AGENDA BOG Public Affairs Committee

Transcription

1 Back to SCHEDULE AGENDA BOG Public Affairs Committee Meeting Date: June 24, 2016 Location: Riverhouse Hotel, Bend, OR Chair: Josh Ross Vice-Chair: Tim Williams Members: Vanessa Nordyke, Kathleen Rastetter, Kerry Sharp, John Bachofner, Chris Costantino, Kate von Ter Stegge, and Rob Gratchner ACTION ITEMS 1. Approval of May 13, 2016 minutes. Exhibit INFORMATION ITEMS LIP Package (Legislative Workgroups) Discuss Session Priorities Discuss 4. Oregon ecourt Survey Executive Summary Exhibit 5. HB 4042 re: General Assistance DHS list attorneys Discuss 6. Civil Rights Section Persecution of Chinese Lawyers in China Discuss 7. Review Candidates Running for Election Spreadsheet Exhibit 8. Horton v. OHSU Exhibit 9. Articles a. OHSU follows up medical negligence with financial indifference Oregonian, May 10, 2016 b. Federal judge dismisses lawsuit seeking drivers licenses for illegal immigrants in Oregon The Register-Guard, May 19, 2016 c. Gov. Brown s tax hike hypocrisy Oregon State Republicans, June 13, For the Good of the Order Public Affairs Committee June 24, 2016

2 MINUTES BOG Public Affairs Committee Meeting Date: May 13, 2016 Location: OSB Center, OR Chair: Josh Ross Vice-Chair: Tim Williams Members Present: Vanessa Nordyke, Kathleen Rastetter, Kerry Sharp, John Bachofner, Kate von Ter Stegge, Rob Gratchner Members Absent: Josh Ross, Kerry Sharp, Chris Costantino Staff Present: Susan Grabe, Amy Zubko ACTION ITEMS 1. Approval of March 22, 2016 minutes: John Bachofner moved and Kathleen Rastetter seconded the adoption of the minutes. The minutes were approved by acclamation. 2. CJC Guidelines (ABA Regulatory Guidelines): Staff will draft updated Public Affairs Department General Guidelines potentially incorporating concepts from the Council of Chief Justices guidelines adopted in Resolution 9 by the ABA for consideration. INFORMATION ITEMS 3. Discussion of the 2017 Law Improvement Package: Susan Grabe reported to the PAC on the status of the Law Improvement package. Proposals that either received conditional approval or support without drafting are in various stages of workgroup development. 4. Election Update: The committee discussed pending races and voter turnout for the May 17 primary. Of particular interest to PAC is the impact the new Motor Voter legislation may have on unaffiliated voter registration in swing districts. 5. ecourt Survey: The bar has agreed to work with the quality assurance vendor for the court to ensure an ecourt Survey goes out to the membership. The survey should be disseminated and results obtained by the end of June.

3 Oregon State Bar ecourt usage and satisfaction survey May Summary of Results and Findings During the spring of 2016, the Oregon State Bar coordinated with OJD s independent quality assurance consultant on a survey of attorney usage of Oregon ecourt. The survey primarily addressed usage and overall satisfaction with the system. The bar distributed the link to the survey via on 5/13/16 and again on 5/19/16, and closed it to responses on 5/27/16. We received 850 total responses, though the number of responses to individual questions varied. Note that while notice of the survey was only ed directly to OSB members, anyone with the link was able to respond. In the that accompanied the survey link, lawyers were encourage to pass the survey along to their staff, which at least some did. The majority of respondents, 63.9%, described themselves as attorneys in private practice. Another 15% described themselves as an attorney with either legal aid, government, or indigent defense. 13% of respondents described themselves as professional staff for an attorney above. Respondents were almost exactly evenly split between women and men. Of those who indicated they were attorneys, 47.2% indicated they had been in practice for 21 years or longer, whereas 30.75% indicated they had been in practice for 10 years or fewer. The survey had good geographic representation from throughout the state. Region 5 (Multnomah) 54.4% Region 4 (NW Oregon) 34% Region 7 (Clackamas) 30.2% Region 6 (Benton/Linn/Marion/Polk) 29.8% Region 3 (SW Oregon) 21.8% Region 2 (Lane) 20.3% Region 1 (Eastern Oregon) 17.9% Region 8 (Out of State) 8.7% (Note: Total exceeds 100% as attorneys were instructed to mark all regions in which they practice) OJD File and Serve overall satisfaction 81.7% of respondents indicated they had used OJD File and Serve. Those who indicated they had used the system were directed to additional questions about the system. Overall the responses to the implementation of the efiling system were quite positive. On questions relating to the effects of efiling on productivity of the attorney s office, on the attorney s operating costs, and on the system s effect on the practitioner s ability to file pleadings, far more respondents indicated that the system was a net benefit to their practice. When asked how the implementation of efiling impacted the individual s ability to file pleadings, 65% indicated that it expanded access, whereas only 18% indicated it limited access. (Question 4) When asked how the system impacted the productivity of their office, 62% indicated it increased productivity whereas only 24% said it decreased productivity. (Question 5)

