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Brewer v. Department of Fish and Wildlife5/10/2000
0, of the Oregon Constitution.
Affirmed.
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 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 int
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