BRIEF OF AMICUS CURIAE
OREGON ASSOCIATION OF DEFENSE COUNSEL
	STATEMENT OF AMICUS CURIAE

The Oregon Association of Defense Counsel (OADC) seeks leave of court to file an amicus curiae brief in support of the respondent on review.  OADC is a private, non-profit association of lawyers who specialize in the defense of civil actions.  OADC has often appeared as an amicus curiae in this Court, sometimes at the Court’s request.  OADC is not related to any of the parties on review and has no interest of its own in this proceeding, other than to aid the court in determining the correct rule of law.  Ultimately, the Court’s decision may affect interests of other parties represented by OADC’s members in other cases, now and in the future.
	STATEMENT OF THE CASE
OADC adopts the statement of the case in Defendant’s Brief.
	QUESTIONS PRESENTED ON APPEAL
1.	When an uninsured driver who violates Oregon’s mandatory insurance laws is injured in a motor vehicle accident, does ORS 18.592 deprive the driver of a substantial remedy contrary to Article I, section 10 of the Oregon Constitution when the statute precludes the violator from recovering non-economic damages?
2.	When an uninsured driver who violates Oregon’s mandatory insurance laws is injured in a motor vehicle accident, does ORS 18.592 contravene the jury trial right of Article I, section 17 of the Oregon Constitution, by prohibiting the violator from recovering non-economic damages?

	SUMMARY OF ARGUMENT
I.  ORS 18.592  does not violate the remedy clause of the Oregon Constitution, Article I, section 10.  The Legislature has always been able to modify or even abolish common law remedies as long as the Legislature does not simultaneously create a right while abolishing a substantial remedy.  A substantial remedy exists to a plaintiff who is operating a motor vehicle without insurance because he is entitled to recover economic damages for his alleged injury.	
Additionally, OADC notes that the analysis used by the Supreme Court in Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001), has been shown to be founded upon a faulty premise: namely, that Article I Section 10 was intended to afford constitutional stature to the common-law maxim that there can be no wrong without a remedy. See Hoffman, Questions Before Answers: The Ongoing Search to Understand the Origins of the Open Courts Clause 32 Rutgers L. J. 1005 (2001).  The Supreme Court also failed to  articulate a logical basis for identifying which common-law rights are “absolute” and which are not.  Recognizing that this Court cannot overrule the Supreme Court,  this court should not, however, extend the Smothers analysis to a case such as this, where ORS 18.592 leaves plaintiffs with a substantial remedy.
II.	ORS 18.592 does not violate the right to a jury trial under the Oregon Constitution, Article I, section 17.  The purpose of the Oregon Constitution’s provision in recognizing the right to a jury trial is to prevent the court from encroaching on the fact-finding province of the jury, not to prevent the Legislature from altering the substantive rules of law. 

	ARGUMENT
I.	ORS 18.592 Does Not Violate Article I, section 10.
A.  Smothers Permits the Legislature to Alter Common-Law Remedies As Long As Plaintiff Retains a Substantial Remedy.
The present case raises no legitimate issue under the remedies clause of the Oregon Constitution, Article I, section 10, as interpreted since Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001).  The Legislature has always been able to modify or even abolish common-law remedies as long as the Legislature does not simultaneously create a right while abolishing a substantial remedy.  A substantial remedy exists to a plaintiff who is operating a motor vehicle in violation of Oregon’s mandatory insurance laws because he is entitled to recover economic damages for his alleged injury.  Indeed, the wide range of economic damages available to such a plaintiff is almost certainly much broader than what  an injured plaintiff could have recovered in 1857.  An injured plaintiff, even in violation of the insurance law, can recover past wage loss, past medical expense, future medical expense, and future loss of earning capacity.  The variety of economic damages recoverable today undoubtedly outstrip whatever non-economic damages such a plaintiff could have recovered in 1857; many forms of non-economic damages recoverable today were not recoverable in 1857.

