concurring in part; dissenting in part.
I concur in the majority’s opinion, except for the portion that holds that the limitation on noneconomic damages in ORS 18.560 is unconstitutional. The majority says that ORS 18.560 violates the prohibition in Article VII (amended), section 3, against the reexamination of a fact “tried by a jury,” and thus, it invalidates the major component of the Oregon Tort Reform Law enacted in 1987. It rejects Weyerhaeuser’s argument that the statute does not interfere with the jury’s factual determination because the statute operates as a legal limitation after the jury makes its award on the basis of the reasoning of the court in Sofie v. Fibreboard Corp., 112 Wash 2d 636, 771 P2d 711, 780 P2d 260 (1989). For the reasons that follow, the majority’s reliance on that reasoning is ill-placed, and it errs when it declares the statute to be unconstitutional under section 3.
Sofie v. Fibreboard, supra, is about Article I, section 21, of the Washington Constitution, which provides that “the right of trial by jury shall remain inviolate.”1 Of course, *530Article VII (amended), section 3, has entirely different language. The Sofie court examined the right to trial by jury as it existed in Washington at the time of section 21’s adoption in 1889. The court was persuaded by the decision in Baker v. Prewitt, 3 Wash Terr 595, 19 P 149 (1888):
“Baker’s holding provides clear evidence that the jury’s fact-finding function included the determination of damages. This evidence can only lead to the conclusion that our constitution, in article 1, section 21, protects the jury’s role to determine damages.” Sofie v. Fibreboard Corp., supra, 112 Wash 2d at 646.
This court’s adoption of the Sofie court’s reasoning without regard to the discrete language and history of section 3 constitutes a “nonanalysis” of the issue. Moreover, as will be demonstrated later, the Washington court’s construction of section 21 is inconsistent with our Supreme Court’s construction of Article I, section 17, of the Oregon Constitution, although the language of the provisions is identical. Finally, the Sofie court’s reasoning is flawed because it fails to recognize the difference between the jury’s fact finding process and the imposition of a rule of law by a trial court subsequent to the jury’s factual determination.
A proper analysis begins with the understanding that ORS 18.560 is presumptively constitutional, and that we cannot declare a law that the legislature has passed in the best interests of all of the citizens of Oregon unconstitutional except when the unconstitutionality is clearly shown. See Bowden v. Davis et al, 205 Or 421, 289 P2d 1100 (1955). The first step of the analysis is to examine the language of section *5313. It is presumed that the language used in section 3 is sufficiently precise to convey the intent of its framers.
“To find the thought a given [constitutional provision] expresses, the first resort in all cases is to the natural signification of the words used * * *. If thus regarded the words embody a definite meaning, * * * there is no room for construction.” Monaghan v. School District No. 1, Clackamas County, 211 Or 360, 367, 315 P2d 797 (1957).
The majority says that “ ‘reexamine’ means to subject to a ‘second or new examination,’ ” but that it cannot discern “whether a court ‘re-examines’ a ‘fact tried by a jury’ when it reduces a damage award that exceeds the statutory limit.” 127 Or App at 520.1 disagree, because the meaning of section 3 is plain from the language of the provision. “Facts are actualities.” See Churchill v. Meade, 92 Or 626, 636, 182 P 368 (1919). A determination of an ultimate fact is a determination of what took place based on the underlying evidentiary facts and the inferences drawn therefrom. See Maeder Steel Products Co. v. Zanello, 109 Or 562, 570, 220 P 155 (1924). In contrast, the imposition of a rule of law by a court arises from a different source; from the mandate of a constitutional provision, a statute or the case law. Although a ruling of law by the court often “flows from the ultimate facts” as found by the trier of fact, it is uniquely within the province of the court and it does not involve the fact findingprocess. State v. Cummings, 205 Or 500, 532, 288 P2d 1036 (1955); see also Can-Key v. Industrial Leasing, 286 Or 173, 183, 593 P2d 1125 (1979).
Section 3 recognizes that difference. It prohibits the “reexamination of facts” tried by a jury but at the same time preserves the power of the court to set aside a verdict if there is no evidence to support it. That language demonstrates that the framers were cognizant of the difference between the fact finding process and the imposition of a rule of law dictated by the facts of a case. Section 3 does not prohibit the imposition of a rule of law that supersedes a determination of fact by a jury.
