57 P.3d 1007 (2002) 2002 UT 79

Rhonda Lee LANEY, individually and as guardian ad litem of S.B. and R.A., minors, Plaintiff and Appellant,
v.
FAIRVIEW CITY, a municipal corporation, Defendant and Appellee.

No. 981729.

Supreme Court of Utah.

August 9, 2002. Rehearing Denied October 29, 2002.

*1010 Brent D. Young, Provo, for plaintiff.

Andrew M. Morse, Keith A. Call, Salt Lake City, for defendant.

Mark L. Shurtleff, Att'y Gen., Brent A. Burnett, Asst. Att'y Gen., Salt Lake City, for amicus the State of Utah.

DURHAM, Chief Justice:

ถ 1 This case addresses whether Utah Code Ann. ง 63-30-2(4)(a) (Supp.2000) violates article I, section 11, the "open courts" clause, of the Utah Constitution. The district court held that Fairview City (the City) is immune from suit for its alleged negligence under the Utah Governmental Immunity Act, Utah Code Ann. งง 63-30-1 to -38 (1997 & Supp.2000).^[1] We hold that the 1987 amendment, declaring all acts of municipalities to be governmental functions, is unconstitutional as applied to municipalities operating electrical power systems. We reverse the summary judgment of the trial court and remand for a trial on the merits without any defense of governmental immunity.

BACKGROUND

ถ 2 The following facts were undisputed in the trial court. On September 16, 1991, John Laney was electrocuted and killed while moving irrigation pipe. The thirty-foot aluminum water irrigation pipe that Laney was carrying came into contact with, or within arcing distance of, high voltage power lines. The power lines were owned by the City.

ถ 3 Accordingly, Laney's wife and children brought a wrongful death action against the City claiming, inter alia, that the City was negligent for failing to maintain the power lines in a safe condition. The Laneys complain *1011 that the power lines did not meet minimum safety standards because they were too low to the ground. They also allege that the lines were unsafe because they were not insulated and did not contain warnings.

ถ 4 The City moved for summary judgment asserting that the decision whether or not to improve the power lines was a discretionary function entitled to immunity under Utah Code Ann. ง 63-30-10(1) (1997). Discretionary function immunity is an exception to a waiver of sovereign immunity within the Utah Governmental Immunity Act. The Utah Governmental Immunity Act declares that all governmental entities are immune from suit for any injury which results from the exercise of a "governmental function." See Utah Code Ann. ง 63-30-3(1).^[2] The term governmental function is broadly defined in section 63-30-2(4)(a), and by virtue of that broad definition, the statute cloaks governmental entities with immunity for a wide range of activities.^[3] However, Utah Code Ann. ง 63-30-10 waives sovereign immunity "for injury proximately caused by a negligent act or omission." Then, subsection (1) creates an exception to this waiver for negligence and immunizes governmental entities for "the exercise or performance or the failure to exercise or perform a discretionary function . . . ." Utah Code Ann. ง 63-30-10(1).

ถ 5 The district court agreed that the City was entitled to immunity for its decision to not improve the power lines and granted the City's motion for summary judgment. Following the framework we set forth in Ledfors v. Emery County School District, 849 P.2d 1162, 1164 (Utah 1993),^[4] the district court concluded that the City's operation of its municipal power system was a governmental function as defined by Utah Code Ann. ง 63-30-2(4)(a). The court also concluded that immunity was waived under section 63-30-10 because plaintiffs' claim against the City was for negligence. Finally, the district court concluded that the City's decision to keep its power lines at the height and condition they were in at the time of Mr. Laney's death constituted the exercise of a discretionary function under Utah Code Ann. ง 63-30-10(1), an exception to the waiver for negligence, rendering the City immune from suit under the Utah Governmental Immunity Act.

ถ 6 Plaintiffs appeal, claiming that Utah Code Ann. ง 63-30-2(4)(a) is unconstitutional because it violates article I, section 11, the open courts clause, of the Utah Constitution. Plaintiffs further maintain that the district court erred in concluding that the City is entitled to discretionary function immunity under Utah Code Ann. ง 63-30-10.

ANALYSIS

ถ 7 We note the long-standing principle that "unnecessary decisions are to be avoided and that the courts should pass upon the constitutionality of a statute only when such a determination is essential to the decision in a case." Hoyle v. Monson, 606 P.2d 240, 242 (Utah 1980). If the district court erred in concluding that the City was immune from suit under the statute, there will be no need to address the constitutional issue before us. We therefore address the statutory interpretation question first.

