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Full Opinion
delivered the Opinion of the Court.
This opinion concerns questions certified to this Court by the United States District Court for the District of Montana, Great Falls Division, Honorable Paul G. Hatfield presiding. The questions are as follows:
(1) Is the Montana Wrongful Discharge From Employment Act, §§ 39-2-901 to -914, MCA, unconstitutional in that it serves to wrongfully deprive an individual falling within the purview of the Act from his or her right to âfull legal redressâ within the meaning of Article II, § 16 of the Montana Constitution?
(2) Are those provisions of the Montana Wrongful Discharge From Employment Act which expressly prohibit recovery of noneconomic damages, and limit the recovery of punitive damages, violative of an individualâs right to âfull legal redressâ within the meaning of Article II, § 16 of the Montana Constitution?
We answer âNoâ to both questions.
Petitioner Meechâs action in the United States District Court claims damages for wrongful termination from employment, breach of the implied covenant of good faith and fair dealing, and intentional or negligent infliction of emotional distress. Meech also seeks punitive damages for allegedly oppressive, malicious, and unjustifiable conduct on the part of Meechâs former employer, respondent Hillhaven. The claims grew from the alleged wrongful discharge of Meech by Hillhaven. Hillhaven moved to dismiss asserting that the Montana Wrongful Discharge From Employment Act (Act) precluded Meechâs common-law claims. Meech responded to the motion by contending that the Act violated Article II, § 16 of the Montana Constitution. Certification of the questions presented here followed. Before fully answering the questions, a brief summary of the Act aids in understanding the issues.
The Act provides the exclusive remedy and procedure for ac
âPreemption of common-law remedies: Except as provided in this part, no claim for discharge may arise from tort or express or implied contract.â
Section 39-2-913, MCA. The Act exempts from its provisions causes of action for discharge governed by other state or federal statutory procedures for contesting discharge disputes. For example, the Act exempts from its provisions, discriminatory discharges, and actions for wrongful discharge from employment covered by written collective bargaining agreements or controlled by a written contract for a specific term. For other wrongful discharge claims, however, the Act provides the exclusive procedure. Sections 39-2-912 to -913, MCA. The Act repeals Montana statutes which formerly granted to both employees and employers the right to terminate the employment relationship for fault on the part of the other party. Sections 39-2-504 to -505, MCA (1985). The Actâs provisions on discharge also limit the operation of § 39-2-503, MCA, Montanaâs âat-willâ statute. See § 39-2-902, MCA. In place of the prior governing statutes and the common-law causes of action it abrogates, the Act provides a statutorily defined cause of action for wrongful discharge.
The Act broadly defines âdischargeâ to include constructive discharge. Section 39-2-903, MCA. Covered employees may sue for discharges defined as wrongful under the Act. Section 39-2-904, MCA. Three causes of action for âwrongfulâ discharge exist under the Act: discharge in retaliation for an employeeâs refusal to violate public policy or for reporting a violation of public policy, discharge in violation of the express provisions of the employerâs written personnel policies, and discharge for reasons other than good cause as defined in the Act. The Act limits the time for bringing a cause under its provisions to one year from the date of discharge. Section 39-2-904, MCA.
The Act establishes the extent of employersâ liability for wrongful discharge. Under the Act, plaintiffs have no claim to damages for âpain and suffering, emotional distress, compensatory damages, or punitive damages, or any form of damages, except as provided for in Subsections (1) and (2) [of § 39-2-905, MCA].â Subsections (1) and (2) of § 39-2-905, MCA, provide damages for lost wages and fringe benefits, together with interest thereon for a period not to exceed four years from the date of discharge. The Act defines the value of employee paid pension plans, insurance coverage, vacation time, and
Meech in essence argues that the Act denies his fundamental right to full legal redress under Article II, § 16 of the Montana Constitution. Meech also contends that the Act violates equal protection by denying the fundamental right to full legal redress to a class of claimants without demonstrating that the classification furthers a compelling state interest. See Corrigan v. Janney (Mont. 1981), [192 Mont. 99,] 626 P.2d 838, 38 St.Rep. 545; White v. State (1983), 203 Mont. 363, 661 P.2d 1272; Pfost v. State (1986), [219 Mont. 206,] 713 P.2d 495. Hillhaven answers that the Act does not violate equal protection of the laws or infringe on a fundamental right to full legal redress because Article II, § 16 of the Montana Constitution guarantees only a right of access to courts to seek a remedy for wrongs recognized by common-law or statutory authority, and the legislature may alter common-law causes of action to promote a legitimate state interest. See Shea v. North Butte Mining Co. (1919), 55 Mont. 522, 179 P. 499; Stewart v. Standard Publishing Co. (1936), 102 Mont. 43, 55 P.2d 694; Reeves v. Ille Electric Co. (1976), 170 Mont. 104, 551 P.2d 647. We agree with Hillhaven and overrule Corrigan, White, and Pfost insofar as they hold that Article II, § 16 of the Montana Constitution guarantees a fundamental right to full legal redress.
