurring in the judgment
    ¶ 83 This approach is also consistent with the nineteenth-century
cases applying open courts provisions to statutes of repose or
limitation. In each case, the plaintiffs had a vested property right that
subsequent legislation purported to extinguish through the
enactment of a statute of repose. In Byers v. Pennsylvania Railroad
Company, for example, the court was primarily concerned with the
retroactive application of a statute of limitations to pending cases—
cutting off rights of action that had previously accrued and were
then pending in the courts. 5 Pa. D. at 683–86. In the remaining cases,
courts were concerned with laws precluding recourse to the courts to
redress an injury to vested rights in personal or real property.
Preston, 33 Me. at 558, 560–63 (right to bring action for replevin of
personal property unlawfully confiscated by the government);
Thornton, 11 Minn. at 339–40 (right to bring action for trespass
caused by flooding); Baker, 11 Minn. at 489–90 (right to bring
ejectment action). While the facts of these cases vary, in each case,
the court determined that the plaintiff’s real (or personal) property
rights had vested106 and the legislature’s enactment of a statute of
repose operated to cut off any opportunity to access the courts to
pursue a remedy for the violation of a vested right.107

_____________________________________________________________
   106 Preston, 33 Me. at 558, 560–63 (“The prohibition to sell them
cannot prevent any person from acquiring and possessing them for
his own use without any intention to sell them. Nor can it prevent
their transport from one town or city to another, or through the
State, when there is no intention to make sale of them. There is
nothing found in the Act indicative of an intention to prevent their
being property, when thus possessed or used.”); Thornton, 11 Minn.
at 337, 339–40 (“The complaint shows facts constituting a trespass to
the plaintiff’s real estate, whereby he is damaged. A cause of action
has accrued to the plaintiff for the recovery of such damages.”);
Baker, 11 Minn. at 498–99 (“That the plaintiff was the owner of the
land and authorized to prosecute and defend in the courts, his rights
thereto, is admitted.”).
   107 See Preston, 33 Me. at 558, 560–63 (ruling on constitutional
avoidance grounds that the statute should be interpreted narrowly
to allow replevin actions to recover unlawfully confiscated alcohol);
Thornton, 11 Minn. at 339–40 (“If a structure, intended as a milldam,
is erected, but not used so as to flow back water to the detriment of
any person until more than two years after the date of its erection,
then, according to the defendant’s construction of this act, no right of
action would exist in favor of those injured. If this is the meaning of
                                                            (Continued)
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    ¶ 84 Accordingly, the original meaning of the Open Courts
Clause would not limit legislative authority to prospectively enact
statutes of repose. And because the Berry standard has engendered
no reliance interests due to the incoherence of its content, supra ¶ 58,
I would repudiate our contrary holding in Berry. See 717 P.2d at
678-79 (rejecting view that legislature may prospectively preclude a
cause of action from vesting by establishing a statute of repose).
   ¶ 85 I would also recognize a substantive Open Courts Clause
limitation on legislation retroactively limiting the time for raising a
vested claim. That limitation would be framed by the above-cited

the law, it would seem to be in contravention of that clause of the
Constitution which provides that ‘every person is entitled to a
certain remedy in the laws for all injuries or wrongs which he may
receive in person, property or character.’ But this, we think, is not its
meaning. The section above quoted only attempts to limit the time
within which actions may be commenced for ‘damages occasioned
by the erection of a milldam.’”); Baker, 11 Minn. at 489–99 (“That he
has been deprived of either his property, or legal rights, by that due
process of law which ‘proceeds upon inquiry, and renders judgment
after trial,’ cannot be pretended. If the statute should be sustained, it
would effect this; for a person is deprived of his property and legal
rights when he is forbidden to test or question the validity of the title
of an adverse claimant. The statute would deprive a person of his
property if he fails to do an act which may be done or omitted
without any violation of law, and which neither his duty or interest
requires him to do, and makes the performance of such act a
condition to his rights to sue for or defend his property in the courts;
whereas the constitution declares that he shall not be deprived of his
property by any mere legislative act, and that he shall be entitled to
‘justice freely and without purchase, completely and without denial,
promptly and without delay, conformably to the laws.’ There can be
no difference in principle between requiring a party to bring a suit,
pay a sum of money, or do any other act as a condition to a status in
court, or the enjoyment of his property. That justice is not ‘free’ and
‘without purchase,’ within either the spirit or letter of the constitution,
which can only be obtained on either condition. We do not mean to
question the power of the Legislature to require a party to pay the
necessary costs of litigation, or to prescribe rules for the guidance of
courts and litigants, but it seems very clear that beyond this they
cannot attach any conditions or limits to the rights that are
guaranteed absolutely, unconditionally, freely, and certainly, by the
constitution.” (emphasis in original)).

