Matthew G. Gunn

Erica S. Phillips

Published May 2022

When lay persons, and even attorneys, discuss questions of constitutional law, they are usually discussing issues implicating the United States Constitution or, less frequently, provisions of a state constitution that substantially mirror an oft-cited clause or amendment of the United States Constitution. Only very rarely are such conversations centered on unique provisions of a state constitution not derived from the federal constitution.  One such provision, found in the state constitutions of forty states, including Idaho, is commonly known as an “open courts” provision.[1]  This article will discuss the open courts provision including its sources, application in other states, use in Idaho, and  conclude by questioning the scope and purpose of the provision. 

Idaho’s open courts provision

Idaho’s version of an open courts provision is enshrined in Article I, Section 18 of the Constitution of the State of Idaho:

JUSTICE TO BE FREELY AND SPEEDILY ADMINISTERED. Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice.

Although no closely analogous provision exists in the United States Constitution, legal scholars have concluded that these provisions “derive[ ] ultimately from Magna Carta, where it took the form of a promise extracted from King John to reform his courts.[2]

By its plain language, Article I, § 18 guarantees to “every person” in Idaho a “speedy remedy . . . for every injury of person, property or character . . .”   Unlike other rights enshrined in state constitutions, there is no guidance from the United States Supreme Court as to the meaning of the open courts provision. Thus, the question of what rights are provided by the open courts provision is left solely to the state supreme courts and, unsurprisingly, there is no single consensus among those states.

“Open courts” provisions interpreted by other states

Although all states have recognized that the open courts provision provides some procedural due process protections, some courts have held that this provision goes further and provides protection for substantive rights as well. This distinction was helpfully explained by Chief Justice Thomas Phillips of the Texas Supreme Court:

While it is universally agreed that the open courts provision guarantees a right of access to the courts, there is great divergence among the various states regarding the extent, if any, to which it accords constitutional protection to existing substantive remedies.

In many states, for example, the provision is nothing more than a procedural guarantee of judicial availability.[3]

A greater number of states, however, appear to place some substantive restrictions on the legislature’s authority to abolish or restrict well-established remedies and defenses, particularly common law causes of action. This restriction appears to be absolute only in those few states which also constitutionally forbid any legislative restriction on damages.[4] Other states require, in one form or another, a judicial balancing of the individual right to assert a recognized remedy with the public necessity for abrogating or restricting that right.[5]

Unlike many issues in our politics and society such as firearms or marijuana laws, the interpretation of the open courts provision does not fall on readily identifiable ideological lines. In fact, states that have recognized a substantive right in their open courts provision include Texas, Ohio, Arizona, Missouri, and Alaska, none of which are commonly understood to be more “liberal” states. Thus, the distinction in the interpretation of the open courts provision does not appear to be a neatly ideological distinction, but rather a purely legal distinction in how to give meaning to the rights set forth in the open courts provision.

In states where the open courts provision has been found to convey a substantive right, the provision has been used to strike down attempts to limit access to the courts through immunity provisions or statutes of limitation.  For example, the Texas Supreme Court first recognized the protections provided by Article I, § 13, the open courts provision, of the Texas Constitution in Hanks v. City of Port Arthur, 48 S.W.2d 944, 948 (Texas 1932), holding that the open courts provision of the Texas Constitution did not allow ordinances or statutes that “unreasonably abridge[] a justiciable right to obtain redress for injuries caused by the wrongful acts of another.”[6] On this basis, the Texas Supreme Court struck down an ordinance that eliminated liability against the City for any injury or damage arising from a defect in a public street or public grounds, unless the Commissioners had actual notice of the defect by personal inspection or written notice at least twenty-four hours before an injury or damage occurred.[7] 

Open Courts Provisions and Minor Limitations Periods

One of the most common applications of open courts provisions to protect substantive rights has been in the area of statutes of limitation applicable to minors.  In 1983, the Texas Supreme Court used Article I, § 13 to strike down a two-year statute of limitations for medical malpractice cases which applied regardless of the age of the plaintiff except for minors under the age of six who had until their eighth birthday to bring a suit.[8] In so holding, the Texas Supreme Court stated:

A child has no right to bring a cause of action on his own unless the disability has been removed. If the parents, guardians, or next friends of the child negligently fail to take action in the child’s behalf within the time provided by article 5.82, the child is precluded from suing his parents on account of their negligence, due to the doctrine of parent-child immunity. The child, therefore, is effectively barred from any remedy if his parents fail to timely file suit.

