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Brewer v. Department of Fish and Wildlife5/10/2000
S 105.682, and thus controls over that statute, that is not what plaintiff is arguing here. Rather, plaintiffs are contending that, because ORS 30.265 and ORS 105.682 "bestow" different types (or quantities) of immunity on the state, a remedies clause violation has occurred. However, as applied to state defendants, neither statute bestows any immunity that the state otherwise would not have because no affirmative act of the legislature is necessary to establish the state's sovereign immunity. Thus, plaintiffs cannot demonstrate by reliance on those statutes that the legislature has recognized a right to recover against state defendants but denied them a remedy by "bestowing" immunity on the state defendants via a statutory enactment. We conclude that the trial court correctly dismissed the claims against the state defendants.
We now turn to plaintiffs' claims against defendant Swackhammer.
The question before us is whether the legislature, in enacting the Act, has permissibly abolished a right of action or impermissibly abolished a remedy while recognizing a right, in violation of Article I, section 10. Given recent case law construing Article I, section 10, the answer to that question is less than clear.
We recognize at the outset that the problem presented by this case is not an easy one to resolve because no developed, comprehensive and coherent body of case law interpreting the remedies clause of Article I, section 10, exists. As numerous scholarly commentators and the Oregon Supreme Court itself have noted, the scope of the remedies clause is less than clear from the text of the constitutional provision and the case law interpreting it. See Neher v. Chartier, 319 Or 417, 422-23, 879 P2d 156 (1994) (noting variations in the application of this provision); Hale v. Port of Portland, 308 Or at 519 (describing Article I, section 10, jurisprudence as "convoluted"); Jonathan Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or L Rev 1279 (1995); David Schuman, The Right to a Remedy, 65 Temp L Rev 1197 (1992); David Schuman, Oregon's Remedy Guarantee: Article I, Section 10 of the Oregon Constitution, 65 Or L Rev 35 (1986); Hans Linde, Without "Due Process": Unconstitutional Law in Oregon, 49 Or L Rev 125 (1970). One proposition of "black letter" law has emerged from the relative chaos of the case law interpreting Article I, section 10: The legislature cannot "abolish a remedy and at the same time recognize the existence of a right." Hale, 308 Or at 521, quoting Noonan v. City of Portland, 162 Or 213, 249-50, 88 P2d 808 (1939). See also Sealey, 309 Or at 394 ("The legislature has the authority to determine what constitutes a legally cognizable injury .").
In Neher, the court stated:
" his court recognized the legislature's ability to change the law, and in fact to abolish entirely a right of action, whether or not the right involved had existed at common law at the time of the Oregon Constitutional Convention. * * * The legislature's ability to make such alterations to rights of action, however, was not unfettered: it could not abolish a remedy and at the same time recognize the existence of a right." 319 Or at 427-28 (citations and internal quotation marks omitted).
The question before the court in Neher was whether a plaintiff in a wrongful death case could recover for the death of a decedent who was struck by a Tri-Met bus in the course of her employment. The decedent was covered by workers' compensation at the time of her death, and, under workers' compensation law, her estate was entitled to a burial fee of up to $3,000. Id. at 420-21. ORS 30.265(3) provided in part that public bodies and th
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