4 When asked how efiling had impacted operating expenses and client costs, 44% indicated it lowered costs, compared to only 20% that felt in increased costs. (Question 6) In terms of overall satisfaction with the system, respondents again provided generally high marks. Respondents were asked to rate their overall satisfaction with OJD File and Serve on a scale of zero to ten. The most common rating provided was 8 (24.6%). In total 44.5% of respondents answered with a 7 or 8, and another 16.3% responded with a 9 or a 10. Only 15.9% of respondents provided what could be described as a below average rating of 0 through 4, whereas 70.5% of respondents provided an above average rating of 6 through 10. (Question 13) OJD File and Serve Concerns and requested enhancements Respondents had many opportunities throughout the survey to provide comments on problems with the system or areas of concern. Question 7 asked respondents in which areas they felt enhancements to the efiling system would provide them the most benefit. Additionally most questions provided the opportunity for respondents to leave comments explaining why they provided the answer they did. Many of the respondents took the opportunity to leave comments. On most questions in the efiling section somewhere between one quarter and one third of respondents left at least a brief comment. On Question 7, which asked respondents to provide feedback on possible areas of enhancement, 70% of respondents indicated Consistency in acceptance/rejection practices among the courts is an area in which enhancements would provide a benefit. The second highest area, Improvements to electronic service was selected by 44.5% of respondents. Issues relating to acceptance/rejection practices, and especially to differing practices between courts, is an area that received a very large number of comments, not just on question 7 but throughout the efiling section of the survey. For example: (1) I'd like to see the "Notice of Signed Order" replaced with a more generic notice that simply notifies all attorneys of record when anything new has happened on a particular case, whether that is a signed order, signed judgment, or a pleading filed. (2) As mentioned above, Clackamas County in particular rejects filing for arbitrary code usage. Multnomah County will correct wrong codes, which seems like a better practice; (3) I'd like to see OECI reflect submissions of proposed orders and judgments. Right now, there is no way for a party to know if another party has submitted a proposed order or judgment unless the submitting party properly served the documents, which doesn't always happen. (Page 40) Multnomah and Clackamas process common FED documents differently. With Multnomah I can designate and FED first appearance date. Clackamas does not allow that, "the computer" in Clackamas automatically assigns the date. In order to have an FED first appearanc on a day of my choosing I have to time filing so the "computer" in Oregon City automatically assigns the date I want. There are other differnences, Notices of Restitution and Writ of Execution can be filed electronically in Multnomah but must be filed conventionally in Clackamas. Washington County came on so recently I don't know what their procedures will be. Perhaps someone could collect and publish the different court practices. (Page 42) Learning curve for court staff and users has been significant. Differences between counties and departments within a county present significant challenges to ease of filing. (Page 4) Every county seems to have different rules with respect to how filings must be done (e.g. does an affidavit in support of a motion to suppress need to be filed separately--like in Marion County--or attached to the Memo in Support of a Motion to Suppress--like Lincoln County) (Page 5) Similarly, comments relating to service were not restricted to Question 7, but came up throughout the survey. For example: whether or not parties to be served are being served is always a mystery (Page 23)

