168 May 5, 2016 No. 26

IN THE SUPREME COURT OF THE

STATE OF OREGON

Lori HORTON,

as guardian ad litem and

Conservator of and for

T. H., a Minor,

Plaintiff-Respondent,

and

Lori HORTON,

individually;

and Steve Horton,

Plaintiffs,

v.

OREGON HEALTH

AND SCIENCE UNIVERSITY,

a Public Corporation,

Defendant,

and

Marvin HARRISON, M.D.,

Defendant-Appellant,

and

PEDIATRIC SURGICAL ASSOCIATES, P.C.,

an Oregon Professional Corporation;

 and Audrey Durrant, M.D.,

Defendants.

(CC 1108-11209; SC S061992)

On direct appeal from the judgment of the Multnomah 

County Circuit Court.*

Argued and submitted November 6, 2014.

Roy Pulvers, Holland & Knight, LLP, Portland, argued 

the cause and filed the briefs on behalf of appellant. With 

him on the briefs was Janet M. Schroer, Hart Wagner LLP.

______________

* On appeal from a limited judgment, Jerry B. Hodson, Judge. Multnomah 

County Circuit Court, January 6, 2014.
Cite as 359 Or 168 (2016) 169

Maureen Leonard, Portland, argued the cause and filed 

the brief on behalf of respondent. With her on the brief were 

David K. Miller and Robert S. Wagner, Miller & Wagner 

LLP, Portland.

Kimberley Sewell, Tri-County Metropolitan Transportation

District of Oregon, Portland, filed the brief for amicus curiae

Tri-County Metropolitan Transportation District of Oregon.

Keith M. Garza, Oak Grove, filed the brief for amicus curiae Governor John Kitzhaber, M.D.

Harry Auerbach, Chief Deputy City Attorney, Portland, 

filed the brief for amici curiae League of Oregon Cities and 

Association of Oregon Counties.

Lindsey H. Hughes, Keating Jones Hughes, P.C., 

Portland, filed the brief for amicus curiae Oregon Medical 

Association. With her on the brief were Hillary A. Taylor 

and Tamara X. Arthur.

Thomas W. McPherson, Mersereau Shannon, LLP, Portland,

filed the brief for amici curiae Oregon School Boards 

Association, Citycounty Insurance Services, Special Districts 

Association of Oregon, University of Oregon, Oregon State 

University, and Portland State University.

Travis Eiva, The Corson & Johnson Law Firm, Eugene, 

filed the brief for amicus curiae Oregon Trial Lawyers 

Association.

Before Balmer, Chief Justice, and Kistler, Walters, 

Landau, Baldwin, and Brewer, Justices, and Linder, Senior 

Justice pro tempore.**

KISTLER, J.

The judgment of the circuit court is reversed, and the 

case is remanded to the circuit court for further proceedings.

Landau, J., concurred and filed an opinion.

Walters, J., dissented and filed an opinion, in which 

Baldwin, J., joined.

______________

** Nakamoto, J., did not participate in the consideration or decision of this 

case.
170 Horton v. OHSU

Case Summary: Plaintiff’s six-month-old son developed a cancerous mass on 

his liver. During an operation to remove that mass, a doctor at Oregon Health 

Sciences University (OHSU) inadvertently transected blood vessels leading to 

the child’s liver, requiring a liver transplant and lifetime monitoring. Pursuant 

to an agreement, OHSU and the doctor admitted liability, and a jury found that 

plaintiff’s son sustained approximately $12 million dollars in economic and noneconomic damages. On post-verdict motions, the trial court ruled that the Oregon 

Tort Claims Act damages limit of $3 million could constitutionally be applied to 

OHSU. The court ruled that applying that limit to the doctor would violate the 

remedy clause of Article I, section 10, of the Oregon Constitution, and the jury 

trial clauses of Article I, section 17, and Article VII (Amended), section 3. Held: 

(1) Article I, section 10, does not tie the legislature to a state conception of the 

common law as it existed in 1857; the contrary holding in Smothers v. Transfer, 

Inc., 332 Or 83, 23 P3d 333 (2001), is overruled; (2) Article I, section 10, leaves 

the legislature latitude, within constitutional limits, to adjust a party’s commonlaw duties and remedies; waiving the state’s sovereign immunity and extending 

the $3 million Tort Claims Act limit to state employees permissibly advances the 

state’s constitutionally recognized interest in sovereign immunity while ensuring 

that a solvent defendant is available to pay a plaintiff’s damages up to that limit; 

(3) Article I, section 17, protects a plaintiff’s and defendant’s procedural right 

to a trial by jury for those claims and defenses that customarily were tried to a 

jury in 1857 and in cases of like nature; (4) Article I, section 17, does not place a 

substantive limit on the legislature’s authority to define the nature and extent of 

damages that are available in a civil case; the contrary holding in Lakin v. Senco 

Products, Inc., 329 Or 62, 987 P2d 463, modified, 329 Or 369, 987 P2d 476 (1999), 

is overruled; (4) Article VII (Amended), section 3, prohibits courts from setting 

aside a jury’s verdict in an individual case on the ground that it is contrary to the 

weight of the evidence; it does not place a substantive limit on the legislature’s 

authority to determine the nature or extent of damages in civil cases.

The judgment of the circuit court is reversed, and the case is remanded to the 

circuit court for further proceedings.
Cite as 359 Or 168 (2016) 171

KISTLER, J.

The question that this case presents is whether 

a statute limiting a state employee’s tort liability violates 

either the remedy clause of Article I, section 10, of the 

Oregon Constitution or the jury trial clauses of Article I, section 17, and Article VII (Amended), section 3, of the Oregon 

Constitution. The trial court held that the statute, as applied 

to the state employee, violated each of those provisions and 

entered a limited judgment against the employee for the full 

amount of the jury’s verdict. On direct appeal, we reverse 

the trial court’s limited judgment and remand this case to 

the trial court for entry of a judgment consistent with this 

decision.

Plaintiff’s six-month-old son developed a cancerous 

mass on his liver. Two doctors at Oregon Health & Science 

University (OHSU) participated in an operation to remove 

the mass: Dr. Harrison, a specialist in pediatric surgery, 

and Dr. Durant, a pediatric surgical fellow in training. 

During the operation, the doctors inadvertently transected 

blood vessels going to the child’s liver. That act has resulted 

in the child having to undergo a liver transplant, removal of 

his spleen, additional surgeries, and lifetime monitoring due 

to the risks resulting from the doctors’ act.

Plaintiff brought this action on her son’s behalf 

against Harrison, Durant, OHSU, and Pediatric Surgical 

Associates, P.C. The trial court granted Pediatric Surgical 

Associates’ motion for summary judgment, and it dismissed 

Durant as a result of an agreement among plaintiff, OHSU, 

and Harrison. Pursuant to that agreement, Harrison and 

OHSU admitted liability for the child’s injuries and plaintiff’s case against Harrison and OHSU went to the jury 

to determine the amount of the child’s damages. The jury 

found that plaintiff’s son had sustained and will sustain 

economic damages of $6,071,190.38 and noneconomic damages of $6,000,000.

After the jury returned its verdict, OHSU and 

Harrison filed a motion to reduce the jury’s verdict to 

$3,000,000 based on the Oregon Tort Claims Act. The trial 

court granted the motion as to OHSU. It ruled that, because 

sovereign immunity applies to OHSU, the legislature 
172 Horton v. OHSU

constitutionally may limit the damages for which OHSU is 

liable. See Clarke v. OHSU, 343 Or 581, 600, 175 P3d 418 

(2007) (so holding). The trial court, however, denied the 

motion as to Harrison. Harrison had argued that, in 1857, 

he would have been entitled to discretionary immunity for 

errors occurring during surgery. It followed, he reasoned, 

that, because he would not have been liable for any damages 

in 1857 for his negligence, the Tort Claims Act limit may be 

applied constitutionally to him. The trial court disagreed 

with that argument. It then ruled that the Tort Claims Act 

limit, as applied to Harrison, violated the remedy clause of 

Article I, section 10, and the jury trial clauses of Article I, 

section 17, and Article VII (Amended), section 3. The court 

accordingly entered a limited judgment against Harrison 

for all the damages that the jury had awarded.

Harrison (defendant) filed a direct appeal to this 

court from the limited judgment. See ORS 30.274(3) (providing for direct appeals to this court from limited judgments arising from application of tort claims limitations).1

On appeal, he assigns error to the trial court’s post-verdict 

ruling denying his motion to limit the jury’s verdict against 

him pursuant to the Tort Claims Act. He raises three arguments in support of that assignment. Initially, he reasserts 

the discretionary immunity argument that the trial court 

rejected. Alternatively, he asks us to reexamine our cases 

interpreting the remedy clause and the jury trial clauses. 

He raises separate arguments regarding each clause, but 

essentially he contends that our cases interpreting those 

clauses rest on a faulty understanding of history, are inconsistent with later cases, and should be overruled.

Having considered defendant’s discretionary immunity argument, we agree with the trial court’s ruling on that 

issue. Explaining why we agree would be of little value to 

anyone other than the parties. We accordingly uphold the 

trial court’s ruling on that issue without further discussion 

and turn to the question whether the limit that the Tort 

Claims Act places on a state employee’s damages violates 

1 The trial court’s limited judgment arises from its ruling on the Tort Claims 

Act limitation but does not encompass its other rulings regarding plaintiffs’ 

claims. See Horton v. OHSU, 277 Or App 821, ___ P3d ___ (2016) (addressing 

plaintiffs’ appeal from other trial court rulings).
Cite as 359 Or 168 (2016) 173

either the remedy clause of Article I, section 10, or the 

jury trial clauses of Article I, section 17, and Article VII 

(Amended), section 3.

As explained below, we conclude that the right to a 

remedy protected by Article I, section 10, and the right to a 

jury trial protected by Article I, section 17, address related 

but separate issues. Article I, section 10, limits the legislature’s substantive authority to alter or adjust a person’s 

remedy for injuries to person, property, and reputation. 

Article I, section 17, guarantees a jury trial in those classes 

of cases in which the right to a jury trial was customary 

at the time the Oregon Constitution was adopted and in 

cases of like nature. However, Article I, section 17, places no 

additional substantive limit on the legislature’s authority to 

alter or adjust remedies beyond that found in Article I, section 10. Accordingly, we begin with the question whether the 

Tort Claims Act limit violates the remedy clause of Article I, 

section 10.

I. ARTICLE I, SECTION 10

The Tort Claims Act both waives the state’s sovereign immunity and, as applicable here, limits the tort 

liability of the state and its employees to $3,000,000. ORS 

30.265(1); ORS 30.271(3)(a).2

 The act imposes, as a matter 

of Oregon law, a legal limit on the amount of damages that 

a plaintiff may recover against the state and its employees. 

Following Smothers v. Gresham Transfer, Inc., 332 Or 83, 

23 P3d 333 (2001), the trial court ruled that, as applied to 

defendant, the Tort Claims Act limit violated the remedy 

clause of Article I, section 10.3

 On appeal, defendant argues 

that we should overrule Smothers, as well as our other remedy clause cases, and hold that Article I, section 10, is not “a 

substantive guarantee of a remedy * * * [but] rather, guarantees access to the courts [only] for such remedies as the law 

may provide.” Defendant and his amici argue that Smothers 

2 The Tort Claims Act imposes a different monetary limit on tort claims 

against a local public body and its employees. ORS 30.272.

3 As discussed below, Article I, section 10, contains three independent 

clauses. The parties’ arguments focus on the third of those clauses, the remedy 

clause. That clause provides that “every man shall have remedy by due course of 

law for injury done him in his person, property, or reputation.” Or Const, Art I, 

§ 10.
174 Horton v. OHSU

based its holding on an incomplete view of the historical 

circumstances surrounding Oregon’s remedy clause and 

drew inferences that even its doubtful premises cannot support. See generally Jonathan M. Hoffman, Questions Before 

Answers: The Ongoing Search to Understand the Origins of 

the Open Courts Clause, 32 Rutgers LJ 1005 (2001) (detailing some of the historical assumptions in Smothers that may 

have been faulty); see also Klutschkowski v. PeaceHealth, 

354 Or 150, 178-96, 311 P3d 461 (2013) (Landau, J., concurring) (describing problems with the historical analysis 

in Smothers). Alternatively, defendant argues that, even if 

Smothers is good law, the damages available under the Tort 

Claims Act are “substantial” and thus constitutional. See 

Howell v. Boyle, 353 Or 359, 298 P3d 1 (2013).

Plaintiff responds that Smothers “was a correct 

interpretation of the remedy clause,” although she does not 

question the history on which defendant relies. Plaintiff 

relies instead on an earlier line of this court’s cases interpreting the remedy clause, which consistently have held that 

the remedy clause imposes a substantive limit on the legislature’s authority to alter or adjust remedies for certain kinds 

of injuries. As plaintiff interprets Smothers, that decision

did not tie the protections of the remedy clause to Oregon 

common law as it existed in 1857. Rather, plaintiff contends 

that Smothers requires a remedy that “‘either restores the 

status quo or compensates the injured party for the loss.’” 

(Quoting Holden v. Pioneer Broadcasting Co., 228 Or 405, 

365 P2d 845 (1961) (Goodwin, J., dissenting), cert den, 370 

US 157 (1962)).

Plaintiff’s argument appears to rest on the proposition that the legislature may not limit either the nature or 

extent of common-law remedies but that it may extend those 

remedies to new subjects, expand the scope of available 

damages, and abrogate common-law defenses. In plaintiff’s 

view, this court’s decisions in Howell and Lawson v. Hoke, 

339 Or 253, 119 P3d 210 (2005), departed from a correct 

understanding of the remedy clause because Howell and 

Lawson (but not Smothers) “‘froz[e] common law’ by reducing the protections of Article I, section 10 to the claims that 

might have been successfully litigated in 1857.”
Cite as 359 Or 168 (2016) 175

As we understand the parties’ arguments, they 

agree that the remedy clause should not be tied strictly to 

Oregon common law as it existed in 1857. They disagree, 

however, whether the remedy clause places any substantive limit on the legislature’s authority. It follows that 

the parties’ arguments present two related but separate 

issues. The first is whether Smothers tied the meaning of 

the remedy clause to Oregon common law as it existed in 

1857 and, if it did, whether it erred in doing so. The second 

is whether our other remedy clause cases erred in holding that the remedy clause places a substantive limit on 

the legislature’s ability to modify remedies. In considering 

those issues, we first describe our decision in Smothers. We 

then explain why we conclude that Smothers clearly erred 

in tying the remedy clause to the common law in 1857 and 

should be overruled. We next explain why we disagree with 

defendant that we should overrule our other cases holding 

that the remedy clause places a substantive limit on legislative authority. Finally, we explain why the limitation 

on damages against state employees does not violate the 

remedy clause.

A. Smothers

In Smothers, the court stated that our cases interpreting the remedy clause have not been consistent, and it 

sought to provide a definitive interpretation of that clause. 

332 Or at 90. Using the methodology set out in Priest v. 

Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992), the court 

considered the text of Article I, section 10, its history, and 

our cases interpreting the remedy clause. Smothers, 332 

Or at 91-123. After surveying Magna Carta, Coke’s Second 

Institute, Blackstone’s Commentaries, and decisions from 

other states interpreting their remedy clauses, Smothers 

concluded that the historical purpose of the remedy clause 

was “to mandate the availability of a remedy by due course 

of law for injury to absolute rights respecting person, property, and reputation.” Id. at 114.

Smothers explained that, to give effect to that purpose, Oregon courts should ask two questions. The first is 

“whether the plaintiff has alleged an injury to one of the 

absolute rights that Article I, section 10 protects.” Id. at 124. 
176 Horton v. OHSU

Because Smothers concluded that an “injury,” as that term 

is used in the remedy clause, is a “wrong or harm for which a 

cause of action existed when the drafters wrote the Oregon 

Constitution in 1857,” it restated the first question as follows: “[W]hen the drafters wrote the Oregon Constitution 

in 1857, did the common law of Oregon recognize a cause of 

action for the alleged injury?” Id.

Smothers stated that, if the answer to that question 

is “yes,” then the remedy clause mandates that a constitutionally adequate remedy for that injury be available. Id.

The court observed that “[a] common-law cause of action is 

a constitutionally adequate remedy for seeking redress for 

injury to protected rights.” Id. Smothers also recognized, 

however, that the remedy clause “does not freeze in place 

common-law causes of action that existed when the drafters 

wrote the Oregon Constitution in 1857.” Id. The legislature 

may modify or abolish a common-law remedy “so long as it 

provides a substitute remedial process” for injuries to “absolute rights that the remedy clause protects.” Id. Because 

the legislature may provide a substitute remedial process 

for common-law injuries to absolute rights, the court formulated a second question to implement the remedy clause: If 

the legislature has abolished a common-law cause of action 

for protected injuries, has the legislature “provided a constitutionally adequate substitute remedy for the common-law 

cause of action for that injury?” Id.

Applying that framework to the claim in Smothers, 

the court explained that, in 1857, the plaintiff in Smothers 

would have had a cause of action against his employer for 

negligently exposing him to dangerous fumes that were “a 

contributing cause” of his injuries. Id. at 129-33. The legislature, however, made workers’ compensation the plaintiff’s 

exclusive remedy, and it required that the plaintiff prove 

that his employer’s negligence was “the major contributing 

cause” of his injury to recover under workers’ compensation. 

Id. at 133. Because the plaintiff could not make that showing, Smothers held that the workers’ compensation statute, 

as applied, violated the remedy clause; that is, the workers’ 

compensation statute violated the remedy clause because it 

denied the plaintiff any remedy for an injury—bodily harm 
Cite as 359 Or 168 (2016) 177

for which the defendant’s negligence was a contributing 

cause—that would have been actionable under the common 

law of Oregon in 1857. Id. at 133-36.

Smothers did not reach the question of when a modified remedy for an injury that was actionable in 1857 will 

be “constitutionally adequate.” Id. at 120 n 19. The court 

explained:

“[T]he only question in this case is whether the legislature 

has deprived plaintiff of a means for seeking redress for the 

injury [that was recognized at common law in 1857 and] 

that he alleges that he suffered at work. Accordingly, it is 

beyond the scope of this opinion to address issues relating to the adequacy of the amount of damages that may 

be available under a legislatively substituted process for a 

common-law cause of action for injury to one of the rights 

that is protected by the remedy clause.”

Id. (emphasis in original). The court noted that other cases 

had stated that a remedy will be constitutionally adequate 

if it is “substantial.” Id. For instance, in Hale, this court concluded that, in determining the adequacy of a remedy, “the 

remedy need not be precisely of the same type or extent; it 

is enough that the remedy is a substantial one.” Hale v. Port 

of Portland, 308 Or 508, 523, 783 P2d 506 (1989). See also 

Neher v. Chartier, 319 Or 417, 426, 879 P2d 156 (1994) (citing rule from Hale); Greist v. Phillips, 322 Or 281, 291, 906 

P2d 789 (1995) (same).

As we read Smothers, it tied the meaning of the 

remedy clause to Oregon common law in 1857 in two ways. 

First, if the common law of Oregon provided a cause of action 

for an injury to person, property, or reputation in 1857, then 

the law must continue to provide some remedy for that historically defined injury. Not only did Smothers say so explicitly, but it held the workers’ compensation statute unconstitutional, as applied, because an actionable injury under that 

statute (bodily harm for which the employer’s negligence 

was the major contributing cause) was different from and 

narrower than the injury for which a cause of action existed 

in 1857 (bodily harm for which the employer’s negligence 

was a contributing cause). See Smothers, 332 Or at 124, 
178 Horton v. OHSU

133-36. Second, in determining whether the law provides 

a constitutionally adequate remedy, the court looked to the 

common law in 1857 as a model. It noted that common-law 

remedies for historically defined injuries would be constitutionally adequate but that the remedy clause does not 

prevent the legislature from modifying a remedy for those 

injuries as long as the remedy remains a substantial one. 

Id. at 124.

We accordingly disagree with plaintiff that Smothers 

did not tie the remedy clause to the common law as it existed 

in 1857. We also disagree with plaintiff that the court 

departed from Smothers in Howell and Lawson by looking 

to the common law in 1857 to determine whether the plaintiffs in those cases had suffered a constitutionally protected 

injury and whether, if they had, the legislature had provided 

a constitutionally adequate remedy. We agree, however, with 

both plaintiff and defendant that tying the remedy clause 

to the common law in 1857 can produce (and has produced) 

anomalous results. As others have noted, the common law 

often turned on a patchwork of confusing and unworkable 

distinctions. See Edwin M. Borchard, Government Liability 

in Tort, 34 Yale LJ 229, 233 (1925) (discussing confusion 

engendered by common-law distinctions). The standard that 

Smothers announced gives constitutional effect to those 

common-law anomalies. Moreover, as the dissent recognized 

in Howell and the majority did not dispute, strict adherence 

to Smothers can result in the further anomaly of trying two 

claims to a jury—one under the current law and the other 

under the law as it existed in 1857. Finally, defendant has 

raised substantial questions regarding Smothers’ interpretation of the sources on which it relied.

In those circumstances, we conclude that it is 

appropriate to consider whether Smothers was correctly 

decided by reexamining the text of Article I, section 10, its 

history, and our cases. See State v. Reinke, 354 Or 98, 105, 

309 P3d 1059, adh’d to as modified on recons, 354 Or 570, 

316 P3d 286 (2013) (undertaking similar reexamination). In 

doing so, we focus initially (and solely) on Smothers’ holding that Oregon common law in 1857 defines the injuries for 

which the law must provide a remedy. Because we overrule 
Cite as 359 Or 168 (2016) 179

Smothers, we also consider the related issue that defendant 

raises—whether our other remedy clause cases should be 

overruled as well.

B. The remedy clause and Oregon common law

Article I, section 10, provides:

“No court shall be secret, but justice shall be administered, openly and without purchase, completely and 

without delay, and every man shall have remedy by due 

course of law for injury done him in his person, property, or 

reputation.”

Textually, Article I, section 10, differs from other sections 

included in Oregon’s bill of rights. It is not a protection 

against the exercise of governmental power. State ex rel 

Oregonian Pub. Co. v. Deiz, 289 Or 277, 288, 613 P2d 23 

(1980) (Linde, J., concurring). Rather, “[i]t is one of those 

provisions of the constitution that prescribe how the functions of government shall be conducted.”4 Id. Specifically, 

“[s]ection 10 as a whole is plainly concerned with the administration of justice.” Hans A. Linde, Without “Due Process”:

Unconstitutional Law in Oregon, 49 Or L Rev 125, 136 

(1970). Each of the three independent clauses that comprise 

Article I, section 10, addresses that topic.5

The first independent clause prohibits secret courts 

while the second provides that justice shall be administered “openly and without purchase, completely and without 

delay.” The third independent clause provides that “every 

man shall have remedy by due course of law for injury done 

him in his person, property, or reputation.” Textually, the 

third independent clause can be read in two ways. On the one 

hand, the clause can be seen as a guarantee that courts will 

provide “every” person a “remedy by due course of law” for 

4 The issue in Deiz was whether closing a juvenile adjudication to the public 

violated the open courts clause of Article I, section 10. 289 Or at 279. In distinguishing Article I, section 10, from other provisions in the Oregon Constitution, 

Justice Linde did not limit his discussion to the open courts clause of that section 

but wrote more broadly.

5 Article I, section 10, consists of three independent clauses (“No court shall,” 

“justice shall be administered,” and “every man shall have”), which are joined by 

two conjunctions. Although Smothers stated that Article I, section 10, consists 

of two independent clauses, 332 Or at 91, Smothers may not have been using the 

phrase “independent clause” in its grammatical sense.
180 Horton v. OHSU

certain kinds of injuries. As Professor Linde observed, the 

clause could be nothing “more than a procedural guarantee 

that the ‘due course of law’ will be open to ‘every man’ who 

is entitled to a remedy under the substantive law, whatever 

that might be at any time.” Linde, Without “Due Process,” 49 

Or L Rev at 136.

On the other hand, characterizing the remedy 

clause solely as a guarantee of equal access to the courts 

fails to account for all the clause’s text. The text provides 

that “every man shall have remedy by due course of law 

for injury done him in his person, property, or reputation.” 

Focusing on the phrase “by due course of law” can obscure 

the remainder of the text, which provides that, when a person has had “injury done him in his person, property, or 

reputation,” he “shall have remedy.” The text is as much 

about the availability of a remedy as it is about the “due 

course of law” by which the remedy is to be administered. 

In a related vein, this court had held that the remedy clause 

does not apply to every injury a person sustains to a legally 

protected interest. Juarez v. Windsor Rock Products, Inc., 

341 Or 160, 173, 144 P3d 211 (2006) (loss of deceased’s society, guidance, and emotional support did not constitute 

injury to person, property, or reputation within meaning of 

remedy clause). Rather, the clause applies only to remedies 

for three specified types of injuries. Id. The clause’s focus 

on providing remedies for specified types of injuries implies 

that it was intended to guarantee some remedy for those 

injuries, and not merely be a guarantee of procedural regularity for whatever injuries may, at the moment, enjoy legal 

protection.

To the extent that the text guarantees that some remedy will be available for injuries done to persons in their person, property, and reputation, the question that the text leaves 

unanswered is what the content of that remedy is. Certainly, 

nothing in the text of the remedy clause says that its protections are limited to the common law as it existed at a particular point in time. The clause lacks words used elsewhere in the 

constitution that connect a constitutional guarantee to a single 

point in time. Compare Or Const, Art VII, § 3 (“thereafter”); 

Or Const, Art I, § 31 (1857) (“hereafter”); Or Const, Art IV, 

§ 24 (“at the time of the adoption of this constitution”).
Cite as 359 Or 168 (2016) 181

Not only does the text of the remedy clause not 

provide express support for the historical limitation that 

Smothers perceived, but the context of the remedy clause is 

also at odds with that limitation. Both Article I, section 10, 

and Article XVIII, section 7, were adopted as part of the 

original Oregon Constitution. The Oregon Constitution and 

Proceedings and Debates of the Constitutional Convention 

of 1857 402, 431 (Charles Henry Carey ed., 1926). 

Article XVIII, section 7, provides that “[a]ll laws in force in 

the Territory of Oregon when this Constitution takes effect, 

and consistent therewith, shall continue in force until 

altered, or repealed.”

As this court explained in Land Bd. v. Corvallis 

Sand & Gravel, 283 Or 147, 156, 582 P2d 1352 (1978), 

Article XVIII, section 7, “continued in force the substantive principles of the common law which were adopted by 

the provisional government and sanctioned by the federal 

act establishing the territorial government.” However,

“[t]he common law, as it existed in England at the time of 

the settlement of the American colonies, has never been in 

force in all of its provisions in any colony or state of the 

United States.” Peery v. Fletcher, 93 Or 43, 52, 183 P 143 

(1919). Rather, “[i]t has been adopted so far only as its general principles were suited to the habits and conditions of 

the colonies, and in harmony with the genius, spirit and 

objects of American institutions.” Id. Oregon accordingly 

departed from the “old common law [rule]” that defendants 

would be liable in trespass for damages caused by their cattle straying onto another person’s land. Perozzi v. Ganiere, 

149 Or 330, 348, 40 P2d 1009 (1935). Similarly, in the arid 

west, the common-law riparian right of property owners to 

use water appurtenant to their land gave way to a more 

limited property right to use water based on a system of 

prior appropriation. Re Water Rights of Hood River, 114 Or 

112, 166-81, 227 P 1065 (1924), cert dismissed sub nom Pac. 

Power & Light Co. v. Bayer, 273 US 647, 47 S Ct 245, 71 L 

Ed 821 (1926).

In modifying common-law rights to meet conditions 

unique to this state, Oregon continued a process that began 

when the original colonies first adopted and then modified 

English common law. As one author has explained, “[b]y 
182 Horton v. OHSU

1820 the legal landscape in America bore only the faintest 

resemblance to what existed forty years earlier” when the 

original colonies first adopted English common law. Morton 

J. Horwitz, The Transformation of American Law, 1780-1860 

at 30 (1977). As Horwitz describes, from 1780 to 1860, state 

legislatures modified property and other common-law rights 

to accommodate both the differing conditions in this country 

and the industrial growth that the country was experiencing. It follows that, when the framers drafted Oregon’s constitution in 1857, they would not have viewed the common 

law as static or unchanging—a proposition that is apparent from Article XVIII, section 7, which both continued the 

common law, as modified to meet Oregon’s needs, and recognized that the common law remained subject to change. See 

Peery, 93 Or at 52-53 (recognizing that common law can be 

“altered” or “repealed”).

Consistent with that recognition, the common law 

has continued to evolve as the premises on which it rests 

have changed. See Buchler v. Oregon Corrections Div., 316 

Or 499, 518, 853 P2d 798 (1993) (Peterson, J., concurring) 

(explaining that the “beauty and strength of the commonlaw system is its infinite adaptability to societal change”). 

For example, this court has held that the common-law doctrine of interspousal immunity no longer bars negligence 

actions by one spouse against another, Heino v. Harper, 306 

Or 347, 374-76, 759 P2d 253 (1988), and it has rejected the 

doctrine of parental immunity, Winn v. Gilroy, 296 Or 718, 

733-34, 681 P2d 776 (1984). In 1975, the legislature abolished the common-law torts of criminal conversation and 

alienation of affections because those “actions for invasion 

of the family relationship were considered outmoded by 

changing views of marriage, divorce, and sexual relations, 

as reflected in the repeal in 1971 of criminal laws against 

adultery and enactment of no-fault divorce laws.” Norwest 

v. Presbyterian Intercommunity Hosp., 293 Or 543, 563, 652 

P2d 318 (1982). More recently, we explained that, in light of 

legislative changes to joint defendants’ liability, “commonlaw indemnity” is no longer “necessary or justified” for civil 

claims that are subject to the comparative fault statute. 

Eclectic Investment, LLC v. Patterson, 357 Or 25, 38, 346 

P3d 468 (2015).
Cite as 359 Or 168 (2016) 183

Contrary to the premise that underlies Smothers, 

when the framers drafted the Oregon Constitution in 1857, 

they would have understood that the common law was not 

tied to a particular point in time but instead continued to 

evolve to meet changing needs. See State v. Supanchick, 354 

Or 737, 765, 323 P3d 231 (2014) (looking to common law as 

it evolved in America to determine scope of state confrontation clause). Put differently, nothing suggests that, when the 

framers drafted the remedy clause, they would have sought 

to tie the protections of that clause to the common law as 

it existed at a single point in time. We find no basis in the 

text of the remedy clause, its context, or its history from 

which we can conclude that the framers intended to limit 

the meaning of that clause to the concept of injury as it was 

defined in 1857.

In reaching a contrary conclusion, Smothers relied 

on dicta from a federal district court decision, Eastman v. 

Clackamas Cnty., 32 F 24 (CCD Or 1887). See Smothers, 332 

Or at 122. We accordingly discuss that decision briefly. The 

plaintiff in Eastman had been injured in 1886 as a result 

of Clackamas County’s negligence in maintaining one of 

its bridges, and he sued the county to recover his damages. 

Eastman, 32 F at 26. Under the common law, a county was 

not liable for an injury resulting from a defect in one of its 

highways or roads. Rankin v. Buckman, 9 Or 253, 256 (1881).6

Before the adoption of the Oregon Constitution, the Oregon 

territorial legislature changed that common-law rule and 

permitted tort and breach-of-contract actions against counties. Eastman, 32 F at 30-31.

In 1887, 30 years after the constitution had been 

drafted and one year after the plaintiff in Eastman had been 

injured, the legislature amended the territorial statute that 

had permitted counties to be sued. Id. at 31. It deleted the 

part of the statute allowing tort actions against counties, 

6 In Eastman, the court explained that the county’s common-law immunity 

derived from Russell v. Devon Co., 2 Term R 667 (1788), which had held that an 

unincorporated county was immune from liability for its negligence, primarily to 

avoid the prospect of a judgment “be[ing] satisfied out of the property of any one 

of the men of Devon, [with] the result [that there] would be ‘an infinity of actions’ 

among the defendants for contribution.” Eastman, 32 F at 28-29. 
184 Horton v. OHSU

with the result that the statute, as amended, permitted 

actions against counties only for breach of contract. Id.

Before the federal district court, the county argued 

that the plaintiff’s action should be dismissed. The county 

explained that it was not liable for its torts at common law, 

and it noted that the territorial statute permitting tort 

actions against counties had been repealed. In considering the 

county’s argument, the district court first observed in dicta 

that the remedy clause froze in place both the common-law and 

statutory remedies that existed when the Oregon Constitution 

was enacted. Id. at 32. The district court reasoned:

“To begin with, it may be admitted that the remedy guaranteed by [the state remedy clause] is not intended for the 

redress of any novel, indefinite, or remote injury that was 

not then regarded as within the pale of legal redress. But 

whatever injury the law, as it then stood, took cognizance 

of and furnished a remedy for, every man shall continue to 

have a remedy for by due course of law. When [the Oregon] 

constitution was formed and adopted, it was and had been 

the law of the land, from comparatively an early day, that a 

person should have an action for damages against a county 

for an injury caused by its act or omission. If this then 

known and accustomed remedy can be taken away in the 

face of this constitutional provision, what other may not?”

Id.

Having raised the remedy clause as a possible 

answer to the county’s defense, the federal district court 

decided the case on a narrower ground. It held that the plaintiff had been injured before the legislature had repealed the 

statute permitting actions against counties for their torts, 

that the plaintiff’s cause of action had “vested” when he had 

been injured, and that nothing in the 1887 amendment suggested that the legislature had intended the amendment to 

apply retroactively and take away a vested right. Id. at 34. 

Because the federal court held only that the 1887 amendment did not apply retroactively, its discussion of the remedy 

clause was dicta and had no binding effect in federal district 

court, much less in Oregon state courts.7

7 Of course, even if the federal district court’s interpretation of state law had 

been part of its holding, a federal court’s interpretation of state law would not 

bind a state court faced with the same question.
Cite as 359 Or 168 (2016) 185

Five years later, a plaintiff brought a negligence 

action in state court against a county to recover for an 

injury that occurred after the legislature had repealed the 

statute making counties liable for their torts. Templeton v. 

Linn County, 22 Or 314, 316-17 (1892). Although the plaintiff relied on the dicta in Eastman to argue that the remedy clause barred the legislature from repealing the statute giving him a right to sue the county for its torts, this 

court rejected that argument, describing it as “startling.” 

Id. at 316. This court reaffirmed that the legislature cannot 

take away a party’s “[v]ested rights” (the right to recover for 

injuries that had occurred while the statutory remedy was 

in place), but it held that the same limitation did not apply 

to “expectancies and possibilities in which the party has no 

present interest.” Id. at 318. Not only did Templeton reject 

the dicta in Eastman, but this court later explained that it 

had never adopted that dicta. Noonan v. City of Portland, 161 

Or 213, 249, 88 P2d 808 (1939); Gearin v. Marion County, 

110 Or 390, 400-01, 223 P 929 (1924).

Smothers based its holding tying the meaning of 

the remedy clause to Oregon common law in 1857 on federal 

dicta that this court described in Templeton as “startling” 

and that the court explained in Noonan and Gearin that it 

had never adopted.8

 It follows that the central premise of 

Smothers’ holding finds no support in the text of the remedy clause, and it is at odds with the text of Article XVIII, 

section 7, and the history underlying that section and 

Article I, section 10. As Professor Linde observed more 

than 30 years before Smothers was decided, “one doubts 

8 Smothers stated that Theiler v. Tillamook County, 75 Or 214, 146 P 828 

(1915), had adopted the dicta in Eastman. 332 Or at 122. Smothers misperceived 

what Theiler held. In Theiler, the construction of a county highway caused a creek 

to change its course and, as a result, periodically “flo[w] over and upon the plaintiff’s premises, destroying the trees, shrubs, and grass growing thereon, and 

washing away the soil.” 75 Or at 215. In deciding whether the landowner could 

bring a claim against the county, Theiler quoted the dicta from Eastman and also 

discussed the holdings in Templeton and two other state supreme court cases. Id. 

at 217-18. This court then held that the plaintiff could sue the county, a holding 

that rested on the court’s conclusion that causing water to invade the plaintiff’s 

land “practically amount[ed] to a taking of * ** part of the premises without condemnation.” Id. at 218. Government liability for taking property follows from the 

state takings clause. See Or Const, Art I, § 18. Recognizing that constitutional 

liability is not the same thing as adopting the dicta in Eastman.
186 Horton v. OHSU

that by the words ‘remedy by due course of law,’ Oregon’s 

constitution meant to freeze tort law as it stood either in 

1859, or when this guarantee first entered state constitutions almost 200 years ago.” Linde, “Without Due Process,” 

49 Or L Rev at 136. Indeed, both Justice O’Connell’s 

majority opinion and Justice Goodwin’s dissent in Holden 

expressly rejected the proposition that Smothers later 

embraced—that Article I, section 10, requires that every 

injury the common law recognized in 1857 be remedied 

in substantially the same form as that recognized when 

the constitution was first adopted. See Holden, 228 Or at

411-12 (majority); id. at 422 (Goodwin, J., dissenting).

