S057675, Opinion — Brady/Flynn v. Kroger

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

On petitions to review ballot title filed August 10; considered and under
advisement on October 14, ballot title referred to Attorney General for
modification November 27, modified ballot title certified
December 14, 2009 (347 Or 448)

Wayne BRADY,
Ross Day, Duane Fletchall,
and Russell Walker,
Petitioners,
v.

John R. KROGER,
Attorney General,
State of Oregon,
Respondent.
(SC S057675 (Control))

Meagan FLYNN,
Petitioner,
v.

John R. KROGER,
Attorney General,
State of Oregon,
Respondent.
(SC S057680)
(Cases Consolidated)
221 P3d 151

<!-- PageBreak -->

<!-- PageHeader="Brady/Flynn v. Kroger" -->
<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 331 (2009)" -->

CJS, Statutes § 131.

# En Banc

Sarah Hunt Vasche, Oregon Anti-Crime Alliance, Salem,
and Ross A. Day, Common Sense for Oregon, Salem, filed the
petition for petitioners, Brady, Day, Fletchall, and Walker.

James S. Coon, of Swanson, Thomas & Coon, Portland,
filed the petition for petitioner Flynn.

Jeff J. Payne, Assistant Attorney General, Salem, filed the
answering memorandum for respondent. With him on the
memorandum were John R. Kroger, Attorney General, and
Jerome Lidz, Solicitor General.

GILLETTE, J.

The ballot title is referred to the Attorney General for
modification.

<!-- PageBreak -->

<!-- PageHeader="Brady/Flynn v. Kroger" -->

# GILLETTE, J.

This ballot title review proceeding brought under
ORS 250.085(2) concerns the Attorney General's certified
ballot title for a proposed initiative measure, denominated by
the Secretary of State as Initiative Petition 44 (2010). Peti-
tioners submitted timely written comments to the Secretary
of State concerning the content of the Attorney General's
draft ballot title and are entitled to seek review of the result-
ing certified ballot title in this court. See ORS 250.085(2)
(stating that requirement). We review the Attorney General's
certified ballot title to determine whether it substantially
complies with the requirements of ORS 250.035(2)(a) to (d).
ORS 250.085(5). For the reasons that follow, we conclude
that the Attorney General's certified ballot title does not con-
form to certain of those statutory standards. We therefore
refer the matter to the Attorney General for modification.

The proposed measure contains five sections. The
first is a preamble that asserts that the purpose of the meas-
ure is to

"guarantee every person the right to be secure in his or her
home or business without having to retreat from any
intruder, and to ensure the peaceful enjoyment of land
without concern as to trespassers * * *. "

The next two sections contain the heart of the proposed meas-
ure's substantive modifications of Oregon law. We set them
out in full:

"Section 2. An owner of any land is not liable for any
injury, death or other damage suffered by a trespasser on
the land where such injury, death, or other damage is
caused by any condition of the land or its fixtures. The only
exception to this section is the following: this section does
not protect an owner from liability for placing a spring gun,
or other device, which is placed intentionally for the pur-
pose of injuring a person.

"Section 3. Any resident who uses any form of physical
force, including deadly physical force, against an intruder is
presumed to have reasonably believed that the intruder
was using or about to use unlawful deadly physical force
against any resident on the premises, such that the resi-
dent who uses such physical force was justified, based on

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 331 (2009)" -->

self-defense or defense of a third person, and therefore not
subject to any civil or criminal liability for use of such phys-
ical force."

Section 4 of the proposed measure contains defini-
tions that are central to understanding Sections 2 and 3.
"Intruder," a word not otherwise used or defined in Oregon
law, is defined in Section 4(a) as

"a person who is committing criminal trespass in the first
degree (as defined in ORS 164.255), burglary in the first
degree (as defined in ORS 164.225), or burglary in the sec-
ond degree (as defined in ORS 164.215)."

