"Does Oregon's Constitution Need a Due Process Clause

Washington Law Review Online Washington Law Review Online

Volume 91 Article 8

2016

"Does Oregon's Constitution Need a Due Process Clause?" "Does Oregon's Constitution Need a Due Process Clause?"

Thoughts on Due Process and Other Limigations on State Action Thoughts on Due Process and Other Limigations on State Action

Thomas A. Balmer

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Thomas A. Balmer,

"Does Oregon's Constitution Need a Due Process Clause?" Thoughts on Due Process

and Other Limigations on State Action

, 91 WASH. L. REV. ONLINE 157 (2016).

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“DOES OREGON’S CONSTITUTION NEED A DUE

PROCESS CLAUSE?”

THOUGHTS ON DUE PROCESS AND OTHER

LIMITATIONS ON STATE ACTION

Thomas A. Balmer

INTRODUCTION

During a legislative hearing last year, an Oregon state senator asked,

“Does Oregon’s Constitution need a due process clause?” That question

raises fundamental issues of constitutional law and of the relationship

between the federal and state constitutions. Can and should state courts

rely primarily on federal constitutional principles, made applicable to the

states through the Fourteenth Amendment’s Due Process Clause, in

deciding critical questions about the rights of criminal defendants,

freedom of speech and religion, and equal protection? Or should state

courts focus on their own constitutions—state due process, equal

privileges and immunities, and similar “great ordinances” or more

specific state provisions—in determining whether state laws and

executive branch actions are valid? Would that focus still allow state

courts to reach the “right” result in cases where no specific constitutional

provision provides a clear basis for decision?

Professor (and later Oregon Supreme Court Justice) Hans Linde’s

path-breaking 1970 article, Without “Due Process”: Unconstitutional

Law in Oregon,

addressed some of those questions and contributed to

the state constitutional revolution of the succeeding decades.

That

* Chief Justice, Oregon Supreme Court. I am indebted to Zoee Turill Powers and Alletta Brenner

for research and editorial assistance and to Jack Landau and Hugh Spitzer for their helpful

comments on an earlier draft.

1. Hans A. Linde, Without “Due Process”: Unconstitutional Law in Oregon, 49 O

R. L. REV. 125

(1970).

2. R

OBERT F. WILLIAMS, THE LAW OF AMERICAN STATE CONSTITUTIONS 113–34 (2009); Jack L.

Landau, Hurrah for Revolution: A Critical Assessment of State Constitutional Interpretation, 79 O

L. REV. 793, 815–26 (2000); see also INTELLECT AND CRAFT: THE CONTRIBUTIONS OF JUSTICE

HANS LINDE TO AMERICAN CONSTITUTIONALISM (Robert F. Nagel ed., 1995) [hereinafter

NTELLECT AND CRAFT].

157

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158 WASHINGTON LAW REVIEW ONLINE [Vol. 91:157

revolution, with its emphasis on examining the text and meaning of state

constitutional provisions,

has had the positive effect of requiring courts

(and litigants) to articulate the specific interests at stake in light of those

provisions, rather than engaging in an open-ended inquiry into whether a

state’s economic regulatory scheme was arbitrary or unreasonable and

thus potentially unconstitutional under the Federal Due Process Clause

or whether a state law impermissibly interfered with some fundamental

right. But it has its shortcomings as well, and, at times, has been

susceptible to the same kind of result-oriented decisions for which

substantive due-process-driven analysis has long been criticized. In this

Essay, I briefly examine several aspects of state court reliance on “due

process” provisions—both state and federal—in an effort to see what is

lost and what is gained by relying instead on other state constitutional

provisions. In doing so, we can see some of the changes in state

constitutional interpretation forty-five years after Linde’s article and

begin to seek an answer to our legislator’s question.

I. THE OREGON CONSTITUTION HAS NO DUE PROCESS

CLAUSE—BUT THE OREGON SUPREME COURT DIDN’T

NOTICE FOR 100 YEARS

We begin where Linde did, with several Oregon cases that purported

to rely on the due process clause of the Oregon Constitution and that

illustrate what he saw as the shortcomings of constitutional analysis at

the time. In Leathers v. City of Burns,

the Oregon State Supreme Court

considered two city ordinances that regulated the unloading and storage

of flammable liquids by, among other things, prohibiting unloading fuel

from a truck with a capacity of over 2200 gallons and using a storage

tank holding more than 3000 gallons (or 4000 for a single service station

or facility).

A service station operator challenged the constitutionality

of the ordinances as arbitrary and unreasonable, arguing that they

deprived him of property and liberty interests without due process of

3. Indeed, Linde can be seen as an early “textualist,” although not necessarily an “originalist” of

the Antonin Scalia variety. Linde’s teachings have influenced academics and courts in Oregon and

elsewhere. See Thomas A. Balmer & Katherine Thomas, In the Balance: Thoughts on Balancing

and Alternative Approaches in State Constitutional Interpretation, 76 A

LB. L. REV. 2027, 2028,

2047–49 (2012–2013).

4. I should note, however, that we are using the questions posed here primarily to illuminate

aspects of state constitutional law and that the outlines of any answers are only suggestive and

conditional.

5. 444 P.2d 1010 (Or. 1968).

6. Id. at 1011.

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law.

What was as interesting to Linde as the substantive decision in the

case—the Court upheld the restriction on tanker size but struck down the

storage tank size limit—was the way the Court went about deciding the

case and what it said about due process. The Court first summarized the

complaint as alleging that “the ordinances violate the due process and

equal protection clauses of the Federal and state constitutions.”

Then,

after reviewing the evidence at trial, and to introduce its legal analysis

under the Due Process and Equal Protection Clauses of the Fourteenth

Amendment, the Court observed, “What we hold applies equally to

plaintiff’s claim of violation of comparable provisions of the

Constitution of Oregon.”