We do not overrule our precedents lightly. See 

Farmers Ins. Co. v. Mowry, 350 Or 686, 261 P3d 1 (2011). 

As the court explained in Mowry, our “decisions ‘should be 

stable and reliable,’ because the Oregon Constitution is ‘the 

fundamental document of this state.’” Id. at 693-94 (quoting Stranahan v. Fred Meyer, Inc., 331 Or 38, 53, 11 P3d 228 

(2000)). However, as the court also recognized in Mowry, 

“there is a ‘similarly important need to be able to correct 

past errors’ because ‘[t]his court is the body with the ultimate responsibility for construing our constitution, and if 

we err, no other reviewing body can remedy that error.’” 

Id. at 694 (quoting Stranahan, 331 Or at 53) (bracket in 

Mowry). The considerations that bear on when we should 

exercise that authority are difficult to reduce to a simple 

formula. Couey v. Atkins, 357 Or 460, 485, 355 P3d 866 

(2015). Rather, as the court explained in Mowry, “stare decisis is a prudential doctrine that is defined by the competing 

needs for stability and flexibility in Oregon law.” 350 Or at 

697-98.

In Couey, we identified “at least three categories [of 

error]” that will justify reconsidering a prior constitutional 

decision. 357 Or at 485. We observed:

“First, there are cases in which a prior pronouncement 

amounted to dictum or was adopted without analysis or 

explanation. * ** Second, there are cases in which the 

analysis that does exist was clearly incorrect—that is, it 

finds no support in the text or the history of the relevant 

constitutional provision. * ** Third, there are cases that 
Cite as 359 Or 168 (2016) 187

cannot be fairly reconciled with other decisions of this court 

on the same constitutional provision.”

Id. at 485-86 (citations omitted). Placing a decision in one 

of those three categories does not exhaust consideration of 

other factors that can bear on whether to adhere to or overrule that decision. As Mowry explained, a significant consideration can be whether others have “rel[ied] on the rules of 

law announced by this court to structure their transactions.” 

350 Or at 700-01 (insurance policies drafted and underwritten in reliance on judicial decision); see State v. Cuevas, 358 

Or 147, 154, 361 P3d 581 (2015) (declining to overrule two 

decisions interpreting sentencing guidelines rules, in part, 

because those decisions had “been applied repeatedly in 

calculating innumerable sentences”). Moreover, the age of 

the decisions and the extent to which the issues have been 

fully litigated can matter. Compare Mowry, 350 Or at 700-01 

(declining to overrule relatively recent decision where issue 

had been fully litigated), with State v. Mills, 354 Or 350, 

366-71, 312 P3d 515 (2013) (overruling holding in 1923 case 

that had been adopted without discussion and cited without 

explanation in ensuing 90 years). The answer to the question whether a case should be overruled cannot be reduced to 

the mechanical application of a formula but requires instead 

an exercise of judgment that takes all appropriate factors 

into consideration. See Mowry, 350 Or at 697-98 (describing 

stare decisis as a prudential doctrine).

With that background in mind, we turn to the question whether we should overrule Smothers. As explained 

above, the central premise of Smothers finds no support in 

the text and history of Article I, section 10; it is at odds 

with the context found in Article XVIII, section 7; and it 

is squarely inconsistent with a series of this court’s cases 

holding that Article I, section 10, did not freeze rights and 

remedies as they existed in 1857. Additionally, Smothers is 

of relatively recent vintage, and it has not given rise to the 

sort of reliance interests that persuaded this court in Mowry 

to adhere to a prior statutory interpretation. Although the 

text and history of the remedy clause were considered at 

some length in Smothers, that factor, standing alone, does 

not persuade us to adhere to a case that was at odds with 

the text, history, and case law when it was decided and that 
188 Horton v. OHSU

continues to prove problematic. For the reasons explained 

above, we overrule Smothers.

9

C. This Court’s Other Remedy Clause Cases

The question that remains is whether, as defendant 

argues, our other remedy clause cases also should be overruled to the extent that they place a substantive limit on 

the legislature’s authority to alter or adjust remedies; that 

is, is defendant correct that the remedy clause provides only 

procedural protection? In considering that issue, we begin 

by summarizing our remedy clause cases that preceded and 

followed Smothers. We then turn to whether those cases are 

consistent with the text and history of the remedy clause.

1. Oregon remedy clause decisions

This court’s remedy clause decisions divide roughly 

into two groups. The first group arose out of claims against 

counties and cities for injuries caused by defects in their 

roads and streets. Those cases started from a premise that 

was familiar to the courts in the late nineteenth and early 

twentieth century, which Justice Bean summarized in his 

concurring opinion in Templeton: “By the decided weight of 

authority, a county is not liable for an injury received from 

a defective highway, unless by statute; while the courts 

seem equally agreed that such liability exists as against a 

municipal corporation.” Templeton, 22 Or at 320 (Bean, J., 

concurring).10

Following Templeton, this court routinely rejected 

the argument that the remedy clause entitled a plaintiff 

90 Because we overrule Smothers, it follows that its conclusion—that the 

workers’ compensation statute was unconstitutional as applied—cannot stand. 

We express no opinion on whether our remedy clause cases that preceded 

Smothers, which we reaffirm today, would lead to the same conclusion. 

10 That distinction did not derive from the nature of the governmental activity. It was the same for both counties and cities—maintaining their streets in 

good repair. Rather, the distinction derived from the proposition that cities were 

created by a special charter, which imposed a duty on cities to maintain their 

streets. Rankin, 9 Or at 256-57. The basis for holding that counties could not be 

sued rested variously on the lack of a corporate identity, which the English courts 

had identified in Russell and the federal district court had noted in Eastman, and 

the proposition that counties were created by general law rather than a special 

charter. See John F. Dillon, 2 The Law of Municipal Corporations §§ 961, 965 (3d 

ed 1881) (recognizing that distinction but questioning its validity).
Cite as 359 Or 168 (2016) 189

to bring a negligence action against a county for failing to 

maintain its roads, in the absence of a statute authorizing 

the action. See, e.g., Schroeder v. Multnomah County, 45 Or 

92, 96, 76 P 772 (1904). Negligence claims against cities presented a more complex issue. This court explained that cities were created by special charters, which imposed a duty 

on cities to maintain their streets in good repair. Rankin, 9 

Or at 256-57. As a result, cities could be sued for negligently 

failing to satisfy that duty, unless the legislature exempted 

them from liability. Id.; see O’Harra v. The City of Portland, 

3 Or 525, 526 (1870) (upholding provision in city charter 

exempting city from tort liability); cf. Mattson v. Astoria, 39 

Or 577, 65 P 1066 (1901) (citing O’Harra for that proposition 

in the context of an Article I, section 10, case).

In Mattson, this court considered a statute that 

sought to exempt both a city and its officials from liability 

for negligently maintaining its streets. 39 Or at 578-79. The 

court held that, although the legislature could exempt a city 

from liability for breaching that duty, the remedy clause 

prevented the legislature from exempting both the city and 

its officials from all liability. 39 Or at 579-80. The court 

reasoned:

“[The remedy clause] was intended to preserve the commonlaw right of action for injury to person or property, and 

while the legislature may change the remedy or the form 

of procedure, attach conditions precedent to its exercise, 

and perhaps abolish old and substitute new remedies, ** * 

it cannot deny a remedy entirely.”

Id. at 580 (citations omitted); see Thomas M. Cooley, A 

Treatise on the Constitutional Limitations 289, 361-62 (1st 

ed 1868, reprinted 1972) (summarizing earlier cases).11

Over the next 40 years, this court considered a series 

of cases brought by persons injured as a result of defects in 

city streets. See Noonan, 161 Or at 223-35 (reviewing decisions). It adhered to the rule that the legislature can immunize a city from tort liability if the city officials or employees 

remain liable, but it reaffirmed that the legislature cannot 

11 The quoted paragraph from Mattson combines and repeats, almost verbatim, the cited parts of Cooley’s 1868 treatise, which summarized cases deciding 

contract clause and due process claims.
190 Horton v. OHSU

eliminate all or practically all liability for breach of a city’s 

duty by immunizing both the city and its employees. See id.

at 237-38; Pullen v. Eugene, 77 Or 320, 328, 146 P 822 (1915) 

(upholding city charter provision providing a cause of action 

against city officials when damages exceeded $100); Batdorff 

v. Oregon City, 53 Or 402, 408-09, 100 P 937 (1909) (exonerating city from liability and permitting an action against 

city officials for gross negligence “practically denies a remedy to any person injured”). During that time, some judges 

expressed the view that leaving an injured plaintiff with a 

remedy only against a city employee was a poor substitute 

for a remedy against the city. See Colby v. City of Portland, 85 

Or 359, 374, 166 P 537 (1917).12 However, this court’s cases 

adhered, with some backing and filling, to the principle that 

the court first announced in Mattson—as long as legislation 

left the injured person with a remedy against either the city 

or a city employee, it did not violate Article I, section 10. See 

Noonan, 161 Or at 2223-35 (discussing decisions).13

In Mattson and the cases following it, the legislature had not altered the duty imposed on cities and their 

officials to maintain streets in good repair, but it had denied 

plaintiffs injured by a breach of that duty any remedy. Those 

cases recognized that a remedy against a city employee 

could be substituted for a remedy against the city, but those 

cases did not require this court to decide whether or on what 

terms the legislature could alter a common-law duty. That 

question began to arise in the second group of remedy clause 

cases that this court decided, which found their genesis in 

the opinion denying rehearing in Stewart v. Houk, 127 Or 

589, 271 P 998, 272 P 893 (1928).

12 In Eastman, the federal district court had rejected an argument that the 

plaintiff had an adequate remedy because he could sue the county employees for 

negligence. The district court explained that pursuing a negligence claim against 

a county employee was like “threshing empty straw.” Eastman, 32 F at 34. The 

court reasoned: “If travelers and others who sustain injuries by reason of defective highways can have no remedy against any one except these officers personally, they might as well have none.” Id. As noted above, Mattson and the cases 

following it did not accept that reasoning.

13 In reviewing those decisions, the court observed in Noonan that the cities 

could not and did not invoke the doctrine of sovereign immunity because the 

task of maintaining city streets was regarded, perhaps illogically, as a corporate 

rather than a governmental function. 161 Or at 221-22; see id. at 237 (describing 

that function as ministerial rather than governmental). 
Cite as 359 Or 168 (2016) 191

The statute at issue in Stewart paralleled, in many 

respects, the statutes at issue in Mattson and its progeny. 

Like the statute in Mattson, the statute in Stewart provided 

that a guest injured while in a vehicle driven on Oregon public highways “‘shall have no right of recovery against the 

owner or driver of such motor vehicle.’” Id. at 591 (quoting 

statute). The statute did not affect the owner or driver’s 

duty to exercise due care, but it deprived an injured guest 

of any remedy for a breach of that duty. Id. at 595. This 

court accordingly concluded that the statute “withh[e]ld

jural significance from a breach of duty which previously 

was regarded as a cause of action” in violation of the remedy 

clause. Id.

The defendant in Stewart petitioned for rehearing, 

arguing that the court’s decision was inconsistent with the 

Connecticut Supreme Court’s decision in Silver v. Silver, 108 

Conn 371, 143 A 240 (1928). This court denied rehearing 

after explaining why the guest-passenger statute at issue 

in Silver differed from Oregon’s guest-passenger statute. 

This court noted that the Connecticut statute provided that 

a host was not liable to a guest for injuries caused by ordinary negligence but preserved liability in instances “where 

the injury was inflicted intentionally, heedlessly or through 

reckless disregard of the rights of others.” Id. at 597 (on 

rehearing). The court explained that the Connecticut legislature had sought “to fix the measure of care a host owed 

to his guest.” Id. at 598. It viewed the Oregon statute, by 

contrast, as not being an effort “to regulate the operation 

of automobiles by prescribing the duty of host to guest, 

but as one wherein this element of the situation remains 

untouched, and the sole change effected is the denial of the 

remedy to an injured guest.” Id. Having identified that distinction, the court denied the petition for rehearing.

After the court issued its decision in Stewart, 

the Oregon legislature enacted a statute that tracked 

Connecticut’s guest-passenger statute. The new statute provided that an owner or operator of a motor vehicle was liable 

to a guest for injuries sustained in an accident if the accident 

were intentional on the part of owner or operator or “‘caused 

by [the owner or operator’s] gross negligence or intoxication 

or reckless disregard of the rights of others.’” Perozzi, 149 
192 Horton v. OHSU

Or at 331 (quoting Or Laws 1929, ch 401, § 1). In holding 

that the new statute did not violate Article I, section 10, this 

court noted the United States Supreme Court’s decision in 

Silver upholding Connecticut’s statute against an equal protection challenge. Id. at 332-33. This court observed that, in 

upholding the distinction that Connecticut had drawn, the 

United States Supreme Court had relied on two state cases 

holding that, as a matter of state common law, “‘a lower 

standard of care should be exacted where the carriage in 

any type of vehicle is gratuitous.’” Id. at 333 (quoting Silver 

v. Silver, 280 US 117, 50 S Ct 57, 74 L Ed 221 (1929)).

This court looked to the state common-law decisions 

cited in Silver in holding that Oregon’s new guest-passenger statute did not violate Article I, section 10. Perozzi, 149 

Or at 334-37. Specifically, this court relied on three state 

court decisions that held, as a matter of common law, that 

to “‘make out liability in case of a gratuitous undertaking 

the plaintiff ought to prove a materially greater degree of 

negligence than he has to prove where the defendant is to be 

paid for doing the same thing.’” Id. at 334 (quoting Heiman 

v. Kloizner, 139 Wash 655, 247 P 1034 (1926)); accord 

Massaletti v. Fitzroy, 228 Mass 487, 118 NE 168 (1917); Epps 

v. Parrish, 26 Ga App 399, 106 SE 297 (1921). In Massaletti, 

for example, the Massachusetts Supreme Judicial Court 

reasoned that a driver who gratuitously gave a guest a ride 

owed the same common-law duty that a gratuitous bailee 

would, with the result that both were liable only for gross 

negligence or bad faith. See Massaletti, 228 Mass at 489 (citing West v. Poor, 196 Mass 183, 81 NE 960 (1907)).

To be sure, the common-law position that 

Massachusetts, Washington, and Georgia adopted reflected 

a minority view, and this court considered whether a legislative enactment based on a minority view of the common law 

complied with Article I, section 10. In considering that question, the court focused on cases from other state courts with 

similar remedy clauses. For example, the court noted that 

the Florida Supreme Court had held that its remedy clause 

did not lock its legislature into a fixed version of the common law but left it free either to expand a plaintiff’s remedies against a deceased tortfeasor or to uphold a statute 
Cite as 359 Or 168 (2016) 193

permitting cattle to roam free, contrary to a landowner’s 

common-law property rights. 149 Or at 343-44. Consistently 

with the Florida decision, this court noted in Perozzi that 

Article XVIII, section 7, of the Oregon Constitution expressly 

recognized that the legislature may alter or repeal the common law and that Article I, section 10, lacked terms that 

would demonstrate an intent to freeze in place the common 

law as it existed in 1857. Id. at 346-47.

This court accordingly declined to tie the legislature to a conception of the common law that would prevent 

it from amending the law to meet the “existing conditions 

and circumstances” of a given time. Id. at 348. It reasoned 

that, to hold otherwise, would fix into place doctrines such 

as the fellow-servant doctrine, contributory negligence, and 

assumption of risk. Id. As we read Perozzi, it held that, as a 

matter of state constitutional law, Article I, section 10, does 

not deny the legislature latitude to adjust the duties that 

one person owes another, based on the extent of the change 

and the reasons for the adjustment. Perozzi thus answered 

the question that Mattson and the cases that followed it had 

no occasion to decide—to what extent and on what grounds 

may the legislature modify common-law duties.

Cases following Perozzi have interpreted it as standing for the proposition that Article I, section 10, does not 

deny the legislature latitude to modify and sometimes eliminate common-law duties where changing conditions warrant it. See Noonan, 161 Or at 249 (“Article I, § 10, Oregon 

Constitution, was not intended to give anyone a vested right 

in the law either statutory or common; nor was it intended 

to render the law static.”) Throughout the twentieth century, 

our cases have adhered to that proposition, while recognizing that the remedy clause places a substantive limit on the 

legislature. That is, within constitutional limits, the legislature has authority to alter a common-law duty or condition 

the procedural means of recovering for a common-law injury. 

For instance, in Josephs v. Burns & Bear, 260 Or 493, 491 

P2d 203 (1971), this court upheld statutes of limitations on 

causes of action as having “always been considered a proper 

function of the legislatures *** so long as it is done for the 

purpose of protecting a recognized public interest.” Id. at 
194 Horton v. OHSU

503. Similarly, in Sealey v. Hicks, 309 Or 387, 788 P2d 435, 

cert den, 498 US 819 (1990), this court upheld a statute of 

repose for products liability actions, reasoning that the “legislature has the authority to determine what constitutes a 

legally cognizable injury.” Id. at 394.

In Hale, Clarke, and Howell, this court addressed 

a different question, which Smothers had noted but not 

reached: On what terms may the legislature, consistently 

with the remedy clause, alter a remedy for the breach of a 

recognized duty? In Hale, the court summarized prior cases 

in concluding that “it is enough [for the purposes of the remedy clause] that the remedy is a substantial one.” 308 Or at 

523. In upholding a $100,000 cap on more than $600,000 

in damages, the court focused on what later cases have 

referred to as a quid pro quo. Id. The court reasoned:

“The class of plaintiffs [who can seek a remedy under the 

Tort Claims Act] has been widened by the legislature by 

removing the requirement that an injured party show that 

the municipal corporation’s activity that led to the injury 

was a proprietary one. At the same time, however, a limit 

has been placed on the size of the award that may be recovered. A benefit has been conferred, but a counterbalancing 

burden has been imposed. This may work to the disadvantage of some, while it will work to the advantage of others. 

But all who had a remedy continue to have one.”

Id. In holding that the Tort Claims Act limitation constitutionally could be applied to the plaintiff in Hale, the court 

compared that statute to the workers’ compensation act, 

which expanded the class of plaintiffs eligible for a remedy 

but limited the extent of the remedy available for individual 

plaintiffs. Id. at 521-23.14

This court considered a similar issue in Clarke. 

Clarke, however, differed from Hale in three respects. First, 

in Clarke, the legislature had eliminated a cause of action 

against state employees for injuries resulting from their 

negligence and substituted a cause of action solely against 

14 This court considered the constitutionality of an early version of the workers’ compensation statute in Evanoff v. State Industrial Acc. Com., 78 Or 503, 154 

P 106 (1915). As the court noted in Hale, Evanoff upheld the statute against an 

Article I, section 10, challenge because it allowed workers to opt out of coverage. 

See 308 Or at 522-23 (quoting law review article noting that proposition). 
Cite as 359 Or 168 (2016) 195

the state with capped damages of $200,000. 343 Or at 608. 

Second, the plaintiff in Clarke had sustained over $12 million in economic damages, compared to the $600,000 in damages that the plaintiff in Hale had sustained. See id. at 586. 

Finally, the court decided Clarke after it decided Smothers. 

See id. at 593. Smothers had disavowed the reasoning in Hale, 

332 Or at 118, and Clarke accordingly followed Smothers in 

resolving the plaintiff’s Article I, section 10, challenge. See 

Clarke, 343 Or at 591-93, 605-07 (discussing and following 

Smothers). That is, Clarke focused solely on whether capped 

damages of $200,000 was a “substantial” remedy in light of 

the economic damages that the plaintiff had suffered. See 

id. at 607 (framing the issue in light of Smothers). The court 

held that it was not. Id. at 610; see id. at 611 (Balmer, J., 

concurring) (“The arbitrarily low cap on damages for medical malpractice claims against OHSU and its employees is a 

problem that has long called for a legislative solution.”).

By contrast, the court held in Howell that capped 

damages of $200,000 was a substantial remedy when the 

plaintiff had sustained $507,500 in total damages. 353 Or 

at 376. The court explained that the damage limitation “does 

not leave plaintiff ‘wholly without a remedy,’ as was the case 

for the parents of the plaintiff in Neher. And it represents a 

far more substantial remedy than the paltry fraction that 

remained after the imposition of the limitation in Clarke.” 

Id.

Smothers characterized this court’s remedy clause 

cases as consisting of two phases, one of which lived up to the 

historical purposes of the remedy clause, the other of which 

grossly failed to realize them. In the first phase, Smothers 

explained, courts consistently reasoned that the purpose of 

the remedy clause was to mandate that a remedy be available 

to repair injuries recognized at common law to “absolute” 

rights. Those cases included Mattson, Stewart, and others 

holding that the complete elimination of all liability would 

violate the remedy clause. Smothers explained that, in the 

second phase, Perozzi and the cases that followed it strayed 

from the remedy clause’s historical purposes. Smothers reasoned that “[u]ntil 1935, this court’s case law was consistent with” the purpose of protecting “absolute common-law 
196 Horton v. OHSU

rights.” Smothers, 332 Or at 118-19. In Perozzi, according 

to Smothers, this court erroneously imported federal equal 

protection analysis into Oregon’s remedy clause. Id. at 119. 

It followed, Smothers concluded, that any case that relied on 

Perozzi either directly or indirectly had erred, and Smothers 

disavowed them.15

In reviewing our remedy clause decisions, we view 

their development differently. Perozzi did not rely on federal 

equal protection analysis as Smothers perceived. Rather, as 

explained above, the reasoning in Perozzi consisted of an 

extensive analysis of the Oregon Constitution, the text of 

the remedy clause, the text of Article XVIII, section 7, and 

common-law decisions from other states. Only in explaining 

the development of guest-passenger statutes similar to the 

one at issue in Perozzi did this court discuss Silver and, even 

then, to recognize, as the common law decisions it cited had 

done, that a state could find that a gratuitous host owed the 

same degree of care to his or her passengers that a gratuitous bailee owed at common law. See Perozzi, 149 Or at 332-

35. Perozzi’s ground for decision was its analysis of Article I, 

section 10, of the Oregon Constitution. See id. at 348-50. For 

that reason, the cases relying on Perozzi were not sipping 

from a poisoned wellspring. Rather, they were relying on a 

case that took a considered view of the text, context, and 

purposes of Oregon’s remedy clause.

As we view the two phases of our remedy clause 

cases, the first phase dealt with statutes in which the legislature had imposed a duty of care but eliminated any remedy for a breach of that duty. As legislative enactments grew 

more complex, the second phase of our remedy clause cases 

focused on statutes that modified either a duty or a remedy, 

but they did not retain a duty while eliminating any remedy 

for its breach, as the earlier statutes had done. In considering those later statutes, our cases recognized that the legislature was not precluded from altering the duty that one 

person owes another or even eliminating common-law causes 

of action and defenses, such as alienation of affections and 

15 Smothers disavowed all or part of five cases on the ground that they relied 

on Silver or on a case that itself relied on Silver. Those cases were Noonan,

Josephs, Holden, Sealey, and Hale. 332 Or at 118.
Cite as 359 Or 168 (2016) 197

contributory negligence, when the premises for recognizing 

the cause of action or defense had changed. Another group 

of our second-phase remedy clause cases recognized that the 

legislature could modify remedies for a recognized duty as 

long as the remedy that remained was substantial. Far from 

reflecting an aberrant view of state constitutional law, as 

Smothers concluded, the second phase of our remedy clause 

cases considered differing statutory schemes and, in doing 

so, complemented and refined the principles recognized in 

Mattson and its progeny.

We accordingly disagree with Smothers that we 

either can or should disregard Perozzi and the cases that 

followed it. We also disagree with Smothers that the two 

phases of our remedy clause cases are unalterably in conflict. Rather, the conflict that Smothers perceived appears 

to have derived primarily from its conclusion that our early 

remedy clause cases reflected its view of Article I, section 10. 

That is, Smothers viewed our early remedy clause cases as 

preventing the legislature from modifying Oregon common 

law as it existed in 1857, and it concluded that our early 

cases, viewed that way, were in conflict with the cases that 

followed. As explained above, however, the difficulty with 

Smothers’ conclusion lies in its premise. Our early remedy 

clause cases looked to the common law as a guide, not as 

a procrustean template. Moreover, those cases considered 

statutes that either imposed or recognized a duty but denied 

any remedy, while the cases that followed considered statutes that altered the duty one person owes another or the 

remedy for the breach of that duty, sometimes as part of a 

quid pro quo. Properly viewed, the second phase of our remedy clause cases complements the first.16

With our remedy clause cases (other than Smothers)

in mind, we return to defendant’s argument that we should 

overrule those cases because Article I, section 10, is not 

“a substantive guarantee of a remedy * * * [but] rather, 

16 This is not to say that there are no stray threads in our remedy clause 

cases. See Noonan, 161 Or at 242-43 (discussing some statements in remedy 

clause opinions that were incorrect even while following the larger principles 

recognized in those decisions). However, with the exception of Smothers, the 

larger principles that underlie and inform our remedy clause cases can be read 

consistently.
198 Horton v. OHSU

guarantees access to the courts [only] for such remedies as 

the law may provide.” We begin, as usual, with the text of 

the remedy clause and then turn to its history.

2. Text

We discussed the text of the remedy clause earlier 

and concluded that the text does not provide a clear answer 

as to the clause’s meaning. As explained above, the text 

could be merely a guarantee of equal access to the remedies 

that the legislature has provided. The text, however, could 

be as much about the availability of a remedy for injuries to 

person, property, or reputation as it is about the due course 

of the law by which the remedy will be administered. We 

accordingly look to the history of the remedy clause for guidance in determining whether our remedy clause cases are 

clearly incorrect. We consider the English sources for the 

remedy clause, the early American charters and constitutions, the early and mid-nineteenth century cases from other 

states interpreting their remedy clauses, and the enactment 

history of the Indiana and Oregon remedy clauses.

3. English sources of the remedy clause

Oregon’s remedy clause stems from Lord Coke’s 

interpretation of Chapter 29 of the 1225 version of Magna 

Carta, which combined Chapters 39 and 40 of the 1215 version of Magna Carta. Linde, Without “Due Process,” 49 Or L 

Rev at 138. Chapter 29 of Magna Carta provides:

“No freeman shall be taken or imprisoned, or be disseised 

of his freehold, or liberties, or free customs, or be outlawed, 

or exiled, or any other wise destroyed; nor will we not pass 

upon him, nor condemn him, but by lawful judgment of his 

peers, or by the law of the land. We will sell to no man, we 

will not deny or defer to any man either justice or right.”

Edward Coke, The Second Part of the Institutes of the Laws of 

England 45 (1797 ed) (setting out Chapter 29). Coke explained 

that this “Chapter containeth nine severall branches.” Id. at 

46. He identified the “sense” or nature of each branch, and 

then explained how “the same hath been declared and interpreted. 1. By authority of Parliament. 2. By our books. 3. By 

Precedent.” Id. As Coke’s stated methodology makes clear, he 

viewed both the acts of parliament and the common law as 
Cite as 359 Or 168 (2016) 199

implementing the larger principles stated in Magna Carta. 

That is, Coke viewed the common law and the acts of parliament as a continuation of the principles stated in Magna 

Carta that checked the king’s arbitrary exercise of power.

The first six branches of Chapter 29 that Coke identified derived from Chapter 39 of the 1215 version of Magna 

Carta and limited the king’s authority to deprive a person 

of his land, liberty, livelihood, and benefit of the law except 

“by the law of the land,” which Coke explained meant “(that 

is to speak it once for all) by the due course, and processe 

of law.” Id. After explaining how the courts and parliament 

had implemented the first six branches of Chapter 29, Coke 

turned to the remaining three branches, which derived from 

Chapter 40 of the 1215 version of Magna Carta. He listed 

the “sense” of those three branches as follows:

“7. We shall sell to no man justice or right.

“8. We shall deny to no man justice or right.

“9. We shall defer to no man justice or right.”

Id. In discussing the last three branches of Chapter 29, Coke 

analyzed the seventh branch separately from the eighth and 

ninth branches, which he grouped together. See id. at 55-56 

(analyzing the seventh branch); id. at 56 (analyzing the 

eighth and ninth branches).

Coke explained that the eighth and ninth branches 

focused on protecting the common law courts from royal 

interference. He stated that those branches “have been 

excellently expounded by latter acts of parliament, that by 

no meanes common right, or common law be disturbed, or 

delayed” by the king’s exercise of the “great seale, or privie 

seale, order, writ, letters, message, or commandement whatsoever.” Id. at 56. Coke recognized that the king may stay 

suits in his own courts, but he viewed the king’s efforts to 

stay or interfere with the common law courts as contrary to 

the acts of parliament and Magna Carta. Id.

The seventh branch reflects a separate guarantee. 

Because Oregon’s remedy clause derives from Coke’s discussion of that branch, we quote his discussion in full:
200 Horton v. OHSU

“Nulli vendemus,[17] &c.

“This is spoken in the person of the King, who in judgment of Law, in all his Courts of Justice is present, and 

repeating these words, nulli vendemus, &c.

“And therefore, every subject of this realme, for injury 

done to him in bonis, terres, vel persona,

[18] by any other subject, be he ecclesiasticall, or temporall, 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 to him, freely without sale, fully without any 

deniall, and speedily without delay.

“Hereby it appeareth, that justice must have three qualities, it must be libera, quia nihil iniquius venali justitia; 

plena, quia justititia non debet claudicare; et celeris, quia 

dilatio et quaedam negatio;

[19] and then it is both Justice 

and Right.”

Id. at 55-56.

Three propositions follow from Coke’s text. First, 

the second paragraph quoted above focuses on ensuring that 

“every subject” has access to a remedy, without regard to the 

subject’s age, status, or gender. The emphasis is on equal 

access to the courts. The second proposition is consistent 

with the first. After stating in the first paragraph that the 

king is present in the courts and promising that he will sell 

no man justice and right, Coke begins the next paragraph 

with the phrase “And therefore.” The phrase “And therefore” 

implies that the passage that follows flows from the king’s 

promise that justice will not be limited only to those persons who can afford it. Put differently, because a person’s 

access to justice will not turn on the person’s ability to buy a 

more expeditious or effective writ, every person “may take” 

a remedy for injuries without regard to wealth, age, status, 

or gender.

17 The phrase means “We will sell to no man.”

18 The phrase means “in goods, in lands, or in person.”

19 The clauses mean “Free, because nothing is more iniquitous than saleable 

justice; full, because justice ought not to limp; and speedy, because delay is in 

effect a denial.”
Cite as 359 Or 168 (2016) 201

Coke’s text also suggests a third proposition—that 

the promise of a remedy for injuries to specific interests is not 

limited to equal access. The text recognizes that, in gaining 

access to the courts and the common law, every man shall 

“have justice, and right for the injury done to him.” That is, 

Coke assumed that access to the common-law courts and 

the common law carried with it access to justice and right 

for injuries. Coke had little occasion to consider the extent 

to which parliament could alter the common law or the limits on its authority to do so. For the most part, he viewed 

the acts of parliament as supplementing and confirming 

the common law. See Nathan S. Chapman & Michael W. 

McConnell, Due Process as Separation of Powers, 121 Yale 

LJ 1672, 1685 (2012) (“The common law, [Coke] maintained, 

had developed organically through the adjudication of the 

courts since time immemorial, as well as through certain 

declaratory acts of Parliament, which themselves were 

believed to articulate principles with an ancient origin.”). 

It is thus difficult to find in Coke an answer to the question whether a promise of equal access to the common-law 

courts imposed a substantive limit on parliament’s ability 

to depart from the common law. That question was largely 

foreign to Coke’s view.20

Sir William Blackstone, as other commentators 

have noted, largely agreed with Coke’s interpretation of 

Chapter 40 of Magna Carta. See Thomas R. Phillips, The 

Constitutional Right to a Remedy, 78 NYU L Rev 1309, 

1322 (2003) (describing Blackstone’s approach). In his 

Commentaries on the Laws of England, Blackstone paraphrased Coke’s explanation of that chapter while adding 

his own gloss. William Blackstone, 1 Commentaries on the 

Laws of England 137-38 (1st ed 1765). Blackstone viewed 

Chapter 40 as directed both at the king and judges—

specifically, as telling the king that he cannot issue commands or letters that override common-law procedures and 

20 In discussing Chapter 39 of Magna Carta, Coke explained that, even 

though parliament had given the king more leeway than the common law had provided to bring prosecutions, parliament had corrected its error when the harmful 

effect of its procedure became apparent. Coke, Second Part of the Institutes at 51. 

He thus recognized that parliament might depart from the common law and the 

principles expressed in Magna Carta but believed that parliament eventually 

would correct its error. See id.
202 Horton v. OHSU

telling the courts that if they receive such things they should 

disregard them:

“[I]t is enacted, that no commands or letters shall be sent 

under the great seal, or the little seal, the signet, or privy 

seal, in disturbance of the law; or to disturb or delay common right: and, though such commandments should come, 

the judges shall not cease to do right.”

Id. at 138. Blackstone agreed with Coke that the general 

purpose of Chapter 40 was to prevent royal interference 

with the common-law courts.

Blackstone’s Commentaries also shed light on parliament’s ability to alter the common law. In commenting on 

Coke’s explication of Chapter 40—that “every Subject ** * 

for injury done to him in bonis, in terres, vel persona * * * 

may take his remedy by the course of the Law,” Blackstone 

explained:

“It were endless to enumerate all the affirmative acts of 

parliament wherein justice is directed to be done according 

to the law of the land: and what that law is, every subject 

knows; or may know if he pleases; for it depends not upon 

the arbitrary will of any judge; but is permanent, fixed and 

unchangeable, unless by authority of parliament.”

Id. at 137 (second emphasis added). Blackstone made the 

point clearer in the next paragraph. He explained that “[n]

ot only the substantial part, or judicial decisions, of the law, 

but also the formal part, or method of proceeding, cannot 

be altered but by parliament.” Id. at 138 (emphasis added). 

Blackstone’s gloss on Coke thus explicitly recognized parliament’s authority to alter the “substantial part, or judicial 

decisions, of the law.”

In analyzing the effect of Blackstone’s Commentaries

on the meaning of Oregon’s remedy clause, Smothers did 

not discuss Blackstone’s analysis of Coke’s commentary on 

Chapter 40. See 332 Or at 98-99. Smothers focused instead 

on a distinction that Blackstone drew between absolute and 

relative rights. See id. To the extent that Smothers viewed 

Blackstone’s reference to absolute rights as simply identifying the three rights (property, person, and reputation) that 
Cite as 359 Or 168 (2016) 203

the remedy clause protects, Smothers’ discussion of absolute 

rights adds little to the analysis. The text of the clause specifies the types of rights to which it applies. See Juarez, 341 Or 

at 173 (explaining that loss of deceased’s society, guidance, 

and emotional support did not constitute injury to person, 

property, or reputation within the meaning of the remedy 

clause).

To the extent that Smothers found in the word 

“absolute” the idea that Blackstone viewed absolute rights 

as immune from alteration, Smothers appears to have 

misperceived what Blackstone said. Blackstone used the 

phrase “absolute rights” to refer to a person’s rights in 

a state of nature. Blackstone, 1 Commentaries at 121. He 

explained, however, that absolute rights are not absolute. 

Rather, “every man, when he enters into society, gives up a 

part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of 

mutual commerce, obliges himself to conform to those laws, 

which the community has thought proper to establish.” Id.

Blackstone explained that laws could limit a person’s natural rights if those laws were “necessary and expedient for 

the general advantage of the publick” while also recognizing 

that “wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular 

assembly, is a degree of tyranny.” Id. at 121-22.

Having established that general framework for 

legislation, Blackstone explored the contours of what he 

described as “the three great and primary rights, of personal 

security, personal liberty, and private property.” Id. at 136. 

He then identified five “other auxiliary subordinate rights 

of the subject, which serve principally as barriers to protect 

and maintain” those “three great and primary rights.” Id. at 

136. Those were (1) the “constitution, powers, and privileges 

of parliament”; (2) the limitation of the king’s prerogative; 

(3) the right of “every Englishman * ** of applying to the 

courts of justice for redress of injuries”; (4) the right to petition the king or either house of parliament for the redress of 

“any uncommon injury”; and (5) the right “of having arms 

for their defence, suitable to their condition and degree, and 

such as are allowed by law.” Id. at 136-39.
204 Horton v. OHSU

In describing the third subordinate right, Blackstone 

paraphrased Coke’s discussion of Chapter 40 of Magna 

Carta and, as discussed above, expressly recognized parliament’s authority to alter “[n]ot only the substantial part, 

or judicial decisions, of the law, but also the formal part, 

or method of proceeding.” Id. at 138. Although Blackstone 

recognized that parliament had authority to alter the common law, he did not examine the limits of that authority. 

