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Brewer v. Department of Fish and Wildlife5/10/2000
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) ("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) (" 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 * * * 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 re-examine 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.
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