*1 7, 1988, Argued September Appeals and submitted the decision of Court judgment 30, 1989, of the circuit court affirmed November reconsideration denied 11, 1990 January
HALE, Review, Petitioner on OF al, PORT PORTLAND et on Respondents Review.
(TC A8104-02187; A35081; S35062) CA SC
William respondent on With him on the review Port Portland. Lindsay, Weigler, response Hart, & Portland. Neil was Foley, argued Ridgway behalf Jr., Portland, K. the cause on respondent With him on the review of Portland. on Wyatt, response Schwabe, & Portland. Williamson Eugene, a on of ami- Johnson, filed brief behalf Arthur C. Bolin, & P.C. him Johnson, Clifton, Larson With cus curiae Phillips Douglas Schaller, G. on the brief were Michael V. Eugene. on of amicus Gernant, Portland, filed a brief behalf
David Lawyers Oregon Trial Association. curiae Portland, a brief on behalf Westwood, filed James N. Oregon amicus curiae Association of Defense Counsel. With him on the brief were Miller, Nash, William H. Walters and Hager Wiener, Carlsen, & Portland. Attorney Lidz,
Jerome General, Salem, Assistant filed Oregon. brief on behalf amicus curiae State of With him on Frohnmayer, Attorney the brief were Dave General, and Vir- ginia Linder, L. General, Solicitor Salem. County Judd,
Michael E. Counsel, Chief Assistant County Oregon City, Clackamas Counsel, filed a brief on Oregon behalf of amici curiae Association Counties and Oregon School Boards Association. With him on the brief Springfield, Harms, Jr., were Edward C. Legal Snider, and Paul Counsel, Association of Counties, Salem. Timothy Eugene, Sercombe, filed brief on behalf of ami- League Oregon cus curiae Harrang, Long, Cities. With him on the brief was Eugene. Arnold, P.C.,
Watkinson & Campbell,** Peterson, Justice, Before Linde, Chief Carson, Jones, Gillette, Justices.
GILLETTE, J. *3 ** J., 31,1988. Campbell, retired December
GILLETTE, J. damage limita case is whether Thе issue this (OTCA)1 are constitu Act Tort Claims tions in The Court of port to cities and districts. applied as tional Portland, v. Port the limitations. Hale Appeals upheld affirm. We App in a injuries November Plaintiff suffered severe he the vehicle which occurring when accident Plaintiff s an in a road. obstacle embedded collided with riding $600,000. Through his exceed reportedly bills alone medical litem, several defen- ad he this action filed guardian City Port- municipal corporations, dants, two including Port). (the He Portland (the City) land and the Port of for City responsible were main- Port charged respects several with negligent the road and were taining granted The circuit court motions respect to the obstacle. damages in City plaintiffs claim for the Port and the to strike 20.270(1) (b). $100,000 damage limitation in ORS excess of the for judgment Port then each confessed City The and the Appeals $100,000. appealed, Plaintiff and the Cоurt important issues allowed review to address the affirmed. We * involved. “public Port are each bodies” sub- 30.265(1), provides: ject to ORS which 30.300, every “Subject to the limitations of ORS 30.260 body public subject action or suit its torts and those of officers, scope employees agents acting its within duties, arising govern- out of employment or whether their * * proprietary function mental or public 30.270(1) liability of bodies potential ORS limits the follows: officers, any public body employees
“Liability of scope employment their or duties agents acting within *4 scope 30.260 to 30.300 shall not on within the of ORS claims exceed:
“(a) $50,000 any claims any to for number of claimant 1 ORS 30.260-30.300. damage property,
for or including to destruction of conse- quential damages, arising single out of a accident occur- rence.
“(b) $100,000 any to all claimant for other arising claims single out of accident or occurrence.
“(c) $300,000 any arising numbеr of claims out of a single accident or occurrence.” (b)
The trial applied 30.270(1) court ORS in limiting the lia- bility of City and the Port. challenges Plaintiff the con- stitutionality of that statute.
Absent a constitutional provision
contrary,
legislature
plenary lawmaking authority,
has
including the
authority to immunize partially public
bodies like the
See,
e.g.,
Ct.,
Port.
Brown v.
County
Multnomah
Dist.
