concurring and dissenting:
¶ 84 I concur with nearly all of section I of the lead opinion, the well-reasoned discretionary function analysis. I state no opinion, however, as to whether compliance with industry standards is necessary for an act or omission of a municipality to constitute a discretionary function, see supra ¶¶ 24-25, as I deem it unnecessary to the analysis.
¶ 85 I dissent, however, with section II of the lead opinion, the majority’s interpretation of the Open Courts Clause. In my view the current interpretation of the Open Courts Clause originating with Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985), and the accompanying Berry test, places this court outside of its constitutional role and creates separation of powers problems. I would overturn Berry in favor of the more procedural interpretation of the Open Courts Clause advanced in our jurisprudence prior to, and since, Berry. I also disagree with Justice Russon’s concurring opinion, as he also declares the section 63-30-2(4)(a) unconstitutional and continues to adhere to Berry.
*1029¶ 86 In my opinion, section 63-30-2(4)(a) of the Utah Governmental Immunity Act, Utah Code Ann. §§ 63-30-1 to -38 (1997 & Supp. 2000), does not violate article I, section 11, of the Utah Constitution, the Open Courts Clause. I would therefore affirm the district court’s ruling that Fairview City is immune from suit for the alleged negligence. In my view, the Legislature acted within its constitutional authority in setting forth the current scheme of sovereign immunity in Utah. Under the statute, Fairview City should be entitled to immunity for its omissions, to not raise the height of, insulate, or provide further warnings on its power lines under section 63-30-10, a discretionary function within the discretionary function exception of the Utah Governmental Immunity Act.
¶ 87 Fairview City correctly argued that this Court must presume section 63-30-2(4)(a) is constitutional, resolving any reasonable doubts in favor of constitutionality. As this court stated in a prior Open Courts case:
The first and foundational [principle of law relating to the constitutionality of statutes] is that the prerogative of the legislature as the creators of the law is to be respected. Consequently, its enactments are accorded a presumption of validity; and this court should not strike down a legislative act unless the interests of justice in the particular case before it require doing so because the act is clearly in conflict with the higher law as set forth in the Constitution.
Zamora v. Draper, 635 P.2d 78, 80 (Utah 1981) (internal footnote citations omitted); see also Utah Sch. Bds. Ass’n v. State Bd. of Educ., 2001 UT 2, ¶ 9, 17 P.3d 1125; Soc’y of Separationists, Inc. v. Whitehead, 870 P.2d 916, 920 (Utah 1993); Lindon City v. Engineers Const. Co., 636 P.2d 1070, 1073 (Utah 1981).
¶88 In the recent past, since 1985, the Open Courts Clause has been interpreted in such a way that it limits the legislature’s ability to alter, modify, or eliminate the law by requiring legislation to meet this court’s approval through the Berry test. See, e.g., Berry, 717 P.2d at 676, 680. In Berry, prior members of this court admittedly “broke new ground and read article I, section 11 ... as imposing a strong substantive limitation on the legislature’s ability to limit or eliminate a cause of action for, or the remedies available for [personal injury].” Craftsman Builder’s Supply, Inc. v. Butler Manuf. Co., 1999 UT 18, ¶ 112, 974 P.2d 1194; accord Berry, 717 P.2d at 676, 680-81. In order to ensure that the legislature was appropriately limited, or, in my view, to permit the court to pass judgment on legislative policy, this court developed the Berry analytical model. Again, in order for a statute that abrogates an existing remedy to withstand a constitutional challenge under the Open Courts Clause, Berry requires one of two conditions to be met:
First, ... the law [must otherwise provide] an injured person an effective and reasonable alternative remedy “by due course of law” for vindication of his constitutional interest. The benefit provided by the substitute must be substantially equal in value or other benefit to the remedy abrogated in providing essentially comparable substantive protection to one’s person, property, or reputation, although the form of the substitute remedy may be different ... [; or]
[s]econd, if there is no substitute or alternative remedy provided, abrogation of the remedy or cause of action' may be justified only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means for achieving the objective.
Berry, 717 P.2d at 680 (citations omitted).
¶ 89 In my view, this test permits a majority of this court to substitute its judgment of what constitutes good public policy for the judgment of the legislature, the branch of government that is not only best suited to determine and implement public policy under our system of government, but constitutionally obligated to do so. See Utah Const: art. VI, § 1. I am of the opinion that whether a substitute remedy is of “substantially equal value or other benefit to the remedy abrogated,” and whether there is a clear social or economic evil to be eliminated, are two questions that should be answered by the legislature, not this court, and that we overstep our bounds in so doing. In my view, application of the Berry queries to a set of facts can result in a decision either in favor of, or *1030opposed to, the legislation, and the decision depends completely upon one’s opinion of what is in the public good. This case demonstrates why the Berry test is a straw man analytical framework that permits one to, justify a predetermined outcome. To borrow Justice Zimmerman’s language, it is “subject to manipulation.” Craftsman, 1999 UT 18 at ¶ 108, 974 P.2d 1194.
¶ 90 How one answers the first Berry query, whether the act provides an effective and reasonable alternative remedy equal in value or other benefit to the abrogated legal remedy, depends upon one’s point of view. From the plaintiffs’ perspective, the 1987 amendment including section 63-30-2(4)(a) eliminated their possible remedy; they can no longer recover for wrongful death because the legislation abrogated their right to sue for wrongful death without offering any substitute remedy, let alone an effective, reasonable, alternative one. To them, the amendment precludes recovery. From the plaintiffs’ point of view, prior to the date on which section 63 — 30—2(4)(a) became effective, they would have had a remedy against Fair-view City for Mr. Laney’s death as the City’s operation of the power lines was, to them, a proprietary function; but now, because section 63-30-2(4)(a) broadly defines governmental function to encompass the operation of power lines, they no longer have a remedy of any sort against the City.13 From Fairview City’s perspective, on the other hand, section 63-30-2(4) (a) did not abrogate an existing remedy, and, therefore, the legislature did not need to provide an adequate alternative remedy. In Fairview City’s view, at the time section 63-30-2(4)(a) was enacted, the doctrine of sovereign immunity provided that no remedy against the City existed without the legislature’s permission. The legislature dictates under what circumstances sovereign immunity is waived and recovery is permitted against the State; and therefore where no remedy is guaranteed, modification does not abrogate a remedy. The City reasons that the Act did not abrogate a remedy because sovereign immunity as it existed at the time of statehood would have prevented the plaintiffs from recovering against Fairview City. Even looking to whether the amendment abrogated a cause of action existing at the time of its enactment, a cause of action exists against the state only as the legislature sees fit to waive immunity. In my view, both positions are rational. It is only after one inserts his or her view as to what the law should be, in this case how sovereign immunity functions, that one determines whether the amendment permits an adequate and reasonable alternative remedy. If one agrees that the legislature has authority to waive sovereign immunity, the legislature does not abrogate a remedy. If one believes that injured individuals are entitled to a remedy from state funds, then legislation that prevents this abrogates a remedy.