Similarly, just a few weeks before Leathers, the Court held a

municipal vagrancy ordinance unconstitutional on the grounds that the

ordinance was “too vague to provide a standard adequate for the

protection of constitutional rights.”

The Court stated that the law

invited “arbitrary and discriminatory enforcement,”

and held that it

violated the “due process clause of [a]rticle I, [s]ection 10 of the Oregon

Constitution, as well as the Fourth and Fourteenth Amendments of the

United States Constitution.”

Professor Linde had the chutzpah to point out that despite the Oregon

Supreme Court’s statements in Leathers, City of Portland, and other

cases, “Oregon has no ‘due process’ clause. It also does not guarantee

the equal protection of the laws.”

As we will discuss below, the

Oregon Constitution has other broad provisions protecting individual

rights and liberties from government interference, but it has no

provisions that track the text or specific focus of the Due Process or

Equal Protection Clauses of the Fourteenth Amendment. To the extent

that Oregon courts have sometimes based their decisions on the “due

process” or “equal protection” provisions of the Oregon Constitution,

7. Id. at 1015.

8. Id. at 1011.

9. Id. at 1015.

10. City of Portland v. James, 444 P.2d 554, 557 (Or. 1968).

11. Id. at 557.

12. Id. at 555. Article 1, section 10 of the Oregon Constitution is worded differently from the Due

Process Clauses of the Fifth and Fourteenth Amendments and from similar provisions in other state

constitutions. As I discuss below, it is more accurately described as an “open courts,” “remedy,” or

“due course of law” provision. It 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.” O

R. CONST.

art. 1, § 10.

13. Linde, supra note 1, at 135 (emphasis in original).

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160 WASHINGTON LAW REVIEW ONLINE [Vol. 91:157

they have erred. We have no such provisions.

Linde’s legacy had two different and important aspects, and the

double entendre of his article’s title captures both: First, the absence of a

due process clause in the Oregon Constitution and second, the process of

constitutional decision-making without relying on the Federal Due

Process Clause. As we have just seen, Without “Due Process” suggests

first that, the Oregon State Supreme Court’s occasional contrary

statements notwithstanding, the Oregon Constitution does not have a due

process clause. Linde urged lawyers and judges to actually read,

interpret, and apply constitutional (and other) texts, rather than simply

balance an amorphous and malleable understanding of the state’s “police

power”— another term, Linde often observed, that does not appear in

the Constitution of Oregon (or any other state)—against asserted

constitutional rights.

And he often pointed out that many state

constitutions have specific, often detailed, provisions regarding rights of

expression, religion, and criminal procedure that are not found in the

Federal Bill of Rights and that could provide a firmer basis for state

court decisions.

Before long, the Oregon State Supreme Court came around, citing

Linde’s article and holding (contrary to earlier decisions) that article I,

section 10, of the Oregon Constitution was not a due process provision

and that the equal privileges and immunities clause (article I, section 20,

of the Oregon Constitution) and the Equal Protection Clause of the

Fourteenth Amendment were not necessarily “equivalents.”

In 1985,

after Professor Linde had become Justice Linde, the Court, in a routine

case, rejected state and federal due process and equal protection

challenges to a statute requiring payment of assessed income taxes as a

precondition to judicial review of a tax dispute.

Writing for the Court,

Linde stated that, contrary to the taxpayer’s argument, “[a]rticle I,

14. Id. at 147–49.

15. See, e.g., State ex rel. Oregonian Publ’g Co. v. Deiz, 613 P.2d 23, 28–30 (Or. 1980) (Linde, J.

concurring) (discussing constitutional protection of right to open administration of justice under

Oregon Constitution and arguing that it is more stringent than that offered by the Federal Bill of

Rights).

16. Olsen v. State, 554 P.2d 139, 143 (Or. 1976). Several years earlier, the Court had noted that

“Professor Linde demonstrates that [article I, section 10] is not a due process provision, but rather

has to do with the protection of legal remedies which assert interests recognized in tort law,” but

had also pointed out that “[t]his court has not always agreed with him.” Sch. Dist. No. 12 of Wasco

Cty. v. Wasco Cty., 529 P.2d 386, 391 (Or. 1974). Article 1, section 20 of the Oregon Constitution

provides: “No law shall be passed granting to any citizen or class of citizens privileges, or

immunities, which, upon the same terms, shall not equally belong to all citizens.” O

R. CONST. art. I,

§ 20.

17. Cole v. Or. Dep’t of Revenue, 655 P.2d 171, 173 (Or. 1982).

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section 10, of the Oregon Constitution, which guarantees that ‘every

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

person, property, or reputation,’ is neither in text nor in historical

function the equivalent of a due process clause.”

The debate was

essentially over.

But the title Without “Due Process” also suggests Linde’s larger

project, namely his argument that state courts should not turn first to the

substantive provisions of the Federal Constitution when deciding

constitutional cases.

Linde asserted—irrefutably, as a matter of logic—

that there is no federal due process violation if state law, including the

state constitution, provides the relief a party seeks:

The proper sequence is to analyze the state’s law, including its

constitutional law, before reaching a federal constitutional

claim. This is required, not for the sake of parochialism or style,

but because the state does not deny any right claimed under the

[F]ederal Constitution when the claim before the court in fact is

fully met by state law.

This latter impact of Linde’s legacy has been much discussed and is

thoroughly engrained in Oregon law.

Other states, Washington being

an example, have reached similar conclusions.

But, to return to our

legislator’s question, has it mattered that Oregon does not have a due

process clause?

