# Holden v. PIONEER BROADCASTING CO. > Oregon Supreme Court · October 18, 1961 · 228 Or. 405 URL: https://www.frixlaw.com/law-library/cases/9794702 ## Case - **Full name:** HOLDEN v. PIONEER BROADCASTING COMPANY Et Al - **Court:** Oregon Supreme Court - **Decided:** October 18, 1961 - **Citations:** 228 Or. 405; 365 P.2d 845; 1961 Ore. LEXIS 402 - **Precedential status:** Published - **Opinion:** Dissent by Sloan - **Judges:** Rossman, Warner, Perry, Sloan, O'Connell, Goodwin, Lusk - **Cited by:** 25 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/9794702 ## How later opinions describe it (automated extraction) - noting that the “remedy afforded through retraction would seem to come closer to providing an effective means of repairing the harm” resulting from act of defamation ## Opinion text SLOAN, J., dissenting. I concur in the opinion of Justice Goodwin. However, because of the importance of the decision, it seems proper to express some additional considerations that must influence a judgment of this consequence. If the judicial policy adopted is to be consistently followed, then this decision will be one of the most far reaching that this court has announced in recent years. The court has adopted the majority opinion in Werner v. Southern California Associated Newspapers, 1950, 35 Cal2d 121, 216 P2d 825 , 13 ALR 2d 277 . It thereby embraces the most extreme view of judicial deference, if not surrender, to legislative supremacy. It is not the intent of this opinion to attempt to say that only calamity will follow. It is, rather, an attempt to express a differing point of view that may, *436 it is hoped, be of value to those who will later continue to mold the judicial policy of this state. It is the purpose of this opinion to draw into sharper focus the distinction between judicial review of legislative acts that are within the constitutional limits of legislative power and those acts wherein the legislature abridges the constitutional function of the judiciary. To avoid the tedium of frequent citations and references, I have collected in a footnote ① much of the material particularly used in preparing this opinion. It is not exhaustive of the literature on the subject, by any means. It has been used because it is the best material found in respect to the historical development of judicial review in the state appellate courts. Although the writing on the work of the Supreme Court is without limit, too little attention has been given to judicial review by appellate courts at *437 the state level. It has been and is necessary to consider the historic background of judicial review as such. However, the problem here is, basically and simply stated, shall the court recognize legislative supremacy even when the legislature is tampering with constitutionally stated rights? When the legislature sees fit to bar a citizen’s access to the courts must that legislative determination be treated with the same deference that should and must be extended to an exclusively legislative purpose? The problem of this particular case will be approached from two directions. One, from the aspect of the protection given by the due course of law provisions of the state and federal constitutions with particular reference to Section 10, Article 1, of our own constitution. And, two, a look at the broader aspects of legislative restraint of judicial function. It is said that the statute provides a remedy equivalent to that of an action for libel. Even if this assumption were correct, which it is not, the argument is wide of the mark. The test is not to decide if a retraction is equivalent to damages. What must concern us is to decide if the remedy is one accorded by due course of law. The guarantee of Section 10, Article 1, of the Oregon Constitution that “every man shall have remedy by due course of law for injury done him in his person, property or reputation” is somewhat unique in the inclusion of the word “reputation.” It was not a happenstance' use of the word by the framers. The proceedings of the Constitutional Convention, before cited, make it clear that the use of the word was deliberate. It is inferable, to say the least, that by this means the framers wrote into the constitution a cause of action for libel as they knew that cause *438 of action to then exist. Other provisions were considered at the convention which would have limited a cause of action for libel but these failed of adoption. The convention delegates included able lawyers. It cannot be assumed that they acted with lack of understanding. The proceedings demonstrate that the cause of action was not only deemed essential for the protection of individual citizens, but this, together with the provisions of Section 8, Article 1, were to provide required restrictions upon the otherwise absolute freedom of the press. The proceedings available to us may not be conclusive but they are not to be overlooked in deciding if the legislature can nullify that specific command of the constitution. In the now familiar case of Ohio Valley Water Co. v. Ben Avon Borough, 1920, 253 US 287 , 40 S Ct 527 , 64 L Ed 908 , it was held that in a rate case “if the owner claims confiscation of 'his property will result, the State must provide for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to both law and facts; otherwise the order is void because in conflict with the due process clause, Fourteenth Amendment.” 