concurring.
Plaintiff argues that the damage limitations of the Oregon Tort Claims Act (OTCA), ORS 30.270(1)(b), violate Article I, section 20, of the Oregon Constitution. He contends that the act creates two impermissible classifications: the first *213classifies tort victims on the basis of the identity of the tortfeasor as government or private; the second classifies tort victims by the amount of damages. Those with damages of $100,000 or less may get full recovery, but those with damages exceeding $100,000 cannot. The majority appears to suggest that the manner in which the legislature exercises its power to change sovereign immunity is beyond judicial scrutiny. I disagree. Any such change must comply with the other provisions of the Oregon Constitution, including Article I, section 20. For example, surely the majority would agree that a statute allowing only Caucasians to recover against the state would be unconstitutional.
I have grave reservations about the constitutionality of the OTCA damages limitation; it allows complete recovery for some plaintiffs but denies complete recovery to plaintiffs with catastrophic injuries. It may be that, under the Oregon Constitution, a limited waiver of sovereign immunity is like being a little bit pregnant. However, if plaintiff is correct that ORS 30.270(1)(b) is unconstitutional, the next issue would be whether that section can be severed from the rest of the statute. It is apparent to me that the OTCA would not have been enacted without the limitations provision, and therefore the entire act must fall. ORS 174.040(2). See Brookwell v. Frakes, 56 Or App 687, 692, 642 P2d 1183, rev den 293 Or 340 (1982); Espinosa v. Southern Pacific Trans., 50 Or App 561, 569, 624 P2d 162, aff’d 291 Or 853, 635 P2d 638 (1981).
Before the OTCA, sovereign immunity was held to be part of the Oregon Constitution under Article IV, section 24. The OTCA was a partial waiver of sovereign immunity by the legislature. Vendrell v. School District No. 26C et al, 226 Or 263, 360 P2d 282 (1961), states that the Oregon Constitution allows only the legislature to abolish sovereign immunity. Plaintiff argues that Vendrell was wrongly decided: The Constitution merely gives the legislature the power to abolish sovereign immunity and does not incorporate the doctrine itself. Plaintiff may be correct, but we are bound by Vendrell.