*1012 I. DISCRETIONARY FUNCTION IMMUNITY UNDER THE UTAH GOVERNMENTAL IMMUNITY ACT

ถ 8 The appellants argue that the district court erred in granting the City's motion for summary judgment based on its conclusion that the City's omissions to not increase the height of the power lines, to not insulate the lines, and to not provide warning signs near the lines, were immune from suit under the Utah Governmental Immunity Act.

A. Standard of Review

ถ 9 Summary judgment is appropriate only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). When reviewing a grant of summary judgment, as we do here, we review the district court's conclusions of law for correctness. See Taylor v. Ogden Sch. Dist., 927 P.2d 159, 162 (Utah 1996). We therefore grant no deference to the district court's conclusion that the City is entitled to discretionary function immunity under Utah Code Ann. ง 63-30-10.

B. Discretionary Function Immunity

ถ 10 Plaintiffs argue that maintenance of power lines is not a discretionary function entitled to immunity under Utah Code Ann. ง 63-30-10. Instead, they assert, the City owes a duty to exercise the highest degree of care to protect the public because it undertook to operate and maintain power lines. The City, on the other hand, contends that decisions to use city funds to improve existing power lines, decisions to raise the height of the lines, to insulate them, or to provide additional warnings, constitute the exercise of a discretionary function. For the reasons that follow, we conclude that the City's decisions or omissionsโ€”regarding the height and insulation of the power lines, and adjacent warning signsโ€”are discretionary functions for which sovereign immunity has not been waived under the Utah Governmental Immunity Act.

ถ 11 As noted above, we must address three questions in determining whether a governmental entity is immune from suit under the Utah Governmental Immunity Act. First, we must address whether the City's operation of power lines is a governmental function and therefore immunized from suit by the general grant of immunity contained in section 63-30-3(1). See Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1164 (Utah 1993). Second, if the operation of power lines is a governmental function, we must determine whether some other section of the Act has waived the blanket immunity in section 63-30-3(1). See id. Finally, if the blanket immunity has been waived, we must determine whether the Act contains an exception to that waiver which results in a retention of immunity against the particular claim asserted by the plaintiffs in this case. See id.

ถ 12 We answer the first question, does the City's operation of power lines constitute a governmental function, in the affirmative. Section 63-30-3(1) states, "Except as may be otherwise provided in this chapter, all governmental entities are immune from suit for any injury which results from the exercise of a governmental function...." Utah Code Ann. ง 63-30-3(1).^[5] Section 63-30-2(4)(a) states that

`Governmental function' means any act, failure to act, operation, function, or undertaking of a governmental entity whether or not the act, failure to act, operation, function, or undertaking is characterized as governmental, proprietary, a core governmental function, unique to government, undertaken in a dual capacity, essential to or not essential to a government or governmental function, or could be performed by private enterprise or private persons.

Utah Code Ann. ง 63-30-2(4)(a). Under this definition, the City's operation of power lines is a governmental function, and the City is therefore immunized from suit by the general grant of immunity contained in section 63-30-3(1).

*1013 ถ 13 We also answer the second question, does some other section of the Act waive the blanket immunity in section 63-30-3(1), in the affirmative. Utah Code Ann. ง 63-30-10 states, in pertinent part:

Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if ....

In this section, the legislature has waived the blanket coverage of sovereign immunity outlined in sections 63-30-3(1) and 63-30-2(4)(a) for negligence committed by governmental entities through their employees. In this case, appellants allege the City was negligent, and the Act waives immunity for that negligence.

ถ 14 The third question, does the Act contain an exception to the blanket waiver of immunity that results in a retention of immunity against the particular claim asserted by the plaintiffs in this case, is more complicated. Utah Code Ann. ง 63-30-10 states:

Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if the injury arises out of, in connection with, or results from:

(1) the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused;

(emphasis added). Clearly, this section contains an exception to the waiver of blanket immunity, and the exception results in a retention of immunity for discretionary functions. Therefore, to determine whether the City has immunity against appellants' claims, we must determine whether the allegedly negligent decisions or omissions of the City constitute discretionary functions under the Act.

