Brewer v. Department of Fish & Wildlife

LANDAU, P. J.,

concurring.

I join in the majority’s analysis and disposition of this case. It has struggled thoughtfully and candidly with the existing case law concerning the scope and effect of the so-called “remedies clause” of Article I, section 10, and has developed a test that is consistent with at least most of the more recent cases construing the clause. To be sure, the majority’s resolution cannot be reconciled with all of the applicable precedents. That is because the applicable precedents themselves cannot be reconciled. It is to explore that point that I write separately, in the hope that it may prompt some further reflection by the parties and by the courts.

The plain fact of the matter is that the case law construing Article I, section 10, is hopelessly confused. This is not an intemperate statement borne of disagreement with any particular case. It is the consensus of the scholarship. See, e.g., Jonathan Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or L Rev 1279, 1282 (1995) (“The courts are in total disarray over how to interpret [the open courts clause]”); David Schuman, Oregon’s Remedy Guarantee: Article I, Section 10 of the Oregon Constitution, 65 Or L Rev 35, 36 (1986) (“the remedy clause has not occasioned a coherent body of case law leading to anything that could be called an ‘interpretation.’ ”). Indeed, it is the Oregon Supreme Court’s assessment of its own cases. See, e.g., Neher v. Chartier, 319 Or 417, 423 , 879 P2d 156 (1994) (“This court’s case law throughout the nineteenth and twentieth centuries interpreting Article I, section 10, * * * has failed definitively to establish and consistently to apply any one theory regarding the protections afforded by the remedies guarantee.”).

There is a reason for this state of affairs. It is that the courts have failed to examine the language of Article I, section 10, in either its linguistic or historical context. The *192 courts instead have assumed that the constitution guarantees a substantive remedy for wrongs committed. At the same time, the courts have been unwilling to accept the clear implication of their assumption, that the “remedies clause” effectively freezes substantive rights as they existed at the time the Oregon Constitution was adopted. As a result, the history of Article I, section 10, jurisprudence consists of the courts attempting to steer a course between their assumption that the clause guarantees a substantive remedy for wrongs committed and their commitment not to construe the clause to mean just that.

It has proven to be an impossible task. The courts simply cannot have it both ways. Either the clause guarantees a substantive remedy for wrongs committed or it does not. The courts nevertheless stubbornly persist in allowing the legislature to restrict remedies in some cases, see, e.g., Kilminster v. Day Management Corp., 323 Or 618 , 919 P2d 474 (1996) (legislature may provide immunity for claim for injury or death to person covered by workers’ compensation law), but not in others, see, e.g., Neher, 319 Or at 426-28 (legislature may not provide that workers’ compensation is the sole remedy for injury or death to person in course of employment when it does not actually produce a remedy), on remarkably similar facts. The distinctions that the courts have drawn to justify these disparate results have become simply untenable.

I respectfully suggest that the answer lies in returning to first principles and not in continuing to parse through the existing case law to articulate increasingly clever factual distinctions. The Supreme Court has identified an interpretive methodology for the construction of the Oregon Constitution. Its focus is the language of the constitution and its intended meaning by those who enacted it. See Priest v. Pearce, 314 Or 411, 415-16 , 840 P2d 65 (1992). I would apply that methodology. So doing would lead to the conclusion that the source of the problem is the court’s assumption that Article I, section 10, was intended to function as a substantive remedies clause. The assumption is wrong. Neither the language nor the relevant history supports it. To the contrary, the language and history of Article I, section 10, establish that it was intended to function as an “open courts” clause, to *193 guarantee that everyone will have access to the courts to seek whatever remedies the law may provide, not as a guarantee that the law must provide a remedy.

I begin with the language of Article I, section 10, in full:

“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.”

Examination of that language leads immediately to an important observation: What is commonly known as the “remedies clause” actually is only part of a complete sentence, the subject of which is not the creation of substantive rights but the prohibition of limitations on access to the courts. Thus, the target of Article I, section 10, is the courts, not the legislature.

The importance of the point cannot be overemphasized. The framers of the Bill of Rights knew well enough how to direct constitutional limitations to the legislature. Article I, section 8, for example, directs that “[n]o law shall be passed restraining the free expression of opinion * * *.” It is plainly a limitation on the authority of the legislature to pass laws. Similarly, Article I, section 20, provides that “[n]o law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” Again, the focus is the legislature and its authority to pass laws. Other sections follow the same pattern. Article I, section 26, provides that “[n]o law shall be passed restraining any of the inhabitants of the State from assembling together * * *.” Article I, section 29, provides that “[n]o law shall be passed granting any title of Nobility, or conferring hereditary distinctions.” Article I, section 30, provides that “[n]o law shall be passed prohibiting emigration from the State.” In each case, the focus on the powers of the legislature are made plain by the introductory phrase, “[n]o law shall be passed.”