95, 100,
(1977);
I. ARTICLE SECTION 24 IV, the Oregon Constitution provides: broadly encompass immunity phrase We so the issue order to both state’s any immunity municipal sovereign corporations from suit as the as well as have as post (discussing, II, immunity
agencies part, of the state. See Section rules of applying municipal corporations).
513 law, bringing suit by general for be made “Provision after, State, or exist- originating as to all liabilities against the Constitution; no adoption but of this ing the time of the brought, mak- authorizeing to be such suit special act [sic] any person claiming damages against compensation ing State, passed.” be shall ever to both applicable constitutional text treats this
Plaintiff City. As we shall against the Port and his claim (if immunity later, City’s for the the actual basis demonstrate However, sovereign. from that of the any) only part in derives portion of the discus- to this important distinction is not this sion. 24, is not IV, permissive,
Textually, Article “may” indicates mandatory. of the word Use an authority immunity, obliga- not to waive legislature has review, plaintiff for nonetheless petition so. In his tion to do to sov- that, constitutional status argues granting rather than its waiver. IV, requires immunity, Article ereign point in some of this imprecision as to this Because of the for cases, begin by explaining the basis we will prior court’s determine the immunity in will then Oregon. We sovereign IV, 24. effect of Article originated in the rule
Sovereign immunity 1See Pol not be sued in his own courts. English King could (2d 1898); see Maitland, History English of Law 518 ed lock & Hall, 410, 414, 1182, 59 L Ed 2d 440 99 S Ct Nevada v. US also sovereign (1979) (“The immunity truly independent aof 416 of as a matter enjoyed its own courts has been from suit in Jaffe, Suits centuries”); generally see right absolute Immunity, Sovereign 77 Against Governments Officers: (1963) sovereign evolution of (discussing Harv L Rev States). Although argua and the United immunity England in democracy,3 immunity sovereign in a bly not justified universally See Noonan accepted. the American states (1939); see also Portland, 213, 220, City of Hall, at 415-16. supra, Nevada v. 440 US adopted English common Oregon Territory The first, provided: in acts. The enacted law two Maintenance, See, Dept, e.g., Hoffman, Connecticut Income Trustee v. 2818, 106 (1989). Massey, Sovereignty US_, See also L 2d State Ct Ed 109 S Amendments, (1989). U L Rev 61 56 Chi and the Tenth and Eleventh territory “The laws of the Iowa shall be the law this civil, military, territory, cases; and criminal where oth- not for, provided erwise and where no territory statute of Iowa applies, principles equity common law and shall govern.” 5, 1843, Act of July Ireprinted History the Oregon Harris, Code, L 129, 135 second, Or Rev enacted in provided: England common principles equity, not “[T]he
modified the statutes of Iowa or of government, this incompatible principles, part with its shall constitute a the law of this land.” *6 27, of 1844, 100,
Act June L 98, III, Or 1843-49 at Art 1.§ Neither Iowa nor Oregon had modified sovereign common-law Soule, Co., immunity Kretsinger 1844. Metz v. in & 40 Iowa Cf. 236, (1875) 239-40 (using sovereign doctrines of immunity as applied England, modification). in without Between 1844 and 1859, Oregon Territory the apparently modify did not the Thus, common law rule. sovereign immunity of part was this state’s law at the of time statehood.4 XVIII,
Statehood did not the change law. Article sec- 7, tion the Oregon in adopted 1859, provides:
“All
in
Territory
laws
force in the
Oregon
when this
effect,
therewith,
constitution takes
and consistent
shall con-
repealed.”
tinue in force until altered or
The effect of
provision
this
was to incorporate
territory’s
the
which,
prе-existing
shown,
as
incorporated
we have
English common law. Consistent with the foregoing,
this
court since statehood has asserted
may
the state
not be
sued without
its consent.5 In
light
provi-
constitutional
4
analyzing
adoption
English
For
Oregon,
other cases
of the
common-law
Roth,
670, 683, 652
(1982);
Hulen,
Lytle
483, 510,
see Koos v.
Or
293
P2d 1255
128 Or
immunity part Oregon’s became law with statehood. background mind,
With this historical we must parties IV, determine the role of Article advance section 24. The opposing theories as to the effect of that section. argue sovereign immunity Defendants that it as a established provision constitutional doctrine. Plaintiff claims that the actually require legislature meant to to waive sovereign immunity. state’s Neither view is correct.
