(dissenting) — I concur in Justice Dolliver's dissent. There are a few additional comments that I feel should be made, however.
First, Section I of the majority opinion is pure dicta. The court does not decide in this case any issue requiring construction of Const. art. 1, § 12. Thus, the majority's gratuitous discussion of how the Oregon Supreme Court has interpreted a similarly worded provision of Oregon's constitution is irrelevant and inappropriate. A variety of forums *688is available to members of the court who have settled opinions on the meaning of our state constitution. This is not the time or the place.
Second, I am astonished to learn from the majority that the methodology we developed in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), for ascertaining when a state constitutional provision may be relied upon as an independent source of right, was "clarified" in State v. Wethered, 110 Wn.2d 466, 755 P.2d 797 (1988). This simply is not so. In Wethered, we declined to engage in analysis of Const. art. 1, § 9, because counsel had not adequately addressed the Gunwall criteria. Far from altering Gunwall's methodology, in Wethered we had no occasion even to consider it.
Not only is Wethered now called a "clarification" of Gunwall, it also is cast as a response to criticism in a Washington Law Review case note. This is again a mischaracterization. Wethered says nothing about the Gunwall criteria other than that any argument favoring independent analysis of a state constitutional provision must address them. Thus, Wethered expresses no opinion on, and is in no way responsive to, any criticisms of the analytic methodology we described in Gunwall.
More simple means are available to refute the "implication" by Chief Justice Callow that the majority finds troublesome. See State v. Reece, 110 Wn.2d 766, 778, 757 P.2d 947 (1988) ("There is no presumption of adherence to federal constitutional analysis."). The majority's distortion of Wethered for this purpose is unnecessary and inappropriate.
Third, the majority's discussion of how its ruling affects the trebling of damages in Consumer Protection Act actions is dangerously confusing. The majority attempts to save treble damages by a swift and discursive "historical analysis" which concludes that causes of action under the Consumer Protection Act are "outside of the strict purview of article 1, section 21." Footnote 6. Later, responding to Justice Dolliver's criticism of this conclusion as a "gratuitous *689holding" based on "woefully inadequate" reasoning, dissent of Dolliver, J., at 687, the majority recants:
As for the "gratuitous holding" regarding the Consumer Protection Act discussed by Justice Dolliver's dissent at page 687, we have not reached such a fundamental conclusion. We are unable to because the Consumer Protection Act is not an issue in this case. We cannot decide cases not before us.
Majority, at 666.
This is rhetoric over reason. The majority's opinion leaves only two possibilities for the validity of the Consumer Protection Act's treble damages provisions. Either treble damages are unconstitutional, or there is no right to a jury trial in actions under the Consumer Protection Act. In light of the majority's gratuitous analysis on this issue, and notwithstanding its disclaimer, lower courts will feel constrained to choose the latter option. How sad that "such a fundamental conclusion" is so carelessly determined.
Finally, it is remarkable the way the majority skirts around a decision upholding the workers' compensation scheme. Though this decision was not supported by "historical analysis", the majority nevertheless affirms it, apparently on the basis that a competing constitutional concern justified the legislative action.
I cannot understand why the Legislature can remove damages determinations from the jury as part of the workers' compensation scheme, but it cannot do so in other actions. The "independent constitutional foundation" that the majority apparently believes saves the workers' compensation scheme was nothing other than the state's general police power. See State v. Mountain Timber Co., 75 Wash. 581, 135 P. 645 (1913), aff'd, 243 U.S. 219 (1917). As described in Mountain Timber, this police power is broad enough to justify the noneconomic damages cap. Where's the distinction? And why is a "detailed historical analysis” not necessary for workers' compensation, when it is so essentially dispositive here?
*690The majority's only answer is to hold that the Legislature can eliminate the jury right by abolishing a common law cause of action, but it cannot do so merely by limiting or redefining causes of action. "Otherwise, article 1, section 21 means nothing." Majority, at 652. Otherwise, the majority says, the jury right is form but not substance. As Justice Dolliver so well observes, there is just no sense in this. Under the majority's reasoning, the form of the legislative action — whether it supplants a cause of action, or merely imposes limits on it — is ultimately dispositive on the constitutional issue. That is form over substance.
Callow, C.J., and Dolliver, J., concur with Durham, J.After modification, further reconsideration denied September 27, 1989.