author: FLYNN, J.

text:
    STATE of Oregon, Respondent on Review, v. Jorge GUTIERREZ-MEDINA, Petitioner on Review.
    SC S065297
    Supreme Court of Oregon.
    Argued and submitted September 10, 2018. June 6, 2019
    Joshua B. Crowther, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for the petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Deputy Defender.
    Cecil A. Reniche-Smith, Assistant Attorney General, Salem, argued the cause and filed the brief for the respondent on review. Also on the brief were Ellen Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Rosalind M. Lee, Rosalind Manson Lee LLC, Eugene, filed the brief for amicus curiae Oregon Criminal Defense Lawyers Association.
    Erin K. Olson, Law Office of Erin Olson PC, Portland, filed the brief for amici curiae National Crime Victim Law Institute and Oregon Crime Victims Law Center. Also on the brief were Margaret Garvin, National Crime Victim Law Institute, Portland, and Amy C. Liu.
    Nadia H. Dahab, Stoll Berne PC, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association. Also on the brief was Travis Eiva.
    Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson and Garrett, Justices.

      Kistler, J., retired December 31, 2018, and did not participate in the decision of this case.

   FLYNN, J.

The legislature has directed that a person who is convicted of a crime that resulted in "economic damages" to a victim must pay the victim restitution in "the full amount of the victim's economic damages as determined by the court." ORS 137.106(1)(a). In this case, defendant was convicted of driving under the influence of intoxicants and assault in the third degree after striking a pedestrian with his car, and the trial court ordered him to pay almost $ 155,000 in restitution for the victim's medical expenses. We allowed review to consider whether the trial court erred in refusing to apply the civil law defense of comparative fault to reduce the amount of economic damages that defendant would be required to pay as restitution. We conclude that defendant's conviction for third-degree assault establishes a degree of culpability for which the defense of comparative fault would be unavailable in a civil action. Thus, at least under the circumstances of this case, the trial court correctly refused to reduce the amount of restitution by the victim's alleged comparative fault.

I. BACKGROUND

Defendant was driving under the influence of intoxicants late at night when he struck the victim, who had walked onto the road in a dark area that was not marked for pedestrian crossing. He pleaded guilty to one count of driving under the influence of intoxicants and one count of assault in the third degree, but he resisted the state's request for restitution in the amount of the victim's full medical bills. Defendant offered evidence that the victim's own negligence was the primary cause of the collision and urged the trial court to apply the civil doctrine of comparative fault to reduce the requested restitution. The trial court refused to consider the victim's alleged negligence and ordered defendant to pay the requested restitution.

The Court of Appeals affirmed the judgment of the circuit court, holding that the text of the restitution statute expressly precludes the court from applying comparative fault principles to apportion damages. State v. Gutierrez-Medina , 287 Or. App. 240, 246, 403 P.3d 462 (2017). This court allowed review, and we now affirm the decision of the Court of Appeals, albeit on a different ground. We conclude that defendant's conviction for third-degree assault establishes that he was aware that he was using a deadly or dangerous weapon in a way that created a substantial risk of serious physical injury and that he consciously disregarded that risk. Therefore, defendant's conviction for third-degree assault establishes that he acted with a culpable mental state for which the doctrine of comparative fault would not be available in a civil action. Because we hold that the defense of comparative fault would be unavailable to defendant in a hypothetical civil action for the same injury, we decline to address the Court of Appeals' conclusion that ORS 137.106 precludes trial courts from reducing the amount of restitution when the victim is partly at fault for the injury.

II. DISCUSSION

The circuit court ordered defendant to pay restitution under ORS 137.106(1), which provides:

"When a person is convicted of a crime * * * that has resulted in economic damages, the district attorney shall investigate and present to the court * * * evidence of the nature and amount of the damages. * * * If the court finds from the evidence presented that a victim suffered economic damages, in addition to any other sanction it may impose, the court shall enter a judgment or supplemental judgment requiring that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim's economic damages as determined by the court."

Defendant does not dispute that he was convicted of a crime that resulted in economic damages. He also does not dispute that the evidence supports the trial court's finding that the victim incurred economic damages, in the form of medical expenses, in the amount that the court ordered as restitution. Defendant contends, however, that he was entitled to reduce his restitution obligation by proving that the victim was also at fault for the injury that required the medical care.