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                       WAITE v. LABOR COMM’N
                         Pearce, J., concurring
 cases, which ask whether the statute preserves a reasonable period
for plaintiffs to bring claims that vested prior to the enactment of the
statute of limitation or repose. See, e.g., Baker, 11 Minn. at 494 (“We
have seen that the Legislature have not the right or power to deny a
person a reasonable time within which to commence an
action . . . .”).
                   IV. PETITIONERS’ CLAIMS
    ¶ 86 The claims at issue here are premised entirely on the Berry-
Judd theory that I would repudiate. Because the legislature once
afforded a right to recover total disability benefits, petitioners
contend that it could not abrogate that right through a statute of
repose. I would reject that claim because it relies on a premise that
has no basis in the Open Courts Clause. Petitioners do not assert that
their claims had vested prior to the enactment of the repose statute.
Nor could they—the provisions at issue were enacted long before
they suffered their respective injuries.
    ¶ 87 I would accordingly affirm. I would hold that Petitioners
failed to state a claim under our Open Courts Clause because the
clause does not limit legislative authority to prospectively alter the
law giving rise to legal rights.

   JUSTICE PEARCE, concurring:
    ¶ 88 Because our case law currently recognizes that the Open
Courts Clause “embrace[s] a substantive conception of the open
courts protection,” the result the majority reaches is correct. In re
Adoption of B.Y., 2015 UT 67, ¶ 57, 356 P.3d 1215. And the analysis the
majority employs remains the correct analytical model unless and
until a party meets its burden of establishing that our prior case law
is unworthy of stare decisis respect.
    ¶ 89 I write separately to echo the view that Justice Lee
articulates in his separate concurrence—that our Open Courts Clause
jurisprudence is not entitled to much stare decisis weight. I also
write to express my admiration for Justice Lee’s research into the
historical understanding of the meaning of the Open Courts Clause.
Justice Lee has provided a model for the type of research and
analysis that I would hope this court sees from parties in future
cases.
   ¶ 90 By writing separately, I do not wish to appear critical of this
court and its decades-long effort to definitively interpret the Open
Courts Clause. To the contrary, the question is difficult and the
stakes are high because it explores the often blurry lines that

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separate the powers that the people of Utah have divided between
the branches of their government.
    ¶ 91 But if we start from the premise that our powers are limited
to those the Utah Constitution gives us, our need for an extra
measure of care comes into sharp focus. If the people of Utah
intended that the Open Courts Clause provide a guarantee against
the elimination of remedies, and we find that they did not, we will
read out of the Constitution an important protection that the people
of Utah intended. If, on the other hand, we conclude we have the
ability to strike down legislation for reasons the Utah Constitution
never contemplated, we may find ourselves impermissibly treading
upon territory that the people of Utah gave to the Legislature.
    ¶ 92 That consideration alone would cause me to hesitate before I
ever considered the meaning of the Open Courts Clause to be
definitively answered. See, e.g., Agostini v. Felton, 521 U.S. 203, 235
(1997) (the policy rationale underlying stare decisis “is at its weakest
when we interpret the Constitution because our interpretation can be
altered only by constitutional amendment or by overruling our prior
decisions”); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 94
(1936) (Stone and Cardozo, JJ., concurring) (“The doctrine of stare
decisis . . . has only a limited application in the field of constitutional
law.”); see also Jack L. Landau, Some Thoughts About Constitutional
Interpretation, 115 PENN ST. L. REV. 837, 838 (2011) (“[I]n the case of
state constitutional interpretation, the pull of stare decisis may not be
as strong as it is in other contexts.”).
   ¶ 93 Our test for assessing precedential weight confirms that our
Open Courts Clause jurisprudence is particularly susceptible to
reexamination. In Eldridge v. Johndrow, we opined that
       [o]ur decisions have identified two broad factors that
       distinguish between weighty precedents and less
       weighty ones: (1) the persuasiveness of the authority
       and reasoning on which the precedent was originally
       based, and (2) how firmly the precedent has become
       established in the law since it was handed down. The
       second factor encompasses a variety of considerations,
       including the age of the precedent, how well it has
       worked in practice, its consistency with other legal
       principles, and the extent to which people’s reliance on
       the precedent would create injustice or hardship if it
       were overturned.
2015 UT 21, ¶ 22, 345 P.3d 553.


