Hale v. Port of Portland

LINDE, J.,

concurring.

It is not surprising that Article I, section 10, of the Oregon Constitution has perplexed this court more than any other guarantee in Oregon’s Bill of Rights. Most constitutional guarantees are stated as negatives, telling officials what laws they may not enact and what procedures they may not omit, but otherwise leaving decisions to retain or alter the substance of the laws to lawmakers. Article I, section 10, on the other hand, combines affirmative with negative guarantees. In a legal system that, like ours, treats its constitution as law, affirmative assurances of government action create a puzzle what affirmative laws the constitution requires.

Article I, section 10, provides:

“No court shall be secret, but justice shall be administered, 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.”

When a statute, contrary to the opening clause, declares that some court procedures may be conducted in secret, the court need only hold that the statute is invalid and cannot be followed. Oregonian Publishing Co. v. O’Leary, 303 Or 297 , 736 P2d 173 (1987). The second clause can be administered by the courts themselves, disregarding, if necessary, any statutes or actions by other officials that would impose a “purchase” of justice or an improper “delay.” See Haynes v. Burks, 290 Or 75 , 87 n 12, 619 P2d 632 (1980). But the assurance of a “remedy” for “injury” to specified interests appears to promise more than protection against delay and other procedural obstructions.

Yet this court’s decisions long have held that the “remedy” clause could not reasonably have been meant to lock into the constitution the common law, equitable, and statutory remedies that existed in 1859, although Judge Matthew Deady, who had been a leader of the constitutional convention, had maintained something close to that position. Compare Templeton v. Linn Co., 22 Or 313 , 29 P 795 (1892), with Eastman v. County of Clackamas, 32 F 24 (D Or 1887); see Schuman, Oregon’s Remedy Guarantee, 65 Or L Rev 35, 43-46 *528 (1986). The more permissive view of change led to the 50-year-old passage quoted by the majority from Noonan v. City of Portland, 161 Or 213, 249-50 , 88 P2d 808 (1939):

“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. Notwithstanding similar constitutional provisions in other states, the courts have sustained statutes which eliminated the husband’s common law liability for the torts of his wife and which placed the wife upon an economic level with her husband. They have likewise sustained statutes which have abolished actions for alienation of affections, actions for breach of promise, etc. The legislature cannot, however, abolish a remedy and at the same time recognize the existence of a right: Stewart v. Houk, 127 Or 589 , 271 P 998 , 272 P 893 , 61 ALR 1236 . We, therefore, conclude that this contention reveals no infirmity in the charter exemption clause.”

The passage is no more authoritative than others that can be quoted on the opposite side of the issue; in fact, it pretends to no renewed analysis. There is nothing intrinsically absurd in the idea that although statutory and common law remedies may be changed, they must maintain some comparable degree of protection for those interests to which Article I, section 10, refers. In Noonan , the passage is preceded by a quotation from Silver v. Silver, 280 US 117 , 50 S Ct 57 , 74 L Ed 221 (1929), to the effect that “the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object,” 161 Or at 249 . The quotation suggests that the Noonan court confused Article I, section 10, with the federal Constitution, which contains no “remedy” clause.

Stewart v. Houk, cited in the passage from Noonan , in fact helps the present plaintiff, because Stewart followed the reasoning of Eastman to invalidate a statute denying any recovery on behalf of a guest passenger against the owner or driver of the host vehicle. Thereafter the legislature adopted a new statute requiring such a guest passenger to prove that the guest’s injuries were caused by the owner’s or operator’s intentional, reckless, or grossly negligent conduct or intoxication. *529 That statute was sustained in Perozzi v. Ganiere, 149 Or 330 , 40 P2d 1009 (1935), which also was cited in Noonan . 1