I.
THE ACT DOES NOT VIOLATE THE FUNDAMENTAL RIGHT OF FULL LEGAL REDRESS, BECAUSE NO SUCH âFUNDAMENTAL RIGHTâ IS CREATED BY ARTICLE II, SECTION 16.
Summarized, this section covers the following points:
A. The conclusion that Article II, § 16 of the Montana Constitution does not create a fundamental right results from examination of long-standing, fundamental principles of constitutional interpretation.
B. The basic rule that the legislature may alter the common
C. It also follows from the words of the original guarantee, and the meaning intended for the 1972 amendment to the original guarantee, that Article II, § 16, does not guarantee a fundamental right to a particular cause of action, remedy, or redress.
D. Judicial creation of such a fundamental right in this context would also violate the elemental principle of separation of powers.
E. Meechâs arguments on these points are inapposite.
A. Historically, Courts Have Construed Constitutional Guarantees in Light of the Particular Abuses Those Guarantees Seek to Prevent.
In construing a constitutional guarantee, courts âhave looked to the object and purpose to be accomplished by the provision.â C.J. Antieau, Constitutional Construction § 3.05 (1982). A âvery useful key to the construction [of] a constitutional guarantee is to inquire what was the evil to be removed, and what remedy did the new instrument propose;. . .â C.J. Antieau, Constitutional Construction § 3.05 (1982) (quoting Miller, Lectures on Constitutional Law 82 (1891)).
Construing our speedy remedy guarantee in light of the particular abuses the framers sought to correct supports the argument that the clause does not guarantee a fundamental right to âfull legal redress.â The predecessor to Article II, § 16, was Article III, § 6 of the 1889 Montana Constitution, which reads as follows:
âCourts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property, or character; and that right and justice shall be administered without sale, denial, or delay.â
The principal cases Hillhaven relies on, Shea, Stewart, and Reeves, concluded that Article III, § 6 of the 1889 Constitution did not constrict legislative powers because the article only provided a mandate to the courts to provide equal access to causes of action recognized at law. Shea, 179 P. at 502; Stewart, 55 P.2d at 696; Reeves, 551 P.2d at 651; cf. State ex rel. Carlin v. District Court (1945), 118 Mont. 127, 164 P.2d 155 (trial courtâs failure to convene jury for case long awaiting jury trial because of inconvenience to jurors violates the mandate in Montanaâs remedy guarantee requiring that courts provide a proper administration of justice); Tooke v. Miles City Production Credit Association (Mont. 1988), [234 Mont. 387,] 763 P.2d
Legal history demonstrates that Shea and Stewart reached the correct conclusion. Article III, § 6, was not placed in the Constitution as a directive to the legislature. Rather, the guarantee was directed at the courts, and it was framed to provide for equality in the administration of justice. Prior to the decisions in Shea and Stewart, this Court traced the guarantee embodied in Article III, § 6, to Chapter 40 of the Magna Carta. Stephens v. Nacey (1913), 47 Mont. 479, 482-83, 133 P. 361, 362. The Magna Cartaâs chapter 40, which contains language similar to the last segment of Article III, § 6, reads as follows:
âTo no one will We sell, to none will We deny or delay, right or justice.â
A. E. Howard, Magna Carta: Text and Commentary 43 (1964). The language of the first part of Article III, § 6, providing for a speedy remedy for injury to person, property, and character, resembles commentary on Chapter 40 by the influential 17th century expositor on the common law, Sir Edward Coke:
âAnd therefore every Subject of this Realm, for injury done to him in bonis, terris, uel persona [i.e., goods, lands, or person], by any other Subject, be he Ecclesiastical, or Temporal, Free or Bond, Man or Woman, Old or Young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the Law, and have justice and right for the injury done him, freely without sale, fully without any denial, and speedily without delay.â Schuman, Oregonâs Remedy Guarantee, 65 Or. L. Rev. 35, 39 (1986) (quoting E. Coke, Second Institute 55-56 (4th ed. 1671)). Cokeâs version of Chapter 40 influenced the content of remedy clauses in many state constitutions:
âThe constitutions of thirty-seven states contain passages which, in substance, provide that the courtsâ shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation.â. . . [I]t appears most likely that the highly influential Sir Edward Coke, commenting on the Magna Carta more than four centuries after its adoption, was*29 primarily responsible for the contemporary forms of the various certain-remedy provisions.â
Note, Constitutional Guarantees of a Certain Remedy, 49 Iowa L. Rev. 1202, 1202-03 (1964).