"Owner" is defined broadly in Section 4(c) as a person having
"any interest" in any land, and includes "a tenant, lessee,
occupant or other person in possession of the land." In addi-
tion, Section 4(e) defines "trespasser" as "any person who
unlawfully enters or remains on the land." The final section
of the proposed measure, Section 5, states that it "does not
create or expand any liability either directly or by
implication."

The proposed measure is aimed at extensively alter-
ing both the civil and criminal bases for imposing liability on
a person who owns or is lawfully in possession of land. On the
civil side, Section 2 purports to immunize an "owner" from
liability for "any" injury, death or other damage suffered by a
"trespasser." The only exception to the rule is one for inten-
tionally placing on the land a device intended to injure a per-
son. Thus, under the proposed measure, an owner is not lia-
ble for, among other things, injury or death caused by either
obvious or hidden dangers on the land, including attractive
nuisances. The immunity created by Section 2 makes no dis-
tinction among victims, either by age or any other character-
istic, as long as the injured party is a "trespasser," i.e., some-
one who either enters or remains on the land unlawfully.
Finally, Section 3-although focused primarily on criminal
law-further specifically protects any "resident," i.e., "any
person who is lawfully present in a building or dwelling,"
from civil liability for the use of force, including deadly force,
against an "intruder."

On the criminal side, Section 3 creates a presump-
tive defense to a criminal charge, such as assault, homicide,

<!-- PageBreak -->

<!-- PageHeader="Brady/Flynn v. Kroger" -->

or other crime involving personal injury or death, for any
"resident" "who uses any form of physical force, including
deadly physical force," against an "intruder." As noted, a "res-
ident" is anyone "lawfully present in a building or dwell-
ing"-a characteristic of, among others, social guests and
business invitees. The statute does not affirmatively require
that there be any proportionality between the "intruder['s]"
acts and the nature or extent of the "resident['s]" responsive
use of force.1 Section 3 thus would make significant
(although, at this juncture, not quantifiable) alterations to
existing laws respecting "justification" for the use of physical
force, including deadly physical force, in circumstances that
otherwise would make such use of force criminal. See gener-
ally ORS 161.190 to 161.229 (respecting justified uses of
physical force by private citizens).

The Attorney General certified the following ballot
title for Initiative Petition 44 (2010):

"EXPANDS LAWS ALLOWING DEFENSIVE USE OF
DEADLY FORCE; ELIMINATES LIABILITY FOR
CHILD TRESPASSER'S INJURY/DEATH

"Result of 'Yes' Vote: 'Yes' vote presumes 'resident'
(defined) justifiably uses deadly force against 'intruder'
(defined) who is not using physical force; eliminates liabil-
ity for child trespasser's injury/death.

"Result of 'No' Vote: 'No' vote retains laws allowing:
defensive use of deadly force only if defender reasonably
perceives threat of deadly force, liability for certain tres-
passers' injury/death.

"Summary: Current law allows deadly force in defense
of self, others, or property only if other person is using or
about to use deadly force. Measure creates presumption
that 'resident' (defined) lawfully used deadly force against
'intruder' (defined) because resident reasonably believed
'intruder' was using or about to use deadly force; creates
presumption that deadly force is justified even if 'intruder'
is not using or threatening to use force. Currently, land-
owner may be liable to child trespassers injured by artificial

: The "intruder" must be one who is committing criminal trespass in the first
degree or burglary in the first or second degree, but none of those crimes inherently
requires that the actor use any degree of physical force against anyone.

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 331 (2009)" -->

condition of land, or liable to adult trespassers that land-
owner injures willfully or wantonly. Measure provides that
'owner' (defined) is not liable for injury to child or adult
trespasser caused by any condition of land or fixtures;
exception for device(s) intended to injure persons. Other
provisions."

We turn to consider the petitioners' challenges to the
Attorney General's certified ballot title. In doing so, we first
address the challenges advanced by Brady petitioners,
because they were the first to be filed. We then consider the
challenge advanced by petitioner Flynn.

Brady petitioners challenge all four parts of the
Attorney General's certified ballot title, viz., the caption, the
"yes" result statement, the "no" result statement, and the
summary. We address their challenges in that order.