64 L Ed 914 . Ever since that decision was read, together with the dissent of Justice Brandéis, the holding that the court must exercise “independent judgment” as to both law and facts has been an irritant that has created much agitation. However, the compulsion for judicial due process upon an allegation of confiscation has never been denied or modified. Are we then to hold that confiscation of property holds some higher right than confiscation of reputation ¶ Particularly, when by :our own constitution reputation is to be protected equally with property. By what right does the legislature or *439 t-his court attempt to assess the value of property'.'as entitled to a different degree of protection than injury to. person or reputation? If the legislature were to- permit the Highway Department to take property and rule that the taker would be the sole judge of the value thereof would this court sustain such a law? Certainly, it would not go so .far. Tet by some unexplained-alchemy the value of reputation is now degraded to second rate status in the constitutionally protected values. Justice Brandéis has recognized that the legislative function in the form of administrative action, is not judicial due process. In Ng Fung Ho v. White, 1922, 259 US 276, 284, 285 , 42 S Ct 492, 495 , 66 L Ed 938 , he said: - - “It may result also in loss of both property and life; or of all that makes life worth living. Against the danger of such deprivation without the sanction afforded by judicial proceedings, the Fifth Amendment affords protection in its guarantee of due process of law. The difference in security of judicial over administrative action has been adverted to by this court.” Although in some instances due process may be done without benefit of the judicial robe, it has not been held that constitutionally protected rights can be taken other than by judicial process. ■ . It is said, however, that the above comparison to legislative condemnation of property is inapposite because the only measure of damages for taking property is money. And, therefore, the amount of money must be decided by judicial due process. That is not the question. The question is: Who will decide how much money value is lost, if any, by the taking' of property or by the tailing of reputation? The majority hold that the legislature can predetermine that xepu *440 tation never has money value. If the legislature can, as a matter of “policy,” decide that the taking of reputation can never have any money value then what other constitutional restriction can be found that precludes it from legislating a policy that land in this state, taken negligently or by force of law, shall never exceed the value of $100 per acre? Or $5 an acre? The only difference between such a statute and the one we consider is the historically instinctive notion that damage to or the taking of land has some precise measurable value and that damage to reputation or to'the person does not. A review of the evidence in any condemnation or tax case should dispel that ingrained instinct which lingers with 'land. In the matter of fact the entire premise of the majority decision in this case is based upon the assumption that loss of reputation; no matter how negligently or recklessly taken, can never result in monetary loss. It is assumed that 'loss of reputation can only be compensated for by informing those who choose to notice that the wrongdoer was mistaken. The assumption that reputation has no money value is contrary to every precept we are taught from childhood. If a more practical example is desired, ask any reformed ex-convict seeking employment. Ask any professional man whose sole worth in life is his reputation. Ask any advertiser who spends $10 a year or $10,000,000 establishing the reputation of his product or service. The problem is not whether legislatively fixed compensation for loss of land or retraction for loss of reputation is the equivalent of judicially determined rights. The question is: Does it meet the requirements of the constitution? It is said that the cases sustaining the guest stat *441 utes 'and workmen’s compensation acts in the several states support the power of the legislatures to pass the act in question. At least in Oregon, the cases do not support that conclusion. The first guest act which attempted to abolish the cause of action altogether was held unconstitutional. Stewart v. Houk, 1928, 127 Or 589 , 271 P 998 , 272 P 893 , 61 ALR 1236 . The