II. THE OREGON COURT IN THE LOCHNER/SUBSTANTIVE

DUE PROCESS ERA

Interestingly, the cases that Linde used to make his point that the

Oregon Constitution lacks a due process clause did not involve

18. Id.

19. See Linde, supra note 1, at 133–35.

20. Sterling v. Cupp, 625 P.2d 123, 126 (Or. 1981). Linde’s view may be supported by logic and

important prudential considerations, but it is not clear that his central legal contention—that no

violation of a federal constitutional right has occurred if a state court vindicates the claim under the

state constitution—is correct. In Zinermon v. Burch, 494 U.S. 113 (1990), the Court stated that, at

least as to nonprocedural federal constitutional guarantees, “the [federal] constitutional violation is

complete when the wrongful action is taken.” Id. at 125; see also State v. Stoudamire, 108 P.3d 615,

624–26 (Or. Ct. App. 2005) (Landau, J., concurring) (explaining Zinermon in context of applying

federal and state search and seizure protections).

21. See generally, e.g., I

NTELLECT AND CRAFT, supra note 1; Symposium, Symposium on the

Work of Justice Hans Linde, 70 O

R. L. REV. 679 (1991) (volume dedicated to discussion of Linde’s

legacy and impact on state and federal constitutional law); Symposium, Unparalleled Justice: The

Legacy of Hans Linde, 43 W

ILLAMETTE L. REV. 157 (2007) (same).

22. See, e.g., State v. Coe, 101 Wash. 2d 364, 679 P.2d 353 (1984).

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162 WASHINGTON LAW REVIEW ONLINE [Vol. 91:157

procedural claims that the state had denied a person life, liberty, or

property without adequate process, but rather claims that the state had

restricted substantive economic or personal liberties protected by the

federal and state constitutions.

Moreover, Linde’s examples were from

the 1960s, long after the United States Supreme Court had stopped using

“substantive due process” to strike down economic regulation, and as the

Court was beginning to use the concept of substantive due process

instead to protect rights of privacy and personal autonomy. Nevertheless,

it’s useful to look back to the era when both state and federal courts

often used substantive due process to invalidate statutes regulating labor

and other aspects of the economy, and to observe how the Oregon State

Supreme Court approached those kinds of challenges. Based on now-

discredited cases such as Lochner v. New York,

the United States

Supreme Court is often viewed as having been hostile to labor and

economic legislation at the turn of the twentieth century. But, as Emily

Zacklin reminds us, the Court, in fact, upheld a number of progressive

efforts to protect working people.

Rather, as Zacklin argues, state

courts—interpreting both state and federal due process clauses (often

without even quoting the provisions or differentiating between state and

federal law)—struck down many regulatory statutes, and were, on the

whole, probably more hostile to labor and other progressive legislation

at the time than the United States Supreme Court.

Similarly, Hugh

Spitzer has surveyed the Washington decisions of the same period and

finds that the Washington State Supreme Court in the late nineteenth and

early twentieth centuries often struck down regulatory legislation, such

as a law providing for the inspection of commodities, even though those

commodities were not intended for immediate sale to the public.

the second decade of the new century, however, the Washington State

Supreme Court was routinely upholding legislation regulating public

utilities, maximum working hours for women, and mandatory workers’

compensation insurance.

23. See, e.g., City of Portland v. James, 444 P.2d 554 (Or. 1968); Leathers v. City of Burns, 444

P.2d 1010 (Or. 1968).

24. 198 U.S. 45 (1905).

25. E

MILY ZACKLIN, LOOKING FOR RIGHTS IN ALL THE WRONG PLACES: WHY STATE

CONSTITUTIONS CONTAIN AMERICA’S POSITIVE RIGHTS 134–38 (2013).

26. Id. at 109.

27. Hugh Spitzer, Pivoting to Progressivism: Justice Stephen J. Chadwick, the Washington

Supreme Court, and Change in Early 20th-Century Judicial Reasoning and Rhetoric, 104 P

AC. NW.

Q. 107 (2013).

28. Id. at 108.

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But what about Oregon? While the Oregon Supreme Court seriously

entertained substantive due process challenges to labor and economic

regulation during this period, it generally deferred to the legislature and

upheld laws that seemed reasonably related to a legitimate legislative

goal. In 1902, for example, a barber challenged a state law that

prohibited the operation of barbershops on Sunday, arguing that, by

permitting (some) other businesses to remain open, the law was arbitrary

and unreasonable.

Accordingly, the barber asserted that the act violated

the Federal Due Process Clause “in that it deprived [him] of liberty or

property without due process of law,” and also violated article I, section

1 of the Oregon Constitution “in that it encroached upon his guaranty of

equal rights.”

The Court reviewed the history of Oregon’s Sunday

closure laws and decisions from around the country upholding such laws

as reasonable exercises of the state’s police power. Indeed, a similar

case—involving a general Sunday closure law that exempted businesses

of “necessity and charity,” but did not include barbers in that group—

had gone to the United States Supreme Court, which had upheld the

law.

The United States Supreme Court had noted the “wide discretion

confessedly necessarily exercised by the states in these matters,”

which

prohibited only classifications “so palpably arbitrary as to bring the law

into conflict with the federal constitution.”

The Oregon Court followed

suit, quoting other state decisions regarding legislation that would

prevent “overwork” and protect “the physical welfare of the citizen,”

and upheld the Sunday closing requirement.

Perhaps the most famous Oregon case of that period was State v.

Muller,

where the Court considered due process and other

constitutional challenges to a statute that made it unlawful to employ a

woman in a laundry for more than ten hours a day.

Curt Muller had

been fined ten dollars for employing a Mrs. E. Gotcher for more than the

maximum permissible hours at his Portland laundry on September 4,

29. Ex parte Northrup, 69 P. 445, 445–46 (Or. 1902).

30. Id. at 446. Article I, section 1, of the Oregon Constitution, provides in part: “We declare that

all men, when they form a social compact are equal in right.” O

R. CONST. art. I, § 1.

31. Northrup, 69 P. at 493–46 (citing State v. Petit, 77 N.W. 225 (Minn. 1898), aff’d, 177 U.S.

164 (1900)).