                                    45
                       WAITE v. LABOR COMM’N
                         Pearce, J., concurring
    ¶ 94 As to the first factor, the history of our interpretation of the
Open Courts Clause undercuts the persuasiveness of the authority.
In one of our earliest opportunities to address the Open Courts
Clause, we held that article I, section 11 required that the “courts
must always be open to all alike” and that the Legislature could not
“curtail[]” that access. Union Sav. & Inv. Co. v. Dist. Court, 140 P. 221,
225 (Utah 1914). One year later, in Brown v. Wightman, we opined
that the clause places “a limitation upon the Legislature to prevent
that branch of the state government from closing the doors of the
courts against any person who has a legal right which is enforceable
in accordance with some known remedy.” 151 P. 366, 366–67 (Utah
1915). We also noted that 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.” Id. at 367. Soon after that, we reiterated that
the Open Courts Clause did not permit this court to “reach out and
usurp powers which belong to another independent and co-ordinate
branch of the state government.” Salt Lake City v. Utah Light &
Traction Co., 173 P. 556, 563 (Utah 1918).108 Thirty years later, in
Masich v. United States Smelting, Refining and Mining Co., we held that
the Open Courts Clause allowed the Legislature to eliminate a
common law right to a remedy for an employer’s negligence that
caused a partial disability from silicosis. 191 P.2d 612, 624–25 (Utah
1948) (“[B]oth statutory rights and common law rights can be taken
away, otherwise, there can be no question that acts which abolish
actions for seduction, breach of promise, criminal conversation, and
alienation of affections, would be unconstitutional.”).
    ¶ 95 In 1985, we dramatically changed our view of the Open
Courts Clause. See Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d
670 (Utah 1985). The Berry court acted as if it wrote on a blank slate
and did not even attempt to wrestle with our prior Open Courts
Clause case law. And since that time, various members of this court
have, with varying degrees of vehemence, assailed Berry’s test and
its underlying reasoning. See Craftsman Builder’s Supply, Inc. v. Butler
Mfg. Co., 1999 UT 18, ¶ 108, 974 P.2d 1194 (Zimmerman, J.,
concurring) (“I would overrule Berry.”); Laney v. Fairview City, 2002
UT 79, ¶ 85, 57 P.3d 1007 (Wilkins, J., concurring in part and
dissenting in part) (“I would overturn Berry in favor of the more
procedural interpretation of the Open Courts Clause . . . .”); Wood v.

_____________________________________________________________
   108Chief Justice Joseph E. Frick, whose service on the court began
in 1906—just ten years after statehood—authored Union Savings,
Brown, and Utah Light & Traction.