Article I, section 10, is different. It does not begin with the phrase “[n]o law shall be passed,” rather, it begins *194 with the words “[n]o court shall.” Plainly, the focus is not on the power of the legislature to enact laws, but on the power of the courts.

What are the limitations on the power of the courts? Article I, section 10, lists several. The courts may not “be secret.” They must administer justice “openly and without purchase, completely and without delay.” And, they must be open to “every man” to obtain “remedy by due course of law.”

I am aware of the fact that Article I, section 10, consists of two independent clauses, the second of which begins “and every man shall have remedy by due course of law.” But that clause cannot properly be read in a vacuum. It remains part of a single sentence and should be construed as such. Moreover, I note that the second clause, even taken by itself, does not guarantee to every man a remedy for every injury. It provides that every man “shall have remedy by due course of law,” that is, every man shall have whatever remedy the “due course of law” provides. That is the only reading of the clause that is consistent with the subject of the sentence as a whole.

Thus, the focus of Article I, section 10, cannot be mistaken. It does not address the power of the legislature to enact laws generally, much less the power of the legislature to eliminate particular remedies for particular wrongs. Nor does it guarantee particular remedies for wrongs committed. It provides that every person shall find in the courts “remedy by due course of law.”

From the text of Article I, section 10, therefore, it seems plain enough to me that the constitution was never intended to confer the right that the courts of this state long have assumed that it does. It guarantees access, not substantive rights.

The history of Article I, section 10, appears to bear out what its text so strongly suggests. Indeed, the Oregon Supreme Court already has noted that Article I, section 10, is rooted in colonial concerns for the integrity of, and free access to, the courts. In Bryant v. Thompson, 324 Or 141 , 922 P2d 1219 (1996), the court addressed whether Article I, section *195 10, in requiring that “justice shall be administered * * * completely,” means that post-conviction proceedings must be litigated to a conclusion before the state may execute a person convicted of a capital crime. After reviewing the history of the provision, the court concluded that Article I, section 10, was “intended to promote and protect an independent judiciary,” not to require a particular remedy in every death-penalty case. Id. at 149 .

In my view, the court was correct in Bryant . What is mystifying is how the court in one case can declare that, based on an examination of the historical sources, Article I, section 10, was never intended to guarantee a particular remedy, and in other cases adhere to the assumption that the constitution does precisely that.

Apparently, the court has divided Article I, section 10, into two distinct provisions. The first is an “open courts” provision, which the court applied in Bryant , and which the court concluded did not guarantee any particular substantive rights. The second is a “remedies” provision, which the court persists in concluding does guarantee, at least in some cases, particular substantive rights. The problem is that the history of the clause as a whole will not sustain such an artificial distinction. Both clauses of Article I, section 10, are rooted in the same history.

The language of Article I, section 10 — both clauses— derives principally from Lord Edward Coke’s Second Institutes, in the portion that comments on the Magna Carta. Article 40 of the Magna Carta had proclaimed that “[t]o none will we sell, to none deny or defer, right and justice.” Coke expounded on Article 40 as follows:

“And therefore every Subject of this Realm, for injury done to him in bonis, terris, vel persona [goods, lands, or person], by any other subject, be he Ecclesiastical, or Temporal, Free or Bond, Man or Woman, Old or Young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice and right for the injury done him, freely without sale, fully without denial, and speedily without delay.”

Lord Edward Coke, The Second Part of the Institutes of the Lawes of England, 55-56 (1642). Coke wrote not merely to *196 explain Magna Carta but also to support a lifelong fight against the Crown’s interference with the work of the common-law courts. His concerns, in particular, were the corruption of the courts, the sale of judicial offices, and the partiality of judicial decisions.

In that regard, Coke’s language deserves more careful scrutiny. I note especially that his focus was not on the guarantee of any particular substantive right but on the availability of impartial justice to “every Subject of this Realm.” According to Coke, “every Subject * * * may take his remedy by the course of the Law.” But the emphasis is not on the “remedy.” Instead, it-is the fact that such remedy as the “due course of the Law” affords is available to “every Subject * * * be he Ecclesiastical, or Temporal, Free or Bond, Man or Woman, Old or Young, or be he outlawed, excommunicated, or any other without exception.” (Emphasis added.)

