Horton v. Oregon Health & Science University

168 May 5, 2016 No. 26

IN THE SUPREME COURT OF THE

STATE OF OREGON

Lori HORTON,

as guardian ad litem and

Conservator of and for

T. H., a Minor,

Plaintiff-Respondent,

and

Lori HORTON,

individually;

and Steve Horton,

Plaintiffs,

v.

OREGON HEALTH

AND SCIENCE UNIVERSITY,

a Public Corporation,

Defendant,

and

Marvin HARRISON, M.D.,

Defendant-Appellant,

and

PEDIATRIC SURGICAL ASSOCIATES, P.C.,

an Oregon Professional Corporation;

and Audrey Durrant, M.D.,

Defendants.

(CC 1108-11209; SC S061992)

On direct appeal from the judgment of the Multnomah

County Circuit Court.*

Argued and submitted November 6, 2014.

Roy Pulvers, Holland & Knight, LLP, Portland, argued

the cause and filed the briefs on behalf of appellant.

______________

* On appeal from a limited judgment, Jerry B. Hodson, Judge. Multnomah

County Circuit Court, January 6, 2014.

Cite as 359 Or 168 (2016) 169

Maureen Leonard, Portland, argued the cause and filed

the brief on behalf of respondent. With her on the brief were

David K. Miller and Robert S. Wagner, Miller & Wagner

LLP, Portland.

Kimberley Sewell, Tri-County Metropolitan Transportation

District of Oregon, Portland, filed the brief for amicus curiae

Tri-County Metropolitan Transportation District of Oregon.

Keith M. Garza, Oak Grove, filed the brief for amicus cur-

iae Governor John Kitzhaber, M.D.

Harry Auerbach, Chief Deputy City Attorney, Portland,

filed the brief for amici curiae League of Oregon Cities and

Association of Oregon Counties.

Lindsey H. Hughes, Keating Jones Hughes, P.C.,

Portland, filed the brief for amicus curiae Oregon Medical

Association. With her on the brief were Hillary A. Taylor

and Tamara X. Arthur.

Thomas W. McPherson, Mersereau Shannon, LLP, Portland,

filed the brief for amici curiae Oregon School Boards

Association, Citycounty Insurance Services, Special Districts

Association of Oregon, University of Oregon, Oregon State

University, and Portland State University.

Travis Eiva, The Corson & Johnson Law Firm, Eugene,

filed the brief for amicus curiae Oregon Trial Lawyers

Association.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Baldwin, and Brewer, Justices, and Linder, Senior

Justice pro tempore.**

KISTLER, J.

The judgment of the circuit court is reversed, and the

case is remanded to the circuit court for further proceedings.

Landau, J., concurred and filed an opinion.

Walters, J., dissented and filed an opinion, in which

Baldwin, J., joined.

______________

**  Nakamoto, J., did not participate in the consideration or decision of this

case.

170 Horton v. OHSU

Cite as 359 Or 168 (2016) 171

KISTLER, J.

The question that this case presents is whether

a statute limiting a state employee’s tort liability violates

either the remedy clause of Article I, section 10, of the

Oregon Constitution or the jury trial clauses of Article I, sec-

tion 17, and Article VII (Amended), section 3, of the Oregon

Constitution. The trial court held that the statute, as applied

to the state employee, violated each of those provisions and

entered a limited judgment against the employee for the full

amount of the jury’s verdict. On direct appeal, we reverse

the trial court’s limited judgment and remand this case to

the trial court for entry of a judgment consistent with this

decision.

Plaintiff’s six-month-old son developed a cancerous

mass on his liver. Two doctors at Oregon Health & Science

University (OHSU) participated in an operation to remove

the mass: Dr. Harrison, a specialist in pediatric surgery,

and Dr. Durant, a pediatric surgical fellow in training.

During the operation, the doctors inadvertently transected

blood vessels going to the child’s liver. That act has resulted

in the child having to undergo a liver transplant, removal of

his spleen, additional surgeries, and lifetime monitoring due

to the risks resulting from the doctors’ act.

Plaintiff brought this action on her son’s behalf

against Harrison, Durant, OHSU, and Pediatric Surgical

Associates, P.C. The trial court granted Pediatric Surgical

Associates’ motion for summary judgment, and it dismissed

Durant as a result of an agreement among plaintiff, OHSU,

and Harrison. Pursuant to that agreement, Harrison and

OHSU admitted liability for the child’s injuries and plain-

tiff’s case against Harrison and OHSU went to the jury

to determine the amount of the child’s damages. The jury

found that plaintiff’s son had sustained and will sustain

economic damages of $6,071,190.38 and noneconomic dam-

ages of $6,000,000.

After the jury returned its verdict, OHSU and

Harrison filed a motion to reduce the jury’s verdict to

$3,000,000 based on the Oregon Tort Claims Act. The trial

court granted the motion as to OHSU. It ruled that, because

sovereign immunity applies to OHSU, the legislature

172 Horton v. OHSU

constitutionally may limit the damages for which OHSU is

liable. See Clarke v. OHSU, 343 Or 581, 600, 175 P3d 418

(2007) (so holding). The trial court, however, denied the

motion as to Harrison. Harrison had argued that, in 1857,

he would have been entitled to discretionary immunity for

errors occurring during surgery. It followed, he reasoned,

that, because he would not have been liable for any damages

in 1857 for his negligence, the Tort Claims Act limit may be

applied constitutionally to him. The trial court disagreed

with that argument. It then ruled that the Tort Claims Act

limit, as applied to Harrison, violated the remedy clause of

Article I, section 10, and the jury trial clauses of Article I,

section 17, and Article VII (Amended), section 3. The court

accordingly entered a limited judgment against Harrison

for all the damages that the jury had awarded.

Harrison (defendant) filed a direct appeal to this

court from the limited judgment. See ORS 30.274(3) (pro-

viding for direct appeals to this court from limited judg-

ments arising from application of tort claims limitations).1

On appeal, he assigns error to the trial court’s post-verdict

ruling denying his motion to limit the jury’s verdict against

him pursuant to the Tort Claims Act. He raises three argu-

ments in support of that assignment. Initially, he reasserts

the discretionary immunity argument that the trial court

rejected. Alternatively, he asks us to reexamine our cases

interpreting the remedy clause and the jury trial clauses.

He raises separate arguments regarding each clause, but

essentially he contends that our cases interpreting those

clauses rest on a faulty understanding of history, are incon-

sistent with later cases, and should be overruled.

Having considered defendant’s discretionary immu-

nity argument, we agree with the trial court’s ruling on that

issue. Explaining why we agree would be of little value to

anyone other than the parties. We accordingly uphold the

trial court’s ruling on that issue without further discussion

and turn to the question whether the limit that the Tort

Claims Act places on a state employee’s damages violates

1

The trial court’s limited judgment arises from its ruling on the Tort Claims

Act limitation but does not encompass its other rulings regarding plaintiffs’

claims. See Horton v. OHSU, 277 Or App 821, ___ P3d ___ (2016) (addressing

plaintiffs’ appeal from other trial court rulings).

Cite as 359 Or 168 (2016) 173

either the remedy clause of Article I, section 10, or the

jury trial clauses of Article I, section 17, and Article VII

(Amended), section 3.

As explained below, we conclude that the right to a

remedy protected by Article I, section 10, and the right to a

jury trial protected by Article I, section 17, address related

but separate issues. Article I, section 10, limits the legis-

lature’s substantive authority to alter or adjust a person’s

remedy for injuries to person, property, and reputation.

Article I, section 17, guarantees a jury trial in those classes

of cases in which the right to a jury trial was customary

at the time the Oregon Constitution was adopted and in

cases of like nature. However, Article I, section 17, places no

additional substantive limit on the legislature’s authority to

alter or adjust remedies beyond that found in Article I, sec-

tion 10. Accordingly, we begin with the question whether the

Tort Claims Act limit violates the remedy clause of Article I,

section 10.

I.  ARTICLE I, SECTION 10

The Tort Claims Act both waives the state’s sov-

ereign immunity and, as applicable here, limits the tort

liability of the state and its employees to $3,000,000. ORS

30.265(1); ORS 30.271(3)(a).2 The act imposes, as a matter

of Oregon law, a legal limit on the amount of damages that

a plaintiff may recover against the state and its employees.

Following Smothers v. Gresham Transfer, Inc., 332 Or 83,

23 P3d 333 (2001), the trial court ruled that, as applied to

defendant, the Tort Claims Act limit violated the remedy

clause of Article I, section 10.3 On appeal, defendant argues

that we should overrule Smothers, as well as our other rem-

edy clause cases, and hold that Article I, section 10, is not “a

substantive guarantee of a remedy * * * [but] rather, guaran-

tees access to the courts [only] for such remedies as the law

may provide.” Defendant and his amici argue that Smothers

2

The Tort Claims Act imposes a different monetary limit on tort claims

against a local public body and its employees. ORS 30.272.

3

As discussed below, Article I, section 10, contains three independent

clauses. The parties’ arguments focus on the third of those clauses, the remedy

clause. That clause provides that “every man shall have remedy by due course of

law for injury done him in his person, property, or reputation.” Or Const, Art I,

§ 10.

174 Horton v. OHSU

based its holding on an incomplete view of the historical

circumstances surrounding Oregon’s remedy clause and

drew inferences that even its doubtful premises cannot sup-

port. See generally Jonathan M. Hoffman, Questions Before

Answers: The Ongoing Search to Understand the Origins of

the Open Courts Clause, 32 Rutgers LJ 1005 (2001) (detail-

ing some of the historical assumptions in Smothers that may

have been faulty); see also Klutschkowski v. PeaceHealth,

354 Or 150, 178-96, 311 P3d 461 (2013) (Landau, J., con-

curring) (describing problems with the historical analysis

in Smothers). Alternatively, defendant argues that, even if

Smothers is good law, the damages available under the Tort

Claims Act are “substantial” and thus constitutional. See

Howell v. Boyle, 353 Or 359, 298 P3d 1 (2013).

Plaintiff responds that Smothers “was a correct

interpretation of the remedy clause,” although she does not

question the history on which defendant relies. Plaintiff

relies instead on an earlier line of this court’s cases inter-

preting the remedy clause, which consistently have held that

the remedy clause imposes a substantive limit on the legisla-

ture’s authority to alter or adjust remedies for certain kinds

of injuries. As plaintiff interprets Smothers, that decision

did not tie the protections of the remedy clause to Oregon

common law as it existed in 1857. Rather, plaintiff contends

that Smothers requires a remedy that “ ‘either restores the

status quo or compensates the injured party for the loss.’ ”

(Quoting Holden v. Pioneer Broadcasting Co., 228 Or 405,

365 P2d 845 (1961) (Goodwin, J., dissenting), cert den, 370

US 157 (1962)).

Plaintiff’s argument appears to rest on the proposi-

tion that the legislature may not limit either the nature or

extent of common-law remedies but that it may extend those

remedies to new subjects, expand the scope of available

damages, and abrogate common-law defenses. In plaintiff’s

view, this court’s decisions in Howell and Lawson v. Hoke,

339 Or 253, 119 P3d 210 (2005), departed from a correct

understanding of the remedy clause because Howell and

Lawson (but not Smothers) “ ‘froz[e] common law’ by reduc-

ing the protections of Article I, section 10 to the claims that

might have been successfully litigated in 1857.”

Cite as 359 Or 168 (2016) 175

As we understand the parties’ arguments, they

agree that the remedy clause should not be tied strictly to

Oregon common law as it existed in 1857. They disagree,

however, whether the remedy clause places any substan-

tive limit on the legislature’s authority. It follows that

the parties’ arguments present two related but separate

issues. The first is whether Smothers tied the meaning of

the remedy clause to Oregon common law as it existed in

1857 and, if it did, whether it erred in doing so. The second

is whether our other remedy clause cases erred in hold-

ing that the remedy clause places a substantive limit on

the legislature’s ability to modify remedies. In considering

those issues, we first describe our decision in Smothers. We

then explain why we conclude that Smothers clearly erred

in tying the remedy clause to the common law in 1857 and

should be overruled. We next explain why we disagree with

defendant that we should overrule our other cases holding

that the remedy clause places a substantive limit on leg-

islative authority. Finally, we explain why the limitation

on damages against state employees does not violate the

remedy clause.

A.  Smothers

In Smothers, the court stated that our cases inter-

preting the remedy clause have not been consistent, and it

sought to provide a definitive interpretation of that clause.

332 Or at 90. Using the methodology set out in Priest v.

Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992), the court

considered the text of Article I, section 10, its history, and

our cases interpreting the remedy clause. Smothers, 332

Or at 91-123. After surveying Magna Carta, Coke’s Second

Institute, Blackstone’s Commentaries, and decisions from

other states interpreting their remedy clauses, Smothers

concluded that the historical purpose of the remedy clause

was “to mandate the availability of a remedy by due course

of law for injury to absolute rights respecting person, prop-

erty, and reputation.” Id. at 114.

Smothers explained that, to give effect to that pur-

pose, Oregon courts should ask two questions. The first is

“whether the plaintiff has alleged an injury to one of the

absolute rights that Article I, section 10 protects.” Id. at 124.

176 Horton v. OHSU

Because Smothers concluded that an “injury,” as that term

is used in the remedy clause, is a “wrong or harm for which a

cause of action existed when the drafters wrote the Oregon

Constitution in 1857,” it restated the first question as fol-

lows: “[W]hen the drafters wrote the Oregon Constitution

in 1857, did the common law of Oregon recognize a cause of

action for the alleged injury?” Id.

Smothers stated that, if the answer to that question

is “yes,” then the remedy clause mandates that a constitu-

tionally adequate remedy for that injury be available. Id.

The court observed that “[a] common-law cause of action is

a constitutionally adequate remedy for seeking redress for

injury to protected rights.” Id. Smothers also recognized,

however, that the remedy clause “does not freeze in place

common-law causes of action that existed when the drafters

wrote the Oregon Constitution in 1857.” Id. The legislature

may modify or abolish a common-law remedy “so long as it

provides a substitute remedial process” for injuries to “abso-

lute rights that the remedy clause protects.” Id. Because

the legislature may provide a substitute remedial process

for common-law injuries to absolute rights, the court formu-

lated a second question to implement the remedy clause: If

the legislature has abolished a common-law cause of action

for protected injuries, has the legislature “provided a consti-

tutionally adequate substitute remedy for the common-law

cause of action for that injury?” Id.

Applying that framework to the claim in Smothers,

the court explained that, in 1857, the plaintiff in Smothers

would have had a cause of action against his employer for

negligently exposing him to dangerous fumes that were “a

contributing cause” of his injuries. Id. at 129-33. The legis-

lature, however, made workers’ compensation the plaintiff’s

exclusive remedy, and it required that the plaintiff prove

that his employer’s negligence was “the major contributing

cause” of his injury to recover under workers’ compensation.

Id. at 133. Because the plaintiff could not make that show-

ing, Smothers held that the workers’ compensation statute,

as applied, violated the remedy clause; that is, the workers’

compensation statute violated the remedy clause because it

denied the plaintiff any remedy for an injury—bodily harm

Cite as 359 Or 168 (2016) 177

for which the defendant’s negligence was a contributing

cause—that would have been actionable under the common

law of Oregon in 1857. Id. at 133-36.

Smothers did not reach the question of when a mod-

ified remedy for an injury that was actionable in 1857 will

be “constitutionally adequate.” Id. at 120 n 19. The court

explained:

“[T]he only question in this case is whether the legislature

has deprived plaintiff of a means for seeking redress for the

injury [that was recognized at common law in 1857 and]

that he alleges that he suffered at work. Accordingly, it is

beyond the scope of this opinion to address issues relat-

ing to the adequacy of the amount of damages that may

be available under a legislatively substituted process for a

common-law cause of action for injury to one of the rights

that is protected by the remedy clause.”

Id. (emphasis in original). The court noted that other cases

had stated that a remedy will be constitutionally adequate

if it is “substantial.” Id. For instance, in Hale, this court con-

cluded that, in determining the adequacy of a remedy, “the

remedy need not be precisely of the same type or extent; it

is enough that the remedy is a substantial one.” Hale v. Port

of Portland, 308 Or 508, 523, 783 P2d 506 (1989). See also

Neher v. Chartier, 319 Or 417, 426, 879 P2d 156 (1994) (cit-

ing rule from Hale); Greist v. Phillips, 322 Or 281, 291, 906

P2d 789 (1995) (same).

As we read Smothers, it tied the meaning of the

remedy clause to Oregon common law in 1857 in two ways.

First, if the common law of Oregon provided a cause of action

for an injury to person, property, or reputation in 1857, then

the law must continue to provide some remedy for that his-

torically defined injury. Not only did Smothers say so explic-

itly, but it held the workers’ compensation statute unconsti-

tutional, as applied, because an actionable injury under that

statute (bodily harm for which the employer’s negligence

was the major contributing cause) was different from and

narrower than the injury for which a cause of action existed

in 1857 (bodily harm for which the employer’s negligence

was a contributing cause). See Smothers, 332 Or at 124,

178 Horton v. OHSU

133-36. Second, in determining whether the law provides

a constitutionally adequate remedy, the court looked to the

common law in 1857 as a model. It noted that common-law

remedies for historically defined injuries would be consti-

tutionally adequate but that the remedy clause does not

prevent the legislature from modifying a remedy for those

injuries as long as the remedy remains a substantial one.