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                          Pearce, J., concurring
Univ. of Utah Med. Ctr., 2002 UT 134, ¶ 9 n.1, 67 P.3d 436 (two
members of this court agreed “that the decision in Laney to adhere to
the Berry interpretation and test was erroneous” but applied the
Berry test out of respect for stare decisis). The continued willingness
of certain members of this court to dedicate pages of ink to arguing
with Berry has undoubtedly undercut Berry’s ability to persuade. See,
e.g., Laney, 2002 UT 79, ¶ 93 (Wilkins, J., concurring in part and
dissenting in part) (“Clearly, the members of this court, past and
present, do not agree that Berry is the best method for analyzing
Open Courts challenges.”). In 2002, two members of this court
concluded that
         the Berry interpretation of the Open Courts Clause is
         erroneous; the accompanying Berry test has proven to
         create more problems than it has solved. . . . Berry has
         proven to be unworkable over a period of 17 years, has
         not been adhered to unanimously, has been questioned
         and chastised by members of this court . . . has been
         criticized by legal scholars, and presents separation of
         powers problems.
Id. ¶ 94 (Wilkins, J., concurring in part and dissenting in part).
   ¶ 96 Perhaps because of this court’s continued public discussion
of Berry, we have been asked on several occasions to revisit the
holding. See, e.g., Judd v. Drezga, 2004 UT 91, ¶ 11, 103 P.3d 135;
Laney, 2002 UT 79, ¶ 29; Ross v. Schackel, 920 P.2d 1159, 1162 (Utah
1996).109 Certain precedents, such as Marbury v. Madison, 5 U.S. 137
(1803), have “consistently draw[n] the Court’s esteem as a pillar of
our constitutional order.” Randy J. Kozel, Precedent and Reliance, 62
EMORY L.J. 1459, 1476 (2013). But some “are plainly more likely than
others to be reconsidered and overruled.” Id. Our Open Courts
Clause precedent falls into this latter category. The repeated dissents
have signaled unease and the willingness of members of this court to
reconsider our jurisprudence.


_____________________________________________________________
   109  Our modifications to Berry also undercut the persuasiveness of
Berry’s original reasoning. Most significantly, in Judd, this court
abandoned heightened scrutiny for article I, section 11 challenges.
2004 UT 91, ¶¶ 30–31. And today the majority further clarifies Judd’s
reframing of the Berry test. See supra ¶¶ 22–24. As the amicus Board
of Regents notes in its brief, “testing reliance is a challenge” because
“it is difficult to know what the current test is.”

                                   47
                        WAITE v. LABOR COMM’N
                         Pearce, J., concurring
    ¶ 97 The judicial back and forth also speaks to Eldridge’s second
factor: how firmly the precedent has become established. As noted
above, several separate opinions have condemned Berry. See supra
¶ 96. The bar has been on notice that this court has continued to
debate the meaning of the Open Courts Clause such that it would
not create an injustice or hardship if it were overturned; at least no
one has yet to articulate the injustice and hardship that would result
if this court overturned Berry. All of this inclines me to conclude that
the precedential weight of Berry and its offspring is low and that the
constitutional meaning of the Open Courts Clause is ripe for re-
examination in the appropriate case.
    ¶ 98 By commenting upon the state of our jurisprudence, I do not
wish to suggest that a party seeking to overturn Berry will not have
some lifting to do. To replace Berry, a party will need to do more
than just convince this court that Berry does not accurately reflect the
framers’ original intent. Rather, that party will need to convince us
that there is a better, more correct interpretation of the Open Courts
Clause.110 As we have noted with respect to other constitutional
language, this requires review of the plain language informed by
“historical evidence of the framers’ intent.” Am. Bush v. City of S. Salt
Lake, 2006 UT 40, ¶ 10, 140 P.3d 1235. Counsel should also look to
lessons from our common law, Utah’s “particular . . . traditions,” and
“court decisions made contemporaneously to the framing of Utah’s
constitution in sister states” with similar provisions in an effort to
discern the meaning of the constitution. Id. ¶ 11 (alteration in
original) (citation omitted).
   ¶ 99 After this case was fully briefed, we asked111 the parties
and the Attorney General’s Office—and permitted amicus—to brief
four questions, including article I, section 11’s original meaning. In
response, we received well-argued and well-written briefs that
discussed the constitution’s plain language, the interpretation of
other states’ open courts provisions, and the historical backdrop


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   110 As Samuel Rayburn, former Speaker of the United States
House of Representatives, once said, “Any jackass can kick down a
barn, but it takes a good carpenter to build one.” See, e.g., CRAIG
VOLDEN & ALAN E. WISEMAN, LEGISLATIVE EFFECTIVENESS IN THE
UNITED STATES CONGRESS: THE LAWMAKERS 4 (2014).
   111   Ask is a euphemistic way to describe a supplemental briefing
order.