Although pre- IV, Article assumes sovereign immunity, nothing language existence of in its immunity. light Indeed, establishes of the effect of immunity incorporating prior XVIII, Article from explicit immunity incorporation law, an was unnec- essary. Plaintiff, however, have Arti- would us determine that immunity, sovereign IV, cle intended a waiver of contemplating against that the would allowactions generally pass special the state but could nоt act to com- pensate any one individual. addressing plaintiffs theory, begin
In we with the face, IV, constitutional text. On its section makes immunity permissive: waiver of the state’s it states that “[provision may be made” for actions the state. added.) (Emphasis provision It does not mandate that must be *7 legislative permission, and, made for such actions absent later cognizable Oregon such actions would not have been in courts. nothing history Moreover, in the of the constitutional — Oregon conventions of or of Indiana the state from whose — justifies IV, constitution Article 24 was taken a section contrary reading. delegates There is no evidence that the to Oregon publicly the convention ever debated the section that principle state cannot be sued without a cardinal of law so well estab its consent is Contracting Duby, 1, 7-8, 292 citation”); v. require United Co. P lished as to no (1930) (“the rule, jurisdictiоn 309 well in that the state cannot be established this [is] Smith, 525, 526, 75 consent”); v. Keene 44 P 1065 sued its own courts without its Or (1904) (“such or is the condition of the that no suit or action can be instituted Lord, consent”); Salem Mills Co. v. against except 42 maintained with its [the state] 82, 88, 69 (1902) (“The point without Or P 1033 is conceded that a state is not suable consent”). 516 IV, 24;
became plaintiffs Article section arguments based on the Carey, Oregon debates in the and Constitution Proceed- ings and Debates the Constitutional Convention of 1857 (1926), concern different section adopted that was not and therefore helpful. are not
Plaintiff s reliance on record of the Indiana con stitutional convention is equally misplaced. Those debates are, best, the question, inconclusive on that state’s highest would court later hold “that the framers of the Constitution that assumed at common law the State [Indiana] was immune from suit and authorized the legislature mod ify liаbility such State, to the it extent see fit.” Perkins v. 549, 551, 30, (1969).6 252 Ind 251 NE2d
It
IV,
remains to be determined
purpose
what
Article
24,
section
Oregon
was intended to serve. The
Constitution
power.
County
Ct.,
allocates
See Brown v. Multnomah
Dist.
supra;
Myers,
Linde,
supra;
supra,
Deras v.
49 Or L Rev at 147.
IV,
24,
Article
the power
allocates
to waive that sov-
ereign immunity to
legislature,
not to the courts. See
al,
Vendrell v.
School District No. 26C et
Or
(1961)
P2d
(“[o]ur
is
on
premise
Constitution
framed
that
the state is
suit
immune from
if immunity
is
lifted it shall
done
by
legislature”);
be
so
see also Cole u.
and,
Supreme
later,
We note
advanced
the idea
the Indiana
Court
Perkins
State,
Campbell
(1972),
259 Ind
Tо Article section does not It not bar from itself immune from suit. also does holding state law, immunity partially by general from waiving the state addition, says it has done in the OTCA. In the section which restrict to extend nothing prohibit legislature’s power to munici partial immunity legislatively created authorized IV, Thus, the Port. pal corporations like ORS prohibit did not the enactment 30.270(1)(b). provision some Whether other constitutional immunity prohibits extending from the state’s port to cities and districts is an issue to which we now turn.
II. ARTICLE SECTION public body damage that argues Plaintiff the OTCA limitations “remedy by him his due course of law deny injury person” done him in his in violation Article Arti- Defendants respond Constitution. immu- sovereign the state’s cle is subordinate to analysis complex The is somewhat than that. nity. more Immunity 1. The Port and by of Portland was established Port district, “a known as The Port of separate
Laws 791 as
to be
(Section 1),
was,
things,
among
which
other
Portland”
and Columbia
“havе full control of Willamette
Rivers]
[the
said cities
Albina],
East
between
[Portland,
Portland
sea, so
extent
this State can
and the
far and to
full
3).