ถ 15 The test used to determine whether a governmental act, omission, or decision qualifies as a discretionary function under section 63-30-10(1) requires a four-part inquiry. See Keegan v. State, 896 P.2d 618, 624 (Utah 1995). An affirmative response to each inquiry leads to the conclusion that the action under review is a discretionary function. While the test was most recently applied by this court in Keegan, it first appeared in Little v. Utah State Division of Family Services, 667 P.2d 49, 51 (Utah 1983), and includes the following:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?

(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?

(3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved?

(4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?

See Keegan, 896 P.2d at 624 (Utah 1995); accord Trujillo v. Utah Dep't. of Transp., 1999 UT App. 227, ถ 27, 986 P.2d 752; Little, 667 P.2d at 51 (quoting Evangelical United Brethren Church of Adna v. State, 67 Wash.2d 246, 407 P.2d 440, 445 (1965)).

ถ 16 Although a party's entitlement to discretionary function immunity is a question of law, a court must have sufficient facts before it to determine whether the challenged act, omission, or decision satisfies the four-part Little test. See, e.g., Rocky Mountain Thrift v. Salt Lake City, 784 P.2d 459, 464 (Utah 1989); Hansen v. Salt Lake County, 794 P.2d 838, 840 (Utah 1990); Trujillo, 1999 UT App. 227 at ถถ 28, 43, 986 P.2d 752. The record in the present case contains sufficient facts to apply the Little test.

ถ 17 We first note that the discretionary function analysis in Little depends on which specific act, omission, or decision is being challenged by the plaintiffs, see, e.g., Rocky Mountain Thrift, 784 P.2d at 461-64, Trujillo, 1999 UT App. 227 at ถถ 29-37, 986 P.2d 752, and whether it involves a basic governmental policy, program, or objective. The decisions or omissions challenged by the plaintiffs in this case are those that resulted in not raising the height of the power lines, *1014 not insulating the power lines, and not providing further warnings, all pertinent to the safety of members of the public who might encounter the lines. These challenged decisions are closely connected to the basic governmental objective of public safety. Because the plaintiffs' complaint specifically identifies the City's failure to adequately make the lines safe as the basis of their action, our analysis is limited to reviewing the challenged decisions in that light. As such, the challenged act, omission, or decision does necessarily involve a basic policy, program, or objective, namely public safety, and the first part of the Little inquiry is answered affirmatively.

ถ 18 Second, we conclude that the questioned omissions or decisions regarding the safety of the power lines are essential to the realization or accomplishment of the policy, program, or objective identified hereโ€”public safety. Again, because the plaintiffs allege the City failed to adequately warn or make the power lines safe by raising or insulating them, "that policy, program, or objective" subject to analysis is the promotion of public safety. Little, 667 P.2d at 51. Decisions touching the safety of the power lines clearly affect the accomplishment of the objective of public safety. Consequently, part two of the Little inquiry is also answered in the affirmative.

ถ 19 Third, the challenged act, omission, or decision regarding the power lines requires the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved. Although we are not presented with evidence regarding whether the City actually conducted on-site inspections, analyzed various safety factors, or conducted collaborative review of its decision not to raise the power lines, we think that the decision required, at a minimum, a basic cost-benefit analysis and exercise of financial expertise and judgment by the City. This is sufficient under part three of the Little test.

ถ 20 Finally, we also answer the fourth question in the affirmative. Under Utah Code Ann. ง 10-8-14 (Supp.2001), the City is authorized to own and operate an electric utility. Id. see also Utah Const. art. XI, ง 5. Thus, the City has the requisite authority to decide whether or not to raise the lines or otherwise make them more safe.

ถ 21 Having answered all four parts of the Little test in the affirmative, we conclude that the challenged decisions or omissions were discretionary functions. Our review of other Utah case law also supports the conclusion that the City's decisions not to increase the height of the power lines, not to insulate the lines, and not to provide warning signs, are discretionary functions entitled to immunity under the Act.