Id. at 124.

We accordingly disagree with plaintiff that Smothers

did not tie the remedy clause to the common law as it existed

in 1857. We also disagree with plaintiff that the court

departed from Smothers in Howell and Lawson by looking

to the common law in 1857 to determine whether the plain-

tiffs in those cases had suffered a constitutionally protected

injury and whether, if they had, the legislature had provided

a constitutionally adequate remedy. We agree, however, with

both plaintiff and defendant that tying the remedy clause

to the common law in 1857 can produce (and has produced)

anomalous results. As others have noted, the common law

often turned on a patchwork of confusing and unworkable

distinctions. See Edwin M. Borchard, Government Liability

in Tort, 34 Yale LJ 229, 233 (1925) (discussing confusion

engendered by common-law distinctions). The standard that

Smothers announced gives constitutional effect to those

common-law anomalies. Moreover, as the dissent recognized

in Howell and the majority did not dispute, strict adherence

to Smothers can result in the further anomaly of trying two

claims to a jury—one under the current law and the other

under the law as it existed in 1857. Finally, defendant has

raised substantial questions regarding Smothers’ interpreta-

tion of the sources on which it relied.

In those circumstances, we conclude that it is

appropriate to consider whether Smothers was correctly

decided by reexamining the text of Article I, section 10, its

history, and our cases. See State v. Reinke, 354 Or 98, 105,

309 P3d 1059, adh’d to as modified on recons, 354 Or 570,

316 P3d 286 (2013) (undertaking similar reexamination). In

doing so, we focus initially (and solely) on Smothers’ hold-

ing that Oregon common law in 1857 defines the injuries for

which the law must provide a remedy. Because we overrule

Cite as 359 Or 168 (2016) 179

Smothers, we also consider the related issue that defendant

raises—whether our other remedy clause cases should be

overruled as well.

B.  The remedy clause and Oregon common law

Article I, section 10, provides:

“No court shall be secret, but justice shall be admin-

istered, openly and without purchase, completely and

without delay, and every man shall have remedy by due

course of law for injury done him in his person, property, or

reputation.”

Textually, Article I, section 10, differs from other sections

included in Oregon’s bill of rights. It is not a protection

against the exercise of governmental power. State ex rel

Oregonian Pub. Co. v. Deiz, 289 Or 277, 288, 613 P2d 23

(1980) (Linde, J., concurring). Rather, “[i]t is one of those

provisions of the constitution that prescribe how the func-

tions of government shall be conducted.”4 Id. Specifically,

“[s]ection 10 as a whole is plainly concerned with the admin-

istration of justice.” Hans A. Linde, Without “Due Process”:

Unconstitutional Law in Oregon, 49 Or L Rev 125, 136

(1970). Each of the three independent clauses that comprise

Article I, section 10, addresses that topic.5

The first independent clause prohibits secret courts

while the second provides that justice shall be adminis-

tered “openly and without purchase, completely and without

delay.” The third independent clause provides that “every

man shall have remedy by due course of law for injury done

him in his person, property, or reputation.” Textually, the

third independent clause can be read in two ways. On the one

hand, the clause can be seen as a guarantee that courts will

provide “every” person a “remedy by due course of law” for

4

The issue in Deiz was whether closing a juvenile adjudication to the public

violated the open courts clause of Article I, section 10. 289 Or at 279. In distin-

guishing Article I, section 10, from other provisions in the Oregon Constitution,

Justice Linde did not limit his discussion to the open courts clause of that section

but wrote more broadly.

5

Article I, section 10, consists of three independent clauses (“No court shall,”

“justice shall be administered,” and “every man shall have”), which are joined by

two conjunctions. Although Smothers stated that Article I, section 10, consists

of two independent clauses, 332 Or at 91, Smothers may not have been using the

phrase “independent clause” in its grammatical sense.

180 Horton v. OHSU

certain kinds of injuries. As Professor Linde observed, the

clause could be nothing “more than a procedural guarantee

that the ‘due course of law’ will be open to ‘every man’ who

is entitled to a remedy under the substantive law, whatever

that might be at any time.” Linde, Without “Due Process,” 49

Or L Rev at 136.

On the other hand, characterizing the remedy

clause solely as a guarantee of equal access to the courts

fails to account for all the clause’s text. The text provides

that “every man shall have remedy by due course of law

for injury done him in his person, property, or reputation.”

Focusing on the phrase “by due course of law” can obscure

the remainder of the text, which provides that, when a per-

son has had “injury done him in his person, property, or

reputation,” he “shall have remedy.” The text is as much

about the availability of a remedy as it is about the “due

course of law” by which the remedy is to be administered.

In a related vein, this court had held that the remedy clause

does not apply to every injury a person sustains to a legally

protected interest. Juarez v. Windsor Rock Products, Inc.,

341 Or 160, 173, 144 P3d 211 (2006) (loss of deceased’s soci-

ety, guidance, and emotional support did not constitute

injury to person, property, or reputation within meaning of

remedy clause). Rather, the clause applies only to remedies

for three specified types of injuries. Id. The clause’s focus

on providing remedies for specified types of injuries implies

that it was intended to guarantee some remedy for those

injuries, and not merely be a guarantee of procedural regu-

larity for whatever injuries may, at the moment, enjoy legal

protection.

To the extent that the text guarantees that some rem-

edy will be available for injuries done to persons in their per-

son, property, and reputation, the question that the text leaves

unanswered is what the content of that remedy is. Certainly,

nothing in the text of the remedy clause says that its protec-

tions are limited to the common law as it existed at a particu-

lar point in time. The clause lacks words used elsewhere in the

constitution that connect a constitutional guarantee to a single

point in time. Compare Or Const, Art VII, § 3 (“thereafter”);

Or Const, Art I, § 31 (1857) (“hereafter”); Or Const, Art IV,

§ 24 (“at the time of the adoption of this constitution”).

Cite as 359 Or 168 (2016) 181

Not only does the text of the remedy clause not

provide express support for the historical limitation that

Smothers perceived, but the context of the remedy clause is

also at odds with that limitation. Both Article I, section 10,

and Article XVIII, section 7, were adopted as part of the

original Oregon Constitution. The Oregon Constitution and

Proceedings and Debates of the Constitutional Convention

of 1857 402, 431 (Charles Henry Carey ed., 1926).

Article XVIII, section 7, provides that “[a]ll laws in force in

the Territory of Oregon when this Constitution takes effect,

and consistent therewith, shall continue in force until

altered, or repealed.”

As this court explained in Land Bd. v. Corvallis

Sand & Gravel, 283 Or 147, 156, 582 P2d 1352 (1978),

Article XVIII, section 7, “continued in force the substan-

tive principles of the common law which were adopted by

the provisional government and sanctioned by the federal

act establishing the territorial government.” However,

“[t]he common law, as it existed in England at the time of

the settlement of the American colonies, has never been in

force in all of its provisions in any colony or state of the

United States.” Peery v. Fletcher, 93 Or 43, 52, 183 P 143

(1919). Rather, “[i]t has been adopted so far only as its gen-

eral principles were suited to the habits and conditions of

the colonies, and in harmony with the genius, spirit and

objects of American institutions.” Id. Oregon accordingly

departed from the “old common law [rule]” that defendants

would be liable in trespass for damages caused by their cat-

tle straying onto another person’s land. Perozzi v. Ganiere,

149 Or 330, 348, 40 P2d 1009 (1935). Similarly, in the arid

west, the common-law riparian right of property owners to

use water appurtenant to their land gave way to a more

limited property right to use water based on a system of

prior appropriation. Re Water Rights of Hood River, 114 Or

112, 166-81, 227 P 1065 (1924), cert dismissed sub nom Pac.

Power & Light Co. v. Bayer, 273 US 647, 47 S Ct 245, 71 L

Ed 821 (1926).

In modifying common-law rights to meet conditions

unique to this state, Oregon continued a process that began

when the original colonies first adopted and then modified

English common law. As one author has explained, “[b]y

182 Horton v. OHSU

1820 the legal landscape in America bore only the faintest

resemblance to what existed forty years earlier” when the

original colonies first adopted English common law. Morton

J. Horwitz, The Transformation of American Law, 1780-1860

at 30 (1977). As Horwitz describes, from 1780 to 1860, state

legislatures modified property and other common-law rights

to accommodate both the differing conditions in this country

and the industrial growth that the country was experienc-

ing. It follows that, when the framers drafted Oregon’s con-

stitution in 1857, they would not have viewed the common

law as static or unchanging—a proposition that is appar-

ent from Article XVIII, section 7, which both continued the

common law, as modified to meet Oregon’s needs, and recog-

nized that the common law remained subject to change. See

Peery, 93 Or at 52-53 (recognizing that common law can be

“altered” or “repealed”).

Consistent with that recognition, the common law

has continued to evolve as the premises on which it rests

have changed. See Buchler v. Oregon Corrections Div., 316

Or 499, 518, 853 P2d 798 (1993) (Peterson, J., concurring)

(explaining that the “beauty and strength of the common-

law system is its infinite adaptability to societal change”).

For example, this court has held that the common-law doc-

trine of interspousal immunity no longer bars negligence

actions by one spouse against another, Heino v. Harper, 306

Or 347, 374-76, 759 P2d 253 (1988), and it has rejected the

doctrine of parental immunity, Winn v. Gilroy, 296 Or 718,

733-34, 681 P2d 776 (1984). In 1975, the legislature abol-

ished the common-law torts of criminal conversation and

alienation of affections because those “actions for invasion

of the family relationship were considered outmoded by

changing views of marriage, divorce, and sexual relations,

as reflected in the repeal in 1971 of criminal laws against

adultery and enactment of no-fault divorce laws.” Norwest

v. Presbyterian Intercommunity Hosp., 293 Or 543, 563, 652

P2d 318 (1982). More recently, we explained that, in light of

legislative changes to joint defendants’ liability, “common-

law indemnity” is no longer “necessary or justified” for civil

claims that are subject to the comparative fault statute.

Eclectic Investment, LLC v. Patterson, 357 Or 25, 38, 346

P3d 468 (2015).

Cite as 359 Or 168 (2016) 183

Contrary to the premise that underlies Smothers,

when the framers drafted the Oregon Constitution in 1857,

they would have understood that the common law was not

tied to a particular point in time but instead continued to

evolve to meet changing needs. See State v. Supanchick, 354

Or 737, 765, 323 P3d 231 (2014) (looking to common law as

it evolved in America to determine scope of state confronta-

tion clause). Put differently, nothing suggests that, when the

framers drafted the remedy clause, they would have sought

to tie the protections of that clause to the common law as

it existed at a single point in time. We find no basis in the

text of the remedy clause, its context, or its history from

which we can conclude that the framers intended to limit

the meaning of that clause to the concept of injury as it was

defined in 1857.

In reaching a contrary conclusion, Smothers relied

on dicta from a federal district court decision, Eastman v.

Clackamas Cnty., 32 F 24 (CCD Or 1887). See Smothers, 332

Or at 122. We accordingly discuss that decision briefly. The

plaintiff in Eastman had been injured in 1886 as a result

of Clackamas County’s negligence in maintaining one of

its bridges, and he sued the county to recover his damages.

Eastman, 32 F at 26. Under the common law, a county was

not liable for an injury resulting from a defect in one of its

highways or roads. Rankin v. Buckman, 9 Or 253, 256 (1881).6

Before the adoption of the Oregon Constitution, the Oregon

territorial legislature changed that common-law rule and

permitted tort and breach-of-contract actions against coun-

ties. Eastman, 32 F at 30-31.

In 1887, 30 years after the constitution had been

drafted and one year after the plaintiff in Eastman had been

injured, the legislature amended the territorial statute that

had permitted counties to be sued. Id. at 31. It deleted the

part of the statute allowing tort actions against counties,

6

In Eastman, the court explained that the county’s common-law immunity

derived from Russell v. Devon Co., 2 Term R 667 (1788), which had held that an

unincorporated county was immune from liability for its negligence, primarily to

avoid the prospect of a judgment “be[ing] satisfied out of the property of any one

of the men of Devon, [with] the result [that there] would be ‘an infinity of actions’

among the defendants for contribution.” Eastman, 32 F at 28-29.

184 Horton v. OHSU

with the result that the statute, as amended, permitted

actions against counties only for breach of contract. Id.

Before the federal district court, the county argued

that the plaintiff’s action should be dismissed. The county

explained that it was not liable for its torts at common law,

and it noted that the territorial statute permitting tort

actions against counties had been repealed. In considering the

county’s argument, the district court first observed in dicta

that the remedy clause froze in place both the common-law and

statutory remedies that existed when the Oregon Constitution

was enacted. Id. at 32. The district court reasoned:

“To begin with, it may be admitted that the remedy guar-

anteed by [the state remedy clause] is not intended for the

redress of any novel, indefinite, or remote injury that was

not then regarded as within the pale of legal redress. But

whatever injury the law, as it then stood, took cognizance

of and furnished a remedy for, every man shall continue to

have a remedy for by due course of law. When [the Oregon]

constitution was formed and adopted, it was and had been

the law of the land, from comparatively an early day, that a

person should have an action for damages against a county

for an injury caused by its act or omission. If this then

known and accustomed remedy can be taken away in the

face of this constitutional provision, what other may not?”

Id.

Having raised the remedy clause as a possible

answer to the county’s defense, the federal district court

decided the case on a narrower ground. It held that the plain-

tiff had been injured before the legislature had repealed the

statute permitting actions against counties for their torts,

that the plaintiff’s cause of action had “vested” when he had

been injured, and that nothing in the 1887 amendment sug-

gested that the legislature had intended the amendment to

apply retroactively and take away a vested right. Id. at 34.

Because the federal court held only that the 1887 amend-

ment did not apply retroactively, its discussion of the remedy

clause was dicta and had no binding effect in federal district

court, much less in Oregon state courts.7

7

Of course, even if the federal district court’s interpretation of state law had

been part of its holding, a federal court’s interpretation of state law would not

bind a state court faced with the same question.

Cite as 359 Or 168 (2016) 185

Five years later, a plaintiff brought a negligence

action in state court against a county to recover for an

injury that occurred after the legislature had repealed the

statute making counties liable for their torts. Templeton v.

Linn County, 22 Or 314, 316-17 (1892). Although the plain-

tiff relied on the dicta in Eastman to argue that the rem-

edy clause barred the legislature from repealing the stat-

ute giving him a right to sue the county for its torts, this

court rejected that argument, describing it as “startling.”

Id. at 316. This court reaffirmed that the legislature cannot

take away a party’s “[v]ested rights” (the right to recover for

injuries that had occurred while the statutory remedy was

in place), but it held that the same limitation did not apply

to “expectancies and possibilities in which the party has no

present interest.” Id. at 318. Not only did Templeton reject

the dicta in Eastman, but this court later explained that it

had never adopted that dicta. Noonan v. City of Portland, 161

Or 213, 249, 88 P2d 808 (1939); Gearin v. Marion County,

110 Or 390, 400-01, 223 P 929 (1924).

Smothers based its holding tying the meaning of

the remedy clause to Oregon common law in 1857 on federal

dicta that this court described in Templeton as “startling”

and that the court explained in Noonan and Gearin that it

had never adopted.8 It follows that the central premise of

Smothers’ holding finds no support in the text of the rem-

edy clause, and it is at odds with the text of Article XVIII,

section 7, and the history underlying that section and

Article I, section 10. As Professor Linde observed more

than 30 years before Smothers was decided, “one doubts

8

Smothers stated that Theiler v. Tillamook County, 75 Or 214, 146 P 828

(1915), had adopted the dicta in Eastman. 332 Or at 122. Smothers misperceived

what Theiler held. In Theiler, the construction of a county highway caused a creek

to change its course and, as a result, periodically “flo[w] over and upon the plain-

tiff’s premises, destroying the trees, shrubs, and grass growing thereon, and

washing away the soil.” 75 Or at 215. In deciding whether the landowner could

bring a claim against the county, Theiler quoted the dicta from Eastman and also

discussed the holdings in Templeton and two other state supreme court cases. Id.

at 217-18. This court then held that the plaintiff could sue the county, a holding

that rested on the court’s conclusion that causing water to invade the plaintiff’s

land “practically amount[ed] to a taking of * * * part of the premises without con-

demnation.” Id. at 218. Government liability for taking property follows from the

state takings clause. See Or Const, Art I, § 18. Recognizing that constitutional

liability is not the same thing as adopting the dicta in Eastman.