Like Coke, he appears to have assumed that the English 

government was framed in such a way that, in altering the 

common law, parliament would adhere to the natural law 

principles that informed its ability to add to and supplement 

the common law. See id. at 122 (explaining that legislation 

that advances a public purpose, “when prudently framed, 

[is] by no means subversive but rather introductive of liberty”). Far from stating that the legislature lacks authority to alter the common law, Blackstone’s discussion of both 

Coke and absolute rights demonstrates that he viewed 

the legislature as having greater authority to adjust absolute rights than Smothers recognized. As Justice Landau 

explained in his concurring opinion in Klutschkowski,

“[t]o say * * * that Blackstone asserted a common-law right 

to a remedy superior to legislative authority is quite at odds 

with what Blackstone actually said.” 354 Or at 184 (Landau, 

J., concurring).

Having considered Coke’s Institutes and Blackstone’s 

Commentaries, we cannot say that they demonstrate conclusively that our remedy clause cases (with the exception of 

Smothers) were clearly wrong. It is true that Coke’s explication of Chapter 40 of Magna Carta focused on access to the 

courts, as did Blackstone’s gloss on Coke. However, for Coke 

and Blackstone, access to the courts carried with it access to 

a set of common-law remedies for injuries to person, liberty, 

and property. Both Coke and Blackstone assumed, in differing degrees, access to a “permanent, fixed, and unchangeable” body of common law that followed from access to the 

courts. Blackstone, 1 Commentaries at 137. Blackstone, more 

than Coke, recognized parliament’s authority to vary to the 

common law as far as was “necessary and expedient for the 

general advantage of the publick.” Id. at 121. Blackstone 

is thus consistent with our remedy clause cases that have 
Cite as 359 Or 168 (2016) 205

recognized the legislature’s authority to alter the common 

law.

We recognize that Coke and Blackstone were concerned with the king’s interference with access to the common law courts and the protections those courts provided. We 

also recognize that both writers typically viewed parliament 

as confirming or supplementing the common law. However, 

in Dr. Bonham’s Case, 77 Eng Rep 646, 652 (CP 1610), Coke 

explained in dicta that “[W]hen an Act of Parliament is 

against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and 

adjudge such Act to be void.” Precisely what Coke meant 

by that statement has been the subject of scholarly debate. 

See Chapman & McConnell, Due Process as Separation of 

Powers, 121 Yale LJ at 1689-92 (summarizing debate). Some 

scholars view that statement as a recognition that the common law would trump conflicting statutes. Id. Others view 

it as giving substantial leeway to courts to interpret statutes so that they conform to common law. Id. Chapman and 

McConnell conclude that the latter understanding is the 

better one. Id. Even if that is the better understanding, the 

ambiguity inherent in Coke’s statement makes it more difficult to say that this court’s decisions finding in the remedy 

clause a substantive limit on legislative authority are clearly 

at odds with the source of our remedy clause.

4. American authorities

Early American charters or legal compacts contained provisions with striking resemblances to modern 

remedy clauses. For instance, the “Laws Agreed Upon in 

England” written by William Penn and adopted in 1682 provided that “all courts shall be open, and justice shall neither 

be sold, denied nor delayed.” See William Penn, “Laws Agreed 

Upon in England,” in 1 The Federal and State Constitutions, 

Colonial Charters, and other Organic Laws of the States, 

Territories, and Colonies 3060 (Francis N. Thorpe ed., U.S. 

Gov’t Printing Office 1909). Similar provisions appeared 

in Chapter XXIII of “The Charter or Fundamental Laws, 

of West New Jersey, Agreed Upon – 1676” and Chapter 

XIX of “The Fundamental Constitutions for the Province 

of East New Jersey in America, Anno Domini 1683.” See 5 
206 Horton v. OHSU

The Federal and State Constitutions, Colonial Charters, and 

other Organic Laws of the States, Territories, and Colonies at 

2551, 2580.

The clauses found in those early charters may have 

been responding to the same royal interference with access 

to the courts that afflicted sixteenth and seventeenth century English courts. However, it is difficult to draw much 

significance from the inclusion of those clauses in early 

American charters and compacts. Not every charter or compact contained a provision that resembled what we know 

as a remedy or open-courts clause, and those charters that 

did contain one did not necessarily emphasize the same concepts that Coke’s interpretation emphasized. Additionally, 

no reported contemporaneous case reveals the problems 

those clauses were intended to address. See Hoffman, 

Questions Before Answers, 32 Rutgers LJ at 1027-29.

Finally, the American founders found inspiration in more 

than just the writings of Coke or Blackstone. See James R. 

Stoner, Jr., Common Law and Liberal Theory: Coke, Hobbes, 

and the Origins of American Constitutionalism 137-61 (1992) 

(describing the influence of Locke and Montesquieu). For 

those reasons, it is difficult to tell what meaning the remedy 

clause would have had to an early American audience.

What can be said more confidently is that, over a 

century later, Blackstone and Coke’s ideas resonated with 

early American thinkers. In the mid-eighteenth century, 

American colonists grew increasingly disgruntled about 

the dependence of local judges and magistrates on the 

British crown. See John Dickinson, Letter IX, 1768, in 1 The 

Political Writings of John Dickinson 228 (1801). Dickinson’s 

main concern was that local judges would depend too much 

on the views and prerogative of the British crown if the 

crown paid their salaries. Id. at 228-29. Unlike in Britain, 

where the 1701 Act of Settlement ensured that judges no 

longer depended on the crown for their salaries, the Act of 

Settlement did not apply in America, raising the same anxiety about arbitrary decision-making based on favoritism or 

royal willfulness that had worried Coke in seventeenth-century England. Jonathan M. Hoffman, By the Course of 

the Law: The Origins of the Open Courts Clause of State 

Constitutions, 74 Or L Rev 1279, 1300 (1995).
Cite as 359 Or 168 (2016) 207

The concern about corruption through the payment of salaries gave way to larger concerns about arbitrary, unreasonable interference into colonial courts by the 

British parliament. The Stamp Act in 1765, for instance, 

required that every official document, including legal documents, have on it an official stamp, or otherwise the courts 

would be closed to claimants. Edward S. Morgan & Helen M. 

Morgan, The Stamp Act Crisis: Prologue to Revolution 120, 

130-31 (1953). In response, revolutionary leaders petitioned 

to reopen the courts.21

Eventually, as the Revolutionary War started, 

the concern about an independent judiciary in the form of 

open courts available to all litigants took root in early state 

constitutions. The 1776 Declaration of Rights in Delaware 

provided:

“That every Freeman for every Injury done him in his 

Goods, Lands or Person, by any other Person, ought to have 

Remedy by the Course of the Law of the Land, and ought 

to have Justice and Right for the Injury done to him freely 

without Sale, fully without any Denial, and speedily without Delay, according to the Law of the Land.”

A Declaration of Rights and Fundamental Rules of the 

Delaware State, in 2 Sources and Documents of United 

States Constitutions 197, 198 (William F. Swindler ed., 

1973). By 1787, Maryland, Massachusetts, New Hampshire, 

and North Carolina had adopted similar provisions in their 

state constitutions, and by 1857, a remedy clause appeared 

in over 30 state constitutions.

Between the end of the War for Independence 

and the adoption of the Constitution of the United States, 

distrust of state legislatures grew. Gordon S. Wood, The 

Creation of the American Republic 1776-1787, 403-29 

(1969). Problems included “[t]he confiscation of property, 

the paper money schemes, the tender laws, and the various 

21 For instance, John Adams stepped forward to plead that the courts reopen, 

explaining, “[i]nnumerable are the Calamities which flow from an Interruption of 

Justice. Necessity requires that the Doors of Justice should ever be open to hear 

the Complaints of the Injured and Oppressed.” See “Argument before Governor 

Bernard and the Council in Favor of Opening the Courts, Dec 20, 1765,” in 1 

Papers of John Adams, September 1755 - October 1773 (Robert J. Taylor ed., 1977). 
208 Horton v. OHSU

devices suspending the ordinary means for the recovery of 

debts.” Id. at 404. It is difficult to tell, however, whether the 

states that adopted remedy clauses adopted them because of 

a concern about legislative overreaching, primarily for two 

reasons. The earliest remedy clauses predated the period 

during which legislatures were most abusive. See Hoffman, 

Questions Before Answers, 32 Rutgers LJ at 1038. Moreover, 

the sources describing popular distrust of the legislatures do 

not describe, much more mention, state remedy clauses as a 

potential solution. See Wood, The Creation of the American 

Republic at 430-67. The circumstances surrounding the 

adoption of those state remedy clauses do not suggest that 

they were intended to limit legislative authority. However, 

the early and mid-nineteenth century cases interpreting 

those clauses point in a different direction.

5. Early and mid-nineteenth century cases

The early and mid-nineteenth century cases, with 

a fair amount of uniformity, interpreted their state remedy clauses as placing some substantive limit on legislative 

action. The cases are not uniform, however, in identifying 

the extent to which remedy clauses limit legislative choices. 

The earliest case to interpret a remedy clause provision was 

Stowell v. Flagg, 11 Mass 364 (1814).22 In Stowell, the issue 

was whether a landowner could bring a common-law action 

for trespass on the case against a mill owner for causing 

water to periodically flow over his land when a statute provided a more limited remedy.23 The Supreme Judicial Court 

initially concluded that the legislature had intended to substitute the statutory for the common-law remedy to prevent 

“burden[ing] the owner of a mill with continual lawsuits and 

expenses.” Id. at 366. In response to the argument that displacing the common-law action violated that state’s remedy 

22 At the time, the Massachusetts Constitution provided: “Every subject of 

the commonwealth ought to find a certain remedy, by having recourse to the 

laws, for all injuries or wrongs which he may receive in his person, property, or 

character.” Mass Const, Pt 1, Art XI. 

23 Among other things, the statute at issue in Stowell “cut off the traditional 

action for trespass to land, in which a plaintiff was not required to prove actual 

injury in order to recover.” Horwitz, The Transformation of American Law at 48 

(footnote omitted). Moreover, the act prevented the landowner from seeking to 

enjoin the nuisance and self-help, both of which remedies would have been available at common law. Id.
Cite as 359 Or 168 (2016) 209

clause, the Supreme Judicial Court held that the legislature 

has “a right to substitute one process for another; as for 

instance, they may declare that, for an assault and battery, 

an action of the case shall be brought, instead of an action of 

trespass; or that the process shall be by complaint, and not 

by writ.” Id. at 365-66.

Although the Massachusetts Supreme Judicial 

Court recognized in Stowell that the remedy clause did 

not prohibit a legislature from substituting one remedy for 

another, it recognized, in a related context, that the complete denial of a remedy could violate a party’s rights. Call 

v. Hagger, 8 Mass 423, 430 (1812) (explaining that complete 

denial of a remedy could impair the obligations of contract 

in violation of the federal contract clause). In making that 

observation, the Supreme Judicial Court of Massachusetts 

contrasted a complete denial of a remedy with a “limitation 

of suits at law, [which] when enacted with a due discretion, 

and a reasonable time allowed for the commencement of 

suits on existing demands, are wholesome and useful regulations.” Id. The court thus recognized that the reasonableness of the legislature’s limitation of a party’s remedy could 

affect its constitutionality.

The Maine Supreme Court reached a similar conclusion under its state remedy clause in Gooch v. Stephenson, 

13 Me 371 (1836). At common law, a property owner could 

bring a trespass action if another person’s cattle strayed 

onto his or her property. Id. at 375. Initially, the Maine legislature eliminated a trespass action if cattle were on the 

highway and the property owner’s fence was not sufficient 

to keep them out. Id. Later, the legislature extended the law 

to apply to cattle that strayed from adjoining lands onto a 

neighbor’s property. Under the statute, a property owner 

who failed to maintain a “sufficient” fence could not bring a 

trespass action if the cattle strayed onto his or her land but 

could bring a trespass action if the owner had constructed 

a sufficient fence and the cattle broke through. Id. The statutes departed from the common law by placing the burden 

on the property owner to take reasonable steps to keep cattle out of his or her property as a condition of maintaining a 

trespass action.
210 Horton v. OHSU

In holding that the legislature could constitutionally alter the common law, the Maine Supreme Judicial 

Court explained:

“It was for the legislature to determine what protection 

should be thrown around this species of property; what 

vigilance and what safeguards should be required at the 

hands of the owner; and where he might invoke the aid of 

courts of justice. They have no power to take away vested 

rights; but they may regulate their enjoyment. Lands in 

this country cannot profitably be cultivated, if at all, without good and sufficient fences. To encourage their erection, 

it is undoubtedly competent for the legislature to give to 

the owners of lands thus secured, additional remedies and 

immunities.”

Id. at 376-77.24 Stowell and Gooch sound two themes that 

are fairly consistent in mid-nineteenth century cases. First, 

legislatures may not enact laws that apply retroactively, a 

concept expressed in the phrase “vested rights.” Second, legislatures possess authority to make reasonable adjustments 

in common-law rights, either by substituting one remedy for 

another or by altering the terms on which a common-law 

cause of action may be brought. That is true even when the 

legislature limits the common-law property rights and remedies that a landowner otherwise would have enjoyed.

Some courts interpreted their remedy clauses as 

checks on arbitrary interference into court procedures. As 

the Pennsylvania Supreme Court explained, the remedy 

clause was intended to prohibit “legislative and executive 

interference” with “judicial proceedings,” just as Magna 

Carta prevented such interference by royal officials or magistrates. Menges v. Dentler, 33 Pa 495, 498 (1859); see also 

Sharpless v. Mayor of Philadelphia, 21 Pa 147, 166 (1853) (noting that state remedy clause was “clearly intended to insure 

the constant and regular administration of justice between 

man and man”). Often, that consideration was reflected in 

24 Then, as now, the Maine Constitution provided:

“Every person, for an injury done him in his person, reputation, property, 

or immunities, shall have remedy by due course of law; and right and justice 

shall be administered freely and without sale, completely and without denial, 

promptly and without delay.” 

Me Const, Art I, § 19 (1820).
Cite as 359 Or 168 (2016) 211

cases holding that statutory changes could not be applied 

retroactively to “vested rights.” See, e.g., Kay v. Pennsylvania 

R.R. Co., 65 Pa 269, 277 (1870) (“The law of the case at the 

time when it became complete is an inherent element in it, 

and if changed or annulled the right is annulled, justice is 

denied, and the due course of law violated.”); Townsend v. 

Townsend, 7 Tenn 1, 15 (1821) (invalidating statute that suspended right to execute on contract judgments “where the 

law, operating upon the contract when first made, held out to 

the creditor the promise of immediate execution after judgment”); Fisher’s Negroes v. Dabbs, 14 Tenn 119, 136 (1834) 

(invalidating statute that required court to dismiss pending 

case from its docket).

Some mid-nineteenth century cases assumed that 

remedy clauses would prevent the total elimination of a 

common-law tort remedy. However, most of those cases 

used the remedy clause as a ground for interpreting statutes narrowly to avoid a construction that would deny a 

plaintiff a common-law remedy for an injury. For example, 

in Schuylkill Navigation Co. v. Loose, 19 Pa 15 (1852), a 

statute provided for compensation when a canal company’s 

dam caused another person’s land to be flooded. Id. at 16. 

When a company’s embankment (but not its dam) caused 

the plaintiff’s land to flood, the company defended against 

the plaintiff’s damages action on the ground that the statute 

displaced the common law and authorized a remedy only for 

flooding caused by the construction of a dam. After quoting 

Pennsylvania’s remedy clause, the court concluded that the 

statutory remedy did not displace the plaintiff’s commonlaw remedies. The court explained:

“It is impossible, in the face of principles of justice so clearly 

and solemnly announced [in that state’s remedy clause], to 

suppose that the Legislature, when providing for a remedy 

for an acknowledged injury, mean[t] to take it away unless 

the injury arise in one specified form.”

Id. at 18.

Other courts similarly looked to their remedy 

clauses in limiting, by means of interpretation, the reach 

of legislative enactments. In Thornton v. Turner, 11 Minn 

336 (1866), a statute provided that an “‘action for damages, 
212 Horton v. OHSU

occasioned by the erection and maintenance of a milldam,’” 

must brought within “‘two years after the erection of such 

dam.’” Id. at 339 (quoting statute). The court observed 

that, if a dam were erected but not used for more than two 

years, the statute would prohibit a landowner whose land 

was flooded from recovering his or her damages. Id. at 

339-40. Reasoning that such a result would be contrary to 

Minnesota’s remedy clause, the court held that the two-year 

limitations period would run not from the date of the “erection of such dam” but from the date on which the erection of 

the dam caused water to flood the plaintiff’s land. Id. at 340; 

accord Hotchkiss v. Porter, 30 Conn 414, 421 (1862) (holding 

that statute did not cause constitutional difficulties because 

the statute, properly interpreted, did not shift burden to 

prove malice in libel cases to recover actual damages).

Finally, some courts relied on their remedy clauses 

to invalidate statutes imposing a burden on litigants. Riggs, 

Peabody & Co. v. Martin, 5 Ark 506, 509 (1844) (striking 

down statute that required parties to swear in open court 

that estate owed them money, permitting claimants to submit affidavits in lieu of appearing personally). See also Weller 

v. City of St. Paul, 5 Minn 95, 101 (1860) (requiring payment 

of all unpaid property taxes as condition of bringing suit to 

set aside assessment violated state remedy clause); Wilson v. 

McKenna, 52 Ill 43, 49 (1869) (same).25

Those early and mid-nineteenth-century cases 

reflect a diverse understanding of state remedy clauses. At 

least two common themes can be identified, however. First, 

most early and mid-nineteenth century cases started from 

the proposition that state remedy clauses limit legislative as 

25 At the other extreme, some jurisdictions viewed the remedy clause as 

directed solely at the judiciary, having no bearing on legislation. In Barkley v. 

Glover, 61 Ky 44 (1862), for instance, a case about a statute forbidding the issuance of judgments for debts arising within a certain period, the court expressly 

rejected the claim that the remedy clause applied to the legislature:

“The doctrine that the [remedy clause] applies alike to the legislative and 

judicial branches of government is, in our judgment, directly opposed to the 

meaning and language of the section. This, we think, is rendered perfectly 

obvious by reading it. The courts form its sole subject matter, and every part 

and parcel of the section relates directly to some duty of that branch of the 

government.”

Id. at 45-46.
Cite as 359 Or 168 (2016) 213

well as executive acts. With the exception of the Kentucky 

case noted in the above footnote, the cases recognized that 

legislative interference with the courts and legislative action 

could violate a litigant’s constitutionally protected right to a 

remedy. That was so even though the state remedy clauses 

found their source in Coke and Blackstone’s concern about 

executive interference with the courts, even though there is 

little enactment history to suggest that states adopted remedy clauses in response to legislative overreaching, and even 

though the state cases do not reflect agreement on the extent 

to which state remedy clauses limit legislative authority.

Second, and consistently with our initial conclusion 

regarding Smothers, we can find little evidence that the 

cases viewed remedy clauses as locking common-law rights 

in place. Rather, they reflected the proposition that legislatures may adjust the parties’ common-law rights and remedies as long as the legislation did not apply retroactively 

and thus interfere with a party’s vested rights. They also 

recognized that the legislature may substitute one remedy 

for another, even though the new remedy effectively limited common-law rights. And they were consistent with the 

generally accepted nineteenth century proposition that, 

although the legislature could substitute one remedy for 

another, it could not deny a remedy completely. Finally, some 

mid-nineteenth century cases relied on their states’ remedy 

clauses to interpret statutes to avoid denying a party any 

remedy for an injury to property, person, or reputation.

The mid-nineteenth century cases that are contemporaneous with the adoption of Oregon’s constitution are 

consistent with our remedy clause cases, with the exception 

of Smothers. Some of the cases from other states assume, 

as Mattson and its progeny held, that recognizing a duty 

while denying a remedy entirely would raise constitutional 

problems. Thornton, 11 Minn at 340; see Call, 8 Mass at 430 

(contract clause). Other cases recognize, however, as Perrozi 

and later Oregon cases have, that common law remedies are 

not unalterable. Stowell, 11 Mass at 365-66. Rather, the legislature may adjust common law causes of action and substitute one remedy for another. Id. Perhaps our early cases 

interpreted Oregon’s remedy clause more robustly than other 

courts did. However, there is sufficient diversity among the 
214 Horton v. OHSU

remedy clause decisions from other states that we find it difficult to say that, with the exception of Smothers, our cases 

interpreting Oregon’s remedy clause were clearly incorrect.

6. Later nineteenth-century damage cap cases

Towards the end of the nineteenth century, courts 

considered the kind of remedial limitations at issue in this 

case. The earliest cases came from Pennsylvania and were 

issued at least a decade after Oregon adopted Article I, section 10. See Kay, 65 Pa at 269. In Kay, the Pennsylvania 

Supreme Court held that a damages cap could not be applied 

to an injury that had occurred before the legislature enacted 

the cap. See id. at 277. The court explained that “a right to 

recover full compensation to the extent of the damage suffered vested in the plaintiff” when the injury occurred and 

that the legislature could not retroactively alter that vested 

right. Id. The court expressly declined to address the constitutionality of the law imposing a cap on damages “[a]s to 

cases happening after the passage of the law.” Id.

In 1874, the people of Pennsylvania amended 

their constitution by adding a new section that expressly 

prohibited limitations on damages. See Pa Const, Art III, 

§ 21 (providing that “[n]o act of the general assembly shall 

limit the amount to be recovered for injuries resulting in 

death, or for injuries to persons or property”). After that, the 

Pennsylvania Supreme Court struck down a statute limiting 

the maximum amount of damages an injured plaintiff could 

recover against railroad companies. Cent. Ry. of N.J. v. Cook, 

1 WNC 319 (Pa 1875). The opinion was per curiam, and it 

is not possible to tell from either the supreme court or the 

trial court’s opinions the basis on which the Pennsylvania 

Supreme Court concluded that “the learned Judge below did 

not err in holding that the plaintiff could recover more than 

[the capped damages].” Id. The court could have relied on 

the remedy clause or on the 1874 constitutional amendment 

prohibiting any limit on the amount that could be recovered 

for injuries to persons. See Phillips, Constitutional Right to 

a Remedy, 78 NYU L Rev at 1329 (noting that ambiguity).

Five years later, in Thirteenth and Fifteenth 

Streets Passenger Ry. Co. v. Boudrou, 92 Pa 475 (1880), 

the Pennsylvania Supreme Court revisited the issue. In 
Cite as 359 Or 168 (2016) 215

reaffirming that a damages cap violated the Pennsylvania 

Constitution, the court appears to have relied “on the right 

to remedy by due course of law.” Id. at 482. However, the 

decision also can be read to rely on both the remedy clause 

and the later damage-limitation clause. See id. (“The people have withheld power from the legislature and the courts 

to deprive them of that remedy, or to circumscribe it so 

that a jury can only give a pitiful fraction of the damage 

sustained.”).

The 1874 amendment to Pennsylvania’s constitution and the decisions in Cook and Boudrou can be read 

more than one way. On the one hand, they suggest that 

ideas about a plaintiff’s right to a remedy were beginning 

to evolve in the later part of the nineteenth century. On the 

other, they could signal that the remedy clause, standing 

alone, was not viewed as sufficient protection against damage caps and that additional constitutional limitations on 

legislative authority were necessary. Read either way, those 

events occurred after Oregon’s framers drafted Article I, 

section 10. No early Oregon case cited Cook or Boudrou, and 

the influence of those Pennsylvania cases outside of that 

state is not clear. While those cases may be helpful in illuminating the issues that later arose as legislatures began to 

limit remedies, they are less significant in determining the 

purpose and meaning of Oregon’s remedy clause.

7. Indiana and Oregon Constitutional Conventions

The other primary sources shedding light on 

the meaning of our remedy clause are the 1851 Indiana 

Constitutional Convention, which produced Article I, section 

12, of the 1851 Indiana Constitution, the basis of Article I, 

section 10, of the Oregon Constitution, and the debates and 

proceedings of Oregon’s own convention in 1857.

We have no record of debates among the Indiana 

framers that would show how they viewed the meaning 

or scope of their remedy clause. We do know, as this court 

in Smothers observed, that as they amended parts of the 

1816 Indiana Constitution, the Indiana framers generally 

sought to limit the powers of the legislature. Smothers, 332 

Or at 106. But we cannot tell whether the remedy clause 
216 Horton v. OHSU

in Article I, section 12—largely unchanged from its previous version in 1816—was part of that project. Without more 

specific evidence, we can draw no conclusion about whether 

the 1851 revisions to Article I, section 12, of the Indiana 

Constitution substantially changed its meaning.

The same is true of the changes that the Oregon 

framers made in adopting Article I, section 10. The Oregon 

framers did not debate Article I, section 10, and, except for 

a minor change, adopted it wholesale from the 1851 Indiana 

Constitution. That minor change deserves some mention, 

however. It helps to put the two provisions side by side: 

Article I, section 12, of the 

1851 Indiana Constitution

Article I, section 10, of the 

1857 Oregon Constitution

“All courts shall be open; 

and every man, for injury 

done to him in his person, 

property, or reputation, 

shall have remedy by due 

course of law. Justice shall 

be administered freely and 

without purchase; completely, and without denial; 

speedily, and without delay.”

“No court shall be secret, 

but justice shall be administered openly and without 

purchase, completely and 

without delay, and every 

man shall have remedy by 

due course of law for injury 

done him in his person, 

property, or reputation.” 

This court in Smothers found it significant that the Oregon 

framers decided to “express in one clause how justice is to 

be administered,” while the 1851 Indiana Constitution used 

two separate sentences. Smothers, 332 Or at 114. This court 

also found it telling that Oregon framers decided “to reserve 

for a separate, independent clause the requirement of remedy by due course of law for injury to person, property, or 

reputation.” Id. As this court reasoned, the decision to use 

a “separate, independent clause” implied that the Oregon 

framers “regarded the remedy clause as providing substantive protection to those absolute common-law rights.” Id. at 

114-15.

On reviewing the changes that Oregon framers 

made to the version of the remedy clause that they borrowed 

from the 1851 Indiana Constitution, we find that they prove 
Cite as 359 Or 168 (2016) 217

little about the meaning of Oregon’s remedy clause, primarily for two reasons. The first is that the Oregon framers 

did not change Indiana’s remedy clause by putting it into 

a “separate, independent clause.” The remedy clause in the 

1851 Indiana Constitution already appeared in a separate, 

independent clause; the only deviation by the Oregon framers was that they put the clause in a different part of the 

sentence: in the Indiana version, it came in the middle of 

two sentences; in the Oregon version, it came at the end of 

a single sentence. Second, we doubt that the Oregon framers would transform the meaning of the clause merely by 

changing its location. To be clear, we are not saying that 

our remedy clause cases erred in concluding that the Oregon 

framers intended that the remedy clause would guarantee 

some remedial process for certain injuries. We cannot, however, infer that intent from the placement of the clause in a 

sentence.

8. Our remedy clause decisions

With that background in mind, we return to defendant’s argument that Article I, section 10, is merely a guarantee of equal access to the courts for whatever remedy the 

legislature has provided. In defendant’s view, all our remedy 

clause cases should be overruled because the premises on 

which this court based those decisions were clearly incorrect. See State v. Savastano, 354 Or 64, 95-96, 309 P3d 1083 

(2013) (overruling prior cases in similar circumstances). As 

explained above, however, the text and the history of the 

remedy clause do not yield a clear answer regarding the 

clause’s meaning. Although state remedy clauses find their 

earliest source in limitations on royal authority, the state 

cases that preceded the adoption of Oregon’s Constitution 

consistently viewed their state remedy clauses as placing 

some substantive limit on legislative authority.

Admittedly, the substantive limits that those cases 

found in their remedy clauses varied. Many courts viewed 

their remedy clauses as prohibitions on retroactive legislation that interfered with “vested rights,” an amorphous 

concept that often reflects a conclusion rather than a rationale. Some but not all those courts also recognized that the 

remedy clause permitted their legislatures to substitute a 
218 Horton v. OHSU

less-protective remedy for the common-law one and thus, 

in effect, adjust the parties’ common-law rights. See Gooch, 

13 Me at 376-77; Stowell, 11 Mass at 365-66. Finally, some 

state courts interpreted statutes to avoid a complete denial 

of a common-law remedy, which could have run afoul of 

their remedy clauses, and others explicitly stated that conclusion in the context of contract clause claims. Thorton, 

11 Minn at 340; see Call, 8 Mass at 430 (explaining that, 

under contract clause, legislature may not deny remedy 

completely).

Given the cases that preceded and were contemporaneous with the adoption of Oregon’s remedy clause 

cases, we cannot say that our decisions, with the exception 

of Smothers, find no support in the text and history of that 

provision and should be overruled. In reaching that conclusion, we need not decide how we would interpret Oregon’s 

remedy clause if we were considering it for the first time. 

Rather, for over 100 years, this court has debated the meaning of the clause, the latitude it gives the legislature, and 

the rights it protects. Distilled from that debate are a series 

of decisions that evolved as the legislation they considered 

evolved. We may not toss that considered body of decisions 

aside, as defendant urges, nor can we conclude that the remedy clause is effectively a null set that merely replicates in a 

judicial context what the privileges and immunities clause 

guarantees more broadly. Although we overrule Smothers,

we reaffirm our remedy clause decisions that preceded 

Smothers, including the cases that Smothers disavowed. We 

draw the following conclusions from those cases.

As our early cases recognized, common-law causes 

of action and remedies provide a baseline for measuring the 

extent to which subsequent legislation conforms to the basic 

principles of the remedy clause—ensuring the availability 

of a remedy for persons injured in their person, property, 

and reputation. As our early cases also recognized, however, the common law is not inflexible but changes to meet 

the changing needs of the state. Perozzi, 149 Or at 348;

Re Water Rights of Hood River, 114 Or at 180-81; Peery, 93 

Or at 52. For that reason, Smothers clearly erred in holding that the remedy clause locks courts and the legislature 
Cite as 359 Or 168 (2016) 219

into a static conception of the common law as it existed in 

1857. Put differently, the remedy clause does not protect 

only those causes of action that pre-existed 1857, nor does 

it preclude the legislature from altering either commonlaw duties or the remedies available for a breach of those 

duties.

In determining the limits that the remedy clause 

places on the legislature, our cases have considered three 

general categories of legislation. First, when the legislature 

has not altered a duty but has denied a person injured as a 

result of a breach of that duty any remedy, our cases have 

held that the complete denial of a remedy violates the remedy clause. See Noonan, 161 Or at 222-35 (summarizing 

Mattson and cases following it). Similarly, our cases have 

held that providing an insubstantial remedy for a breach of 

a recognized duty also violates the remedy clause. Compare 

Clarke, 343 Or at 608, 610 ($200,000 capped damages not 

substantial in light of $12,000,000 in economic damages and 

$17,000,000 in total damages), with Howell, 353 Or at 376 

($200,000 capped damages substantial in light of $507,500 

in total damages).

Second, the court has recognized that the reasons 

for the legislature’s actions can matter. For example, when 

the legislature has sought to adjust a person’s rights and 

remedies as part of a larger statutory scheme that extends 

benefits to some while limiting benefits to others, we have 

considered that quid pro quo in determining whether the 

reduced benefit that the legislature has provided an individual plaintiff is “substantial” in light of the overall statutory 

scheme. Hale, 308 Or at 523.

Third, the legislature has modified common-law 

duties and, on occasion, has eliminated common-law causes 

of action when the premises underlying those duties and 

causes of action have changed. In those instances, what 

has mattered in determining the constitutionality of the 

legislature’s action is the reason for the legislative change 

measured against the extent to which the legislature has 

departed from the common law. See Perozzi, 149 Or at 348. 

That is, we have considered, among other things, whether 

the common-law cause of action that was modified continues 
220 Horton v. OHSU

to protect core interests against injury to persons, property, 

or reputation or whether, in light of changed conditions, the 

legislature permissibly could conclude that those interests 

no longer require the protection formerly afforded them. See 

Norwest, 293 Or at 563 (discussing legislative abolition of 

common-law torts of criminal conversation and alienation of 

affections).

It is difficult to reduce our remedy clause decisions to a simple formula, as Smothers sought to do, in part 

because the statutes that have given rise to those decisions 

do not reflect a single legislative goal or method of achieving that goal. In that respect, our remedy clause cases are 

not unlike our takings clause cases. Attempts to articulate 

a single unifying principle fail to comprehend the varied 

ways that the legislature can and has gone about achieving its goals. See Coast Range Conifers v. Board of Forestry, 

339 Or 136, 146, 117 P3d 990 (2005) (rejecting plaintiff’s 

unified theory of takings because it failed to take account 

of the differing “nature of the government action that gives 

rise to the [takings] claim”). The same is true here. As 

Article XVIII, section 7, recognizes, one of the functions 

of the legislature is to adjust the duties that one person 

owes another and the remedies for a breach of that duty as 

societal conditions change. It follows from our cases that, 

in deciding whether the legislature’s actions impair a person’s right to a remedy under Article I, section 10, we must 

consider the extent to which the legislature has departed 

from the common-law model measured against its reasons 

for doing so.

We note one final consideration regarding our remedy clause cases that have come after Smothers. To the 

extent that those cases turn on the bright line rule that 

Smothers drew (all injuries for which common-law causes 

of action existed in 1857 require a remedy while injures for 

which no cause of action existed in 1857 are entitled to no 

protection), then those cases must be taken with a grain of 

salt. That said, we agree with Clarke and Howell that the 

substantiality of the legislative remedy can matter in determining whether the remedy is consistent with the remedy 

clause. When the legislature does not limit the duty that a 
Cite as 359 Or 168 (2016) 221

defendant owes a plaintiff but does limit the size or nature 

of the remedy, the legislative remedy need not restore all 

the damages that the plaintiff sustained to pass constitutional muster, see Howell, 353 Or at 376, but a remedy that 

is only a paltry fraction of the damages that the plaintiff 

sustained will unlikely be sufficient, see Clarke, 343 Or 

at 610. It is worth noting, however, that both Clarke and 

Howell evaluated the plaintiffs’ Article I, section 10, claims 

in those cases through the lens that Smothers provided. As 

explained above, and as this court recognized in Hale, other 

factors, such as the existence of a quid pro quo, can bear on 

the determination.

D. Application

With that background in mind, we turn to the circumstances of this case. We note that this case falls into the 

second category of cases identified above; that is, the legislature did not alter the duty that OHSU doctors owe their 

patients to exercise due care. However, the Tort Claims Act, 

as amended, limits a plaintiff’s remedy for a breach of that 

duty as part of a comprehensive statutory scheme intended 

to extend benefits to some persons while adjusting the benefits to others. Moreover, as explained below, the Tort Claims 

Act seeks to accommodate the state’s constitutionally recognized interest in sovereign immunity with a plaintiff’s right 

to a remedy. Those factors bear on our evaluation of the substantiality of the remedy that the Tort Claims Act provides.

As the trial court held and as plaintiff does not dispute, OHSU is an arm of the state and, for that reason, may 

invoke the doctrine of sovereign immunity. See Clarke, 343 

Or at 600. This court recognized in Hale that the doctrine of 

sovereign immunity has constitutional underpinnings. See 

308 Or at 515; Vendrell v. School District No. 26C, 226 Or 

263, 278, 360 P2d 282 (1961) (“Our Constitution is framed 

on the premise that the state is immune from suit ** *.”). 

Article IV, section 24, of the Oregon Constitution assumes 

that the state is immune from liability for its torts, and it 

authorizes the state to waive that immunity by general law. 

Hale, 308 Or at 515. Without a valid waiver, the state may 

not be sued. Id. at 514 & n 5. Sovereign immunity, however, 

does not extend to the state’s employees. See Gearin, 110 Or 
222 Horton v. OHSU

at 396-97 (county employees). State employees are subject to 

suit for their torts even though they are acting on the state’s 

behalf. Id.

That distinction leaves the state on the horns of a 

dilemma. The state acts through its employees, and many of 

the functions that the state undertakes on behalf of its citizens entail risks of liability that few private entities would 

choose to bear—guarding prisoners, policing the streets, 

and intervening in families to protect children from abuse, 

to name only a few. If the state indemnified its employees for 

all the liability that they incurred while acting on the state’s 

behalf, the state’s sovereign immunity effectively would be 

eviscerated. Conversely, if the state chose not to indemnify 

its employees for any liability that they incurred while acting on its behalf and shifted all the risk to its employees, few 

qualified persons would choose to work for the state.

The Tort Claims Act avoids that dilemma by waiving 

the state’s immunity for its torts but capping the amount for 

which the state can be held liable—in this case, $3,000,000. 