32. Id. at 447 (quoting Petit v. Minnesota, 177 U.S. 164, 168 (1900)).

33. Id.

34. Id. at 494–47.

35. 85 P. 855 (Or. 1906).

36. Id.

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1905.

Seeking to overturn his conviction, Muller argued that the law

interfered with his female employees’ liberty of contract and that it

discriminated against women and in favor of men.

The Oregon Court

cited the then-recent decision in Lochner for the general proposition that

the freedom to contract is a liberty interest protected by the Due Process

Clause of the Fourteenth Amendment and “cannot be arbitrarily

interfered with by the legislature.”

But the Court quickly added that

“the right to labor and to contract for labor, like all rights, is itself

subject to such reasonable limitations as are essential to the peace,

health, welfare, and good order of the community.”

The Court upheld

the statute.

When Muller took his case to the United States Supreme Court, Louis

Brandeis was recruited to support the state’s defense of its statute. He

briefed and argued the case (along with a local Oregon lawyer), and

prevailed in Muller v. Oregon.

The Supreme Court opinion’s emphasis

on the role of women as mothers whose health is “essential to vigorous

offspring,” and to protecting “the strength and vigor of the race,” was

certainly a victory for progressive labor legislation, even at the

temporary expense of the broader cause of women’s equality, including

the right to vote that was gaining prominence at the same time.

That

focus, at least, allowed the Court to distinguish Lochner, but it would be

almost another thirty years before the Court altered its substantive due

process analysis and began regularly upholding labor and economic

regulatory legislation against due process challenges.

While the Oregon courts generally upheld progressive legislation

under general federal or state constitutional provisions, they certainly

took such challenges seriously, often evaluating new laws to decide

whether they were “arbitrary” or “unreasonable” or beyond the state’s

“police power.” More interesting perhaps, as Without “Due Process”

reminds us, is that state courts have continued to apply substantive due

process principles to economic and other regulatory statutes long after

the United States Supreme Court abandoned that approach in the late

1930s.

Robert Williams also has pointed out that states continue to use

37. Id.

38. Id. at 855–56.

39. Id. at 856.

40. Id.

41. 208 U.S. 412 (1908). For interesting additional background on the case, see Ronald K.L.

Collins & Jennifer Friesen, Looking Back on Muller v. Oregon, 69 A.B.A.

J. 294 (1983).

42. Muller, 208 U.S. at 421.

43. Linde, supra note 1, at 163–66.

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substantive due process to scrutinize—and occasionally hold

unconstitutional—economic regulation, despite the federal courts’

“hands-off” approach. In contrast to the Lochner era, however, Williams

points out that state courts generally act in what they perceive to be the

interest of the general public, rather than narrower business interests.

III. THE PIVOT FROM DUE PROCESS TO OTHER, SPECIFIC

CONSTITUTIONAL PROVISIONS

If a state constitution lacks a due process clause, and if we follow

Linde and consider state constitutional arguments before turning to the

Federal Due Process Clause, how should a state court approach broad

constitutional challenges to state laws or policies? One answer, driven

by Linde’s suggestion that courts actually consider the text—the whole

text—of their state constitutions, is for litigants and state courts to focus

on the narrower and sometimes forgotten provisions that hide in dark

corners of many state constitutions.

State constitutions often have more specific protections of individual

rights than we find in the Federal Constitution. As a result, at least with

respect to these specific provisions, state constitutions may provide more

direct guidance to courts. One notable example of such a case is Linde’s

decision in Sterling v. Cupp.

In that case, male prison inmates

challenged a state practice allowing female prison guards to conduct

body searches of male inmates and to monitor them, even in showers or

toilets.

The inmates argued that those activities violated their

constitutional right to privacy.

The Oregon Court of Appeals had

agreed with the inmates, relying on the United States Supreme Court’s

then-recent decision in Griswold v. Connecticut,

in which the Court

concluded that the Due Process Clause of the Fourteenth Amendment

(when considered with other provisions in the Bill of Rights) protects a

“right of privacy,” and held that the state policy at issue violated that

right.

The Oregon Supreme Court affirmed the court of appeals’ decision in

Sterling, but on a different ground, looking instead to Oregon’s own

constitution. Justice Linde, consistent with his earlier article, first

44. WILLIAMS, supra note 2, at 190–92.

45. 625 P.2d 123 (Or. 1981).

46. Id. at 125.

47. Id. at 126.

48. 381 U.S. 479 (1965).

49. See Sterling, 625 P.2d at 126 (citing Griswold, 381 U.S. 479).

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rejected the court of appeals’ approach of turning to the Federal Due

Process Clause before it had considered whether the Oregon

Constitution precluded the state’s policy.

Perhaps to the surprise of the

plaintiffs, who had not raised the argument, Linde looked to article I,

section 13, of the Oregon Constitution, which provides, “No person

arrested, or confined in jail, shall be treated with unnecessary rigor.”

Nothing in the history of that provision indicated that it had anything to

do with searches, pat-downs, or the monitoring of incarcerated

individuals, let alone of the gender of the prison guards performing those

functions.

To fill that gap, Linde looked to and relied upon what he

conceded were “nonofficial”

standards regarding the treatment of

prisoners, including those adopted by the American Bar Association and

the American Correctional Association, as well as the Universal

Declaration of Human Rights and documents from various United

Nations agencies.