186 Horton v. OHSU

that by the words ‘remedy by due course of law,’ Oregon’s

constitution meant to freeze tort law as it stood either in

1859, or when this guarantee first entered state constitu-

tions almost 200 years ago.” Linde, “Without Due Process,”

49 Or L Rev at 136. Indeed, both Justice O’Connell’s

majority opinion and Justice Goodwin’s dissent in Holden

expressly rejected the proposition that Smothers later

embraced—that Article I, section 10, requires that every

injury the common law recognized in 1857 be remedied

in substantially the same form as that recognized when

the constitution was first adopted. See Holden, 228 Or at

411-12 (majority); id. at 422 (Goodwin, J., dissenting).

We do not overrule our precedents lightly. See

Farmers Ins. Co. v. Mowry, 350 Or 686, 261 P3d 1 (2011).

As the court explained in Mowry, our “decisions ‘should be

stable and reliable,’ because the Oregon Constitution is ‘the

fundamental document of this state.’ ” Id. at 693-94 (quot-

ing Stranahan v. Fred Meyer, Inc., 331 Or 38, 53, 11 P3d 228

(2000)). However, as the court also recognized in Mowry,

“there is a ‘similarly important need to be able to correct

past errors’ because ‘[t]his court is the body with the ulti-

mate responsibility for construing our constitution, and if

we err, no other reviewing body can remedy that error.’ ”

Id. at 694 (quoting Stranahan, 331 Or at 53) (bracket in

Mowry). The considerations that bear on when we should

exercise that authority are difficult to reduce to a simple

formula. Couey v. Atkins, 357 Or 460, 485, 355 P3d 866

(2015). Rather, as the court explained in Mowry, “stare deci-

sis is a prudential doctrine that is defined by the competing

needs for stability and flexibility in Oregon law.” 350 Or at

697-98.

In Couey, we identified “at least three categories [of

error]” that will justify reconsidering a prior constitutional

decision. 357 Or at 485. We observed:

“First, there are cases in which a prior pronouncement

amounted to dictum or was adopted without analysis or

explanation. * * * Second, there are cases in which the

analysis that does exist was clearly incorrect—that is, it

finds no support in the text or the history of the relevant

constitutional provision. * * * Third, there are cases that

Cite as 359 Or 168 (2016) 187

cannot be fairly reconciled with other decisions of this court

on the same constitutional provision.”

Id. at 485-86 (citations omitted). Placing a decision in one

of those three categories does not exhaust consideration of

other factors that can bear on whether to adhere to or over-

rule that decision. As Mowry explained, a significant consid-

eration can be whether others have “rel[ied] on the rules of

law announced by this court to structure their transactions.”

350 Or at 700-01 (insurance policies drafted and underwrit-

ten in reliance on judicial decision); see State v. Cuevas, 358

Or 147, 154, 361 P3d 581 (2015) (declining to overrule two

decisions interpreting sentencing guidelines rules, in part,

because those decisions had “been applied repeatedly in

calculating innumerable sentences”). Moreover, the age of

the decisions and the extent to which the issues have been

fully litigated can matter. Compare Mowry, 350 Or at 700-01

(declining to overrule relatively recent decision where issue

had been fully litigated), with State v. Mills, 354 Or 350,

366-71, 312 P3d 515 (2013) (overruling holding in 1923 case

that had been adopted without discussion and cited without

explanation in ensuing 90 years). The answer to the ques-

tion whether a case should be overruled cannot be reduced to

the mechanical application of a formula but requires instead

an exercise of judgment that takes all appropriate factors

into consideration. See Mowry, 350 Or at 697-98 (describing

stare decisis as a prudential doctrine).

With that background in mind, we turn to the ques-

tion whether we should overrule Smothers. As explained

above, the central premise of Smothers finds no support in

the text and history of Article I, section 10; it is at odds

with the context found in Article XVIII, section 7; and it

is squarely inconsistent with a series of this court’s cases

holding that Article I, section 10, did not freeze rights and

remedies as they existed in 1857. Additionally, Smothers is

of relatively recent vintage, and it has not given rise to the

sort of reliance interests that persuaded this court in Mowry

to adhere to a prior statutory interpretation. Although the

text and history of the remedy clause were considered at

some length in Smothers, that factor, standing alone, does

not persuade us to adhere to a case that was at odds with

the text, history, and case law when it was decided and that

188 Horton v. OHSU

continues to prove problematic. For the reasons explained

above, we overrule Smothers.9

C.  This Court’s Other Remedy Clause Cases

The question that remains is whether, as defendant

argues, our other remedy clause cases also should be over-

ruled to the extent that they place a substantive limit on

the legislature’s authority to alter or adjust remedies; that

is, is defendant correct that the remedy clause provides only

procedural protection? In considering that issue, we begin

by summarizing our remedy clause cases that preceded and

followed Smothers. We then turn to whether those cases are

consistent with the text and history of the remedy clause.

1.  Oregon remedy clause decisions

This court’s remedy clause decisions divide roughly

into two groups. The first group arose out of claims against

counties and cities for injuries caused by defects in their

roads and streets. Those cases started from a premise that

was familiar to the courts in the late nineteenth and early

twentieth century, which Justice Bean summarized in his

concurring opinion in Templeton: “By the decided weight of

authority, a county is not liable for an injury received from

a defective highway, unless by statute; while the courts

seem equally agreed that such liability exists as against a

municipal corporation.” Templeton, 22 Or at 320 (Bean, J.,

concurring).10

Following Templeton, this court routinely rejected

the argument that the remedy clause entitled a plaintiff

90

Because we overrule Smothers, it follows that its conclusion—that the

workers’ compensation statute was unconstitutional as applied—cannot stand.

We express no opinion on whether our remedy clause cases that preceded

Smothers, which we reaffirm today, would lead to the same conclusion.

10

That distinction did not derive from the nature of the governmental activ-

ity. It was the same for both counties and cities—maintaining their streets in

good repair. Rather, the distinction derived from the proposition that cities were

created by a special charter, which imposed a duty on cities to maintain their

streets. Rankin, 9 Or at 256-57. The basis for holding that counties could not be

sued rested variously on the lack of a corporate identity, which the English courts

had identified in Russell and the federal district court had noted in Eastman, and

the proposition that counties were created by general law rather than a special

charter. See John F. Dillon, 2 The Law of Municipal Corporations §§ 961, 965 (3d

ed 1881) (recognizing that distinction but questioning its validity).

Cite as 359 Or 168 (2016) 189

to bring a negligence action against a county for failing to

maintain its roads, in the absence of a statute authorizing

the action. See, e.g., Schroeder v. Multnomah County, 45 Or

92, 96, 76 P 772 (1904). Negligence claims against cities pre-

sented a more complex issue. This court explained that cit-

ies were created by special charters, which imposed a duty

on cities to maintain their streets in good repair. Rankin, 9

Or at 256-57. As a result, cities could be sued for negligently

failing to satisfy that duty, unless the legislature exempted

them from liability. Id.; see O’Harra v. The City of Portland,

3 Or 525, 526 (1870) (upholding provision in city charter

exempting city from tort liability); cf. Mattson v. Astoria, 39

Or 577, 65 P 1066 (1901) (citing O’Harra for that proposition

in the context of an Article I, section 10, case).

In Mattson, this court considered a statute that

sought to exempt both a city and its officials from liability

for negligently maintaining its streets. 39 Or at 578-79. The

court held that, although the legislature could exempt a city

from liability for breaching that duty, the remedy clause

prevented the legislature from exempting both the city and

its officials from all liability. 39 Or at 579-80. The court

reasoned:

“[The remedy clause] was intended to preserve the common-

law right of action for injury to person or property, and

while the legislature may change the remedy or the form

of procedure, attach conditions precedent to its exercise,

and perhaps abolish old and substitute new remedies, * * *

it cannot deny a remedy entirely.”

Id. at 580 (citations omitted); see Thomas M. Cooley, A

Treatise on the Constitutional Limitations 289, 361-62 (1st

ed 1868, reprinted 1972) (summarizing earlier cases).11

Over the next 40 years, this court considered a series

of cases brought by persons injured as a result of defects in

city streets. See Noonan, 161 Or at 223-35 (reviewing deci-

sions). It adhered to the rule that the legislature can immu-

nize a city from tort liability if the city officials or employees

remain liable, but it reaffirmed that the legislature cannot

11

The quoted paragraph from Mattson combines and repeats, almost verba-

tim, the cited parts of Cooley’s 1868 treatise, which summarized cases deciding

contract clause and due process claims.

190 Horton v. OHSU

eliminate all or practically all liability for breach of a city’s

duty by immunizing both the city and its employees. See id.

at 237-38; Pullen v. Eugene, 77 Or 320, 328, 146 P 822 (1915)

(upholding city charter provision providing a cause of action

against city officials when damages exceeded $100); Batdorff

v. Oregon City, 53 Or 402, 408-09, 100 P 937 (1909) (exon-

erating city from liability and permitting an action against

city officials for gross negligence “practically denies a rem-

edy to any person injured”). During that time, some judges

expressed the view that leaving an injured plaintiff with a

remedy only against a city employee was a poor substitute

for a remedy against the city. See Colby v. City of Portland, 85

Or 359, 374, 166 P 537 (1917).12 However, this court’s cases

adhered, with some backing and filling, to the principle that

the court first announced in Mattson—as long as legislation

left the injured person with a remedy against either the city

or a city employee, it did not violate Article I, section 10. See

Noonan, 161 Or at 2223-35 (discussing decisions).13

In Mattson and the cases following it, the legisla-

ture had not altered the duty imposed on cities and their

officials to maintain streets in good repair, but it had denied

plaintiffs injured by a breach of that duty any remedy. Those

cases recognized that a remedy against a city employee

could be substituted for a remedy against the city, but those

cases did not require this court to decide whether or on what

terms the legislature could alter a common-law duty. That

question began to arise in the second group of remedy clause

cases that this court decided, which found their genesis in

the opinion denying rehearing in Stewart v. Houk, 127 Or

589, 271 P 998, 272 P 893 (1928).

12

In Eastman, the federal district court had rejected an argument that the

plaintiff had an adequate remedy because he could sue the county employees for

negligence. The district court explained that pursuing a negligence claim against

a county employee was like “threshing empty straw.” Eastman, 32 F at 34. The

court reasoned: “If travelers and others who sustain injuries by reason of defec-

tive highways can have no remedy against any one except these officers person-

ally, they might as well have none.” Id. As noted above, Mattson and the cases

following it did not accept that reasoning.

13

In reviewing those decisions, the court observed in Noonan that the cities

could not and did not invoke the doctrine of sovereign immunity because the

task of maintaining city streets was regarded, perhaps illogically, as a corporate

rather than a governmental function. 161 Or at 221-22; see id. at 237 (describing

that function as ministerial rather than governmental).

Cite as 359 Or 168 (2016) 191

The statute at issue in Stewart paralleled, in many

respects, the statutes at issue in Mattson and its progeny.

Like the statute in Mattson, the statute in Stewart provided

that a guest injured while in a vehicle driven on Oregon pub-

lic highways “ ‘shall have no right of recovery against the

owner or driver of such motor vehicle.’ ” Id. at 591 (quoting

statute). The statute did not affect the owner or driver’s

duty to exercise due care, but it deprived an injured guest

of any remedy for a breach of that duty. Id. at 595. This

court accordingly concluded that the statute “withh[e]ld

jural significance from a breach of duty which previously

was regarded as a cause of action” in violation of the remedy

clause. Id.

The defendant in Stewart petitioned for rehearing,

arguing that the court’s decision was inconsistent with the

Connecticut Supreme Court’s decision in Silver v. Silver, 108

Conn 371, 143 A 240 (1928). This court denied rehearing

after explaining why the guest-passenger statute at issue

in Silver differed from Oregon’s guest-passenger statute.

This court noted that the Connecticut statute provided that

a host was not liable to a guest for injuries caused by ordi-

nary negligence but preserved liability in instances “where

the injury was inflicted intentionally, heedlessly or through

reckless disregard of the rights of others.” Id. at 597 (on

rehearing). The court explained that the Connecticut leg-

islature had sought “to fix the measure of care a host owed

to his guest.” Id. at 598. It viewed the Oregon statute, by

contrast, as not being an effort “to regulate the operation

of automobiles by prescribing the duty of host to guest,

but as one wherein this element of the situation remains

untouched, and the sole change effected is the denial of the

remedy to an injured guest.” Id. Having identified that dis-

tinction, the court denied the petition for rehearing.

After the court issued its decision in Stewart,

the Oregon legislature enacted a statute that tracked

Connecticut’s guest-passenger statute. The new statute pro-

vided that an owner or operator of a motor vehicle was liable

to a guest for injuries sustained in an accident if the accident

were intentional on the part of owner or operator or “ ‘caused

by [the owner or operator’s] gross negligence or intoxication

or reckless disregard of the rights of others.’ ” Perozzi, 149

192 Horton v. OHSU

Or at 331 (quoting Or Laws 1929, ch 401, § 1). In holding

that the new statute did not violate Article I, section 10, this

court noted the United States Supreme Court’s decision in

Silver upholding Connecticut’s statute against an equal pro-

tection challenge. Id. at 332-33. This court observed that, in

upholding the distinction that Connecticut had drawn, the

United States Supreme Court had relied on two state cases

holding that, as a matter of state common law, “ ‘a lower

standard of care should be exacted where the carriage in

any type of vehicle is gratuitous.’ ” Id. at 333 (quoting Silver

v. Silver, 280 US 117, 50 S Ct 57, 74 L Ed 221 (1929)).

This court looked to the state common-law decisions

cited in Silver in holding that Oregon’s new guest-passen-

ger statute did not violate Article I, section 10. Perozzi, 149

Or at 334-37. Specifically, this court relied on three state

court decisions that held, as a matter of common law, that

to “ ‘make out liability in case of a gratuitous undertaking

the plaintiff ought to prove a materially greater degree of

negligence than he has to prove where the defendant is to be

paid for doing the same thing.’ ” Id. at 334 (quoting Heiman

v. Kloizner, 139 Wash 655, 247 P 1034 (1926)); accord

Massaletti v. Fitzroy, 228 Mass 487, 118 NE 168 (1917); Epps

v. Parrish, 26 Ga App 399, 106 SE 297 (1921). In Massaletti,

for example, the Massachusetts Supreme Judicial Court

reasoned that a driver who gratuitously gave a guest a ride

owed the same common-law duty that a gratuitous bailee

would, with the result that both were liable only for gross

negligence or bad faith. See Massaletti, 228 Mass at 489 (cit-

ing West v. Poor, 196 Mass 183, 81 NE 960 (1907)).

To be sure, the common-law position that

Massachusetts, Washington, and Georgia adopted reflected

a minority view, and this court considered whether a legisla-

tive enactment based on a minority view of the common law

complied with Article I, section 10. In considering that ques-

tion, the court focused on cases from other state courts with

similar remedy clauses. For example, the court noted that

the Florida Supreme Court had held that its remedy clause

did not lock its legislature into a fixed version of the com-

mon law but left it free either to expand a plaintiff’s rem-

edies against a deceased tortfeasor or to uphold a statute

Cite as 359 Or 168 (2016) 193

permitting cattle to roam free, contrary to a landowner’s

common-law property rights. 149 Or at 343-44. Consistently

with the Florida decision, this court noted in Perozzi that

Article XVIII, section 7, of the Oregon Constitution expressly

recognized that the legislature may alter or repeal the com-

mon law and that Article I, section 10, lacked terms that

would demonstrate an intent to freeze in place the common

law as it existed in 1857. Id. at 346-47.

This court accordingly declined to tie the legisla-

ture to a conception of the common law that would prevent

it from amending the law to meet the “existing conditions

and circumstances” of a given time. Id. at 348. It reasoned

that, to hold otherwise, would fix into place doctrines such

as the fellow-servant doctrine, contributory negligence, and

assumption of risk. Id. As we read Perozzi, it held that, as a

matter of state constitutional law, Article I, section 10, does

not deny the legislature latitude to adjust the duties that

one person owes another, based on the extent of the change

and the reasons for the adjustment. Perozzi thus answered

the question that Mattson and the cases that followed it had

no occasion to decide—to what extent and on what grounds

may the legislature modify common-law duties.

Cases following Perozzi have interpreted it as stand-

ing for the proposition that Article I, section 10, does not

deny the legislature latitude to modify and sometimes elim-

inate common-law duties where changing conditions war-

rant it. See Noonan, 161 Or at 249 (“Article I, § 10, Oregon

Constitution, was not intended to give anyone a vested right

in the law either statutory or common; nor was it intended

to render the law static.”) Throughout the twentieth century,

our cases have adhered to that proposition, while recogniz-

ing that the remedy clause places a substantive limit on the

legislature. That is, within constitutional limits, the legisla-

ture has authority to alter a common-law duty or condition

the procedural means of recovering for a common-law injury.

For instance, in Josephs v. Burns & Bear, 260 Or 493, 491

P2d 203 (1971), this court upheld statutes of limitations on

causes of action as having “always been considered a proper

function of the legislatures * * * so long as it is done for the

purpose of protecting a recognized public interest.” Id. at

194 Horton v. OHSU

503. Similarly, in Sealey v. Hicks, 309 Or 387, 788 P2d 435,

cert den, 498 US 819 (1990), this court upheld a statute of

repose for products liability actions, reasoning that the “leg-

islature has the authority to determine what constitutes a

legally cognizable injury.” Id. at 394.