Workmen’s Compensation Act of this state does not attempt to deny judicial process. A legislative declaration of policy is not an adequate substitute for due process. The second approach is directed at the conflict which has, and does, exist between the exercise of judicial versus legislative function. Eeference to some of the works cited at the outset will disclose that, historically and now, this has been a conflict of many participants, of unending duration and has occurred on both the federal and state fields of contest. It is interesting, if not significant, to note that this debate started with decisions of some of the state courts before the federal constitution was adopted. ② Marbury v. Madison, 1803, 1 Cranch 137 , 2 L Ed 60 , was not the original sin that fomented charges of the “usurpation” of power. The debate as to the extent of judicial review began before then and has never stopped at either the state or federal level. The Federal Supreme Court has been attacked by state righters when that court was dominated by federalists. It has been under equally strong attack by the federalists when it has been dominated by the state righters. The most recent all out attack, in 1937, is still within the memory of most of us. In an earlier *442 time some of the state courts withstood' similar attacks. In moré recent times the attacks upon state courts have subsided ór ceased! But that is not because the state courts have relinquished any of their power to the legislative process. In fact the whole struggle that at many times has "engaged the active, if not violent, attention of the whole people and has been fought by men and groups of the strongest political power can, thus far, lead to but one inescapable conclusion: The people, from colonial days to now, have never approved nor tolerated any restriction of the fundamental exercise of judicial power. Every attempt to circumscribe or limit the power, .no matter by what force it has been agitated, has been consumed by the strength of public opinion. All attempts, save one, to amend the federal constitution so as to restrict the Supreme Court has failed. The Eleventh Amendment restrained actions against a state. Every other amendment that touched judicial power, enlarged it. Every existing state constitution was adopted after questions of the extent of judicial power had several times erupted. The men who framed and the people who adopted the state constitutions were much aware that, unless restrained by edict of the constitutions they were adopting, the courts would- continue to exercise that power. Nevertheless, not one state constitution has deprived its courts of the power of judicial review. Various forms of restraint have been suggested, and vigorously supported by strong political forces; few have been adopted by any state. To the contrary every state constitution has imposed many restrictions on the power of the-legislature. What has just been said may be considered academic to the question at hand. Not so, if it is given the concept intended. ' *443 Judicial power is not a handmaiden zealously locked in the unapproachable archives of the courthouse. It is not a power beneficial to the judge or that permits him any unbridled authority over the lives and well being of the people. It is the power the people have permitted to remain in the judges to protect them from executive or legislative encroachment. It is the power, I believe, the people wanted exercised in just such a case as this. The instant statute, the impact of which was unknown to those who would someday be deprived of rights, is the very kind of legislation for which the power of judicial review was retained. What people could possibly have been present to resist the forces that induced the legislature to enact the statute in question? What libeled person-to-be could anticipate that as a result of this legislative action his access to a court would be barred to him? Few, if any, of the citizens of this state would have been aware that a tampering with constitutional rights was in progress. Nor is it any answer, as it is said in Werner v. Southern California Associated Newspapers, supra, 35 Cal2d 121, 216 P2d 825 , that the restrictions on the legislature is found only in the concerted action of an alert citizenry. The practical reality of the legislative function cannot be dismissed with a platitude. What conceivable group of citizens could possibly counter the pressure of the group that induced the legislature to pass this act. No, the people have placed reliance on the courts to preserve this particular land of right. For, despite the platitudes, no other protection exists. To me, it is a greater wrong to shun judicial power in this kind of case than to exercise it to the full extent. Our duty to the people is paramount and absolute. It is not to be curtailed by a *444 mistaken sense of judicial obeisance to the legislative mandate. It has 'been said: “In many