(Section
have been
the same”
its functions
grant
While
expanded to reflect
the changed commercial
focus
Pacific
Northwest due
passage
nearly
century,
promote,
alia,
Port continues to
inter
ship-
maritime and
*9
interests of
ping
greater
778.015;
area.
Portland
ORS
see
generally ORS ch 778
Port
(establishing of Portland and
describing
functions,
its organization,
and duties); see also
Portland,
Cook v. The
(1891)
Port
20 Or
Other
instrumentalities,
state
including some
of municipal corporations,
form
partake fully of the state’s
See,
immunity from
e.g.,
suit.
v.
Vendrell
School District No.
al, supra
26C et
(reсognizing application of sovereign immu
nity
districts);
school
Templeton
to
Linn County,
22 Or
(1892) (counties
We turn plaintiffs to consideration of the rights any) against the City. Oregon, In cities have never full enjoyed immunity equivalent sovereign immunity. state’s At law, immunity common municipal the state’s from suit extended they
corporations
when
were
in so-
engaged
“governmental”
Portland,
City
called
functions. Noonan v.
supra,
Immunity
received criticism. See Northwest sustained Portland, 297-301, Natural Gas Co. v. (1985) texts). various mention the dichot- (citing We endorsement, an omy descrip- here not as an but as historical tion. *10 on, early
From
let cities avoid that
functions,
liability,
proprietary
through legislatively-
even for
See,
provisions
liability.
enacted charter
the cities of
absolving
e.g.,
Astoria,
(1901). Through
Mattson v.
39 Or
Our sovereign immunity with the issue of (it and cities might came an end be too to call a much it Portland, City conclusion) supra. Noonan v. case, In that plaintiff had injured been when the high heel her shoe in an became stuck defective that allegedly angle iron formed the outer of the of a edge curb Portland street. The trial court granted an involuntary nonsuit at plaintiffs the end of the case. appealed. Plaintiff relied a principally Portland on section of providing person charter injured by a defective street persons or sidewalk could sue “on those whom the law may * * * imposed
have such obligation repair defect and also through the officer or officers official negligence whosе such unrepaired,” defect remains city but could not sue the itself. Id. at 216 (citing City Charter). 281 of Section the Portland Plaintiff contrary claimed that the charter section was to Arti- cle section 10. court, an
This after exhaustive examination here, authorities which we need not repeat affirmed the trial synthesized previous court. We jurisprudence our as follows: previous “We believe that all of our decisions were cor- rectly sound, their decided reasons were with the exception those that deemed the streets maintenance of ** * governmental function.
* * * *
plaintiff
10, Oregon
“But the
contends that Art.
Con-
§
stitution, prevents
abolishing
the lawmakers from
com-
rights,
exemption
mon law
and that since the charter
clause
deprives
injured, through
negligent
those
failure of cities
*11
streets,
right
to maintain their
of their
common law
action
cities,
against the
the clause is invalid. Plaintiff seems tо
point
escaped
believe that that
view
in the
attention
con-
* * *
previous
sideration of our
cases.
has
that
said
it
[It
been]
unnecessary
was
to ‘elaborate the rule that the Constitution
9
Astoria,
Compare, e.g.,
(1901)
577,
(charter provision
Mattson v.
39 Or
does not forbid the
law,
permissi-
by the common
attain a
recognized
ones
old
We held to similar
legislative object.’
ble
omitted.]
[Citation
validity
which was
sustaining
of a statute
effect
10,
Perozzi v.
Oregon Constitution:
under Art.
§
attacked
10,
Ganiere,
330,
[(1935)].
P2d
§
Constitution,
give anyone a
intended to
was not
common;
statutory
was it
right in
law either
nor
vested
Notwithstanding similar
the law static.
intended
render
states,
sus-
provisions
the courts hаve
constitutional
other
husband’s common
tained statutes which eliminated the
placed
wife
liability for
of his
and which
the torts
wife
They
husband.
have likewise
upon an economic level with her
which have
actions for alienation
sustained statutes
abolished
affections,
promise,
legisla-
actions for breach of
etc.
cannot, however,
remedy and at
time
ture
abolish a
the same
Houk,
v.