Sterling illustrates the strengths and potential weaknesses of focusing

on specific state constitutional provisions rather than trying to discern

the ill-defined parameters of the substantive aspect of the Due Process

Clause—particularly the “right to privacy”—and apply that provision to

a novel fact situation. Linde correctly pointed out the difficulties of

defining the privacy right protected by the Due Process Clause,

but a

disinterested observer might question whether the interpretive exercise

Linde undertook instead—deciding whether a male prisoner searched or

observed while showering by a female guard had been “treated with

unnecessary rigor”—was much less open-ended. A dissenting opinion

made the reasonable point that there appeared to be nothing to indicate

“that the ‘unnecessary rigor’ clause was intended to authorize the courts

to enforce standards of delicacy or courtesy among adults in prison in

the name of the constitution,” and added that the correctional standards

Linde cited “are worthy of respectful attention from the legislature or the

executive branch, but they are no substitute for the constitution and they

50. Id. at 126.

51. Id. at 128.

52. See id. at 128–29 (discussing historical underpinnings of provision); id. at 140 (Tanzer, J.

dissenting) (arguing that there is “no evidence that the ‘unnecessary rigor’ clause was intended to

authorize courts to enforce standards of delicacy or courtesy among adults in prison in the name of

the constitution”).

53. Id. at 130 (majority opinion).

54. Id. at 128–32.

55. Id. at 129.

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do not provide a mandate for judicial intervention.”

Nevertheless, Sterling reminds us that state constitutions contain a

variety of sometimes forgotten provisions that may provide better, or at

least state constitution-based, grounds for invalidating state statutes or

policies; this may avoid other problems that can arise from reliance on

the Due Process Clause. And, as Linde also noted in Without “Due

Process,” grounding a decision on an independent interpretation of a

state constitutional provision, rather than the Due Process Clause,

insulates the decision from possible review and reversal by the United

States Supreme Court.

A less dramatic, but perhaps more satisfying example of using a

narrow, more specific state constitutional provision rather than a more

general state or federal provision, can be found in Oregon’s handling of

challenges to criminal penalties on the ground that they are not

proportional to the offense.

Article I, section 16, of the Oregon

Constitution provides, in part, “[c]ruel and unusual punishments shall

not be inflicted, but all penalties shall be proportioned to the offense.”

In earlier days, if a defendant challenged a sentence as unconstitutional

because it was draconian compared to the crime—say, life in prison for a

first-time trespass—the defendant and the court would look to the cruel

and unusual punishment provision of the Eighth Amendment or to an

analogous state constitutional provision.

In a case from the early twentieth century, State v. Ross,

the

defendant was convicted of larceny and sentenced to pay a fine of

$576,853.74, to serve five years in the state penitentiary, and to spend

one day in the county jail for every two dollars of the fine, not to exceed

288,426 days.

The Oregon Supreme Court held that the sentence was

so excessive as to constitute cruel and unusual punishment, but engaged

in essentially no textual or other analysis of any state or federal

56. Id. at 140 (Tanzer, J., dissenting). The dissent also rejected the “privacy” theory adopted by

the court of appeals, pointing out that the plaintiffs had not challenged the State’s right to search

inmates, but only “the authority of the [S]tate to have the searches performed by persons of either

sex.” Id. at 139. The dissent argued that “plaintiffs’ expectation of privacy is not lessened and their

exposure to searches is not enlarged according to the sex of the person searching.” Id.

57. Linde, supra note 1, at 134–35, 159–60.

58. See generally Thomas A. Balmer, Some Thoughts on Proportionality, 87 O

R. L. REV. 783

(2008).

59. O

R. CONST. art. 1, § 16.

60. 104 P. 596 (Or. 1909), modified, 106 P. 1022 (Or. 1910), appeal dismissed, 227 U.S. 150

(1913).

61. Ross, 104 P. at 599.

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168 WASHINGTON LAW REVIEW ONLINE [Vol. 91:157

constitutional provision.

A decade later, when a defendant challenged

his sentence of six months in jail and a $500 fine for possessing two

quarts of “moonshine,” the Court expressly addressed under the Oregon

Constitution his claim that the sentence was not “proportioned”

to the

offense, although the decision relied primarily on a United States

Supreme Court case interpreting the Eighth Amendment’s prohibition of

cruel and unusual punishment.

More recently, the Court has analyzed

the proportionality requirement in detail and developed an analytical

structure to guide that determination.

That approach has been

particularly important because of uncertainty as to whether the Eighth

Amendment’s prohibition of cruel and unusual punishment contains an

implicit ban on sentences that are simply excessive or disproportionate

to the crime in some respect, or instead whether the prohibition speaks

only to the nature of the sanction itself.

By relying on Oregon’s

explicit proportionality requirement, the Oregon Court has used the

appropriate state constitutional provision to examine claims that

sentences were excessive, has been able to develop case law interpreting

the explicit requirement of proportionality in the constitution, and has,

on occasion, overturned criminal sentences on that ground.

The larger point, briefly alluded to before, is that state constitutions

often have more specific protections of individual rights than are found

in the United States Constitution. Reliance on those state texts—rather

than on federal provisions made applicable to the states by the Due

Process Clause—is not only legally sound (legally required, Linde

would say), but more satisfactory generally because they provide more

direct guidance to the courts and have the legitimacy of being traceable

to the work of the constitutional framers. Other examples of Oregon’s

constitution providing more specific provisions than the Federal

Constitution include its free expression provision, which is written in

broader terms than the First Amendment;

the multiple provisions

regarding religious liberty, including a specific provision preventing

state funds from being spent in support of religion;

and the specific

directives that “no court shall be secret,” and that justice is to be

62. See Ross, 106 P. at1024.

63. Sustar v. Cnty. Court of Marion Cnty., 201 P. 445, 448 (Or. 1921).

64. Id. at 446, 448.

65. See, e.g., State v. Wheeler, 175 P.3d 438 (Or. 2007).

66. Balmer, supra note 58, at 799–804.

67. See, e.g., State v. Rodriguez, 217 P.3d 659 (Or. 2009).

68. See O

R. CONST. art. I, § 8.

69. See, e.g., id. §§ 1–6

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administered “openly.”