countries the framers of law are regarded as possessing unrestricted power, as holding in their hands the life and liberty of every citizen, who owes obedience to their most monstrous and arbitrary edict, until, by sounder judgment, the edict is repealed. A minority can only trust to the forbearance of those who hold law making power. When that fails it can only resist by force. Such was the view of those who framed the constitution of the first French republic. They inserted a declaration of the rights of man more elaborate than any bill of rights we have. They attempted to secure its observance by directing that it be ‘written upon tablets and placed in the midst of the legislative body and in public places,’ that ‘the people may always have before its eyes the fundamental pillars of its liberty and strength, the authorities the standard of their duties and the legislator the object of his problem.’ ” Green, 47 Amer. L Rev 92, 1913. But, says Green, in their hour of need the meaningless phrases failed the people of France. Green says that those who framed our constitutions were of a different mind than the “statesmen of France.” History reveals that those who proposed and urged the adoption of the Bill of Rights to the Federal Constitution anticipated that it would be the courts, not the legislature, that would enforce them. See Mapp v. Ohio, 367 US 643 , 6 L Ed2d 1081, decided June 19, 1961. When our constitution was adopted the people of this state knew that it had been judicial power that had breathed life and force into what would otherwise have been constitutional generalities. It must be *445 for this reason that people, then and since then, have not just tolerated but supported the use of judicial power as it has developed in this nation and state. Witness the amendment to Section 6, Article IV, of the Oregon Constitution adopted in 1952. This amendment placed in this court the power to compel legislative reapportionment. The people then knew that the legislature would continue to ignore the constitutional mandate which had required the legislature to periodically do so. Nor have either the federal or state courts been reticent in restricting legislative encroachment upon judicial soil. In an early case of Den ex dem Murray v. Hoboken Land and Improvement Company, 1855, 59 US (18 How) 272, 281, 15 L Ed 372 , the court said: “To avoid misconstruction upon so grave a subject, we think it proper to state that we do not consider Congress can either withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty; nor, on the other hand, can it bring under the judicial power, a matter which, from its nature, is not a subject for judicial determination.” That case has never been overruled. In Crowell v. Benson, 1931, 285 US 22, 56, 57 , 52 S Ct 285, 291 , 76 L Ed 598 , the above was quoted with approval and followed with even stronger language from the pen of Chief Justice Hughes. True, the latter case carries a dissent by Justice Brandéis in which he contended that the judicial power was vested in the general government and not in the inferior federal courts. The dissent emphasizes that a majority of the court thought otherwise. That opinion has not been changed by any decided case. Our own court has said *446 the same thing. West v. Jaloff, 1925, 113 Or 184 , 262 P 642 , 36 ALR 1391 ; Stewart v. Houk, supra, 127 Or 589 , 271 P 998 , 272 P 893 . In fact the majority opinion should now openly overrule these and similar eases. It does so by implication. The court of Arkansas, Indiana and Utah have voided statutes which limited the right of appeal. St. Louis & N. A. Rd. Co. v. Mathis, 1905, 76 Ark 184 , 91 SW 763 ; Ex Parte France, 1911, 176 Ind 72; Patterick v. Carbon Water Conservancy District, et al, 1944, 106 Utah 55 , 145 P2d 503 . In fact the statistical studies made of the constitutional decisions of the courts of Indiana, Utah and Minnesota, as well as in a study of a group of ten other states, ③ show that high in the subject matter of legislative enactment voided by the highest appellate courts of those states were those affecting the courts. The deference we should pay to legislative action within the legislative function is not that which should be given to legislation when it limits or denies access to a court for the redress of wrong committed. All too often such attempted restrictions have been *447 for the benefit of the few at the loss of the many. This statute is typical. The courts have, in recent years, with common acquiescence refused to interfere in legislatively decided economic, political and social policies. But the legislature is, and' should be, equally bound to refrain from unwisely interfering with a citizen’s right to enter the door of a courtroom for supplication and relief. In such an instance the presumption of legislative validity should fail and the burden should be placed on the interests protected by the legislative action to show, by evidence