5 Because not all attorneys in the case are set up as service contacts, a paper copy must still be served. Our office has just continued to serve everyone a paper copy. Not only because the service contacts aren't complete but because we've had different outcomes of who gets the court's s regarding activity in the case. Sometimes everyone on the service contact list gets the and sometimes only the filer gets the . (Page 23) Require attorneys to input their information so they can be served electronically. I have not been able to serve a single attorney through file and serve because no other attorney has input their information, a requirement for electronic service. How can this be?? (Page 36) The fact this system does not automatically serve everyone and the fact you have to choose them and input their address and mailing address is very time consuming. This is the only electronical filing system i've ever used that does this (Page 36) Electronic service should be mandatory for all attorneys once all counties are live on File&Serve. The e-service aspect should be a required blanket acceptance, similar to CM/ECF (PACER). Page 36) OJCIN Online overall usage and satisfaction Overall 73.4% of respondents indicated they are current or former subscribers to OJCIN/OJIN. (Question 15) Those respondents were directed to additional questions related to their usage. Over half of the above respondents indicated they have been a subscriber for 6 years or more, and only 6.6% (35 respondents in total) indicated they no longer subscribe to the system. This would seem to indicate very little drop off in subscribers with the shift to OECI. (Q16) Those who indicated they no longer subscribed were asked a follow-up question regarding their reasons for no longer subscribing. While some expressed reasons were unclear, about 20-25% cited cost issues, whereas about 50% cited issues related to changing jobs or moving out of state. Only one or two of the respondents expressed that they did not subscribe due to problems with the system itself. (Q16) Overall, respondents rated OECI very highly, though many users took the opportunity to suggest enhancements or point out difficulties. When asked if they were able to access the information they were looking for in OECI (Q17), 74.9% answered Yes, whereas only 4% of respondents answered No. The remaining 21.1% left a comment of some kind, but many comments were not actually negative with respect to system operations. For example, many commenters mentioned being unable to access old documents which have not been (and in some cases may never be) uploaded into the system. When asked to rate the efficiency of OECI as compared to previous experiences accessing this information (presumably, though not explicitly through OJIN), the results were overwhelmingly positive. (Q18) 52.3% of respondents indicated the process was Much More Efficient, and another 20.3% indicated it was Somewhat More Efficient. Only 6.1% of respondents indicated the system was less efficient than their previous experience. 13% respondents to Q18 declined to provide a rating and instead left a comment. The majority of comments were positive, though many respondents left constructive suggestions/criticisms as well. For example, several respondents mentioned difficulties in searching by client name: The live links is great. You should be able to search by just last name of a party rather than being required to enter a first name. Many times we don't have a first name or even first initial. (Page 105) better in some ways, worse in others. The new system is harder to use when you don't know the exact name of the target. But the information available is much better when you do find the target. (Page 105) There are things that greatly improve efficiency, like being able to access information and pull filings same day, rather than requesting and paying for copies from the court. However the restrictions on searching OECI make investigation less efficient, although I would say overall it has greatly improved efficiency. (Page 105)

6 With respect to overall satisfaction OECI received extremely high marks. (Q20) Users were again asked to rate their satisfaction on a scale of zero to ten. The most common rating as an 8 (23.7%) followed closely by 9 (21.3%). Overall 82% of respondents provided an above average rating of 6 through 10 whereas only 7.6% of respondents provided a below average rating in the range of 0 through 4. OJD Courts epay As was anticipated during survey creation, relatively few of the respondents to the survey had used epay, since it is not a service directed at lawyers. Among those who had, the responses were quite positive. Overall 10.1% of respondents indicated they had used the system. (Q22). Those respondents were directed to several additional questions about the system. 67 out of 68 respondents indicated they were able to successfully make a payment. (Q23) When asked to rate their satisfaction with the system, over 80% provided a rating in the range of 6 through 10 whereas only 9% provided a rating in the range of 0 through 4. (Q24) Public Access Terminals As with epay, relatively few of the respondents to the survey had used the public access terminals. Among those who had, the responses were generally positive. Overall 18% of respondents indicated they had used the terminals. (Q27). Those respondents were directed to additional questions. 59.1% of respondents indicated the terminals were a more efficient way of accessing case information than their previous experience accessing the court s paper files of case records. (Q28). Only 17.5% indicated it was less efficient. 80.3% of respondents indicated they were able to access the information they were looking for using the terminals. (Q29) In terms of overall satisfaction, users were again asked to rate their experience on a zero through ten scale. The most common answer was 8 (28%) followed by 5 (17%). Overall 61.9% of respondents provided an above average rating of 6 through 10, whereas 21.9% provided a below average rating of 0 though 4.