The next step is to determine whether the application of ORS 18.560 to a jury verdict constitutes “a reexamination of fact” or the imposition of a “rule of law.” It is clear *532that the determination by a jury about the amount of damages that a plaintiff has incurred as a result of a defendant’s conduct is a determination of ultimate fact and implicates section 3. See Chance v. Alexander, 255 Or 136, 138, 465 P2d 226 (1970). For instance, if a jury determines that the plaintiff has incurred $600,000 in noneconomic damages, no court in Oregon could lawfully reexamine the evidence and substitute its finding that the plaintiff had incurred only $450,000 in damages for the jury’s determination.
However, ORS 18.560 does not require the trial court to make a reassessment of the amount of damages, but requires the court to perform a different function. It says, “the amount awarded for noneconomic damages shall not exceed $500,000,” and requires the trial court to enter judgment for not more than that amount. No reevaluation of the amount of damages incurred by the plaintiff occurs. The statute establishes a fixed ceiling on the amount of damages for which a judgment could be entered. The effect of the statute is to impose a rule of law, a limit on “recoverable” damages on the jury’s verdict. In that sense, the statute, in concept, is no different than other rules of law which require a trial court to enter a judgment that changes the decision of the jury, e.g., a directed verdict under ORCP 60, a judgment notwithstanding the verdict under ORCP 63, a reduction in an award of damages because of comparative negligence under ORS 18.470, or a judgment for treble damages for timber trespass under ORS 105.810. When the language of section 3 and ORS 18.560 are compared, logic tells us that the implementation of the statute does not involve the substitution of the court’s determination of the amount of damages for that of the jury’s.
Even if, because of an ambiguity in section 3, we were permitted to look further for the answer to the query, the majority’s analysis is not helpful. None of the cases that it cites are about statutes that impose legal limitations on the amount of damages that are recoverable in a particular claim. All of them concern the setting aside of excessive verdicts on the basis that the trial judge did not agree with the jury’s determination of the facts. We must keep in mind that section 3 is to be interpreted to give effect to the intent of the people adopting it in 1910. The majority is not permitted to rewrite *533the constitution to outlaw ORS 18.560 unless the statute conflicts with what the people had in mind at that time. Jones v. Hoss, 132 Or 175, 178, 285 P 205 (1930). With those principles in mind, I examine the background underlying the adoption of section 3 and its historical relationship to Article I, section 17.
Inherent in the majority’s holding is the belief that plaintiffs had a historical right to unlimited damages for personal injury at common law and that the legislature cannot constitutionally limit the amount of damages that could be awarded in a personal injury action. That belief is mistaken. At common law, the courts could control excessive verdicts. They could order a new trial “when the verdict was clearly against the weight of the evidence, whether it be because excessive damages were awarded or for any other reason.” Van Lom v. Schneiderman, 187 Or 89, 112, 210 P2d 461 (1949). When the constitution was adopted, the founding fathers did not intend to create an enhanced right to trial by jury, but instead intended that the practice of the courts at the time continue. See Tribou v. Strowbridge, 7 Or 156, 158 (1879).
If courts could control the award of damages under section 17, the legislature could also. For instance, in 1862, the legislature authorized courts to set aside verdicts and grant new trials because of “[ejxcessive damages * * * given under the influence of passion or prejudice.” See General Laws of Oregon, ch 2, § 232(5), p 197 (Civ Code) (Deady 1845-1864). More importantly, also in 1862, the legislature enacted a statute which limited the amount of recoverable damages in a wrongful death action:
‘ ‘When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury caused by the same act or omission. Such action shall be commenced within two years after the death, and the damages therein shall not exceed five thousand dollars, and the amount recovered, if any, shall be administered as other personal property of the deceased person.” General Laws of Oregon, ch 4, § 367, p 941 (Civ Code) (Deady 1845-1864).
*534There is more evidence that bears on the state of the law before section 3 was adopted. In Deane v. Willamette Bridge Co., 22 Or 167, 29 P 440 (1892), the Supreme Court recognized the constitutional authority of the legislature to govern the procedure of awarding damages when it upheld the constitutionality of a statute that required the court without the intervention of a jury to assess damages when the defendant was in default. The court noted the common law power of courts to decide questions of law and distinguished those matters from questions of fact to be decided by a jury under section 17. 22 Or at 173. It then held that the assessment of damages by a jury at common law when the defendant was in default was not a matter of right, but could be decided by the court alone. Thus, the statue was held constitutional in the face of a challenge under section 17.