Cokeâs interpretation of the Magna Carta is, in a broad sense, faithful to its origins. The English feudal nobility sought through Chapter 40 to eliminate abuses in the writ system which governed Kingâs courts. The abuses in the system made the price of the writ obtained by a would-be litigant a determinant of the quality of justice received. See generally W. McKechnie, The Magna Carta: A Commentary on the Great Charter of King John (2d ed. 1914). The goal of ending the abuses present in the English writ system eventually lead to the embodiment of a greater constitutional principle:
âIt is evident that the Magna Carta did not put down the practice of charging heavy fees for writs. Yet this chapter [Chapter 40], although so frequently misunderstood and exaggerated, is still of considerable importance . . . [I]t has been interpreted as a universal guarantee of impartial justice to high and low; and because, when so interpreted, it has become in the hands of patriots in many ages a powerful weapon in the cause of constitutional freedom.â
W. McKechnie, The Magna Carta: A Commentary on the Great Charter of King John 397-98 (2d ed. 1914).
The recognition of the historical meaning of guarantees derived from Chapter 40 as mandating that the courts provide equal access to justice, led to limited interpretations of remedy clauses when plaintiffs claimed the provisions constricted the legislature. Wheeler v. Green (1979), 286 Or. 99, 593 P.2d 777, 789 (citing Davidson v. Rogers (1978) (Linde, J. concurring) 281 Or. 219, 574 P.2d 624); Goldberg v. Musim (1967), 162 Colo. 461, 427 P.2d 698; Shoemaker v. Mountain States Telephone and Telegraph Co. (1976), 38 Colo.App. 321, 559 P.2d 721; Twin Falls Clinic & Hospital Bldg. Corp. v. Hamill (1982), 103 Idaho 19, 644 P.2d 341; Harrison v. Schrader (Tenn. 1978), 569 S.W.2d 822. The concurring opinion in Davidson by Justice Linde set out the rationale for a limited interpretation of the guarantees in remedy clauses as follows:
âThe guarantee in article I, § 10, of a âremedy by due course of law for injury done [one] in his person, property, or reputationâ is part of a section dealing with the administration of justice. It is a plaintiffsâ clause, addressed to securing the right to set the machinery of the law in motion to recover for harm already done to one of the stated kinds of interest, a guarantee that dates by way of the origi*30 nal state constitutions of 1776 back to King Johnâs prorpise in Magna Carta chapter 40: . . . It is concerned with securing a remedy from those who administer the law, through courts or otherwise.â Davidson, 574 P.2d at 625-26 (Linde J., concurring) (Emphasis added.). Put another way:
âThe guarantee tells those who apply the law when and how they must do so. It says nothing to lawmakers, except insofar as they attempt to interfere with the administration of justice.â
Schuman, Oregonâs Remedy Guarantee, 65 Or. L. Rev. 35, 67 (1986) (emphasis in original).
In Shea, this Court succinctly explained this point holding that Article III, § 6, did not constrict the legislatureâs power to replace common-law personal injury actions with actions provided by workersâ compensation legislation:
âA reading of the section discloses that it is addressed exclusively to the courts. The courts are its sole subject-matter, and it relates directly to the duties of the judicial department of the government. It means no more nor less than that, under the provisions of the Constitution and laws constituting them, the courts must be accessible to all persons alike, without discrimination, at the time or times and the place or places for their sitting, and afford a speedy remedy for every wrong recognized by law as being remedial.â
Shea, 179 P. at 502 (emphasis added.) Both Stewart and Reeves quoted Shea for the proposition that the remedy guarantee, as a mandate aimed exclusively at the courts, does not constrict legislative powers.