7 Filing Information Updated 6/15/2016 House Geographic Party Incumbent Republican Democratic Third Party Democrats Republicans Independents Other District Area Candidate Candidate Candidate 1 S Coast R Wayne Krieger David Brock Smith Terry Brayer 30% 42% 5% 22% 2 Roseburg R Dallas Heard Dallas Heard 29% 43% 5% 23% 3 Grants Pass R Carl Wilson Carl Wilson Tom Johnson 28% 40% 6% 26% 4 Central Point R Duane A Stark Duane A Stark 25% 45% 6% 24% 5 Ashland D Peter Buckley Alan W DeBoer Pam Marsh 49% 26% 5% 20% 6 Medford R Sal Esquivel Sal Esquivel 32% 38% 6% 24% 7 S Lane R Cedric Hayden Cedric Hayden Vincent T Portulano Fergus Mclean - I 32% 40% 5% 23% 8 S Eugene D Paul R Holvey Mary M Tucker Paul R Holvey 56% 21% 4% 20% 9 S Central Coast D Caddy McKeown Caddy McKeown 38% 34% 6% 23% 10 N Central Coast D David Gomberg Thomas M Donohue David Gomberg 41% 29% 5% 25% 11 Eugene, N Lane D Phil Barnhart Joe Potwora Phil Barnhart 45% 31% 4% 21% 12 Springfield D John Lively Robert Schwartz John Lively 42% 27% 5% 26% 13 Eugene, N Lane D Nancy Nathanson Laura D Cooper Nancy Nathanson 49% 25% 4% 21% 14 N Central Lane D Val Hoyle Kathy Lamberg Julie Fahey 43% 29% 5% 24% 15 Albany R Andy Olson Andy Olson 35% 37% 5% 24% 16 Corvallis D Dan Rayfield Judson McClure Dan Rayfield 53% 21% 4% 22% 17 E Linn, Marion R Sherrie Sprenger Sherrie Sprenger Jeffrey D Goodwin - I 30% 41% 5% 25% 18 S Clack, E. Marion R Vic Gilliam Vic Gilliam Tom Kane 31% 42% 4% 23% 19 S Salem R Jodi Hack Jodi Hack Larry Trott 34% 38% 5% 23% 20 West Salem R Paul Evans Laura S Morett Paul Evans 39% 35% 5% 22% 21 Salem D Brian Clem Doug Rodgers Brian Clem Alvin M Klausen - I 42% 26% 4% 27% 22 Woodburn D Betty Komp Patty Milne Teresa Alonso Leon 39% 26% 4% 31% 23 Polk, Benton R Mike Nearman Mike Nearman Jim Thompson - I 33% 41% 5% 22% 24 Yamhill R Jim Weidner Rob Noble Ken Moore 36% 35% 5% 24% 25 Kiezer, Newberg R Bill Post Bill Post Sharon Freeman 33% 39% 5% 23% 26 Wilsonville R John Davis Richard Vial Ray Lister 36% 36% 5% 23% 27 Beaverton D Tobias Read Sheri Malstrom 48% 26% 4% 23% 28 Beaverton D Jeff Barker Gary Carlson Jeff Barker 43% 26% 4% 27% 29 W Wash Co D Susan McLain Juanita Lint Susan McLain 39% 28% 4% 29% 30 Hillsboro D Joe Gallegos Dan Mason Janeen Sollman 40% 28% 4% 28% BOLD Blue = Legally Trained Highlighted Gray = Not running for reelection BOLD Red % = MAJORITY PARTY 1 of 4