Defendant argues that the legislature intended to incorporate the civil law defense of "comparative fault" into the determination of "economic damages" that a criminal defendant must pay as restitution. Defendant relies on several cases in which this court stated that civil law concepts perform a significant role in a trial court's determination of "economic damages" for purposes of imposing restitution. In particular, defendant points to State v. Ramos , 358 Or. 581, 368 P.3d 446 (2016), in which this court explained "that the legislature's cross-reference to the definition of 'economic damages' applicable in civil actions, and the legislature's purpose in creating the restitution procedure as a substitute for a civil proceeding, make civil law concepts relevant to our interpretation of ORS 137.106." Id. at 594, 368 P.3d 446. We concluded in Ramos that the amount of "economic damages" for purposes of imposing restitution is limited by the civil law concept that a defendant is liable only for damages that are "reasonably foreseeable." Id. at 596, 368 P.3d 446. In State v. Islam , 359 Or. 796, 800, 377 P.3d 533 (2016), this court again looked to limitations on the damages that a plaintiff can recover in a civil action to determine that the amount of restitution that the defendant would be required to pay to the local retailer from whom the defendant stole a pair of jeans must be measured by the wholesale value, not the retail value, of the jeans. Defendant argues that the statutory defense of comparative fault, ORS 31.600(1), is another limitation on the amount of economic damages that the legislature intended to incorporate into the concept of "economic damages" that a criminal defendant must pay as restitution. From that premise, defendant concludes that the trial court erred in refusing to consider his evidence of the victim's fault.

There is another step in the analysis, however. To reach defendant's desired conclusion, his argument requires us to accept his minor premise that, in a hypothetical civil action against him for causing the same injury, the defense of comparative fault would be available to reduce his liability. The premise is not sound. As we shall explain, the statutory defense of civil comparative fault is available only to defendants who act with a degree of culpability for which the common law defense of contributory negligence would have been available. The common law defense based on a plaintiff's contributory negligence was not available to a defendant who acted with a culpability greater than what the common law considered to be "gross negligence"-conduct that was either "wanton" or intentional. And, in pleading guilty to third-degree assault, defendant necessarily admitted to elements that would require a hypothetical civil jury to conclude that defendant's culpability fell within the range of "wanton" conduct. Thus, even if we assume that the legislature intended to incorporate the civil law defense of comparative fault into the calculation of criminal restitution under ORS 137.106, the defense would be unavailable to a defendant who commits third-degree assault in the manner that defendant did.

A. Comparative fault applies only to fault of the type to which contributory negligence would have been a defense.

Before 1971, Oregon recognized the common law defense of contributory negligence, under which some plaintiffs whose own negligence contributed to their injuries to any extent were barred from recovering damages. The 1971 legislature abandoned contributory negligence and adopted instead a statutory defense that is now called "comparative fault," under which some plaintiffs whose claims previously would have been defeated by contributory negligence could now recover a proportionate share of their damages. Towe v. Sacagawea, Inc. , 357 Or. 74, 107, 347 P.3d 766 (2015) (citing Or. Laws 1971, ch. 668, § 1); former ORS 18.470 (1971). As originally enacted, former ORS 18.470 (1971) provided that contributory negligence would not bar recovery if the negligence of the person seeking recovery was not as great as the negligence of the person against whom recovery was sought, but that any damages allowable would be diminished in proportion to the amount of negligence of the person recovering.

In 1975, the legislature amended the statute to, among other things, substitute the word "fault" for the word "negligence." Former ORS 18.470 (1975) ; Or. Laws 1975, ch. 599, § 11. Although the title of the statute continued to use the phrase "comparative negligence," and still does today, the concept then became known as comparative fault.

The version of that statute that is in effect today, now codified at ORS 31.600(1), is identical in all material respects to the 1975 amended statute. ORS 31.600(1) provides:

"Contributory negligence shall not bar recovery in an action * * * to recover damages for death or injury to person or property if the fault attributable to the claimant was not greater than the combined fault of all persons specified in subsection (2) of this section [specifying categories of people whose fault may or may not be compared to that of the claimant], but any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the claimant. This section is not intended to create or abolish any defense."

This court has explained that the 1975 amendment was intended to cover "actions based on tortious conduct, however described, in which contributory negligence is an appropriate defense." Johnson v. Tilden , 278 Or. 11, 17, 562 P.2d 1188 (1977). In reaching that conclusion, we emphasized the statement of Representative Dave Frohnmayer, that, under the 1975 changes, "[a]pportionment of damages is expressly extended to all actions to recover damages for injury to persons or property in which contributory negligence may properly be asserted as a defense." Id. at 17, 562 P.2d 1188 (quoting Minutes, House Judiciary Committee, May 28, 1975, Appendix G (written statement by Representative Dave Frohnmayer)). That legislative intention is reflected in the text of the statute, which specifies that the legislature did not intend to create any defense that did not otherwise exist. Thus, the rule of comparative fault would reduce defendant's responsibility for the victim's full damages, even in a hypothetical civil action, only if defendant's conduct is equivalent to conduct for which the defense of contributory negligence would have been available before 1971.