In Hale, Clarke, and Howell, this court addressed

a different question, which Smothers had noted but not

reached: On what terms may the legislature, consistently

with the remedy clause, alter a remedy for the breach of a

recognized duty? In Hale, the court summarized prior cases

in concluding that “it is enough [for the purposes of the rem-

edy clause] that the remedy is a substantial one.” 308 Or at

523. In upholding a $100,000 cap on more than $600,000

in damages, the court focused on what later cases have

referred to as a quid pro quo. Id. The court reasoned:

“The class of plaintiffs [who can seek a remedy under the

Tort Claims Act] has been widened by the legislature by

removing the requirement that an injured party show that

the municipal corporation’s activity that led to the injury

was a proprietary one. At the same time, however, a limit

has been placed on the size of the award that may be recov-

ered. A benefit has been conferred, but a counterbalancing

burden has been imposed. This may work to the disadvan-

tage of some, while it will work to the advantage of others.

But all who had a remedy continue to have one.”

Id. In holding that the Tort Claims Act limitation constitu-

tionally could be applied to the plaintiff in Hale, the court

compared that statute to the workers’ compensation act,

which expanded the class of plaintiffs eligible for a remedy

but limited the extent of the remedy available for individual

plaintiffs. Id. at 521-23.14

This court considered a similar issue in Clarke.

Clarke, however, differed from Hale in three respects. First,

in Clarke, the legislature had eliminated a cause of action

against state employees for injuries resulting from their

negligence and substituted a cause of action solely against

14

This court considered the constitutionality of an early version of the work-

ers’ compensation statute in Evanoff v. State Industrial Acc. Com., 78 Or 503, 154

P 106 (1915). As the court noted in Hale, Evanoff upheld the statute against an

Article I, section 10, challenge because it allowed workers to opt out of coverage.

See 308 Or at 522-23 (quoting law review article noting that proposition).

Cite as 359 Or 168 (2016) 195

the state with capped damages of $200,000. 343 Or at 608.

Second, the plaintiff in Clarke had sustained over $12 mil-

lion in economic damages, compared to the $600,000 in dam-

ages that the plaintiff in Hale had sustained. See id. at 586.

Finally, the court decided Clarke after it decided Smothers.

See id. at 593. Smothers had disavowed the reasoning in Hale,

332 Or at 118, and Clarke accordingly followed Smothers in

resolving the plaintiff’s Article I, section 10, challenge. See

Clarke, 343 Or at 591-93, 605-07 (discussing and following

Smothers). That is, Clarke focused solely on whether capped

damages of $200,000 was a “substantial” remedy in light of

the economic damages that the plaintiff had suffered. See

id. at 607 (framing the issue in light of Smothers). The court

held that it was not. Id. at 610; see id. at 611 (Balmer, J.,

concurring) (“The arbitrarily low cap on damages for medi-

cal malpractice claims against OHSU and its employees is a

problem that has long called for a legislative solution.”).

By contrast, the court held in Howell that capped

damages of $200,000 was a substantial remedy when the

plaintiff had sustained $507,500 in total damages. 353 Or

at 376. The court explained that the damage limitation “does

not leave plaintiff ‘wholly without a remedy,’ as was the case

for the parents of the plaintiff in Neher. And it represents a

far more substantial remedy than the paltry fraction that

remained after the imposition of the limitation in Clarke.”

Id.

Smothers characterized this court’s remedy clause

cases as consisting of two phases, one of which lived up to the

historical purposes of the remedy clause, the other of which

grossly failed to realize them. In the first phase, Smothers

explained, courts consistently reasoned that the purpose of

the remedy clause was to mandate that a remedy be available

to repair injuries recognized at common law to “absolute”

rights. Those cases included Mattson, Stewart, and others

holding that the complete elimination of all liability would

violate the remedy clause. Smothers explained that, in the

second phase, Perozzi and the cases that followed it strayed

from the remedy clause’s historical purposes. Smothers rea-

soned that “[u]ntil 1935, this court’s case law was consis-

tent with” the purpose of protecting “absolute common-law

196 Horton v. OHSU

rights.” Smothers, 332 Or at 118-19. In Perozzi, according

to Smothers, this court erroneously imported federal equal

protection analysis into Oregon’s remedy clause. Id. at 119.

It followed, Smothers concluded, that any case that relied on

Perozzi either directly or indirectly had erred, and Smothers

disavowed them.15

In reviewing our remedy clause decisions, we view

their development differently. Perozzi did not rely on federal

equal protection analysis as Smothers perceived. Rather, as

explained above, the reasoning in Perozzi consisted of an

extensive analysis of the Oregon Constitution, the text of

the remedy clause, the text of Article XVIII, section 7, and

common-law decisions from other states. Only in explaining

the development of guest-passenger statutes similar to the

one at issue in Perozzi did this court discuss Silver and, even

then, to recognize, as the common law decisions it cited had

done, that a state could find that a gratuitous host owed the

same degree of care to his or her passengers that a gratu-

itous bailee owed at common law. See Perozzi, 149 Or at 332-

35. Perozzi’s ground for decision was its analysis of Article I,

section 10, of the Oregon Constitution. See id. at 348-50. For

that reason, the cases relying on Perozzi were not sipping

from a poisoned wellspring. Rather, they were relying on a

case that took a considered view of the text, context, and

purposes of Oregon’s remedy clause.

As we view the two phases of our remedy clause

cases, the first phase dealt with statutes in which the legis-

lature had imposed a duty of care but eliminated any rem-

edy for a breach of that duty. As legislative enactments grew

more complex, the second phase of our remedy clause cases

focused on statutes that modified either a duty or a remedy,

but they did not retain a duty while eliminating any remedy

for its breach, as the earlier statutes had done. In consider-

ing those later statutes, our cases recognized that the leg-

islature was not precluded from altering the duty that one

person owes another or even eliminating common-law causes

of action and defenses, such as alienation of affections and

15

Smothers disavowed all or part of five cases on the ground that they relied

on Silver or on a case that itself relied on Silver. Those cases were Noonan,

Josephs, Holden, Sealey, and Hale. 332 Or at 118.

Cite as 359 Or 168 (2016) 197

contributory negligence, when the premises for recognizing

the cause of action or defense had changed. Another group

of our second-phase remedy clause cases recognized that the

legislature could modify remedies for a recognized duty as

long as the remedy that remained was substantial. Far from

reflecting an aberrant view of state constitutional law, as

Smothers concluded, the second phase of our remedy clause

cases considered differing statutory schemes and, in doing

so, complemented and refined the principles recognized in

Mattson and its progeny.

We accordingly disagree with Smothers that we

either can or should disregard Perozzi and the cases that

followed it. We also disagree with Smothers that the two

phases of our remedy clause cases are unalterably in con-

flict. Rather, the conflict that Smothers perceived appears

to have derived primarily from its conclusion that our early

remedy clause cases reflected its view of Article I, section 10.

That is, Smothers viewed our early remedy clause cases as

preventing the legislature from modifying Oregon common

law as it existed in 1857, and it concluded that our early

cases, viewed that way, were in conflict with the cases that

followed. As explained above, however, the difficulty with

Smothers’ conclusion lies in its premise. Our early remedy

clause cases looked to the common law as a guide, not as

a procrustean template. Moreover, those cases considered

statutes that either imposed or recognized a duty but denied

any remedy, while the cases that followed considered stat-

utes that altered the duty one person owes another or the

remedy for the breach of that duty, sometimes as part of a

quid pro quo. Properly viewed, the second phase of our rem-

edy clause cases complements the first.16

With our remedy clause cases (other than Smothers)

in mind, we return to defendant’s argument that we should

overrule those cases because Article I, section 10, is not

“a substantive guarantee of a remedy * * * [but] rather,

16

This is not to say that there are no stray threads in our remedy clause

cases. See Noonan, 161 Or at 242-43 (discussing some statements in remedy

clause opinions that were incorrect even while following the larger principles

recognized in those decisions). However, with the exception of Smothers, the

larger principles that underlie and inform our remedy clause cases can be read

consistently.

198 Horton v. OHSU

guarantees access to the courts [only] for such remedies as

the law may provide.” We begin, as usual, with the text of

the remedy clause and then turn to its history.

2.  Text

We discussed the text of the remedy clause earlier

and concluded that the text does not provide a clear answer

as to the clause’s meaning. As explained above, the text

could be merely a guarantee of equal access to the remedies

that the legislature has provided. The text, however, could

be as much about the availability of a remedy for injuries to

person, property, or reputation as it is about the due course

of the law by which the remedy will be administered. We

accordingly look to the history of the remedy clause for guid-

ance in determining whether our remedy clause cases are

clearly incorrect. We consider the English sources for the

remedy clause, the early American charters and constitu-

tions, the early and mid-nineteenth century cases from other

states interpreting their remedy clauses, and the enactment

history of the Indiana and Oregon remedy clauses.

3.  English sources of the remedy clause

Oregon’s remedy clause stems from Lord Coke’s

interpretation of Chapter 29 of the 1225 version of Magna

Carta, which combined Chapters 39 and 40 of the 1215 ver-

sion of Magna Carta. Linde, Without “Due Process,” 49 Or L

Rev at 138. Chapter 29 of Magna Carta provides:

“No freeman shall be taken or imprisoned, or be disseised

of his freehold, or liberties, or free customs, or be outlawed,

or exiled, or any other wise destroyed; nor will we not pass

upon him, nor condemn him, but by lawful judgment of his

peers, or by the law of the land. We will sell to no man, we

will not deny or defer to any man either justice or right.”

Edward Coke, The Second Part of the Institutes of the Laws of

England 45 (1797 ed) (setting out Chapter 29). Coke explained

that this “Chapter containeth nine severall branches.” Id. at

46. He identified the “sense” or nature of each branch, and

then explained how “the same hath been declared and inter-

preted. 1. By authority of Parliament. 2. By our books. 3. By

Precedent.” Id. As Coke’s stated methodology makes clear, he

viewed both the acts of parliament and the common law as

Cite as 359 Or 168 (2016) 199

implementing the larger principles stated in Magna Carta.

That is, Coke viewed the common law and the acts of par-

liament as a continuation of the principles stated in Magna

Carta that checked the king’s arbitrary exercise of power.

The first six branches of Chapter 29 that Coke iden-

tified derived from Chapter 39 of the 1215 version of Magna

Carta and limited the king’s authority to deprive a person

of his land, liberty, livelihood, and benefit of the law except

“by the law of the land,” which Coke explained meant “(that

is to speak it once for all) by the due course, and processe

of law.” Id. After explaining how the courts and parliament

had implemented the first six branches of Chapter 29, Coke

turned to the remaining three branches, which derived from

Chapter 40 of the 1215 version of Magna Carta. He listed

the “sense” of those three branches as follows:

“7.  We shall sell to no man justice or right.

“8.  We shall deny to no man justice or right.

“9.  We shall defer to no man justice or right.”

Id. In discussing the last three branches of Chapter 29, Coke

analyzed the seventh branch separately from the eighth and

ninth branches, which he grouped together. See id. at 55-56

(analyzing the seventh branch); id. at 56 (analyzing the

eighth and ninth branches).

Coke explained that the eighth and ninth branches

focused on protecting the common law courts from royal

interference. He stated that those branches “have been

excellently expounded by latter acts of parliament, that by

no meanes common right, or common law be disturbed, or

delayed” by the king’s exercise of the “great seale, or privie

seale, order, writ, letters, message, or commandement what-

soever.” Id. at 56. Coke recognized that the king may stay

suits in his own courts, but he viewed the king’s efforts to

stay or interfere with the common law courts as contrary to

the acts of parliament and Magna Carta. Id.

The seventh branch reflects a separate guarantee.

Because Oregon’s remedy clause derives from Coke’s discus-

sion of that branch, we quote his discussion in full:

200 Horton v. OHSU

“Nulli vendemus,[17] &c.

“This is spoken in the person of the King, who in judg-

ment of Law, in all his Courts of Justice is present, and

repeating these words, nulli vendemus, &c.

“And therefore, every subject of this realme, for injury

done to him in bonis, terres, vel persona,[18] by any other sub-

ject, be he ecclesiasticall, or temporall, free, or bond, man,

or woman, old, or young, or be he outlawed, excommuni-

cated, or any other without exception, may take his remedy

by the course of the law, and have justice, and right for the

injury done to him, freely without sale, fully without any

deniall, and speedily without delay.

“Hereby it appeareth, that justice must have three qual-

ities, it must be libera, quia nihil iniquius venali justitia;

plena, quia justititia non debet claudicare; et celeris, quia

dilatio et quaedam negatio;[19] and then it is both Justice

and Right.”

Id. at 55-56.

Three propositions follow from Coke’s text. First,

the second paragraph quoted above focuses on ensuring that

“every subject” has access to a remedy, without regard to the

subject’s age, status, or gender. The emphasis is on equal

access to the courts. The second proposition is consistent

with the first. After stating in the first paragraph that the

king is present in the courts and promising that he will sell

no man justice and right, Coke begins the next paragraph

with the phrase “And therefore.” The phrase “And therefore”

implies that the passage that follows flows from the king’s

promise that justice will not be limited only to those per-

sons who can afford it. Put differently, because a person’s

access to justice will not turn on the person’s ability to buy a

more expeditious or effective writ, every person “may take”

a remedy for injuries without regard to wealth, age, status,

or gender.

17

The phrase means “We will sell to no man.”

18

The phrase means “in goods, in lands, or in person.”

19

The clauses mean “Free, because nothing is more iniquitous than saleable

justice; full, because justice ought not to limp; and speedy, because delay is in

effect a denial.”

Cite as 359 Or 168 (2016) 201

Coke’s text also suggests a third proposition—that

the promise of a remedy for injuries to specific interests is not

limited to equal access. The text recognizes that, in gaining

access to the courts and the common law, every man shall

“have justice, and right for the injury done to him.” That is,

Coke assumed that access to the common-law courts and

the common law carried with it access to justice and right

for injuries. Coke had little occasion to consider the extent

to which parliament could alter the common law or the lim-

its on its authority to do so. For the most part, he viewed

the acts of parliament as supplementing and confirming

the common law. See Nathan S. Chapman & Michael W.

McConnell, Due Process as Separation of Powers, 121 Yale

LJ 1672, 1685 (2012) (“The common law, [Coke] maintained,

had developed organically through the adjudication of the

courts since time immemorial, as well as through certain

declaratory acts of Parliament, which themselves were

believed to articulate principles with an ancient origin.”).

It is thus difficult to find in Coke an answer to the ques-

tion whether a promise of equal access to the common-law

courts imposed a substantive limit on parliament’s ability

to depart from the common law. That question was largely

foreign to Coke’s view.20

Sir William Blackstone, as other commentators

have noted, largely agreed with Coke’s interpretation of

Chapter 40 of Magna Carta. See Thomas R. Phillips, The

Constitutional Right to a Remedy, 78 NYU L Rev 1309,

1322 (2003) (describing Blackstone’s approach). In his

Commentaries on the Laws of England, Blackstone para-

phrased Coke’s explanation of that chapter while adding

his own gloss. William Blackstone, 1 Commentaries on the

Laws of England 137-38 (1st ed 1765). Blackstone viewed

Chapter 40 as directed both at the king and judges—

specifically, as telling the king that he cannot issue com-

mands or letters that override common-law procedures and

20

In discussing Chapter 39 of Magna Carta, Coke explained that, even

though parliament had given the king more leeway than the common law had pro-

vided to bring prosecutions, parliament had corrected its error when the harmful

effect of its procedure became apparent. Coke, Second Part of the Institutes at 51.

He thus recognized that parliament might depart from the common law and the

principles expressed in Magna Carta but believed that parliament eventually

would correct its error. See id.

202 Horton v. OHSU

telling the courts that if they receive such things they should

disregard them:

“[I]t is enacted, that no commands or letters shall be sent

under the great seal, or the little seal, the signet, or privy

seal, in disturbance of the law; or to disturb or delay com-

mon right: and, though such commandments should come,

the judges shall not cease to do right.”

Id. at 138. Blackstone agreed with Coke that the general

purpose of Chapter 40 was to prevent royal interference

with the common-law courts.

Blackstone’s Commentaries also shed light on par-

liament’s ability to alter the common law. In commenting on

Coke’s explication of Chapter 40—that “every Subject * * *

for injury done to him in bonis, in terres, vel persona * * *

may take his remedy by the course of the Law,” Blackstone

explained:

“It were endless to enumerate all the affirmative acts of

parliament wherein justice is directed to be done according

to the law of the land: and what that law is, every subject

knows; or may know if he pleases; for it depends not upon

the arbitrary will of any judge; but is permanent, fixed and

unchangeable, unless by authority of parliament.”