B.	Economic Damages is a Substantial Remedy.
ORS 18.592 does not violate the Oregon Constitution.  Conditioning a plaintiff’s right to recover non-economic damages for injuries arising out of a motor vehicle accident on the basis of maintaining automobile liability insurance does not deprive plaintiff of a substantial remedy in violation of Article I, section 10.  
In this action to recover damages from an automobile accident, defendant asserted that plaintiff cannot recover non-economic damages because plaintiff was driving without automobile liability insurance in violation of ORS 18.592(1) when the accident occurred.  The trial court granted plaintiff’s motion to dismiss the defense that plaintiff was violating ORS 18.592 on grounds that the statute was unconstitutional because it violated the remedy clause of the Oregon Constitution, Article I, section 10.  The trial court’s decision was incorrect because ORS 18.592 does not deprive plaintiff from a substantial remedy in violation of the Oregon Constitution.  
[T]he remedy clause does not freeze in place common-law causes of action that existed when the drafters wrote the Oregon Constitution in 1857.  The legislature may abolish a common-law cause of action, so long as it provides a substitute remedial process in the event of injury to the absolute rights that the remedy clause protects.  

Smothers v. Gresham Transfer, Inc., 332 Or  at 124.  

The remedy clause does not prevent “the legislature from changing a common-law remedy or formal procedure, attaching conditions precedent to invoking the remedy, or perhaps even abolishing old remedies and substituting new remedies.”  Id. at 119, citing Mattson v. Astoria, 39 Or 577, 580, 65 P 1066 (1901).  The specific questions before this Court are whether ORS 18.592 abolishes a common-law cause of action for a legal injury and whether there is a constitutionally adequate substitute remedy for a legal injury.
The words ‘legal injury’ refer to the gravamen of a claim and not to the kinds of injuries or damages for which a plaintiff seeks recompense.

Stone v. Finnerty, 182 Or App 452, 458, _____ P3d _____ (2002).  
Here, recovery of economic damages is a substantial remedy.  It is well established that the workers’ compensation remedial process is a substantial remedy for an employee’s common-law cause of action against an employer for negligence.  Evanhoff v. State Industrial Acc. Com., 78 Or 503, 154 P 106 (1915); Atkinson v. Fairview Dairy Farms, 190 Or 1, 13, 222 P2d 732 (1950).  Recently, this Court has held that workers’ compensation benefits provided to a plaintiff involved in an automobile accident with a substantial remedy, even though those benefits did not compensate the plaintiff for “the loss of future earnings, pain and suffering, facial scarring, and disfigurement.”  Gunn v. Lane County, 173 Or App 97, 99-101, 20 P3d 247 (2001).
Article I, section 10, is concerned with substantial remedies for types of “legal injuries” rather than the type of damage incurred such as pain and suffering.  Stone v. Finnerty, 140 Or App at 458.  Here, under the current statutory scheme, an uninsured driver involved in an automobile accident can still recover damages
*** for medical, hospital, nursing and rehabilitation services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or replacement of damaged property.

ORS 18.560(2)(a).  

The Legislature has provided a substantial remedy in accordance with Article I, section 10.
C.  Smothers Was Wrongly Decided.
Although OADC recognizes that this Court cannot overrule the Supreme Court, amicus urges the Court to note that the Smothers opinion incorrectly concluded that the purpose of Article I, Section 10 was to enshrine as a constitutional protection the common-law maxim that there is no wrong without a remedy.  The historical predicate upon which that conclusion was based has been shown to be incorrect.  See Jonathan M. Hoffman, Questions Before Answers:  The Ongoing Search to Understand the Origins of the Open Courts Clause, 32 Rutgers L. J. 1005 (2001).  The Supreme Court compounded this error by concluding that certain common-law civil claims were “absolute” and thereby off limits to legislative adjustment.  If such an analysis continues to be followed, there is no basis either in law or in logic to differentiate between what can and cannot be modified.  Such an analysis might permit outright abolition of strict product liability while protecting the tort of breach of a promise to marry.  It provides no logical method to differentiate between permissible and impermissible changes in tort law, other than the vintage of the cause of action and the court’s subjective appraisal of how “fundamental” it is.  Rather than give the courts free rein to pick and choose which common-law writs are to be considered “absolute,” it is more logical to infer that those common-law rights intended to be given constitutional protection are those which were specified in the constitution itself.  Indeed, that is precisely what distinguishes a system founded upon a written constitution from its English common-law ancestry. 