¶ 91 The second part of the Berry test permits one to second-guess legislation and justify a predetermined outcome even more so than the first part. Whether, if no adequate substitute or alternative remedy is provided, the act remedies a clear social or economic evil, clearly depends upon one’s point of view. In my view, this court has no business passing judgment on what constitutes a clear social or economic evil in this manner. Then, analyzing whether legislation is a reasonable or nonarbitrary means of eliminating such a perceived social or economic evil simply permits one to decide constitutionality based upon his or her personal opinion regarding legislative policy. From the plaintiffs’ perspective, the legislature did not identify any social or economic evils to be eliminated, and therefore this second prong of Berry is not met. Arguably, from the plaintiffs’ position, it is a clear social or economic evil to prohibit recovery against the State for personal injury; and the 1987 amendment eliminating such recovery is an arbitrary, unreasonable elimination of what should be remedied. From Fairview City’s perspective, on the other hand, the legislature identified clear social and economic evils, which it eliminated through non-arbitrary, reasonable legislation. Specifically, the legislature viewed high insurance expenses borne by municipalities, potential burdens on the tax base of governmental entities, and the unpredictability for municipal risk managers, as clear economic evils. It reduced these economic evils through re*1031structuring the circumstances under which recovery against the State for personal injury is permitted. Nevertheless, in my view, this court has no business deciding what constitutes a clear social or economic evil in this way. Permitting this court to do so, and then requiring this court to determine whether the perceived social or economic evil was eliminated in an unreasonable, non-arbitrary way, requires this court to sit as a second legislature, reevaluating public policy of already-debated legislation.
¶ 92 While other cases may, and certainly will, more clearly reveal reasonable positions on either side of the Berry framework, the fact remains that the Berry test permits reasonable conclusions on either side. In my view, the Berry test simply sets forth a framework for justifying the policy position of a majority of the members of this court. The test is a vehicle for re-arguing the competing policies that the legislature already had before it — rightfully so as the people’s representatives — in debating and enacting the legislation. It requires judges to determine whether a substitute remedy is adequate, and debate again the competing social and economic evils connected with the legislation. For me, this reveals the disguise of the Berry test: it functions as a vehicle for judicial legislation and it permits members of the judiciary to justify through a straw man legal analysis, a politically-based, and potentially predetermined, outcome.
¶ 93 In my opinion, our case law following Berry reveals the problems created by Berry. Clearly, the members of this court, past and present, do not agree that Berry is the best method for analyzing Open Courts challenges. 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. See, e.g., Lyon v. Burton, 2000 UT 19, ¶¶ 85-92, 5 P.3d 616 (Zimmerman, J., concurring in the result); Craftsman Builder’s Supply, Inc. v. Butler Manuf. Co., 1999 UT 18, ¶¶ 108-155, 974 P.2d 1194 (Zimmerman, J., concurring in the result). I agree. I would abandon Berry and its progeny and return to the prior interpretation suggested by this court, particularly the interpretation suggested by Justice Crockett, for addressing challenges based on the Open Courts Clause. I disagree with the lead opinion’s claim that, prior to Berry, the Open Courts Clause was interpreted as a substantive guarantee to a remedy, and that it has been “unanimously concurred in.”
¶ 94 I do not disavow Berry lightly. I am cognizant of and respect the principle of stare decisis, which gives stability and predictability to our legal system. See Clark v. Clark, 2001 UT 44, ¶¶ 25-29, 27 P.3d 538 (Wilkins, J., concurring). However, “[tjhis court has ‘not hesitated ... to reverse case law when we are firmly convinced that we have erred earlier.’ ” Clark v. Clark, 2001 UT 44, ¶ 32 n. 3, 27 P.3d 538 (quoting Staker v. Ainsworth, 785 P.2d 417, 424 n. 5 (Utah 1990)) (Russon, A.C.J., dissenting, joined by Howe, C.J.). I agree that “we should not perpetuate a law that is clearly wrong for the sake of stare decisis.” Clark v. Clark, 2001 UT 44, ¶ 32 n. 3, 27 P.3d 538. (Russon, A.C.J., dissenting, joined by Howe, C.J.). I am firmly convinced 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. 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. It is my view that we should return to the more procedural interpretation of the Open Courts Clause and abolish the Berry test rather than persist in the quagmire of decisions generated by Berry that have permitted this court to reevaluate legislative policy, thereby placing the judiciary in a legislative role, a role inconsistent with our constitutional authority.
¶ 95 Berry has been the subject of criticism. Indeed, our cases since Berry demonstrate that this criticism has proven to be well-founded. The substantive interest recognized in Berry has led to a morass of case law. See, e.g., Craftsman, 1999 UT 18 at ¶ 136, 974 P.2d 1194 (Zimmerman, J., concurring in the result) (discussing the evolution of the Berry test and its progeny). The ana*1032lytical model developed in Berry has been described by an initial proponent, Justice Zimmerman, as “unworkable” because it is “subject to manipulation, ... leads to absurd results, and it distorts [the judiciary’s] relationship with the legislature.” Id. at ¶ 108, 974 P.2d 1194; see also Lyon, 2000 UT 19 at ¶ 89, 5 P.3d 616. As is explained later, former members of this court have interpreted the Open Courts Clause differently, contrary to the Beiry interpretation. Furthermore, Beri'y was also criticized by scholars even before its progeny developed. See, e.g., John H. Bauman, Remedies Provisions in State Constitutions and the Proper Role of the State Courts, 26 Wake Forest L.Rev. 237, 270-71 (1991) (describing Beiry as “typical of the activist use of the remedies provision” and criticizing Beii'y for infringing on the policy-making role of the legislature); David Schuman, The Right to a Remedy, 65 Temp. L.Rev. 1197, 1215-17 (1992) (discussing the “complex methodology” of Berry and stating that “[n]one of the existing solutions-to the remedy clause problem is completely satisfactory”).