B. Comparative fault does not apply in a civil action for conduct involving a mental state more culpable than "gross negligence."

As defendant recognizes, the defense of contributory negligence was not available to all civil defendants. If the defendant acted intentionally or in a manner that was "wanton," then contributory negligence by the plaintiff did not bar recovery, as this court explained in Cook v. Kinzua Pine Mills Co. et al. , 207 Or. 34, 293 P.2d 717 (1956). The plaintiff in Cook was driving on a private logging road when she encountered a logging truck that was owned by the defendant and driven by one of its employees (also a defendant). The plaintiff pulled off to the side of the road to permit the truck to pass, but the truck collided with her car, severely injuring her. In a tort action against the defendants, the plaintiff alleged two theories of liability. In a first count, the plaintiff alleged that the driver of the truck "carelessly, recklessly, and negligently" drove the truck into her car. In a second count, she alleged that the driver struck her car "with knowledge of" her presence, "recklessly and in a wanton manner, and with an utter disregard" for her safety. In their answer to the complaint, the defendants alleged that the plaintiff was contributorily negligent in failing to keep a proper lookout and in failing to keep her automobile under control.

After the plaintiff prevailed at trial, the defendants appealed, raising issues that required this court to clarify the claims for which the defense of contributory negligence was and was not available to the defendants. This court construed the first count of the complaint to allege that the defendants' conduct was negligent and explained, "if plaintiff proved only simple negligence on the part of the defendants she could not recover if defendant proved that she was herself guilty of negligence contributing to the accident." Id. at 42, 293 P.2d 717. On the other hand, the court construed the second count to allege that the defendants' conduct was wanton and held, "if the plaintiff established her claim of wanton misconduct on the part of the defendants, as alleged in count two of the complaint, the defense of contributory negligence would not be available to defendants." Id .

In discussing the circumstances in which contributory negligence operated as a defense, this court in Cook defined four categories of conduct "into which the infinite variety of fact situations must fall": "(1) [s]imple negligence"; "(2) gross negligence"; "(3) injury to the person of another committed in a 'wanton' manner, meaning the doing of an intentional act of an unreasonable character in disregard of a risk known to the actor, or so obvious that he must be taken to have been aware of it and so great as to make it highly probable that harm would follow, usually accompanied by a conscious indifference to consequences"; and "(4) [a]ssault and battery where there is an actual intent not only to do an act but to cause personal injury." Id . at 58-59, 293 P.2d 717. The court emphasized that claims alleging the first two categories of fault could be defeated by the defense of contributory negligence, but that "contributory negligence is no defense" for a defendant who acts either in a "wanton" manner or with an "intent" to cause injury. Id.

The court quoted from a leading torts treatise to explain why "nearly all courts have held that ordinary negligence on the part of the plaintiff will not bar recovery" when the defendant's conduct is "that aggravated form of negligence, approaching intent, which has been characterized variously as 'wilful,' 'wanton,' or 'reckless[.]' " Id . at 42-43, 293 P.2d 717 (quoting William L. Prosser, Law of Torts § 51, 289-90 (2d ed. 1955)). As Prosser explained, "[s]uch conduct differs from negligence not only in degree but in kind, and in the social condemnation attached to it." Id . Thus, under the common law, if a defendant's conduct could be characterized as "wanton," then the plaintiff's contributory negligence was no defense. That is the line that the legislature carried forward when it created the defense of comparative fault: if the defendant's conduct was at least "wanton," comparative fault is no defense.

C. A conviction for third-degree assault establishes that the defendant acted with a mental state that is more culpable than the civil standard of "gross negligence."

Defendant recognizes that his argument for applying comparative fault to reduce the amount of his criminal restitution requires this court to conclude that defendant's criminal culpability, if translated to a hypothetical civil action, would align with categories of culpability for which the defense of comparative fault is available. But he contends that the evidence in this case meets that test. Defendant argues that his culpability under the circumstances of this case is comparable to common law "gross negligence," because he drove with a blood-alcohol content of .11 percent, he stopped after the crash, and he showed remorse. He adds that there was no evidence that he was "staggeringly drunk" or visibly intoxicated. Thus, he argues, the defense of comparative fault would have been available to him in a hypothetical civil claim for the same conduct.

Defendant's argument, however, overlooks the weight that we must give to his conviction. The question is not whether the facts that defendant identifies could support a finding of "gross negligence" in a hypothetical civil action; the relevant comparison must be based on the culpable mental state that is established by defendant's conviction for third-degree assault. As part of his plea of guilty to assault in the third degree, ORS 163.165(1)(a), defendant admitted that he

"recklessly caused serious physical injury to [the victim] by means of a motor vehicle, a dangerous weapon, which [he] drove on a public road under the influence of intoxicants."

