# Horton v. Oregon Health & Science University

> Oregon Supreme Court · May 5, 2016 · 359 Or. 168

URL: https://www.frixlaw.com/law-library/cases/3200802

## Case

- **Full name:** 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
- **Court:** Oregon Supreme Court
- **Decided:** May 5, 2016
- **Citations:** 359 Or. 168; 376 P.3d 998; 2016 Ore. LEXIS 320
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Balmer, Kistler, Walters, Landau, Baldwin, Brewer, Linder
- **Cited by:** 82 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3200802

## How later opinions describe it (automated extraction)

- explaining that Smothers was incorrectly decided because the remedy clause does not “lock[ ] courts and the legislature into a static conception of the common law as it existed in 1857,” and that, “to the extent that [our previous remedy-clause cases] turn on the bright line r…
- explaining that, under the major contributing cause standard, work- ers’ compensation law “does not provide compensation for a work-related incident that was only a contributing cause of the worker[’s] injury” and therefore is not coextensive with a common-law negligence cause…
- explaining that, because “the common law is not inflexible but changes to meet the changing needs of the state [,] * * * Smothers clearly erred in holding that the remedy clause locks courts and the legislature into a static conception of the common law as it existed in 1857”
- holding that the Oregon Constitution’s right to trial by jury does not “limit[] the legislature’s authority to define, as a matter of law, the substantive elements of a cause of action or the extent to which damages will be available in that action”
- stating that adherence to erroneous and con- flicting decisions “produces its own threats to stability and predictability—the very virtues that stare decisis is sup- posed to promote”

## Opinion text

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 legisla

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3200802. Public record. Not legal advice.