ORS 250.035(2)(a) requires that a certified ballot
title contain "a caption of not more than 15 words that
reasonably identifies the subject matter of the state meas-
ure." The caption must identify the proposed measure's sub-
ject "accurately and in terms that will not confuse or mislead
potential petition signers [or] voters." Greene v. Kulongoski,
322 Or 169, 174-75, 903 P2d 366 (1995).

Brady petitioners first argue that the caption mis-
states current law regarding the potential liability of posses-
sors of land. As noted, the Attorney General's caption states
that the proposed measure "eliminates liability for child tres-
passer's injury/death." Brady petitioners object to that state-
ment as underinclusive. The measure, Brady petitioners
argue, sweeps more broadly than the liability of landowners
or land possessors toward trespassing children. They assert
that

"[t]he addition of the word 'child' in the caption and result-
ing statements, to the exclusion of the mention of other
trespassers, misleads voters. It creates a false belief that
under current law, possessors [of land] are not liable to
adult trespassers in negligence under any circumstances."

Brady petitioners also assert that the use of the word "child,"
both in the caption and elsewhere in the ballot title, will prej-
udice voters against the proposed measure.

<!-- PageBreak -->

<!-- PageHeader="Brady/Flynn v. Kroger" -->

The Attorney General's response to Brady petition-
ers' arguments on those points consists, first, of an assertion
that a landowner owes only a limited duty of care to an adult
trespasser and, second, that use of the word "child" is not so
inflammatory as to create an antipathy in the minds of voters
toward the proposed measure.

We disagree with the Attorney General on both
points. First, and most importantly, we know of no present
statute or case law that so fully exempts landowners and
land occupiers from liability toward adult trespassers as this
measure would do. That necessarily means that our reading
of the case law differs somewhat from the Attorney General's
summary of it. Rich v. Tite-Knot Pine Mill, 245 Or 185, 191,
421 P2d 370 (1966) is the leading case on the subject and
often is cited for the basic rule that "[e]xcept for situations not
relevant here, the possessor [of land] is not liable for injuries
to trespassers caused by his failure to exercise reasonable
care to put his premises in a safe condition."2 But that rule
was qualified in the earlier opinion on which Rich relied,
Hansen v. Cohen et al, 203 Or 157, 165, 276 P2d 391 (1955):
"In this state we have consistently held that as to a tres-
passer * * * there can be no liability against the owner of the
premises unless the injury was brought about by wanton or
willful negligence." (Emphasis added.) Thus, it would appear
that, under present Oregon law, even with respect to adult
trespassers, wanton and willful conduct that makes a condi-
tion of the land or its fixtures dangerous and thereby leads to
injury can be actionable. According to its wording, the pro-
posed measure would, with one very narrow exception, sweep
away that responsibility for wanton or willful conduct as well
as for intentional acts. That is an important change.

It is true that, as the Attorney General argues,
Oregon courts have stated, in various cases, that landowners
do in fact have a special duty to children, as set forth in
Restatement (Second) of Torts § 339 (1974):

2 The court defined "trespasser" as "one who enters or remains on premises in
the possession of another without a privilege to do so, created by the possessor's
consent or otherwise."

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 331 (2009)" -->

"A possessor of land is subject to liability for physical harm
to children trespassing thereon caused by an artificial con-
dition upon the land if

"(a) the place where the condition exists is one upon
which the possessor knows or has reason to know that chil-
dren are likely to trespass, and

"(b) the condition is one of which the possessor knows
or has reason to know * * * will involve an unreasonable
risk of death or serious bodily harm to such children, and

"(c) the children because of their youth do not discover
the condition or realize the risk involved in intermeddling
with it * * * , and

"(d) the utility to the possessor of maintaining the con-
dition and burden of eliminating the danger are slight as
compared with the risk to the children involved, and

"(e) the possessor fails to exercise reasonable care to
eliminate the danger or otherwise protect the children."