That admission establishes a degree of culpability that, in a hypothetical civil action, would fall within the category of "wanton misconduct," for which the injured person's negligence provides no defense.

The task of understanding where particular conduct falls in relation to the line between "gross negligence" and "wanton" misconduct is one with which this court has repeatedly struggled. As we have previously acknowledged, "definitions of gross negligence, as approved by this court, disclose a wide variety, and in a few cases, direct inconsistency." Falls v. Mortensen , 207 Or. 130, 144, 295 P.2d 182 (1956), overruled in part on other grounds by Lindner v. Ahlgren , 257 Or. 127, 477 P.2d 219 (1970). Those seeming inconsistencies arise in part because, in certain statutory contexts, this court has construed the term "gross negligence" as meaning conduct that is actually comparable to the common law classification for "wanton" conduct.

For example, many of this court's older cases discuss the term "gross negligence" in the context of Oregon's "guest passenger" statutory immunity, ORS 30.115. That statute was amended in 1979 to remove immunity from motor vehicle liability, but the amendment did not change the statute in any other respect. Or. Laws 1979, ch. 866, § 7. ORS 30.115 grants owners and operators of aircraft and watercraft, and formerly granted owners and operators of motor vehicles, a broad immunity from liability for injuries to guest passengers, unless the conduct was intentional or the owner or operator was intoxicated or acted with a degree of culpability that the statute describes as "gross negligence." Id. Because of the specific way that ORS 30.115 defines "gross negligence," many of this court's guest-passenger cases required the plaintiff to prove culpability equivalent to the common law concept of "wanton misconduct" to defeat the statutory immunity. Zumwalt v. Lindland , 239 Or. 26, 37-38, 396 P.2d 205 (1964) (explaining that under this court's construction of the statute, "any conduct reckless enough to render a defendant liable under ORS 30.115 is also wanton misconduct").

Outside of that statutory context, however, this court continued to define common law "gross negligence" as involving a lesser degree of culpability than "wanton misconduct" and continued to hold that, if a defendant acted with a degree of culpability that was at least "wanton," then the defendant could not assert the plaintiff's negligence as a defense. Zumwalt , 239 Or. at 32, 396 P.2d 205. Thus, in attempting to determine whether particular conduct rises to a degree of culpability for which the common law defense of contributory negligence would not have been available, the relevant guidance comes from this court's cases discussing the distinction between the common-law concept of "gross negligence" and the common law concept of "wanton" conduct for purposes of contributory negligence.

One of those cases is Falls , in which we highlighted this court's inconsistency with regard to the term "gross negligence" and undertook to clarify the range of culpable conduct that will be considered "wanton." The plaintiff in Falls was crossing the street at a point other than an intersection when he was struck by the defendant, who was intoxicated and driving on the wrong side of the road. 207 Or. at 132, 295 P.2d 182. The plaintiff alleged that the defendant acted "with wanton disregard for the rights and safety of others," and the defendant alleged that the plaintiff was contributorily negligent. Id . at 132-34, 295 P.2d 182. On appeal from a judgment for the plaintiff, the defendant challenged the trial court's instruction to the jury that "contributory negligence is no defense to an action based upon a defendant's wanton disregard of the rights of others," a statement that this court described as "undoubtedly correct." Id. at 134, 295 P.2d 182.

This court also concluded that the trial court correctly instructed the jury that "wanton misconduct," for which contributory negligence is no defense, means:

"an intentional doing or failing to do of an act when one knows or has reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates unreasonable risk of harm to others but also involves a high degree of probability that substantial harm will result to him."

Id. at 135, 295 P.2d 182. After an extensive examination of the authorities that define the "wanton misconduct" for which contributory negligence was no defense, this court concluded that the trial court's definition was "supported by a great weight of authority." Id. at 147, 295 P.2d 182. This court emphasized that the quoted definition was similar to that used by Prosser to define "wantonness," for which contributory negligence was no defense:

" 'Wantonness,' or 'recklessness' * * * means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow."

207 Or. at 137, 295 P.2d 182 (quoting Prosser, Law of Torts § 33 at 151). Falls also emphasized that the trial court's definition of "wanton misconduct" was "substantially the same as" conduct that was described in the Restatement (First) of Torts , section 500 (1934), as "reckless disregard of the safety of another."