of strong need, the evils which justified the abolition of an established cause of action. This is particularly true when the cause is one recognized in the constitution. Nor does it follow that if we void this statute it will freeze every cause of action as it existed when the constitution was adopted. The point is that due process, as it exists in the form of an established cause of action should not be abolished unless there is strong evidence that’ the cause of action has become so corrupted that it results in greater injustice than it does justice. A cause of action, as in this ease, should not be abolished to remedy evils that do not exist and cannot be shown to exist. In the case of Schneider v. State of New Jersey, 1939, 308 US 147, 151 , 60 S Ct 146 , 84 L Ed 155 , the court said: “In every case, therefore, where legislative abridgment’ of the rights is asserted, the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of; public convenience may well support regulation directed at other personal activities, but be insufficient to justify - such as diminishes the exercise of. .rights *448 so vital to the maintenance of democratic institutions. And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regula^ tion of the free enjoyment of the rights.” For it must be remembered that when the legislature abolishes a cause of action to benefit a favored few it must be taken to be because the courts have failed to protect the rights of the few. It is a recognition that the courts have allowed fraud or partiality to warp the course of justice. When the courts sustain the act it is a tacit acknowledgment not only of the failure to dispense justice but also an admission that the courts cannot remedy the wrong, if one exists. If the courts sustain legislative negation of established judicial process by applying only the test of a conceivable rational reason for the legislation, then the way is open for the legislature to nullify any form of judicial due process. If judicial due process is worthy of its keep it should not be so readily surrendered. Professor Thayer in the first of his Legal Essays (1908) divides constitutional decisions into three general classifications: (P. 33 et seq.) “(1) where judges pass upon the validity of the acts of a co-ordinate department; “(2) where they act as advisers of the other departments ; “(3) where, as representing a government of paramount authority, they deal with acts of a department which is not co-ordinate.” In respect of the third classification he later says: “When the question relates to what is admitted not to belong to the national power, then whoever construes a State constitution, whether the State *449 or national judiciary, must allow to that legislature the full range of rational construction. But when the question is whether State action be or be not conformable to the paramount constitution, the supreme law of the land, we have a different matter in hand. Fundamentally, it involves the allotment of power between the two governments, —where the line is to be drawn. True, the judiciary is still debating whether a legislature has transgressed its limit; but the departments are not co-ordinate, and the limit is at a different point. The judiciary now speaks as representing a paramount constitution and government, whose duty it is, in all its departments, to allow to that constitution nothing less than its just and true interpretation; and having fixed this, to guard it against any inroads from without.” Thayer, who was one who would have severely limited judicial review, later contended that the above rule should not apply when state courts were testing state legislation against the federal constitution. His argument was that since an appeal to the Supreme Court could only be taken when the state court sustains the legislation the state court should sustain on any basis at all. Whether this proposed restraint on the state courts was sound is arguable. The major premise was sound. And if that be true then we should test the instant statute against the superior guarantees of rights contained in the federal constitution. As we have before seen, the Supreme Court has been and now is unwilling to surrender constitutionally protected rights of any citizen in favor of legislative encroachment based only on some rationally conceivable legislative declaration of policy. In the case of Boyd v. United States, 1885, 116 US 616 , 6 S Ct 524, 535 , 29 L Ed 746 , the court said: “It may be that it is the obnoxious thing in its *450 mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely: by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the ruthat constitutional provisions for the security of person and property shall be liberally construed. A close and literal construction deprives them of 'half their efficacy and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis. We have no doubt that the legislative body is 'actuated by the same