¶ 96 Upon further contemplation, and with the benefit of hindsight, I am persuaded that the assumptions upon which Berry was based are, in part, faulty. As far as I can tell, Berry is premised on the following:
[T]he basic purpose of Article I, section 11 is to impose some limitation on that power [the power of the legislature to define, change, and modernize the law] for the benefit of those persons who are injured in their persons, property, or reputations since they are generally isolated in society, belong to no identifiable group, and rarely are able to rally the political process to their aid.
Berry, 717 P.2d at 676, quoted in Condemarin v. Univ. Hosp., 775 P.2d 348, 357 (Utah 1989); see also Sun Valley Water Beds of Utah, Inc. v. Herm Hughes & Son, Inc., 782 P.2d 188, 191 (Utah 1989); Lyon, 2000 UT 19 at ¶ 29, 5 P.3d 616 (“By and large, persons who suffer serious personal or property injuries are an isolated and unidentifiable minority who have little influence on legislative actions. These considerations were instrumental in the adoption of the open courts clauses in a number of state constitutions.”); Schuman, supra, at 1217 (stating that to permit the legislature to eliminate remedies at will runs the risk of majoritarian abuse).
¶ 97 As I mentioned previously, I agree that the Open Courts Clause limits legislative authority. Numerous constitutional provisions prevent the legislative branch from eliminating constitutional or inalienable rights. I do not think, however, that the Open Courts Clause guarantees one the right to a judicial remedy for every injury done to one’s person, property, or reputation. The Open Courts Clause should not be interpreted as it is now; the Berry interpretation inappropriately, and as I see it, unconstitutionally, limits legislative authority to alter, change, and modernize the law.
¶ 98 The first Berry assumption with which I disagree is the assumption that those who suffer because of legislation preventing recovery for personal injury are individuals who are somehow part of a minority that is not represented or underrepresented in the political process. In my view, individuals who suffer injury to their person, property, or reputation are not a discreet and insular minority. All persons, regardless of ethnic background, economic background, gender, religious persuasion, or other affiliations, may suffer injury. Viewing an injured individual or group retrospectively, after they have suffered injury, they may very well be unable to rally the political process. Prospectively, however, all of us as citizens, regardless of status, are subject to legislation limiting our ability to recover for personal injury. No group is singled out by legislation that limits the ability to recover for personal injuries. All citizens face the possibility of personal injury, even those who are generally visible in society that belong to what we may think are privileged, identifiable groups. Some individuals or groups may be more or less able than others to rally the political process to their aid. Those who suffer injury to their person, property, or reputation, are not a distinct group who are without the ability to rally political support, however. Those thwarted by the Utah Governmental Immunity Act, those who have suffered personal injuries at the hands of the government, may be any of us; they do not comprise a distinct and insular group whose voice may not be heard through the political *1033process. Rather, this “minority” is simply a random subset of the population as a whole. No group is singled out. All citizens — even legislators themselves — are subject to the possible harsh ramifications of sovereign immunity, and certainly their voices are heard through the political process.
¶ 99 Second, Berry assumes that the Open Courts Clause contains language which should be interpreted to protect against ma-joritarian abuse. I disagree. Other provisions in our constitution are more suited to protecting against majoritarian abuse. They contain language which more specifically implies protection for political minorities, and these provisions have also been interpreted to protect groups and individuals that are isolated from the political process. In my opinion, the language of the Open Courts Clause is ill-suited to protect against majori-tarian abuse. I doubt that the founders of our State Constitution intended that this clause prevent the legislature from modifying the law without this court passing judgment on whether an alternate remedy is adequate or whether the legislative judgment as to whether a social or economic evil was addressed was sound. The Open Courts Clause protects against legislative action that would limit or hinder the courts from serving the people by doing anything less than properly and efficiently assist in resolving disputes and performing other judicial functions.
¶ 100 I believe it is misleading to aver that construing the Open Courts Clause as I propose presents a significant danger of majori-tarian abuse. The concern, as far as I can tell, is that a majority of legislators will be able to implement as law their views of social and economic policy at the expense of the minority. Legislation should not be questioned as unconstitutional simply because a majority of the people may benefit from it and a minority of the people may not. Legislation, by its very nature, presents the risk of majoritarian abuse; a majority is required to pass legislation. The legislature rightfully weighs competing interests and determines, by majority vote, what is best for society as a whole. Our system of government vests this obligation in the legislative branch. Accordingly, I think we should interpret the Open Courts Clause so as to permit the legislature to define, change, and modernize the law for the benefit of society.
¶ 101 The real danger presented by the Berry test is that of majoritarian abuse by the members of this court. The risk, in my mind, lies in requiring that new legislation satisfy the policy predilections of a majority of the members of this court by providing, in the eyes of this court, an adequate alternative remedy; or by eliminating what is viewed as a clear social or economic evil by this court. By continuing to adhere to Berry, we are overstepping our constitutional role. The constitution vests power in the legislature to implement, as law, the will of the majority of the citizens of this State. In short, I think that the perceived “risk of majoritarian abuse” by the legislature is not a sufficient reason for interpreting the Open Courts Clause to limit the prerogative of the legislature to circumscribe under what circumstances to permit recovery against the state. In my view, the greater risk lies in a majority of the members of this court substituting their policy judgments for the policy judgments of the legislature.
¶ 102 Third, the Berry interpretation assumes that each individual who suffers an injury to his or her person, property, or reputation, is constitutionally entitled to a remedy. The idea that a remedy can be fashioned for every injury is optimistic and well-intentioned, but, as a practical matter, impossible. The law cannot, and therefore does not, guarantee a remedy for every injury. Not every injury can or must be remedied. “There is still such a thing as damnum absque injuria.” Masich v. United States Smelting, Ref. & Mining Co., 113 Utah 101, 128, 191 P.2d 612, 626 (1948)(Wolfe, J., concurring). This Latin phrase recognizes that loss or harm may occur without causing an injury in the legal sense. With good reason, the law does not permit recovery for many injured feelings, acts of God, and other injuries which are not compensable.