Id. at 137 (second emphasis added). Blackstone made the

point clearer in the next paragraph. He explained that “[n]

ot only the substantial part, or judicial decisions, of the law,

but also the formal part, or method of proceeding, cannot

be altered but by parliament.” Id. at 138 (emphasis added).

Blackstone’s gloss on Coke thus explicitly recognized parlia-

ment’s authority to alter the “substantial part, or judicial

decisions, of the law.”

In analyzing the effect of Blackstone’s Commentaries

on the meaning of Oregon’s remedy clause, Smothers did

not discuss Blackstone’s analysis of Coke’s commentary on

Chapter 40. See 332 Or at 98-99. Smothers focused instead

on a distinction that Blackstone drew between absolute and

relative rights. See id. To the extent that Smothers viewed

Blackstone’s reference to absolute rights as simply identify-

ing the three rights (property, person, and reputation) that

Cite as 359 Or 168 (2016) 203

the remedy clause protects, Smothers’ discussion of absolute

rights adds little to the analysis. The text of the clause speci-

fies the types of rights to which it applies. See Juarez, 341 Or

at 173 (explaining that loss of deceased’s society, guidance,

and emotional support did not constitute injury to person,

property, or reputation within the meaning of the remedy

clause).

To the extent that Smothers found in the word

“absolute” the idea that Blackstone viewed absolute rights

as immune from alteration, Smothers appears to have

misperceived what Blackstone said. Blackstone used the

phrase “absolute rights” to refer to a person’s rights in

a state of nature. Blackstone, 1 Commentaries at 121. He

explained, however, that absolute rights are not absolute.

Rather, “every man, when he enters into society, gives up a

part of his natural liberty, as the price of so valuable a pur-

chase; and, in consideration of receiving the advantages of

mutual commerce, obliges himself to conform to those laws,

which the community has thought proper to establish.” Id.

Blackstone explained that laws could limit a person’s natu-

ral rights if those laws were “necessary and expedient for

the general advantage of the publick” while also recognizing

that “wanton and causeless restraint of the will of the sub-

ject, whether practiced by a monarch, a nobility, or a popular

assembly, is a degree of tyranny.” Id. at 121-22.

Having established that general framework for

legislation, Blackstone explored the contours of what he

described as “the three great and primary rights, of personal

security, personal liberty, and private property.” Id. at 136.

He then identified five “other auxiliary subordinate rights

of the subject, which serve principally as barriers to protect

and maintain” those “three great and primary rights.” Id. at

136. Those were (1) the “constitution, powers, and privileges

of parliament”; (2) the limitation of the king’s prerogative;

(3) the right of “every Englishman * * * of applying to the

courts of justice for redress of injuries”; (4) the right to peti-

tion the king or either house of parliament for the redress of

“any uncommon injury”; and (5) the right “of having arms

for their defence, suitable to their condition and degree, and

such as are allowed by law.” Id. at 136-39.

204 Horton v. OHSU

In describing the third subordinate right, Blackstone

paraphrased Coke’s discussion of Chapter 40 of Magna

Carta and, as discussed above, expressly recognized parlia-

ment’s authority to alter “[n]ot only the substantial part,

or judicial decisions, of the law, but also the formal part,

or method of proceeding.” Id. at 138. Although Blackstone

recognized that parliament had authority to alter the com-

mon law, he did not examine the limits of that authority.

Like Coke, he appears to have assumed that the English

government was framed in such a way that, in altering the

common law, parliament would adhere to the natural law

principles that informed its ability to add to and supplement

the common law. See id. at 122 (explaining that legislation

that advances a public purpose, “when prudently framed,

[is] by no means subversive but rather introductive of lib-

erty”). Far from stating that the legislature lacks author-

ity to alter the common law, Blackstone’s discussion of both

Coke and absolute rights demonstrates that he viewed

the legislature as having greater authority to adjust abso-

lute rights than Smothers recognized. As Justice Landau

explained in his concurring opinion in Klutschkowski,

“[t]o say * * * that Blackstone asserted a common-law right

to a remedy superior to legislative authority is quite at odds

with what Blackstone actually said.” 354 Or at 184 (Landau,

J., concurring).

Having considered Coke’s Institutes and Blackstone’s

Commentaries, we cannot say that they demonstrate conclu-

sively that our remedy clause cases (with the exception of

Smothers) were clearly wrong. It is true that Coke’s explica-

tion of Chapter 40 of Magna Carta focused on access to the

courts, as did Blackstone’s gloss on Coke. However, for Coke

and Blackstone, access to the courts carried with it access to

a set of common-law remedies for injuries to person, liberty,

and property. Both Coke and Blackstone assumed, in differ-

ing degrees, access to a “permanent, fixed, and unchange-

able” body of common law that followed from access to the

courts. Blackstone, 1 Commentaries at 137. Blackstone, more

than Coke, recognized parliament’s authority to vary to the

common law as far as was “necessary and expedient for the

general advantage of the publick.” Id. at 121. Blackstone

is thus consistent with our remedy clause cases that have

Cite as 359 Or 168 (2016) 205

recognized the legislature’s authority to alter the common

law.

We recognize that Coke and Blackstone were con-

cerned with the king’s interference with access to the com-

mon law courts and the protections those courts provided. We

also recognize that both writers typically viewed parliament

as confirming or supplementing the common law. However,

in Dr. Bonham’s Case, 77 Eng Rep 646, 652 (CP 1610), Coke

explained in dicta that “[W]hen an Act of Parliament is

against common right and reason, or repugnant, or impos-

sible to be performed, the common law will controul it, and

adjudge such Act to be void.” Precisely what Coke meant

by that statement has been the subject of scholarly debate.

See Chapman & McConnell, Due Process as Separation of

Powers, 121 Yale LJ at 1689-92 (summarizing debate). Some

scholars view that statement as a recognition that the com-

mon law would trump conflicting statutes. Id. Others view

it as giving substantial leeway to courts to interpret stat-

utes so that they conform to common law. Id. Chapman and

McConnell conclude that the latter understanding is the

better one. Id. Even if that is the better understanding, the

ambiguity inherent in Coke’s statement makes it more diffi-

cult to say that this court’s decisions finding in the remedy

clause a substantive limit on legislative authority are clearly

at odds with the source of our remedy clause.

4.  American authorities

Early American charters or legal compacts con-

tained provisions with striking resemblances to modern

remedy clauses. For instance, the “Laws Agreed Upon in

England” written by William Penn and adopted in 1682 pro-

vided that “all courts shall be open, and justice shall neither

be sold, denied nor delayed.” See William Penn, “Laws Agreed

Upon in England,” in 1 The Federal and State Constitutions,

Colonial Charters, and other Organic Laws of the States,

Territories, and Colonies 3060 (Francis N. Thorpe ed., U.S.

Gov’t Printing Office 1909). Similar provisions appeared

in Chapter XXIII of “The Charter or Fundamental Laws,

of West New Jersey, Agreed Upon – 1676” and Chapter

XIX of “The Fundamental Constitutions for the Province

of East New Jersey in America, Anno Domini 1683.” See 5

206 Horton v. OHSU

The Federal and State Constitutions, Colonial Charters, and

other Organic Laws of the States, Territories, and Colonies at

2551, 2580.

The clauses found in those early charters may have

been responding to the same royal interference with access

to the courts that afflicted sixteenth and seventeenth cen-

tury English courts. However, it is difficult to draw much

significance from the inclusion of those clauses in early

American charters and compacts. Not every charter or com-

pact contained a provision that resembled what we know

as a remedy or open-courts clause, and those charters that

did contain one did not necessarily emphasize the same con-

cepts that Coke’s interpretation emphasized. Additionally,

no reported contemporaneous case reveals the problems

those clauses were intended to address. See Hoffman,

Questions Before Answers, 32 Rutgers LJ at 1027-29.

Finally, the American founders found inspiration in more

than just the writings of Coke or Blackstone. See James R.

Stoner, Jr., Common Law and Liberal Theory: Coke, Hobbes,

and the Origins of American Constitutionalism 137-61 (1992)

(describing the influence of Locke and Montesquieu). For

those reasons, it is difficult to tell what meaning the remedy

clause would have had to an early American audience.

What can be said more confidently is that, over a

century later, Blackstone and Coke’s ideas resonated with

early American thinkers. In the mid-eighteenth century,

American colonists grew increasingly disgruntled about

the dependence of local judges and magistrates on the

British crown. See John Dickinson, Letter IX, 1768, in 1 The

Political Writings of John Dickinson 228 (1801). Dickinson’s

main concern was that local judges would depend too much

on the views and prerogative of the British crown if the

crown paid their salaries. Id. at 228-29. Unlike in Britain,

where the 1701 Act of Settlement ensured that judges no

longer depended on the crown for their salaries, the Act of

Settlement did not apply in America, raising the same anx-

iety about arbitrary decision-making based on favoritism or

royal willfulness that had worried Coke in seventeenth-cen-

tury England. Jonathan M. Hoffman, By the Course of

the Law: The Origins of the Open Courts Clause of State

Constitutions, 74 Or L Rev 1279, 1300 (1995).

Cite as 359 Or 168 (2016) 207

The concern about corruption through the pay-

ment of salaries gave way to larger concerns about arbi-

trary, unreasonable interference into colonial courts by the

British parliament. The Stamp Act in 1765, for instance,

required that every official document, including legal docu-

ments, have on it an official stamp, or otherwise the courts

would be closed to claimants. Edward S. Morgan & Helen M.

Morgan, The Stamp Act Crisis: Prologue to Revolution 120,

130-31 (1953). In response, revolutionary leaders petitioned

to reopen the courts.21

Eventually, as the Revolutionary War started,

the concern about an independent judiciary in the form of

open courts available to all litigants took root in early state

constitutions. The 1776 Declaration of Rights in Delaware

provided:

“That every Freeman for every Injury done him in his

Goods, Lands or Person, by any other Person, ought to have

Remedy by the Course of the Law of the Land, and ought

to have Justice and Right for the Injury done to him freely

without Sale, fully without any Denial, and speedily with-

out Delay, according to the Law of the Land.”

A Declaration of Rights and Fundamental Rules of the

Delaware State, in 2 Sources and Documents of United

States Constitutions 197, 198 (William F. Swindler ed.,

1973). By 1787, Maryland, Massachusetts, New Hampshire,

and North Carolina had adopted similar provisions in their

state constitutions, and by 1857, a remedy clause appeared

in over 30 state constitutions.

Between the end of the War for Independence

and the adoption of the Constitution of the United States,

distrust of state legislatures grew. Gordon S. Wood, The

Creation of the American  Republic 1776-1787, 403-29

(1969). Problems included “[t]he confiscation of property,

the paper money schemes, the tender laws, and the various

21

For instance, John Adams stepped forward to plead that the courts reopen,

explaining, “[i]nnumerable are the Calamities which flow from an Interruption of

Justice. Necessity requires that the Doors of Justice should ever be open to hear

the Complaints of the Injured and Oppressed.” See “Argument before Governor

Bernard and the Council in Favor of Opening the Courts, Dec 20, 1765,” in 1

Papers of John Adams, September 1755 - October 1773 (Robert J. Taylor ed., 1977).

208 Horton v. OHSU

devices suspending the ordinary means for the recovery of

debts.” Id. at 404. It is difficult to tell, however, whether the

states that adopted remedy clauses adopted them because of

a concern about legislative overreaching, primarily for two

reasons. The earliest remedy clauses predated the period

during which legislatures were most abusive. See Hoffman,

Questions Before Answers, 32 Rutgers LJ at 1038. Moreover,

the sources describing popular distrust of the legislatures do

not describe, much more mention, state remedy clauses as a

potential solution. See Wood, The Creation of the American

Republic at 430-67. The circumstances surrounding the

adoption of those state remedy clauses do not suggest that

they were intended to limit legislative authority. However,

the early and mid-nineteenth century cases interpreting

those clauses point in a different direction.

5.  Early and mid-nineteenth century cases

The early and mid-nineteenth century cases, with

a fair amount of uniformity, interpreted their state rem-

edy clauses as placing some substantive limit on legislative

action. The cases are not uniform, however, in identifying

the extent to which remedy clauses limit legislative choices.

The earliest case to interpret a remedy clause provision was

Stowell v. Flagg, 11 Mass 364 (1814).22 In Stowell, the issue

was whether a landowner could bring a common-law action

for trespass on the case against a mill owner for causing

water to periodically flow over his land when a statute pro-

vided a more limited remedy.23 The Supreme Judicial Court

initially concluded that the legislature had intended to sub-

stitute the statutory for the common-law remedy to prevent

“burden[ing] the owner of a mill with continual lawsuits and

expenses.” Id. at 366. In response to the argument that dis-

placing the common-law action violated that state’s remedy

22

At the time, the Massachusetts Constitution provided: “Every subject of

the commonwealth ought to find a certain remedy, by having recourse to the

laws, for all injuries or wrongs which he may receive in his person, property, or

character.” Mass Const, Pt 1, Art XI.

23

Among other things, the statute at issue in Stowell “cut off the traditional

action for trespass to land, in which a plaintiff was not required to prove actual

injury in order to recover.” Horwitz, The Transformation of American Law at 48

(footnote omitted). Moreover, the act prevented the landowner from seeking to

enjoin the nuisance and self-help, both of which remedies would have been avail-

able at common law. Id.

Cite as 359 Or 168 (2016) 209

clause, the Supreme Judicial Court held that the legislature

has “a right to substitute one process for another; as for

instance, they may declare that, for an assault and battery,

an action of the case shall be brought, instead of an action of

trespass; or that the process shall be by complaint, and not

by writ.” Id. at 365-66.

Although the Massachusetts Supreme Judicial

Court recognized in Stowell that the remedy clause did

not prohibit a legislature from substituting one remedy for

another, it recognized, in a related context, that the com-

plete denial of a remedy could violate a party’s rights. Call

v. Hagger, 8 Mass 423, 430 (1812) (explaining that complete

denial of a remedy could impair the obligations of contract

in violation of the federal contract clause). In making that

observation, the Supreme Judicial Court of Massachusetts

contrasted a complete denial of a remedy with a “limitation

of suits at law, [which] when enacted with a due discretion,

and a reasonable time allowed for the commencement of

suits on existing demands, are wholesome and useful regu-

lations.” Id. The court thus recognized that the reasonable-

ness of the legislature’s limitation of a party’s remedy could

affect its constitutionality.

The Maine Supreme Court reached a similar con-

clusion under its state remedy clause in Gooch v. Stephenson,

13 Me 371 (1836). At common law, a property owner could

bring a trespass action if another person’s cattle strayed

onto his or her property. Id. at 375. Initially, the Maine leg-

islature eliminated a trespass action if cattle were on the

highway and the property owner’s fence was not sufficient

to keep them out. Id. Later, the legislature extended the law

to apply to cattle that strayed from adjoining lands onto a

neighbor’s property. Under the statute, a property owner

who failed to maintain a “sufficient” fence could not bring a

trespass action if the cattle strayed onto his or her land but

could bring a trespass action if the owner had constructed

a sufficient fence and the cattle broke through. Id. The stat-

utes departed from the common law by placing the burden

on the property owner to take reasonable steps to keep cat-

tle out of his or her property as a condition of maintaining a

trespass action.

210 Horton v. OHSU

In holding that the legislature could constitution-

ally alter the common law, the Maine Supreme Judicial

Court explained:

“It was for the legislature to determine what protection

should be thrown around this species of property; what

vigilance and what safeguards should be required at the

hands of the owner; and where he might invoke the aid of

courts of justice. They have no power to take away vested

rights; but they may regulate their enjoyment. Lands in

this country cannot profitably be cultivated, if at all, with-

out good and sufficient fences. To encourage their erection,

it is undoubtedly competent for the legislature to give to

the owners of lands thus secured, additional remedies and

immunities.”

Id. at 376-77.24 Stowell and Gooch sound two themes that

are fairly consistent in mid-nineteenth century cases. First,

legislatures may not enact laws that apply retroactively, a

concept expressed in the phrase “vested rights.” Second, leg-

islatures possess authority to make reasonable adjustments

in common-law rights, either by substituting one remedy for

another or by altering the terms on which a common-law

cause of action may be brought. That is true even when the

legislature limits the common-law property rights and rem-

edies that a landowner otherwise would have enjoyed.

Some courts interpreted their remedy clauses as

checks on arbitrary interference into court procedures. As

the Pennsylvania Supreme Court explained, the remedy

clause was intended to prohibit “legislative and executive

interference” with “judicial proceedings,” just as Magna

Carta prevented such interference by royal officials or mag-

istrates. Menges v. Dentler, 33 Pa 495, 498 (1859); see also

Sharpless v. Mayor of Philadelphia, 21 Pa 147, 166 (1853) (not-

ing that state remedy clause was “clearly intended to insure

the constant and regular administration of justice between

man and man”). Often, that consideration was reflected in

24

Then, as now, the Maine Constitution provided:

“Every person, for an injury done him in his person, reputation, property,

or immunities, shall have remedy by due course of law; and right and justice

shall be administered freely and without sale, completely and without denial,

promptly and without delay.”

Me Const, Art I, § 19 (1820).