ORS 30.265(1) (waiving immunity from tort actions subject 

to certain limitations); ORS 30.271(3) (listing graduated 

limits on state liability). The Tort Claims Act indemnifies 

state employees for liability in tort for acts occurring in the 

performance of their public duty but caps the amount of 

their liability at the amount for which the state has waived 

its sovereign immunity. ORS 30.285(1), (6). In so doing, the 

Tort Claims Act accommodates the state’s constitutionally 

recognized interest in asserting its sovereign immunity 

with the need to indemnify its employees for liability that 

they incur in carrying out state functions.

Moreover, the Tort Claims Act gives plaintiffs 

something that they would not have had if the state had 

not partially waived its immunity. The act ensures that a 

solvent defendant will be available to pay any damages up 

to $3,000,000—an assurance that would not be present if 

the only person left to pay an injured person’s damages were 

an uninsured, judgment-proof state employee. Compare 

Mattson, 39 Or at 580 (recognizing that legislature could 

immunize cities consistently with Article I, section 10, as 

long as the injured plaintiff has a remedy against a city 
Cite as 359 Or 168 (2016) 223

employee), with Eastman, 32 F at 34 (“If travelers and others who sustain injuries by reason of defective highways can 

have no remedy against any one except these officers personally, they might as well have none.”) There is, in short, a 

quid pro quo.

In setting the cap on state liability, the 2009 

Legislature recognized that the then-existing tort claims 

limit of $200,000 was vastly inadequate. In determining 

a more equitable limit, the legislature considered actuarial data about the impact of unlimited recoveries on public 

bodies and the impact of different levels of caps. Testimony, 

Senate Committee on Judiciary, SB 311, Jan 22, 2009, Ex 5 

(statement of Kris Kautz). It also studied tort claims caps 

in other states. Id. And it considered data from the last few 

decades of claims brought under the Oregon Tort Claims 

Act. After considering that data, the legislature set new 

limits for claims against state and local government bodies, 

increasing the single-claim cap for claims against the state 

and OHSU from $200,000 to $1.5 million and the aggregate 

cap to $3 million.26 Or Laws 2009, ch 67, §§ 3, 4. It provided 

for yearly increases to the caps according to a fixed percentage indexed to inflation. In 2011, the legislature amended 

the Tort Claims Act to allow plaintiffs to proceed directly 

against a named individual when the complaint alleged 

damages in excess of the Tort Claims Act limit. Or Laws 

2011, ch 270, § 1. The public body, however, would still be 

obligated to indemnify the individual employee, although 

the overall Tort Claims Act limit would apply to the amount 

of recovery. Id.

The legislature recognized that the increased damages available under the revised Tort Claims Act would not 

provide a complete recovery to everyone injured as a result 

of the state’s tortious acts. However, those increased limits 

provide a complete recovery in many cases, greatly expand 

the state’s liability in the most egregious cases, and advance 

the purposes underlying the doctrine of sovereign immunity 

26 The legislature designed a two-tier approach to Tort Claims Act damage 

limitations. One set of limits would govern claims against local government bodies, and another set would govern claims against the state and OHSU. See Ex 1, 

Senate Committee on the Judiciary, SB 311, January 22, 2009 “Recommendations 

of the Oregon Tort Claims Task Force.”
224 Horton v. OHSU

while ensuring that a solvent defendant is available to pay 

a plaintiff’s damages up to the amount of the Tort Claims 

Act limit. Given the legislature’s efforts to accommodate 

the state’s constitutionally recognized interest in sovereign 

immunity and a plaintiff’s constitutional right to a remedy, we cannot say that the $3,000,000 tort claims limit on 

damages against state employees is insubstantial in light 

of the overall statutory scheme, which extends an assurance of benefits to some while limiting benefits to others. 

See Hale, 308 Or at 523,27 cf. Davidson v. Rogers, 281 Or 219,

224-25, 574 P2d 624 (1978) (Linde, J., concurring) (construing Article I, sections 8 and 10, together in determining 

whether right to demand retraction permissibly limits damages in defamation action).

We recognize that the damages available under the 

Tort Claims Act are not sufficient in this case to compensate plaintiff for the full extent of the injuries that her son 

suffered. However, our remedy clause cases do not deny the 

legislature authority to adjust, within constitutional limits, the duties and remedies that one person owes another. 

That is particularly true when the legislature seeks to 

accommodate the state’s constitutionally recognized interest in sovereign immunity and a plaintiff’s constitutionally 

protected right to a remedy and when the remedy that the 

legislature has provided “represents a far more substantial 

remedy than the paltry fraction that remained after the 

imposition of the limitation in Clarke.” Howell, 353 Or at 

376.28

27 Plaintiff reasons that the holding in Hale turned on (or should be limited 

to) the fact that the plaintiff’s claim in that case was only against the city, and 

not a city employee. Cf. Mattson, 39 Or at 580 (recognizing that the legislature 

could immunize a city as long as the injured plaintiff had a remedy against a city 

employee). However, the limitation that plaintiff perceives in Hale is not found in 

the majority opinion. Rather, the limited reading of Hale that plaintiff and the 

dissent urge reflects the view of a single judge expressed in a concurring opinion 

in which no other judge joined. Although the court in Clarke read Hale consistently with the concurring opinion in that case, Clarke did so under the press of 

Smothers, which we have overruled.

28 Two considerations distinguish our holding today from the holding in 

Clarke. The first is the size of the award, in relation to the damages awarded. 

The second is the quid pro quo that the Tort Claims Act provides and its accommodation of the state’s interest in sovereign immunity and the plaintiff’s right 

to remedy. Perhaps as a result of Smothers and its disavowal of Hale, the parties 

did not argue in Clarke that those considerations mattered, and this court did 
Cite as 359 Or 168 (2016) 225

Our holding today is limited to the circumstances 

that this case presents, and it turns on the presence of the 

state’s constitutionally recognized interest in sovereign 

immunity, the quid pro quo that the Tort Claims Act provides, and the tort claims limits in this case. We express no 

opinion on whether other types of damages caps, which do 

not implicate the state’s constitutionally recognized interest 

in sovereign immunity and which are not part of a similar 

quid pro quo, comply with Article I, section 10. Those cases 

are not before us, and we leave their resolution to the customary process of case-by-case adjudication.

II. ARTICLE I, SECTION 17

Following Lakin v. Senco Products, Inc., 329 Or 62, 

987 P2d 463, modified, 329 Or 369, 987 P2d 476 (1999), the 

trial court held that applying the Tort Claims Act limit to 

the jury’s damages award violated Article I, section 17. On 

appeal, defendant does not dispute that, if Lakin is good law, 

the trial court’s judgment should be affirmed. He argues, 

however, that subsequent cases have undercut the premises 

on which Lakin rests, and he contends that a reexamination of the text of Article I, section 17, its history, and the 

cases interpreting it demonstrates that Lakin was wrongly 

decided and should be overruled. Plaintiff responds that 

“Lakin is built on a solid foundation of constitutional history and analysis, and well-established precedent.”29 She 

observes that, since it was decided in 1999, “Lakin has 

been applied in several cases, most recently by this court 

in Klutschkowski,” and she reasons that defendant has not 

met the difficult task of persuading this court that it should 

overrule one of its precedents. In evaluating the parties’ 

arguments, we begin with defendant’s argument that our 

cases since Lakin have eroded the premises on which that 

decision rests.

not factor those considerations into its holding. Even if it had, we doubt highly 

that the “paltry fraction” that previously was available under the Tort Claims 

Act would have been sufficient to constitute a substantial remedy under our cases 

that preceded Smothers. 

29 Plaintiff does not provide any additional authority to support Lakin’s holding, but relies on Lakin’s discussion of the text of Article I, section 17, the history 

that preceded the adoption of that provision, and cases interpreting it.
226 Horton v. OHSU

A. Lakin and subsequent Article I, section 17, cases

Article I, section 17, provides: “In all civil cases the 

right of Trial by Jury shall remain inviolate.” In interpreting that section, most of this court’s cases have sought to 

determine, as a procedural matter, which claims or defenses 

will entitle a party to a jury trial. See, e.g., McDowell 

Welding & Pipefitting v. US Gypsum Co., 345 Or 272, 279, 

193 P3d 9 (2008); Deane v. Willamette Bridge Co., 22 Or 167 

(1892); Tribou v. Strowbridge, 7 Or 156 (1879). On that procedural issue, the court consistently has held that Article I, 

section 17, does not give a party a right to a jury trial for 

claims or defenses that would have been tried to a court of 

equity in 1857 when the Oregon Constitution was adopted. 

McDowell, 345 Or at 279; Deane, 22 Or at 169-70; Tribou, 7 

Or at 158. Conversely, the court consistently has recognized 

that Article I, section 17, guarantees a jury trial in those 

cases in which the right to a jury trial was customary at 

the time the Oregon Constitution was adopted and in cases 

of like nature. See M. K. F. v. Miramontes, 352 Or 401, 413, 

287 P3d 1045 (2012) (state constitutional jury trial right 

extends to new causes of action that are “of like nature” to 

claims and defenses that would have been tried to a jury in 

1857).

In 1995, this court addressed, for the first time, 

whether Article I, section 17, guarantees a substantive as 

well as a procedural right; that is, this court addressed 

whether, in addition to guaranteeing a procedural right to 

have a jury rather than a judge decide the facts in certain 

kinds of civil cases, Article I, section 17, also restricts the 

legislature’s ability to limit the type or amount of damages 

that a jury awards. See Greist v. Phillips, 322 Or 281, 293-95, 

906 P2d 789 (1995). Greist held that it does not; more specifically, Greist held that the legislature may limit a jury’s 

damages award in wrongful death actions. The court based 

that holding on two separate grounds.

The court explained initially that, because the 

common law did not recognize a claim for wrongful death 

in 1857, Article I, section 17, did not apply to that claim. 

Id. at 294. Alternatively, the court explained that, before 

1910, Oregon trial courts applied the doctrine of remittitur 
Cite as 359 Or 168 (2016) 227

to reduce jury damages awards if they were excessive. Id. 

at 294-95. Relying on that practice, this court rejected the 

plaintiff’s argument that, in 1857, a party would have had 

“a right to have a judge enter judgment on a jury’s award 

of damages—without judicial alteration—in a personal 

injury action.” Id. at 295. As a consequence, the court 

declined to find that Article I, section 17, included a substantive limit on the legislature’s authority to cap noneconomic damages.

Four years later, this court took a different course 

in Lakin. It viewed Greist’s resolution of the plaintiff’s 

Article I, section 17, claim as resting on the first ground 

identified in Greist—that Article I, section 17, does not apply 

to wrongful death actions because that action was not recognized by the common law in 1857. Lakin, 329 Or at 77. 

Lakin described the alternative ground in Greist—that the 

practice of remittitur before 1910 established that Article I, 

section 17, does not impose a substantive limitation on the 

legislature—as dicta, which “require[d] correction.” Id. at 

76. We discuss Lakin’s reasoning in greater detail below, but 

essentially Lakin held that Greist’s discussion of remittitur

was erroneous because “Oregon trial courts never have had 

the power to reduce a jury’s verdict or enter judgment for a 

lesser amount of damages over the objection of the prevailing party, who always could reject a judicial remittitur and 

demand a new jury trial.” Id. Lakin concluded that, because 

a trial court could not unilaterally reduce a jury’s damages 

award, neither could the legislature. Id. at 78-79.

Since Lakin, we have distinguished or limited 

Lakin’s holding in four decisions: Jensen v. Whitlow, 334 

Or 412, 51 P3d 599 (2002); DeMendoza v. Huffman, 334 Or 

425, 51 P3d 1232 (2002), Lawson v. Hoke, 339 Or 253, 119 

P3d 210 (2005), and Hughes v. PeaceHealth, 344 Or 142, 178 

P3d 225 (2008). We followed Lakin once in Klutschkowski.

30

30 The court did not discuss Article I, section 17, in Clarke or Howell. In 

Clarke, the court resolved the plaintiff’s claim solely on the basis of Article I, 

section 10, and found it unnecessary to reach his Article I, section 17, claim. 343 

Or at 610 n 19. In Howell, the two questions that the Ninth Circuit certified to 

this court asked only about Article I, section 10. See 353 Or at 361 (setting out the 

certified questions). The certified questions did not ask about Article I, section 17, 

perhaps because the Seventh Amendment governs the right to jury trials in federal courts.
228 Horton v. OHSU

We discuss those decisions briefly in considering whether 

our cases have eroded the premises on which Lakin rested 

and whether, as a result, it is appropriate to reexamine the 

sources on which Lakin based its holding. See Couey, 357 

Or at 486-87 (reconsidering decisions that cannot be fairly 

reconciled with each other).

1. Jensen

In Jensen, the court rejected the plaintiff’s claim 

that eliminating a cause of action against a public employee 

who had injured the plaintiff’s child violated Article I, section 17. The court reasoned:

“Article I, section 17, is not a source of law that creates or 

retains a substantive claim or theory of recovery in favor 

of any party. Instead, as this court previously has held, 

Article I, section 17, simply ‘guarantees a jury trial in civil 

actions for which the common law provided a jury trial 

when the Oregon Constitution was adopted in 1857.’”

Jensen, 334 Or at 422 (quoting Lakin, 329 Or at 82). Jensen

distinguished Lakin on the ground that Article I, section 17, 

does not put a substantive limit on the legislature’s authority to eliminate a cause of action. The court explained 

that, if the plaintiff had a remedy for eliminating a cause 

of action, it arose from some constitutional provision other 

than Article I, section 17.

2. DeMendoza

The court extended its reasoning in Jensen to a 

related but separate issue in DeMendoza. The statute at 

issue in DeMendoza directed that 60 percent of the punitive 

damages that the jury awarded to a party be distributed 

to the state. The plaintiffs in DeMendoza argued that the 

statute violated both Article I, section 10, and Article I, section 17. This court first held that the plaintiffs had no substantive right under Article I, section 10, to recover punitive 

damages. DeMendoza, 334 Or at 446. It then turned to the 

plaintiffs’ argument that, under Lakin, the statute redistributing part of their punitive damages award was no different 

from a damages cap because it prevented the plaintiffs from 

receiving the full amount of the punitive damages that the 

jury had awarded them.
Cite as 359 Or 168 (2016) 229

In analyzing the plaintiffs’ Article I, section 17, 

claim, the court first quoted Jensen for the proposition that 

“‘Article I, section 17, is not a source of law that creates or 

retains a substantive claim or a theory of recovery in favor 

or any party.’” Id. (quoting Jensen, 334 Or at 422) (emphasis 

deleted). It then explained, “[l]ikewise, if a ‘right’ to receive 

an award that reflects the jury’s determination of the [full] 

amount of punitive damages exists, then it must arise from 

some source other than Article I, section 17.”31 Id. at 447. 

DeMendoza thus held that, if the plaintiffs’ right to receive 

the full amount of the punitive damages that the jury 

awarded did not arise from some other state or federal constitutional provision, such as Article I, section 10, then the 

plaintiffs had no additional right under Article I, section 17, 

to receive the full amount of the jury’s punitive damages 

award.

DeMendoza possibly can be reconciled with Lakin

in one of two ways. DeMendoza may have sought to distinguish Lakin on the ground that Lakin involved a reduction 

in compensatory damages while DeMendoza involved a 

reduction in punitive damages. See id. (noting Lakin’s statement that the noneconomic damages cap in that case interfered with the plaintiffs’ right to receive the full amount of 

compensatory damages awarded). We hesitate, however, to 

conclude that DeMendoza sought to distinguish Lakin on 

31 We quote, in full, DeMendoza’s resolution of the plaintiff’s Article I, section 17, claim:

“Likewise, if a ‘right’ to receive an award that reflects the jury’s determination of the amount of punitive damages exists, then it must arise from some 

source other than Article I, section 17. For example, in Lakin, the plaintiffs’ 

rights under Article I, section 17, were violated, because the cap on noneconomic compensatory damages interfered with the plaintiffs’ ‘right to receive 

an award that reflect[ed] the jury’s factual determination of the amount of 

the damages’ that would ‘“* ** fully compensate [plaintiffs] for all loss and 

injury to [them].”’ 329 Or at 81 (quoting Oliver v. N.P.T. Co., 3 Or 84, 87-88 

(1869)). Here, in contrast, plaintiffs have no underlying ‘right to receive an 

award’ that reflects the jury’s determination of the amount of punitive damages, nor are those damages necessary to ‘compensate’ plaintiffs for a ‘loss or 

injury [to them].’ [DeMendoza,] 334 Or at 446 (no right to punitive damages 

as remedy under Article I, section 10). Because plaintiffs lack that right, 

the legislature’s allocation of a portion of the punitive damages award to the 

state does not implicate Article I, section 17.”

DeMendoza, 334 Or at 447 (last bracket added; all other brackets and ellipses in 

DeMendoza).
230 Horton v. OHSU

that ground. This court has long recognized that, for the 

purposes of the state constitutional right to a jury trial, “no 

valid distinction ** * can be drawn between compensatory 

and exemplary damages.” Van Lom v. Schneiderman, 187 

Or 89, 110, 210 P2d 461 (1949). As a matter of state constitutional law, both are factual issues for the jury. Oberg v. 

Honda Motor Co., 316 Or 263, 275 n 7, 851 P2d 1084 (1993), 

rev’d and remanded on other grounds, Honda Motor Co. v. 

Oberg, 512 US 415, 114 S Ct 2331, 129 L Ed 2d 336 (1994); 

Van Lom, 187 Or at 110-13.

Beyond that, Lakin posed the question before it 

broadly as “whether the assessment of damages was a function of a common-law jury in 1857.” 329 Or at 72. Phrasing 

the issue that way suggests that, consistently with Van Lom 

and Oberg, the court in Lakin did not intend to limit its 

holding to legislative reductions in compensatory damages 

awarded by the jury. It follows, we think, that Lakin cannot 

fairly be reconciled with DeMendoza on the ground that the 

former involved a reduction in an award of compensatory 

damages while the latter involved a reduction in an award 

of punitive damages.

Perhaps DeMendoza can be reconciled with Lakin 

another way. As noted, DeMendoza first held that the remedy clause of Article I, section 10, placed no limit on the 

legislature’s authority to reduce or eliminate punitive damages. 334 Or at 445-46. Relying on Jensen, DeMendoza then 

explained that, because the “plaintiffs have no underlying 

‘right to receive an award’ that reflects the jury’s determination of the amount of punitive damages, * ** the legislature’s 

allocation of a portion of the punitive damages award to the 

state does not implicate Article I, section 17.” 334 Or at 447. 

One way potentially to reconcile Lakin and DeMendoza’s 

Article I, section 17, holdings is that, in one, the remedy 

clause placed no restriction on the legislature’s authority 

to limit punitive damages while, in the other, the remedy 

clause restricted the legislature’s authority to limit compensatory damages. That is, neither case may have viewed 

Article I, section 17, as providing an independent right to 

retain all the damages that a jury awards, and the difference may have turned on the presence or absence of a right 

under Article I, section 10.
Cite as 359 Or 168 (2016) 231

The difficulty with attempting to reconcile 

DeMendoza and Lakin that way is that Lakin expressly 

held that the plaintiffs in that case had a right to receive 

the full amount of the jury’s compensatory damages award 

under Article I, section 17, even if they did not have a right 

to do so under Article I, section 10. Lakin, 329 Or at 80-81. 

That is, Lakin’s reasoning explicitly negates the proposition 

that its holding can be reconciled with DeMendoza on the 

ground that Article I, section 10, places a substantive limit 

on the legislature’s right to reduce compensatory damages 

but not punitive damages. In our view, the court’s decision in 

DeMendoza is a reasonable extension of its decision in Jensen, 

but DeMendoza cannot be fairly reconciled with Lakin.

3. Hughes

Hughes poses a similar problem, even though 

Hughes rests on a distinction that Lakin itself drew in overruling part of Greist. As noted, Greist had held that Article I, 

section 17, does not prevent the legislature from capping a 

jury’s award of noneconomic damages in wrongful death 

cases for two reasons: (1) the practice of remittitur in 1857 

was at odds with that argument and (2) a wrongful death 

action did not exist at common law in 1857 and thus was 

not subject to Article I, section 17. Greist, 322 Or at 294-95. 

In holding that Article I, section 17, prevents the legislature from limiting damages in a negligence action, Lakin 

rejected the first ground noted in Greist but not the second. 

Lakin, 329 Or at 77. That is, Lakin reconciled its holding 

with Greist by explaining that Greist involved a wrongful 

death action, which was not recognized by the common law 

in 1857. Id. By contrast, at least one of the claims in Lakin 

was recognized by the common law in 1857. Id.

Noting Lakin’s implicit acceptance of the second 

ground in Greist, this court held in Hughes that the legislature could limit the jury’s award of noneconomic damages 

in wrongful death actions because that action did not exist 

in 1857. Hughes, 344 Or at 154. In doing so, Hughes rejected 

the plaintiff’s argument that Article I, section 17, applies not 

only to claims that existed at common law but also to claims 

“of like nature.” Id. at 155. The court did not dispute that 

the plaintiff’s wrongful death claim in Hughes was “of like 
232 Horton v. OHSU

nature” to a negligence claim, which would have been tried 

to a jury at common law. However, relying on Jensen and 

DeMendoza, the court explained that Article I, section 17, is 

not a source of law that creates a substantive right to noneconomic damages. Id. Only if the claim was recognized in 

1857 would the jury’s verdict be immune from reduction.32

Id.

Two justices dissented in Hughes. One of the dissents reasoned that the majority’s holding in Hughes “subvert[ed]” the fundamental principle that underlies Lakin—

”that the right to jury trial is a right of substance with 

which the legislature cannot interfere.” Id. at 174 (Walters, 

J., dissenting). The other dissent explained that the majority opinion “t[ook] several odd steps that do not withstand 

scrutiny. “ Id. at 171 (Durham, J., dissenting). Both dissents 

faulted the majority for holding that Article I, section 17, 

applied only to common-law claims that were recognized in 

1857, but not to claims of like nature.

4. Miramontes

Later, in Miramontes, the court considered an issue 

that had not been presented in Hughes—whether a party 

was entitled to have a jury rather than a judge decide a 

claim that had not existed in 1857 but was “of like nature” 

to claims that were tried to a jury then.33 The trial court in 

Miramontes had refused to empanel a jury to decide a damages claim against a defendant in a stalking case. 352 Or at 

403. The court held that, even though the plaintiff’s damages claim in that case was unknown to the common law in 

1857, Article I, section 17, gave the defendant the right to try 

32 The court took a similar approach in Lawson. In that case, a statute prohibited uninsured drivers from recovering noneconomic damages arising from 

an automobile accident. See 339 Or at 260. The court held that that statutory 

condition did not violate Article I, section 10. Id. at 264-65. The court then held 

that, because Article I, section 17, “‘is not a source of law that creates or retains a 

substantive claim,’” that provision did not assist the plaintiff in the absence of an 

Article I, section 10, right or some other right to recover noneconomic damages. 

Id. at 267 (quoting Jensen, 334 Or at 422). 

33 Because the plaintiff in Hughes had tried her wrongful death claim to a 

jury, that case did not require the court to decide whether she had a procedural 

right under Article I, section 17, to do so because a wrongful death action was “of 

like nature” to a claim that would have been tried to a jury in 1857. Hughes, 344 

Or at 156 n 12. 
Cite as 359 Or 168 (2016) 233

that claim to a jury because the claim was “of like nature” 

to one that would have been tried to a jury in 1857. Id. at 

413-14.

At first blush, Hughes and Miramontes appear to 

conflict. One limits Article I, section 17, to claims that would 

have been tried to a jury in 1857; the other extends the right 

to claims “of like nature.” One way to reconcile those two 

cases is to say that they bifurcated the Article I, section 17, 

jury trial right into substantive and procedural components. 

The substantive component of Article I, section 17, extends 

only to those common law claims that existed in 1857, and 

the damages that a jury awards for those claims may not 

be reduced. By contrast, the procedural component extends 

to all claims that are “of like nature” to common-law claims 

that existed in 1857, but the procedural component guarantees only the right to have a jury, as opposed to a judge, 

decide those claims. That resolution—dividing the jury 

trial right into two components and attributing different 

legal consequences to each—alleviates some of the tension 

between Hughes and Miramontes, but it does not resolve 

the underlying conflict—whether the premises on which 

Article I, section 17, rests support bifurcating the right.34

5. Klutschkowski

This court followed Lakin’s holding in one case 

Klutschkowski. The primary dispute in that case was 

whether an infant’s claim for negligently inflicted injuries 

that occurred during the infant’s birth would have been 

actionable in 1857. See Klutschlowski, 354 Or at 168-69. 

The court held that the claim would have been and, having reached that conclusion, determined that the plaintiff’s claim came within Lakin’s holding. Id. at 176-77. In 

34 The same tension existed in Lakin itself. On one hand, Lakin implicitly 

accepted Greist’s holding that Article I, section 17, did not preclude the legislature from capping noneconomic damages in wrongful death actions because 

actions for wrongful death did not exist in 1857. 329 Or at 77. On the other hand, 

Lakin stated later in the opinion that Article I, section 17, applies to “actions for 

which the common law provided a jury trial when the Oregon Constitution was 

adopted in 1857 and in cases of like nature.” Id. at 82 (emphasis added). Because 

a wrongful death action is “of like nature” to the tort action that underlies it, 

Lakin’s acceptance of Greist is at odds with its later statement of the scope of 

Article I, section 17.
234 Horton v. OHSU

both Lakin and Klutschkowski, the plaintiff was seeking to 

recover for an injury for which the common law would have 

provided a remedy in 1857. Id.

Admittedly, the fact that Klutschkowski was virtually identical to Lakin in that respect did not resolve the 

conflict between Lakin, on the one hand, and DeMendoza,

on the other, nor did it resolve the tension between Hughes

and Miramontes. However, the parties in Klutshckowski did 

not ask the court to reconsider or reconcile its precedents. 

Id. at 169. The court accordingly did not do so. Rather, it 

looked to the most applicable precedent, which was Lakin, 

and resolved the case on that ground. Klutschkowski accordingly did not address the issue that this case presents.

Given our cases, it is difficult to describe Lakin as 

either “settled” or “well-established” precedent. This court 

has distinguished Lakin in all the cases that came after it, 

with the exception of Klutschkowski where the defendant 

declined to challenge it. Some of the cases distinguishing Lakin can fairly be reconciled with it. Others, such as 

DeMendoza, cannot. And while Hughes relies on a distinction that Lakin itself recognized, the dissenting opinions in 

Hughes reasoned, with some force, that the distinction that 

Lakin drew and that Hughes followed “subverted” what they 

viewed as the fundamental premise of Lakin. See Hughes, 

344 Or at 174 (Walters, J., dissenting). Given the disarray 

among our Article I, section 17, cases, we conclude that it 

is appropriate to reconsider Lakin’s holding. See Couey, 357 

Or at 489 (explaining that, when two of this court’s decisions cannot be fairly reconciled, it is appropriate to reconsider which decision fits more closely with the constitutional 

text and history). We accordingly reexamine Article I, section 17’s text and history.

B. Text

As noted, Article I, section 17, provides: “In all civil 

cases the right of Trial by Jury shall remain inviolate.” In 

Lakin, the court explained that the word “inviolate” (and 

we would add the word “remain”) suggests that the framers 

intended to preserve the “right of Trial by Jury” as it existed 

in 1857. 329 Or at 69. We agree with that proposition, as have 
Cite as 359 Or 168 (2016) 235

a long line of Oregon cases interpreting Article I, section 17. 

See Deane, 22 Or at 169-70 (Article I, section 17, “secures 

*** the right to trial by jury in all cases where that right 

existed at the time the constitution was adopted.”); Tribou, 

7 Or at 158 (same). We also agree with Lakin that saying 

that the framers intended to preserve the “right of Trial 

by Jury” does not answer the question of what that right 

encompasses. Lakin, 329 Or at 69. Perhaps a textual clue 

can be drawn from the use of the prepositional phrase “by 

Jury.” That phrase defines the type of trial that Article I, 

section 17, preserves. It suggests that the right that Article I, 

section 17, preserves is a right to a procedure (a trial by a 

jury as opposed to a trial by a judge) rather than a substantive result. However, we agree with Lakin that the text 

of Article I, section 17, standing alone, does not definitively 

answer the question one way or another.35

C. History

We also consider the history that surrounded the 

adoption of Article I, section 17, to determine the scope of 

the right that the framers intended to preserve. On that 

point, Lakin observed that the right to a jury trial in civil 

cases has deep roots. Lakin explained that “the guarantee 

of [a civil] trial by jury was ensured in the Magna Carta 

in 1215,” that it was described by Blackstone as “‘the glory 

of the English law’” and “‘the most transcendent privilege 

that any subject can enjoy,’” and that the majority of the 

state constitutions leading up to the adoption of Oregon’s 

constitution in 1857 included the right. See 329 Or at 70-71 

(quoting Dimick v. Schiedt, 293 US 474, 485-86, 55 S Ct 296, 

79 L Ed 603 (1935)).

35 Although Lakin initially recognized that the term “inviolate” was not 

dispositive, 329 Or at 69, it later followed a Washington Supreme Court decision that gave the term greater significance, see id. at 79-80 (following Sofie v. 

Fibreboard Corp., 112 Wash 2d 636, 771 P2d 711 (1989)). We question how much 

weight can be put on that term. As the Fifth Circuit recently explained, “‘inviolability’ simply means that the jury right is protected absolutely in cases where it 

applies; the term does not establish what that right encompasses.” Learmouth v. 

Sears, Roebuck Co., 710 F3d 249 (5th Cir 2013) (interpreting Mississippi constitutional right to jury trial). Providing that the right to trial by jury shall remain 

“inviolate” does not differ in any material respect from providing that the right 

shall remain “sacred” or “preserved,” nor does the use of that term explain the 

scope of the guarantee.
236 Horton v. OHSU

We agree that the right to a jury trial in civil cases 

was attributed, at least popularly, to Magna Carta,36 that, 

approximately 500 years after Magna Carta was signed, 

Blackstone described the civil jury trial as an essential 

attribute of the liberty that English citizens enjoyed, and 

that that view of the right continued in America with 

the result that its omission from the federal constitution 

was one of the major objections raised against ratifying 

the constitution as it emerged from the Constitutional 

Convention.

To say, however, that the right was viewed as an 

essential attribute of liberty does not say what the right 

encompasses. In considering that issue, we begin with 

Blackstone, whose writing on the civil jury trial was influential in shaping American thought on that issue. See Charles 

W. Wolfram, The Constitutional History of the Seventh 

Amendment, 57 Minn L Rev 639, 654 n 45 (1973) (discussing Blackstone’s influence). In concluding that the right to a 

civil jury trial was “the glory of the English law,” Blackstone 

first described the attributes of a civil jury trial and then 

discussed its structural significance. William Blackstone, 3 

Commentaries on the Laws of England 349-67, 372-81, 383-

85 (1st ed 1768).

In describing the attributes of the right, Blackstone 

focused solely on the procedures associated with jury trials. 

He explained that the system for selecting both jury panels 

and individual jurors was designed to ensure a group of 

neutral jurors. Id. at 355-56 (procedures for calling jurors); 

id. at 359-65 (grounds for challenging jury panels and 

individual jurors). He also contrasted a civil jury trial with 

a trial by the ecclesiastical courts. Id. at 372-73. In doing 

so, he praised not only the value of having neutral jurors 

decide the facts but also the procedural rights that accompany a jury trial, such as the right to cross-examination 

and the right to have witnesses testify under oath in open 

court. Id. He contrasted those procedural rights, which 

he associated with civil jury trials, with the procedures 

36 We say “popularly” because “[h]istorians no longer accept the Magna 

Charta pedigree for jury trial.” Charles W. Wolfram, The Constitutional History 

of the Seventh Amendment, 57 Minn L Rev 639, 653 n 44 (1973).
Cite as 359 Or 168 (2016) 237

available in the ecclesiastical courts, which he described as 

the “private and secret examination taken down in writing 

before an officer, or his clerk.” Id. at 373. He explained that, 

in the ecclesiastical courts, “an artful or careless scribe 

may make a witness speak what he never meant,” while 

a witness who testifies in open court can clarify his or her 

meaning, answer occasional questions from the judge or 

jury, and is subject to cross-examination, which “will sift 

out truth much better than a formal set of interrogatories.” 

Id.

In explaining the structural significance of civil 

jury trials, Blackstone focused on the division of authority 

between judges and jurors. He reasoned that, if law and fact 

were “entirely entrusted to the magistracy, a select body of 

men [chosen by the prince], their decisions, in spight [sic] of 

their own natural integrity, will have frequently an involuntary biass [sic] towards those of their own rank and dignity.” Id. at 379. Conversely, “if the power of judicature were 

placed at random [and wholly] in the hands of the multitude, 

their decisions would be wild and capricious, and a new rule 

of action would be every day established in our courts.” Id.

at 379-80.

Dividing issues of law and fact between the judges 

and juries avoided those extremes. Blackstone reasoned that 

the “principles and axioms of law, which are general propositions, flowing from abstracted reason, and not accommodated to times or to men, should be deposited in the breasts 

of the judges.”37 Id. at 380. However, entrusting factual 

questions to a single magistrate left too much possibility 

that a judge would drift towards “partiality and injustice.” 

Id. In Blackstone’s view, “a competent number of sensible 

and upright jurymen, chosen by lot from among those of the 

middle rank, will be found the best investigators of truth.” 

Id. Moreover, “the most powerful individual in the state will 

be cautious of committing any flagrant invasion of another’s 

right, when he knows that the fact of his oppression must 

37 Blackstone reasoned that, as to law, “partiality can have little scope the 

law is well known, and is the same for all ranks and degrees; it follows as a 

regular conclusion from the premises of fact pre-established.” Blackstone, 3 

Commentaries at 380.
238 Horton v. OHSU

be examined and decided by twelve indifferent men ***; 

and that, when once the fact is ascertained, the law must of 

course redress it.” Id. It followed, he concluded, that the civil 

jury system “preserves in the hands of the people that share 

which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful 

and wealthy citizens.” Id.

In focusing on the procedural benefits of civil jury 

trials, Blackstone did not suggest that the right to a civil 

jury imposed a substantive limit on the ability of either the 

common-law courts or parliament to define the legal principles that create and limit a person’s liability. Similarly, 

in describing the division of authority between judges and 

juries, he did not state that the jury trial right checked 

the lawmaking authority of either the common-law courts 

or parliament. Rather, he explained that courts retain the 

authority to define the applicable legal principles.

Only one statement that Blackstone made in his 

discussion of the value of a civil jury arguably points in a 

different direction. As noted, Blackstone explained that 

a civil jury trial was valuable because the most powerful 

members of society would be aware that their actions could 

“be examined and decided by twelve indifferent men ***; 

and that, once the fact is ascertained, the law must of course 

redress it.” Id. at 380. That statement—that the law would 

redress the facts found by the jury—reflected Blackstone’s 

view of the way that the law, announced by parliament and 

the common-law courts, worked. It did not reflect an understanding that the jury’s fact-finding ability imposed a substantive limitation on parliament or common-law courts’ 

authority to announce legal principles that guide and limit 

the jury’s fact-finding function.

The same conclusion follows from the American 

experience. Before the adoption of the federal constitution, 

the 13 original states provided for jury trials subject to varying degrees to judicial control. See Edith Guild Henderson, 

The Background of the Seventh Amendment, 80 Harv L Rev 

289, 318-20 (1966) (describing the “patternless diversity of 

these jury control practices [among the original states] at the 
Cite as 359 Or 168 (2016) 239

time the seventh amendment was passed”).38 As Henderson 

describes, the states differed on the degree to which judges 

could limit a jury’s fact-finding authority. However, she did 

not identify any substantive limitation among the original 

states that the right to a civil jury placed on a state legislature’s ability to define civil causes of action or damages.

Similarly, before the revolution, one issue that 

divided the colonies from England was “the extent to which 

colonial administrators were making use of judge-tried 

cases to circumvent the right of civil jury trial.” Wolfram, 

Seventh Amendment, 57 Minn L Rev at 654. George Mason, 

for example, “asserted that threats to the accepted practice 

of trial by jury and injustices perpetrated by the vice-admiralty courts had become points of dispute between the 

American colonies and England.” Id. at 654 n 47. In the 

same vein, John Peter Zenger’s libel case became famous, 

in part because he had criticized New York’s colonial governor for attempting to recover a debt in an equity court in 

order to evade the debtor’s right to a civil jury trial. Id. at 

655. The concern that Mason expressed and that Zenger’s 

case reflected was that decision-making authority was being 

improperly shifted from a jury composed of American citizens to a judge who was beholden to a British monarch. The 

perceived value of a civil jury trial lay in the jury’s ability to 

provide a fair application of the law to the facts in an individual case, not in any substantive limitation that the civil 

jury trial placed on the legislature’s lawmaking authority.