. . . . Therefore, we declare the limitations provision of article 5.82, section 4, to be in violation of article I, Section 13 of the Texas Constitution.[9]

The Alaska Supreme Court reached the same conclusion in addressing a statute of limitations that would expire prior to a minor reaching the age of majority, holding “[w]e therefore conclude that when subsection AS 09.10.140(c) forecloses a minor’s personal injury claim because his or her parents or guardians have failed to timely file suit it violates the minor’s procedural due process right of access to the courts. … We stand with [other courts] today in declaring that the State cannot lightly close the courthouse doors to minors.”[10] 

The Missouri Supreme Court also struck down a minor’s statute of limitations, stating:         

Our society takes great pride in the fact that the law remains forever at the ready to jealously guard the fights of minors. [Section 516.105] arbitrarily and unreasonably denies them a set of rights without providing any adequate substitute course of action for them to follow.[11]

The Arizona Supreme Court similarly found that “[t]he statute abolishes the action before it reasonably could be brought, in violation of the fundamental constitutional right guaranteed by article 18, § 6.”[12] The Ohio Supreme Court agreed, stating “we hold that R.C. 2305.11(B) is unconstitutional as applied to minors under the due course of law provisions of the Ohio Constitution.”[13]

In each of these cases, the conclusion of the respective state supreme court was that a statute of limitations which would expire before a minor reached the age of majority and was able to bring a lawsuit on their own behalf was a violation of the open courts provision because it effectively shut the door of the courthouse to a minor who had no other recourse to vindicate their rights.  Thus, the substantive right granted was, literally, the right to access the courts to seek a remedy for an injury – a right entirely consistent with the express language of the open courts provision.

“One of the most common applications of open courts provisions to protect substantive rights has been in the area of statutes of limitation applicable to minors.”

The Idaho Supreme Court’s interpretation of the open courts provision

Unlike the states discussed above, the Idaho Supreme Court’s interpretation of Article I, § 18 is that it provides no substantive rights. The Idaho Supreme Court’s analysis of the open courts provision begins with Moon v. Bullock.[14]  In Moon the Idaho Supreme Court “refused to interpret art. 1, § 18, as guaranteeing a remedy to every person for every injury. . . . We thus approved in Moon the holding that art. 1, § 18, merely admonishes the Idaho courts to dispense justice and to secure citizens the rights and remedies afforded by the legislature or by the common law, and that art. 1, § 18, did not create any substantive rights.”[15]

Based on this interpretation, the Idaho Supreme Court has clearly established the right of the legislature to set limitations on actions and even to abolish common law rights of action without violating Article I, § 18. In Olsen v. J.A. Freeman Co., the Court held that “[a] statute placing limitations on remedies does not contradict the provision of the Idaho Constitution that courts of justice shall be open to every person and a speedy remedy afforded for every injury of person.”[16] Similarly, in Jones v. State Bd. of Medicine, the Idaho Supreme Court held that the legislature clearly has the power to abolish or modify common law rights and remedies.[17]  

Most recently, in Gomersall v. St. Luke’s Regional Medical Center, the Idaho Supreme Court was asked to determine whether the open courts provision could protect minors from being barred from the courthouse by a running of the statute of limitations prior to the minor reaching the age of majority.[18]  In response, the Idaho Supreme Court rejected the analysis adopted by the Texas, Alaska, Missouri, Arizona, and Ohio courts and reaffirmed its holdings that Article I, §18 conveys no substantive rights to the citizens of the State of Idaho: “this Court has consistently held, however, that Article I, §18 of the Idaho Constitution does not create any substantive rights . . . Rather, Idaho’s open courts provision merely admonishes Idaho courts to dispense justice and to secure citizens the rights and remedies afforded by the legislature or by the common law . . . .”[19]

What is an admonishment to dispense justice?