Cite as 359 Or 168 (2016) 211

cases holding that statutory changes could not be applied

retroactively to “vested rights.” See, e.g., Kay v. Pennsylvania

R.R. Co., 65 Pa 269, 277 (1870) (“The law of the case at the

time when it became complete is an inherent element in it,

and if changed or annulled the right is annulled, justice is

denied, and the due course of law violated.”); Townsend v.

Townsend, 7 Tenn 1, 15 (1821) (invalidating statute that sus-

pended right to execute on contract judgments “where the

law, operating upon the contract when first made, held out to

the creditor the promise of immediate execution after judg-

ment”); Fisher’s Negroes v. Dabbs, 14 Tenn 119, 136 (1834)

(invalidating statute that required court to dismiss pending

case from its docket).

Some mid-nineteenth century cases assumed that

remedy clauses would prevent the total elimination of a

common-law tort remedy. However, most of those cases

used the remedy clause as a ground for interpreting stat-

utes narrowly to avoid a construction that would deny a

plaintiff a common-law remedy for an injury. For example,

in Schuylkill Navigation Co. v. Loose, 19 Pa 15 (1852), a

statute provided for compensation when a canal company’s

dam caused another person’s land to be flooded. Id. at 16.

When a company’s embankment (but not its dam) caused

the plaintiff’s land to flood, the company defended against

the plaintiff’s damages action on the ground that the statute

displaced the common law and authorized a remedy only for

flooding caused by the construction of a dam. After quoting

Pennsylvania’s remedy clause, the court concluded that the

statutory remedy did not displace the plaintiff’s common-

law remedies. The court explained:

“It is impossible, in the face of principles of justice so clearly

and solemnly announced [in that state’s remedy clause], to

suppose that the Legislature, when providing for a remedy

for an acknowledged injury, mean[t] to take it away unless

the injury arise in one specified form.”

Id. at 18.

Other courts similarly looked to their remedy

clauses in limiting, by means of interpretation, the reach

of legislative enactments. In Thornton v. Turner, 11 Minn

336 (1866), a statute provided that an “ ‘action for damages,

212 Horton v. OHSU

occasioned by the erection and maintenance of a milldam,’ ”

must brought within “ ‘two years after the erection of such

dam.’ ” Id. at 339 (quoting statute). The court observed

that, if a dam were erected but not used for more than two

years, the statute would prohibit a landowner whose land

was flooded from recovering his or her damages. Id. at

339-40. Reasoning that such a result would be contrary to

Minnesota’s remedy clause, the court held that the two-year

limitations period would run not from the date of the “erec-

tion of such dam” but from the date on which the erection of

the dam caused water to flood the plaintiff’s land. Id. at 340;

accord Hotchkiss v. Porter, 30 Conn 414, 421 (1862) (holding

that statute did not cause constitutional difficulties because

the statute, properly interpreted, did not shift burden to

prove malice in libel cases to recover actual damages).

Finally, some courts relied on their remedy clauses

to invalidate statutes imposing a burden on litigants. Riggs,

Peabody & Co. v. Martin, 5 Ark 506, 509 (1844) (striking

down statute that required parties to swear in open court

that estate owed them money, permitting claimants to sub-

mit affidavits in lieu of appearing personally). See also Weller

v. City of St. Paul, 5 Minn 95, 101 (1860) (requiring payment

of all unpaid property taxes as condition of bringing suit to

set aside assessment violated state remedy clause); Wilson v.

McKenna, 52 Ill 43, 49 (1869) (same).25

Those early and mid-nineteenth-century cases

reflect a diverse understanding of state remedy clauses. At

least two common themes can be identified, however. First,

most early and mid-nineteenth century cases started from

the proposition that state remedy clauses limit legislative as

25

At the other extreme, some jurisdictions viewed the remedy clause as

directed solely at the judiciary, having no bearing on legislation. In Barkley v.

Glover, 61 Ky 44 (1862), for instance, a case about a statute forbidding the issu-

ance of judgments for debts arising within a certain period, the court expressly

rejected the claim that the remedy clause applied to the legislature:

“The doctrine that the [remedy clause] applies alike to the legislative and

judicial branches of government is, in our judgment, directly opposed to the

meaning and language of the section. This, we think, is rendered perfectly

obvious by reading it. The courts form its sole subject matter, and every part

and parcel of the section relates directly to some duty of that branch of the

government.”

Id. at 45-46.

Cite as 359 Or 168 (2016) 213

well as executive acts. With the exception of the Kentucky

case noted in the above footnote, the cases recognized that

legislative interference with the courts and legislative action

could violate a litigant’s constitutionally protected right to a

remedy. That was so even though the state remedy clauses

found their source in Coke and Blackstone’s concern about

executive interference with the courts, even though there is

little enactment history to suggest that states adopted rem-

edy clauses in response to legislative overreaching, and even

though the state cases do not reflect agreement on the extent

to which state remedy clauses limit legislative authority.

Second, and consistently with our initial conclusion

regarding Smothers, we can find little evidence that the

cases viewed remedy clauses as locking common-law rights

in place. Rather, they reflected the proposition that legisla-

tures may adjust the parties’ common-law rights and rem-

edies as long as the legislation did not apply retroactively

and thus interfere with a party’s vested rights. They also

recognized that the legislature may substitute one remedy

for another, even though the new remedy effectively lim-

ited common-law rights. And they were consistent with the

generally accepted nineteenth century proposition that,

although the legislature could substitute one remedy for

another, it could not deny a remedy completely. Finally, some

mid-nineteenth century cases relied on their states’ remedy

clauses to interpret statutes to avoid denying a party any

remedy for an injury to property, person, or reputation.

The mid-nineteenth century cases that are contem-

poraneous with the adoption of Oregon’s constitution are

consistent with our remedy clause cases, with the exception

of Smothers. Some of the cases from other states assume,

as Mattson and its progeny held, that recognizing a duty

while denying a remedy entirely would raise constitutional

problems. Thornton, 11 Minn at 340; see Call, 8 Mass at 430

(contract clause). Other cases recognize, however, as Perrozi

and later Oregon cases have, that common law remedies are

not unalterable. Stowell, 11 Mass at 365-66. Rather, the leg-

islature may adjust common law causes of action and sub-

stitute one remedy for another. Id. Perhaps our early cases

interpreted Oregon’s remedy clause more robustly than other

courts did. However, there is sufficient diversity among the

214 Horton v. OHSU

remedy clause decisions from other states that we find it dif-

ficult to say that, with the exception of Smothers, our cases

interpreting Oregon’s remedy clause were clearly incorrect.

6.  Later nineteenth-century damage cap cases

Towards the end of the nineteenth century, courts

considered the kind of remedial limitations at issue in this

case. The earliest cases came from Pennsylvania and were

issued at least a decade after Oregon adopted Article I, sec-

tion 10. See Kay, 65 Pa at 269. In Kay, the Pennsylvania

Supreme Court held that a damages cap could not be applied

to an injury that had occurred before the legislature enacted

the cap. See id. at 277. The court explained that “a right to

recover full compensation to the extent of the damage suf-

fered vested in the plaintiff” when the injury occurred and

that the legislature could not retroactively alter that vested

right. Id. The court expressly declined to address the con-

stitutionality of the law imposing a cap on damages “[a]s to

cases happening after the passage of the law.” Id.

In 1874, the people of Pennsylvania amended

their constitution by adding a new section that expressly

prohibited limitations on damages. See Pa Const, Art III,

§ 21 (providing that “[n]o act of the general assembly shall

limit the amount to be recovered for injuries resulting in

death, or for injuries to persons or property”). After that, the

Pennsylvania Supreme Court struck down a statute limiting

the maximum amount of damages an injured plaintiff could

recover against railroad companies. Cent. Ry. of N.J. v. Cook,

1 WNC 319 (Pa 1875). The opinion was per curiam, and it

is not possible to tell from either the supreme court or the

trial court’s opinions the basis on which the Pennsylvania

Supreme Court concluded that “the learned Judge below did

not err in holding that the plaintiff could recover more than

[the capped damages].” Id. The court could have relied on

the remedy clause or on the 1874 constitutional amendment

prohibiting any limit on the amount that could be recovered

for injuries to persons. See Phillips, Constitutional Right to

a Remedy, 78 NYU L Rev at 1329 (noting that ambiguity).

Five years later, in Thirteenth and Fifteenth

Streets Passenger Ry. Co. v. Boudrou, 92 Pa 475 (1880),

the Pennsylvania Supreme Court revisited the issue. In

Cite as 359 Or 168 (2016) 215

reaffirming that a damages cap violated the Pennsylvania

Constitution, the court appears to have relied “on the right

to remedy by due course of law.” Id. at 482. However, the

decision also can be read to rely on both the remedy clause

and the later damage-limitation clause. See id. (“The peo-

ple have withheld power from the legislature and the courts

to deprive them of that remedy, or to circumscribe it so

that a jury can only give a pitiful fraction of the damage

sustained.”).

The 1874 amendment to Pennsylvania’s constitu-

tion and the decisions in Cook and Boudrou can be read

more than one way. On the one hand, they suggest that

ideas about a plaintiff’s right to a remedy were beginning

to evolve in the later part of the nineteenth century. On the

other, they could signal that the remedy clause, standing

alone, was not viewed as sufficient protection against dam-

age caps and that additional constitutional limitations on

legislative authority were necessary. Read either way, those

events occurred after Oregon’s framers drafted Article I,

section 10. No early Oregon case cited Cook or Boudrou, and

the influence of those Pennsylvania cases outside of that

state is not clear. While those cases may be helpful in illu-

minating the issues that later arose as legislatures began to

limit remedies, they are less significant in determining the

purpose and meaning of Oregon’s remedy clause.

7.  Indiana and Oregon Constitutional Conventions

The other primary sources shedding light on

the meaning of our remedy clause are the 1851 Indiana

Constitutional Convention, which produced Article I, section

12, of the 1851 Indiana Constitution, the basis of Article I,

section 10, of the Oregon Constitution, and the debates and

proceedings of Oregon’s own convention in 1857.

We have no record of debates among the Indiana

framers that would show how they viewed the meaning

or scope of their remedy clause. We do know, as this court

in Smothers observed, that as they amended parts of the

1816 Indiana Constitution, the Indiana framers generally

sought to limit the powers of the legislature. Smothers, 332

Or at 106. But we cannot tell whether the remedy clause

216 Horton v. OHSU

in Article I, section 12—largely unchanged from its previ-

ous version in 1816—was part of that project. Without more

specific evidence, we can draw no conclusion about whether

the 1851 revisions to Article I, section 12, of the Indiana

Constitution substantially changed its meaning.

The same is true of the changes that the Oregon

framers made in adopting Article I, section 10. The Oregon

framers did not debate Article I, section 10, and, except for

a minor change, adopted it wholesale from the 1851 Indiana

Constitution. That minor change deserves some mention,

however. It helps to put the two provisions side by side:

Article I, section 12, of the Article I, section 10, of the

1851 Indiana Constitution 1857 Oregon Constitution

“All courts shall be open; “No court shall be secret,

and every man, for injury but justice shall be admin-

done to him in his person, istered openly and without

property, or reputation, purchase, completely and

shall have remedy by due without delay, and every

course of law. Justice shall man shall have remedy by

be administered freely and due course of law for injury

without purchase; com- done him in his person,

pletely, and without denial; property, or reputation.”

speedily, and without delay.”

This court in Smothers found it significant that the Oregon

framers decided to “express in one clause how justice is to

be administered,” while the 1851 Indiana Constitution used

two separate sentences. Smothers, 332 Or at 114. This court

also found it telling that Oregon framers decided “to reserve

for a separate, independent clause the requirement of rem-

edy by due course of law for injury to person, property, or

reputation.” Id. As this court reasoned, the decision to use

a “separate, independent clause” implied that the Oregon

framers “regarded the remedy clause as providing substan-

tive protection to those absolute common-law rights.” Id. at

114-15.

On reviewing the changes that Oregon framers

made to the version of the remedy clause that they borrowed

from the 1851 Indiana Constitution, we find that they prove

Cite as 359 Or 168 (2016) 217

little about the meaning of Oregon’s remedy clause, primar-

ily for two reasons. The first is that the Oregon framers

did not change Indiana’s remedy clause by putting it into

a “separate, independent clause.” The remedy clause in the

1851 Indiana Constitution already appeared in a separate,

independent clause; the only deviation by the Oregon fram-

ers was that they put the clause in a different part of the

sentence: in the Indiana version, it came in the middle of

two sentences; in the Oregon version, it came at the end of

a single sentence. Second, we doubt that the Oregon fram-

ers would transform the meaning of the clause merely by

changing its location. To be clear, we are not saying that

our remedy clause cases erred in concluding that the Oregon

framers intended that the remedy clause would guarantee

some remedial process for certain injuries. We cannot, how-

ever, infer that intent from the placement of the clause in a

sentence.

8.  Our remedy clause decisions

With that background in mind, we return to defen-

dant’s argument that Article I, section 10, is merely a guar-

antee of equal access to the courts for whatever remedy the

legislature has provided. In defendant’s view, all our remedy

clause cases should be overruled because the premises on

which this court based those decisions were clearly incor-

rect. See State v. Savastano, 354 Or 64, 95-96, 309 P3d 1083

(2013) (overruling prior cases in similar circumstances). As

explained above, however, the text and the history of the

remedy clause do not yield a clear answer regarding the

clause’s meaning. Although state remedy clauses find their

earliest source in limitations on royal authority, the state

cases that preceded the adoption of Oregon’s Constitution

consistently viewed their state remedy clauses as placing

some substantive limit on legislative authority.

Admittedly, the substantive limits that those cases

found in their remedy clauses varied. Many courts viewed

their remedy clauses as prohibitions on retroactive legis-

lation that interfered with “vested rights,” an amorphous

concept that often reflects a conclusion rather than a ratio-

nale. Some but not all those courts also recognized that the

remedy clause permitted their legislatures to substitute a

218 Horton v. OHSU

less-protective remedy for the common-law one and thus,

in effect, adjust the parties’ common-law rights. See Gooch,

13 Me at 376-77; Stowell, 11 Mass at 365-66. Finally, some

state courts interpreted statutes to avoid a complete denial

of a common-law remedy, which could have run afoul of

their remedy clauses, and others explicitly stated that con-

clusion in the context of contract clause claims. Thorton,

11 Minn at 340; see Call, 8 Mass at 430 (explaining that,

under contract clause, legislature may not deny remedy

completely).

Given the cases that preceded and were contem-

poraneous with the adoption of Oregon’s remedy clause

cases, we cannot say that our decisions, with the exception

of Smothers, find no support in the text and history of that

provision and should be overruled. In reaching that conclu-

sion, we need not decide how we would interpret Oregon’s

remedy clause if we were considering it for the first time.

Rather, for over 100 years, this court has debated the mean-

ing of the clause, the latitude it gives the legislature, and

the rights it protects. Distilled from that debate are a series

of decisions that evolved as the legislation they considered

evolved. We may not toss that considered body of decisions

aside, as defendant urges, nor can we conclude that the rem-

edy clause is effectively a null set that merely replicates in a

judicial context what the privileges and immunities clause

guarantees more broadly. Although we overrule Smothers,

we reaffirm our remedy clause decisions that preceded

Smothers, including the cases that Smothers disavowed. We

draw the following conclusions from those cases.

As our early cases recognized, common-law causes

of action and remedies provide a baseline for measuring the

extent to which subsequent legislation conforms to the basic

principles of the remedy clause—ensuring the availability

of a remedy for persons injured in their person, property,

and reputation. As our early cases also recognized, how-

ever, the common law is not inflexible but changes to meet

the changing needs of the state. Perozzi, 149 Or at 348;

Re Water Rights of Hood River, 114 Or at 180-81; Peery, 93

Or at 52. For that reason, Smothers clearly erred in hold-

ing that the remedy clause locks courts and the legislature

Cite as 359 Or 168 (2016) 219

into a static conception of the common law as it existed in

1857. Put differently, the remedy clause does not protect

only those causes of action that pre-existed 1857, nor does

it preclude the legislature from altering either common-

law duties or the remedies available for a breach of those

duties.

In determining the limits that the remedy clause

places on the legislature, our cases have considered three

general categories of legislation. First, when the legislature

has not altered a duty but has denied a person injured as a

result of a breach of that duty any remedy, our cases have

held that the complete denial of a remedy violates the rem-

edy clause. See Noonan, 161 Or at 222-35 (summarizing

Mattson and cases following it). Similarly, our cases have

held that providing an insubstantial remedy for a breach of

a recognized duty also violates the remedy clause. Compare

Clarke, 343 Or at 608, 610 ($200,000 capped damages not

substantial in light of $12,000,000 in economic damages and

$17,000,000 in total damages), with Howell, 353 Or at 376

($200,000 capped damages substantial in light of $507,500

in total damages).

