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Brewer v. Department of Fish and Wildlife5/10/2000
erpretive 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 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 " 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 " 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 " o law shall be passed restraining any of the inhabitants of the State from assembling together * * *." Article I, section 29, provides that " o law shall be passed granting any title of Nobility, or conferring hereditary distinctions." Article I, section 30, provides that " 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, " o law shall be passed."
Article I, section 10, is different. It does not begin with the phrase " o law shall be passed," rather, it begins with the words " 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 d
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