In a later case, this court made clear that it "approved" the Restatement definition of "reckless disregard of safety" in section 500 as "an equivalent for" willful or wanton misconduct. Taylor v. Lawrence , 229 Or. 259, 264, 366 P.2d 735 (1961). Moreover, in Taylor , the court noted that it had "also approved the gloss on that rule found in comment 'c' to section 500," which emphasized that conduct sufficient to satisfy the degree of culpability that the Restatement called "reckless disregard"-and that this court called "wanton misconduct"-did not require proof that the defendant actually knew that his conduct would create the unreasonable risk:

" 'In order that the actor's conduct may be reckless, it is not necessary that he himself recognize it as being extremely dangerous. His inability to realize the danger may be due to his own reckless temperament or to the abnormally favorable results of previous conduct of the same sort. It is enough that he knows or has reason to know of circumstances which would bring home to the realization of the ordinary, reasonable man the highly dangerous character of his conduct.' "

Id. at 264-65, 366 P.2d 735 (quoting Restatement § 500, comment c). Thus, as we reiterated in Taylor , " 'expressions such as "reckless disregard", "reckless state of mind," "conscious indifference," "conscious choice of action," are not to be taken to mean that there must be proof that defendant actually had such a state of mind.' " Id. at 265, 366 P.2d 735 (quoting Williamson v. McKenna , 223 Or. 366, 397-98, 354 P.2d 56 (1960) ). Rather, "such expressions are appropriate to describe the hypothetical state of mind of the hypothetical reasonable man who, faced with the dangerous situation, nevertheless elected to encounter it." Id. at 398, 354 P.2d 56. In other words, the word "wanton" described not only a person who acted with actual knowledge and disregard of the risk but also one who acted without such knowledge if a reasonable person would have realized the risk.

A conviction for third-degree assault establishes a degree of culpability that, if compared to common law civil concepts of fault, would fall within the range of culpability that represents "wanton" conduct, and thus a degree of culpability for which the victim's negligence affords no defense. As ORS 163.165(1)(a) specifies:

"(1) A person commits the crime of assault in the third degree if the person:
"(a) Recklessly causes serious physical injury to another by means of a deadly or dangerous weapon[.]"

For purposes of that offense, the mental state "recklessly" is defined as follows:

" '[r]ecklessly' * * * means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."

ORS 161.085(9).

Given that definition, the culpable mental state of a person who is guilty of third-degree assault can be divided into three components: (1) the nature of the risk; (2) the degree of risk; and (3) the degree of awareness with which the person acts in the face of that risk. The culpability of a person who causes harm through conduct that civil law classifies as "wanton" can be divided into the same three components to permit a meaningful comparison. Based on that comparison, we conclude that a criminal defendant who is guilty of third-degree assault has acted with a degree of culpability that is at least as great as that of a civil defendant whose conduct meets the threshold for wantonness.

The alignment between the criminal culpability and the classifications of civil fault is not seamless, in part because the former consists of specific elements while the latter involves a range of culpability. But a conviction for third-degree assault necessarily establishes a degree of culpability that is at least as great as the degree of culpability that satisfies the threshold for civil "wanton" conduct.

First, the nature of the risk is comparable. A conviction for third-degree assault establishes that there was a risk the person's act would cause "serious physical injury to another," ORS 163.165(1)(a), while proof in a civil action that a person caused physical injury through "wanton" conduct requires proof of a risk that the person's act-or failure to act-would cause "substantial" bodily harm. See , e.g. , Taylor , 229 Or. at 264, 366 P.2d 735 (citing Restatement § 500 and comment c).

The degree of risk is also comparable. A conviction for third-degree assault under ORS 163.165(1)(a) establishes that the person used a "deadly or dangerous weapon" under circumstances that presented a "substantial and unjustifiable" risk that the person would cause "serious physical injury" with the weapon. ORS 163.165(1)(a) ; ORS 161.085(9). Proof in a civil action that a person caused physical injury through "wanton" conduct requires proof that the person acted-or failed to act-under circumstances that presented an "unreasonable" and "highly probable" risk that "substantial" bodily harm would result, but the risk of harm need not be that which flows from use of a deadly or dangerous weapon. Taylor , 229 Or. at 264, 366 P.2d 735.