See Pocholec v. Giustina, 224 Or 245, 252, 355 P2d 1104
(1960) (summarizing and adopting Restatement (Second) of
Torts § 339); Karabolis v. Liebert, 263 Or 64, 69, 501 P2d 315
(1972) (stating that court embraced the Restatement rule).
However, in Loney v. McPhillips, 268 Or 378, 384, 521 P2d
340 (1974), this court declined to extend that principle to
make landowners liable for physical harm to trespassing
children caused by natural conditions on the land. Thus,
there is at present significant immunity for landowners
toward trespassing children.

The foregoing summary demonstrates that the
Attorney General's decision to focus a potential voter's atten-
tion entirely on the effect of the proposed measure on tres-
passing children is incorrect. As this court has noted, if the
Attorney General "chooses to describe the subject matter of a
proposed measure by listing some of its effects, he runs the
risk that the caption will be underinclusive and thus inaccu-
rate." Towers v. Myers, 341 Or 357, 361, 142 P3d 1040 (2006).
That has been the result here. The proposed measure speaks
to all trespassers, regardless of age, and to various states of
mind of the landowner or occupier. So should the ballot title.

<!-- PageBreak -->

<!-- PageHeader="Brady/Flynn v. Kroger" -->

Its failure to do so means that it does not substantially com-
ply with the requirements of ORS 250.035(2)(a), and it must
be modified.

The Attorney General's "yes" vote result statement
suffers from the same inappropriate focus on "child tres-
passer[ ]s" that mars the caption. The "yes" vote result state-
ment must be modified. Brady petitioners also argue that the
"yes" vote result statement is flawed in another respect, to
which we now turn.

The Attorney General's "yes" vote result statement
states that a "yes" vote "presumes 'resident' (defined) justifi-
ably uses deadly force against 'intruder' (defined) who is not
using physical force[.]" Brady petitioners point out that the
foregoing statement, while correct as far as it goes, is incom-
plete: The proposed measure presumes that use of deadly
force by a "resident" is justified, whether an "intruder" is
using some degree of physical force or is using none at all.
The Attorney General's "yes" vote result statement thus is
underinclusive, Brady petitioners argue, and unduly empha-
sizes the extreme circumstance (deadly force against none),
when it would be more accurate to portray a continuum.

Again, we agree with Brady petitioners. Under pres-
ent law, the use of force by a person is justified only if the
degree of force used by the person is necessary to prevent or
terminate some harm or is proportional to the force either
used or threatened by another person. See, e.g., ORS 161.209
(defense of justification for use of physical force that the per-
son "reasonably believes to be necessary for the purpose");
ORS 161.219(3) (use of deadly physical force justified under
certain circumstances, including reasonable belief that
another person is "[u]sing or about to use unlawful deadly
physical force against a person"); ORS 161.225 (use of physi-
cal force in defense of premises is justified when, and to the
extent, that person reasonably believes it necessary to pre-
vent or terminate criminal trespass). The Attorney General's
"yes" vote result statement fails to recognize that scope of
present law and, because it fails to do so, it focuses only on a
selected part of the effect that a "yes" vote would have in
changing that law. For this reason, too, the Attorney
General's "yes" vote result statement fails to substantially

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 331 (2009)" -->

comply with the requirements of ORS 250.035(2)(b) and must
be referred for modification.3 See Pelikan / Tauman v. Myers,
342 Or 383, 390-92, 153 P3d 117 (2007) (referring ballot title
for modification under comparable circumstances).

Brady petitioners argue that the Attorney General's
"no" vote result statement is flawed for the same reasons that
the caption and "yes" vote result statement are flawed. We do
not find, however, that the "no" vote result statement suffers
from either of those flaws. The Attorney General's "no" vote
result statement substantially complies with the require-
ments of ORS 250.035(2)(c), although the Attorney General
retains authority on referral to modify it to, for example,
improve its readability.