¶ 103 Individuals who have been injured in their persons, property, or reputation, are entitled to a remedy only when the law, statutory or common, recognizes an injury and permits a remedy. The Open Courts Clause should not be interpreted to provide a *1034right to a remedy. It should be interpreted to guarantee access to seek a judicial determination as to whether the law grants a remedy for the injury suffered. The courts, through the common law, may create remedies when public policy dictates that certain interests are worthy of protection and the legislature has not spoken. Likewise, the legislature creates remedies when it determines, as a matter of public policy, that certain interests are worthy of protection. If the law provides for a remedy, then the Open Courts Clause guarantees the right to seek that permitted remedy through the courts. The Open Courts provision of our constitution should not, however, be interpreted to guarantee, as a matter of constitutional law, the right to a remedy for ¿very injury done to one’s person, property, or reputation.
¶ 104 Moreover, Berry also infringes on legislative power by permitting this court to increase individual substantive rights while, at the same time, denying the legislature the ability to limit, abolish, or modify them. This “ratcheting effect” is completely controlled by this court; the legislature is powerless to abrogate any remedies or causes of action without the approval of this court. Under the past seventeen years of Berry, once the court has recognized a cause of action for a certain injury by way of common law, the legislature has effectively been prohibited from abolishing that right unless it provides an adequate alternative remedy (adequate according to a majority of the members of this court), or, if not, the legislation is in harmony with the policy perspectives of a majority of the members of this court. This ratcheting effect, in essence, permits this court to increase individual substantive rights while at the same time essentially denying the legislature the ability to limit, abolish, or modify them, unless of course, the court approves of the legislation as a matter of policy.
¶ 105 This limitation by the court is inconsistent with the roles of judicial and legislative branches in our system of government. The legislature is authorized, even obligated, to change the law as the needs of society change. In Masich, we noted that “both 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.” 113 Utah at 124-25, 191 P.2d at 624. Justice Wolfe, speaking directly to the question of the legislature’s power to change the common law, wrote, “I do not understand that Article I, Sec. 11, of the Constitution of Utah, prohibits the modification or even the entire removal or destruction of a common law right by legislative enactment.” Masich, 113 Utah at 128, 191 P.2d at 626 (Wolfe, J., concurring). “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.” Brown v. Wightman, 47 Utah 31, 34, 151 P. 366, 367 (1915). “Courts can only protect and enforce existing rights, and they may do that only in accordance with established and known remedies.” Id. In my view, the Open Courts Clause should not be interpreted to guarantee a remedy for every injury previously recognized by the law because to do so would unduly restrict the legislature in its legitimate lawmaking function. I am of the opinion that it is the prerogative of the legislature to decide under what circumstances the State will waive its sovereign immunity and open the public coffers to claimants.
¶ 106 Of great concern to me is that the Berry test violates article V, section 1, the Separation of Powers Clause. In its amicus brief, the State argues that the Beiry interpretation of the Open Courts Clause violates the separation of powers provision in the Utah Constitution because it limits the power of the legislature to determine what causes of action will be recognized as having a legal remedy, and what causes of action will not. This position, in my mind, is compelling.
¶ 107 Article V, section 1 of the Utah Constitution reads:
The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.
*1035The Berry test places this court in the position of sitting as a second legislature, reweighing the social or economic policy, instead of analyzing, as other methods of constitutional analysis do, whether the law is rationally related to its avowed purpose. In my view, the current Open Courts interpretation and the Berry test place the judiciary in the incongruous position of evaluating social or economic evils, “whether there is a clear social or economic evil to be eliminated,” and permitting the social or economic policy of three judges to be substituted for the policy of the Legislature, the people’s elected representatives. Further, this court reviews whether, when new legislation is passed, a prior remedy is adequately replaced with a new remedy. This court should not pass judgment on legislative policy such as whether a new remedy is as good as the old one, whether the substitute remedy is “substantially equal in value” to the old one. Substitution of the policy of three or more judges for the policy of the legislature, absent specific constitutional authority, is contrary to our system of government. By continuing to apply the Berry test, our case law usurps legislative power to “define, change, and modernize the law.”
¶ 108 As Justice Crockett stated in Stoker v. Stoker, this court should leave it to the legislature, who represent the will of the people, and whose function and prerogative it is to discuss and consider public policy and enact into law those policies that, in their judgment, best serve the public welfare. 616 P.2d 590, 592 (Utah 1980) (Crockett, J., dissenting). We should adhere to the constitutionally prescribed separation of powers doctrine, and not intrude into the legislature’s prerogative to change the law. Id. Instead, we should exercise judicial restraint, keeping our ideas as to what the law ought to be in check. Id. In upholding the constitution and ensuring that the legislature does not step outside of its constitutional restraints, we must not permit ourselves to stray into the legislative arena, thereby creating the risk that the policy judgment of three or more members of this court as to what the law ought to be will override the policy judgment of the legislative body, those most directly accountable to the people.
¶ 109 In my judgment, when presented with constitutional challenges to legislation, the role of this court is not to pass judgment on the wisdom of the legislature. “This court cannot ignore or strike down an act because it is either wise or unwise. The wisdom or lack of wisdom is for the legislature to determine. If the act is unjust, amendments to correct the inequities should be made by the legislature and not by judicial interpretation.” Masich, 113 Utah 101, 126, 191 P.2d 612, 625 (1948). The Beiry interpretation results in this court passing judgment on legislative wisdom — whether an alternative remedy, if any, is adequate or reasonable; and if not, whether the new law eliminates a clear social or economic evil. It permits this court to declare as unconstitutional, legislation that three members of the court deem unwise.
¶ 110 Because I would disavow the Berry interpretation of the Open Courts Clause and its analytical model, I would, for the present, return to the case law interpreting the Open Courts Clause prior to Berry. In my view, this interpretation maintains, rather than strains, the framework of our three-branch system of government as established by the constitution.
¶ 111 Prior to Berry, this court actually addressed whether sovereign immunity violates the Open Courts Clause. In Madsen v. Borthick, we said:
Article I, § 11 of the Utah Constitution, which prescribes that all courts shall be open and persons shall not be barred from using them to redress injuries, was not meant to create a new remedy or a new right of action. Consequently, Article I, § 11 worked no change in the principle of sovereign immunity, and sovereign immunity is not unconstitutional under that section.
