Brewer v. Department of Fish and Wildlife5/10/2000
ue 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 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 " 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 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 j
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