 The Idaho Supreme Court’s line of decisions interpreting Article I, §18 as providing no substantive right, but only an admonishment to the Idaho courts to dispense justice, raises obvious questions as to what, if anything, the open courts provision protects.  It is axiomatic that a provision in the state constitution must have meaning, but the Idaho Supreme Court has repeatedly declined to ascribe firm meaning to the open courts provision.

What does an “admonishment. . . to dispense justice” mean if an entire class of persons, such as minors, can be barred from pursuing a remedy for an injury on their own? Can the legislature, without violating the open courts provision of the Idaho Constitution, eliminate all tort causes of action? Can the legislature, without violating the open courts provision, literally bar the door to the courthouse to all but criminal cases?  How can courts of the State of Idaho dispense justice if citizens can be barred from the courthouse? The answers to these questions are difficult to divine based on the Idaho Supreme Court’s current open courts jurisprudence.

In search of such answers, attorneys will continue to argue that the plain language of Article I, § 18 of the Idaho Constitution provides some minimum threshold of access to justice for those who have suffered an injury to person, property or character in order to give meaning to this provision of the Idaho Constitution.  One perpetual question created by Idaho’s failure to recognize a more substantive right is what limits, if any, are placed on the legislature’s ability to dictate jurisdictional elements to the Court?  Inherently, we all understand that our system imposes limits upon each branch, but in regard to Article I, § 18, those boundaries remain undefined.

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Endnotes

[1] Patrick John McGinley, Results from the Laboratories of Democracy: Evaluating the Substantive Open Courts Clause as Found in State Constitutions, 82.4 Alb. L. Rev. 1449, 1445 (2019).

[2] David Schuman, The right to a Remedy, 65 Temp. L. Rev. 1197, 1199 (1992)

[3] See, O’Quinn v. Walt Disney Productions, Inc., 177 Col. 190, 195, 493 P.2d 344, 346 (1972); Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 24, 644 P.2d 341, 346 (1982); Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 404 N.E.2d at 594 (Ind. 1980); Prendergast v. Nelson, 199 Neb. 97, 103-06, 256 N.W.2d 657, 663-65 (1977); Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 279-81, 382 A.2d 715, 720-21 (1978).

[4] See, e.g., ARIZ. CONST. art. 18, § 6; KY. CONST. § 54. WYO. CONST. art. 10, § 4.

[5]Lucas v.United States, 757 S.W.2d 687, 715 (Tex. 1988) (Phillips, Chief J., dissenting) (some internal citations omitted).

[6] Hanks v. City of Port Arthur, 48 S.W.2d 944, 948 (Tex. 1932).

[7] Id.

[8] Sax v. Votteler, 648 S.W.2d 661, 663 (Tex. 1983).

[9] Id at 666-667; see also Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex. 1995) (affirming Sax and noting that “[w]e fail to see any benefit in requiring a minor to show that his or her parent was incompetent or failed to act in the minor’s best interests by not pursuing a medical malpractice claim, especially when the very failure of the parent to do so leaves the minor without any legal recourse”).

[10] Sands v. Green, 156 P.3d 1130, 1134-1136 (Alaska 2007).

[11] Strahler v. St. Luke’s Hosp., 706 S.W.2d 7, 10 (Mo. 1986).

[12] Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 692 P.2d 280, 285-286 (Ariz. 1984). 

[13] Mominee v. Scherbarth, 503 N.E.2d 717, 721-722 (Ohio 1986). 

[14] 65 Idaho 594, 151 P.2d 765 (1944), overruled on other grounds, Doggett v. Boiler Engineering & Supply Co., Inc., 93 Idaho 888, 477 P.2d 511 (1970):

[15] Hawley v. Green, 117 Idaho 498, 500-501, 788 P.2d 1321, 1323-1324 (1990).

[16] 117 Idaho 706, 717 (1990).

[17] 97 Idaho 859, 555 P.2d 399 (1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977); see also Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982)(It is well established that the “open courts” provision governing access to courts of justice does not prohibit the legislature from abolishing or modifying a common-law right of action).

[18] 483 P.3d 365 (Idaho 2021).

[19] Id. at 373 (internal quotations and citations omitted).

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 [BK1]The Board recommends that the conclusion be strengthened–I took a stab to help brainstorm–please feel free conclude the way you want.