127 Or
recognize
right:
of a
Stewart
existence
893,
We,
[(1928)].
there-
271 P
P
Id. at 248-250. court not mentioned
Although it was even Noonan, court, said, it when I, 10, Oregon “Article was intended to § * * * anyone give right in nor it intended a vested this law * * * static[;]
to render the law limitation on the] [the * * * remedy at the cannot abolish a [is it] right,” recognize time the existence of a same State Acc. have cited Industrial id. could Evanhoff Com., (1915), point. P 106 of its illustrative constitu- to this cоurt the issue of the brought Evanhoff tionality, then two- Oregon’s under Article scheme, By scheme. year-old compensation workers’ haphazard system had Oregon legislature eliminated injuries liability employees to some for some employers circumstances, occurring under a limited number for the employers liable replaced system it with a that made regard expenses injured of their workers without medical — camps members of both penalized fault. The scheme some of their plaintiffs prove negligence could actionable those who beyond medical their employers, damages and so obtain liability employers who could defeat expenses, those they because they negligent because had not either been *12 could show guilty contributory the worker was negligence or assumption of the A risk. recent law review article describes the outcome of Evanhoff: court for the first time had deal with a that “[T]he — a denied well-established cause a of action tort action for —
personal injury negligence uncomplicated by based on a immunity. side-stepped traditional common-law The court by noting the compensation issue that the law allowed both employer the worker and the to elect not to be covered. There- fore, themselves, law, parties it was the away not the that took remedy the as in a Again, mutual waiver. at the [Id. 518.] analytical by, for, rationale was if pretext bolstered not mere public policy balancing. In an uncharacteristic burst enthu- siasm, the court noted:
“ ‘Upon opinion the whole case we are the that the prescription act no violates of the Constitution of this States, state or of the properly United and that it was * * * passed respect in every and is a vаlid law. Before its enactment large one workman out of three received a com- pensation law, injuries by his an action at the while remaining got nothing. every two were defeated and Now provisions accepting compen- workman receives some and, whole, if injured; sation taken as a it will be found that money way compensation by more is received body injured inadequate whole workmen than remedies afforded It courts. has been a boon to the employers, employed, community, and the which latter formerly only injured could offer to the laborer the [sic] charity of the almshouse just compensation instead which he now receive without the humiliation of pauperism self-respect.’ loss of Surprisingly, issue “[Id. never resurfaced 523-24.] courts, Oregon although other states had some have to amend compensation their constitutions to acсommodate schemes. [Footnote omitted.] have, however,
“The legislatively courts confronted other non-judicial created schemes substitute remedies for tra- * * * ditionally judicial prevailed. ones. The same rationale Co., [See, Rueda v. Union Railroad e.g.,] [180 Pacific (1946) (Article I, P2d notwithstanding, parties negotiate agreements are free to that have the effect conferring immunity on one of them from action the other — many agree- to hold otherwise would invalidate arbitration ments)].” Section
Schuman, Remedy Guarantee: Oregon’s 35, 51-52 65 Or L Rev that Article held Noonan Evanhoff (or even abol- alters when the is not violated not left action, injured is ishes) long party so as the a cause of cases, remedy remedy. Under those entirely without extent; enough it is type of the same precisely need not be *13 See, City v. e.g., one. Noonan remedy that the is a substantial Pоrtland, (torts cities); v. State Industrial of supra Evanhoff of Ganiere, (workers’ Com., compensation); Perozzi v. supra Acc. Rogers, 281 Or passenger); Davidson v. supra (guest (1978) (defamation); Schuman, supra. see also P2d 624 30.265(1) of itself language
It is clear from the ORS fully requirements meet the of legislature that the intended to statute I, it enacted the statute. The Article section when identifies the new balance it strikes between specifically certain of those municipal corporations and those to whom circumstances, formerly could, limited corporations under have been liable: 30.300,every
“Subject 30.260to to the limitations of ORS body public subject to action or suit for its torts and those of officers, employees acting scope of agents within the duties, arising govern- employment whether out their of * * added.) proprietary *.”(Emphasis mental or function has been widened the plaintiffs The class of that the requirement injured party the that an show removing was a corporation’s activity injury led to the municipal however, time, a limit has been proprietary one. At the same may be recovered. A placed on the size of the award that conferred, has counterbalancing has but a burden benefit been some, disadvantage imposed. may been This work to But all who had a advantage while it will work to the of others. plaintiff may to have one. This not be what remedy continue court, if it were in the wants. It not even be what this subject, on this would making business of substantive legislature’s authority to choose to enact. But it is within Constitution, Arti- Oregon spite enact in of the limitations Portland, See, e.g., supra. v. I, cle section 10. Noonan 30.270(1) (b) do limitations of ORS hold that the We deny plaintiff any right not of action against City guaran- teed by Oregon Constitution, I, Article section 10. See David- son Rogers, supra, at 222. turn nеxt to plaintiffs We arguments under Oregon Constitution, I, Article section 20. I,