II.	ORS 18.592 Does Not Violate Article I, section 17, of the Oregon Constitution.
A.	Right to Jury Trial Preserves Distinction Between Court and Jury.
Article I, section 17, of the Oregon Constitution provides:  “In all civil cases, the right of Trial by Jury shall remain inviolate.”  As the Oregon Supreme Court noted, by 1783 the majority of state constitutions contained a provision which guaranteed the right to a jury trial in a civil case.  Lakin v. Senco Products, 329 Or 62, 71, 987 P2d 463 (1999).  Although not discussed by the Court in Lakin, the inviolate right to a jury trial was designed to set the boundaries between the judge and jury, not to curtail the Legislature’s power to establish rules of law.  
It has often been noted that the right of jury trial is an ancient right, one that even predates Magna Carta.  Id. at 70.  But what did that right encompass?  It is evident that, for centuries, the role of the jury has been to decide issues of fact, not issues of law.  Lawmaking comes from the legislature and the common law.  To hold that neither the legislature nor the court can decide what elements of damages are recoverable does not “preserve inviolate” right to jury trial; it causes juries to usurp powers that never belonged to them in the first place.

 “The principle that juries are to speak only about matter of fact and are not concerned with matter of law is present from the first.” 2 Frederick Pollock & Frederic William Maitland, The History of English Law 629 (2d ed. 1959).  The authors cite the maxim: “ad quaestionem iuris respondent iudices, ad quaestionem facti iuratores,” and they indicate that it derives from Lord Coke,  Id., n. 3.
Blackstone articulated the distinction between the court and the jury’s respective spheres of responsibility.  He stated that the judgment is “the sentence of the law, pronounced by the court upon the matter contained in the record. . . . ” 3 Blackstone, Commentaries 396.  “The judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sentence of the law.  It is the conclusion that naturally and regularly follows from the premises of law and fact. . . .” Id.
The logical conclusion is that the right to trial by jury protects the power of the jury to decide issues of fact, but is irrelevant to the power of the legislature to determine what the law is–the substantive rights of the parties as determined either by the legislature or the common law.
B. The History of Early American Adoption of Jury Trial Guarantees Does Not Suggest Any Intention to Alter the English Common-Law Relationship Between Juries and Judges.

Although the right to trial by jury became firmly established in the first state constitutions following the American Revolution, there is no indication that the colonists ever intended to broaden the right to jury trial beyond what had historically existed.  Rather, they most likely sought to restore the right to jury trial and protect it from the kinds of encroachments they had experienced on the eve of the Revolution.  The most notorious of the English abuses occurred in criminal law, such as the seditious libel trial of John Peter Zenger in 1735 and the Townshend Act of 1769, violations of which were deemed admiralty offenses, subjecting smugglers to non-jury trials in the vice-admiralty court in Halifax rather than local juries in the colonies.  See generally, Clay S. Conrad, Jury Nullification (1998); Bernard Bailyn, Pamphlets of the American Revolution 68 (1965).
Other grievances may have been relevant to the colonists’ view of the right to trial by jury in civil cases.  In New York, the governor insisted on the legality of permitting jury decisions to be appealed to the governor and the council, on matters of fact as well as law.  Although the measure was defeated by the Board of Trade in England within a year, “it had a lasting  impact on the political consciousness of New Yorkers” and was publicly assailed as “arbitrary” and “scandalous” in its deliberate subversion of the British constitution.  Bailyn, supra, at 68.

It is clear that colonists regarded the right to jury trial as a fundamental right.  Notably, it may be the only right universally secured by the first state constitutions.  See Leonard Levy, Freedom of Speech and Press in Early American History: Legacy of Suppression 281 (1960).  This does not answer the question of the role the colonists expected juries to play, however.  Furthermore, how colonists regarded the right to jury trial in civil cases is less clear than in criminal cases, if only because the most well-known grievances of the revolutionary period related to criminal cases, where the British had most aggressively curtailed their rights.  Such a supposition is reinforced by the fact that the United States Constitution, as originally drafted, protected the right to jury trial in criminal cases but not in civil cases.  Article III, § 2, concerns criminal cases and provides in pertinent 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; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. 
 
There is evidence that the Constitutional Convention considered including a right to jury trial in the Constitution but rejected it because of variations among the colonies in the right to jury trial.  Only after the Constitution was drafted did the anti-federalists raise the lack of civil jury trial protection in their campaign against ratification.  Ultimately, of course, that complaint was resolved by inclusion of a Bill of Rights containing the Seventh Amendment.	

