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Lawson v. Hoke9/9/2005
istrust for legislative power because such power could be used to enact laws in derogation of the peoples' rights to complete remedy. Id. at 106-07.
Second, the fact that the majority has located a few judicial decisions that did not strike down laws enacted in violation of a constitutional provision, such as a remedies clause, does not establish conclusively that the law did not violate the remedies clause. None of the cases that the majority cites as support of its narrowed view of the remedies clause includes a discussion of the remedies clause in that state's constitution.
The cases on which the majority relies prove only that some legislatures were willing to enact legislation qualifying a plaintiff's right to recover for injuries in some circumstances. Reliance on the legislation revealed in those cases, however, is not a legal construction of the Oregon remedies clause that this court should accept in deciding to narrow the protection heretofore afforded by the remedies clause under Smothers.
Contrary to the impression that the majority's case discussion creates, other cases from the mid-nineteenth century demonstrate that state remedies clauses were understood to protect plaintiffs from legislative deprivation of a right of recovery of the kind at stake here. See Eastman v. County of Clackamas, 32 Fed 24, 32 (D Or 1887) (Deady, J) ("Can the legislature, in some spasm of novel opinion, take away every man's remedy for slander, assault and battery, or the recovery of a debt? and, if it cannot do so in such cases, why can it in this?"); Passenger Railway Co. v. Boudrou, 92 Pa 475 (1880) (court declared statute limiting damages to $3000 to be unconstitutional; "limitation of recovery to a sum less than the actual damage, is palpably in conflict with the right to remedy by the due course of law"); Davis v. Pierse, 7 Minn 1 (1862) (court declared statute barring "all persons aiding the rebellion" from prosecuting judicial proceedings to be unconstitutional under state's remedy clause).
The legislature has the power to criminally punish or administratively sanction drivers who operate a motor vehicle without liability insurance. However, the remedies clause prohibits the legislature from interfering with recovery for injury to absolute common-law rights respecting person, property, or reputation. Smothers 332 Or at 124. Smothers makes it clear that plaintiff's cause of action against another driver who negligently caused plaintiff's injury is the kind of absolute common-law right that was intended to be protected by the remedies clause at the time the Oregon Constitution was drafted. I would hold that ORS 31.715, by precluding plaintiff from recovering "non-economic damages" for the injuries she that sustained, violates the remedies clause of Article I, section 10.
For the foregoing reasons, I dissent.
Durham and Riggs, JJ., join in this dissent.
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