ถ 22 First, the City's decisions not to raise, insulate, or place warnings on its power lines are not operational decisions involving routine, everyday matters. Rather, those are broad policy decisions requiring evaluation of broad policy factors which take place at the policy-making level, and such decisions are generally entitled to discretionary function immunity. See, e.g., Bigelow v. Ingersoll, 618 P.2d 50, 53 (Utah 1980) (stating that "discretionary function [immunity] under ง 63-30-10(1) is confined to those decisions and acts occurring at the `basic policy making level,' and is not extended to those acts and decisions taking place at the operational level, or, in other words `... those which concern routine, everyday matters, not requiring evaluation of broad policy factors'" (quoting Frank v. State, 613 P.2d 517, 520 (Utah 1980) (quoting Carroll v. State Rd. Comm'n, 27 Utah 2d 384, 388, 496 P.2d 888, 891))); Frank, 613 P.2d at 520 (indicating that even though almost all acts require some degree of discretion, the discretionary function exception immunizes governmental entities from suit for "those decisions and acts occurring at the `basic policy-making level,' and not extended to those acts and decisions taking place at the operational level, or, in other words,' . . . those which concern routine, everyday matters, not requiring evaluation of broad policy factors'") (quoting Carroll, 27 Utah 2d at 389, 496 P.2d at 891); Carroll, 27 Utah 2d at 389-90, 496 P.2d at 891-92 (finding that "the decision of the road supervisor to use berms [to prevent accidents on a roadway] was not a basic policy decision essential to the realization or accomplishment of some basic governmental policy, program, or objective [because] his decision *1015 did not require the exercise of basic policy evaluation, judgment, and expertise on the part of the Road Commission [and because] [h]is determination may properly be characterized as one at the operational level of decision making"); see also, Evangelical United Brethren Church, 407 P.2d at 444 (stating that "the distinction between discretionary and nondiscretionary administrative acts, omissions, or decisions may well lie in the determination of whether such was done or made at the planning or operational level") (citing Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953)).

ถ 23 Second, our conclusion that the City's decision regarding its power lines is entitled to discretionary function immunity is consistent with cases that have generally held that decisions balancing the need for safety improvements against limited governmental funding are entitled to discretionary function immunity. See Keegan v. State, 896 P.2d at 624-26 (applying the four part Little test and concluding that the Utah Department of Transportation's decision not to raise a concrete traffic barrier was a discretionary function because it "resulted from a considered weighing of the costs and benefits of certain safety and construction policies and which involved the exercise of UDOT's judgment and discretion"); Velasquez v. Union Pac. R.R., 24 Utah 2d 217, 218-19, 469 P.2d 5, 6 (1970) (finding the Utah Public Service Commission was immune from suit for its (1) failure to require the railroad to construct and maintain safety devices and (2) failure to establish a program to discover dilapidated signs and indicating that the plaintiff should not necessarily recover "simply because a better warning signal could or should have been installed"); Duncan v. Union Pac. R.R., 790 P.2d 595, 601-02 (Utah Ct.App. 1990) (concluding that UDOT was "immune for its failure to do more than minimal warning and control," and stating, "Every highway could probably be made safer by further expenditures, but we will not hold UDOT (and implicitly, the legislature) negligent for having to strike a difficult balance between the need for greater safety and the burden of funding improvements"), aff'd 842 P.2d 832 (Utah 1992); Gleave v. Denver & Rio Grande W. R.R., 749 P.2d 660, 668-69 (Utah Ct.App.1988) (holding that "UDOT's failure to install different safety signals or devices at the subject crossing was a purely discretionary function within the meaning of section 63-30-10(1)(a)" because (1) the challenged omission, failure to install different safety devices, involved the basic governmental objective of promoting public safety; (2) evaluating numerous railroad crossings and assigning priorities for safety signal upgrades was essential to the realization of public safety, especially in light of the fact that unlimited funds were not available to upgrade all needy crossings at once; (3) the decision whether to improve the traffic signals was the exercise of basic policy judgment because UDOT conducted on-site inspections, analyzed several safety factors, and participated in collective decision-making; and (4) UDOT was statutorily empowered to supervise and regulate the safety of the railroad crossings).

ถ 24 It is undisputed that the standards used in the electrical power industry in Utah follow those set forth in the National Electric Safety Code ("NESC"). Section 232 of the 1987 edition of the NESC, which was in effect at the time of Mr. Laney's accident, provides that power lines over farm land be at least eighteen feet above the ground. The power line at issue was over twenty-eight feet above the ground, thereby exceeding the standard set forth by the NESC. The NESC further provides that power lines are insulated when they are separated from other conducting surfaces by air space, as was the case here.

ถ 25 We wish to emphasize, however, that it would not be within a municipality's discretion to construct electrical systems and power lines that do not meet industry safety standards. Here, the City's electrical system, including the power line that caused Mr. Laney's death, met all applicable industry safety standards. Therefore, a decision by the City to not improve its power lines above industry standards is discretionary and is entitled to discretionary function immunity under the Act.