658 P.2d 627, 629 (Utah 1983) (citation omitted); accord McCorvey v. Utah State Dep’t of Trans., 868 P.2d 41, 49 (Utah 1993) (“As stated, the right to sue the state when it performs a governmental function, as constitutionally defined, does not implicate a right protected by the open courts provision.” (citations omitted) (Stewart, J., concurring and dissenting)); see also, Burton v. Exam Cen*1036ter Indus. & General Med. Clinic, Inc., 2000 UT 18, ¶ 18, 994 P.2d 1261 (citing Brown v. Wightman, 47 Utah 31, 151 P. 366 (1915), for the proposition that article I, section 11 does not create a substantive right to a remedy). I am of the opinion that it is the prerogative of the legislature to decide under what circumstances the State will waive its sovereign immunity, opening the public coffers. I would not strike down section 63-30-2(4)(a) as unconstitutional, but uphold the legislation, a holding that would comport with Mad-sen: that the Utah Governmental Immunity Act, which defines the scope of sovereign immunity, is not unconstitutional under the Open Courts Clause.
¶ 112 I agree that the Open Courts Clause places limitations on legislative authority. The limitation, however, is not one that curbs the legislature’s ability to define, change, and modernize the law. I interpret the Open Courts Clause as a limitation on legislative authority to reduce or inhibit the ability of the judiciary to resolve the disputes of the people, awarding remedies to those injured under the law. The legislature is prohibited from taking action that would hinder or preclude the judiciary from conducting the business of resolving cases and controversies, deciding cases by applying the law, as promulgated by the legislature, to factual circumstances on a case by case basis.
¶ 113 It is my opinion that before Berry, this court tacitly interpreted article I, section II as a procedural protection and not a substantive guarantee or right to a remedy. See, e.g., Brown, 47 Utah at 34, 151 P. at 367 (declaring that many states have read open courts provisions to prevent the legislature from barring “any person who has a legal right which is enforceable in accordance with some known remedy” from access to the courts; indicating that the Open Courts Clause does not create a substantive right to a remedy beyond the rights and remedies created by common law or statute; and noting that the right and power of creating rights and remedies lies with the legislature); Madsen, 658 P.2d at 629 (stating that “Article I, § 11 ... was not meant to create a new remedy or a new right of action.”); see also Celebrity Club Inc. v. Utah Liquor Control Comm’n, 657 P.2d 1293, 1296 (Utah 1982) (describing the article I, section 11 guarantee as one of “access to the courts”); Zamora v. Draper, 635 P.2d 78, 81 (Utah 1981) (describing the guarantee of article I, section 11, to be an “assurance that everyone must have access to the courts to avail themselves of the process of justice....”); Burningham v. Ott, 525 P.2d 620, 623 (Utah 1974) (“The carrying out of this constitutional assurance [article I, section 11] requires that any person who has, or thinks he has, a right to protect or a wrong to rectify, be entitled to go to court and air his grievance and have the difficulty resolved by the peaceable processes of justice.”) (Crockett, J., concurring, but dissenting in part). I would return to this procedural interpretation of the Open Courts Clause.
¶ 114 I agree that our state constitution may, under some circumstances, “ ‘provide greater protections for our citizens than are required under the federal constitution.’ ” Berry, 717 P.2d at 677 (quoting Daugaard v. Baltic Coop. Bldg. Supply Ass’n, 349 N.W.2d 419, 425 (S.D.1984)). However, I do not interpret article I, section ll’ of the Utah Constitution to provide a substantive right to a remedy beyond that which the legislature grants, modifies, or limits. Even Berry recognized that “one of the important functions of the Legislature [is] to change and modify the law that governs relations between individuals as society evolves and conditions require.” Berry, 717 P.2d at 676. It is the prerogative of the legislature to change and modify what constitutes an injury entitled to a remedy. Consequently, article I, section 11, should not be read to prohibit the legislature from defining what constitutes a governmental function entitled to governmental immunity as it did in the Utah Governmental Immunity Act.
¶ 115 In my opinion, Utah case law prior to Berry interprets the Open Courts Clause as a procedural protection. The real break from stare decisis was when this court “broke new ground” in Berry with the current more substantive interpretation given to the Open Courts Clause and the invention of the accompanying Ben"y test.
¶ 116 In Brown v. Wightman, this court addressed whether a plaintiff could recover from the estate of the deceased defendant *1037who shot and killed himself after injuring the plaintiff. 47 Utah 31, 32, 151 P. 366, 366 (1915). After holding that the death of the wrongdoer abated plaintiffs action, thereby preventing the plaintiff from recovering, id. at 33, 151 P. at 366, the court addressed the plaintiffs argument that the Open Courts Clause guaranteed her the right to maintain an action against the defendant’s estate, id. at 33-34, 151 P. at 366. The court listed other state constitutions that contained similar “Open Courts” provisions, and stated:
The courts have, however, always considered and treated those provisions, not as creating new rights, but as placing 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. Where no right of action is given, however, or no remedy exists, under either the common law or some statute, those constitutional provisions create none.
Id. at 34, 366-67. While I agree that the provision places a limitation on the legislature, I disagree with the limitation espoused by the Berry interpretation. The majority opinion’s interpretation emphasizes solely that the Open Courts Clause places a limitation on the legislature. It fails to note, how-fever, the rest of the language in Wightman that the Open Courts Clause places “a limitation upon the legislature to prevent that branch of the state government from closing the doors of the courts .... ” Id. Further, Wightman states that the courts must be open to “any person who has a legal right which is enforceable in accordance with some known remedy[, and wjhere no right of action is given, however, or no remedy exists, under either the common law or some statute, those constitutional provisions create none.” Id. This language, in my view, reveals that the Wightman court viewed the Open Courts Clause as a more procedural guarantee, like I do, and unlike the Berry proponents. Wightman respects the constitutional right and authority of the legislature to determine the circumstances under which a right of action or remedy is created, “under either the common law or [by] statute,” with the Open Courts Clause “creat[ing] none.” The Wightman court continued, “While the common-law rule is a harsh one, and its enforcement in this case is particularly unjust, we nevertheless can see no way of escaping it. 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. Courts can only protect and enforce existing rights, and they may do that only in accordance with established and known remedies.” Id.