motives; but the vast accumulation ' of public business brought before it sometimes prevents it, on a first presentation, from noticing objections which become developed by time and the practical application of the obL •jeetionable law.” This expression was quoted, in part, and approved in Mapp v. Ohio, 367 US 643 , 81 S Ct 1684 , supra. . In .conclusion may it be said,. with the proper deference to those who hold an opposing view, that it has been the strong judges and the strong courts that ■ have transformed constitutional promises into living rights. Bights that can be lost by innocuous nibbling as well as by bold assertion. The concepts that have been preserved until now were .not attained nor maintained by judicial surrender. ' Benjamin Oardozo from his pallet of language blended' the words to color the thoughts I have ineptly endeavored to express: ■ “* * * That is the argument of the critics of the existing system. My own belief is that'it lays too little stress on the value of the ‘imponderables.’ The utility of an external power restraining the *451 legislative judgment is not to be measured by counting the occasions of its exercise. The great ideals of liberty and equality are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, the scorn and derision of those who have no patience with general principles, by enshrining them in constitutions, and consecrating to the task of their protection a body of defenders. By conscious or subconscious influence, the presence of this restraining power, aloof in the background, but none the less always in reserve, tends to stabilize and rationalize the legislative judgment, to infuse it with the glow of principle, to hold the standard aloft and visible for those who must run the race and keep the faith.” Cardozo, The Nature of the Judicial Process, 1922. (Footnotes omitted), The judgment should be reversed. I am authorized to say that Goodwin, J., joins in this dissent. Doskow, Historic Opinions of the United States Supreme Court (1935). Coxe, Judicial Power and Unconstitutional Legislation (1893). Thayer, Thayer Legal Essays (1908). Haines, The American Doctrine of Judicial Supremacy (1932). Corwin, The Constitution and What It Means Today, 12th Ed. (1958). Carey, The Oregon Constitutional and Proceedings and Debates of the Constitutional Convention of 1857 (1926). Schwartz, The Supreme Court (1957). Warren, Congress, The Constitution and the Supreme Court (1935). Dodd, The Problem of State Constitutional Construction, 20 Col L Rev 635, 650, 651 (1920). Recent Decisions, Constitutional Laws — Presumption of Validity Not Applicable to Statutes Dealing with Civil Liberties, 40 Col L Rev 513, 531, 533, (1940). Case Note: Avoidance of Constitutional Issues in Civil Rights Cases, 48 Col L Rev 427 (1948). Shearer, The Political Utility of Judicial Review, 2 Kan L R 392 (1954). 33 Minn L Rev 390, 392, 393 (1949). The Supreme Court and Responsible Government 40, No. 1, Nebr L Rev 16 (1960). Dean, Judicial Review, Judicial Legislation and Judicial Oligarchy, 34 Or L Rev 20 (1954). Thiele, Jr., Judicial-Self Restraint in New Jersey, 8 Rutgers U L Rev 501 (1954). Jaffee, The Right to Judicial Review, Part 2, 1958, 71 Harv L R 769. Field, Unconstitutional Legislation in Minnesota, 35 American Political Science Review 898 (1941). Field, Unconstitutional Legislation in Indiana, 17 Ind L J 101, (1941). Hickman, Judicial Review of Legislation in Utah, 4 Utah L Rev 52, (1954). Haines, The American Doctrine of Judicial Review, supra, Note 1, p 148 et seq. Coxe, Judicial Power and Unconstitutional Legislation, supra, Note 1. Field, Unconstitutional Legislation in Minnesota, supra 35 American Political Science Review 898. Field, Unconstitutional Legislation in Indiana, supra, 17 Ind L J 101. Hickman, Judicial Review of Legislation in Utah, supra, 4 Utah L Rev 52. Field, Judicial Review of Legislation in Ten Selected States, 1943. The last cited compilation is not available to us. Our reference to this compilation is found in Hickman’s compilation of Utah decisions. He names only nine of the states, Colorado, Illinois, Indiana, Massachusetts, New Hampshire, New York, North Dakota, South Dakota and Wisconsin. Hickman makes this comparison: “More important that the number of statutes before the court is the subject matter of the statutes attacked. If all of the statutes attacked since 1896 be considered, the figures for Utah follow closely the data which Professor' Field collected for ten related states.” .He then presents a table showing that in the ten related states and in Utah, the subject of government was involved in 28 percent of the statutes. Next in numerical order in the ten states was the subject of Courts. For the ten states, the subject was involved in 18 percent of the statutes and in Utah 13 percent, which Utah was fourth in numerical order. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9794702. Public record. Not legal advice.