RECENT DEVELOPMENTS IN UTAH LAW: E. Section 63-20-2(4)(a) of the Utah Code, as Applied to Municipalities Operating Electrical Power Systems, Is Unconstitutional Under the Open Courts Clause of the Utah Constitution

1. Introduction In Laney v. Fairview, 1 the Utah Supreme Court addressed the constitutionality of section 63-30-2(4)(a) of the Utah Code 2 ("Statute") under article I, section 11 of the Utah Constitution ("Open Courts Clause"). In Laney, the plaintiffs claimed that Fairview City ("Fairview") was negligent in the maintenance of electrical power lines. 3 But the plaintiffs' cause of action against Fairview was barred because the maintenance of electrical power lines is a governmental function. 4 The Statute defines "governmental function" as any conduct by a government entity. 5 Furthermore, a governmental entity is immune from suit for any injury resulting from the exercise of a governmental function 6 unless immunity has been expressly waived. 7 The State of Utah argued that the Open Courts Clause should be viewed as only guaranteeing procedural rights, 8 which would result in the Statute being held constitutional under the Open Courts Clause. However, the Utah Supreme Court held the Statute, as applied to government entities operating electrical power systems, 9 unconstitutional under the Open Courts Clause because the Statute abrogated a cause of action that existed prior to its enactment, was not passed to eliminate a social or economic evil, and failed to provide an alternative remedy. 10 2. The Case On September 16, 1991, John Laney was electrocuted when a thirty-foot aluminum pipe that he was carrying came in contact with power lines, which were owned and operated by Fairview. 11 Laney's ...