¶ 117 Lyman v. National Mortgage Bond Corp. also suggests a procedural interpretation. In Nyman, plaintiffs sought to quiet title to land that they claimed to own by receipt of a tax deed and by adverse possession. 7 Utah 2d 123, 124, 320 P.2d 322, 322 (1958). By statute, the holder of a tax title to real estate was required to demonstrate payment of taxes assessed upon the property for four years prior to the tax delinquency. Id. at 124, 320 P.2d at 323. The defendants conceded that the plaintiffs had produced sufficient evidence of ownership by adverse possession, but argued that the tax deed was insufficient because the plaintiffs failed to prove taxes had been paid for the four years before the prior landowner was delinquent, even though the evidence was clear that all the necessary taxes had been paid since 1941. Id. The court considered the constitutionality of this legislation that, according to the court, forbade the commencement of an action or defense claiming ownership unless the plaintiffs “seized, possessed or occupied” the property for four years prior to filing suit. Two justices, Justice Wade and Justice Crockett, construed the statute so as not to bar the defendants from presenting their quiet title claim in court because to do so “would be in effect to deny them access to the courts to litigate a valid right to property[, and] this seems to be what the [Open Courts Clause] prohibits.” In my view, these members of the court interpreted the Open Courts Clause to guarantee “access to the courts to litigate” one’s rights and remedies, if any.
¶ 118 To me, Salt Lake City v. International Association of Firefighters suggests a procedural interpretation. In International Association of Firefighters, the court held unconstitutional a statute that required dis*1038putes between firemen and municipal corporations regarding wages, hours, and other conditions of employment to be submitted to arbitration, where the arbitration process, as declared by the act, was final and binding on all matters in dispute except for salary and wage matters. 563 P.2d 786, 787-789 (Utah 1977). The majority opinion noted that the arbitrators were private citizens with no responsibility to the public and that the act did not include a safeguard of judicial review and then proceeded to declare the Act an unconstitutional delegation of legislative authority under Article VI, section 28. Id. at 789. Justice Crockett concurred separately, noting that for the legislature to “force arbitration upon the parties and to make it final and binding,” forcing parties to proceed through a dispute resolution mechanism other than the courts for which there is no judicial review, “deprive[s] an aggrieved party of access to the courts, contrary to the assurance of Section 11, Article I, [the Open Courts Clause].” Id. at 791. In my view, the legislation reviewed in International Association of Firefighters violated the Open Courts Clause because it “deprive[d] an aggrieved party of access to the courts,” and had the majority not held that the legislation was an unconstitutional delegation of legislative authority under Article VI, section 28, it would have followed Justice Crockett.
¶ 119 In Stoker v. Stoker, the court determined that the legislature had completely abolished the antiquated doctrine of Inter-spousal Tort Immunity, which had prohibited a married woman from suing for injury to person or property without her husband’s consent and prohibited her from being sued individually. 616 P.2d 590, 591 (Utah 1980). The legislature declared that married women could “prosecute and defend all actions for the preservation and protection of her rights and property as if unmarried....” Id. The court interpreted this legislation to permit a married woman to sue her husband for an intentional tort, and noted that the Open Courts Clause — which guarantees that “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 [in a court of law]” — lent “credence to [their] interpretation of the statute,” suggesting that women as well as men were permitted access to the courts to have their legal disputes resolved. Id. Justice Crockett dissented, discussing the dangers of “judicial legislation,” as he viewed the majority opinion as an usurpation of the constitutional role of the legislature to change or modify the law. Id. at 592-94. Justice Crockett advocated that the law should not have been changed by the court, but by the legislature. Id. at 594. In my mind, the majority viewed the Open Courts Clause as guaranteeing a procedural right to all citizens, male and female, to seek a judicial remedy through litigation in the “open courts” of this state.
¶ 120 Burningham v. Ott also supports a prior procedural interpretation. In Bum-ingham, the plaintiff apparently promised the defendant that the defendant’s stock in the plaintiffs company would increase in value. 525 P.2d 620, 620 (Utah 1974). The plaintiff sued for fraud, but the court granted summary judgment, which was affirmed on appeal. Id. at 620-22. In a separate opinion discussing why “summary judgments should be invoked with caution and restraint,” Justice Crockett stated, “[Utah’s] founding fathers were fully aware that access to the courts for the settlement of controversies is essential to the peace and good order of society.” Id. at 623. He then recited article I, section 11 and continued, “The carrying out of this constitutional assurance requires that any person who has, or thinks he has, a right to protect or a wrong to rectify, be entitled to go to court and air his grievance and have the difficulty resolved by the peaceable process of justice.” Id.
¶ 121 In Zamora v. Draper, the plaintiff challenged the constitutionality of a statute that required, in order to sue a sheriff, constable, or peace officer for an act or omission committed in the performance of his or her duty, the filing of “a written undertaking with two sufficient sureties” for payment to defendant of all costs and expenses that may be awarded against the plaintiff. 635 P.2d 78, 79-80 (Utah 1981). The plaintiff claimed that he should not have to furnish the bond because of his impecuniosity, and he challenged the statute as unconstitutional. The court upheld the act as constitutional, and in discussing the impecuniosity alleged by the *1039plaintiff, stated, “This assurance that everyone must have access to the courts to avail themselves of the process of justice is implemented in [the statutes permitting indigent persons to file suit upon oath without filing the required fees].” The court further described the guarantee provided by the Open Courts Clause as the “right to access to the courts” and stated that permitting a trial court to fix a bond in accordance with an indigent plaintiffs circumstances would “allow him access to the court to seek justice, as assured by Sec. 11 of Article I of our State Constitution....” Id.
If 122 Even cases since Berry have suggested that the Open Courts Clause is a procedural guarantee, a guarantee of “reasonable access to judicial review.”
¶ 123 Legislation limiting or impairing the right to file a petition for a writ of habeas corpus has been declared unconstitutional based, in part, on the Open Courts Clause. See, e.g., Julian v. State, 966 P.2d 249, 253 (Utah 1998); Frausto v. State, 966 P.2d 849, 850-51 (Utah 1998) (discussing Julian); see also Currier v. Holden, 862 P.2d 1357, 1372 (Utah Ct.App.1993) (declaring Utah Code Ann. § 78-12-31.1 (1992) to be unconstitutional solely under article I, section 11). This court has even used the Open Courts Clause to guarantee citizens a procedural right to access to the courts to protect certain individual rights. See, e.g., Jenkins v. Percival, 962 P.2d 796, 799 (Utah 1998) (suggesting a right of access to the courts and a constitutional guarantee of “a day in court”); Jensen v. State Tax Comm’n, 835 P.2d 965, 969 (Utah 1992) (finding that “to the extent that [Utah Code Ann.] § 59-1-505 precludes reasonable access to judicial review, it violates the open courts provision”); Maryboy v. Utah State Tax Comm’n, 904 P.2d 662, 670-71 (Utah 1995) (finding that petitioners constitutional right of open access to the courts was not violated because petitioners had the ability to pay the alleged tax deficiency); Indus. Comm’n v. Evans, 52 Utah 394, 174 P. 825 (Utah 1918).