Finally, the mental state with which a person must create the risk of injury, to be guilty of third-degree assault, establishes a degree of culpability that would prove "wantonness" in a civil action. A conviction for third-degree assault establishes that the person actually was "aware of and consciously disregard[ed]" the risk. ORS 161.085(9) ; ORS 163.165(1)(a). In a civil action for the same injury, "wantonness" would involve a range of mental states into which proof of the mental state required for third-degree assault would fall. Although proof of "wanton" conduct may involve proof that the person actually was aware of and consciously disregarded the risk, as does third-degree assault, "wantonness" does not require that proof. Rather, wantonness can be proven if a "reasonable" person would have realized the risk. Taylor , 229 Or. at 264, 366 P.2d 735. Indeed, this court has already considered the relationship between the criminal mental state "recklessly" and the degrees of culpability in a civil action and, in doing so, reached the same conclusion that we reach here through more protracted analysis. In State v. Hill , 298 Or. 270, 280, 692 P.2d 100 (1984), the defendant was convicted of third-degree assault after he drove under the influence of intoxicants and injured his passenger. 298 Or. at 272, 692 P.2d 100. This court reversed the assault conviction because we concluded that the trial court erroneously instructed the jury in a way that permitted jurors to find that the defendant acted recklessly if he was not actually aware of the risk when he drove under the influence of intoxicants but reasonably should have been aware of the risk. Id. at 278-79, 692 P.2d 100. This court observed that the jury instruction would have been appropriate to describe the mental state that established civil liability under the guest passenger statute (i.e. , the mental state that we had equated to "wantonness"), but the court emphasized that criminal recklessness requires a "higher mental state," because it requires the actor to be "aware of the risk and consciously disregard it." Id. at 279, 692 P.2d 100. See also State v. Lewis , 352 Or. 626, 639 n. 6, 290 P.3d 288 (2012) (noting that "recklessness now requires a higher mental state than" the threshold for liability "under the guest passenger statute because the defendant must be aware of and consciously disregard the applicable risk) (internal quotation marks and citation omitted).

In short, if a person uses a deadly or dangerous weapon in a way that the person is aware will create a substantial risk of serious physical injury and consciously disregards that risk, as is established by a conviction for third-degree assault, then the person necessarily has acted with a degree of culpability that the civil common law would classify as at least "wanton." As this court recited in Cook , that conduct "differs from negligence not only in degree but in kind, and in the social condemnation attached to it." 207 Or. at 43, 293 P.2d 717 (internal quotation marks and citation omitted). And a defendant who engages in such conduct cannot assert the plaintiff's negligence as a defense. We, thus, reject defendant's premise that the defense of comparative fault would have been available to him in a hypothetical civil action for the same injury caused under the same circumstances. That conclusion leaves no basis for this court to consider defendant's argument that ORS 137.106 permits the trial court to reduce a victim's "economic damages" for purposes of imposing restitution.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

Duncan, J., dissented and filed an opinion, in which Balmer, J., joined.

DUNCAN, J.

As the majority correctly notes, the terms at issue in this case, including "reckless," "gross negligence," and "wanton," have been used in different ways in Oregon cases. The majority concludes that criminal recklessness, as admitted by defendant in this case, falls within wantonness, which precludes use of the comparative fault defense, as opposed to gross negligence, which does not preclude the use of that defense. See Cook v. Kinzua Pine Mills Co. et al. , 207 Or. 34, 58-59, 293 P.2d 717 (1956) (stating that the defense of contributory negligence is available to a defendant who is negligent or grossly negligent, but not one who acts wantonly or intentionally); Fassett v. Santiam Loggers, Inc., 267 Or. 505, 510, 517 P.2d 1059 (1973) concluding that contributory negligence is not a defense to the commission of "an intentional act which involved a high degree of probability that harm would result and to have demonstrated a reckless disregard of consequences"); see also Johnson v. Tilden , 278 Or. 11, 17, 562 P.2d 1188 (1977) (explaining that comparative fault statute was intended to apply in actions in which contributory negligence was an appropriate defense).

This court has described wantonness as

"the doing of an intentional act of an unreasonable character in disregard of a risk known to the actor, or so obvious that he must be taken to have been aware of it and so great as to make it highly probable that harm would follow, usually accompanied by a conscious indifference to consequences."

Cook, 207 Or. at 58-59, 293 P.2d 717 (emphasis added). Likewise, this court has approved a jury instruction defining "wanton misconduct" as

"an intentional doing or failing to do of an act when one knows or has reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates unreasonable risk of harm to others but also involves a high degree of probability that substantial harm will result to him."

Falls v. Mortensen , 207 Or. 130, 135, 295 P.2d 182 (1956), overruled in part on other grounds by Lindner v. Ahlgren , 257 Or. 127, 477 P.2d 219 (1970) (emphasis added). Thus, wantonness involves a risk "so great as to make it highly probable that harm would follow." Cook , 207 Or. at 58, 293 P.2d 717 ; see also Falls , 207 Or. at 137, 295 P.2d 182 (quoting William L. Prosser, Law of Torts § 33, 151 (2d ed. 1955)) (wanton conduct involves a risk that is "extremely likely" to result in harm); Williamson v. McKenna , 223 Or. 366, 391, 354 P.2d 56 (1960) (stating that wanton conduct involves a "high degree of manifest danger"); id . at 396, 354 P.2d 56 (explaining that wanton conduct involves " 'an easily perceptible danger of substantial bodily harm or death and the chance that it will so result must be great,' " and holding, as a matter of law, that driver's conduct was not wanton (quoting Restatement (First) of Torts § 500 comment a (1934))).