ถ 26 In sum, we conclude that the trial court was correct in concluding that the City was immune from suit under the Act. The alleged negligence of the City in failing to *1016 raise the height of, insulate, or provide further warnings on its power lines, resulted from the performance of discretionary functions under the Little test. Consequently, the Act immunizes the City from suit for the negligence alleged by the plaintiffs.

II. CONSTITUTIONALITY OF UTAH CODE ANN. ง 63-30-2(4)(a)

ถ 27 Because we find that the City's maintenance of the power lines constitutes a discretionary function within the meaning of the Governmental Immunity Act, we must address the plaintiffs' challenge to the constitutionality of Utah Code Ann. ง 63-30-2(4)(a) (Supp.2000).

ถ 28 As explained above, the Utah Governmental Immunity Act grants the City immunity from suit for its decision not to increase the safety of its power lines. This is, in part, because the City's operation of its municipal power system is a governmental function under Utah Code Ann. ง 63-30-2(4)(a). Accordingly, absent a statutory or constitutional provision to the contrary, the City is entitled to immunity from suit regarding the maintenance of its power lines, a governmental function. Plaintiffs contend that the district court erred in determining that the City is entitled to claim immunity because section 63-30-2(4)(a)'s definition of "governmental function" renders it unconstitutional. Article I, section 11 of the Utah Constitution provides:

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.

Plaintiffs argue that the Act, specifically section 63-30-2(4)(a), deprives them of their rights guaranteed by article I, section 11, the open courts clause.

A. Berry v. Beech Aircraft Analysis

ถ 29 The State urges this court to abandon nearly a century of precedent, arguing for an interpretation that would virtually write article I, section 11 out of the Utah Constitution. Specifically, the State asks the court to overrule Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985), and the principles explained therein. As early as 1915, only twenty years after Utah's constitution was adopted, this court acknowledged that article I, section 11 placed "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." Brown v. Wightman, 47 Utah 31, 34, 151 P. 366, 366-67 (Utah 1915). Thus, the State's assertion that the provision speaks only to the judicial branch and not to the legislative branch, is a novel departure indeed. Berry did not create a new constitutional rule; rather, it developed and articulated a test by which the rule might be applied.

1. Plain Meaning and Historical Purpose

ถ 30 In arguing for article I, section 11 to be treated solely as a procedural right, the State disregards the plain meaning and historical purpose of Utah's open courts provision. Throughout our state's history, this court has consistently recognized that the plain meaning of the guarantee "impose[s] some substantive limitation on the legislature to abolish judicial remedies in a capricious fashion." Craftsman Builder's Supply v. Butler Mfg., 1999 UT 18, ถ 36, 974 P.2d 1194 (Stewart, J., concurring) (emphasis added).

ถ 31 In general, open courts provisions in Utah and other states have served two principal purposes:

First, they were intended to help establish an independent foundation for the judiciary as an institution. See Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or. L.Rev. 1279 (1995); Industrial Comm'n v. Evans, 52 Utah 394, 174 P. 825, 831 (1918) ("[T]he question of ultimate legal liability cannot be withdrawn from the courts."). Second, open courts or remedies clauses were intended to grant individuals rights to a judicial remedy for the protection of their person, property, or reputation from abrogation and unreasonable limitation by economic interests that could control state legislatures. See Schuman, *1017 65 Temp. L.Rev. at 1208; Berry, 717 P.2d at 675.

Craftsman, 1999 UT 18 at ถ 36, 974 P.2d 1194 (Stewart, J., concurring) (emphasis added).

ถ 32 Our holding in Berry, which recognizes the substantive protection of article I, section 11, is consistent with these general purposes. More importantly, however, we should rely on our own state history and precedent to determine the purpose and meaning of article I, section 11's protection. See David Schuman, The Right to a Remedy, 65 Temp. L.Rev. 1197, 1220 (1992) ("[T]he best interpretation of the remedy guarantee^[6] in one state may differ radically from the best interpretation in another state, even when the wording of the two provisions is identical."). "[A] text's meaning cannot be separated from its speaker, its audience, its genreโ€”from its context." Id. (citing Stanley Fish, Working on the Chain Gang: Interpretation in Law and Literature, 60 Tex. L.Rev. 551 (1982)). Our inquiry should focus on what the open courts provision means in our own constitution. See Schuman, 65 Temp. L.Rev. at 1220 ("[T]he appropriate inquiry is not, `What does the remedy guarantee mean?,' but `What does the remedy guarantee mean in the constitution of State X?'").