¶ 124 In Julian, we held that the four-year catch-all statute of limitations provision for post-conviction relief violated article V, section 1, the separation of powers provision, and article I, section 11, the Open Courts Clause. 966 P.2d at 253. Julian arose after the legislature enacted a one-year statute of limitations in response to the ninety-day statute of limitations being declared unconstitutional. Id. at 251. After asserting that “[t]he separation of powers provision, Article Y, Section 1 of the Utah Constitution, requires, and the Open Courts Provision of the Declaration of Rights, Article I, Section 11, presupposes, a judicial department armed with process sufficient to fulfill its role as the third branch of government,” id. at 253, the lead opinion announced that “[to apply] the catch-all statute to bar habeas petitions not only violates the Utah Constitution’s open courts provision in article I, section 11, but also violates the separation of powers provision in article V, section 1.” Id. Inasmuch as this court has adamantly insisted that the legislature “may not impose restrictions which limit the writ [of habeas corpus] as a judicial procedure, except as provided in the constitution,” we should also refrain from placing ourselves in a legislative role, imposing our policy judgments upon the legislature, except as clearly provided in the constitution, which the Open Courts Clause, in my mind, does not. If we hold that “the legislature may not impose restrictions which limit the writ as a judicial rule of procedure, except as provided in the constitution” because “ ‘the Writ belongs to the judicial branch of government’” and “⅛ one of the most important of all judicial tools for the protection of individual liberty,’” Julian, 966 P.2d at 253 (quoting Hurst v. Cook, 777 P.2d 1029, 1033-34 (Utah 1989)), we should also respect the constitutional role of the legislature and no longer read the Open Courts provision as limiting the prerogative of the legislature to change the law as to what remedies are available to injuries.
¶ 125 In Jensen, the plaintiffs failed to file proper state income tax returns beginning in 1978. 835 P.2d at 967. The State Tax Commission requested further information, to which Mr. Jensen claimed he was not required to file a state return. Id. In 1990, the Tax Commission sued the plaintiffs for $16,608 in back taxes. Id. at 968. The plaintiffs petitioned for a redetermination, to which the Collection Division responded by increasing the demand of back taxes to $344,419. Id. The Commission sustained the deficiency, and plaintiffs appealed to this *1040court. Id. As a preliminary issue, the court considered whether it had jurisdiction to review the Commission’s ruling because plaintiffs failed to deposit the full amount of taxes, interest, and penalties as required by statute to obtain judicial review. After discussing the Open Courts Clause and Industrial Commission v. Evans, 52 Utah 394, 174 P. 825 (1918), the court stated, “[Plaintiffs] are in a position similar to the employer in Evans and have the right to test the legality of their liability under the ruling of the Tax Commission in a court of law.” Jensen, 835 P.2d at 969. “The requirement that they deposit the full amount of the deficiency assessed by the Commission is, on the facts of this case, an effective bar to judicial review.” Id. “Thus, to the extent that [the statute requiring tax protesters to deposit the amount of the deficiency assessed] precludes reasonable access to judicial review, it violates the open courts provision and is unconstitutional as applied.” Id. This opinion clearly suggests a procedural guarantee within the Open Courts Clause, and, in my view, this is the type of case that the Open Courts Clause is equipped to address.
¶ 126 In Maryboy v. Utah State Tax Commission, members of the Navajo Native American Tribe protested income tax assessments. 904 P.2d 662, 664 (Utah 1995). They appealed the Utah State Tax Commission’s decision that required them to pay $10,855.38 in taxes, penalties, and interest before they were allowed to appeal. Id. The protesters asserted that the Commission’s order that they deposit the alleged tax deficiency “violated them constitutional right to have open access to the courts of this state.” Id. at 670. The court then discussed the Open Courts Clause and its application in Jensen, but held that in the Maryboys’ case, the statute requiring that the deficiency be deposited did not preclude reasonable access to judicial review because, unlike the protesters in Jensen, the Maryboys were able to pay the alleged deficiency.
¶ 127 In Jenkins v. Percival, 962 P.2d 796 (Utah 1998), this court cites Jensen and reads article I, section 11 as a 'procedural guarantee. This court said, “To impose liability on an insured for an amount over the policy limit in an arbitration proceeding would violate the insured’s right of access to the courts under article I, section 11.” 962 P.2d at 799 (emphasis added). Jenkins describes the Open Courts guarantee as one of “a day in court to all parties with potential liability in disputed insurance claims.” Id.
¶ 128 Undoubtedly those who favor the Berry interpretation find both procedural and substantive guarantees within the language of the Open Courts Clause. It is my view, however, that the substantive Berry interpretation of the Open Courts Clause construes the Open Courts Clause in such a way as to infringe upon the province of the legislature, creating separation of powers problems that should be avoided.
¶ 129 Critics of the procedural interpretation of the Open Courts Clause insist that a more procedurally-oriented interpretation renders the Open Courts Clause meaningless, mere surplusage to procedural due process rights. The contention being that due process already guarantees, among other things, the right to judicial dispute resolution. On the other hand, though, to give the Open Courts Clause a substantive interpretation arguably renders the Open Courts Clause provision meaningless as surplusage to substantive due process rights. Instead of relying on the Open Courts Clause for authority, one could just as credibly argue a substantive due process right to a remedy for injury done to one’s person, property, or reputation. That said, regardless of one’s view as to whether the language guarantees procedural rights to open courts or whether it guarantees the right .to a remedy, the responsibility before us is simply to interpret the Open Courts Clause so as to give it meaning and effect without doing violence to other constitutional doctrines. In my view, the current interpretation goes beyond the language of the provision, which I deem unnecessary, and crosses bounds set forth in the separation of powers clause of the Utah Constitution.
¶ 130 It is my position that Berry indeed broke new ground and charted a course that, although well-intentioned, has proven to be misguided. The constitutional problems that have arisen and will continue to arise through application of the Berry test, particularly the separation of powers problem, should be averted by overturning Berry and returning to the more procedural interpreta*1041tion that existed prior to Berry. F or me, the case law prior to Berry, a contextual analysis of the Open Courts language, problematic decisions since Berry, and the responsibility to interpret the constitution in such a way so as to recognize the proper role of each branch of government in relation to each other all point toward abandoning Berry.
