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Lawson v. Hoke9/9/2005
32 Or at 104. During the nineteenth century, state courts used their remedies clauses to prevent legislative interference with judicial proceedings. Id. at 108-12. Smothers ascertained:
" hen the Oregon Constitutional Convention convened in 1857, courts and commentators had provided considerable insight into the background and meaning of remedy clauses in state declarations or bills of rights. Those cases and commentaries revealed that the purpose of remedy clauses was to protect 'absolute' common-law rights. For injuries to those rights, the remedial side of the common law had provided causes of action that were intended to restore right or justice. Remedy clauses mandated the continued availability of remedy for injury to absolute rights. The requirement that remedy be by due course or due process of law was intended as a limitation on the legislature's authority when it substituted statutory remedies for common-law remedies. It was the duty of courts to enforce those restraints in evaluating whether particular statutory remedies satisfied the requirement that remedy be by 'due course of law.'"
Id. at 112. In light of its historical analysis, the court confirmed that "the history of the remedy clause indicates that its purpose is to protect absolute common-law rights respecting person, property, and reputation, as those rights existed when the Oregon Constitution was drafted in 1857." Id. at 118.
Based on the foregoing understanding of the remedies clause, Smothers struck down the legislature's imposition of a barrier to recovery for an injury that the court determined was compensable at common law, namely, an employee's cause of action against an employer for failing to provide a safe work environment. 332 Or at 135-36. Smothers observed that, in 1857, a citizen enjoyed the right to recover for injuries suffered through negligence of others. Id. at 129. The plaintiff in Smothers was unconstitutionally denied his right to a remedy when the legislatively created workers' compensation system failed to award him damages for his injuries. More generally, however, Smothers established that the Oregon Constitution protects the compensatory purpose of the civil justice system from legislative interference.
In this case, the legislature has imposed a barrier to recovery of non-economic damages in certain kinds of motor vehicle accidents, based on whether the plaintiff has contracted for motor vehicle insurance before the time of the accident. The majority concludes that the legislature may raise such a barrier because plaintiff's common-law right to recover for injuries negligently inflicted by another person was not unfettered or absolute at the time that the Oregon Constitution was drafted. Unfortunately, rather than basing its reasoning in the constitutional text, history, and theory that this court outlined in Smothers, the majority defends its conclusion by referring to a few scattered examples of nineteenth-century laws regarding Sunday travel and livestock fencing enacted in other states.
The majority's examples --- put forward to show that the original understanding of the remedies clause permitted the legislature to enact barriers to recovery in tort --- are not compelling, given that they must overcome the primary purpose of the remedies clause, which was designed to protect individual rights. First, the fact that a legislature in some state enacted a certain kind of legislation during the nineteenth century proves little assistance to the analysis, because the legislation advanced as an example itself may have been contrary to the constitutional principle. In fact, Smothers points out that remedies clauses were enshrined in state constitutions out of d
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