IV. GREAT ORDINANCES: EQUAL PRIVILEGES AND

IMMUNITIES, AND DUE COURSE OF LAW

Suppose a government action seems to intrude too far into areas of

personal privacy, to be arbitrary and unreasonable, or to discriminate

unfairly against a particular person or group—and in contrast to a

punishment that involves “excessive rigor” or is not “proportioned to the

offense,” there is no specific constitutional provision that can plausibly

be invoked. Do other provisions of the Oregon Constitution protect those

individual rights that are less well-defined? Although, as we have seen,

the Oregon Constitution does not contain a true due process clause or an

equal protection clause, it does include several of what Williams,

quoting Justice Holmes, has called the “great ordinances of the

Constitution”—those broadly, and somewhat vaguely, phrased

provisions by which constitution writers attempted to circumscribe

government actions that they could not (or did not want to) identify with

specificity.

In the Oregon Constitution, these include the equal

privileges and immunities clause

and the “due course of law”

provision

that guarantees open courts and a “remedy by due course of

law” for injury to “person, property, or reputation.”

Not surprisingly, the Oregon courts have often used those provisions

to evaluate challenges to state statutes and actions, and sometimes have

found the state action unconstitutional. In Hewitt v. State Accident

Insurance Fund Corp.,

for example, the statute permitted an unmarried

woman to collect death benefits upon the death of an unmarried man

with whom she had cohabited for over a year, but did not provide for a

similarly situated man to receive death benefits.

The Court agreed with

the plaintiff—an unmarried man—that the statute treated one class of

people (unmarried women who had cohabited with unmarried men for a

particular time period) more favorably than unmarried men in the same

position.

The Court described that gender-based classification as

70. Id. § 10.

71. W

ILLIAMS, supra note 2, at 336–37 (quoting Vreeland v. Byrne, 370 A.2d 825 (N.J. 1977)).

72. O

R. CONST. art. I, § 20.

73. Id. § 10.

74. See id.; see also Linde, supra note 1, at 135.

75. 653 P.2d 970 (Or. 1982).

76. Id. at 971.

77. Id. at 977–79.

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“suspect” and thus subject to close scrutiny.

Finding no basis to justify

the different treatment of women and men in that context, the Court held

that the statute violated the equal privileges and immunities clause of

article I, section 20.

If the Court’s analysis in Hewitt sounds suspiciously like that found in

federal equal protection decisions, that is because the Court, in fact, cited

and relied on those cases. The Court recognized that the Equal

Protection Clause was intended to prevent discrimination against certain

groups or individuals, while the privileges and immunities provision was

focused on preventing privileges—usually economic privileges—from

being granted unequally to favored individuals and groups.

Nevertheless, the Court found helpful the equal protection analysis of

when differential treatment of similarly situated persons might raise

constitutional problems, although it was quick to point out that it did not

need to follow then-controlling federal equal protection precedents,

which were somewhat equivocal on the issue of gender discrimination.

Hewitt then provided the groundwork for an important court of

appeals decision holding that the equal privileges and immunities clause

of the state constitution barred the state medical school from offering

health insurance benefits to the spouses of employees but not to the

similarly situated same sex domestic partners of employees.

The same

sex partners argued that, although it might be reasonable to limit benefits

to spouses, they were unable to become spouses under state law; the

effect of the benefit policy and the state statute limiting marriage to two

persons of different genders, considered together, denied them a

privilege conferred on similarly situated employees.

The court of

appeals agreed and held that the disparate treatment violated article I,

section 20.

The court observed that the insurance benefits constituted a

privilege that was not made available to the same-sex partners of OHSU

employees.

Those employees constituted a “class” that was treated

differently solely because of their sexual orientation—and that

differential treatment was permissible only if it could be justified by

78. See id. at 977.

79. Id. at 979.

80. See id. at 975–76.

81. Id. at 974–75.

82. See Tanner v. Or. Health Scis. Univ., 971 P.2d 435, 437 (Or. 1998).

83. Id. at 444.

84. Id. at 448.

85. Id.

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their sexual orientation.

As the Court stated, “The parties have

suggested no such justification, and we can envision none.”

Although article I, section 20, provides that “[n]o law shall be passed”

granting privileges and immunities to some that are not equally available

to all citizens,

the Oregon courts have long held that provision to apply

to executive and other government decisions, as well as to laws enacted

by the legislature.

And, despite the provision’s origin in concerns

about economic privileges, the courts have viewed it as a more general

prohibition on differential treatment, including for example, charging

decisions by district attorneys.

In one recent case, the state attorney

general argued that the Court should disavow its longstanding approach

to article I, section 20, and return to what it argued was the original

scope of the provision as applying only to the legislature and only to

economic benefits.

The Court had little trouble rejecting that effort to

turn the clock back more than 100 years.

The most obvious other “great ordinance” in the Oregon Constitution,

article I, section 10, is the Oregon constitutional provision most

frequently confused with the Due Process Clause of the Fourteenth

Amendment. It 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.