Similar concerns occupied lawyers in colonial America, who faced repeated interference with their courts by the Crown. Not surprisingly, those lawyers, well aware of Coke’s Institutes and the conditions that engendered them, looked to him in expressing their concerns. Resort to Coke first found expression in the Delaware Constitution of 1776, which provides:

“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 without delay, according to the law of the land.”

Del Decl of Rights, Art XII (1776). That this provision was addressed to open access and not to any limitation of the legislature’s authority was confirmed by other provisions of the constitution, among them one that expressly adopted the common law of England “unless they shall be altered by a future law of the Legislature.” Del Const of 1776, Art 25. Other states followed suit, enacting variations on the same theme. Oregon’s Article I, section 10, plainly is patterned after such provisions as Delaware’s, although the precise language is slightly different.

*197 I have found nothing in the history of Article I, section 10, or its counterparts in any of the 35 other state constitutions that contain similar provisions, suggesting an intention to guarantee a right to a particular remedy. What seems clear to me is that, in light of Coke’s concerns expressed in his famous Institutes, and in light of the similar concerns of the framers of early state constitutions, the language that made its way into Article I, section 10, historically was understood to guarantee open access to a fair and impartial court, not to guarantee that the legislatures would not alter the substance of rights and remedies in the future. Thus, the relevant history simply will not support the practice of the Oregon courts in treating the language of Article I, section 10, as two separate provisions, one assuring an open and impartial court and the other ensuring a remedy for every wrong.

I hasten to add that neither the analysis nor the conclusion that I assert is particularly revolutionary. The history of Article I, section 10, for example, has been noted by other courts and is set out in various scholarly works. Particularly enlightening is Hoffman’s excellent By the Course of Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or L Rev 1291 (1995). Indeed, a number of other states have consulted the language and history of their similarly worded open courts provisions and concluded that they guarantee only access, not substantive rights. The comments of the Supreme Court of Montana in Stewart v. Standard Pub. Co., 102 Mont 43 , 55 P2d 694, 696 (1936), are representative:

“A reading of the [state remedy clause] discloses that it is addressed exclusively to the courts. The courts are its sole subject matter, and it relates directly to the duties of the judicial department of the government. It means no more nor less than that, under the provisions of the Constitution and laws constituting them, the courts must be accessible to all persons alike, without discrimination, at the time or times, and the place or places, appointed for their sitting, and afford a speedy remedy for every wrong recognized by law as being remediable in court.”

See also Quesnel v. Town of Middlebury, 167 Vt 252, 258, 706 A2d 436, 439 (1997) (state open courts clause “does not create substantive rights * * * it merely provides access to the courts”); Crier v. Whitecloud, 496 So 2d 305, 309-10 (La 1986) *198 (“From this history [of the state open courts clause] we conclude that * * * the Constitutional Convention did not intend to limit the legislature’s ability to restrict causes of action or to bar the legislature from creating various forms of statutory immunity from suit. * * * The constitutional guarantee providing for open courts and insuring a remedy for injuries does not warrant a remedy for every injury.”); Andrews v. O’Hearn, 387 NW2d 716, 723 (ND 1986) (“[o]ur research shows that [the open courts clause of the state constitution] has been repeatedly construed as a guarantee of access to our State system of justice”); Singer v. Sheppard, 464 Pa 387, 400, 346 A2d 897, 903 (1975) (“nothing in [the state constitution] prevents the legislature from extinguishing a cause of action”); Nash v. Baker, 522 P2d 1335, 1338 (Ok 1974) (state open courts clause “does not promise a remedy to every complainant * * * [i]t does not prevent the Legislature from creating new legal rights * * * or from increasing or reducing or changing the scope of such a right or the remedy for its violation”).

Certainly, not all states have arrived at the same conclusion. See generally David Schuman, The Right to a Remedy, 65 Temple L Rev 1197 (1992) (categorizing various state interpretations of open courts clauses). But those states tend not to be as committed to a method of state constitutional interpretation that emphasizes the text of a provision and its intended meaning as Oregon is under Priest . Moreover, a substantial number of those other states also rely on “balancing,” holding that although the open courts clauses may have some substantive content, it is subject to reasonable legislative qualification, an approach that generally is considered anathema to Oregon constitutionalism.

Of course, as the Court of Appeals, we are not free simply to wipe the proverbial slate clean of all existing precedent and start with a fresh examination of the text and history of Article I, section 10. Only the Supreme Court can reexamine its assumptions about the meaning and effect of that constitutional provision. Perhaps this case will provide an opportunity for the court to do so. In the meantime, I support the majority’s opinion, which does the best that can be done with the law as we must accept it.

Linder, J., joins in this concurrence.