III. ARTICLE SECTION 20 Constitution, Oregon pro Article of the granting hibits the privileges class of citizens which are not available on the same equally terms to all citizens.10 provision prohibits This grants of types: “priv two distinct ileges” and However, spite “immunities.” of the fact that the specific issue in permissible this case is the extent of governmental immunity, prohibition in Article grant against does play “immunities” a role in this case because cities instrumentalities of the state are not “citizens” for the purposes
I, section 380, 387, 20. See Eckles v. Oregon, State hand, ability
On the other to recover in court government damages tort is a “privilege” type contemplated by Article 20. us brings This the question whether the law allows other citizens or classes of citizens a “privilege” plaintiff. it denies The law *14 does not do that. Plaintiff claims to be a member of two (1) torts; (2) “classes”: victims of governmentally inflicted tort $100,000. victims suffering damages in excess Plaintiff contends that the different treatment of such persons’ claims lacks a rational basis light purpose drawing of the for distinction. This is a test drawn from federal equal protection (and doctrine “balancing”) akin to for purposes of Article I, 20, superseded by section has been our more recent deci sions. Neither these is cognizable I, classes under Article section 20. original target prohibition of this constitutional of governmental authority special the abuse to provide 20, provides: of the Constitution passed any granting privileges, “No law be or shall to citizen class of citizens which, immunities, terms, upon equally belong or the same shall not all cit- to
izens.”
damage
Plaintiff does not contend that the OTCA’s
limitations were directed
individually.
argue
him
He also does not
or
of citizens was
citizen
class
grantеd
equally
immunity which
an
was not made
available to all citizens.
classes,
or
individuals
immunities
favored
or
privileges
for
Savage,
v.
See State
against disfavored ones.
discrimination
(Article
(1920)
is “antith-
Those of the total members con- dangerous a created injured negligently be as result of they for negligence which ditions on a road other kinds “class” fully hold liable are not an identifiable can someone privileges by given special are who under Article or soci- social characteristics personal virtue of antecedent i.e., already singled out from the status, they could not be etal As we wrote before their various accidents. general population rights children who lose involving in another case different by by a death or total disablement: parent children, parent two either lose a to disable- “As between other, death, as ment or to or first one followed family parents leave the for other indeed children lose who damages provided reasons. for for When action, distinguish wrongful in a death it did not child’s loss hominem, by personal or social charac- between children ad teristics, discriminating against laws children as illustrated deny equal born out of wedlock that have been found to them among but protection. The is not kinds of children distinction liability scope causing fatal between the of dеfendants’ immediate injuries victims of distinct from nonfatal negligence.” their Presbyterian Intercommunity Hosp., 293
Norwest (footnote omitted). (1982) 567-68, torts” exists as governmental The class of “victims of private torts separate a class from that of victims of which, system inherent because such classification is *15 immunity. The OTCA, partial sovereign the like continues personal or social characteristics classification is not based on of Article the There is no violation asserted “class.” theory. on this damages Neither are “victims whose exceed $100,000” a true class purposes scrutiny under Arti cle section 20. Those who damages suffer as a result of “class,” tortious conduct are not a social specific whatever the repay amount that would them damages. for the See Norwest Presbyterian Intercommunity Hosp., supra. The distinction made not OTCA is between victims with lesser or greater damages; it is between those who are the victims of governmental torts, opposed to those who are the victims of private tortious This separation conduct. occurs not because of any discrimination between various of the larger members tort, group of victims of but because of the classification inherent of partial scheme governmental immunity. 30.270(1)(b) The damage limitations of ORS are therefore permissible under Article section 20.