As the text of the provision makes clear, it touches on a number of vital

aspects of government and justice. It is referred to as an “open courts” or

“remedies” or “due course of law” provision. It is not, however, a “due

86. Id. at 447.

87. Id.

88. OR. CONST. art. I, § 20.

89. See, e.g., State v. Savastano, 309 P.3d 1083, 1093 (Or. 2013) (describing cases).

90. See, e.g., State v. Clark, 630 P.2d 810 (Or. 1980).

91. Savastano, 309 P.3d at 1099.

92. See id. (finding that the state’s argument “sweeps too broadly” and noting: “[t]he state is

correct that many early privileges or immunities cases involved monopolies or other economic

benefits, but nothing in the words of the provision or the historical definitions of those words

indicates that they do not also apply to noneconomic privileges or immunities conferred by the

government”). Interestingly, the ACLU of Oregon filed an amicus brief in the Savastano case that

took no position on the defendant’s underlying argument—that the district attorney was required to

have an established policy for charging decisions in order to comply to article I, section 20—but

that vigorously opposed the Attorney General’s effort to return to a narrower interpretation of the

provision. Amended Brief of Amicus Curiae ALCU Foundation of Oregon, Inc., Savastano, 309

P.3d 1083 (No. S059973), 2012 WL 3569903.

93. OR. CONST. art. I, § 10.

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172 WASHINGTON LAW REVIEW ONLINE [Vol. 91:157

process” clause, as Linde and others have demonstrated; and indeed its

origins trace back to a different chapter of Magna Carta than the chapter

that provides the basis for the Due Process Clause in the Federal

Constitution.

The meaning and proper interpretation of article I,

section 10, are beyond the scope of this brief Essay, but its ancient roots,

broad application, and contemporary importance place it firmly in the

“great ordinance” category. The provision has provided fertile ground

for litigants, particularly related to tort claims, and the Oregon courts

have sometimes used it to avoid what most people would consider to be

grossly unjust results. In Clarke v. Oregon Health Sciences University,

for example, the Court held unconstitutional a statutory tort claims limit

of $200,000 as applied to a claim for medical negligence against a state

hospital and its employees, when the conceded economic damages to a

newborn caused by the negligence exceeded twelve million dollars.

But whether article I, section 10, could be used to protect substantive

rights outside the tort context is unclear.

In addition to its importance in tort law, article I, section 10 may

protect some procedural rights, although, as we have noted, it is not a

due process clause. We need to recall that Linde’s critique was aimed at

substantive due process and the use of state and federal due process

analysis to invalidate state statutes—particularly, but not only,

regulatory laws—on the grounds that they were arbitrary, unreasonable,

or not within the so-called police power of the state.

But aside from

those categories of cases, article I, section 10 has long been held to

provide at least some guarantee of procedural fairness, including an

appropriate and fair hearing before a person can be deprived of property

rights.

94. Linde, supra note 1, at 136–38. See generally David Schuman, The Right to a Remedy, 65

EMP. L. REV. 1197, 1199–1202 (1992) (describing history and origins of remedy clauses in state

constitutions). Oregon’s remedy clause is derived from Chapter 40 of the Magna Carta. See Linde,

supra note 1, at 138. Sir Edward Coke’s commentary on the Magna Carta, one of the most

commonly read legal texts in early America, expounded on Chapter 40, providing the language

from which the remedy clause was later developed: “[E]very Subject of this Realm, for injury done

to him in [goods, land or person,] . . . may take his remedy by the course of the Law, and have

justice and right for the injury done him, freely without sale, fully without any denial, and speedily

without delay.” Schuman, supra, at 1199 (alterations in original).

95. 175 P.3d 418 (Or. 2007).

96. Id. at. 420–22, 434.

97. See Linde, supra note 1, at 181–87 (summarizing critique).

98. See Smothers v. Gresham Transfer, Inc., 23 P.3d 333, 338–40, 351–57 (Or. 2001)

(summarizing procedural due process decisions under article I, section 10); Tupper v. Fairview

Hosp. and Training Ctr., Mental Health Div., 556 P.2d 1340, 1345–48 (Or. 1976) (O’Connell, J.,

specially concurring) (concluding that article I, section 10, required pre-termination notice and

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CONCLUSION: DOES OREGON’S CONSTITUTION NEED A DUE

PROCESS CLAUSE?

Returning to our legislator’s question, one response is that we have a

Federal Due Process Clause, so we don’t need another one in the state

constitution. The Federal Due Process Clause protects our procedural

and substantive rights, and it is regularly interpreted and applied by

federal and state courts. As Alan Tarr notes, in describing Linde’s state

law first approach, the Federal Due Process and Equal Protection

Clauses are “state-failure” provisions, available to protect rights if state

law does not.

But the United States Supreme Court is the final arbiter

of those federal constitutional provisions, of course, so in the absence of

an analogous state provision, states lose the potential for a more

expansive, rights-protective interpretation of due process. In contrast, the

Oregon Supreme Court’s interpretation of its own constitution is not

subject to federal review, even when that interpretation is different from

the United States Supreme Court’s interpretation of parallel federal

constitutional provisions. When one considers the importance of the

state constitution’s free speech and search and seizure provisions (as

interpreted by the Oregon courts) to Oregon law, and our preference not

to rely on federal interpretations of the parallel federal constitutional

guarantees, the inability to take the same approach to rights that could be

protected under a state due process clause starts to look significant.

Looking at the Oregon Constitution as it is, without a due process

clause, does it protect the rights we think important? Like many state

constitutions, Oregon’s contains a number of provisions that expressly

protect rights or impose limits on government actions, often in robust

terms. Our free speech provision, article I, section 8, for example,

protects the right to “speak, write, or print freely on any subject

whatever,” although each person is “responsible for the abuse of this

right.”

100

The constitution bars the appropriation of money for any

religious institution,

101

protects the right of the “people to bear arms for

the defence [sic] of themselves,”

102

provides specific directions

related procedural protections to state employee; criticizing majority for relying on federal due

process without first considering state constitution). Moreover, the procedural aspects of article I,

section 10, are supported by specific provisions protecting the right to a jury trial in criminal (article

I, section 11) and civil cases (article I, section 17).