8 Filing Information Updated 6/15/2016 House Geographic Party Incumbent Republican Democratic Third Party Democrats Republicans Independents Other District Area Candidate Candidate Candidate 31 St Helens D Brad Witt Brad Witt 40% 30% 4% 25% 32 N Coast D Deborah Boone Bruce Bobek Deborah Boone 40% 31% 4% 25% 33 NW Portland D Mitch Greenlick John Verbeek Mitch Greenlick 48% 23% 4% 25% 34 NE Wash Co D Ken Helm Ken Helm Donald Hershiser - I 47% 23% 4% 26% 35 Tigard D Margaret Doherty Margaret Doherty Jessica Cousineau - I 46% 27% 4% 23% 36 SW Portland D Jennifer Jennifer Williamson 61% 13% 4% 22% Williamson 37 West Linn R Julie Parrish Julie Parrish Paul Southwick 40% 34% 5% 21% 38 Lake Oswego D Ann Lininger Patrick De Klotz Ann Lininger 52% 25% 4% 20% 39 Canby, OR City R Bill Kennemer Bill Kennemer Charles Gallia 34% 39% 5% 22% 40 Gladstone D Brent Barton Evon Tekorius Mark Meek 41% 30% 5% 25% 41 Milwaukie D Kathleen Taylor Tim McMenamin Karin Power 56% 18% 4% 22% 42 Inner SE Portland D Rob Nosse Rob Nosse James Stubbs - I 70% 5% 3% 22% 43 NE Portland D Lew Frederick Tawna Sanchez 70% 5% 3% 22% 44 N Portland D Tina Kotek Tina Kotek 63% 8% 3% 26% 45 Inner NE Portland D Barbara Smith Barbara Smith Warner 63% 12% 3% 22% Warner 46 Inner SE Portland D Alissa Keny-Guyer Alissa Keny-Guyer 62% 11% 3% 24% 47 N Central Mult Co D Jessica Vega Diego Hernandez Michael Langley - I 48% 19% 4% 29% Pederson 48 S Central Mult Co D Jeff Reardon George Yellott Jeff Reardon 45% 22% 4% 29% 49 N Gresham D Chris Gorsek Chris Gorsek 41% 26% 4% 29% 50 S Gresham D Carla Piluso Stella Armstrong Carla Piluso Michael Calcagno - I 40% 27% 4% 28% 51 East Clack Co D Shemia Fagan Lori Chavez-DeRemer Janelle Bynum 39% 29% 4% 28% 52 Hood River R Mark Johnson Mark Johnson Mark Reynolds 38% 32% 5% 25% 53 Deschutes R Gene Whisnant Gene Whisnant Michael Graham 31% 40% 6% 23% 54 Bend R Knute Buehler Knute Buehler Gena Goodman-Campbell 41% 29% 6% 24% 55 S Central OR R Mike McLane Mike McLane Brie Malarkey 25% 45% 6% 23% 56 Klamath R Gail Whitsett Werner Reschke 23% 50% 5% 22% 57 NE OR R Greg Smith Greg Smith 26% 39% 5% 30% 58 Pendleton R Greg Barreto Greg Barreto 26% 46% 5% 23% 59 N Central OR R John Huffman John Huffman Tyler Gabriel 32% 39% 5% 23% 60 SE OR R Cliff Bentz Cliff Bentz 21% 51% 4% 23% BOLD Blue = Legally Trained Highlighted Gray = Not running for reelection BOLD Red % = MAJORITY PARTY 2 of 4