Despite the value that the colonists placed on having 

a jury rather than a colonial judge decide civil claims, the 

Constitutional Convention did not include a civil jury trial 

guarantee in the constitution, although the convention did 

guarantee a jury trial in criminal cases. See US Const Art 

III, § 2.39 The absence of a civil jury trial guarantee in the 

38 The original 13 states continued the institution of jury trials “either by 

express provision in a state constitution, by statute, or by continuation of the 

practices that had applied prior to the break with England.” Wolfram, Seventh 

Amendment, 57 Minn L Rev at 655.

39 Article III, section 2, of the United States Constitution provides in part: 

“The Trial of all Crimes, except in Cases of Impeachment, shall be by 

Jury; and such Trial shall be held in the State where the said Crimes shall 

have been committed.”
240 Horton v. OHSU

constitution was not mentioned until five days before the 

Constitutional Convention adjourned. At that point, Hugh 

Williamson, a delegate from North Carolina, “observed * * * 

that no provision was yet made for juries in Civil cases and 

suggested the necessity of it.” 2 The Records of the Federal 

Convention of 1787, at 587-88 (Max Farrand ed., 1911). 

Elbridge Gerry agreed and “urged the necessity of Juries 

to guard agst. corrupt Judges.” Id. In response, Nathaniel 

Gorham explained that “[i]t is not possible to discriminate 

equity cases from those [cases] in which juries are proper,” 

and he argued that the question of which civil cases should be 

tried to a jury and which should be tried to a judge should be 

left to Congress. Id. Still another representative held out the 

possibility that each state’s procedures governing civil juries 

would apply in the federal court sitting in that state. Id.

Those objections to adding a civil jury trial guarantee to the constitution prevailed. Williamson’s suggestion 

to add a civil jury trial guarantee was defeated, as was a 

motion three days later to add the following guarantee to 

Article III, section 2, paragraph 3 of the federal constitution: “And a trial by jury shall be preserved as usual in civil 

cases.” Id. at 587-88, 628.

When the states were deciding whether to ratify the 

constitution, one of the primary objections to the federal constitution was that it lacked a bill of rights, including a right to 

a civil jury trial in the federal courts. See The Federalist No. 

83, at 558 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) 

(addressing that concern); Wolfram, Seventh Amendment, 

57 Minn L Rev at 667. One argument was that by providing 

for jury trials in criminal but not civil cases, the constitution had, sub silentio, eliminated a right to civil jury trials 

in the federal courts. See The Federalist No. 83, at 558-59. 

Hamilton explained, however, that the constitution did not 

prohibit the use of civil juries in federal court but instead 

had left it to Congress to decide in which class of civil cases 

jury trials should be available. Id. at 559-60. In Hamilton’s 

view, the strongest argument for guaranteeing a right to a 

civil jury trial was to check biased or corrupt judges. Id. at 

563-64. However, he suggested that that check was needed 

more for judges appointed by a hereditary monarch than for 
Cite as 359 Or 168 (2016) 241

judges appointed by a popularly elected executive and confirmed by the Senate. Id. at 562.

For the most part, Hamilton defended the absence 

of a civil jury guarantee on the ground that Gorham had 

raised in the Constitutional Convention. The practice among 

the states was too diverse to settle on a single principle for 

specifying when the right would attach, and it would be 

impolitic to choose the practice of one of the 13 states and 

impose it on the other states. Id. at 564-65. Accordingly, 

Hamilton explained, the better course was the one that 

the Constitutional Convention had chosen—leaving it to 

Congress to define which class of civil cases should be tried 

to a jury and which should be tried to a judge. Id.

Hamilton’s discussion of a right to a civil jury trial in 

The Federalist No. 83 bears on the issue that Lakin decided 

in two respects. First, the arguments for and against including a civil jury trial guarantee that Hamilton canvassed 

all addressed the jury’s value as a procedural corrective to 

potentially biased or, worse, corrupt judges serving as the triers of fact. Those arguments do not suggest that the right was 

viewed as a substantive limit on Congress’s lawmaking power. 

Second, Hamilton made that point expressly in responding 

to an argument “that trial by jury [serves as] a safeguard 

against an oppressive exercise of the power of taxation.” Id. at 

563. In addressing that argument, Hamilton explained that 

the right to a civil jury placed no limit on the legislature’s 

power to define the substantive law. Id. He reasoned:

“It is evident that [the right to a civil jury trial] can have 

no influence upon the legislature, in regard to the amount 

of the taxes to be laid, to the objects upon which they are 

imposed, or to the rule by which they are to be apportioned.”

Id. (emphases in original). He explained that, if the right 

to a jury trial had any effect on “an oppressive exercise of 

the power of taxation,” it lay in curbing “the mode of collection, and the conduct of the officers entrusted with the execution of the revenue laws.” Id. Stated differently, Hamilton 

explained that the right to a civil jury trial would not limit 

Congress’s ability to enact statutes defining the subjects 

and extent of taxation. Instead, it could serve as a check on 
242 Horton v. OHSU

the manner in which the executive carried out the law in an 

individual case.40

Despite Hamilton’s arguments against including 

a civil jury trial right in the federal constitution, the antifederalists’ objections to the right’s omission “struck a very 

responsive chord in the public” and ultimately carried the 

day. Wolfram, Seventh Amendment, 57 Minn L Rev at 668. 

Wolfram explains that the antifederalists’ objections were 

not based solely on the ground that juries would be more 

accurate than judges. Rather, examining the speeches in 

the state ratifying conventions, Wolfram concluded that the 

speakers intimated, although they never expressly stated, 

that juries would provide American debtors greater relief 

from British creditors than federal judges would. See id. at 

673-705 (canvassing objections in the ratifying conventions 

to the absence of a civil jury guarantee). That intimation did 

not reflect a belief that the right to a civil jury trial would 

impose a substantive limitation on legislatures. Rather, it 

reflected the belief that, in an individual case, a jury might 

adjudicate the facts in a way that would favor local interests 

over foreign ones.

After the states ratified the constitution and 

Congress took up the Bill of Rights, an 11-person committee proposed the essence of what became the Seventh 

Amendment. 1 Annals of Cong. 85 (1789) (Joseph Gale’s 

ed. 1834). Specifically, they modified a proposal that James 

Madison had made to provide, in part: “In suits at common law, the right of trial by jury shall be preserved.” Id. 

at 86. A further amendment was made to limit the right 

to suits at common law in excess of $20, and the proposal, 

as amended, was adopted without recorded discussion. Id.41

40 Having acknowledged that a civil jury might affect the way in which the 

law was executed, Hamilton then discounted the effect that a civil jury in fact 

would have on the way the executive carried out the tax laws. The Federalist No. 

83 at 468.

41 As adopted, the Seventh Amendment provides:

“In Suits at common law, where the value in controversy shall exceed 

twenty dollars, the right of trial by jury shall be preserved, and no fact tried 

by a jury shall be otherwise re-examined in any Court of the United States, 

than according to the rules of the common law.”

US Const, Amend 7.
Cite as 359 Or 168 (2016) 243

For all that appears from the record of Congress’s action, no 

one raised the objection, which had been successful in the 

Constitutional Convention, that, given the diverse practice 

among the 13 states, a standard that “preserved” the right 

of trial by jury would have no clear meaning. Twenty-one 

years after the Seventh Amendment was ratified, Justice 

Story addressed that issue. He explained that the right of 

trial by jury that the Seventh Amendment preserved was 

the right defined by the English common law. See United 

States v. Wonson, 28 F Cas 745, 750 (CCD Mass 1812) (No. 

16,750) (“Beyond all question, the common law here alluded 

to is not the common law of any individual state, (for it probably differs in all), but it is the common law of England, the 

grand reservoir of all our jurisprudence.”).

As this court noted in Lakin, since the adoption of 

the Seventh Amendment, most states have included a civil 

jury trial right in their state constitutions. 329 Or at 71. 

As the court also noted, Oregon modeled its guarantee in 

Article I, section 17, on the guarantee in Indiana’s constitution and adopted that guarantee without discussion. It follows that the relevant history of Article I, section 17, comes 

primarily from the English practice reflected in Blackstone’s 

Commentaries and the history leading up to and surrounding the adoption of the Seventh Amendment. That history 

reveals what the text of that provision implies and what this 

court consistently had recognized until Lakin: Article I, section 17, guarantees a procedural right; that is, it guarantees the right to a trial by a jury (as opposed to a trial by a 

judge) in civil actions for which the common law provided 

a jury trial when the Oregon Constitution was adopted in 

1857 and in cases of like nature.42 However, the history does 

not suggest that Article I, section 17, limits the legislature’s 

authority to define, as a matter of law, the substantive elements of a cause of action or the extent to which damages 

will be available in that action. As this court explained 

in DeMendoza, any substantive limit on the legislature’s 

authority must be found in some other provision of the state 

or federal constitutions.

42 This case does not require us to consider the limits that Article I, section 17, places on the legislature’s ability to alter the essential procedural attributes of a jury trial, and we express no opinion on that issue.
244 Horton v. OHSU

D. Lakin reconsidered

Lakin departed from that history, and we consider 

briefly its reasons for doing so. The court’s holding in Lakin

may rest on one of three propositions. First, Lakin concluded 

that the right to a jury trial guaranteed by Article I, section 17, has the same meaning today that it had in 1857. 329 

Or at 72. Second, the court concluded that, in 1857, the extent 

of a party’s damages in an individual case was a question of 

fact for the jury and that the legislature could not interfere 

with the jury’s fact-finding function. Id. at 74. Third, Lakin 

concluded that the legislature’s authority to limit a jury’s 

factual findings is no greater than a trial court’s. Id. at 78. 

Lakin reasoned that, although a trial court had the authority to set aside a jury’s verdict in 1857 if the jury’s verdict 

was contrary to the weight of the evidence, the court could 

do so only if it gave the party that had obtained the verdict 

the option of a new trial. It followed, Lakin reasoned, that 

neither a trial court nor the legislature could unilaterally 

limit a jury’s award of noneconomic damages in “civil cases 

in which the right to jury trial was customary in 1857, or in 

cases of like nature.” Id.

We take the court’s last point first. That a judge 

cannot reweigh the amount of damages that the jury awards 

in an individual case does not mean that the legislature 

cannot enact a statute that specifies, as a matter of law, the 

nature and extent of damages that are available in a class 

of cases. Whatever other constitutional issues a damages 

cap may present, a damages cap does not reflect a legislative attempt to determine a fact in an individual case or to 

reweigh the jury’s factual findings. Rather, a statutory cap 

is a legal limit on damages that applies generally in a class 

of cases. The fact that, in 1857, remittitur did not permit a 

trial court to unilaterally substitute its view of the evidence 

for the jury’s in an individual case does not mean that the 

legislature cannot define, as a matter of law, the nature and 

extent of damages that are generally available in a class of 

cases.

The second conclusion on which Lakin rests also 

does not withstand scrutiny. It is certainly true that the 

amount of damages that a party sustains is ordinarily a 
Cite as 359 Or 168 (2016) 245

factual issue for the trier of fact. It does not follow, however, 

that a trier of fact has free rein to determine the amount of 

a party’s damages, unconstrained by legal limits. Rather, 

common-law courts routinely have imposed legal limits on 

the type and amount of recoverable damages that a defendant’s negligence, in fact, caused. See W. Page Keeton et al., 

Prosser and Keeton on the Law of Torts 280-90 (5th ed 1984) 

(discussing limits on damages caused in fact by defendants’ 

negligence). Sometimes, courts have limited the extent of 

a defendant’s damages by limiting the class of persons to 

whom the defendant owes a duty. See id. at 284-85 (discussing that means of limiting damages); Hale v. Groce, 304 Or 

281, 284, 744 P2d 1289 (1987) (when defendant’s negligence 

causes only economic harm, damages limited to persons 

to whom defendant owed duty). Other times, courts have 

used concepts such as proximate cause to limit the extent 

of the damages for which a defendant can be held responsible. Prosser and Keeton on the Law of Torts at 282-83.43

More modernly, in Oregon, defendants ordinarily will be liable only for the foreseeable damages that their negligence 

caused. See Fazzolari v. Portland School Dist. No. 1J, 303 Or 

1, 17, 734 P2d 1326 (1987).

Those differing formulations should not obscure 

the fact that legal limits on a jury’s assessment of civil damages have been and remain an accepted feature of our law. 

To be sure, statutory damages caps differ from other types 

of legal limitations on a jury’s authority to award damages. 

They specify, as a matter of law, a numerical limit on the 

amount of damages that a party can recover instead of 

describing that limit generically by using a phrase such 

as foreseeable damages or damages proximately caused by 

the defendant’s act. However, the two types of limitations 

do not differ in principle. Each limits, as a matter of law, 

the extent of the damages that a jury can award in a class 

of cases. One is no more an interference with the jury’s 

fact-finding function than the other. Neither is an attempt 

to determine legislatively or judicially in an individual 

43 A relatively stark example is found in a line of New York cases limiting a 

defendant’s liability for a negligently set fire to the damages suffered by adjoining 

landowners. See, e.g., Bird v. St. Paul Fire & Marine Ins. Co., 224 NY 47, 120 NE 

86 (1918) (so holding).
246 Horton v. OHSU

case the amount of damages that the defendant’s act in fact 

caused. For that reason, we disagree with the second conclusion on which Lakin rests and on which the dissent appears 

to rely.44

We note one final ground on which Lakin’s holding 

may rest. Lakin concluded that Article I, section 17, means 

the same thing today that it meant in 1857, and Lakin’s holding may rest on the ground that only those legal limitations 

on damages that existed in 1857 are constitutionally valid. 

To the extent that is the ground on which Lakin rests, it is 

at odds with this court’s cases. As this court explained in 

Fazzolari, the limits on the extent of a defendant’s damages 

that the common law recognized in 1857 bear little resemblance to those that we recognize today. See id. at 4-10 (discussing the growth of the common law). As Justice Linde 

observed in Fazzolari:

“At the time the Oregon Territory adopted the ‘common law 

of England,’ the common law had no broad theory of liability for unintended harm resulting from a failure to take 

due care toward members of the public generally but only 

liability for harm resulting from negligent conduct in various callings and relationships. Men had particular duties 

but no general duty.”

Id. at 4 (footnote omitted). Over time, the scope of a defendant’s liability has expanded, as well as the extent of the 

damages for which a negligent defendant may be held 

responsible. See id. at 4-10. The court accordingly held in 

Fazzolari that, unless “a status, a relationship, or a particular standard of conduct *** creates, defines, or limits 

the defendant’s duty,” a defendant is generally liable for 

the foreseeable consequences of his or her negligence. Id.

at 17; see also Chapman v. Mayfield, 358 Or 196, 205, 361 

P3d 566 (2015) (discussing expanding scope of liability for 

negligence).

44 One other possible distinction requires mention. By statute, a court can 

impose the tort claims limit only after the jury returns its verdict. See ORS 

30.269(3). However, from the perspective of Article I, section 17, the degree of 

interference with the jury’s verdict is the same regardless of whether the jury is 

informed of the limit in advance of its deliberations or the limit is imposed after 

the jury returns its verdict.
Cite as 359 Or 168 (2016) 247

The state constitutional right to a civil jury trial 

applies equally to plaintiffs and defendants. If Article I, 

section 17, froze the legal limits on liability as they existed 

in 1857 and thus defined the extent of the damages that 

can be recovered against a negligent defendant, much of the 

later growth of the law of negligence would be at odds with 

Article I, section 17. Specifically, a defendant could invoke 

its right to a jury trial to argue against any expansion of 

damages beyond those for which it would have been liable 

when the Oregon Constitution was framed. Nothing in the 

text of Article I, section 17, its history, or our cases interpreting it suggests that the framers intended such sweeping consequences in guaranteeing the right to have a jury 

rather than a judge decide claims and defenses commonly 

heard at common law.

This court’s cases that preceded Lakin also provide 

no support for Lakin’s holding. Lakin cited only one Oregon 

case—Molodyh v. Truck Insurance Exchange, 304 Or 290, 

744 P2d 992 (1987)—to support its conclusion that Article I, 

section 17, limits the legislature’s authority to define the 

extent of available damages. However, Molodyh stands for 

a more limited proposition than the one Lakin drew from it. 

Molodyh holds that, when the legislature has made a factual 

issue part of a claim that is subject to Article I, section 17, 

the legislature may not assign that factual issue to any 

entity other than a jury.

The statute at issue in Molodyh gave one party to 

a fire insurance contract the right to require that disputes 

about the amount of an insured’s loss be decided by a panel 

of three appraisers. See id. at 293 (setting out the statute). 

When the insured in Molodyh sued the insurer for breach 

of contract, the insurer asserted its statutory right to have 

the amount of the loss (or the damages for the breach of contract) be determined by a panel of appraisers rather than 

the jury. Id. at 292. The insured objected on the ground that 

taking a factual element of the claim away from the jury 

violated Article I, section 17.

This court agreed with the insured. It explained 

that, under Article I, section 17, the insured was entitled 

to a jury trial on his cause of action for breach of contract 
248 Horton v. OHSU

because the elements of that claim—including the amount 

of the loss—customarily would have been tried to a jury in 

1857. Id. at 296-97. It also held that, having included that 

factual element as part of the plaintiff’s claim, the legislature could not assign the determination of that factual 

element to any factfinder other than a jury, at least over a 

party’s objection. Id. at 297-98. Molodyh did not hold that 

the legislature may not place a legal limit on the nature or 

extent of the damages that the jury can find. Rather, it held 

that, once the legislature has made a factual element part of 

a claim subject to the jury trial right, only a jury may decide 

that factual element unless both parties give that right up. 

Properly understood, Molodyh does not call into question the 

legal limit that the legislature placed on the amount of damages that may be recovered from state employees.

Finally, we note that 22 other jurisdictions have 

considered this issue. Seventeen of those jurisdictions have 

held that a damages cap does not violate either the state 

or federal constitutional right to a jury trial. Specifically, 

Idaho, Indiana, Maryland, Massachusetts, Michigan, 

Nebraska, Utah, Virginia, West Virginia, and Wisconsin 

have upheld damages caps against state constitutional jury 

trial challenges.45 Additionally, the United States Courts 

of Appeals for the Third, Fourth, and Sixth Circuits have 

upheld damages caps against Seventh Amendment challenges, and the United States Court of Appeals for the Fifth 

Circuit has upheld a damages cap against a state jury trial 

challenge.46 In addition to those jurisdictions, the Kansas 

45 Kirkland v. Blaine Cnty. Med. Ctr., 134 Idaho 464, 4 P3d 1115 (2000) (cap 

on noneconomic damages); Johnson v. St. Vincent Hosp., Inc., 273 Ind 374, 404 

NE2d 585 (1980) (capped damages with possibility of additional recovery from 

compensation fund), modified on other grounds by In re Stephens, 867 NE2d 148 

(Ind 2007) (permissible limits on attorney fees); Murphy v. Edmonds, 325 Md 342, 

601 A2d 102 (1992) (cap on noneconomic damages); English v. New England Med. 

Ctr., 405 Mass 423, 541 NE2d 329 (1989) (cap on medical malpractice damages);

Phillips v. Mirac, Inc., 470 Mich 415, 685 NW2d 174 (2004) (cap on noneconomic 

damages); Gourley v. Neb. Methodist Health Sys., Inc., 265 Neb 918, 663 NW2d 43 

(2003) (cap on medical malpractice damages); Judd v. Drezga, 103 P3d 135 (Utah 

2004) (cap on “quality of life” damages); Etheridge v. Med. Ctr. Hosp., 237 Va 87, 

376 SE2d 525 (1989) (cap on noneconomic damages); Robinson v. Charleston Area 

Med. Ctr., Inc., 186 W Va 720, 414 SE2d 877 (1991) (same); Maurin v. Hall, 274 

Wis 28, 682 NW2d 866 (2004) (same).

46 Davis v. Omitowoju, 883 F2d 1155 (3d Cir 1989) (noneconomic damages 

cap); Boyd v. Bulala, 877 F2d 1191 (4th Cir 1989) (same); Smith v. Botsford 
Cite as 359 Or 168 (2016) 249

Supreme Court has held that a cap on noneconomic damages does not violate the right to a jury trial as long as it 

does not violate that state’s remedy clause,47 and the Maine 

Supreme Court considered those two provisions together in 

holding that a $250,000 damages cap did not violate that 

state’s jury trial and right to remedy clauses.48 Finally, the 

Alaska Supreme Court affirmed by an equally divided court 

a judgment upholding a damages cap.49 On the other side of 

the ledger, five states have held that caps on noneconomic 

damages violate the right to a jury trial.50

By a considerable majority, the jurisdictions that 

have considered whether damage caps violate the right to 

a jury trial have held that they do not. Ultimately, however, 

the question is not what the majority rule is in other jurisdictions or what we would decide if we were considering this 

issue for the first time. Rather, the question is whether Lakin 

should be overruled. For the reasons explained above, Lakin 

Gen. Hosp., 419 F2d 513 (6th Cir 2005), cert den, 547 US 1111 (2006) (same); 

Learmonth v. Sears, Roebuck & Co., 710 F3d 249 (5th Cir 2013) (upholding damages caps against challenge based on state constitutional right to jury trial 

after Mississippi Supreme Court refused to accept certified question on that 

issue).

47 In 1988, the Kansas Supreme Court explained that, under the Kansas 

Constitution, a damages cap will violate a party’s right to a jury trial if the cap 

violates the state’s remedies clause. Kansas Malpractice Victims Coal. v. Bell, 243 

Kan 333, 757 P2d 251 (1988). Because the statute capping noneconomic damages in that case violated the state remedy clause for lack of a sufficient quid 

pro quo, the cap also violated the right to a jury trial. Id. In 2012, the court held 

that a different statute capping noneconomic damages in personal injury actions 

contained a sufficient quid pro quo to satisfy the state remedy clause and, as a 

consequence, held that that cap did not violate the right to a jury trial. Miller v. 

Johnson, 295 Kan 636, 289 P3d 1098 (2012). 

48 The Maine Supreme Court explained that, 

“[a]lthough it is conceivable that a statute could limit the measure of tort 

damages so drastically that it would result in a denial of the right to trial by 

jury and the denial of a remedy, the $250,000 cap before us [on damages for 

persons injured as the result of negligently over-serving alcohol] is not such 

a measure.” 

Peters v. Saft, 597 A2d 50, 53 (Me 1991).

49 Evans ex rel. Kutch v. State, 56 P3d 1046 (Alaska 2002) (affirmed by an 

equally divided court).

50 Moore v. Mobile Infirmary Ass’n, 592 So 2d 156 (Ala 1991) (cap on noneconomic damages); Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga 731, 

691 SE2d 218 (2010) (same); Watts v. Lester E. Cox Med. Ctr., 376 SW3d 633 (Mo 

2012) (same); Knowles v. United States, 544 NW2d 183 (SD 1996) (same); Sofie v. 

Fibreboard Corp., 112 Wash 2d 636, 771 P2d 711 (1989) (same).
250 Horton v. OHSU

“cannot be fairly reconciled with other decisions of this court 

on the same constitutional provision.” Couey, 357 Or at 487 

(noting that ground for reexamining our constitutional decisions). Not only does that conflict require resolution, but 

Lakin is of relatively recent vintage. And, since this court 

decided Lakin, we have distinguished rather than followed 

it with the exception of one case in which the parties did not 

dispute that Lakin governed.

Given those circumstances, we conclude that Lakin

should be overruled. The text of Article I, section 17, its 

history, and our cases that preceded Lakin establish that 

Article I, section 17, guarantees litigants a procedural right 

to have a jury rather than a judge decide those common-law 

claims and defenses that customarily were tried to a jury 

when Oregon adopted its constitution in 1857, as well as 

those claims and defenses that are “of like nature.” However, 

that history does not demonstrate that Article I, section 17, 

imposes a substantive limit on the legislature’s authority 

to define the elements of a claim or the extent of damages 

available for a claim.

One other consideration informs our decision. As 

this court suggested in DeMendoza, the most obvious textual limitation on the legislature’s authority to alter or 

adjust a plaintiff’s right to a remedy is found in the remedy 

clause of Article I, section 10. Perhaps a plaintiff also could 

argue that a damages cap violates some other provision of 

the state or federal constitutions that imposes a substantive 

limitation on legislative action. However, if a damages cap 

does not violate one of those provisions, it is difficult to see 

how the jury trial right renders a damages cap unconstitutional. Neither the text nor the history of the jury trial right 

suggests that it was intended to place a substantive limitation on the legislature’s authority to alter or adjust a party’s 

rights and remedies. We accordingly overrule the court’s 

decision in Lakin.

III. ARTICLE VII (AMENDED), SECTION 3

The trial court ruled that applying the tort claims 

limit to the jury’s verdict violates Article VII (Amended), 

section 3, of the Oregon Constitution. That section provides, 

in part:
Cite as 359 Or 168 (2016) 251

“In actions at law, where the value in controversy shall 

exceed $750, the right of trial by jury shall be preserved, 

and no fact tried by a jury shall be otherwise re-examined 

in any court of this state, unless the court can affirmatively 

say there is no evidence to support the verdict.”

Article VII (Amended), section 3, is an initiated constitutional amendment, which the voters adopted in 1910. See 

General Laws of Oregon 1911, at 7-8. We interpret initiated 

constitutional amendments the same way that we interpret 

a statute; that is, we look to the text, context, and legislative 

history of the amendment to determine the intent of the voters. State v. Algeo, 354 Or 236, 246, 311 P3d 865 (2013) (initiated constitutional amendment); State v. Harrell/Wilson, 

353 Or 247, 254-55, 297 P3d 461 (2013) (referred constitutional amendment).

We start with the text of the constitution. Section 3 

begins with a prepositional phrase that describes the class 

of cases to which it applies: “all actions at law, where the 

value in controversy shall exceed $750.” Two independent 

clauses follow that prepositional phrase. The first independent clause provides that, in those cases, the “right of 

trial by jury shall be preserved.” Plaintiff does not argue 

that that independent clause guarantees anything beyond 

what Article I, section 17, guarantees; that is, she does not 

argue that, if the tort claims limitation does not violate 

Article I, section 17, it violates the first independent clause 

of Article VII (Amended), section 3.

Plaintiff focuses her argument instead on the second independent clause, which is qualified by a dependant 

clause. Those clauses provide that “no fact shall be otherwise re-examined in any court of this state, unless the court 

can affirmatively say that there is no evidence to support 

the verdict.” Although the second independent clause uses 

the passive voice, “the court” is the subject of the related 

dependent clause. Reading the second independent clause 

and the related dependent clause together, we conclude that 

both clauses are directed to the courts. They prohibit courts 

from reexamining the facts that a jury has found “unless 

the court can affirmatively say that there is no evidence to 

support the verdict.”
252 Horton v. OHSU

When the people adopted Article VII (Amended), 

section 3, “reexamine” meant “[t]o examine anew,” and 

“examine” meant “to inspect carefully with a view to discover the real character or state of” something. Webster’s 

Int’l Dictionary 1206, 519 (1907). By its terms, that constitutional provision prohibits courts from reassessing or second-guessing the facts that the jury found unless there is no 

evidence to support the jury’s verdict. Textually, the section 

places no restriction on the legislature’s ability to limit, as a 

matter of law, the issues before the jury or the extent of the 

damages available for a cause of action. Similarly, it does 

not limit a court’s ability to set aside a jury’s verdict that is 

inconsistent with the substantive law.

The same conclusion follows from the provision’s history. In 1899, this court followed the United States Supreme 

Court’s lead and held that a trial court could grant a motion 

for a new trial if the court determined that the jury’s verdict 

was “against the clear weight or preponderance of evidence.” 

Serles v. Serles, 35 Or 289, 295, 57 P 634 (1899), abrogated 

by Or Const, Art VII (Amended), § 3. Because the trial 

court in Serles had held that it lacked authority to grant a 

new trial if there was “any evidence to support” the jury’s 

verdict, this court reversed the trial court’s judgment and 

remanded the case for the court to apply the new standard 

that it had announced. Id. at 290, 297. See also Multnomah 

Co. v. Willamette T. Co., 49 Or 204, 213, 89 P 389 (1907) (following Serles).

In 1910, the People’s Power League proposed a 

series of initiated measures, one of which was Article VII 

(Amended). See Official Voters’ Pamphlet, General Election, 

Nov 8, 1910, 201-02 (setting out the measure); id. at 166-77 

(discussing the League’s measures). The League submitted 

the only argument discussing the measure. See id. at 176-77. 

The League’s argument did not discuss the part of section 3 

on which plaintiff relies, but it explained that the proposed 

amendments generally were intended to shorten lengthy trials and reduce the number of retrials. See id. (discussing, 

among other things, a court’s authority to uphold verdicts 

when the mistake is technical and also the requirement 

that only three-fourths of the jurors must agree in civil 
Cite as 359 Or 168 (2016) 253

cases). Contemporary news articles did not discuss the part 

of section 3 on which plaintiff relies, while a law journal 

published shortly after Article VII (Amended) was adopted 

criticized the measure because it took away a trial court’s 

authority to grant a new trial when the jury’s verdict was 

contrary to the weight of the evidence. 77 Cent LJ 384, 388 

(1913).

Although the history of Article VII (Amended), section 3, is sparse, this court has summarized its purpose 

succinctly: “to eliminate, as an incident of a jury trial in 

this state, the common law power of a trial court to re-examine the evidence and set aside a verdict because it was 

excessive or in any other respect opposed to the weight of the 

evidence.” Van Lom, 187 Or at 99. As Van Lom made clear, 

the part of Article VII (Amended), section 3, on which plaintiff relies was directed at a specific practice—a trial court’s 

decision to grant a new trial because the court concluded 

that the verdict was contrary to the weight of the evidence.

That practice is not present here. In applying the 

statutory limit on damages, the trial court was not “reexamining” a fact found by the jury, determining that the fact 

was contrary to the weight of the evidence, and granting a 

new trial for that reason. Rather, the court was applying a 

legal limit, expressed in the statute, to the facts that the 

jury had found. Article VII (Amended), section 3, does not 

prohibit courts from applying the law to the facts.

Plaintiff’s contrary argument, as we understand 

it, is that the legal limit that the legislature placed on the 

extent of a jury’s damages award has as deleterious an effect 

on the exercise of her jury trial right as the pre-1910 practice 

of remittitur. That may be true. The Tort Claims Act limits the amount of the jury’s damages award without giving 

a plaintiff the option of a new trial. However, the text of 

Article VII (Amended), section 3, its history, and our cases 

interpreting it provide no basis for converting a limit on a 

trial court’s ability to second-guess a jury’s factual findings 

into a limit on the legislature’s ability to state legal principles that define the elements of a cause of action or the type 

or extent of the available damages. Article VII (Amended), 
254 Horton v. OHSU

section 3, does not provide a basis for holding the damages 

limitation stated in the Tort Claims Act unconstitutional. 

Again, any constitutional limitation must find its source in 

some other provision of the state or federal constitution.

We conclude that applying the Tort Claims Act 

limit to plaintiff’s claim against defendant does not violate 

the remedy clause in Article I, section 10, nor does giving 

effect to that limit violate the jury trial clauses in Article I, 

section 17, or Article VII (Amended), section 3. We accordingly reverse the trial court’s limited judgment and remand 

this case to the trial court for entry of a judgment consistent 

with this decision.

The judgment of the circuit court is reversed, 

and the case is remanded to the circuit court for further 

proceedings.

LANDAU, J., concurring.

This case presents the court with some very difficult issues involving not just the meaning of particular sections of the state constitution but also larger questions concerning the nature of constitutional interpretation itself and 

the role of stare decisis. In large part, it is a difficulty of the 

court’s own making. For decades, the court interpreted the 

constitution more or less on a case-by-case basis, resulting 

in lines of case law that, taken together, simply don’t make 

sense. For a time, the court attempted to move away from 

such incrementalism, adopting what purported to be a rigid 

originalist interpretive approach. See, e.g., Lakin v. Senco 

Products, Inc., 329 Or 62, 72, 987 P2d 463, modified, 329 

Or 369, 987 P2d 476 (1999) (“[W]hatever the right to ‘Trial 

by Jury’ meant in 1857, it means precisely the same thing 

today.”). But as often as not, the effort was marred by historical analysis that did not withstand careful scrutiny and led 

to the adoption of rules that proved unworkable. In this case, 

the majority confronts those very problems with respect to 

the interpretation of two constitutional provisions—the jury 

trial guarantee of Article I, section 17, and the remedy provision of Article I, section 10.

In the case of Article I, section 17, the precedents 

have become irreconcilable, as the majority persuasively 
Cite as 359 Or 168 (2016) 255

demonstrates. That requires us to reevaluate, and the 

majority carefully and critically does just that, consistently 

with principles of constitutional interpretation that this 

court has settled on in recent years—principles that are less 

rigidly originalist and that require more careful historical 

analysis. I agree with the majority’s reevaluation and with 

its ultimate conclusion that Lakin must be overruled.

I also agree with the majority’s analysis of Article I, 

section 10, at least in part. Like Lakin, Smothers v. Gresham 

Transport, Inc., 332 Or 83, 23 P3d 333 (2001), must be overruled. I have long argued that Smothers was incorrectly 

decided—not just incorrect in the sense that reasonable 

people could disagree about its analysis and holding, but 

incorrect in the sense that its analysis is demonstrably at 

odds with the very sources on which it relies. See generally Klutschkowski v. PeaceHealth, 354 Or 150, 178-96, 311 

P3d 461 (2013) (Landau, J., concurring); Brewer v. Dept. of 

Fish and Wildlife, 167 Or App 173, 191-98, 2 P3d 418 (2000) 

(Landau, J., concurring).

In my view, however, the majority didn’t go far 

enough. The problems with this court’s remedy-clause jurisprudence run far deeper than one errant decision. Smothers

was but the latest in a long line of remedy-clause decisions 

that—for over a century—have veered in one direction, then 

another, then another still, resulting in a jurisprudence that 

this court itself has complained lacks anything resembling 

doctrinal coherence.

In my view, the majority should not have stopped 

with overruling Smothers. Instead, it should have subjected 

the entire line of remedy-clause decisions to the same searching and critical analysis to which it subjected our cases construing the jury guarantee. That sort of critical analysis of 

the remedy provision of Article I, section 10, shows that it is 

debatable whether the framers of the Oregon Constitution 

intended or understood Article I, section 10, to operate as a 

limitation on legislative authority at all. At best, the wording of the constitution and the historical circumstances 

surrounding its adoption fairly may be read to support a 

general principle that the remedy provision precludes legislative interference with judicial independence and access to 
256 Horton v. OHSU

the courts, but not that it limits the legislature’s authority to 

determine substantive rights and remedies, as many of this 

court’s prior cases declare. I would overrule those cases. It 

is for that reason that I conclude that the trial court in this 

case erred in holding that the legislature’s statutory cap on 

damages violates Article I, section 10, and therefore concur 

in the result that the majority reaches.

I. STARE DECISIS AND THE APPROPRIATE 

STANDARD OF REVIEW

At the outset, I acknowledge the importance of stare 

decisis. It goes without saying that stability and predictability are essential to the consistent administration of justice 

and the legitimacy of this court’s decisions. But stubborn 

adherence to precedent that is demonstrably in error is not 

without cost. Correctness is also important to the administration of justice and this court’s legitimacy, particularly 

in the case of constitutional interpretation. Couey v. Atkins, 

357 Or 460, 485, 355 P3d 866 (2015) (“Especially in cases 

involving the interpretation of the state constitution, the 

value of stability that is served by adhering to precedent 

may be outweighed by the need to correct past errors.”). 

When this court examines a line of carefully considered and 

consistent precedents, I agree that the burden on anyone 

challenging them is a heavy one and that we should adhere 

to those precedents unless they are clearly incorrect. Id.

at 485-86. When the existing case law is hopelessly inconsistent, however, there is no such burden. In such cases, in 

order to make sense of the law, something will have to be 

jettisoned. No particular burden applies. Id.