99. G.

ALAN TARR, UNDERSTANDING STATE CONSTITUTIONS 184 (1998).

100. OR. CONST. art. I, § 20.

101. Id. § 5.

102. Id. § 27.

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174 WASHINGTON LAW REVIEW ONLINE [Vol. 91:157

regarding bail,

103

and requires that punishments be proportioned to the

offense,

104

just to name a few. More recent provisions give crime victims

the right to participate in proceedings against those who have caused

them harm and the right to receive restitution.

105

And just recently in

November 2014, voters approved an “equal rights amendment,”

providing that equal rights “shall not be denied or abridged . . . on

account of sex.”

106

When state courts rely on those specific state

constitutional provisions, rather than the Federal Due Process Clause,

they have more substantive guidance from the state constitution’s

framers about the meaning and scope of the restrictions they sought to

impose on state government and the rights they wanted to protect.

Even without a due process clause that tracks the Fifth and Fourteenth

Amendments, the Oregon Constitution has provisions that protect some

important procedural rights, ranging from specific rights related to jury

trials and appellate review to the more general right to a “remedy by due

course of law for injury” to person, property or reputation in article I,

section 10.

107

And in terms of substantive review of statutes and other

state actions, the Oregon Constitution, as noted previously, does contain

two broadly phrased, potentially far-reaching, provisions: The open

courts/remedies provision of article I, section 10,

108

and the equal

privileges and immunities provision of article I, section 20.

109

But the

extent to which those provisions could be interpreted to protect the kind

of individual rights covered by the “substantive” component of the

Federal Due Process Clause is unclear.

Are there potential laws or policies so oppressive, intrusive, or unfair

that most thoughtful people would consider them beyond the authority of

state government—but that do not appear to violate any existing

provision of the Oregon Constitution? Take, for example, the ban on the

use of contraceptives by married couples that gave rise to the “right to

privacy” articulated in Griswold.

110

A more far-fetched hypothetical, but

perhaps useful for discussion purposes, would be a state law that ordered

the removal of children from their parents at the age of two, to be

returned to the parents at age ten. Such a law would presumably be

103. Id. §§ 14, 16.

104. Id. § 13.

105. Id. § 42.

106. Id. § 46.

107. Id. § 10.

108. Id.

109. Id. § 20.

110. Griswold v. Connecticut, 381 U.S. 479 (1965).

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found to violate parental rights protected by “substantive due process”

under the Fourteenth Amendment, despite the fact that nothing in the

Constitution speaks specifically to such rights.

Does the Oregon Constitution offer anything to citizens who might

challenge the hypothetical statute allowing the state to take custody of

all children? Certainly, a court would look hard at the “remedy” clause

and the equal privileges and immunities provision, both of which are

written in capacious, general terms and which sometimes have been

interpreted expansively—although neither speaks very clearly to rights

of parenthood, privacy, or personal autonomy. Some decisions

interpreting the “remedy” clause have stated that it provides a remedy

only for rights that existed when the Oregon Constitution was adopted in

1857,

111

and although the equal privileges and immunities provision has

played the role of an equal protection clause, it has been interpreted as a

bar against discrimination and unequal treatment, rather than as the

source of unenumerated personal rights.

112

An Oregon court faced with a claim asserting a novel constitutional

right could perhaps draw some support from article I, section 33, which

provides, “[t]his enumeration of rights, and privileges shall not be

construed to impair or deny others retained by the people.”

113

That

provision, of course, is almost identical to the Ninth Amendment, which

the Supreme Court relied upon, in part, in Griswold.

114

It suggests, at a

minimum, that the framers of the Oregon Constitution did not view the

specific “rights” and “privileges” enumerated in the Oregon Bill of

Rights as encompassing all the rights that Oregonians “retain.” But it

gives no indication of what those rights might be or the sources to which

one might look for them, let alone the scope and limitations of any

unenumerated rights.

115

The task, however, probably would not be any less daunting—or less

firmly rooted in constitutional text, or less controversial—than the

111. Smothers v. Gresham Transfer, Inc., 23 P.3d 333, 356 (Or. 2001).

112. See, e.g., Tanner v. Or. Health Scis. Univ., 971 P.2d 435, 445–47 (Or. 1998) (discussing

meaning and application of article 1, section 20); Hewitt v. State Accident Ins. Fund, 653 P.2d 970,

975–78 (Or. 1982) (same).

113. O

R. CONST. art. 1, § 33.

114. Griswold, 381 U.S. at 484–87.

115. Few cases discuss or even cite article I, section 33. However, in Hall v. Northwest Outward

Bound School, 572 P.2d 1007 (Or. 1977), Justice Linde suggested an extremely limited view of the

provision, stating that any “rights, and or privileges” would probably need to be asserted by the

legislature, rather than by the judiciary, and that the only rights that could be “retained” would be

rights that were recognized as such at the time the Oregon Constitution was adopted. Id. at 1010–11

n.11. Whether Linde’s brief comments are correct or not is a topic for another day.

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efforts of the United States Supreme Court to decide what is protected

by the substantive component of the Federal Due Process Clause.

Certainly, in states like Oregon and Washington, with their strong

traditions of independent state constitutional analysis, the courts would

approach such challenges with open minds—and likely would not find

the absence of a state due process clause to make much difference one

way or the other. On the other hand, as discussed above, the texts,

origins and purposes of Oregon’s remedy and equal privileges and

immunities provisions are distinct from those of a true “due process”

clause. A due process clause in the Oregon Constitution would be

another “great ordinance” in the constitutional toolkit, another source

courts could look to in constitutional cases to help ensure that the

fundamental rights of Oregon citizens are protected, even as state and

local governments engaged in the necessary regulatory activities that our

society needs to function effectively. In the end, perhaps Oregon’s

constitution could use a due process clause after all.