We agree with Shea, Stewart, and Reeves on this point. The history of the guarantee indicates that framers of state constitutions inserted remedy clauses to insure equal administration of justice. â˘Clauses insuring equal administration of justice are aimed at the judiciary, not the legislature. Therefore, the history of our provision supports Hillhavenâs argument that our remedy guarantee does not create a fundamental right to full legal redress. Such a reading of the remedy guarantee also accords with another rule recognized in Shea: No one has a vested right to any rule of common law.
B. No One Has a Vested Right to a Rule of Common Law.
The controversy posed by the first question from the United States District Court hinges also on whether Article II, § 16, prohibits the legislature from exercising its plenary power to abrogate the
â[T]he people, through the legislature, have plenary power, except in so far as inhibited by the Constitution, and the person who denies the authority in any given instance must be able to point out distinctly the particular provision of the Constitution which limits or prohibits the power exercised.â
Missouri River Power Co. v. Steele (1905), 32 Mont. 433, 438-39, 80 P. 1093,1094. The general rule is also that no one has a vested interest in any rule of common law. Therefore, as a general proposition, the legislature, under its plenary power to act for the general welfare, may alter common-law causes of action. The legislative action may not, however, infringe on constitutional rights. We have already pointed out that historically, Article II, § 16, does not constrict the power of the legislature to alter common-law causes of action. The more specific issue here is whether the legislature may alter or abrogate causes of action sounding in tort.
A tort may be defined as:
â[A] civil wrong, other than breach of contract, for which the court will provide a remedy in the form of an action for damages. This, of course, says nothing more than that a tort is one kind of legal wrong, for which the law will give a particular redress . . .
âWhen it becomes clear that the plaintiffâs interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not of itself operate as a bar to the remedy.
âAt the opposite extreme is the bold attempt to reduce the entire law of torts to a single broad principle, that any harm done to another is a wrong, and calls for redress, unless âjustificationâ for it can be shown . . . [T]he rule does not tell us what the law will recognize as âharmâ to another, or as âjustificationâ for it. There are many interferences with the plaintiffâs interests, including many instances of negligently causing mere mental suffering without physical consequences or depriving the plaintiff of the benefit of a contract, for which the law will give no remedy, although the defendant has been clearly at fault... It is legal justification which must be looked to: the law will hold the defendant responsible for what the law regards as unjustified â and so stated, the broad rule [remedy for every wrong] means little, or nothing.â
W. L. Prosser, W. P. Keeton, Prosser and Keeton on Torts § 1, at 2-4 (5th ed. 1984) (emphasis in original.) Prosser also explains:
*32 âTort law is overwhelmingly common law, developed in case-by-case decisionmaking by courts. It is also influenced by statute. Early in the development of American tort law, doctrines emerged with respect to enforcement in tort law of standards derived from criminal statutes. Tort law is affected also by statutes explicitly aimed at changing substantive law rules previously developed by courts. Survival acts and wrongful death acts are examples.â
W. L. Prosser, W. P. Keeton, Prosser and Keeton on Torts § 1, at 19 (5th ed. 1984).
As Prosser demonstrates, wrongs recognized at law are corrected as provided by law. Legislatures in the Anglo-American system have long been held to possess the authority to expand or reduce claims and remedies available at common law. O.W. Holmes, The Common Law 112 (1881). The law of Montana has long recognized that the courts and the legislature establish the substantive law governing tort claims. Early Montana statutes contemplated passage of legislation altering the common law. For example, § 1-1-109, MCA, first enacted as part of the Bannack Statutes, states:
âThe common law of England, so far as it is not repugnant to or ⢠inconsistent with the constitution of the United States or the constitution or laws of this state, is the rule of decision in all the courts of this state.â (Emphasis added.)
Similarly, Montana law provides that there âis no common law in any case where the law is declared by statute.â Section 1-1-108, MCA. And statutes in derogation of the common law are âto be liberally construed with a view to effect their objects and to promote justice.â Section 1-2-103, MCA.