¶ 131 In my opinion, the text of the Open Courts Clause clearly supports a more procedural guarantee. “In interpreting the state constitution, we look primarily to the language of the constitution itself....” Grand County v. Emery County, 2002 UT 57, ¶ 28, 52 P.3d 1148 (quoting State v. Gardner, 947 P.2d 630, 633 (Utah 1997)). “Therefore, our stai’ting point in interpreting a constitutional provision is the textual language itself.” Gardner, 947 P.2d at 633.
¶ 132 The text of the Open Courts Clause indicates that article I, section 11, guarantees procedural rights; to the extent that it limits legislative authority, it prevents the legislature from restraining or otherwise inhibiting the ability of the people to go to the courts to have their eases and controversies adjudicated. The Open Courts Clause can be separated into “four interrelated phrases:14 (i) ‘All courts shall be open,’ (ii) ‘every person, for an injury done to him in his person, property or reputation,’ (iii) ‘shall have remedy by due course of law,’ and (iv) “which shall be administered without denial or unnecessary delay.’” Craftsman, 974 P.2d at 1235 (Zimmerman, J., concurring in the result). The phrases are interrelated, and must be read together, in light of one another. These phrases, as a whole, guarantee a right to judicial adjudication where one has been injured to his or her person, property, or reputation. The first and fourth phrases are procedural in nature. “All courts shall be open” is an admonition that a court system shall be available for seeking redress. “[WJhich shall be administered without denial or unnecessary delay” directs the courts to conduct their business without undue delay. When read together, these phrases direct that a system of courts shall exist, that the court system shall be accessible, and that the system shall function so as to administer justice under the law without unnecessary delay.
¶ 133 The second phrase, “every person, for an injury done to him in his person, property or reputation,” is not a source of either a substantive or procedural right. This phrase defines the persons and the subject matter to which the open courts provision, and the guarantees it espouses, apply. It suggests that the provision applies to individuals who have suffered injury to their person, property, or reputation. As was discussed above, not all harm is a legally actionable injury. What constitutes a legally actionable injury depends on the statutory and common law of this state. Thus, whether one is entitled to a remedy depends upon whether the law permits a remedy, and in order to know whether the law permits a remedy, one must be able to have that question adjudicated. It therefore follows that the courts must be open to individuals for a determination of whether the harm they have suffered constitutes an injury under the law.
¶ 134 The third phrase has been the source of the substantive right to a remedy in Berry which has been used to limit the ability of the legislature to alter the law without judicial oversight. The phrase “right to a remedy” should be read in light of the phrase “by due process of law.” The latter phrase modifies the former phrase. When read this way, one does not have a right to a remedy, but a right to access to the courts to seek a remedy, if the particular injury provides for one “by due process of law,” or, in other words, through the other processes and procedures of the law.
¶ 135 Consequently, I interpret the text of article I, section 11 to provide a more procedural guarantee. It guarantees access and limits the authority of the legislature to limit citizen access to the courts for resolution of disputes by due process of law. The Open Courts Clause, in my view, does limit the authority of the legislature: The legislature may not close the doors to judicial resolution of disputes. “The courts shall be open” for the determination of whether a party is entitled to an established remedy under the law as established by the legislature. I would interpret the Open Courts Clause not to limit *1042the authority of the legislature to define legal injuries and delineate the circumstances under which one may be entitled to a remedy, but to limit the ability of the legislature to deny a party access to a judicial officer for a determination of whether a particular set of facts and circumstances constitute a legal injury for which a remedy exists under the law.
¶ 136 Accordingly, in my view, the statute at issue, Utah Code Ann. § 63-30-2(4)(a), does not infringe upon the rights guaranteed by the Open Courts Clause as I interpret it. In my opinion, the present legislation, which preserves sovereign immunity for a governmental function, does not deprive individuals who have suffered injury to their person, property, or reputation, of access to our court system to seek a determination of whether their injury constitutes a redressa-ble injury under the law for which they are entitled to a remedy. Section 63-30-2(4)(a) sets forth the law under which individuals may seek redress from the government. It also defines those circumstances under which an injury is not redressable under the law. Section 63 — 30—2(4)(a) exhibits the legislative prerogative to determine the scope of sovereign immunity and the circumstances under which it is waived. The legislature, subject as always to political pressures from constituents, has broad discretion in deciding whether recovery against governmental entities should be expanded or contracted and under what circumstances. Sovereign immunity does not infringe upon one’s right to a judicial determination of whether particular facts constitute an injury which the law recognizes as entitled to a remedy. Section 63-30 — 2(4)(a) sets forth the law to be applied by the judicial officer to the facts presented by the individual who has suffered injury. As a result, I would uphold section 63-30-2(4) (a) as constitutional.
¶ 137 In my view it is the right and obligation of the legislature to waive sovereign immunity as it sees fit. While judicial exceptions to sovereign immunity do exist, it is the prerogative of the legislature to define the scope of sovereign immunity and the exceptions by which it is waived; the Open Courts Clause is not a limitation on the legislature’s ability to define the scope of or waive sovereign immunity. Indeed, it is appropriate for the legislature to address the extent to which it is desirable to use public funds to compensate those injured by acts, omissions, or decisions of the government acting in the public interest.
¶ 138 I do not espouse deferring to legislative retention or expansion of governmental immunity which unreasonably burdens important constitutional rights. See, e.g., Condemarin v. Univ. Hosp., 775 P.2d 348, 363 (Utah 1989). For me, the Open Courts Clause provides procedural rights which may not be infringed upon by the legislature.
¶ 139 In summary, I agree that the acts, omissions, or decisions of Fairview City to not raise the height of, insulate, or provide further warnings on its power lines fall within the discretionary function exception of the Utah Governmental Immunity Act, specifically Utah Code Ann. § 63-30-10. I would overrule Berry in favor of the more procedural interpretation seen in this court’s jurisprudence both before and after Berry. Under this interpretation, it is my opinion that section 63-30-2(4)(a) does not violate Article I, Section 11. I would affirm the judgment of the trial court.
¶ 140 Associate Chief Justice DURRANT concurs in Justice WILKINS’ dissenting opinion.. Utah Code Ann. § 63-30-2(4)(a) was added to the Utah Governmental Immunity Act in 1987.
. In his dissent in Craftsman, Justice Zimmerman offered this useful analytic framework.