In this case, the majority concludes that the culpable mental state for committing third-degree assault falls within the mental state of "wantonness." State v. Gutierrez-Medina , 365 Or. 79, 92, 442 P.3d 183 (2019). A person commits third-degree assault if the person "[r]ecklessly causes serious physical injury to another by means of a deadly or dangerous weapon[.]" ORS 163.165(1)(a). A person acts "recklessly" if the person

"is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."

ORS 161.085(9).

The majority compares the culpable mental state for third-degree assault and wantonness. Specifically, it compares the nature of the risk, the degree of risk, and the person's awareness of the risk. 365 Or. at 92, 442 P.3d at ----. I disagree with the majority's conclusion that the degree of risk is the same.

Both recklessness and wantonness involve an unreasonable or unjustifiable risk, but it appears to me that recklessness is a less culpable mental state than wantonness because recklessness involves a substantial risk, whereas wantonness involves a highly probable risk. Thus, a person can be reckless without being wanton. See Cook , 207 Or. at 43, 293 P.2d 717 (quoting Prosser, Law of Torts § 51 at 291, for the proposition that wantonness is something more than an "extreme departure from ordinary standards").

The majority relies on State v. Hill , 298 Or. 270, 692 P.2d 100 (1984) for the proposition that recklessness requires a higher culpable mental state than wantonness. This court's decision in Hill was based on the fact that, to be reckless, a person must be aware of and consciously disregard a risk, but a person can be wanton if the person is aware and consciously disregards a risk or if the person should have been aware of the risk. 298 Or. at 279, 692 P.2d 100. The Hill court was correct that the awareness required to establish recklessness is greater than that required to establish wantonness. But it does not establish that a person who acts with that required awareness is wanton, because wantonness also depends on the degree of risk, which is greater than that required for recklessness.

Because I disagree with the majority's conclusion that defendant would be precluded from using the comparative default defense, I respectfully dissent.

Balmer, J., joins in this dissent.

      At trial, defendant presented the testimony of a forensic accident investigation expert who had examined the scene of defendant's accident and concluded that defendant struck the victim when the victim walked five feet from a curb onto the roadway. The expert stated that the area was very dark, with no lighting, that there was no crosswalk, and that the victim did not have the right of way. The expert concluded that, "based on the circumstances, a sober driver would not have been able to avoid the collision with the victim, and the victim was in the best position to have avoided the collision."

      ORS 30.115(2) defines "gross negligence" to "refer[ ] to negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the rights of others."

      Despite this court's effort in Zumwalt to correct confusion about the proper terminology to describe the degree of culpability for which the plaintiff's negligence was no defense, some slippage continued. See Fassett v. Santiam Loggers, Inc ., 267 Or. 505, 507-08, 517 P.2d 1059 (1973) (explaining that "simple negligence cannot be a defense" if the defendant acts with culpability equivalent to "reckless disregard" but calling that degree of culpability "gross negligence").

      As quoted in Falls , Restatement section 500 defined "reckless disregard of the safety of another" as follows:
      "The actor's conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him."
      207 Or. at 136-37, 295 P.2d 182.

      As the majority notes, in Hill , this court considered whether evidence that a defendant acted with criminal recklessness would be enough to establish liability under the guest-passenger statute. To establish liability under that statute, a plaintiff had to prove that the defendant acted with "gross negligence," which-in that context-was the equivalent of "wantonness." Zumwalt v. Lindland , 239 Or. 26, 37-38, 396 P.2d 205 (1964) (explaining that "any conduct reckless enough to render a defendant liable under [the guest-passenger statute] is also wanton misconduct").


source: Caselaw Access Project

author: NELSON, J.

license: Public Domain

text:
    Michele M. FLETCHALL, Charles E. Lee, Kevin L. Mannix, Becca Uherbelau, David Rogers and Reyna Lopez, Petitioners, v. Ellen F. ROSENBLUM, Attorney General, State of Oregon, Respondent.
    SC S066460 (Control, S066463, S066465)
    Supreme Court of Oregon, En Banc.
    June 6, 2019
    Kevin L. Mannix, Kevin L. Mannix, P.C., Salem, filed the petition and reply memorandum for petitioners Fletchall, Lee, and Mannix.
    Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter, PC, Portland, filed the petition and reply memorandum for petitioner Uherbelau.
    Evan R. Christopher, Davis Wright Tremaine LLP, Portland, filed the petition and reply memorandum for petitioners Rogers and Lopez. Also on the petition was Gregory A. Chaimov.
    Jona J. Maukonen, Assistant Attorney General, Salem, filed the answering memorandum for respondent. Also on the memorandum were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Aruna A. Masih, Bennett, Hartman, Morris & Kaplan, LLP, Portland, filed the memorandum for amicus curiae Joseph Baessler.
   NELSON, J.