In the case of Article I, section 10, the case law is 

hardly consistent. As then-professor David Schuman commented, “the remedy clause has not occasioned a coherent 

body of case law leading to anything that could be called 

an ‘interpretation.’” David Schuman, Oregon’s Remedy 

Guarantee: Article I, Section 10 of the Oregon Constitution, 

65 Or L Rev 35, 36 (1986). That is also the court’s own 

assessment of its precedents. Neher v. Chartier, 319 Or 417, 

423, 879 P2d 156 (1994) (“This court’s case law throughout the nineteenth and twentieth centuries interpreting 

Article I, section 10, ** * has failed definitively to establish 
Cite as 359 Or 168 (2016) 257

and consistently to apply any one theory regarding the 

protections afforded by the remedies guarantee.”). Indeed, 

Smothers itself observed that “this court has not developed 

a consistent body of law interpreting the remedy clause of 

Article I, section 10.” 332 Or at 90.1

About that much, Smothers was correct. For example, in some cases, the court has rejected out of hand the 

notion that Article I, section 10, constrains the legislature at 

all. Templeton v. Linn County, 22 Or 313 (1892), illustrates 

the point. At common law, a county was not liable for injury 

resulting from a defect in one of its roads. But the territorial 

legislature recognized such a right by statute, at least for a 

time. Some years later, the Oregon legislature repealed that 

statute. Templeton, who was injured as a result of an alleged 

defect in a Linn County road, argued that the repeal of the 

statute violated the remedy guarantee of Article I, section 

10. The court rejected the argument. Chief Justice Strahan 

explained that the plaintiff’s argument appeared to be that, 

once the legislature has granted a remedy, the constitution “tied the hands of the legislature so that such liability 

should endure as long as the constitution shall remain in 

force. As a proposition of constitutional law,” he observed, 

“this contention seems startling.” Id. at 316. “[N]o judicial 

authority was cited upon the argument in support of it,” the 

Chief Justice wrote, “and I think it may be safely assumed 

that none exists.” Id.2

1 See also Storm v. McClung, 334 Or 210, 221, 47 P3d 476 (2002) (citing 

Smothers for observation that “this court previously had failed definitively 

to establish and consistently apply any one theory regarding the protections 

afforded by the remedies guarantee”); Greist v. Phillips, 322 Or 281, 304, 906 P2d 

789 (1995) (Unis, J., concurring in part) (complaining about the court’s “inconsistent” approach to the remedy guarantee); Junping Han, The Constitutionality 

of Oregon’s Split-Recovery Punitive Damages Statute, 38 Willamette L Rev 477, 

529-30 (2002) (noting shifts in Oregon Supreme Court analysis of remedy guarantee); Lisa S. Guterson, The Remedy Clause Analysis of Neher v. Chartier, 74 Or 

L Rev 379, 382 (1995) (noting back-and-forth nature of Oregon remedy analysis); 

Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts 

Clause of State Constitutions, 74 Or L Rev 1279, 1282 (1995) (noting lack of principled analysis of Article I, section 10).

2 Interestingly, in dictum, the Chief Justice added that, had Templeton’s 

claim vested before the time the legislature acted, the result might have been 

different. Templeton, 22 Or at 317. As I explain below, that comment comports 

with the common early-nineteenth century view that remedy guarantees, at best, 

prohibited the legislature from retroactively altering vested rights, but do not 
258 Horton v. OHSU

In contrast, in Mattson v. Astoria, 39 Or 577, 580, 

65 P 1066 (1901), the court took an entirely different view 

of Article I, section 10, holding instead that its remedy provision was “intended to preserve the common-law right of 

action for injury to person or property.” There was no mention of the directly contrary view taken by the court in 

Templeton. Then in Thieler v. Tillamook County, 75 Or 214, 

217, 146 P 828 (1915), the court followed Mattson, expressly 

adopting the view of Article I, section 10, that earlier had 

been set out by Federal District Court Judge Matthew 

Deady in Eastman v. County of Clackamas, 32 F 24 (D Or 

1887). In that case, Deady suggested that, under Article I, 

section 10, “[w]hatever injury the law, as it then stood [at 

the time the constitution was adopted], took cognizance of 

and furnished a remedy for, every man shall continue to 

have remedy for by due course of law.” Id. at 32. This time, 

at least, the court mentioned Templeton, but it said that a 

“vigorous dissenting opinion” in that case had deprived the 

court’s opinion of its “binding force”—an interesting view of 

the authority of dissenting opinions, to be sure. Theiler, 75 

Or at 217-18. Any doubts that the court had adopted Deady’s 

views of the remedy provision in Eastman were put to rest 

in Stewart v. Houk, et al., 127 Or 589, 593, 271 P 998 (1928), 

in which the court preceded a lengthy quote from Eastman

with the assertion that the quoted material “was adopted” 

in Theiler. See also West v. Jaloff, 113 Or 184, 195, 232 P 642 

(1925) (“[I]t has been the settled law of this state that the 

common-law remedy for negligently inflicted injuries could 

not be taken away without providing some other efficient 

remedy in its place.”).

But then in Perozzi v. Ganiere, 149 Or 330, 345, 40 

P2d 1009 (1935), the court altered course, upholding the 

constitutionality of Oregon’s guest passenger statute and 

rejecting the plaintiff’s contention that “in all instances in 

which recovery could be had at common law for injuries to 

person or property such right of recovery has, by [A]rticle I, 

[section] 10, been preserved, and that it is not within the 

province of the legislature to take it away or in any way limit 

it.” The court commented that, “had it been the intention of 

constrain legislatures from prospectively redefining the nature of injuries that 

the law will protect or the nature of those protections.
Cite as 359 Or 168 (2016) 259

the framers of the constitution to adopt and preserve the 

remedy for all injuries to person or property which the common law afforded, they undoubtedly would have signified 

that intention by exact and specific wording, rather than the 

language used in [A]rticle I, [section] 10.” Id. at 346.

In Noonan v. City of Portland, 161 Or 213, 88 P2d 

808 (1939), the court took a similar position, holding that the 

constitution “does not forbid the creation of new rights, or the 

abolition of old ones recognized by the common law, to attain 

a permissible legislative object.” Id. at 249(quoting Silver v. 

Silver, 280 US 117, 121, 50 S Ct 57, 74 L Ed 221 (1929)). 

The court noted that, notwithstanding the constitutional 

remedy guarantee, it had countenanced the elimination of 

whole claims, such as alienation of affection and actions for 

breach of promise. Id. Interestingly, the court went out of its 

way to disavow Deady’s altogether different reading of the 

remedy clause in Eastman, commenting that—contrary to 

Stewart—such views “do not represent the construction of 

this court.” Id. In a similar vein, Sealey v. Hicks 309 Or 387, 

788 P2d 435 (1990), asserted that “[t]he legislature has the 

authority to determine what constitutes a legally cognizable 

injury” without running afoul of Article I, section 10.

Smothers recognized the unsettled state of this 

court’s prior remedy-clause jurisprudence and attempted 

to resolve, once and for all, the proper interpretation of the 

clause. 332 Or at 90-91. It overruled (among other cases) 

Perozzi and Sealey, resuscitated Eastman and the cases 

relying on it, and concluded that the remedy clause constrained the legislature from unduly altering common-law 

rights. Smothers, 332 Or at 119, 123-24.

Unfortunately, the court failed in its effort to bring 

clarity to the law. Indeed, in the years since Smothers, this 

court has had difficulty even agreeing on what the decision means, as this court’s sharply-divided post-Smothers

case law makes clear. See, e.g., Howell v. Boyle, 353 Or 359, 

298 P3d 1 (2013); Lawson v. Hoke, 339 Or 253, 119 P3d 210 

(2005).3

3 Lawson was especially perplexing in that the court appeared to transform the principle in Smothers that certain “absolute” rights were protected by 

Article I, section 10, into one that the remedy clause applies only when a plaintiff 
260 Horton v. OHSU

So, in a nutshell, this court started out in Templeton

by saying that Article I, section 10, imposes no limits on legislative authority; then it abandoned Templeton in Mattson

and Thieler, adopting instead the views of Deady that the 

provision preserved common-law rights that existed at the 

state’s founding; but then it disavowed Deady, along with 

Mattson and Thieler, in Perozzi and Noonan; only to have 

those very cases revived, and Perozzi and Noonan disavowed, in Smothers; which we now overrule, thereby reviving Perozzi and Noonan. It’s no small wonder to me that this 

court’s remedy-clause jurisprudence has been the subject of 

derision. In my view, there exists no body of Oregon case 

law that uniformly views the meaning and application of the 

remedy clause of Article I, section 10, and that we must now 

determine was clearly incorrect. As I see it, there is only a 

constantly shifting series of cases on the clause that cannot 

be reconciled among themselves, leaving us to decide which, 

if any, are correct.

II. ANALYSIS OF ARTICLE I, SECTION 10

I turn, then, to the proper analysis of Article I, section 10, examining the text of the provision, in its historical 

context, and in light of relevant case law. Priest v. Pearce, 

314 Or 411, 415-16, 840 P2d 65 (1992). I hasten to add that, 

in engaging in that examination, I don’t believe that the 

meaning of the Oregon Constitution is limited to whatever 

its framers would have understood at the time of its adoption. As I have noted elsewhere, I think that that brand of 

originalism is unwise and untenable and all too often—as in 

Lakin and Smothers—results in reliance on interpretations 

of historical source materials that are both unduly selective 

and anachronistic. See, e.g., State v. Hemenway, 353 Or 129, 

156-57, 295 P3d 617 (2013) (Landau, J., concurring), vac’d 

by State v. Hemenway, 353 Or 498, 302 P3d 413 (2013) (so 

noting).

But that doesn’t mean that the constitution is simply a blank canvas on which we may paint our personal 

would have had an absolute right to recover—that is, free from any possible 

defenses. Lawson, 339 Or at 264-65 (because the plaintiff’s personal injury claim 

would have been subject to defenses that would have barred recovery, there was 

“no absolute common-law right” that the remedy guarantee protected).
Cite as 359 Or 168 (2016) 261

preferences. If our constitutional doctrine is to retain legitimacy as constitutional “interpretation,” it still must comport with the reasonable construction of the text; why else, it 

might be asked, do we have a written constitution?4

 Moreover, 

although the meaning of our constitution may not be frozen 

in the mid-nineteenth century, it remains a 150-year-old 

historical document, which must be viewed in its historical 

context. As we explained in State v. Mills, 354 Or 350, 354, 

312 P3d 515 (2013), the purpose of examining the historical context of a provision is not “to fossilize the meaning of 

the state constitution so that it signifies no more than what 

it would have been understood to signify when adopted in 

the mid-nineteenth century.” It is instead to determine the 

general principles that animate it and that may be applied 

to modern circumstances. State v. Davis, 350 Or 440, 446, 

256 P3d 1075 (2011). History may not be controlling, but it 

is never irrelevant. In my view, adherence to those fundamental principles of constitutional interpretation precludes 

perpetuating the erroneous conclusion of Smothers and its 

predecessors that Article I, section 10, constitutionally guarantees a right to assert particular tort claims without legislative qualification or modification.

A. Text

Article I, section 10, provides:

“No court shall be secret, but justice shall be administered, openly and without purchase, completely and 

without delay, and every man shall have remedy by due 

course of law for injury done him in his person, property or 

reputation.”

I quote the entire section because it is important to emphasize that what we often refer to as the “remedy clause” 

of Article I, section 10, actually is but a part of a larger, 

4 As David Schuman suggests, constitutional interpretation must demonstrate “fidelity” to the constitution. David Schuman, The Right to a Remedy, 65 

Temple L Rev 1197, 1219 (1992):

“The requirement of ‘fidelity to the text,’ in this context, is the relatively 

obvious and uncontroversial requirement that a court’s explanation of the 

meaning of a given constitutional provision should demonstrate some logical 

connection to the words it purports to interpret, including their source, history, and position in the overall document.”

Id.
262 Horton v. OHSU

single, complete sentence. Taken as a whole, the subject of 

that sentence is fairly clear to me: It is about the courts, the 

authority of the courts, and the obligations of the courts.5

As then-professor Hans Linde observed of the clause,

“[s]ection 10 as a whole is plainly concerned with the administration of justice.” Hans A. Linde, Without “Due Process”: 

Unconstitutional Law in Oregon, 49 Or L Rev 125, 136 

(1970). Nothing in the wording of the section suggests that 

its purpose is to constrain the otherwise plenary authority 

of the legislature. MacPherson v. DAS, 340 Or 117, 127, 130 

P3d 308 (2006) (quoting Jory v. Martin, 153 Or 278, 286, 56 

P2d 1098 (1936) (“‘Plenary power in the legislature, for all 

purposes of civil government, is the rule, and a prohibition 

to exercise a particular power is an exception.’”)).

That does not necessarily mean that Article I, section 

10, cannot be read to constrain the legislature in any way. To 

the extent that the legislature were to enact a statute that 

interfered with the constitutional obligations of the courts—

requiring the courts to operate in secret, for example—

such legislation could violate the remedy clause. See, e.g., 

State ex rel. Oregonian Pub. Co. v. Deiz, 289 Or 277, 284, 

613 P2d 23 (1980) (notwithstanding statute authorizing 

trial court to exclude public from juvenile cases, trial court 

order barring public violated Article I, section 10). The 

point remains, however, that the focus of the section is a 

procedural one, involving access to the courts, which are to 

administer justice to every person, openly, freely, completely, 

by due course of law.

I acknowledge that what I have described is not 

the only plausible way to read the text of Article I, section 10. The section’s single sentence could be divided into 

three independent clauses, each of which could then interpreted separately. Thus, the first two clauses could be seen 

as procedural in nature, concerning the administration 

5 It does not say, as is sometimes suggested, that everyone is entitled to “a

remedy” for every personal injury. See, e.g., Howell, 353 Or at 389 n 1(DeMuniz, 

pro tem, dissenting) (“The Remedy Clause affords plaintiff, and every person in 

this state, the right to a remedy by due course of law for personal injuries.”). 

Nor does Article I, section 10, include the qualifier that remedies must be “adequate,” as some other state constitutions do. E.g., La Const, Art I, § 22 (“All courts 

shall be open, and every person shall have an adequate remedy by due process of 

law[.]”).
Cite as 359 Or 168 (2016) 263

of justice, while the third clause could be interpreted to 

signify a guarantee of a remedy for the specified types of 

injuries.

But the issue to me is not whether Article I, section 

10, may be plausibly interpreted one way or another. As I 

said at the outset, I do not start from the assumption that 

this court’s existing case law represents a coherent view of 

the remedy clause, which we must uphold so long as it is reasonable. The case law represents no such coherent view, and 

so I look at the provision afresh, to determine what it most 

likely was intended or understood to mean.

With that in mind, it strikes me that reading the 

remedy clause as an independent clause is not the most likely 

reading of Article I, section 10. It requires us to extract the 

clause from the balance of the sentence and ignore its immediate and indispensible context. Cf. Vsetecka v. Safeway 

Stores, Inc., 337 Or 502, 508, 98 P3d 1116 (2004) (“Viewed 

in isolation, that text provides support for employer’s position. Ordinarily, however, text should not be read in isolation but must be considered in context.”). Moreover, I am 

not persuaded that reading the remedy clause in isolation 

is altogether faithful to the wording of that independent 

clause. Taking the clause as a whole, it seems to me that it 

guarantees “every” person a remedy “by due course of law.” 

As David Schuman put it, the remedy clause of Article I, 

section 10, “guarantees that for injuries of a certain type, 

a person shall have access to a remedy through the state’s 

legal apparatus.” David Schuman, The Right to a Remedy, 64 

Temple L Rev 1197 1201-02 (1992) (emphasis in original). 

Indeed, it occurs to me that reading the clause to impose 

a guarantee of particular substantive rights and remedies 

doesn’t leave anything for the phrase “by due course of law” 

to do. I would think that we would be constrained to avoid 

interpretations that entail such superfluities.

B. Historical context

Assuming for the sake of argument the plausibility of reading the text of Article I, section 10, to express 

a substantive limitation on legislative authority to determine rights and remedies, the fact remains that the alternative reading that I have suggested is at least plausible 
264 Horton v. OHSU

as well. That leads to an examination of the historical 

context in which that possibly ambiguous wording was 

adopted.

I set out my views about the historical roots of modern remedy provisions in Klutschkowski and in Brewer, and 

I won’t reprise them in detail here. In brief, the genesis of 

modern remedy provisions lies in English concerns about 

royal interference with the courts, first given expression in 

Lord Edward Coke’s writings about Magna Carta and later 

voiced in William Blackstone’s Commentaries on the Laws of 

England. Klutschkowski, 354 Or at 180-84; Brewer, 167 Or 

App at 195-97. Early American state constitutions adopted 

remedy guarantees patterned after those English sources, 

with a notable absence of explanation that the guarantees were intended to accomplish something else, such as 

establish a limitation on legislative authority to determine 

substantive rights and remedies. Klutschkowski, 354 Or at 

185-86. While those early state constitutions reflected some 

mistrust of legislative power, that mistrust focused on corruption in the legislative process and lack of deliberation in 

the passage of laws, not the abrogation of common-law remedies. Id.

The majority in this case acknowledges that history, but suggests that it is at least possible that the framers of the Oregon Constitution could have had a different 

understanding of the meaning and effect of Article I, section 

10, because of some ambiguities in the writings of Coke and 

Blackstone and because of the holdings of a number of state 

courts interpreting state constitutional remedy guarantees 

in the early-to mid-nineteenth century. 359 Or at 205, 

208.

I have a different view of those historical sources 

and their significance. In large part, that is because I frame 

the issue differently from the majority. Again, the question 

for me is not what the historical sources might plausibly 

be said to signify; rather it is what they, in fact, show that 

the framers of the state constitution most likely would have 

understood or intended Article I, section 10, to mean. With 

that in mind, I turn to Coke, then to Blackstone, and finally 

to the nineteenth-century American case law.
Cite as 359 Or 168 (2016) 265

The focus of Coke’s writing on Chapter 29 of Magna 

Carta6

 was the protection of the common-law courts from 

royal and preferential interference, and the oft-quoted provision that was the textual basis for modern remedy guarantees makes that clear:

“And therefore, every subject of this realme, for injury done 

to him, in bonis, terres, vel persona, by any other subject, 

be he ecclesiastical, or temporall, 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 to him, freely without sale, fully without any deniall, 

and speedily without delay.”

Edward Coke, The Second Part of the Institutes of the Laws 

of England 55 (1797 ed.). Read in context, it becomes abundantly clear that Coke’s point is that every subject has access 

to the justice of the courts, regardless of age, gender, or 

station in life. The passage says nothing about limitations 

on legislative authority to revise the common law. To the 

contrary, “Coke clearly acknowledges that statutes can correct the common law and thus that they take precedence 

over the common law that they revise.” James R. Stoner, 

Jr., Common Law and Liberal Theory: Coke, Hobbes, and the 

Origins of American Constitutionalism 22 (1992).

Coke did author Dr. Bonham’s Case, in which he 

said, in dictum, that when acts of Parliament are “against 

common right and reason, or repugnant, or impossible to 

be performed, the common law will controul it, and adjudge 

such Act to be void.” 77 Eng Rep 646, 652 (CP 1610). That 

dictum has been read by some to suggest a sort of progenitor 

to modern conceptions of judicial review, although the view 

is controversial, and modern scholarship tends to regard the 

case as standing for a more limited proposition that acts of 

Parliament were to be construed to avoid conflicts with the 

6 Magna Carta had been “reissued” several times between 1215, when it was 

originally sealed, and 1225. In the process, several of the original provisions got 

renumbered. Among them were the original Chapters 39 and 40, which were 

renumbered as Chapter 29 of the 1225 version. Coke wrote about that later version of the document, not the original. See generally Faith Thompson, Magna 

Carta: Its Role in the Making of the English Constitution 1300-1629 at 5 (1948) 

(describing Coke’s reliance on 1225 version of Magna Carta).
266 Horton v. OHSU

common law.7

 While interesting, the dictum in Dr. Bonham’s 

Case is a bit of a red herring concerning the origin and 

meaning of state constitutional remedy guarantees. For 

even assuming that Coke meant to suggest that there may 

be some limits on parliamentary authority, nothing in the 

decision connects it with Magna Carta and the idea that 

Chapter 29 limited the authority of Parliament to determine 

substantive rights and remedies. Moreover, whatever Coke 

may have been up to in Dr. Bonham’s Case, the notion that 

Parliament was subject to the common law gave way to a 

much more vigorous doctrine of parliamentary supremacy 

by the time of Blackstone.

Blackstone, like Coke, viewed Chapter 29 of Magna 

Carta as having been directed at royal interference with 

judges and courts. In his view, Magna Carta forbade the 

crown from issuing “commands or letters” to the courts either 

“in disturbance of the law” or “to disturb or delay common 

right.” William Blackstone, 1 Commentaries on the Laws of 

England 138 (1st ed 1765). Nothing in the Commentaries

suggests that Blackstone thought that Magna Carta limited 

the authority of Parliament to determine substantive rights 

7 Leading historian R.H. Hemholz remarked, “[t]he student who picks 

Bonham’s Case as a topic had better take a deep breath first.” R.H. Hemholz, 

Bonham’s Case, Judicial Review, and the Law of Nature, 1 J Legal Analysis 325, 

325 (2009). The dispute centers on whether Coke’s opinion announced a principle 

of statutory construction, see, e.g., Samuel E. Thorne, Dr. Bonham’s Case, 54 LQ 

Rev 54 (1938), or a principle that judges have authority to invalidate parliamentary enactments that violate higher law, Raoul Berger, Doctor Bonham’s Case: 

Statutory Construction or Constitutional Theory?, 117 U Pa L Rev 521 (1969), 

or something in between, R.A. McKay, Coke: Parliamentary Sovereignty or the 

Supremacy of the Law?, 22 Mich L Rev 215 (1924). A number of scholars have 

noted that Coke and Blackstone actually made inconsistent statements about 

Dr. Bonham’s Case, leading some to say that they were simply mistaken about 

the decision, T.F.T. Plucknett, Bonham’s Case and Judicial Review, 40 Harv L 

Rev 30, 69 (1926), or (my favorite) that their views on the case depended on their 

“mood,” W.W. Buckland, Some Reflections on Jurisprudence 38 (1945). In spite of 

the longstanding debate, “[t]he weight of modern scholarship” supports the more 

limited view that Dr. Bonham’s Case merely reflects a rule of construction, not 

a broader principle concerning judicial authority to invalidate statutes. Nathan 

S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 

Yale LJ 1672, 1690 (2012). In addition, although it is often stated that, even if 

Coke originally intended that his decision stand for the narrower proposition, 

the founders of the American constitution read it more broadly, that view, too, 

is viewed more skeptically by modern scholars. See, e.g., Larry D. Kramer, The 

People Themselves: Popular Constitutionalism and Judicial Review 19-22 (2004); 

Chapman & McConnell, Due Process as Separation of Powers, 121 Yale LJ at 

1691.
Cite as 359 Or 168 (2016) 267

and remedies. To the contrary Blackstone, even more than 

Coke, believed in parliamentary supremacy.8

 In Blackstone’s 

view, “[t]he power and jurisdiction of Parliament *** is so 

transcendent and absolute that it cannot be confined, either 

for causes or persons, within any bounds.” Id. at 156. He 

took the position that “the legislature being in truth the sovereign power,” it is “always of absolute authority; it acknowledges no superior on earth.” Id. at 90. That sovereign and 

absolute power, Blackstone explained, included the authority to enlarge “the common law where it was too narrow 

and circumscribed” and to “restrain[] it where it was too 

lax and luxuriant.” Id. at 86-87. In cases of conflict between 

the common law and parliamentary legislation, Blackstone 

said, “the common law gives place to the statute.” Id. at 89.

To be sure, Blackstone also sprinkled his 

Commentaries with suggestions that the law—both common law and legislation—should reflect reason. Id. at 70. 

He went so far as to say that “what is not reason is not law” 

and that acts of Parliament contrary to reason or leading to 

absurd results would be “void.” Id. at 70.

But to read in those suggestions some broader notion 

that Blackstone recognized limits to legislative authority 

would be a mistake. Blackstone himself explained that, 

although certain acts of Parliament may in some sense be 

“void” because they offend natural law or reason, the courts 

lack power to do anything about it. “[T]hough I know it is 

generally laid down more largely, that acts of parliament 

contrary to reason are void,” he said, “if the parliament will 

positively enact a thing to be done which is unreasonable, I 

know of no power to control it.” Id. at 91. Blackstone explicitly 

8 See generally Gordon S. Wood, The Creation of the American Republic 1776-

1787 at 260 (3d ed 2011). (“Parliament, as * ** Blackstone had made evident, was 

no longer simply the highest court among others in the land, but had in truth 

become the sovereign lawmaker of the realm, whose power, however arbitrary 

and unreasonable, was uncontrollable.”); Theodore F.T. Plucknett, A Concise 

History of the Common Law 337 (1956) (by the eighteenth century, “there were no 

legal limitations upon the powers of Parliament”); Bernadette Meyler, Towards a 

Common Law Originalism, 59 Stan L Rev 551, 562 (2006) (Blackstone “wrote at 

a point when the common law itself was on the wane, and parliamentary supremacy had been definitely established”); Suja A. Thomas, A Limitation on Congress: 

“In Suits at Common Law,” 71 Ohio St LJ 1071, 1102-03 (2010) (in the eighteenth 

century, “there was the general belief that Parliament could take any actions, 

including the alteration of the common law”).
268 Horton v. OHSU

rejected the idea that judges are at liberty to invalidate acts 

of Parliament, which he said “would be subversive of all government.” Id.

9

Thus, I find no support in Blackstone’s Commentaries

for the suggestion that when Magna Carta (as Coke reimagined it) guaranteed access to courts free of royal interference, it also guaranteed access to some irreducible quantum 

of common-law remedies. Such a suggestion runs directly 

counter to Blackstone’s views about the supremacy of parliamentary authority. He said that the law of the land “is 

permanent, fixed and unchangeable, unless by the authority of parliament.” Id. at 137 (emphasis added). According 

to Blackstone, “[Parliament] being the highest and greatest 

court, over which none other can have jurisdiction in the 

kingdom, if by any means a misgovernment should any way 

fall upon it, the subjects of this kingdom are left without all 

manner of remedy.” Id. at 157 (emphasis added).10

Finally, there is the body of early to mid-nineteenth 

century American appellate court decisions that interpreted, discussed, or referred to state constitutional remedy 

guarantees. There were a number of such decisions, and 

they reflected something of a spectrum of views about remedy guarantees. Some concluded that the remedy clauses 

applied as constraints on the courts alone, not legislatures. 

90 As one scholar has summarized, Blackstone was “a champion of parliamentary supremacy” and did not share the view often attributed to Coke’s 

dictum in Dr. Bonham’s Case that judges could disregard legislation that they 

regarded as inconsistent with reason or the laws of nature. Albert W. Alschuler, 

Rediscovering Blackstone, 145 U Pa L Rev 1, 19 n 106 (1996) “If Parliament were 

to defy the law of nature (a prospect that Blackstone thought almost inconceivable), the only remedy would lie in the streets rather than in the courts.” Id.; 

see also Wood, The Creation of the American Republic 1776-1787 at 260 (“[T]o 

most Englishmen *** moral and natural law limitations on the Parliament were 

strictly theoretical, without legal meaning, and relevant only in so far as they 

impinged on the minds of the lawmakers.”).

10 Blackstone’s views of parliamentary supremacy were not wholeheartedly embraced in the American colonies. James Wilson, for example, rejected 

Blackstone’s views as “dangerous and unsound,” containing the “seeds of despotism.” 1 The Works of James Wilson 168-93 (Robert G. McCloskey ed. 1967); see 

generally Arthur E. Wilmarth, Jr., Elusive Foundation: John Marshall, James 

Wilson, and the Problem of Reconciling Popular Sovereignty and Natural Law 

Jurisprudence in the New Federal Republic, 72 Geo Wash L Rev 113, 167 (2003) 

(“Wilson, however, rejected Blackstone’s claim of Parliamentary supremacy.”). 

But that only confirms the point that it is a mistake to suggest that Blackstone 

was a source for the idea that courts could check abuses of legislative authority.
Cite as 359 Or 168 (2016) 269

Others adopted the view that remedy guarantees foreclosed 

legislation that interfered with ongoing court procedures 

and proceedings. Still others concluded that remedy provisions prohibited legislatures from retroactively altering 

vested rights, which was viewed as a violation of separation 

of powers principles. Finally, some invoked remedy guarantees as grounds for giving statutes narrow interpretation 

and application.

It is significant to me that none of those early to 

mid-nineteenth century cases held that state remedy guarantees limited the authority of state legislatures to define, 

prospectively, the nature of substantive rights and remedies. In fact, the idea that state constitutional remedy guarantees impose such a substantive limit on the authority of 

state legislatures did not emerge until relatively late in the 

nineteenth century. See generally Thomas R. Phillips, The 

Constitutional Right to a Remedy, 78 NYU L Rev 1309, 1329 

(2003) (“Not until well after the Civil War was there any 

reported opinion dealing with a remedies clause challenge 

to a statute limiting a tort claim.”). And the first appellate 

court decision to actually to strike down such a statute on 

remedy clause grounds was this court’s decision in Mattson, 

published in 1901. Id. at 1330.

The first category of early to mid-nineteenth century 

remedy-clause cases that I mentioned consists of those viewing the clause as limiting the authority of the courts alone, 

not legislatures. In Barkley v. Glover, 61 Ky 44, 45 (1862), for 

example, the Kentucky Court of Appeals expressly rebuffed 

the suggestion that the state’s remedy clause constrained 

the state legislature at all, explaining, “The doctrine that 

the [remedy guarantee] applies alike to the legislative and 

judicial branches is, in our judgment, directly opposed to 

the meaning and language of the section.” In that court’s 

view, “The courts form its sole subject matter, and every 

part and parcel of the section relates directly to some duty 

of that branch of the government.” Id. at 46. Certainly, such 

a limited view of the remedy guarantee is consistent with its 

English antecedents in the writings of Coke and Blackstone.

The second category that I mentioned includes 

cases in which courts invoked state remedy guarantees 
270 Horton v. OHSU

to forbid legislative interference with judicial administration. In Weller v. City of St. Paul, 5 Minn 95, 101 (1860), for 

instance, the court held that access to courts cannot be limited by a requirement of payment of certain fees in advance. 

Similarly, in Menges v. Dentler, 33 Pa 495, 498 (1859), the 

court explained that remedy guarantees prevented “legislative and executive interference” with judicial proceedings. 

See also Sharpless v. Mayor of Philadelphia, 21 Pa 147, 166 

(1853) (remedy clause was “clearly intended to insure the 

constant and regular administration of justice”). In a related 

vein, in Lewis v. Webb, 3 Me 326, 335 (1825), the court held 

that legislation purporting to vacate an existing judgment 

or decree violates the state constitutional remedy guarantee. 

Although the views of state remedy guarantees expressed in 

such cases expand the reach of the clauses to include limitations on legislative authority, they align quite well with the 

historical roots of such clauses in fears of interference with 

the independent exercise of the judicial function.

The third category of cases is perhaps the largest 

and comprises decisions proscribing retroactive abrogation 

of “vested rights.” Especially important in understanding 

the significance of those cases is the fact that they barred 

only retroactive alteration of such rights. Indeed, a number of 

the decisions went out of their way to emphasize the authority of legislatures to adjust, modify, or eliminate remedies 

for specified injuries as long as they did so on a prospective 

basis.

Gooch v. Stephenson, 13 Me 371 (1836), serves as 

a good illustration. At issue in that case was the constitutionality of a legislative grant of immunity against trespass claims based on cattle wandering on to property that 

was inadequately fenced. The plaintiff had argued that the 

grant of statutory immunity ran afoul of the state’s constitutional remedy guaranty. The Supreme Judicial Court of 

Maine rejected the argument, explaining that

“It was for the legislature to determine what protection 

should be thrown around this species of property; what 

vigilance and what safeguards should be required at the 

hands of the owner; and where he might invoke the aid of 

courts of justice. They have no power to take away vested 
Cite as 359 Or 168 (2016) 271

rights; but they may regulate their enjoyment. Lands in 

this country cannot be profitably cultivated, if at all, without good and sufficient fences. To encourage their erection, 

it is undoubtedly competent for the legislature to give to 

the owners of lands thus secured, additional remedies and 

immunities.”

Id. at 376-77; see also Preston v. Drew, 33 Me 558, 560 (1852) 

(“[t]he State, by its legislative enactments, operating prospectively, may determine that articles injurious to the public health or morals, shall not constitute property” subject to 

remedy, without violating remedy guarantee).

Fisher’s Negroes v. Dabbs, 14 Tenn 119 (1834), provides another excellent example. The Tennessee Supreme 

Court’s opinion may well be the most extensive antebellum 

state court analysis of constitutional remedy guarantees. In 

that case, an act of 1829 provided that, when a slave owner 

freed slaves by will but the testator refused to file a bill in 

the county court to act on that devise, the slaves, “by their 

next friend,” could file a bill to obtain legal recognition of 

their emancipation. When one Fisher died, his will directed 

that his slaves be freed and given the right to live on his 

land for the next 15 years. The executor of the will refused 

to recognize the devise and declined to file a bill in county 

court to obtain the emancipation of Fisher’s slaves. Pursuant 

to the 1829 statute, an action was filed on behalf of Fisher’s 

slaves to obtain their emancipation. While the action was 

pending, the Tennessee legislature repealed the earlier statute in 1831 and directed that any pending cases under it be 

dismissed. The chancellor ruled that the 1831 statute could 

not divest Fisher’s former slaves of their claims, which were 

pending at the time of passage, based on the state’s constitutional remedy guarantee:

“This declaration, copied from the great charter, is not 

a collection of unmeaning epithets. In England, the reason 

of riveting this barrier around the rights of the subject was 

well understood. Their sovereign was wont to interfere in 

the administration of justice; ‘a remedy by due course of 

law’ was often refused, under the mandate of men in power, 

and the injured man denied justice; they were ordered 

sometimes not to proceed with particular causes, and justice was delayed; and the obtainment of their rights was 
272 Horton v. OHSU

often burdened with improper conditions and sacrifices, 

and justice was sold. ** * [T]he framers of our constitution 

decreed, that the judicial department should be independent and coordinate, and that the legislature should have 

no judicial power.

“*****

“A distinction between the right and the remedy is made 

and exists. But where the remedy has attached itself to the 

right, and is being prosecuted by ‘due course of law,’ to separate between them, and take away the remedy, is to do 

violence to the right, and comes within the reason of that 

provision of our constitution which prohibits retrospective, 

or, in other words, retroactive, laws from being passed, or 

laws impairing the obligation of contracts.

“By the act of 1829, all slaves in whose favor there is a 

devise of liberty, and where the representative of the testator refuses to apply to the county court, they may file 

a bill, by their next friend, in this court. The act of 1831 

attempts to take away this right from a portion of them, 

and from that portion of them where the right and remedy had attached by the actual pendency of a suit in a ‘due 

course of law.’”

Id. at 137-38. The executor appealed, but the Supreme Court 

of Errors and Appeals affirmed, adopting the opinion of the 

chancellor, explaining that,

“He who has a lawful right, and a legal remedy to enforce 

that right, and the jurisdiction of a court has attached upon 

it, is entitled to judgment. The legislature has no power to 

close the courts. The courts shall be open, and every man 

shall have remedy by due course of law.”

Id. at 159.

A further example is provided by Barclay v. Weaver, 

19 Pa 396 (1852), in which the court addressed the applicability of a statute that purported to alter, retroactively to 

existing contracts already in force, the notice requirements 

for enforcing contracts. The Pennsylvania Supreme Court 

construed the statute as not having immediate effect on 

existing contracts to avoid a conflict with the state remedy 

guarantee. Id. at 399. The court explained that it could not 

give the statute immediate effect “without at all affecting or 
Cite as 359 Or 168 (2016) 273

altering contracts already made, and a regard for the constitution requires us to presume that no other effect was 

intended.” Id. A few years later, in In re Stuber’s Road, 28 

Pa 199 (1857), the same court went even further and held 

that legislation vacating interests in land that had previously been acquired by prescription did not violate the state 

constitutional remedy provision, explaining that the constitution “furnish[es] no guaranty that the law of the land and 

the due course of law shall remain unalterable.” Id. at 201.

The Mississippi Supreme Court invoked similar 

reasoning in Commercial Bank of Natchez v. Chambers, 16 

Miss 9 (1847), in which the legislature purported to amend 

an earlier statute governing actions against corporations 

for forfeiture of their charters. The court concluded that the 

statute violated the state constitutional remedy guarantee 

because “[i]t takes away from [the parties] a suit pending, 

which is made a matter of right.” Id. at 29.

I suppose it may plausibly be asserted that those 

cases could be read to stand for the proposition that early 

to mid-nineteenth century courts—or at least a good number of them—saw state constitutional remedy guarantees 

in broader terms than their English roots would otherwise 

have suggested. Once again, though, I don’t see the task in 

those terms. The question isn’t whether those cases might 

plausibly be read to support a broader rendition of the remedy guarantee. The question for me is what, in fact, did the 

framers of Oregon’s constitution most likely understand 

them to mean.