Second, the court has recognized that the reasons

for the legislature’s actions can matter. For example, when

the legislature has sought to adjust a person’s rights and

remedies as part of a larger statutory scheme that extends

benefits to some while limiting benefits to others, we have

considered that quid pro quo in determining whether the

reduced benefit that the legislature has provided an individ-

ual plaintiff is “substantial” in light of the overall statutory

scheme. Hale, 308 Or at 523.

Third, the legislature has modified common-law

duties and, on occasion, has eliminated common-law causes

of action when the premises underlying those duties and

causes of action have changed. In those instances, what

has mattered in determining the constitutionality of the

legislature’s action is the reason for the legislative change

measured against the extent to which the legislature has

departed from the common law. See Perozzi, 149 Or at 348.

That is, we have considered, among other things, whether

the common-law cause of action that was modified continues

220 Horton v. OHSU

to protect core interests against injury to persons, property,

or reputation or whether, in light of changed conditions, the

legislature permissibly could conclude that those interests

no longer require the protection formerly afforded them. See

Norwest, 293 Or at 563 (discussing legislative abolition of

common-law torts of criminal conversation and alienation of

affections).

It is difficult to reduce our remedy clause deci-

sions to a simple formula, as Smothers sought to do, in part

because the statutes that have given rise to those decisions

do not reflect a single legislative goal or method of achiev-

ing that goal. In that respect, our remedy clause cases are

not unlike our takings clause cases. Attempts to articulate

a single unifying principle fail to comprehend the varied

ways that the legislature can and has gone about achiev-

ing its goals. See Coast Range Conifers v. Board of Forestry,

339 Or 136, 146, 117 P3d 990 (2005) (rejecting plaintiff’s

unified theory of takings because it failed to take account

of the differing “nature of the government action that gives

rise to the [takings] claim”). The same is true here. As

Article XVIII, section 7, recognizes, one of the functions

of the legislature is to adjust the duties that one person

owes another and the remedies for a breach of that duty as

societal conditions change. It follows from our cases that,

in deciding whether the legislature’s actions impair a per-

son’s right to a remedy under Article I, section 10, we must

consider the extent to which the legislature has departed

from the common-law model measured against its reasons

for doing so.

We note one final consideration regarding our rem-

edy clause cases that have come after Smothers. To the

extent that those cases turn on the bright line rule that

Smothers drew (all injuries for which common-law causes

of action existed in 1857 require a remedy while injures for

which no cause of action existed in 1857 are entitled to no

protection), then those cases must be taken with a grain of

salt. That said, we agree with Clarke and Howell that the

substantiality of the legislative remedy can matter in deter-

mining whether the remedy is consistent with the remedy

clause. When the legislature does not limit the duty that a

Cite as 359 Or 168 (2016) 221

defendant owes a plaintiff but does limit the size or nature

of the remedy, the legislative remedy need not restore all

the damages that the plaintiff sustained to pass constitu-

tional muster, see Howell, 353 Or at 376, but a remedy that

is only a paltry fraction of the damages that the plaintiff

sustained will unlikely be sufficient, see Clarke, 343 Or

at 610. It is worth noting, however, that both Clarke and

Howell evaluated the plaintiffs’ Article I, section 10, claims

in those cases through the lens that Smothers provided. As

explained above, and as this court recognized in Hale, other

factors, such as the existence of a quid pro quo, can bear on

the determination.

D.  Application

With that background in mind, we turn to the cir-

cumstances of this case. We note that this case falls into the

second category of cases identified above; that is, the legis-

lature did not alter the duty that OHSU doctors owe their

patients to exercise due care. However, the Tort Claims Act,

as amended, limits a plaintiff’s remedy for a breach of that

duty as part of a comprehensive statutory scheme intended

to extend benefits to some persons while adjusting the bene-

fits to others. Moreover, as explained below, the Tort Claims

Act seeks to accommodate the state’s constitutionally recog-

nized interest in sovereign immunity with a plaintiff’s right

to a remedy. Those factors bear on our evaluation of the sub-

stantiality of the remedy that the Tort Claims Act provides.

As the trial court held and as plaintiff does not dis-

pute, OHSU is an arm of the state and, for that reason, may

invoke the doctrine of sovereign immunity. See Clarke, 343

Or at 600. This court recognized in Hale that the doctrine of

sovereign immunity has constitutional underpinnings. See

308 Or at 515; Vendrell v. School District No. 26C, 226 Or

263, 278, 360 P2d 282 (1961) (“Our Constitution is framed

on the premise that the state is immune from suit * * *.”).

Article IV, section 24, of the Oregon Constitution assumes

that the state is immune from liability for its torts, and it

authorizes the state to waive that immunity by general law.

Hale, 308 Or at 515. Without a valid waiver, the state may

not be sued. Id. at 514 & n 5. Sovereign immunity, however,

does not extend to the state’s employees. See Gearin, 110 Or

222 Horton v. OHSU

at 396-97 (county employees). State employees are subject to

suit for their torts even though they are acting on the state’s

behalf. Id.

That distinction leaves the state on the horns of a

dilemma. The state acts through its employees, and many of

the functions that the state undertakes on behalf of its cit-

izens entail risks of liability that few private entities would

choose to bear—guarding prisoners, policing the streets,

and intervening in families to protect children from abuse,

to name only a few. If the state indemnified its employees for

all the liability that they incurred while acting on the state’s

behalf, the state’s sovereign immunity effectively would be

eviscerated. Conversely, if the state chose not to indemnify

its employees for any liability that they incurred while act-

ing on its behalf and shifted all the risk to its employees, few

qualified persons would choose to work for the state.

The Tort Claims Act avoids that dilemma by waiving

the state’s immunity for its torts but capping the amount for

which the state can be held liable—in this case, $3,000,000.

ORS 30.265(1) (waiving immunity from tort actions subject

to certain limitations); ORS 30.271(3) (listing graduated

limits on state liability). The Tort Claims Act indemnifies

state employees for liability in tort for acts occurring in the

performance of their public duty but caps the amount of

their liability at the amount for which the state has waived

its sovereign immunity. ORS 30.285(1), (6). In so doing, the

Tort Claims Act accommodates the state’s constitutionally

recognized interest in asserting its sovereign immunity

with the need to indemnify its employees for liability that

they incur in carrying out state functions.

Moreover, the Tort Claims Act gives plaintiffs

something that they would not have had if the state had

not partially waived its immunity. The act ensures that a

solvent defendant will be available to pay any damages up

to $3,000,000—an assurance that would not be present if

the only person left to pay an injured person’s damages were

an uninsured, judgment-proof state employee. Compare

Mattson, 39 Or at 580 (recognizing that legislature could

immunize cities consistently with Article I, section 10, as

long as the injured plaintiff has a remedy against a city

Cite as 359 Or 168 (2016) 223

employee), with Eastman, 32 F at 34 (“If travelers and oth-

ers who sustain injuries by reason of defective highways can

have no remedy against any one except these officers per-

sonally, they might as well have none.”) There is, in short, a

quid pro quo.

In setting the cap on state liability, the 2009

Legislature recognized that the then-existing tort claims

limit of $200,000 was vastly inadequate. In determining

a more equitable limit, the legislature considered actuar-

ial data about the impact of unlimited recoveries on public

bodies and the impact of different levels of caps. Testimony,

Senate Committee on Judiciary, SB 311, Jan 22, 2009, Ex 5

(statement of Kris Kautz). It also studied tort claims caps

in other states. Id. And it considered data from the last few

decades of claims brought under the Oregon Tort Claims

Act. After considering that data, the legislature set new

limits for claims against state and local government bodies,

increasing the single-claim cap for claims against the state

and OHSU from $200,000 to $1.5 million and the aggregate

cap to $3 million.26 Or Laws 2009, ch 67, §§ 3, 4. It provided

for yearly increases to the caps according to a fixed percent-

age indexed to inflation. In 2011, the legislature amended

the Tort Claims Act to allow plaintiffs to proceed directly

against a named individual when the complaint alleged

damages in excess of the Tort Claims Act limit. Or Laws

2011, ch 270, § 1. The public body, however, would still be

obligated to indemnify the individual employee, although

the overall Tort Claims Act limit would apply to the amount

of recovery. Id.

The legislature recognized that the increased dam-

ages available under the revised Tort Claims Act would not

provide a complete recovery to everyone injured as a result

of the state’s tortious acts. However, those increased limits

provide a complete recovery in many cases, greatly expand

the state’s liability in the most egregious cases, and advance

the purposes underlying the doctrine of sovereign immunity

26

The legislature designed a two-tier approach to Tort Claims Act damage

limitations. One set of limits would govern claims against local government bod-

ies, and another set would govern claims against the state and OHSU. See Ex 1,

Senate Committee on the Judiciary, SB 311, January 22, 2009 “Recommendations

of the Oregon Tort Claims Task Force.”

224 Horton v. OHSU

while ensuring that a solvent defendant is available to pay

a plaintiff’s damages up to the amount of the Tort Claims

Act limit. Given the legislature’s efforts to accommodate

the state’s constitutionally recognized interest in sovereign

immunity and a plaintiff’s constitutional right to a rem-

edy, we cannot say that the $3,000,000 tort claims limit on

damages against state employees is insubstantial in light

of the overall statutory scheme, which extends an assur-

ance of benefits to some while limiting benefits to others.

See Hale, 308 Or at 523,27 cf. Davidson v. Rogers, 281 Or 219,

224-25, 574 P2d 624 (1978) (Linde, J., concurring) (constru-

ing Article I, sections 8 and 10, together in determining

whether right to demand retraction permissibly limits dam-

ages in defamation action).

We recognize that the damages available under the

Tort Claims Act are not sufficient in this case to compen-

sate plaintiff for the full extent of the injuries that her son

suffered. However, our remedy clause cases do not deny the

legislature authority to adjust, within constitutional lim-

its, the duties and remedies that one person owes another.

That is particularly true when the legislature seeks to

accommodate the state’s constitutionally recognized inter-

est in sovereign immunity and a plaintiff’s constitutionally

protected right to a remedy and when the remedy that the

legislature has provided “represents a far more substantial

remedy than the paltry fraction that remained after the

imposition of the limitation in Clarke.” Howell, 353 Or at

376.28

27

Plaintiff reasons that the holding in Hale turned on (or should be limited

to) the fact that the plaintiff’s claim in that case was only against the city, and

not a city employee. Cf. Mattson, 39 Or at 580 (recognizing that the legislature

could immunize a city as long as the injured plaintiff had a remedy against a city

employee). However, the limitation that plaintiff perceives in Hale is not found in

the majority opinion. Rather, the limited reading of Hale that plaintiff and the

dissent urge reflects the view of a single judge expressed in a concurring opinion

in which no other judge joined. Although the court in Clarke read Hale consis-

tently with the concurring opinion in that case, Clarke did so under the press of

Smothers, which we have overruled.

28

Two considerations distinguish our holding today from the holding in

Clarke. The first is the size of the award, in relation to the damages awarded.

The second is the quid pro quo that the Tort Claims Act provides and its accom-

modation of the state’s interest in sovereign immunity and the plaintiff’s right

to remedy. Perhaps as a result of Smothers and its disavowal of Hale, the parties

did not argue in Clarke that those considerations mattered, and this court did

Cite as 359 Or 168 (2016) 225

Our holding today is limited to the circumstances

that this case presents, and it turns on the presence of the

state’s constitutionally recognized interest in sovereign

immunity, the quid pro quo that the Tort Claims Act pro-

vides, and the tort claims limits in this case. We express no

opinion on whether other types of damages caps, which do

not implicate the state’s constitutionally recognized interest

in sovereign immunity and which are not part of a similar

quid pro quo, comply with Article I, section 10. Those cases

are not before us, and we leave their resolution to the cus-

tomary process of case-by-case adjudication.

II.  ARTICLE I, SECTION 17

Following Lakin v. Senco Products, Inc., 329 Or 62,

987 P2d 463, modified, 329 Or 369, 987 P2d 476 (1999), the

trial court held that applying the Tort Claims Act limit to

the jury’s damages award violated Article I, section 17. On

appeal, defendant does not dispute that, if Lakin is good law,

the trial court’s judgment should be affirmed. He argues,

however, that subsequent cases have undercut the premises

on which Lakin rests, and he contends that a reexamina-

tion of the text of Article I, section 17, its history, and the

cases interpreting it demonstrates that Lakin was wrongly

decided and should be overruled. Plaintiff responds that

“Lakin is built on a solid foundation of constitutional his-

tory and analysis, and well-established precedent.”29 She

observes that, since it was decided in 1999, “Lakin has

been applied in several cases, most recently by this court

in Klutschkowski,” and she reasons that defendant has not

met the difficult task of persuading this court that it should

overrule one of its precedents. In evaluating the parties’

arguments, we begin with defendant’s argument that our

cases since Lakin have eroded the premises on which that

decision rests.

not factor those considerations into its holding. Even if it had, we doubt highly

that the “paltry fraction” that previously was available under the Tort Claims

Act would have been sufficient to constitute a substantial remedy under our cases

that preceded Smothers.

29

Plaintiff does not provide any additional authority to support Lakin’s hold-

ing, but relies on Lakin’s discussion of the text of Article I, section 17, the history

that preceded the adoption of that provision, and cases interpreting it.

226 Horton v. OHSU

A. Lakin and subsequent Article I, section 17, cases

Article I, section 17, provides: “In all civil cases the

right of Trial by Jury shall remain inviolate.” In interpret-

ing that section, most of this court’s cases have sought to

determine, as a procedural matter, which claims or defenses

will entitle a party to a jury trial. See, e.g., McDowell

Welding & Pipefitting v. US Gypsum Co., 345 Or 272, 279,

193 P3d 9 (2008); Deane v. Willamette Bridge Co., 22 Or 167

(1892); Tribou v. Strowbridge, 7 Or 156 (1879). On that pro-

cedural issue, the court consistently has held that Article I,

section 17, does not give a party a right to a jury trial for

claims or defenses that would have been tried to a court of

equity in 1857 when the Oregon Constitution was adopted.

McDowell, 345 Or at 279; Deane, 22 Or at 169-70; Tribou, 7

Or at 158. Conversely, the court consistently has recognized

that Article I, section 17, guarantees a jury trial in those

cases in which the right to a jury trial was customary at

the time the Oregon Constitution was adopted and in cases

of like nature. See M. K. F. v. Miramontes, 352 Or 401, 413,

287 P3d 1045 (2012) (state constitutional jury trial right

extends to new causes of action that are “of like nature” to

claims and defenses that would have been tried to a jury in

1857).

In 1995, this court addressed, for the first time,

whether Article I, section 17, guarantees a substantive as

well as a procedural right; that is, this court addressed

whether, in addition to guaranteeing a procedural right to

have a jury rather than a judge decide the facts in certain

kinds of civil cases, Article I, section 17, also restricts the

legislature’s ability to limit the type or amount of damages

that a jury awards. See Greist v. Phillips, 322 Or 281, 293-95,

906 P2d 789 (1995). Greist held that it does not; more spe-

cifically, Greist held that the legislature may limit a jury’s

damages award in wrongful death actions. The court based

that holding on two separate grounds.

The court explained initially that, because the

common law did not recognize a claim for wrongful death

in 1857, Article I, section 17, did not apply to that claim.

Id. at 294. Alternatively, the court explained that, before

1910, Oregon trial courts applied the doctrine of remittitur

Cite as 359 Or 168 (2016) 227

to reduce jury damages awards if they were excessive. Id.

at 294-95. Relying on that practice, this court rejected the

plaintiff’s argument that, in 1857, a party would have had

“a right to have a judge enter judgment on a jury’s award

of damages—without judicial alteration—in a personal

injury action.” Id. at 295. As a consequence, the court

declined to find that Article I, section 17, included a sub-

stantive limit on the legislature’s authority to cap noneco-

nomic damages.

Four years later, this court took a different course

in Lakin. It viewed Greist’s resolution of the plaintiff’s

Article I, section 17, claim as resting on the first ground

identified in Greist—that Article I, section 17, does not apply

to wrongful death actions because that action was not rec-

ognized by the common law in 1857. Lakin, 329 Or at 77.

Lakin described the alternative ground in Greist—that the

practice of remittitur before 1910 established that Article I,

section 17, does not impose a substantive limitation on the

legislature—as dicta, which “require[d] correction.” Id. at

76. We discuss Lakin’s reasoning in greater detail below, but

essentially Lakin held that Greist’s discussion of remittitur

was erroneous because “Oregon trial courts never have had

the power to reduce a jury’s verdict or enter judgment for a

lesser amount of damages over the objection of the prevail-

ing party, who always could reject a judicial remittitur and

demand a new jury trial.” Id. Lakin concluded that, because

a trial court could not unilaterally reduce a jury’s damages

award, neither could the legislature. Id. at 78-79.

