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Waite v. Utah Labor Commission

Supreme Court of Utah

December 1, 2017

James Waite and Luis A. Ortega, Petitioners,
v.
Utah Labor Commission, Farr Better Premium Ice Cream, Sandy City, and Workers Compensation Fund, Respondents.

         Petition for Review of an Agency Decision

          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.

          OPINION

          DURRANT CHIEF JUSTICE.

         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.

         ¶ 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]

         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]

         ¶ 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 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 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 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 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- 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]

         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.

         ¶ 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 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 . . . 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.

         ¶ 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 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 claims[69] 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. Drezga[72] 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 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 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 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.

         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 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 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. 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 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 ...


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