IV. DUE EQUAL PROCESS AND PROTECTION challenges
Plaintiff under Due OTCA Process and Equal Protection Clauses the Fourteenth Amendment to the In United States Constitution.11 Duke Power Co. v. Study Gp., Carolina Env. 438 US 98 S Ct 57 L Ed 2d (1978), however, Supreme the United States Court rejected process equal challenge a due protection to a federal imposing damage power statute limitations on nuclear liability accidents. The Court found that “limiting is an acceptable Congress method for in encouraging to utilize private development energy by power.” of electric atomic Similarly, limiting liability US at 86. the tort governmental acceptable way entities is an protect state municipalities. The could have con reasonably cluded necessary it is local protect governmental liability down, entities from taxes keep unlimited order services, ensure of vital public keep the continuation damage insurance under limitations of costs control. ORS 30.270(1) (b) do not States Constitution. violate United Study Gp., supra. Co. v. Env. Duke Power Carolina foregoing, plain- we conclude that none of From tiff’s challenges damage limitations ORS 30.265(1) (b) are well taken. The statute constitutional. process separately argued petition Plaintiffs due claim is not in the for review. reason, separately will For this we discuss it. *16 judg- and the Appeals Court of
The decision of the are affirmed. the circuit court ment of LINDE, J., conсurring. 10, of the Article surprising is not
It
any
court more than
perplexed
has
this
Oregon Constitution
Rights.
Most constitu-
Oregon’s
Bill
guarantee
other
telling officials what
negatives,
are stated as
guarantees
tional
may not
they
they may
procedures
not enact and what
laws
omit,
to retain or alter the
leaving
otherwise
decisions
but
on
to lawmakers. Article
substance of the laws
guaran-
hand,
negative
affirmative with
the other
combines
that,
ours,
like
treats its constitution
legal system
tees. In a
action create a
law,
government
assurances of
affirmative
requires.
the constitution
puzzle what affirmative laws
10, provides:
administered,
secret,
justice
be
court shall be
but
shall
“No
delay,
completely
openly
purchase,
and without
and without
remedy
every
by due course of law for
man shall have
person, property,
reputation.”
injury
him in his
or
done
clause,
statute,
declares that
сontrary
opening
When
secret, the court
may be conducted in
procedures
some court
and cannot be fol-
hold that
the statute is invalid
need
O’Leary, 303 Or
Oregonian Publishing Co. v.
lowed.
by (1987). The
can be administered
second clause
themselves,
necessary,
if
statutes
disregarding,
courts
“purchase”
impose
other officials that would
actions
Burks,
Or
Haynes v.
improper “delay.”
an
See
justice or
(1980).
a “rem-
But the assurance of
87 n
Yet this
to lock
meant
reasonably
have been
“remedy” clause could
law,
and stat-
equitable,
the common
into the constitution
1859, although Judge Matthew
utory remedies that existed
conven-
of the constitutional
a leader
Deady, who had been
Com-
position.
close to that
tiоn,
something
had maintained
(1892),
313,
quoted
issue;
fact,
on the opposite side of the
in
it pretends to
no
analysis.
renewed
There is nothing intrinsically absurd in
statutory
the idea that although
and common law remedies
changed,
they
comparable
be
must maintain some
degree
protection
10,
for those interests
to which Article
Noonan,
refers. In
the passage
preceded by quotation
is
a
from
Silver,
Silver v.
(1929),
280 US
50 S Ct
Stewart v. cited in the passage from in because Stewart followed the fact helps present plaintiff, of Eastman to invalidate a statute reasoning denying recovery guest passenger against on of a the owner or behalf legislature adopted driver of the host vehicle. Thereafter a such a requiring guest passenger prove new statute that guest’s operator’s were caused inten- injuries owner’s tional, reckless, grossly negligent conduct or intoxication. Ganiere, Or in Perozzi statute was sustained
That
(1935),
also
cited Noonan.1
which
The City is in a
position.
different
Its
for
nonliability
past
what
cases have termed “governmental” as distinct from
“proprietary”
functions
is not derived
“sovereign
from the
immunity”
IV,
involved in Article
section 24. And the court
legislative
has allowed
immunization
cities from tort
lia-
bility
on
condition that
person-
the individuals who are
ally responsible for harm
a
qualifying
legal injury
remain
Oregon City,
(1909);
liable.
53 Or
to a which a civil of action for damages protective remedy.” for a