The answer to that question is that it is highly 

unlikely that the framers of Article I, section 10, would have 

understood those decisions as having significantly broadened the effect of state constitutional remedy guarantees to 

impinge on the authority of legislatures to make policy decisions about the nature of rights and remedies for injuries to 

person, property and reputation. That is because there was 

a well-established reason for early to mid-nineteenth century courts’ antipathy to retroactive legislation—a reason 

that lines up perfectly with what I have described is suggested by the text of Article I, section 10, and its historical 

context.
274 Horton v. OHSU

In brief, retroactive legislation that infringed on 

vested rights was seen as violating antebellum conceptions 

of the separation of legislative and judicial powers. As the 

Illinois Supreme Court explained in Newland v. Marsh, 19 

Ill 376, 383 (1857), a vested right may not be eliminated 

“except by judgment of law; and the legislature, having no 

judicial power, cannot impart to their enactments the force 

of a judicial determination.”11

Although it may ring oddly to our twenty-first century ears, early conceptions of the separation of powers 

11 See also Joseph Story, 3 Commentaries on the Constitution of the United 

States § 1392, 266-67 (1833) (legislation altering vested rights amounted to 

legislative exercise of “judicial functions”); Theodore Sedgwick, A Treatise on 

the Rules Which Govern the Interpretation and Application of Statutory and 

Constitutional Law 676-77 (1857) (retroactive legislation altering vested rights is 

unconstitutional because “legislatures by our fundamental law [are] prohibited 

from doing any judicial acts”); Thomas M. Cooley, A Treatise on the Constitutional 

Limitations Which Rest Upon the Legislative Power of the States of the American 

Union 362 (1868) (Whether a vested right “springs from contract or from the principles of common law, it is not competent for the legislature to take it away * ** 

unless steps are taken to have the forfeiture declared in due judicial proceedings. 

Forfeitures of rights or property cannot be adjudged by legislative act.”).

There is a wealth of modern scholarship on pre-Civil War judicial antipathy 

to retroactive legislation regarding vested rights as the theoretical underpinning 

for a range of constitutional doctrines, including ex post facto, impairment of contract, remedy by due course of law or law of the land, and—especially—due process guarantees. See, e.g., Chapman & McConnell, Due Process as Separation of 

Powers, 121 Yale LJ at 1727 (“Courts used separation-of-powers logic to invalidate 

legislative acts under a variety of constitutional provisions.”); Ann Woolhandler, 

Public Rights, Private Rights, and Statutory Retroactivity, 94 Geo LJ 1015, 1025 

(2006) (retroactive elimination of vested rights “were often said either to deprive 

people of property without ‘due process of law’ or to cross the line between ‘legislative’ and ‘judicial’ power); Nathan N. Frost, Rachel Beth Klein-Levine & Thomas 

B. McAfee, Courts Over Constitutions Revisited: Unwritten Constitutionalism in 

the States, 2004 Utah L Rev 333, 382 (2004) (“The doctrine of vested rights grew 

out of a recognition that when legislatures act like courts, the potential for abuse 

grows not only by the omission of some particular procedure in question—such 

as trial by jury—but also by the departure from separation of powers.”); John 

Harrison, Substantive Due Process and the Constitutional Text, 83 Va L Rev 493, 

511 n 46 (1997) (explaining that early vested-rights case law was understood “primarily in terms of the constitutional structure of separated powers” in that legislative abrogation of vested rights was “seen as an attempt to exercise the judicial 

power”); James L. Kainen, The Historical Framework for Reviving Constitutional 

Protection for Property and Contract Rights, 79 Cornell L Rev 87, 108 n 82 (1993) 

(citing Sedgwick for pre-Civil War view that “the protection of vested rights 

defines the proper role of courts in securing individual rights against legislative interference when there is no express federal or state constitutional shield”); 

Wallace Mendelson, A Missing Link in the Evolution of Due Process, 10 Vand L 

Rev 125, 136 (1956) (noting the significance of separation of powers doctrine as 

the rationale for voiding retroactive legislation altering vested rights).
Cite as 359 Or 168 (2016) 275

assumed that judicial decisions applied retrospectively, while 

legislation was held to apply prospectively.12 In that era, 

rights were understood to be governed by the law in effect 

at the time they vested. See, e.g., Chapman & McConnell, 

Due Process as Separation of Powers, 121 Yale LJ at 1737-38 

(According to nineteenth-century views, vested rights “had 

been conclusively acquired pursuant to the positive law in 

effect at the time of acquisition.”).13 In consequence, any disputes about those rights necessarily were subject to resolution by the courts in accordance with that law. Any attempt 

by a legislature to alter the law that the courts otherwise 

would have been required to apply at the time of vesting 

was regarded as a usurpation of the judicial function. As 

an early nineteenth-century authority explained, legislation 

retroactively altering vested rights amounted to

“a gross usurpation in most cases upon the judicial power. 

Now what is the nature, and what the object of all retrospective laws? In the first place, they do not look to the 

future; their operation is upon the past, and in this aspect 

they directly invade the appropriate domain of the judicial 

power.”

12 So deep was nineteenth-century antipathy to retroactivity that, even when 

vested rights were not involved, the prevailing doctrine worked hard to avoid 

giving legislation anything but prospective effect. As a later-nineteenth-century 

treatise explained, citing pre-Civil War case law, “One of the cardinal rules by 

which courts are governed in interpreting statutes is, that they must be construed 

as prospective in every instance,” except when a contrary intent “is expressed in 

clear and unambiguous terms.” William P. Wade, A Treatise on the Operation 

and Construction of Retroactive Laws 39-40 (1880). “Every reasonable doubt,” the 

treatise added, “is resolved against, rather than in favor of, the retroactive operation of the statute.” Id. at 41 (emphasis in original); see also Henry Campbell 

Black, An Essay on Constitutional Prohibitions Against Legislation Impairing 

the Obligation of Contracts and Against Retroactive and Ex Post Facto Laws 230 

(1887) (“It is an inflexible rule that a statute will be construed as prospective and 

operating in futuro only, unless the intention of the legislature to give it retroactive effect is expressed in language too clear and explicit to admit of reasonable 

doubt.”) (Citing early-nineteenth century decisions).

13 Thus, for example, contract disputes were governed “according to the 

course of justice as it existed at the time the contract was made.” Cooley, A 

Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power 

of the States of the American Union 308 (2d ed 1871); see also Francis Wharton, 

Retrospective Legislation and Grangerism, 3 Int’l Rev 50, 60 (1876) (“For it is a 

fundamental principle of jurisprudence that a contract is to be construed according to the law which was in force at the time of its execution. * ** The right to 

insist on the perfection of these rules, no matter what may be the course of subsequent legislation, is vested in both parties at the time of the execution of the 

contract.”).
276 Horton v. OHSU

Simeon Nash, The Constitutionality of Retrospective Statutes, 

2 WLJ 170, 174 (1844-45) (emphasis omitted). The author 

explicitly referred to the state constitutional remedy guarantee, noting that its purpose was to ensure that vested 

rights were to be determined “by the court and not by the 

legislature.” Id.

In that context, there is nothing at all unusual about 

early to mid-nineteenth century court decisions declaring 

that retroactive legislation impairing vested rights violated 

state remedy guarantees. The underlying rationale for such 

decisions was that legislation of that sort interfered with the 

independence of the judiciary, which as I have noted, was 

precisely the historical underpinning of the remedy guarantees in the first place.14

The fourth and last category of early to midnineteenth century remedy-clause precedents involves those 

in which the courts invoked remedy guarantees as a reason 

to impose a narrowing construction on a statute at issue. For 

example, in Thornton v. Turner, 11 Minn 336, 339 (1866), 

the court expressed “doubt” about the constitutionality of 

giving a broad interpretation to a statute limiting actions 

for damages arising out of the erection of a mill dam to avoid 

possible constitutional problems. Likewise, in Hotchkiss v. 

Porter, 30 Conn 414, 421 (1862), the court commented that 

a more limited construction of a statute limiting recovery 

for libel avoided constitutional difficulties. And in Schuylkill 

Nav. Co. v. Loose, 19 Pa 15, 18 (1852), the court similarly 

construed a statute narrowly and mentioned in the process 

the state constitutional remedy guarantee.

14 I suppose that an alternative way to treat the anti-retroactivity cases 

would be simply to say that, in addition to guaranteeing judicial independence 

and access to courts, the remedy provision of Article I, section 10, prohibits certain forms of retroactive legislation. Some courts, in fact, have taken that view. 

See, e.g., Friends of Pennsylvania Leadership Charter School v. Chester County 

Board of Assessment Appeals, 61 A3d 354, 360 (Pa 2013) (“[i]t is well-settled that 

applying legislation retroactively to extinguish an accrued vested right is prohibited” by the state constitutional remedy guarantee); State ex rel. Howell v. 

Wildes, 34 Nev 94, 116 P 595, 600 (1911) (retroactive alteration of vested rights 

is “an attempted infringement upon the functions of the judicial branch of government”). I do not. It strikes me that it reflects the sort of wooden originalism 

about which I have complained, in applying nineteenth-century case law without 

attempting to draw from it an underlying principle that may be applied to modern circumstances.
Cite as 359 Or 168 (2016) 277

It may be argued that those courts, in so doing, 

appear to have assumed that giving the statutes at issue a 

broader interpretation would run afoul of the state remedy 

guarantee, thus supporting the inference that at least some 

courts thought that those constitutional provisions limited 

legislative authority to determine rights and remedies.

Once again, though, that frames the issue in a different way than I think this case warrants. For me the question is not whether a plausible argument can be made that 

the cases would have been understood to reflect a broader 

understanding of remedy guarantees; rather it is whether, 

in fact, it is likely that they would have been so understood. 

I don’t think so.

To begin with, that a court elects to give a statute 

a narrow construction to avoid possible constitutional issues 

does not necessarily mean that the court is, in the process, 

actually deciding what the constitution means. Under the statutory construction conventions of the era, courts sometimes 

gave a narrowing construction to a statute merely to avoid 

potential constitutional problems. See, e.g., John Copeland 

Nagle, Delaware & Hudson Revisted, 72 Notre Dame L Rev 

1495, 1509 (1997) (Examining nineteenth-century cases in 

which courts concluded that “[t]he existence of constitutional 

doubts provided a sufficient basis for rejecting an argument 

that a statute was unconstitutional. Statutes were presumed 

constitutional—often to the point that courts demanded 

that the unconstitutionality of a statute be proved ‘beyond 

a reasonable doubt.’ Therefore, if a court determined that 

an interpretation of a statute simply raised doubts about its 

constitutionality, the court abided by that interpretation and 

rejected the constitutional challenge.”).

Moreover, the inference that the courts in those 

cases implicitly held that remedy guarantees imposed a 

broad limitations on the authority of the legislature to 

eliminate tort remedies is unlikely in light of the fact that 

the same courts, in other cases, held more explicitly to the 

contrary when actually deciding the meaning of the remedy guarantees. In Schuylkill Nav. Co., for example, the 

Pennsylvania Supreme Court cited the state’s remedy clause 

in narrowly construing a statute. Ten years earlier, though, 
278 Horton v. OHSU

the same court held that “it is now clearly established by 

repeated decisions, that the legislature may pass laws altering, modifying or even taking away remedies for the recovery of debts,” without violating various constitutional provisions that otherwise limit legislative authority. Evans v. 

Montgomery, 4 Watts & Serg 218, 220 (Pa 1842). According 

to the court, “where the provisions of such laws, in relation to 

remedies, apply only to future proceedings, there is not the 

least ground for appealing to constitutional restrictions on 

the powers of the legislature.” Id. And, consistently with that 

holding, the Pennsylvania Supreme Court held in Barclay

and Stuber’s Road that the remedy guarantees precluded 

retroactive alteration of vested rights. In my view then, it is 

a bit of a stretch to say that early to mid-nineteenth century 

cases giving more limited interpretations to statutes suggest a broader view of remedy guarantees. As I have stated 

earlier, the fact is that it was not until the early twentieth 

century that appellate court decisions went that far.

In short, none of the four categories of early to midnineteenth century remedy-clause cases supports the notion 

that the clause was understood or intended to serve as a limitation on legislative authority to determine rights and remedies for injuries to persons, property, or reputation. At best, 

they suggest that the clause could have been understood to 

limit legislative authority to interfere with the administration of justice and to alter retroactively vested rights, which 

would have been seen as an encroachment upon judicial 

independence.

Interestingly, Oregon territorial case law is consistent with that understanding of early to mid-nineteenth 

century law. In McLaughlin v. Hoover, 1 Or 32 (1853), for 

example, the Territorial Supreme Court addressed the operation of a statute of limitations. The court noted that, “it is 

the duty of the court to apply the remedy by limitation in 

all cases, except where it would cut off the right” that has 

already vested, in which case the court “is bound, by fundamental law, to give a party reasonable time in which to 

escape the effect of such remedy.” Id. at 35; see also Steamer 

Gazelle v. Lake, 1 Or 119,121 (1854) (“It is competent for 

the legislature, at any time, to alter or change the remedy 
Cite as 359 Or 168 (2016) 279

or mode of enforcing a right, and all proceedings instituted 

thereafter must conform to the new remedy.”).

It was in that context that the framers of the Oregon 

Constitution adopted not only Article I, section 10, but also 

Article XVIII, section 7, which provides that, “[a]ll laws in 

force in the Territory of Oregon when this Constitution takes 

effect, and consistent therewith, shall continue in force until 

altered or repealed.” (Emphasis added.) It was thus expressly 

contemplated that the legislature would have the authority to alter or repeal common-law remedies. In the context 

of the Oregon territorial-era case law, along with the early-nineteenth century decisions from other jurisdictions, it 

seems fairly clear to me that the framers, at best, would 

have understood that the legislature’s authority to do that 

might be limited to adopting such changes prospectively. 

But I find a complete absence of evidence to support the idea 

that the framers would have understood the legislature to 

be further constrained by a requirement that there be “adequate” justification of “public importance” or some other limitation on its substantive authority.

C. Significance of the Historical Context

It remains for me to determine the significance of 

the historical context. After all, I did say that we are not 

strictly limited by the meaning of a constitutional provision 

that would have been generally accepted in 1857. But I also 

said that, as our precedents correctly require, we cannot 

simply ignore the historical context. Whatever construction 

we adopt must be faithful both to the text and the general 

purposes reflected by the context in which that text was 

adopted.

In this case, the text reflects no particular purpose 

in limiting the substantive authority of the Oregon legislature. Rather, it speaks to the courts (“No court shall . . .”) 

about the authority of the courts and the responsibilities of 

the courts—to ensure that justice is administered openly, 

speedily, affording every person remedy by due course of law.

The historical roots of the wording of remedy guarantees lay in concern with executive interference with the 
280 Horton v. OHSU

courts. From Coke to Blackstone and into the early years 

of the republic, the basic idea was that courts must be free 

to administer justice to all, without interference from the 

executive. I find little, if any, historical support for a broader 

notion that remedy guarantees might also have been 

designed to curb legislative excesses. As I have explained, 

that notion is an anachronism, contrary to the sort of notions 

of legislative supremacy that prevailed at the time.

Although, strictly speaking, state remedy guarantees are rooted in concern about interference from the executive—and not the legislature—I do not oppose drawing 

from the historical context a broader principle that would 

prohibit interference from the legislature as well.15 But 

that principle does not automatically carry with it the more 

expansive notion still that remedy guarantees also limit legislative authority to determine the nature of injuries that 

must be remedied by due course of law. That is a qualitatively different proposition.

Legislative determination of the nature of injuries 

that may be remedied and the nature of those remedies in 

no way interferes with the court’s constitutional obligation 

to see that justice is administered openly, speedily, affording every person remedy by due course of law. It is for the 

legislature to determine what the due course of law entails. 

And, under the remedy guarantee, it is for the courts to see 

to it that all persons are given remedy by it.

The potential fly in the ointment, so to speak, is the 

existence of a number of early to mid-nineteenth century 

15 There is ample precedent for that much. Article I, section 9, for example, 

is addressed to the legislature (“No law shall . . .”), and such search and seizure 

provisions historically were understood not to apply directly to executive branch 

law enforcement authorities. See, e.g., Thomas Y. Davies, Correcting Search-andSeizure History: Now Forgotten Common-Law Warrantless Arrest Standards and 

the Original Understanding of “Due Process of Law,” 77 Miss LJ 89, 90 (2007) 

(“The current notion that constitutional standards, such as search-and-seizure 

standards, address the conduct of ordinary [police] officers dates back only to the 

beginning of the twentieth century. Under framing-era doctrine, legislation and 

court orders were governmental in character, so it was possible to conceive of an 

‘unconstitutional’ statute or an ‘unconstitutional’ general warrant issued by a 

court. However, there was no conception that an ordinary officer could act ‘unconstitutionally.’”). Nevertheless, this court—like most courts—has construed the 

constitutional provision to state a broader principle that applies to all branches 

of government. See generally State v. McDaniel, 115 Or 187, 209, 231 P 965 (1925).
Cite as 359 Or 168 (2016) 281

decisions from other states that hold that state constitutional remedy guarantees also prohibit legislation that retroactively alters vested rights. But, as I have explained, a 

more careful examination of the underlying rationale for 

those decisions makes clear that they actually line up quite 

nicely with what the text and the historical underpinnings 

of the remedy guarantee so strongly suggest. Those decisions hold that retroactive alteration of vested rights violates state remedy guarantees because such legislation was 

regarded as a violation of the judicial function, viz., to apply 

the law that applied at the time rights vested.

I hasten to add that I do not suggest that our 

reading of the remedy guarantee should be constrained 

by nineteenth-century conceptions of vested rights and 

retroactivity. As I have said—and as our cases hold—we 

attempt to draw from historical context more general principles that may be applied to modern circumstances. In 

this case, the broader principle that I draw from the early 

to mid-nineteenth century cases is simply that state constitutional remedy guarantees constrain not only executive 

interference with judicial independence and access to the 

courts, but legislative interference as well. I should add that 

reading the remedy clause to forbid only interference with 

judicial independence and access to courts—and not as a 

limitation on the authority of legislatures to define injuries 

and remedies—is not an unusual or retrograde interpretation. It is, in fact, what most other state courts make of their 

constitutional remedy guarantees.16

16 As the Montana Supreme Court explained in Stewart v. Standard Pub. Co., 

102 Mont 43, 55 P2d 694, 696 (1936):

“A reading of the [state remedy guarantee] discloses that it is addressed 

exclusively to the courts. The courts are its sole subject matter, and 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, e.g., O’Quinn v. Walt Disney Productions, Inc., 177 Colo 190, 195, 493 

P2d 344, 346 (1972) (remedy clause “simply provides that if a right does accrue 

under the law, the courts will be available to effectuate such right”); Hawley v. 

Green, 117 Idaho 498, 500-01, 788 P2d 1321, 1323-24 (1990) (state remedy guarantee “merely admonishes the Idaho courts to dispense justice and to secure citizens the rights and remedies afforded by the legislature or by the common law”);
282 Horton v. OHSU

I am aware of the fact that adopting that view of 

the remedy guarantee of Article I, section 10, would require 

overruling a lot of case law, and I do not take that fact 

lightly. But this court’s case law is so hopelessly conflicting that I do not understand how we can move forward—

particularly if we hope to provide the bench and bar with 

anything close to helpful doctrine—without overruling 

something. As I mentioned at the outset of this opinion, 

stubborn adherence to case law that is in conflict and 

demonstrably in error is not costless. It produces its own 

threats to stability and predictability—the very virtues 

that stare decisis is supposed to promote.

III. SOME PRACTICAL CONCERNS

That last point concerning the costs of adhering to 

erroneous precedent leads me to conclude with some observations about the practical consequences of the majority’s 

decision. To begin with, it is not clear what remains of 

our prior case law. The majority overrules Smothers, and 

Smothers alone. But it strikes me that the decision to do that 

may have ripple effects back through a number of earlier 

decisions. Smothers itself overruled a number of prior cases, 

such as Perozzi and Noonan. I presume those have once 

again been resuscitated. But Smothers also relied on other 

cases for its holding that the remedy clause applies only to 

common-law actions existing at the time of the adoption of 

our constitution. Stewart, for example, concluded that “[t]he 

purpose of this provision is to save from legislative abolishment those jural rights which had become well established 

prior to the enactment of our Constitution.” 127 Or at 591. 

That is precisely the proposition of law that the majority in 

this case abjures in overruling Smothers.

Aside from that, it is also unclear to me what standard applies to remedy-clause challenges going forward. The 

majority offers three “categories” of legislation with three 

MJ Farms, Ltd v. Exxon Mobil Corp., 998 So 2d 16, 37 (La 2008) (state remedy clause “operates only to provide remedies which are fashioned by the legislature”); Lamb v. Wedgewood South Corp., 308 NC 419, 444, 302 SE2d 868, 882 

(1983) (“[T]he remedy constitutionally guaranteed must be one that is legally 

cognizable. The legislature has the power to define the circumstances under 

which a remedy is legally cognizable and those under which it is not.”).
Cite as 359 Or 168 (2016) 283

different tests concerning the limits of legislative authority. 

First, there are statutes that leave in place a duty but deny a 

remedy for breach of that duty. 359 Or at 219. Second, there 

are statutes that adjust an individual’s rights and remedies 

as part of a “larger statutory scheme” that extends benefits 

to some while limiting benefits to others. Id. Third, there 

are statutes that wholly eliminate claims and underlying 

duties. According to the majority, whether such statutes are 

constitutionally permissible depends on whether the action 

that was modified “continues to protect core interests” or 

whether, in light of changed circumstances, those interests 

“no longer require the protection formerly afforded them.” 

Id.

I don’t begrudge the majority its attempt to reconcile our existing cases by coming up with new tests for 

evaluating remedy-clause challenges. If we are not going to 

overrule any of them, those cases fairly cry out for such an 

effort. This, however, is but the latest in a series of attempts 

by this court to accomplish that very feat. Each of those 

prior attempts has failed to offer any real doctrinal clarity, 

by this court’s own reckoning. And I fear that the majority’s 

effort in this case will fare no better.

The majority’s first category seems unobjectionable 

to me. It requires that statutes altering remedies for existing duties not be “insubstantial.” As we explained in Howell, 

that’s what the prior case law says, even if it leaves something to be desired in the way of clarity. 353 Or at 388.

The second category, likewise, appears supported 

by case law, although the nature of the quid pro quo test 

itself has proven somewhat elusive. Compare Howell, 353 Or 

at 376 (applying Hale’s “balance” analysis), with 353 Or at 

393-94 (DeMuniz, pro tem, dissenting) (contesting majority’s reading of Hale).

It is the majority’s third category that gives me 

pause. To begin with, I do not know where it comes from. The 

majority asserts that, in assessing whether the legislature 

constitutionally abolished an underlying duty or a claim, we 

must take into account whether “core interests” remain protected. I have searched in vain for a single decision of this 
284 Horton v. OHSU

court that even uses the phrase, much less identifies it as a 

relevant consideration in remedy-clause analysis.

It appears that the majority is assuming that, while 

the legislature may have the authority to alter the common 

law, there remains something of an irreducible quantum of 

interests formerly protected by the common law that must 

remain protected. I am at a loss to explain the source of such 

interests. Whether they are rooted in a notion of natural law 

(which, it seems to me, would be awfully close to the very 

“absolute” rights analysis that the majority says it rejects) 

or something similar, the majority does not explain.

Smothers, for all its faults, at least supplied a point 

of reference in defining the constitutionally irreducible minimum of rights in terms of common-law claims that existed 

at the time of the state’s founding. 332 Or at 124. The majority, however, does away with that, leaving in its place nothing but a bare reference to “core interests.”

It could be argued that the text of Article I, section 

10, supplies the “core interests” in declaring that everyone 

must have remedy by due course of law for injury to “person, 

property or reputation.” Nothing in the constitution, however, bars the legislature from redefining the nature of the 

“person” or the “property” or the “reputation” interests that 

are subject to protection.

Consider, for example, the common-law claims 

of alienation of affection and criminal conversation.17

Historically, the claims were rooted in the Anglo-Saxon idea 

17 The tort of alienation of affection finds its genesis in the early English 

common-law action of enticement, that is, inducing a woman to leave her husband 

through fraud, violence, or some other wrongful conduct. See generally W. Page 

Keeton, et al., Prosser and Keeton on the Law of Torts § 124 (5th ed 1984). The 

tort of criminal conversation similarly is rooted in the English claim of seduction, which required that the wife have engaged in adultery, without regard to 

whether she actually left her husband. Id. The torts initially were recognized 

in this country in 1866, Heermance v. James, 47 Barb 120, 127 (NY Gen Term 

1866), and ultimately were acknowledged by every state save Louisiana (which 

viewed marriage as a civil contract). See generally Michele Crissman, Alienation 

of Affections: An Ancient Tort—But Still Alive in South Dakota, 48 SD L Rev 518, 

520 (2003). Oregon came to recognize both torts. See, e.g., Saxton v. Barber, 71 

Or 230, 139 P 334 (1914) (alienation of affection); Pitman v. Bump, 5 Or 17 (1873) 

(criminal conversation).
Cite as 359 Or 168 (2016) 285

that married women were the property of their husbands. 

See generally Jill Jones, Fanning an Old Flame: Alienation 

of Affections and Criminal Conversation Revisited, 26 

Pepperdine L Rev 61, 75 (1998) (“[B]oth alienation of affection and criminal conversation were historically grounded 

in the property notions that wives were chattel.”).18 In 

the twentieth century, legislatures across the country—

including Oregon’s, see ORS 31.980 (“There shall be no civil 

action for alienation of affection.”); ORS 31.982 (“There shall 

be no civil cause of action for criminal conversation.”)—

abolished the claims entirely. See generally Jamie Heard, 

The National Trend of Abolishing Actions for Alienation of 

a Spouse’s Affection and Mississippi’s Refusal to Follow Suit, 

28 Miss C L Rev 313 (2009). State legislatures, in other 

words, redefined the nature of “property” interests that, in 

their judgment, deserve protection through civil actions for 

damages.19

No one doubts the constitutionality of that legislation. This court said as much in Noonan. 161 Or at 249 

(noting with approval that courts in other states had upheld 

the constitutionality of legislative abrogation of alienation of 

affection and like actions). The point is that the constitution, 

merely by declaring that everyone must have remedy by due 

course of law for injuries to “person, property or reputation,” 

doesn’t tell us what those terms irreducibly mean. To the 

contrary, at least to some extent, the legislature remains 

free to define them.

The majority appears to acknowledge the point in 

suggesting that, even if certain interests otherwise might 

be regarded as “core,” the legislature may constitutionally 

18 Blackstone, for instance, noted that a husband has a property interest in 

the “company, care, or assistance” of his wife. William Blackstone, 3 Commentaries

on the Laws of England 142-43 (1st ed 1768); see also Hipp v. DuPont, 182 NC 9, 

108 SE 318, 319 (1921) (“[T]he husband could maintain an action for the injuries 

sustained by his wife *** by reason of the fact that the wife was his chattel.”).

19 The “heartbalm” torts of alienation of affection and criminal conversation, 

by the way, are not the only examples. Quite a number of torts have fallen by the 

wayside over the last century, including a wife’s claim for damages arising out 

of a husband’s alcoholism, the claim of mishandling of a corpse, the tort of insult 

(separate from defamation), actions against “common scolds,” and certain aspects 

of nuisance law, among others. See generally Kyle Graham, Why Torts Die, 35 Fla 

St U L Rev 359, 364-73 (2008).
286 Horton v. OHSU

reevaluate them as having become, in effect, vestigial. But, 

once again, where the majority finds support for its analysis is unstated. It supplies no references in this court’s case 

law, and I am aware of none. Of particular concern to me is 

the fact that the majority doesn’t explain by what standard 

the bench and bar—and the legislature, it should not be

forgotten—is to evaluate when an interest may constitutionally be reconsidered and moved from being “core” to being 

of a lesser nature that no longer requires constitutional protection. The majority hints that “the reasons for the legislature’s actions can matter,” but it offers no clues about what 

sorts of reasons might matter. The hint sounds suspiciously 

like substantive due process analysis, under which legislation altering existing rights may be justified—depending on 

the nature of the rights involved—by a reasonable connection with legitimate state interests. See, e.g., Washington v. 

Glucksberg, 521 US 702, 720-21, 117 S Ct 2258, 138 L Ed 

2d 772 (1997) (setting out federal substantive due process 

analysis); MacPherson, 340 Or at 140 (applying same analysis). But, at this point, we can merely guess.

In my view, given the woeful state of the current 

remedy-clause case law, this court should not be satisfied 

with tinkering with only one aspect of that law. By overruling only the portion of Smothers that limits the remedy 

to claims existing in 1857, I fear the majority only makes 

matters worse. In effect, it returns us to the sort of caseby-case incrementalism that got us in trouble in the first 

place.

This court’s existing cases construing the remedy 

provision of Article I, section 10, cannot be squared with the 

text of the clause or its historical context. I would overrule 

those cases and hold that the provision protects against 

executive and legislative interference with judicial independence and access to the courts, but does not impose a limitation on the otherwise plenary authority of the legislature to 

determine rights and remedies. It is for that reason that the 

trial court erred in concluding that the cap on damages at 

issue in this case violated Article I, section 10. And it is for 

that reason that I concur in the result in this case as to the 

disposition of the parties’ remedy-clause claim.
Cite as 359 Or 168 (2016) 287

WALTERS, J., dissenting.

Together, Article I, section 10, and Article I, section 

17, ensure that an individual who suffers personal injury 

will have legal remedy for that injury, and that a jury will 

determine the extent of that injury and the monetary sum 

necessary to restore it. Together, those two provisions place 

coherent constitutional limitations on legislative action: The 

remedy clause precludes the legislature from denying remedy for personal injury, and the right to jury trial precludes 

the legislature from eliminating or interfering with the 

jury’s role in restoring that injury. But those two provisions 

also do more. They define what we mean when we use the 

word justice, and they make jurors its defender. Article I, 

section 10, stems from Lord Coke’s interpretation of the 

Magna Carta and his understanding that justice must be 

“full, because justice ought not to limp.” 359 Or at 200 

(translating Edward Coke, The Second Part of the Institutes 

of the Laws of England 55-56 (1797 ed)). Article I, section 

17, guarantees a right to a jury trial that is “one of the most 

important safeguards against tyranny which our law has 

designed.” Lee v. Madigan, 358 US 228, 234, 79 S Ct 276, 3 

L Ed 2d 260 (1959).

Today, the majority not only deprives the Horton 

family of the right to the restorative remedy that the jury 

awarded, it also bargains away and belittles two constitutional provisions designed to guarantee justice for all. I 

dissent.

I.

The remedy clause guarantees that “every man 

shall have remedy by due course of law for injury done him 

in his person, property, or reputation.” Or Const, Art I, § 10. 

In this case, no one contests that plaintiff’s son suffered 

injury to his person; the question is whether the legislature 

violated his right to remedy for that injury when it imposed 

a cap on his damages. The majority begins its analysis of 

that question with Smothers v. Gresham Transfer, Inc., 332 

Or 83, 23 P3d 333 (2001), a case that did not involve a damages cap. In fact, in Smothers, the court explicitly reserved 

the constitutionality of such caps for later decision. Id. at 

120 n 19. That decision came in Clarke v. OHSU, 343 Or 581, 
288 Horton v. OHSU

606, 175 P3d 418 (2007), and Clarke should have been the 

starting point for the court’s analysis here.

Before I explain how the majority should have used 

Clarke to resolve this case, I want to note my agreement 

with the majority’s clarification of the court’s decision in 

Smothers. I agree that the meaning of the remedy clause 

is not tied to its meaning in 1857. 359 Or at 187. That 

clarification is important, and it corrects the mistake that 

the court made in Howell v. Boyle, 353 Or 359, 298 P3d 1 

(2013). In Howell, the court interpreted Smothers to require 

a two-step process to determine whether the remedy clause 

is violated. Id. at 385-86. First, the court said in Howell, a 

court must ascertain the damages that the plaintiff would 

have received at common law; then, the court must compare 

those damages to the damages that the plaintiff received at 

trial. Id. at 385-86. If the plaintiff would have received less 

at common law than the plaintiff received at trial, then, the 

court explained, capped damages can be considered “fully 

restorative” of a common-law negligence claim. Id. at 386 

(internal quotation marks omitted). In reaching that conclusion, the court recognized that “it is exceedingly difficult to 

determine the state of Oregon law over 150 years ago,” but, 

it reasoned, “that is what Smothers requires.” Id.

If that case-within-a-case analysis is what Smothers 

requires, then it is important to disavow it. And it is equally 

important to disavow Howell. Howell was dependent on 

the same faulty reasoning that the majority identifies in 

Smothers, and, if the majority is correct that Smothers must 

be overruled because that court’s conclusion was dependent 

on faulty reasoning, then Howell, too, must be overruled. 

359 Or at 183. That leaves us with Clarke, a case that 

the majority in this case does not overrule and that is not 

dependent on the faulty reasoning present in Smothers and 

Howell.

In Clarke, this court considered whether the capped 

damages that the Oregon Tort Claims Act (OTCA) provided 

were sufficiently restorative to satisfy the requirements of 

Article I, section 10. 343 Or at 588. The court viewed the 

plaintiff’s economic damages of over $12 million as “representative of the enormous cost of lifetime medical care 
Cite as 359 Or 168 (2016) 289

currently associated with [the] permanent and severe 

personal injuries” that defendants had caused, and held 

that the capped damages available under the OTCA were 

insufficient and violated the remedy clause. Id. at 609-10. 

That analysis should have compelled the same result here. 

Plaintiff’s economic damages of over $6 million are similarly “representative of the enormous cost of lifetime medical care currently associated with [the] permanent and 

severe personal injuries” that defendants caused. Id. at 609. 

And the capped damages available to plaintiff in this case 

are nowhere near capable of restoring those injuries. This 

court should have held that the limited remedy available to 

plaintiff was not sufficiently restorative to meet Article I, 

section 10, requirements.

The majority reasons otherwise. According to the 

majority, the disavowal of Smothers leaves us with all of 

the decisions in our remedy clause cases except Smothers,

and the three categories into which the majority says those 

cases fall. This case, the majority says, falls into the second

category—the category in which the legislature does not 

alter a defendant’s duty to exercise reasonable care but limits a plaintiff’s remedy for breach of that duty as part of a 

“comprehensive statutory scheme intended to extend benefits to some persons while adjusting the benefits to others.” 

359 Or at 221. For that category of cases, the majority 

opines, providing an “insubstantial remedy for a breach of a 

recognized duty” may violate the remedy clause. 359 Or at 

219. However, the majority explains, when the legislature 

has sought to “adjust” a person’s rights and remedies “as 

part of a larger statutory scheme that extends benefits to 

some while limiting benefits to others,” a court can consider 

that “quid pro quo” in determining whether the remedy 

clause is violated. Id.

I agree with the majority that, to satisfy Article I, 

section 10, the remedy that the legislature provides cannot 

be “insubstantial.” By that, I take the majority to mean that 

the legislative remedy must be substantially restorative. As 

this court said in Clarke, “Article I, section 10, does not eliminate the power of the legislature to vary and modify both 

the form and the measure of recovery for an injury, as long 
290 Horton v. OHSU

as it does not leave the injured party” with a remedy “that 

is incapable of restoring the right that has been injured.” 

343 Or at 606 (internal quotation marks omitted). The court 

arrived at that understanding of the remedy clause by looking at its words and this court’s prior cases. When Article I, 

section 10, was drafted, the word “remedy” meant, among 

other things “that which counteracts an evil of any kind,” 

and “that which repairs loss or disaster.” Noah Webster, An 

American Dictionary of the English Language 837 (1854). 

And since 1925, this court has held that the right to a remedy precludes the legislature from taking an individual’s 

right to “a good common-law remedy for a private injury 

committed by a private citizen” and giving that individual 

a remedy that is “wholly inadequate” to its purpose. West v. 

Jaloff, 113 Or 184, 194-95, 232 P 642 (1925).

The overruling of Smothers neither compels nor permits a different conclusion. The words of the remedy clause 

continue to have substantially the same meaning that they 

had at common law, see Webster’s Third New Int’l Dictionary 

1920 (unabridged ed 2002) (defining “remedy”), and West 

and Clarke are still good law. West was decided before 

Smothers; Clarke discusses Smothers, but does not rely on 

the Smothers analysis that the majority here disavows. 

Clarke, 343 Or at 605-06. Accordingly, the proper remedy 

clause inquiry continues to be whether a statutory limitation on damages leaves the plaintiff with a remedy that is 

“incapable of restoring the right that has been injured.” Id. 

at 606 (internal quotation marks omitted; quoting Smothers, 

332 Or at 119-20).

The majority does not reason otherwise. Instead, 

the majority relies on the second consideration that it finds 

applicable to this category of cases—the quid pro quo that 

results when the legislature has sought to adjust a person’s 

rights and remedies as “part of a larger statutory scheme 

that extends benefits to some while limiting benefits to 

others.” 359 Or at 219. Relying on only one case for that 

proposition, Hale v. Port of Portland, 308 Or 508, 523, 783 

P2d 506 (1989), the majority concludes that, in this case, 

the state’s constitutionally recognized interest in sovereign 

immunity justifies the cap on plaintiff’s damages. 359 Or at 

224.
Cite as 359 Or 168 (2016) 291

In Clarke,the court did not consider the state’s interest in sovereign immunity in its analysis and cited Hale only 

to distinguish it. 343 Or at 608-09. In this case, the majority 

should have followed suit. As the court explained in Clarke, 

the statute that the court upheld in Hale limited the size 

of the award that a plaintiff could obtain from a municipal 

defendant, but it did not limit a plaintiff’s right to obtain 

a fully compensatory award from municipal employees.1 Id. 