We have found no basis to infer that the colonists sought to increase the power of the jury beyond that of the English common law.  The anti-federalists’ stated reasons for inclusion of a right to civil jury trial in the United States Constitution suggest different concerns.  For example, the Pennsylvania anti-federalists objected to the “intolerable delay, the enormous expenses and infinite vexation to which the people of this country will be exposed from the voluminous proceedings of the courts of civil [i.e., European] law” which, in turn, would confirm the power of “aristocratical influence in the courts of justice.”  The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 18, 1787), contained in Ralph Ketcham (ed.), The Anti-Federalist Papers and the Constitutional Convention Debates 237, 250 (1986).
Absent evidence to the contrary, it is most logical to assume that the drafters of the first civil jury trial guarantees sought to ensure the traditional English role of the jury as the judges of the facts, not to restrict the power of the legislative branch to make or alter substantive law.
C.  Federal Interpretations of the Seventh Amendment Are Consistent With This Analysis.
Federal interpretations of the Seventh Amendment are consistent with such an analysis.  The focus of the Seventh Amendment “is to preserve the substance of the common law right of trial by jury, *** and particularly to retain the common-law distinction between the province of the court and that of the jury.”  Baltimore and Carolina Line, Inc. v. Redman, 295 U S 654, 657, 55 S Ct 890, 79 L Ed 1636 (1935); see also Walker v. New Mexico & SPR Co., 165 U S 593, 596, 17 S Ct 421, 41 L Ed 837 (1897) (the purpose of the Seventh Amendment is to prevent the court from usurping a jury’s function to resolve questions of fact); Dimmick v. Shiedt, 293 U S 474, 478, 55 S Ct 296, 79 L Ed 603 (1935) (it is the function of the jury and not the court to set damages).  

It follows that a statute which simply modifies the conditions under which an element of damages may be awarded does not violate a plaintiff’s right to trial by jury.  It does not affect or invade the jury’s province to decide issues of fact.  Rather, like many types of legislation, it alters the substantive law while leaving the jury free to decide all facts material to the legal issues.  
D.  Recent Oregon Supreme Court Decisions Are Consistent With This Analysis.
The conclusion that ORS 18.592 does not violate the guarantee to a jury trial is supported by two recent decisions by the Oregon Supreme Court, Jensen v. Whitlow, _____ Or ______, _____ P3d _____ (August 8, 2002), and De Mendoza v. Huffman, _____ Or _____, _____ P3d _____ (August 8, 2002).  In Jensen, the Court held that ORS 30.265(1), which eliminates actions against individual public employees and places a cap on damages recoverable in a substitute action against a public body, does not violate a plaintiff’s right to a jury trial.  Jensen’s analytical framework is directly relevant to the present case.  The Court stated:
In Lakin, neither party questioned that the plaintiffs had the right under Oregon law to bring their claims or that they had the right to require a jury trial on their claims. The question, instead, was whether the plaintiffs had the right to have the jury determine the issue of damages. Id. at 68. This court held that, because the issue of noneconomic damages is a question of fact, the right to a trial by jury includes the right to have the jury determine the amount of those damages. Id. at 82. In other words, because 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.

	By contrast, in this case the legislature has eliminated plaintiff's right to bring her claim against the individual employees and has substituted a different remedy against the state. Article I, section 17, is not a source of law that creates or retains a substantive claim or a 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[.]’ Lakin, 329 Or at 82 (citing Molodyh v. Truck Insurance Exchange, 304 Or 290, 744 P2d 992 (1987)). The right to pursue a ‘civil action,’ if it exists, must arise from some source other than Article I, section 17, because, that provision ‘is not an independent guarantee of the existence of a cognizable claim.’ Sealey v. Hicks, 309 Or 387, 396, 788 P2d 435 (1990), overruled in part on other grounds by Smothers, 332 Or at 123.

Slip Op. at 5.

Thereafter, the Court stated:

Plaintiff has no ‘civil action’ against the individual defendants.  It follows that there is no claim to which a right to a jury trial can attach.  Thus, ORS 30.265, on its face, does not violate Article I, section 17.

Id.

The Supreme Court reached the same conclusion in De Mendoza v. Huffman, _____ Or _____, _____ P3d ______ (August 8, 2002), when it determined that ORS 18.540 did not violate plaintiffs’ right to a jury trial as guaranteed by Article I, section 17.  As the Court noted:
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].