The legislatureâs exercise of its power to alter the common law supports in a large part our legal system. And as pointed out by Hillhaven, much of the legislation altering the common law concerns the legislatureâs decisions on the remedies, redress, or damages obtainable in various causes of action. For example, the legislature has arguably expanded liability in adopting comparative negligence in § 27-1-702, MCA. Similarly, in § 27-1-715, MCA, the legislature has provided a remedy where none previously existed by ordering courts to hold owners of vicious dogs strictly liable in particular circumstances. Recognition of human rights violations under Title 49 of the Montana Code Annotated, prohibition of certain trade practices in the insurance industry under Title 33 of the Montana Code Annotated, and expansion of parentsâ liability for childrenâs torts (§ 40-6-237, MCA) are also instances where the legislature has acted to ex
Legislative decisions to expand liability to further various policy objectives are debated and passed almost routinely. In a like manner, for policy reasons, the Legislature debates and passes statutes, that take away causes of action and/or constrict liability. The following are examples: abolition of a cause of action for alienation of affection (§ 27-1-601, MCA), abolition of a cause for breach of promise to marry (§ 27-1-602, MCA), protection for certain persons against a cause of action for libel (§ 27-1-804, MCA), liability limitations for those rendering emergency care at an accident scene (§ 27-1-714, MCA), liability limitations for those furnishing alcoholic beverages (§ 27-1-710, MCA), liability limitations for persons donating food for charity (§ 27-1-716, MCA), liability limitations for agents and volunteers of nonprofit corporations, (§ 27-1-732, MCA), and liability limitations for nonprofit organizations sponsoring rodeos and other events, (§ 27-1-733, MCA). Laws on livestock in open range constitute another legislative limit on liability of parties who are arguably tort-feasors. Section 60-7-202, MCA. Landowners also benefit from legislative limits on liability. For example, under § 23-2-321, MCA, a landowner owes only a duty for acts or omissions that constitute willful or wanton misconduct to individuals making recreational use of surface waters flowing over or through the landownerâs property. Similarly, from a remedy and redress standpoint, property owners benefit from statutory provisions exempting certain property from execution. The Index to the Montana Code Annotated lists over sixty types of property statutorily exempt from execution. These and other statutes constrain liability and limit remedies and redress available at law.
In actions governed by the common law, this Court has also established limitations and expansions of liability. For example, in Miller v. Fallon County (1986), 222 Mont. 214, 721 P.2d 342, 43 St.Rep. 1185, this Court abrogated interspousal tort immunity. Similarly, this Court, acting in its role as lawmaker, recently imposed on employers the duty of good faith and fair dealing. Gates v. Life of Montana Insurance Company (1982), 196 Mont. 178, 638 P.2d 1063. In another decision, breach of the duty of good faith and fair dealing arising from obligations in a lease justified an award of punitive
This Court has also refused to expand common law. For example, this Court has affirmed a trial courtâs decision disallowing evidence of emotional harm to a shareholder where the tort was committed against the shareholderâs corporation. Moats Trucking Co. v. Gallatin Dairies (Mont. 1988), [231 Mont. 474,] 753 P.2d 883, 45 St.Rep. 772. Another case held that the guarantee under Article II, § 16, does not abrogate a statute of limitations defense. State v. Perry (Mont. 1988), [232 Mont. 456,] 758 P.2d 268, 45 St.Rep. 1192.
The above cited examples of legislative and judicial limitations illustrate that the law, for a variety of policy reasons, refuses to provide a cause of action, remedy and redress for every injury. This proposition is expressed in Latin as damnum absque injuria, meaning a âloss which does not give rise to an action for damages against the person causing it.â Blackâs Law Dictionary 345 (4th ed. 1979). The legislation at issue here similarly alters common-law rights and duties and arguably denies a cause of action, remedy, and redress for injuries recognized at common law. If Article II, § 16, guarantees a fundamental right to full legal redress as embodied in common-law causes of action, then a myriad of legislation altering common law in a restrictive manner, as well as the Act, denies this fundamental right. Shea addressed this issue:
âIf the contention of counsel should be upheld, the consequence would be that the legislature would be stripped of all power to alter or repeal any portion of the common law relating to accidental injuries or the death of one person by the negligence of another.
âIt is true the legislature cannot destroy vested rights. Where an injury has already occurred for which the injured person has a right of action, the legislature cannot deny him a remedy. But at this late day it cannot be controverted that the remedies recognized by the common law in this class of cases, together with all rights of action to arise in [sic] future may be altered or abolished to the extent of destroying actions for injuries or death arising from negligent accident, so long as there is no impairment of rights already accrued.