ถ 33 Although some states with open courts provisions have construed them to guarantee only procedural rights and court access, such a construction has never been accepted in Utah. Article I, section 11's constitutional guarantee has been interpreted to protect substantive rights to remedies throughout our state's history. The open courts provision was adopted, as part of the original Constitution itself, at the end of the nineteenth century, during a period when abuse had generated concern and distrust of the legislative branch in numerous states. Craftsman, 1999 UT 18 at ถ 50, 974 P.2d 1194 (Stewart, J., concurring). That abuse included misuse of political influence by railroads and other corporate interests, who convinced state legislators to favor private interests through legislative enactments insulating them from the general laws. Id. (citing Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 811-12 (Ky.1991); Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961, 971-73 n. 9 (1984) to demonstrate origin of open courts provisions and industrial history of certain states around the turn of the century). To prevent this type of political abuse, "the Framers, relying on legal principles that were centuries old, included constitutional protections against such evils." Id.

ถ 34 Utah's constitution, in fact, contains numerous provisions reflecting an intent to limit legislative power and prevent special interest abuse. In addition to basic provisions for due process, uniform operation of the laws, and equality in civil and political rights, we find in the Utah Constitution the following sections, clearly motivated by a wariness of unlimited legislative power:^[7]

1. Article I, section 23 "No law shall be passed granting irrevocably any franchise, privilege or immunity."

2. Article VI, section 22 (single-subject rule) "Except general appropriation bills and bills for the codification and general revision of laws, no bill shall be passed containing more than one subject, which shall be clearly expressed in its title."

3. Article VI, section 26 "No private or special law shall be enacted where a general law can be applicable."

4. Article VI, section 28 "The Legislature shall not delegate to any special commission, private corporation or association any power to make, supervise or interfere with any municipal improvement, money, property or effects; ... to levy taxes, to select a capitol site, or to perform any municipal functions."

*1018 5. Article VII, section 29 "The Legislature shall not authorize the state, or any county, city, town, township, district or other political subdivision of the State to lend its credit or subscribe to stock or bonds in aid of any railroad, telegraph or other private individual or corporate enterprise or undertaking."^[8]

6. Article XVI, section 5 "The right of action to recover for injuries resulting in death, shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, except in cases where compensation for injuries resulting in death is provided for by law."^[9]

ถ 35 Commenting on Utah's legislative article (Article VI), historian Jean Bickmore White points out that it

is typical of the late-nineteenth-century constitutions written by its western neighbors. . . . It . . . mandated that the legislature should not enact special laws ... where general laws could apply-but went on to list eighteen specific cases where there should be no private or special laws (Art. VI, sec. 26). It specified that (except for general appropriation bills and bills for the codification and general revision of laws) no bill should contain more than one subject-a provision that made the amendment of entire articles difficult.

White at 64.

ถ 36 It is very clear from Professor White's history and from the discussions recorded in the Official Report of the Proceedings and Debates of The Constitutional Convention for the State of Utah, see Proceedings: Constitutional Convention in passim (Star Printing Co. 1898), that Utah's framers were knowledgeable about contemporary constitutional debates, and sensitive to economic and individual rights issues common in sibling states. That being so, it is entirely plausible that the inclusion of a specific remedies provision in article I, section 11 was deliberate, especially given its textual differences from other contemporary constitutions. See Craftsman, 1999 UT 18 at ถ 49, 974 P.2d 1194 (Stewart, J., concurring) (citing Mont. Const. art. II, ง 16; Wash. Const. art I, ง 10 ("Justice in all cases shall be administered openly, and without unnecessary delay.")). Because Utah's framers did not follow limited models like these, "[o]bviously, they did not intend to so limit the rights guaranteed to the citizens of Utah." Id.

ถ 37 Focusing entirely on the "procedural" content of the language found in section 11, as the State does, is misleading. Constitutional language must be viewed in context, meaning that its history and purpose must be considered in determining its meaning. The language that a remedy shall be had by "due course of law" describes the law by which the remedy is secured, as well as the procedural guarantees also protected by this section. Article I, section 7 already contains a due process provision guaranteeing procedural rights. Thus, if the State's reading of section 11 is correct, section 11 is redundant and m