Plaintiffs did not have a right to punitive damages as a remedy under Article I, section 10.  Here, plaintiff, an uninsured motorist, had no underlying right to receive an award for non-economic damages.  Pursuant to its plenary authority, the Legislature has modified a plaintiff’s cause of action for injury arising out the operation of a motor vehicle so as to condition the right to recover non-economic damages on the possession of a policy of automobile liability insurance at the time of the accident.  Under the reasoning of Jensen and De Mendoza, it follows that because an uninsured motorist has no substantive right to recover non-economic damages under ORS 18.592, there is no factual issue to which the right to a jury trial can attach.
E.  A Rule of Interpretation That Would Prevent the Legislature or the Court From Altering the Substantive Rules of Law Has Troublesome Implications.
 Establishing a rule that forbids the Legislature from modifying substantive rules pertaining to a cause of action or defense by reason of the jury trial guarantee of Article I, section 17, would lead to extreme and ludicrous results for plaintiffs and defendants alike.  Some examples:
∑	An action for alienation of affections existed at common law with a right to a jury trial.  See Schrock v. Goodell, 270 Or 504, 508, 513-14, 528 P2d 1048 (1974).  The Legislature could and did abolish that cause of action.  Or Laws 1975, Ch. 562, § 1. 
∑	At common law, defendants were entitled to the defenses of contributory negligence and assumption of the risk.  Any negligence on the part of the plaintiff that contributed to the accident, no matter how slight, would bar his recovery.  Leap v. Royce, 203 Or 566, 573, 279 P2d 887 (1955), citing Senkirik v. Royce, 192 Or 583, 599, 235 P2d 886 (1951).  Under the doctrine of contributory negligence, the jury’s determination that a plaintiff was even minimally negligent would be a complete bar to her recovery.  In 1975, the Legislature adopted the doctrine of modified comparative fault, thereby eliminating the complete bar to recovery contributory negligence provided at common law.  ORS 18.470; See Baccelleri v. Hyster Co., 287 Or 3, 7, 597 P2d 351 (1979).  It also abolished implied assumption of the risk.  ORS 18.475.
∑	

∑	The Legislature modified the common-law claim for defamation to eliminate a plaintiff’s right to general damages in certain circumstances if a correction or retraction is not requested.  ORS 30.160.  
∑	The Legislature has entitled plaintiffs to remedies including statutory damages (e.g., ORS 646.638(1): minimum $200 damages recoverable for Unlawful Trade Practices) and double or treble damages (e.g., ORS 105.810, 105.815: timber trespass statutes).
∑	The legislature requires contractors to have a bond in order to avail themselves of judicial remedies.  ORS 701.065.
Under the same logic, court decisions altering common-law rules for claims or defenses would likewise violate Article I, section 17.  After all, if the primary purpose of the constitutional provision was to protect juries from judicial encroachment upon their prerogatives, then judge-made changes in the law should be scrutinized at least as closely as legislative acts.  A host of examples are set forth in Vetri, The Integration of Tort Law Reforms and Liability Insurance Ratemaking in the New Age, 66 Or L Rev 277, 278-283 (1987).  Under what principle of interpretation does ORS 18.592 interfere with the right to jury trial when these other changes in the contours of the common law do not?

The court need not bring all these modifications of the common law into question.  Rather, it need simply acknowledge, as indicated by authorities from Lord Coke to Jensen and De Mendoza that the constitutional jury trial guarantee does not entitle juries to decide the law, but simply to ensure that juries decide the facts.  It does not prevent courts or legislatures from deciding what the substantive law should be.  Accordingly, ORS 18.592’s limit on a claim for non-economic damages to automobile drivers who hold liability insurance does not interfere with the right to a jury trial under Article I, section 17.  If a person does not have automobile insurance, there is no claim for non-economic damages to which a jury trial can attach.
	CONCLUSION
For the reasons stated above, the Court should conclude that ORS 18.592 violates neither Article I, section 10, nor Article I, section 17, of the Oregon Constitution.
Respectfully submitted,
HORNECKER, COWLING, HASSEN
& HEYSELL, L.L.P.

By_________________________________
BENJAMIN M. BLOOM, OSB #93215
Of Attorneys for Amicus Curiae Oregon
     Association of Defense Counsel