Noonan illustrates a point noted in Professor Schuman’s review of Oregon decisions under Article I, section 10. This court has written many individually tenable but inconsistent opinions about the remedy clause; but with one or two exceptions, the court’s broad propositions about changes in existing remedies have given little attention to the clause itself. 2 The text offers three verbal handholds: What harm to one of the protected interests is an “injury,” what qualifies as a “remedy,” and is this remedy available “in due course of law”? 3 Thus, a statute making general damages for defamation by a media defendant contingent on the defendant’s refusal to publish a retraction might be sustained on a theory that the optional retraction would provide an alternate “remedy,” or a theory that by virtue of the retraction the plaintiff, though harmed, suffered no legal injury. The court chose the first theory in Holden v. Pioneer Broadcasting Co., 228 Or 405 , 365 P2d 845 (1961), and Davidson v. Rogers, 291 Or 219 , 574 P2d 624 (1978).

In the present case, defendants do not argüe, and it is difficult to maintain, that the harm plaintiff has suffered is not a legal “injury.” A statute might distinguish and deal differently with economic loss from “general damages” for psychic or other noneconomic harm, like the retraction statute in Holden , but the legislature has not done that. The Oregon Tort Claims Act does not deny that all the harm *530 suffered by plaintiff is of a kind that qualifies as a legal injury. This plaintiffs financial expenses alone far exceed the statutory limit. Nor does the statute say that harm which is compensable when caused by some persons is not a legal injury when caused by other persons, as for instance in the case of parental liability. See Winn v. Gilroy, 296 Or 718 , 681 P2d 776 (1984). Rather, it puts a dollar cap on the liability of public bodies for recognized tort injuries. ORS 30.260(8). 4

This is easier to defend with respect to the Port of Portland than the City of Portland. The court notes that the Port is a state agency and partakes of the state’s immunity from unconsented suits, a premise that cannot be avoided without overruling a long line of prior decisions. Therefore, the court can say that the Oregon Tort Claims Act provides a new, though limited, remedy against the Port rather than takes away an old one.

The City is in a different position. Its nonliability for what past cases have termed “governmental” as distinct from “proprietary” functions is not derived from the “sovereign immunity” involved in Article IV, section 24. And the court has allowed legislative immunization of cities from tort liability only on condition that the individuals who are personally responsible for harm qualifying as a legal injury remain liable. Batdorff v. Oregon City, 53 Or 402 , 100 P 937 (1909); Mattson v. Astoria, 39 Or 577 , 65 P 1066 (1901). This is analogous to altering or limiting the scope of respondeat superior rather than wholly depriving a plaintiff of a remedy in due course of law for harm that no one has declared not to be a legal injury when caused by public rather than private negligence. Because this case presents no claim against individual public “officers or employees, or agents,” ORS 30.265,1 concur with the court.

The Perozzi court swept by the difficulty (among others) posed by Batdorff v. Oregon City, 53 Or 402 , 100 P 937 (1909), which invalidated a city charter limiting liability to gross or wilful misconduct or neglect of duty, by declaring that Article I, section 10, “is a ‘due process of law’ clause” which left it “clearly within the police of power of the state for the legislature to attempt to correct what it considered a growing evil.” 149 Or at 342-43, 350 .

Professor Schuman observed that the initial approach in Smith v. Smith, 205 Or 286 , 287 P2d 572 (1955), in which a wife invoked the remedy clause against inter-spousal immunity, was “analytical” but thereafter stated the court’s conclusion in terms of “public policy.” Schuman, Oregon’s Remedy Guarantee, 65 Or L Rev 35, 50 (1986). He concluded that the Oregon cases “indicate a judicial inability to formulate a consistent rule for applying the constitutional mandate,” as have those in other states. Id. at 56, citing sources.

Not every harm, or even every old common law cause of action, necessarily is an injury to a “person,” or to “property,” or to “reputation”; a simple, perhaps debatable, example is an ordinary breach of contract.

ORS 30.260(8) provides:

“ ‘Tort’ means the breach of a legal duty that is imposed by law, other than a duty arising from contract or quasi-contract, the breach of which results in injury to a specific person or persons for which the law provides a civil right of action for damages or for a protective remedy.”