Brady petitioners argue that the Attorney General's
summary suffers from the same defects that we have identi-
fied in the caption and "yes" vote result statement. We agree
in part. With respect to a landowner's liability to trespassers,
the Attorney General's summary, by making use of the
greater number of words that may be included in the sum-
mary, provides a more comprehensive overview both of pres-
ent law and of the proposed measure's impact on that law.
The summary substantially complies with the requirements
of ORS 250.035(2)(d) in that respect. However, with respect
to the summary's description of a "resident['s]" right to use
deadly force against an "intruder," the scope of the descrip-
tion again is too narrow: The summary states that the right
applies "even if 'intruder' is not using or threatening to use
force." That description is underinclusive. The right more
correctly applies whether or not the "intruder" is using or
threatening to use force. On referral, the Attorney General
must modify his summary.

$ A fully correct statement would inform a potential voter that a "yes" vote pre-
sumes that a "resident" (defined) justifiably uses force, including deadly physical
force, against an "intruder" (defined), whether or not the intruder actually is using
or threatening to use any degree of physical force, including deadly physical force.
Obviously, there is no room within the 25-word limit set by ORS 250.035(2)(b) for
"yes" vote result statements to include all of that statement, along with informa-
tion that a "yes" vote "eliminates liability for child trespasser's injury/death." How-
ever, we believe that the central idea can be encapsulated within the limit. We offer
the following example by way of illustration (but not as a requirement): " 'Yes' vote
presumes 'resident' (defined) justifiably uses deadly force against 'intruder'
(defined), whether or not intruder uses force."

<!-- PageBreak -->

<!-- PageHeader="Brady/Flynn v. Kroger" -->

Petitioner Flynn asserts that the Attorney General's
caption does not substantially comply with the requirements
of ORS 250.035(2)(a), because it includes the phrase "defen-
sive * * * force" in the caption. Flynn asserts that use of that
phrase is inaccurate and misleading.

For the convenience of the reader, we set out the
Attorney General's caption once again:

"EXPANDS LAWS ALLOWING DEFENSIVE USE OF
DEADLY FORCE; ELIMINATES LIABILITY FOR
CHILD TRESPASSER'S INJURY/DEATH"

Petitioner Flynn argues that "the use of the phrase 'defensive
[* * * ] force' is misleading, [because it implies] that someone
must be under physical attack in order to be justified in using
deadly force."

Pursuant to ORS 250.035(2)(a), the Attorney
General's task is to identify the "subject matter" of a proposed
measure. Put differently, the Attorney General's task is to
"highlight[ ] the actual major effect" of the measure. Terhune
v. Myers, 342 Or 475, 480, 154 P3d 1284 (2007). Although
that task sometimes is simple, this is not such a case. As the
Attorney General has attempted to make clear, the subject
matter of this proposed measure encompasses two different
aspects of property ownership, viz., (1) liability for injury to
trespassers and (2) the use of force, including deadly force, to
defend the property and those permissibly upon it without
incurring criminal liability. In Terhune terms, there is more
than one "actual major effect." But is Flynn correct in assert-
ing that the Attorney General misstates one such major
effect of the proposed measure by referring to its authoriza-
tion of the "defensive" use of deadly physical force?

We think not. The focus of Section 3 is on the use of
deadly force to respond to three crimes (burglary in the first
and second degree, and criminal trespass), all of which
include a trespass. It is the trespassory act that makes the
use of deadly force in response to trespassers presumptively
permissible. So understood, the section is about using deadly
force to repel a trespasser, and we cannot say that calling

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 331 (2009)" -->

such action "defensive" is incorrect. We therefore do not find
Flynn's challenge to the caption to be well taken.4

We hold that, for the reasons stated, the Attorney
General's caption, "yes" vote result statement, and summary
in his certified ballot title for Initiative Measure 44 (2010) fail
to substantially comply with the requirements of ORS
250.035(2)(a), (b), and (d). Accordingly, the ballot title is
referred to the Attorney General for modification.

The ballot title is referred to the Attorney General
for modification.

4 Petitioner Flynn also challenges the Attorney General's "yes" vote result
statement, but that challenge depends on her succeeding in her challenge to the
caption. We therefore also reject her challenge to the "yes" vote result statement.