9 Filing Information Updated 6/15/2016 Senate District Geographic Area Party Incumbent Republican Candidate Democratic Candidate Third Party Candidate Democrats Republicans Independents Other 1 S Coast, Roseburg R Jeff Kruse Jeff Kruse Timm Rolek 30% 43% 5% 22% 2 Jackson, Josephine R Herman Herman Baertschiger, Jr. 27% 43% 6% 25% Baertschiger, Jr. 3 Medford, Ashland D Alan Bates 41% 32% 5% 22% 4 S Eugene, Lane Co D Floyd Prozanski 45% 30% 4% 21% 5 Mid-Coast D Arnie Roblan Dick Anderson Arnie Roblan 39% 31% 5% 24% 6 Springfield, Eugene D Lee Beyer 44% 29% 4% 23% 7 Eugene, N Lane D Chris Edwards 46% 27% 5% 23% 8 Albany, Corvallis D Sara Gelser 44% 29% 5% 23% 9 E Central R Fred Girod Fred Frank Girod Rich Harisay 30% 41% 5% 24% Willamette Valley 10 Salem, S Marion R Jackie Winters 37% 36% 5% 22% 11 Keizer, Woodburn D Peter Courtney 41% 26% 4% 29% 12 W Central R Brian Boquist Brian J Boquist Ross Swartzendruber 34% 38% 5% 23% Willamette V 13 Newberg, R Kim Thatcher 34% 38% 5% 23% Wilsonville 14 Beaverton D Mark Hass Mark Hass 46% 26% 4% 25% 15 Hillsboro, Forest D Chuck Riley 39% 28% 4% 29% Grove 16 St Helens, N Coast D Betsy Johnson 40% 31% 4% 25% 17 NW PX, NE Wash Co D Elizabeth Steiner Hayward 47% 23% 4% 25% 18 SW Portland, Tigard D Ginny Burdick Ginny Burdick 54% 19% 4% 22% 19 Lake Oswego, W D Richard Devlin 46% 29% 4% 21% Linn 20 Canby, Gladstone R Alan Olsen 37% 35% 5% 23% 21 SE Portland, D Diane Rosenbaum Kathleen Taylor 63% 11% 3% 22% Milwaukie 22 N, NE Portland D Chip Shields Lew Frederick 67% 7% 3% 24% 23 Inner NE, SE Portland D Michael Dembrow Michael Dembrow 62% 12% 3% 23% 24 Mid Multnomah Co D Rod Monroe 47% 20% 4% 29% 25 Gresham D Laurie Monnes Anderson Tamie Tlustos-Arnold Laurie Monnes Anderson 41% 27% 4% 28% 26 E Clack, Hood River R Chuck Thomsen 39% 31% 4% 26% 27 Deschutes R Tim Knopp Tim Knopp Greg Delgado 36% 34% 6% 24% 28 S Central, Klamath R Doug Whitsett Dennis Linthicum 24% 47% 6% 23% 29 NE Oregon R Bill Hansell Bill Hansell Barbara E Dickerson - I 26% 43% 5% 26% 30 Greater E Oregon R Ted Ferrioli Ted Ferrioli W Mark Stringer 27% 45% 5% 23% BOLD BLUE = Legally Trained Highlighted Gray = Not running for re-election Highlighted Green = Not up for election BOLD % = MAJORITY PARTY 3 of 4

10 Filing Information Updated 6/15/2016 Office Party Incumbent Republican Democrat Other Candidate Governor D Kate Brown Bud Pierce Kate Brown Cliff Thomason Secretary of State D Jeanne Atkins Dennis Richardson Brad Avakian Paul Damian Wells Treasurer D Ted Wheeler Jeff Gudman Tobias Read Chris Telfer Attorney General D Ellen Rosenblum Daniel Zene Crowe Ellen Rosenblum BOLD Blue = Legally Trained Highlighted Gray = Not running for reelection 4 of 4

11 168 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 ; SC S061992) On direct appeal from the judgment of the Multnomah County Circuit Court.* Argued and submitted November 6, 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.

12 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.

13 170 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.

14 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, 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

15 172 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 (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).

16 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 (1); ORS (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 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 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.

17 174 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, , 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 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.

18 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 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, , 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 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.

19 176 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 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 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

20 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 Id. at 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,

21 178 Horton v. OHSU 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 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 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

22 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 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.

23 180 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 ).