Since Lakin, we have distinguished or limited

Lakin’s holding in four decisions: Jensen v. Whitlow, 334

Or 412, 51 P3d 599 (2002); DeMendoza v. Huffman, 334 Or

425, 51 P3d 1232 (2002), Lawson v. Hoke, 339 Or 253, 119

P3d 210 (2005), and Hughes v. PeaceHealth, 344 Or 142, 178

P3d 225 (2008). We followed Lakin once in Klutschkowski.30

30

The court did not discuss Article I, section 17, in Clarke or Howell. In

Clarke, the court resolved the plaintiff’s claim solely on the basis of Article I,

section 10, and found it unnecessary to reach his Article I, section 17, claim. 343

Or at 610 n 19. In Howell, the two questions that the Ninth Circuit certified to

this court asked only about Article I, section 10. See 353 Or at 361 (setting out the

certified questions). The certified questions did not ask about Article I, section 17,

perhaps because the Seventh Amendment governs the right to jury trials in fed-

eral courts.

228 Horton v. OHSU

We discuss those decisions briefly in considering whether

our cases have eroded the premises on which Lakin rested

and whether, as a result, it is appropriate to reexamine the

sources on which Lakin based its holding. See Couey, 357

Or at 486-87 (reconsidering decisions that cannot be fairly

reconciled with each other).

1.  Jensen

In Jensen, the court rejected the plaintiff’s claim

that eliminating a cause of action against a public employee

who had injured the plaintiff’s child violated Article I, sec-

tion 17. The court reasoned:

“Article I, section 17, is not a source of law that creates or

retains a substantive claim or theory of recovery in favor

of any party. Instead, as this court previously has held,

Article I, section 17, simply ‘guarantees a jury trial in civil

actions for which the common law provided a jury trial

when the Oregon Constitution was adopted in 1857.’ ”

Jensen, 334 Or at 422 (quoting Lakin, 329 Or at 82). Jensen

distinguished Lakin on the ground that Article I, section 17,

does not put a substantive limit on the legislature’s author-

ity to eliminate a cause of action. The court explained

that, if the plaintiff had a remedy for eliminating a cause

of action, it arose from some constitutional provision other

than Article I, section 17.

2.  DeMendoza

The court extended its reasoning in Jensen to a

related but separate issue in DeMendoza. The statute at

issue in DeMendoza directed that 60 percent of the punitive

damages that the jury awarded to a party be distributed

to the state. The plaintiffs in DeMendoza argued that the

statute violated both Article I, section 10, and Article I, sec-

tion 17. This court first held that the plaintiffs had no sub-

stantive right under Article I, section 10, to recover punitive

damages. DeMendoza, 334 Or at 446. It then turned to the

plaintiffs’ argument that, under Lakin, the statute redistrib-

uting part of their punitive damages award was no different

from a damages cap because it prevented the plaintiffs from

receiving the full amount of the punitive damages that the

jury had awarded them.

Cite as 359 Or 168 (2016) 229

In analyzing the plaintiffs’ Article I, section 17,

claim, the court first quoted Jensen for the proposition that

“ ‘Article I, section 17, is not a source of law that creates or

retains a substantive claim or a theory of recovery in favor

or any party.’ ” Id. (quoting Jensen, 334 Or at 422) (emphasis

deleted). It then explained, “[l]ikewise, if a ‘right’ to receive

an award that reflects the jury’s determination of the [full]

amount of punitive damages exists, then it must arise from

some source other than Article I, section 17.”31 Id. at 447.

DeMendoza thus held that, if the plaintiffs’ right to receive

the full amount of the punitive damages that the jury

awarded did not arise from some other state or federal con-

stitutional provision, such as Article I, section 10, then the

plaintiffs had no additional right under Article I, section 17,

to receive the full amount of the jury’s punitive damages

award.

DeMendoza possibly can be reconciled with Lakin

in one of two ways. DeMendoza may have sought to distin-

guish Lakin on the ground that Lakin involved a reduction

in compensatory damages while DeMendoza involved a

reduction in punitive damages. See id. (noting Lakin’s state-

ment that the noneconomic damages cap in that case inter-

fered with the plaintiffs’ right to receive the full amount of

compensatory damages awarded). We hesitate, however, to

conclude that DeMendoza sought to distinguish Lakin on

31

We quote, in full, DeMendoza’s resolution of the plaintiff’s Article I, sec-

tion 17, claim:

“Likewise, if a ‘right’ to receive an award that reflects the jury’s determina-

tion of the amount of punitive damages exists, then it must arise from some

source other than Article I, section 17. For example, in Lakin, the plaintiffs’

rights under Article I, section 17, were violated, because the cap on noneco-

nomic compensatory damages interfered with the plaintiffs’ ‘right to receive

an award that reflect[ed] the jury’s factual determination of the amount of

the damages’ that would ‘ “* * * fully compensate [plaintiffs] for all loss and

injury to [them].”’ 329 Or at 81 (quoting Oliver v. N.P.T. Co., 3 Or 84, 87-88

(1869)). Here, in contrast, plaintiffs have no underlying ‘right to receive an

award’ that reflects the jury’s determination of the amount of punitive dam-

ages, nor are those damages necessary to ‘compensate’ plaintiffs for a ‘loss or

injury [to them].’ [DeMendoza,] 334 Or at 446 (no right to punitive damages

as remedy under Article I, section 10). Because plaintiffs lack that right,

the legislature’s allocation of a portion of the punitive damages award to the

state does not implicate Article I, section 17.”

DeMendoza, 334 Or at 447 (last bracket added; all other brackets and ellipses in

DeMendoza).

230 Horton v. OHSU

that ground. This court has long recognized that, for the

purposes of the state constitutional right to a jury trial, “no

valid distinction * * * can be drawn between compensatory

and exemplary damages.” Van Lom v. Schneiderman, 187

Or 89, 110, 210 P2d 461 (1949). As a matter of state consti-

tutional law, both are factual issues for the jury. Oberg v.

Honda Motor Co., 316 Or 263, 275 n 7, 851 P2d 1084 (1993),

rev’d and remanded on other grounds, Honda Motor Co. v.

Oberg, 512 US 415, 114 S Ct 2331, 129 L Ed 2d 336 (1994);

Van Lom, 187 Or at 110-13.

Beyond that, Lakin posed the question before it

broadly as “whether the assessment of damages was a func-

tion of a common-law jury in 1857.” 329 Or at 72. Phrasing

the issue that way suggests that, consistently with Van Lom

and Oberg, the court in Lakin did not intend to limit its

holding to legislative reductions in compensatory damages

awarded by the jury. It follows, we think, that Lakin cannot

fairly be reconciled with DeMendoza on the ground that the

former involved a reduction in an award of compensatory

damages while the latter involved a reduction in an award

of punitive damages.

Perhaps DeMendoza can be reconciled with Lakin

another way. As noted, DeMendoza first held that the rem-

edy clause of Article I, section 10, placed no limit on the

legislature’s authority to reduce or eliminate punitive dam-

ages. 334 Or at 445-46. Relying on Jensen, DeMendoza then

explained that, because the “plaintiffs have no underlying

‘right to receive an award’ that reflects the jury’s determina-

tion of the amount of punitive damages, * * * the legislature’s

allocation of a portion of the punitive damages award to the

state does not implicate Article I, section 17.” 334 Or at 447.

One way potentially to reconcile Lakin and DeMendoza’s

Article I, section 17, holdings is that, in one, the remedy

clause placed no restriction on the legislature’s authority

to limit punitive damages while, in the other, the remedy

clause restricted the legislature’s authority to limit com-

pensatory damages. That is, neither case may have viewed

Article I, section 17, as providing an independent right to

retain all the damages that a jury awards, and the differ-

ence may have turned on the presence or absence of a right

under Article I, section 10.

Cite as 359 Or 168 (2016) 231

The difficulty with attempting to reconcile

DeMendoza and Lakin that way is that Lakin expressly

held that the plaintiffs in that case had a right to receive

the full amount of the jury’s compensatory damages award

under Article I, section 17, even if they did not have a right

to do so under Article I, section 10. Lakin, 329 Or at 80-81.

That is, Lakin’s reasoning explicitly negates the proposition

that its holding can be reconciled with DeMendoza on the

ground that Article I, section 10, places a substantive limit

on the legislature’s right to reduce compensatory damages

but not punitive damages. In our view, the court’s decision in

DeMendoza is a reasonable extension of its decision in Jensen,

but DeMendoza cannot be fairly reconciled with Lakin.

3.  Hughes

Hughes poses a similar problem, even though

Hughes rests on a distinction that Lakin itself drew in over-

ruling part of Greist. As noted, Greist had held that Article I,

section 17, does not prevent the legislature from capping a

jury’s award of noneconomic damages in wrongful death

cases for two reasons: (1) the practice of remittitur in 1857

was at odds with that argument and (2) a wrongful death

action did not exist at common law in 1857 and thus was

not subject to Article I, section 17. Greist, 322 Or at 294-95.

In holding that Article I, section 17, prevents the legisla-

ture from limiting damages in a negligence action, Lakin

rejected the first ground noted in Greist but not the second.

Lakin, 329 Or at 77. That is, Lakin reconciled its holding

with Greist by explaining that Greist involved a wrongful

death action, which was not recognized by the common law

in 1857. Id. By contrast, at least one of the claims in Lakin

was recognized by the common law in 1857. Id.

Noting Lakin’s implicit acceptance of the second

ground in Greist, this court held in Hughes that the legis-

lature could limit the jury’s award of noneconomic damages

in wrongful death actions because that action did not exist

in 1857. Hughes, 344 Or at 154. In doing so, Hughes rejected

the plaintiff’s argument that Article I, section 17, applies not

only to claims that existed at common law but also to claims

“of like nature.” Id. at 155. The court did not dispute that

the plaintiff’s wrongful death claim in Hughes was “of like

232 Horton v. OHSU

nature” to a negligence claim, which would have been tried

to a jury at common law. However, relying on Jensen and

DeMendoza, the court explained that Article I, section 17, is

not a source of law that creates a substantive right to non-

economic damages. Id. Only if the claim was recognized in

1857 would the jury’s verdict be immune from reduction.32

Id.

Two justices dissented in Hughes. One of the dis-

sents reasoned that the majority’s holding in Hughes “sub-

vert[ed]” the fundamental principle that underlies Lakin—

”that the right to jury trial is a right of substance with

which the legislature cannot interfere.” Id. at 174 (Walters,

J., dissenting). The other dissent explained that the major-

ity opinion “t[ook] several odd steps that do not withstand

scrutiny. “ Id. at 171 (Durham, J., dissenting). Both dissents

faulted the majority for holding that Article I, section 17,

applied only to common-law claims that were recognized in

1857, but not to claims of like nature.

4.  Miramontes

Later, in Miramontes, the court considered an issue

that had not been presented in Hughes—whether a party

was entitled to have a jury rather than a judge decide a

claim that had not existed in 1857 but was “of like nature”

to claims that were tried to a jury then.33 The trial court in

Miramontes had refused to empanel a jury to decide a dam-

ages claim against a defendant in a stalking case. 352 Or at

403. The court held that, even though the plaintiff’s dam-

ages claim in that case was unknown to the common law in

1857, Article I, section 17, gave the defendant the right to try

32

The court took a similar approach in Lawson. In that case, a statute pro-

hibited uninsured drivers from recovering noneconomic damages arising from

an automobile accident. See 339 Or at 260. The court held that that statutory

condition did not violate Article I, section 10. Id. at 264-65. The court then held

that, because Article I, section 17, “ ‘is not a source of law that creates or retains a

substantive claim,’ ” that provision did not assist the plaintiff in the absence of an

Article I, section 10, right or some other right to recover noneconomic damages.

Id. at 267 (quoting Jensen, 334 Or at 422).

33

Because the plaintiff in Hughes had tried her wrongful death claim to a

jury, that case did not require the court to decide whether she had a procedural

right under Article I, section 17, to do so because a wrongful death action was “of

like nature” to a claim that would have been tried to a jury in 1857. Hughes, 344

Or at 156 n 12.

Cite as 359 Or 168 (2016) 233

that claim to a jury because the claim was “of like nature”

to one that would have been tried to a jury in 1857. Id. at

413-14.

At first blush, Hughes and Miramontes appear to

conflict. One limits Article I, section 17, to claims that would

have been tried to a jury in 1857; the other extends the right

to claims “of like nature.” One way to reconcile those two

cases is to say that they bifurcated the Article I, section 17,

jury trial right into substantive and procedural components.

The substantive component of Article I, section 17, extends

only to those common law claims that existed in 1857, and

the damages that a jury awards for those claims may not

be reduced. By contrast, the procedural component extends

to all claims that are “of like nature” to common-law claims

that existed in 1857, but the procedural component guar-

antees only the right to have a jury, as opposed to a judge,

decide those claims. That resolution—dividing the jury

trial right into two components and attributing different

legal consequences to each—alleviates some of the tension

between Hughes and Miramontes, but it does not resolve

the underlying conflict—whether the premises on which

Article I, section 17, rests support bifurcating the right.34

5.  Klutschkowski

This court followed Lakin’s holding in one case

Klutschkowski. The primary dispute in that case was

whether an infant’s claim for negligently inflicted injuries

that occurred during the infant’s birth would have been

actionable in 1857. See Klutschlowski, 354 Or at 168-69.

The court held that the claim would have been and, hav-

ing reached that conclusion, determined that the plain-

tiff’s claim came within Lakin’s holding. Id. at 176-77. In

34

The same tension existed in Lakin itself. On one hand, Lakin implicitly

accepted Greist’s holding that Article I, section 17, did not preclude the legis-

lature from capping noneconomic damages in wrongful death actions because

actions for wrongful death did not exist in 1857. 329 Or at 77. On the other hand,

Lakin stated later in the opinion that Article I, section 17, applies to “actions for

which the common law provided a jury trial when the Oregon Constitution was

adopted in 1857 and in cases of like nature.” Id. at 82 (emphasis added). Because

a wrongful death action is “of like nature” to the tort action that underlies it,

Lakin’s acceptance of Greist is at odds with its later statement of the scope of

Article I, section 17.

234 Horton v. OHSU

both Lakin and Klutschkowski, the plaintiff was seeking to

recover for an injury for which the common law would have

provided a remedy in 1857. Id.

Admittedly, the fact that Klutschkowski was virtu-

ally identical to Lakin in that respect did not resolve the

conflict between Lakin, on the one hand, and DeMendoza,

on the other, nor did it resolve the tension between Hughes

and Miramontes. However, the parties in Klutshckowski did

not ask the court to reconsider or reconcile its precedents.

Id. at 169. The court accordingly did not do so. Rather, it

looked to the most applicable precedent, which was Lakin,

and resolved the case on that ground. Klutschkowski accord-

ingly did not address the issue that this case presents.

Given our cases, it is difficult to describe Lakin as

either “settled” or “well-established” precedent. This court

has distinguished Lakin in all the cases that came after it,

with the exception of Klutschkowski where the defendant

declined to challenge it. Some of the cases distinguish-

ing Lakin can fairly be reconciled with it. Others, such as

DeMendoza, cannot. And while Hughes relies on a distinc-

tion that Lakin itself recognized, the dissenting opinions in

Hughes reasoned, with some force, that the distinction that

Lakin drew and that Hughes followed “subverted” what they

viewed as the fundamental premise of Lakin. See Hughes,

344 Or at 174 (Walters, J., dissenting). Given the disarray

among our Article I, section 17, cases, we conclude that it

is appropriate to reconsider Lakin’s holding. See Couey, 357

Or at 489 (explaining that, when two of this court’s deci-

sions cannot be fairly reconciled, it is appropriate to recon-

sider which decision fits more closely with the constitutional

text and history). We accordingly reexamine Article I, sec-

tion 17’s text and history.

B.  Text

As noted, Article I, section 17, provides: “In all civil

cases the right of Trial by Jury shall remain inviolate.” In

Lakin, the court explained that the word “inviolate” (and

we would add the word “remain”) suggests that the framers

intended to preserve the “right of Trial by Jury” as it existed

in 1857. 329 Or at 69. We agree with that proposition, as have

Cite as 359 Or 168 (2016) 235

a long line of Oregon cases interpreting Article I, section 17.

See Deane, 22 Or at 169-70 (Article I, section 17, “secures

* * * the right to trial by jury in all cases where that right

existed at the time the constitution was adopted.”); Tribou,

7 Or at 158 (same). We also agree with Lakin that saying

that the framers intended to preserve the “right of Trial

by Jury” does not answer the question of what that right

encompasses. Lakin, 329 Or at 69. Perhaps a textual clue

can be drawn from the use of the prepositional phrase “by

Jury.” That phrase defines the type of trial that Article I,

section 17, preserves. It suggests that the right that Article I,

section 17, preserves is a right to a procedure (a trial by a

jury as opposed to a trial by a judge) rather than a sub-

stantive result. However, we agree with Lakin that the text

of Article I, section 17, standing alone, does not definitively

answer the question one way or another.35

C.  History

We also consider the history that surrounded the

adoption of Article I, section 17, to determine the scope of

the right that the framers intended to preserve. On that

point, Lakin observed that the right to a jury trial in civil

cases has deep roots. Lakin explained that “the guarantee

of [a civil] trial by jury was ensured in the Magna Carta

in 1215,” that it was described by Blackstone as “ ‘the glory

of the English law’ ” and “ ‘the most transcende

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