Shea, 79 P. at 503. As Shea demonstrates, if Article III, § 6, is read as only a directive to the courts to provide for equal administration of justice, then the rule that the legislature may alter the common law does not conflict with the speedy remedy guarantee. Therefore, the general rule that no one has a vested interest in a rule of com
C. The 1972 Amendment to Article III, § 6, Did Non Recognize or Create a Fundamental Right to Full Legal Redress.In 1972, Article III, § 6 of the 1889 Constitution was amended and inserted in the current Constitution as Article II, § 16. The amendment added to the Article as underscored below:
âCourts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. No person shall be deprived of this full legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under the Workmenâs Compensation Laws of this state. Right and justice shall be administered without sale, denial, or delay.â
In Reeves, the amended version of Article III, § 6 of the 1889 Constitution was held not to constrict the legislatureâs decision to alter common law:
âAs indicated in Shea and Stewart, the legislature is not constitutionally prohibited from eliminating common law rights which have not accrued or vested. The Constitution does not freeze common law rights in perpetuity.â
Reeves, 551 P.2d at 652. There was no comment in Reeves on the amendment to Article III, § 6.
1. The Wording Itself. White and Pfost, without discussing governing precedent, reached the opposite conclusion construing Article II, Section 16 of the 1972 Montana Constitution on issues involving governmental immunity and equal protection. White held that Article II, § 16, âguarantees that all persons have a speedy remedy for every injury,â and thus the classification resulting from a cap on tort damages awarded against state governmental entities violated equal protection. White, 661 P.2d at 1275 (Emphasis added.) White then concluded that the legislation violated the guarantee because no compelling state interest justified denying the fundamental right to full legal redress for all injuries. White, 661 P.2d at 1275.
In Pfost, this Court faced an equal protection challenge to an amended version of the damages cap at issue in White. Pfost cited White and again held that Article II, Section 16, provides a âconstitutional right to full legal redress for injury.â The phrase âfull legal
âThe use of the clause âthis full legal redressâ has major significance. It obviously and grammatically refers to the âspeedy remedy afforded for every injury of person, property, or character.â The adjective âthisâ means the person, thing or idea that is present or near in place, time or thought or that has just been mentioned. Websterâs New Collegiate Dictionary (1981). The constitutional framers thus construed a âspeedy remedyâ as comprehending âfull legal redress.â A state constitutional right to full legal redress was thereby created. Any state statute that restricts, limits, or modifies full legal redress for injury to person, property or character therefore affects a fundamental right and the state must show a compelling state interest.â Pfost, 713 P.2d at 503.
There are flaws in this reasoning. As pointed out by Justice Weberâs dissent in White, rules on the construction of constitutional guarantees favor interpretations of the guarantees in line with former judicial decisions where a constitutional convention has approved a similar or identical provision in a new constitution. White, 661 P.2d at 1279 (citing 2A C. Sands, Sutherland Statutory Construction § 45.12, at 37 (4th ed. 1973))- If âthis full legal redressâ refers to the speedy remedy in the first clause, then the two references are identical and the Convention approved Sheaâs and Stewartâs definition of the guarantee. Shea and Stewart leave little doubt that our remedy provision does not guarantee a fundamental right to a particular cause of action, remedy, or redress. As discussed below, the delegates narrowly drafted the amendment to accomplish the single purpose of limiting the lawmakersâ power in restricting third party actions in workersâ compensation law.
Reliance in Pfost on the definitional and grammatical construction of the guarantee is flawed in other ways as well. For example, the word:
â âinjuryâ as employed in such a constitutional declaration implies the doing of some act which constitutes an invasion of a legal right as established by statutory or common law, . . .â
16A Am. Jur. 2d Constitutional Law § 616 at 562-63 (2d ed. 1979) (Emphasis added.) Or, as stated by one commentator, a ârecognized, pre-existing injury is the predicate, not the subject of the clause.â Schuman, Oregonâs Remedy Guarantee, 65 Or. L. Rev. 35, 67 (1986).
Similarly, the redress referred to is legal redress. Legal means:
âConforming to the law; according to law; required or permitted by*37 law; not forbidden or discountenanced by law; good and effectual in law.
Blackâs Law Dictionary 803 (5th ed. 1979). Legal redress, then, is redress as provided by law, and redress and remedy are necessarily connected to what the law defines as a cause of action.
The words âactions,â âcause of action,â âright,â âremedy,â and âredressâ are often used in a legal sense so that one implies the other. In fact, they are so related that at times one necessarily implies the other. However, there are some important distinctions which must be maintained. The term âcause of actionâ has been defined as follows:
â â[T]he fact or fa