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                          Cite as: 2017 UT 86
                         Pearce, J., concurring
against which the voters of Utah approved a constitution that
contained an open courts clause.
   ¶ 100 The briefs we received are the types of briefs we need
when presented with a question concerning the original meaning of
constitutional language. The briefs analyze the plain meaning of the
constitutional text, our prior case law, the interpretation other courts
have given to similarly worded provisions in their state
constitutions, and what lessons might be gleaned from the historical
context. We need briefs of this quality, because without the parties’
help, we risk engaging in what Justice Blackmun might describe as a
“self-guided tour” of the historical record. See Griffin v. United States,
502 U.S. 46, 60 (1991) (Blackmun, J., concurring). However, it appears
that before we can put the debate surrounding the Open Courts
Clause to rest, we will need to more closely examine the historical
record.
    ¶ 101 Indeed, reviewing our Open Courts Clause case law, it
appears that often we based our conclusions on—or at least
buttressed our conclusions with—generalizations about Utah
history.112 Our case law follows a pattern of asserting one, likely true,
fact about Utah history and letting the historical analysis flow from
that single fact. For example, in Laney, this court bolstered its
reasoning that the Open Courts Clause provided a substantive
guarantee by noting that the “open courts provision was adopted, as
part of the original Constitution itself, at the end of the nineteenth
century, during a period when abuse had generated concern and
distrust of the legislative branch in numerous states.” 2002 UT 79,
¶ 33. Similarly, some members of this court have drawn meaning
from the observation that Utah’s early settlers were “hostile to the
common law, lawyers, and courts” at the time the Open Courts
Clause was drafted. Craftsman, 1999 UT 18, ¶ 132 (Zimmerman, J.,
concurring). While I don’t presently have reason to doubt the
general accuracy of either historical assertion, I worry that undue
reliance on arguments based primarily upon the zeitgeist risks



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   112 We are apparently not alone. One commentator has opined
that interpretations of open courts clauses across the country have
lacked the “good historical research” that serves as “a necessary
predicate to principled judicial interpretation.” Jonathan M.
Hoffman, By the Course of the Law: The Origins of the Open Courts
Clause of State Constitutions, 74 OR. L. REV. 1279, 1281 (1995).

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                       WAITE v. LABOR COMM’N
                         Pearce, J., concurring
converting the historical record into a type of Rorschach test where
we only see what we are already inclined to see.113
    ¶ 102 Justice Lee’s concurring opinion marks a significant
departure from the facile historical analysis our case law has tended
to employ. The concurrence tackles the enormous task of reviewing
the jurisprudence existing at the time the framers of the Utah
Constitution saw fit to include the Open Courts Clause in the draft
constitution they put before the people of Utah and anchors its
analysis there. As a result, the concurrence stands on much firmer
footing than our previous attempts to ascertain the meaning of the
Open Courts Clause. Having modeled the type of research and
analysis we will need if we are to opine upon the original
understanding of constitutional provisions, I am hopeful that parties
will begin to follow suit in their briefing and in the future we can
rule on arguments that have been thoroughly tested by the
adversarial process.
    ¶ 103 I concur in the majority’s decision and applaud its
recognition that its opinion does not “signal an end to [the] debate”
concerning the meaning of the Open Courts Clause. Supra ¶ 34. I also
applaud Justice Lee’s departure from the overly simplified historical
arguments that became the foundation of our prior case law. Because
of the importance of the constitutional question and the possibility
that lessons remain for us to learn from the historical record, stare
decisis principles should not prevent us from revisiting the Open
Courts Clause’s meaning in the appropriate case.




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   113  What appears to be missing from our jurisprudence is
reference to direct historical evidence or primary source material.
There are a couple of possible explanations. First, it is possible that it
doesn’t exist—that, to the extent the framers of the Utah Constitution
had any thoughts about how the Open Courts Clause should be
interpreted, they have been lost to the fogs of time. Second, it is
possible that we haven’t looked, or looked with enough diligence, in
the right places. We are attorneys and judges, not historians. I would
encourage those using the historical record to endeavor to go beyond
what we have previously referenced, because, as one commentator
has noted, “[t]he cure for poor historical analysis is to try to do it
better, not to ignore history altogether.” Hoffman, By the Course of
Law, supra note 112 at 1283.

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