This court, in describing that institution, has stated that “[t]he fundamental function of courts is to determine legal rights based upon a presentation of evidence and argument.” Oregonian Publishing Co. v. O'Leary, 303 Or. 297, 303, 736 P.2d 173 (1987). Our cases uniformly have applied the “open courts” provision to the circuit courts of this state.

Rather, in prohibiting secret courts and requiring that justice be administered openly, that part of Article I, section 10, prescribes how government must ensure fairness in the administration of justice. Oregonian Publishing Co. v. O'Leary, 303 Or. 297, 301–02, 736 P.2d 173 (1987). In Doe v. Corp. of Presiding Bishop, 352 Or. 77, 280 P.3d 377 (2012), this court recently applied its three-step interpretive paradigm for original constitutional provisions to the open courts clause to determine whether the press was entitled to the release of certain trial exhibits after the conclusion of a trial.

4 Furthermore, a plaintiff's ability to collect a judgment is not a benefit of constitutional dimension and can have no place in the court's constitutional analysis. See Oregonian Publishing Co. v. O'Leary, 303 Or. 297, 305, 736 P.2d 173 (1987) (witness's interest in secrecy is not of constitutional dimension in Article I, section 10, analysis); Mattson v. Astoria, 39 Or. 577, 580–81, 65 P. 1066 (1901) (when plaintiff has claim against individual employee, plaintiff is not wholly without remedy); Batdorff v. Oregon City, 53 Or. 402, 408–09, 100 P. 937 (1909) (same). The majority does not grapple with those concerns.

This court has held that the command "shall" in Article I, section 10, is a statement prescribing how government must conduct its functions. Oregonian Publishing Co. v. O'Leary, 303 Or. 297, 301-02, 736 P.2d 173 (1987). The first clause of Article I, section 10, provides that "[n]o court shall be secret" and that justice "shall be administered, openly and without purchase, completely and without delay * * *."

Compare, e.g., OEC 503(2) (the client "has" the lawyer-client privilege); State v. Davis, 295 Or. 227, 233-35, 666 P.2d 802 (1983) (the court will suppress evidence when necessary to vindicate an individual's constitutional right). As this court held in Oregonian Publishing Co. v. O'Leary, 303 Or. 297, 301-02, 736 P.2d 173 (1987): "[T]he command that `[n]o court shall be secret' is not a statement of an individual right that may be waived or compromised by the individual.

When a statute, contrary to the opening clause, declares that some court procedures may be conducted in secret, the court need only hold that the statute is invalid and cannot be followed. Oregonian Publishing Co. v. O'Leary, 303 Or. 297, 736 P.2d 173 (1987). The second clause can be administered by the courts themselves, disregarding, if necessary, any statutes or actions by other officials that would impose a "purchase" of justice or an improper "delay."

Moreover, the state cannot avoid a constitutional command by "balancing" it against another of the state's interests or obligations, such as protection of the "vital interests" of the people. See Oregonian Publishing Co. v. O'Leary, 303 Or. 297, 305, 736 P.2d 173 (1987). Limits on the contractual obligations of the state must be found within the language or history of Article I, section 21, itself.

We recognize defendants' concern that even an in camera disclosure is a disclosure which is arguably forbidden by the Media Shield Law. Given our disposition of this case, we do not reach that question or the question of whether the trial court's inspection of the shielded materials would have to be open to the public. But see Oregonian Publishing Company v. O'Leary, 303 Or. 297, 736 P.2d 173 (1987). Judgment vacated.