Presumably, the drafters of section 3 were aware of existing statutes and precedents when section 3 was enacted in 1910. It is uncontroverted that the “mischief’ at which the constitutional provision was aimed was the multiplicity of new trials that were being granted by trial courts on the basis of excessive damages. Van Lom v. Schneiderman, supra, 187 Or at 100. To remedy that problem, section 3 provides that a new trial cannot be ordered unless it can be said affirmatively that there is no evidence to support the verdict or that there was legal error committed during the initial trial. However, the authority of a trial court to grant a nonsuit or directed verdict on a point of law clearly remains unimpaired by the amendment. Lusk, “Forty Five Years of Article VII, section 3, Constitution of Oregon,” 35 Or L Rev 1, 4 (1955).
In 1907, the legislature passed a law which amended the limitations on wrongful death damages and increased it to $7,500. See Lord’s Oregon Laws § 380. There is no evidence that I can find that suggests that the drafters of section 3 intended to nullify that law and it continued in various forms until 1967. Or Laws 1967, ch 544, § 2. See also Wiebe v. Seely, Administrator, 215 Or 331, 351, 335 P2d 379 (1959).2 Consequently, the authority of trial courts to set aside verdicts after *5351910 for excessive damages was limited, but the legislature’s authority to limit the amount of reasonable damages remained unfettered. Under the circumstances, the majority cannot reasonably hold that the drafters intended by section 3 to abrogate the authority of the legislature to enact a statute like ORS 18.560.
In summary, the majority forgets about the import of the presumption that ORS 18.560 is constitutional, relies on a decision by the Washington Supreme Court about an unrelated provision of the Washington Constitution as the basis of its rationale, says that it cannot “discern” what “reexamination” of a fact means in the context of the plain language of section 3, and ignores the historical evidence about the objective of the framers of section 3. A philosophical difference with the legislature about the wisdom of the tort reform law is not a sufficient justification for declaring a statute unconstitutional. It is only when a statute violates the constitution expressly or implicitly that it is unconstitutional. ORS 18.560 does neither.
Because my analysis would result in holding that ORS 18.560 does not violate Article I, section 17, or Article VII (amended), section 3, I address plaintiffs alternative argument that the statute violates Article I, section 10, of the Oregon Constitution. 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.”
Plaintiff argues that “the statute prevents a plaintiff with noneconomic damages in excess of $500,000 from receiving the ‘remedy [* * *] for injury done him’ which the constitution contemplates.”
At common law, litigants had the right to recover damages for injury to their person or property and to have a jury assess those damages when the facts were in dispute. Deane v. Willamette Bridge Co., supra, 22 Or at 173. However, the right did not prevent the legislature from changing *536common law remedies, or “ attaching] conditions precedent to [their] exercise, and perhaps abolishing] old and substituting] new remedies. ’’ Mattson v. Astoria, 39 Or 577, 580, 65 P 1066 (1901).3 Article XVIII, section 7, provides:
“All laws in force in the territory of Oregon when this constitution takes effect, and consistent therewith, shall continue in force until altered or repealed.” (Emphasis supplied.)
Based on section 7, the Supreme Court in Perozzi v. Ganiere, 149 Or 330, 40 P2d 1009 (1935), rejected the plaintiffs contention that the legislature could not abolish or limit an automobile guest’s remedy for negligent injury in an action brought against his host. The court said:
“The right to alter all laws in force in the territory of Oregon when the constitution was adopted, whether the same were of common-law or legislative origin, was reserved to the people of the state by article XVIII, § 7, supra. Indeed, that section of our organic act which adopted the common law of England clearly contemplated future changes in the common law, as evidenced in the condition expressed that the common law should continue in force ‘until altered or repealed’. Moreover, had it been the intention of the framers of the constitution to adopt and preserve the remedy for all injuries to person or property which the common law afforded, they undoubtedly would have signified that intention by exact and specific wording, rather than the language used in article I, § 10.” 149 Or at 346. (Emphasis in original.)