Consequently, the plaintiff in Hale was entitled to a remedy 

capable of restoring his injuries, and the court had no cause 

to hold, and did not hold, that the legislature could deprive 

an individual of the right to a restorative remedy to extend 

a benefit to others. Hale, 308 Or at 523-24. In Hale, the court 

described the applicable limitation on damages as widening 

the class of plaintiffs who could recover for injuries against 

an otherwise immune municipality while at the same time 

imposing “a counterbalancing” limit on the size of the award 

that could be recovered. Id. at 523. However, that description of the statute did not represent the holding of the case. 

In fact, what the court said in Hale was that “all who had a 

remedy continue to have one.” Id. The majority in this case is 

wrong in departing from the interpretation of Hale provided 

by the unanimous court in Clarke.

The majority then compounds that error when it 

broadly reasons that the legislature may “extend[] an assurance of benefits to some while limiting benefits to others,” 

359 Or at 224, effecting a “quid pro quo,” 359 Or at 225. 

The remedy clause grants an individual right, not a bargaining chip. This court has never held, in this or any other 

context, that the legislature may bargain away an individual constitutional right for something of benefit to others, 

and the majority jeopardizes all individual rights by starting down that path.2

1 The case that the court in Hale cited in support of its conclusion was 

Noonan v. City of Portland, 161 Or 213, 88 P2d 808 (1939), a case in which the 

court upheld a charter provision that made city employees liable for negligence, 

but granted immunity to the city itself.

2 I do not mean to suggest that the legislature is precluded from providing all 

injured persons with a substituted restorative remedy that is different from the 

remedy available at common law. What I mean is that the legislature is precluded 

from providing one injured person with a less than restorative remedy to extend 

benefits of constitutional dimension to others.
292 Horton v. OHSU

And even if a bargain such as that described in Hale

were permitted, no such bargain is provided or permitted 

here. In this case, the OTCA does not provide this plaintiff or 

this class of plaintiffs with a benefit of constitutional dimension such as that provided in Hale. This plaintiff’s claim is 

a claim against a governmental employee.3

 Governmental 

employees are not entitled to sovereign immunity, and, 

absent the OTCA, all plaintiffs injured by governmental 

employees would have claims against those employees for 

unlimited damages. See Gearin v. Marion County, 110 Or 

390, 396-97, 223 P 929 (1924) (county employees not entitled 

to sovereign immunity). The OTCA does not widen the class 

of plaintiffs entitled to sue that class of defendants. Thus, 

the constitutional benefit that was described in Hale—the 

widening of the class of plaintiffs who could sue the relevant 

class of defendants (there, municipalities)—is not present 

here. Hale, 308 Or at 523.

The OTCA also does not provide plaintiffs with a 

benefit of practical consequence. The OTCA does permit 

plaintiffs to recover from governmental entities but limits 

the amount that plaintiffs may recover from those entities. 

Plaintiffs’ common-law right against individual governmental employees is a right to unlimited damages. An exchange 

of that right for the right, under the OTCA, to seek a more 

limited remedy from a governmental entity may or may not 

be of practical value to this class of plaintiffs. For instance, 

in this case, the state’s waiver of immunity and its duty to 

indemnify defendant did not confer a benefit that plaintiff 

would not have had but for the OTCA. Like all physicians, 

defendant here had his own liability insurance. Absent the 

OTCA, that insurance would have been available to cover 

the costs of defendant’s negligence.4

3 Plaintiff’s claim at issue on appeal is a claim against a state employee. 

Plaintiff also brought a claim against OHSU, but the trial court ruled that, 

because sovereign immunity applies to OHSU, the legislature constitutionally 

may limit the damages for which OHSU is liable. See Clarke, 343 Or at 600 (so 

holding). Plaintiff’s claim against OHSU is not at issue on appeal.

4 Although the majority labels defendant’s transection of blood vessels “inadvertent[],”359 Or at 171, and although defendant’s act was certainly not intentional, it is more correct to acknowledge that defendant’s act was negligent. The 

purpose of liability insurance is to ensure that the costs of a tortfeasor’s negligence are not borne by the person whom the tortfeasor injures.
Cite as 359 Or 168 (2016) 293

Furthermore, a plaintiff’s ability to collect a judgment is not a benefit of constitutional dimension and can 

have no place in the court’s constitutional analysis. See 

Oregonian Publishing Co. v. O’Leary, 303 Or 297, 305, 736 

P2d 173 (1987) (witness’s interest in secrecy is not of constitutional dimension in Article I, section 10, analysis); Mattson 

v. Astoria, 39 Or 577, 580-81, 65 P 1066 (1901) (when plaintiff has claim against individual employee, plaintiff is not 

wholly without remedy); Batdorff v. Oregon City, 53 Or 402, 

408-09, 100 P 937 (1909) (same).

The majority does not grapple with those concerns. 

Instead, the majority focuses on the benefit that the state

receives in the bargain. The majority explains that the 

OTCA “accommodates the state’s constitutionally recognized 

interest in asserting its sovereign immunity with the need to 

indemnify its employees.” 359 Or at 222 (emphasis added). 

It is true that the state has a constitutional interest in sovereign immunity, but its choice to indemnify its employees is 

a choice of practical, and not of constitutional, significance. 

The state is immune from suit because it is a sovereign. 

By design, sovereign immunity does not extend to state 

employees; state employees, including those who perform 

important, high-risk functions, are liable for their torts. See 

Gearin, 110 Or at 396 (county employees). Thus, although 

the state can act only through its agents and employees, the 

individual liability of state employees is an inherent limitation on the state’s immunity. The state may choose to assure 

its employees that they will be indemnified for their negligence, but it does not need to do so. Private employers, by 

law, are vicariously liable for the torts of their employees. 

Minnis v. Oregon Mutual Ins. Co., 334 Or 191, 201, 48 P3d 

137 (2002). Although the state may wish to compete with 

private employers by placing itself on the same footing, its 

voluntary choice to do so is not an interest of constitutional 

dimension.

The idea that the Oregon Constitution permits the 

legislature to bargain away a plaintiff’s constitutional right 

to remedy in these circumstances is so repugnant that I 

wonder whether the majority means to endorse it. Perhaps, 

instead, what the majority intends to endorse is balancing—
294 Horton v. OHSU

a weighing of the competing individual and state constitutional interests. Balancing may seem more acceptable 

than bargaining, but it has no greater textual support 

in Article I, section 10, and it has the same potential to 

trump and thereby trample constitutional rights. Until 

this day, a bedrock of our constitutional jurisprudence 

has been that “a state legislative interest, no matter how 

important, cannot trump a state constitutional command.” 

State v. Stoneman, 323 Or 536, 542, 920 P2d 535 (1996). 

In Oregonian Publishing Co., 303 Or at 302, this court said 

that “[s]ection 10 is written in absolute terms; there are 

no explicit qualifications to its command that justice shall 

be administered openly.” As a result, the court rejected the 

idea that it was appropriate to balance the secrecy interests of a witness who would be compelled to testify at a 

hearing against the interests of those who sought an open 

court. Id. at 305. The same is true of section 10’s guarantee 

that “every” person “shall” have remedy for personal injury. 

That guarantee is written in absolute terms and should not 

be subject to balancing.

If that is what the majority intends, then, in its stare 

decisis analysis, the majority should, at the very least, have 

acknowledged the fundamental change that it is making 

and provided a firm basis for its departure. And the majority 

should candidly have explained how the constitutional right 

to remedy, which this court described in Gearin, 110 Or at 

396, as “one of the most sacred and essential of all the constitutional guaranties” without which “a free government 

cannot be maintained or individual liberty be preserved,” 

will be given the weight necessary to ensure that it is not 

easily overborne by the interests of the day.

The majority reassures us that its holding in this 

case is limited to cases in which the OTCA is applicable—

cases in which the state has a constitutional interest in sovereign immunity. The majority also expresses no opinion on 

whether damages caps which do not implicate the state’s sovereign immunity and are not a part of the quid pro quo that 

the majority sees in the OTCA would comply with Article I, 

section 10. 359 Or at 225-26. And even when the OTCA 

applies, the majority “doubt[s] highly” that the legislature’s 

interest in sovereign immunity would justify a damages cap 
Cite as 359 Or 168 (2016) 295

that results in a plaintiff receiving a “paltry fraction” of the 

damages that the plaintiff incurred. 359 Or at 224 n 28.

That handle of hope is helpful, but it does little for 

plaintiff and her son, Tyson, and those who suffer similar 

tragic consequences at the hands of governmental employees.5

 And it does little for those who are unable to determine, 

before a jury renders its verdict, what fraction of damages 

the statutory cap on damages will represent, and therefore 

whether or not a defendant’s liability will be limited. As the 

Chief Justice has written,

“Although balancing provides flexibility to courts in 

making their determinations, it can result in ad hoc decisions that are unpredictable and that provide little guidance to citizens, government officials, and lower courts.”

Thomas A. Balmer & Katherine Thomas, In the Balance: 

Thoughts on Balancing and Alternative Approaches in State 

Constitutional Interpretation, 76 Alb L Rev 2027, 2046 

(2013).

Apparently what the majority envisions in future 

cases is post hoc weighing that will make the validity of 

statutory limitations dependent on (1) the fraction produced 

by dividing a plaintiff’s limited damages by the damages 

that the jury assessed and (2) a judicial assessment of the 

importance of the state’s constitutional interest in imposing 

the limitation. That post hoc weighing obviously satisfies a 

majority of this court, but it is a far cry from the absolute 

guarantee that Article I, section 10, provides.

And the majority’s post hoc weighing is not the only 

way to give effect to the proposition that Article I, section 

10, does not guarantee a perfect remedy. In Clarke, the court

recognized that, although Article I, section 10, places limits 

on legislative authority, it also permits the exercise of that 

authority within constitutional bounds. If the legislature 

were to provide for a restorative, although imperfect, remedy in a way that would be equally restorative to all injured 

persons, it is possible that its exercise of authority would 

5 In this case, Tyson’s undisputed past medical costs alone were more than 

$4 million; Tyson requires ongoing care and, despite receiving payment of the 

capped amount, Tyson’s parents owe $2.6 million for Tyson’s past medical care.
296 Horton v. OHSU

be upheld. But a monetary cap on damages does not have 

the same restorative effect for all persons regardless of the 

degree of injury, and it therefore does not meet the dictates 

of Article I, section 10, in instances in which it permits some 

a perfect remedy and others a pittance.

I recognize the many dilemmas that the state legislature faces and its intention to enact laws for the common good. That is the legislature’s job. But it is the court’s 

job to ensure that the legislature’s well-intended efforts do 

not result in the loss of individual rights. A court cannot

“‘balance’ one person’s rights with cumulated majoritarian interests” without “fl[ying] in the face of the premise 

of constitutionally guaranteed individual rights against 

the state.” State v. Tourtillott, 289 Or 845, 881, 618 P2d 423 

(1980) (Linde J., dissenting). This court’s duty is to ensure 

that the legislature’s laudable intent to benefit the many 

does not trump and trample the rights of the one. We do not 

fulfill that duty in this case.

II.

The leading case for the proposition that Article I, 

section 17, precludes the legislature from eliminating or 

interfering with the jury’s fact-finding function is Molodyh v. 

Truck Insurance Exchange, 304 Or 290, 744 P2d 992 (1987). 

The majority endorses and does not overrule that case. In 

Molodyh, the court held that Article I, section 17, precludes 

the legislature from eliminating the jury’s fact-finding function by giving an insurer the right to have a panel of three 

appraisers decide the amount of loss in a contract case, 

rather than leaving that task to a jury. Id. at 295-97. In 

Lakin v. Senco Products, Inc., 329 Or 62, 82, 987 P2d 463 

(1999), this court relied on Molodyh and held that Article I, 

section 17, also precludes the legislature from interfering 

with the jury’s fact-finding function by requiring a court to 

enter judgment for a pre-determined amount rather than 

the amount determined by the jury.

Neither Molodyh nor Lakin limits the legislature’s 

authority to alter or adjust a party’s legal claim; both stand 

for the proposition that, when a plaintiff has a legal claim, 

it is the jury, and not the legislature or persons designated 

by the legislature, that must decide the facts of that claim. 
Cite as 359 Or 168 (2016) 297

Molodyh, 304 Or at 296-97; Lakin, 329 Or at 71. In Jensen 

v. Whitlow, 334 Or 412, 422, 51 P3d 599 (2002), the court 

explained Lakin in precisely those terms:

“[B]ecause the plaintiffs had the right to bring a civil action 

to which the right to a jury trial was attached, Article I, 

section 17, prohibited the legislature from interfering with 

or interrupting that right by imposing a cap on the amount 

of noneconomic damages that the jury could award.”

(Emphasis added.)

To overrule Lakin, the majority instead reads that 

case as holding that Article I, section 17, provides a constitutional right to compensatory damages and precludes the legislature from prescribing the elements of a claim, including 

recoverable damages. 359 Or at 243-44. To demonstrate 

that Article I, section 17, does not preclude that law-making 

authority, the majority cites Hale v. Groce, 304 Or 281, 284, 

744 P2d 1289 (1987), and Fazzolari v. Portland School Dist. 

No. 1J, 303 Or 1, 17, 734 P2d 1326 (1987), for the proposition 

that courts have authority to limit the class of persons to 

whom a defendant owes a duty and to require that recoverable damages be foreseeable. 359 Or at 244-45. From 

that judicial authority, the majority apparently reasons that 

the legislature can impose comparable limits. I do not disagree. Subject to constitutional limits other than Article I, 

section 17, both the court and the legislature have authority to define the elements of a tort claim and to determine 

the types of damages that are recoverable. But that is not 

what the legislature did when it adopted the damages cap at 

issue here. The statute under scrutiny in this case does not 

change the elements of a common-law claim or determine 

the types of recoverable damages; it requires that a court 

enter judgment for an amount of damages different than the 

amount awarded by a jury. ORS 30.269(3). It is one thing to 

say, correctly, that the court and the legislature can change

the common law; it is quite another to say that the legislature can preclude a plaintiff from obtaining the benefit of a 

jury’s award under existing common law.

Under the common law as it exists today, a plaintiff who is physically injured by a negligent defendant has a 

common-law tort claim and may recover damages sufficient 
298 Horton v. OHSU

to compensate the plaintiff for the economic and noneconomic losses caused by the defendant’s negligence. See, e.g., 

Lakin, 329 Or at 73; Smitson v. Southern Pac. Company, 

37 Or 74, 95-96, 60 P 907 (1900); Oliver v. N. P. T. Co., 3 

Or 84, 88 (1869). Accordingly, in this case, the trial court 

instructed the jury that “[y]ou must decide the amount of 

plaintiff’s damages”; that “plaintiff must prove economic 

and non-economic damages by a preponderance of the evidence”; that “[t]he total amount of economic damages may 

not exceed the sum of $17,678,681”; and that “[t]he amount 

of non-economic damages may not exceed the sum of

$15 million.” And, in this case, the jury returned with a 

verdict for plaintiff in the sum of $12,071,190.38. Article I, 

section 17, precludes the legislature from interfering with 

that verdict, which was entered in accordance with existing 

common law.

That that is true is clear not only from Article I, 

section 17, but also from Article VII (Amended), section 3, 

which provides:

“In actions at law, where the value in controversy shall 

exceed $750, the right of trial by jury shall be preserved, 

and no fact tried by a jury shall be otherwise re-examined 

in any court of this state, unless the court can affirmatively 

say there is no evidence to support the verdict.”

As the majority correctly recognizes, that section’s purpose 

is “to eliminate, as an incident of a jury trial in this state, 

the common-law power of a trial court to re-examine the 

evidence and set aside a verdict because it was excessive or in 

any other respect opposed to the weight of the evidence.” 359 

Or at 253 (emphasis added; internal quotation marks and 

citation omitted). That constitutional provision precludes a 

trial court from instructing a jury to award a plaintiff her 

economic and noneconomic damages and then, after the verdict is rendered, setting aside the verdict because it exceeds 

some sum, that, in the court’s view, renders it excessive. Van 

Lom v. Schneiderman, 187 Or 89, 95-97, 210 P2d 461 (1949). 

It also precludes an appellate court from setting aside or 

modifying a jury’s factual determination of damages following a fair trial. Tenold v. Weyerhaeuser Co., 127 Or App 

511, 523, 873 P2d 413 (1994). In either instance, a court’s 
Cite as 359 Or 168 (2016) 299

nullification of a jury’s finding of damages would violate 

both Article VII (Amended), section 3, and Article I, section 

17. And the legislature cannot instruct a court to do what 

the constitution forbids. Such an instruction constitutes an 

unlawful interference with the jury’s fact-finding function.

A damages cap is not the same as a legal rule that a 

defendant does not owe a duty to a particular class of plaintiffs or that damages must be foreseeable. A damages cap 

is nothing more than an arbitrary decision that, although 

a plaintiff has sustained damages measured according to 

existing legal principles in an amount assessed by the jury, 

those damages are excessive and must be reduced.

Courts in other jurisdictions agree and have held 

that, although a state legislature has authority to make or 

amend the common law, the constitutional right to jury trial 

precludes the legislature from interfering with a jury’s factfinding role by reducing a jury’s factual determination of 

damages to a predetermined amount. In Sofie v. Fibreboard 

Corp., 112 Wash 2d 636, 656, 771 P2d 711, 721-22 (1989), 

the Washington Supreme Court rested its decision on the 

word “inviolate” in Article 1, section 21, of the Washington 

Constitution. The court explained that

“the plain language of [A]rticle 1, section 21[,] provides 

the most fundamental guidance: ‘The right of trial by 

jury shall remain inviolate.’ The term ‘inviolate’ connotes 

deserving of the highest protection. Webster’s Third New 

International Dictionary 1190 (1976), defines ‘inviolate’ 

as ‘free from change or blemish: pure, unbroken *** free 

from assault or trespass: untouched, intact * **.’ Applied 

to the right to trial by jury, this language indicates that 

the right must remain the essential component of our legal 

system that it has always been. For such a right to remain 

inviolate, it must not diminish over time and must be protected from all assaults to its essential guarantees. In 

Washington, those guarantees include allowing the jury to 

determine the amount of damages in a civil case.”

Id.

The Washington Supreme Court responded to the 

argument that a damages cap was a permissible exercise of the 

legislature’s law-making power by citing the following passage 
300 Horton v. OHSU

from a federal district court as providing “insightful distinctions between what the [l]egislature can and cannot do”:

“Unquestionably, the legislature may pass measures 

which affect the way a jury determines factual issues. The 

legislature may prescribe rules of procedure and evidence, 

create legal presumptions, allocate burdens of proof, and 

the like. Just as certainly, the legislature may abolish a 

common law right of action and, if it desires, replace it with 

a compensation scheme. The legislature may even make 

rules concerning the type of damages recoverable and the 

way in which damages are paid. But the legislature may 

not preempt a jury’s findings on a factual issue which has 

properly been submitted to the jury.”

Id. at 657, 771 P2d at 722 (internal quotation marks omitted; quoting Boyd v. Bulala, 647 F Supp 781, 789-90 (WD 

Va 1986)). The Washington Supreme Court agreed and 

expressed the same thought this way:

“It is entirely within the [l]egislature’s power to define 

parameters of a cause of action and prescribe factors to 

take into consideration in determining liability. This is 

fundamentally different from directly predetermining the 

limits of a jury’s fact-finding powers in relevant issues, 

which offends the constitution.”

Id. at 666, 771 P2d at 727. A contrary argument, the court 

explained,

“ignores the constitutional magnitude of the jury’s factfinding province, including its role to determine damages. 

[To argue contra is to assert] that the right to trial by jury 

is not invaded if the jury is allowed to determine facts which 

go unheeded when the court issues its judgment. Such an 

argument pays lip service to the form of the jury but robs 

the institution of its function. This court will not construe 

constitutional rights in such a manner. As we once stated: 

‘The constitution deals with substance, not shadows. Its 

inhibition was leveled at the thing, not the name [** *]. If 

the inhibition can be evaded by the form of the enactment, 

its insertion in the fundamental law was a vain and futile 

proceeding.’”

Id. at 656, 771 P2d at 721 (quoting State v. Strasburg, 60 

Wash 106, 116, 110 P 1020, 1023 (1910)) (internal quotation 

marks from Strasburg omitted).
Cite as 359 Or 168 (2016) 301

This court adopted that analysis in Lakin and did 

so after considering and rejecting the defendant’s position 

that a damages cap was but a declaration of the legal consequences of facts, and not an interference with the jury’s 

authority to decide the facts.6

 329 Or at 79-80. Before it 

reached its conclusion, the court also considered cases from 

other jurisdictions that supported the defendant’s view; the 

court gave those cases its attention but was satisfied that 

the conclusion that it reached was “supported by the betterreasoned authorities.” Id. at 81.

Today, those authorities include a number of cases 

that the Lakin court did not have the opportunity to consider. In some of those cases, the courts, like the courts in 

Sofie and Lakin, have noted the plain meaning of the word 

“inviolate.”7

 And in one of those cases, the court states succinctly what this court said in Lakin and should continue 

to say: A damages cap “nullifies the jury’s findings of fact 

regarding damages and thereby undermines the jury’s basic 

function.” Atlanta Oculoplastic Surgery, P.C. v Nestlehutt, 

286 Ga 731, 735, 691 SE2d 218 (2010).

I realize that other courts have reached different 

conclusions, but I point to the cases that support this court’s 

decision in Lakin to spotlight the fact that the differing conclusions that courts reach arise from differences about what 

does or does not constitute a nullification of, or interference 

with, the jury’s fact-finding function, not from differences 

about the jury’s constitutional role as factfinder.

In this case as well, the difference between the 

majority’s analysis and the analysis of the unanimous court 

in Lakin is not found in differences about the text or history of Article I, section 17, and the jury’s role as factfinder. 

Like the majority in this case, the court in Lakin cited to 

Blackstone for the proposition that the jury trial was considered “the glory of the English law.” 359 Or at 235 (quoting 

6 See Petitioner’s Opening Brief at 11, Lakin v. Senco Products, Inc., 329 Or 

62, 987 P2d 68 (1999) (S044110) (“Juries do not determine the legal consequences 

of the facts they find.”).

7 Those cases include Watts v. Lester E. Cox Med. Ctr., 376 SW3d 633 (Mo 

2012); Knowles v. United States, 544 NW2d 183 (SD 1996; and Moore v. Mobile 

Infirmary Ass’n, 592 So 2d 156 (Ala 1991).
302 Horton v. OHSU

Lakin, 329 Or at 70). Lakin also quoted from Dimick v. 

Schiedt, 293 US 474, 485-86, 55 S Ct 296, 79 L Ed 603 

(1935), for the proposition that the right to jury trial is a 

right to have a jury serve as a fact-finding body:

“[T]rial by jury has always been, and still is, generally 

regarded as the normal and preferable mode of disposing 

of issues of fact in civil cases at law as well as in criminal cases. Maintenance of the jury as a fact-finding body

is of such importance and occupies so firm a place in our 

history and jurisprudence that any seeming curtailment 

of the right to a jury trial should be scrutinized with the 

utmost care.”

329 Or at 71 (emphasis added; internal quotation marks 

omitted). Although the majority provides additional history 

demonstrating that the right to have a jury determine the 

facts in a civil case was of significance not only to Blackstone 

and to the Britons but also to the colonists, and that the 

framers were aware that judges and legislators retained the 

power to make law, the majority’s history goes no further. 

For instance, that history does not indicate that the drafters 

of Article I, section 17, or its federal counterpart affirmatively intended to permit damages caps. Damages caps did 

not exist at common law; they are a modern innovation. Nor 

does that history indicate that the drafters were affirmatively unconcerned with judicial or legislative encroachment 

on the jury’s fact-finding role, or that they considered that 

role to be insignificant.

The source that the majority most relies on in its 

review of the history of the civil right to jury trial is Charles 

W. Wolfram, The Constitutional History of the Seventh 

Amendment, 57 Minn L Rev 639 (1973). In that article, 

the author examines historical materials in an attempt to 

determine what the proponents of the Seventh Amendment 

sought to accomplish by its adoption, and, although recognizing certain methodological constraints, reaches a number 

of significant conclusions. Specifically, the author concludes 

that “it is clear that the amendment was meant by its proponents to do more than protect an occasional civil litigant 

against an oppressive and corrupt federal judge—although 

it certainly was to perform this function as well.” Id. at 653. 

Rather, “[t]here was a substantial sentiment to preserve a 
Cite as 359 Or 168 (2016) 303

supposed functioning of the jury that would result in ad hoc 

‘legislative’ changes through the medium of the jury’s verdict.” Id. “Juries,” the author concludes, “were sought to be 

thrust into cases to effect a result different from that likely 

to be obtained by an honest judge sitting without a jury.” 

Id. In fact, the author opines, “[t]he effort was quite clearly 

to require juries to sit in civil cases as a check on what the 

popular mind might regard as legislative as well as judicial 

excesses.” Id.

The majority does not disagree. All that is new in 

the majority’s analysis is this: The Lakin court judged the 

damages cap at issue in that case to be an interference with 

a jury’s factual assessment of damages; the majority in this 

case considers the imposition of a damages cap to be within 

the legislature’s law-making power. That difference is apparent, but it cannot be explained by the majority’s expanded 

historical analysis.

Nor can it be explained by the majority’s discussion 

of our decisions in cases other than Lakin. Molodyh precludes legislative interference with the jury’s fact-finding 

function, and Lakin is in accord. To the majority’s point that 

DeMendoza v. Huffman, 334 Or 425, 51 P3d 1232 (2002), a 

case decided after Lakin and that distinguishes Lakin, provides a basis for now overruling it, I question whether the 

majority is wise to give this and future courts that liberal 

a leash. The rule of stare decisis is essential to the public’s 

confidence that the law is more than a reflection of personal 

preference, and the public’s confidence in the law is the fragile foundation on which our system of justice rests.

In relying on DeMendoza to overrule Lakin, the 

majority points to its statement that, if a right to receive 

an award that reflects the jury’s determination of the full 

amount of damages exists, “then it must arise from some 

source other than Article I, section 17.” 359 Or at 229 

(internal quotation marks omitted; quoting DeMendoza, 

334 Or at 447). The majority contends that, in that regard, 

DeMendoza “cannot be fairly reconciled with Lakin.” 359 Or 

at 231. But in DeMendoza, the court reaffirmed the court’s 

conclusion in Lakin that a plaintiff had a right to compensatory damages that arose from a source other than Article I, 
304 Horton v. OHSU

section 17. 334 Or at 447. The court explained that the right 

to receive an award of compensatory damages that reflects a 

jury’s determination of those damages arises from the existing common-law right to compensatory damages together 

with the right, under Article I, section 17, to have a jury 

determine the amount of those damages. Id. at 446-47. In 

DeMendoza, the court contrasted a plaintiff’s right to receive 

jury-awarded compensatory damages with a plaintiff’s right 

to receive jury-awarded punitive damages and concluded 

that a plaintiff has no right to the latter. Id. at 447. Perhaps 

the court’s reasoning was that Article I, section 10, provides 

a plaintiff with a right to consequential damages, which are 

necessary to restore a plaintiff’s injury, but not to punitive 

damages, which are awarded to deter wrongful conduct.8

 Or 

perhaps the court was incorrect in treating compensatory 

and punitive damages differently in its Article I, section 17, 

analysis. But whatever its reasoning, DeMendoza and Lakin 

consistently recognize that a plaintiff does have a right to 

receive jury-awarded compensatory damages. The two cases 

are not at odds in that regard.

Furthermore, the statute at issue in DeMendoza—

ORS 18.540—provided that a portion of the damages 

assessed by a jury would be distributed to the state. In holding that that statute did not violate Article I, section 17, or 

Article VII (Amended), section 3, the court distinguished 

not only between punitive and compensatory damages, but 

also between caps and the distribution scheme found in ORS 

18.540. Id. at 447-48. The court reasoned that the effect of 

ORS 18.540 was not to modify a jury’s assessment of punitive damages but, instead, to modify the way in which those 

damages were distributed. Id. at 447. The distribution of 

damages, the court said, “is not a factual determination that 

a jury makes.” Id. (emphasis in original). The court may 

have been discussing Article VII (Amended), section 3, when 

it gave that explanation, but its distinction applies equally 

to Article I, section 17.

8 The majority refuses to so interpret DeMendoza because, it says, the court 

in Lakin considered Article I, section 10, irrelevant to its Article I, section 17, 

analysis. 359 Or at 230. That Lakin may not have recognized the relevance of 

Article I, section 10, in its analysis, however, is no reason to overrule its holding. 

DeMendoza did not do so.
Cite as 359 Or 168 (2016) 305

The majority is wrong to conclude that the court’s 

decision in DeMendoza “cannot be fairly reconciled with 

Lakin,” 359 Or at 231, and the majority aggravates that 

error by using that standard to overrule Lakin. When, in 

Couey v. Atkins, 357 Or 460, 520, 355 P3d 866 (2015), a unanimous court disavowed Yancy v. Shatzer, 337 Or 345, 97 P3d 

1161 (2004), in favor of Kellas v. Dept. of Corrections, 341 Or 

471, 145 P3d 139 (2006), it determined that “if Yancy was 

correctly decided, then it would seem necessarily to follow 

that ORS 14.175 is unconstitutional. But if Kellas applies, 

there would seem to be no constitutional impediment to 

the legislature conferring the authority to review otherwise moot cases that are capable of repetition, yet evading 

review.” Couey, 357 Or at 489. Yancy and Kellas were diametrically opposed; the same cannot be said for Lakin and 

DeMendoza. In DeMendoza, the court was well aware of its 

decision in Lakin and reaffirmed and distinguished it. Here, 

the majority not only fails to follow Lakin, it also fails to 

follow DeMendoza and its recognition that a plaintiff has a 

right to receive an award that reflects the jury’s determination of compensatory damages.

Nor can the court’s decision in Hughes v. PeaceHealth, 

344 Or 142, 178 P3d 225 (2008), constitute a basis for overruling Lakin. In Hughes, the plaintiff brought a statutory 

claim for wrongful death and challenged the statutory limitation on damages on both remedy clause and jury trial 

grounds. Id. at 145. The majority reasoned that the plaintiff 

had no right to remedy under Article I, section 10, because, 

under Smothers, the plaintiff had failed to persuade the 

court that she would have had a wrongful death claim at 

common law. Id. at 152. In this case, the majority overrules 

Smothers and, thus, the premise for the court’s decision in 

Hughes. The majority should not give effect to Hughes or use 

it as a basis for overruling Lakin. In addition, like the court 

in DeMendoza, the court in Hughes distinguished Lakin. 

Id. at 154. If the majority is going to give effect to Hughes, 

it also should give effect to the distinction that it drew. In 

Hughes, the court explained that because the plaintiff had 

no right to recover any damages under Article I, section 10, 

the plaintiff’s right to have a jury determine the amount 

of his damages was not violated. Id. at 155-57. If the court 
306 Horton v. OHSU

was correct in that reasoning, its decision does not call the 

result in Lakin into question or compel a different result in 

this case. In Lakin, unlike in Hughes, the plaintiff had a 

right to a remedy under Article I, section 10, and the same is 

true of plaintiff here. The majority departs from the rule of 

stare decisis when it fails to follow Lakin, and it errs in using 

Hughes to do so.

The principle of stare decisis does not fulfill its purpose if we reconsider at will the decisions and distinctions 

of prior courts. Instead, we should assume that our “fully 

considered prior cases are correctly decided” unless we can 

say that the constitutional rule at issue “was not formulated 

either by means of the appropriate paradigm or by some 

suitable substitute.” State v. Ciancanelli, 339 Or 282, 290-

91, 121 P3d 613 (2005). A majority of the present court may 

disagree with the result that the unanimous court reached 

in Lakin, but it cannot say that that standard has been met 

here.

Moreover, the majority did not have to overrule 

Lakin to make clear that the right that Article I, section 17, 

grants is a procedural right to have a jury decide the facts in 

a case and not a right to a particular common-law claim or 

to unlimited damages. It was unnecessary for the majority 

to erect and topple a straw man to reach that conclusion. 

And more importantly, the fact that the right to jury trial is 

a procedural right does not take anything from it. The procedural right to jury trial guarantees that plain people will 

decide the facts of a case. It is more than a right to have a 

jury empanelled; it is a right to have a jury perform its factfinding function without interference.

The court that decided Molodyh would not have 

permitted the legislature to write its way around Article I, 

section 17, by enacting a law that permitted the parties 

to an insurance contract to try their case to a jury, but 

then required the court to enter judgment for the damages determined not by the jury, but by three appraisers. 

And this court should not permit the legislature to write 

its way around Article I, section 17, by enacting a law 

that permits parties to a negligence claim to try their 

case to a jury, but requires the court to enter judgment 
Cite as 359 Or 168 (2016) 307

for the damages determined not by the jury, but by the 

legislature.

Labeling the right to civil jury trial as a procedural 

right does not diminish its significance in our governmental 

structure. In Blakely v. Washington, 542 US 296, 305-06, 

124 S Ct 2531, 159 L Ed 2d 403 (2004), the United States 

Supreme Court described the role of the jury in a criminal 

trial as “no mere procedural formality, but a fundamental 

reservation of power in our constitutional structure.”9

 The 

same is true of the jury’s role in civil trials. The framers did 

not consider the right to civil juries essential only because 

juries are particularly well suited to the fact-finding function. They also considered juries as playing an essential 

political role in our democratic system of government. As 

the anonymous “Federal Farmer” said in one of the author’s 

letters to “The Republican,”

“The jury trial, especially politically considered, is by far 

the most important feature in the judicial department in 

a free country * **. Juries are constantly and frequently 

drawn from the body of the people, and freemen of the 

country; and by holding the jury’s right to return a general 

verdict in all cases sacred, we secure to the people at large, 

their just and rightful contr[ol] in the judicial department. 

* * * The body of the people, principally, bear the burdens 

of the community; they of right ought to have a contr[ol] in 

its important concerns, both in making [by legislation] and 

executing [through juries] the laws, otherwise they may, in 

a short time, be ruined.”

9 The court in Blakely, 542 US at 306, went on to explain:

“Just as suffrage ensures the people’s ultimate control in the legislative 

and executive branches, jury trial is meant to ensure their control in the 

judiciary. See Letter XV by the Federal Farmer (Jan 18, 1788), reprinted in 

2 The Complete Anti-Federalist 315, 320 (H. Storing ed 1981) (describing the 

jury as ‘secur[ing] to the people at large, their just and rightful contr[ol] in 

the judicial department’); John Adams, Diary Entry (Feb 12, 1771), reprinted 

in 2 Works of John Adams 252, 253 (C. Adams ed 1850) (‘[T]he common people, should have as complete a control *** in every judgment of a court of 

judicature’ as in the legislature); Letter from Thomas Jefferson to the Abbé 

Arnoux (July 19, 1789), reprinted in 15 Papers of Thomas Jefferson 282, 283 

(J. Boyd ed 1958) (‘Were I called upon to decide whether the people had best 

be omitted in the Legislative or Judiciary department, I would say it is better 

to leave them out of the Legislative’); Jones v. United States, 526 US 227, 244-

248, [119 S Ct 1215, 143 L Ed 2d 311] (1999).”
308 Horton v. OHSU

Herbert J. Storing ed., The Complete Anti-Federalist Vol 2, 

320 (1981).

Thus, as Alexis de Tocqueville explained, “[t]he

jury is, above all, a political institution, and it must be 

regarded in this light in order to be duly appreciated.” 

Alexis de Tocqueville, Democracy in America 282 (Phillips 

Bradley ed 1946) (originally published 1835). De Tocqueville 

described the civil jury as placing “the real direction of 

society in the hands of the governed, or of a portion of the 

governed, and not in that of the government.” Id. The civil 

jury system, Blackstone explained, “preserves in the hands 

of the people that share which they ought to have in the 

administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens.” William 

Blackstone, 3 Commentaries on the Laws of England 380 

(1st ed 1768). It is to jurors—plain people—that we have 

often looked to defend our constitutional rights “against the 

importunities of judges and despite prevailing hysteria and 

prejudices.” Toth v. Quarles, 350 US 11, 17-19, 76 S Ct 1, 100 

L Ed 8 (1955). We lose that strength when we permit interference with that function.

III.

Together Article I, section 10, and Article I, section 

17, provide a constitutional structure that is designed to

provide justice for all and a means to preserve justice for

all. Today, the majority does real damage to that structure 

and to the real people it is intended to protect. I dissent.

Baldwin, J., joins in this dissenting opinion.