As the Supreme Court said in Davidson v. Rogers, 281 Or 219, 222, 574 P2d 624 (1978):
“The language of the constitution does not specify that the remedy need be the same as was available at common law at the time of the adoption of the constitution; and the statute, while restricting the remedy, does not abolish the cause of action. Even though a retraction is not requested, the right of action still exists for an intentional defamation and, in any *537event, for recovery of specific demonstrable economic loss. Such limitation is not violative of Art. I, § 10, for the reason that it does not wholly deny the injured party a remedy for the wrong suffered.” (Citations omitted; emphasis supplied.)
ORS 18.560 does not “wholly” deny plaintiff a remedy for his injury; it merely limits his recovery to all proven economic damages and up to $500,000 in noneconomic damages. Therefore, I would hold that ORS 18.560 is constitutional under section 10.
The call for judicial restraint in these kinds of matters was best expressed in 1882: “When there is nothing in the section of the constitution referred to inhibiting, expressly or impliedly, the power of the legislature to enact the law in question, * * * it is not therefore repugnant to that section.” Cresap v. Gray, 10 Or 345, 349 (1882). Article VII (amended), section 3, Article I, section 17, and Article I, section 10, do not expressly or impliedly inhibit the legislature from setting statutory limitations on the amount of damages for which judgment can be lawfully entered. We should uphold the constitutionality of ORS 18.560 against plaintiffs attacks.
Richardson, C. J., and Deits and Landau, JJ., join in this concurring in part and dissenting in part opinion.The language “the right to trial by jury shall remain inviolate,” is found also in the Bill of Rights, Article I, section 17, as originally adopted in the Oregon Constitution. In Oregon, the provision has been interpreted to mean the “right [to have] a jury determine all issues offact.” Molodyh v. Truck Insurance Exchange, 304 Or 290, 297, 744 P2d 992 (1987). (Emphasis supplied.) There are differing interpretations of whether a statutory limitation on the amount of damages violates the “inviolate” right to trial by jury, depending on the jurisdiction. For instance, Article I, section 20 of the Indiana Constitution contains a provision identical to Article I, section 17, and Article I, section 21, of the Oregon Constitution. In Johnson v. St. Vincent Hospital Inc., 273 Ind 374, 404 NE2d 585 (1980), the appellants argued that an Indiana statute which limited damages in medical malpractice cases violated section 20. The court disagreed.
*530“When a request is made to the trial court for an order to determine the amount due claimant from the patient’s compensation fund after a trial by jury-on the issue of damages has taken place and the trial court has rendered a judgment, no contest with regard to the total damages due claimant can or does exist. That issue has already been finally adjudicated by the trier of fact. * * * Furthermore, there is no indication in the cases relied upon by appellants that the right to have a jury assess the damages in a case properly tried by jury constitutes a limitation upon the authority of the Legislature to set limits upon damages. * * * It is the policy of this Act that recoveries be limited to $500,000, and to this extent the right to have the jury assess the damages is available. No more is required by Art. I, § 20 of the Indiana Constitution in this context.” 404 NE2d at 602.
In my assessment, the Indiana Supreme Court’s opinion has no more relevance to the Oregon Constitution than the Washington Supreme Court’s opinion.
In Wiebe v. Seely, Administrator, supra, what the court said about the nature of a statutory limitation on damages is instructive:
“[T]he statute does not deal with the function of thejury at all, but with that of the court. The legislature has said, in effect, that regardless of the extent of the damages actually suffered by the plaintiff in an action against the estate of a *535deceased tort-feasor, recoverable damages may not exceed $15,000. * * * It is not suggested that such a statute is beyond the powers of the legislature.” 215 Or at 352. (Emphasis supplied.)
The Supreme Court has acknowledged the authority of the legislature to limit remedies for common law causes of action on a number of occasions. For example, in Holden v. Pioneer Broadcasting Co. et al, 228 Or 405, 365 P2d 845 (1961), cert den 370 US 157, 82 S Ct 1253, 8 L Ed 2d 402 (1962), the court held that statutes eliminating the right of a defamed person to receive damages for an inadvertent libel when a retraction was made were constitutional under Artice I, sections 8,10 and 20, of the Oregon Constitution. See also Noonan v. City of Portland, 161 Or 213, 248, 88 P2d 808 (1939); Evanhoff v. State Industrial Acc. Com., 78 Or 503, 154 P 106 (1915).