In this ballot title review proceeding, we consider three separate petitions that challenge the Attorney General's certified ballot title for Initiative Petition 5 (2020) (IP 5). For all three petitions, we review the ballot title under the same standard: substantial compliance with ORS 250.035(2). See ORS 250.085(5) (setting out that standard of review). Having considered the various and sometimes conflicting arguments raised in the petitions, we conclude that the ballot title does not substantially comply with ORS 250.035(2). Accordingly, we refer the ballot title to the Attorney General for modification.

I. BACKGROUND

In a nutshell, IP 5 would repeal and replace a provision in the Oregon Constitution, Article IV, section 6, that addresses reapportionment of the state's legislative districts, after each decennial census, to take into account changes in the distribution of the state's population.

In its present form, Article IV, section 6, assigns the task of reapportionment to the legislature, § 6(1), but provides that, if the legislature fails to complete that task by a specified date after the census, the Secretary of State will "make a reapportionment" in the legislature's stead, § (6)(3)(a). It also provides for judicial review of the resulting reapportionment, upon the petition of "any elector," for compliance with the requirements of Article IV, section 6, and "all laws applicable thereto." Or. Const., Art. IV, § 6 (2)(a)-(c); id . § 6 (3)(b), (c). The "laws applicable thereto" include ORS 188.010, which directs the legislature (or the Secretary of State) to apportion districts using certain specified criteria, including a requirement that districts be drawn in a way that does not "divide communities of common interest," ORS 188.010(1)(d), and ORS 188.016, which requires the legislature to hold at least 10 public hearings at locations throughout the state prior to proposing a reapportionment plan, and at least five more public hearings before finally adopting the plan that is proposed.

IP 5 would repeal that current version of Article IV, section 6, and replace it with a new Article IV, section 6, that establishes a "Citizen Commission on Legislative Redistricting" to which the task of reapportionment would fall. The commission created by IP 5 would be composed of 11 members, each of whom would be appointed by all of the county commissioners serving within one of 11 designated geographic areas within the state. Each of the designated geographic areas would be composed of a group of contiguous counties, or, in the case of Washington and Multnomah counties, a single county. The state's population would not be evenly distributed among the 11 areas. As a result, the commission's membership would not equally represent the population of the state but, instead, would give significantly greater representation to rural areas of the state.

After the issuance of the decennial census, the commission thus constituted would be required to (1) adopt a preliminary redistricting plan by an affirmative vote of the majority of its members; (2) hold at least one public hearing in each congressional district regarding the preliminary plan; and (3) adopt a final plan, again by a majority vote, within a designated time frame.

The proposed version of Article IV, section 6, specifies criteria for apportionment by the commission. Most notably, it requires the new commission to apportion districts to be "as compact in area as possible," with the "aggregate linear distance of all district boundaries" being "as short as possible." In addition, the districts must be contiguous, of equal population "within a range of two percent plus or minus," and drawn using "existing geographical and political boundaries to the extent practicable." While some of those criteria for apportionment mirror the statutory criteria for apportionment set out in ORS 188.010 -which the legislature is required to follow when carrying out the redistricting demanded by the current version of Article IV, section 6-some are different. Most notably, IP 5 would (1) establish the above-mentioned "compactness" requirement, which does not exist in the present reapportionment scheme; (2) expressly permit a small amount of inequality between the populations of districts ("equal within a range of two percent") that is not expressly permitted under current law; and (3) omit the present statutory requirement that each district "not divide communities of common interest." ORS 188.010(1)(d).

Finally, the proposed version of Article IV, section 6, provides for judicial review of a final redistricting plan adopted by the commission, but only for constitutional errors and only upon a petition filed by 15 electors. It also provides that, if the commission fails to timely adopt a final redistricting plan, this court will prepare a final redistricting plan within a specified time period.

The Attorney General certified the following ballot title for IP 5:

"Amends Constitution: Transfers legislative redistricting to commission; commission over-represents rural areas; changes redistricting requirements; limits judicial review
"Result of 'Yes' Vote: 'Yes' vote transfers legislative redistricting to commission; commission over-represents rural areas. Changes redistricting requirements; limits "aggregate linear distance" of borders. Fewer hearings. Limits judicial review.
"Result of 'No' Vote: 'No' vote retains redistricting by legislature. Statutory, constitutional criteria. Minimum ten public hearings. Upon default, Secretary of State adopts plan. Elector can seek court review.
"Summary: Amends Constitution. Currently, legislature reapportions legislative districts after census, following at least 10 public hearings. Criteria set by statute and Constitution. If legislature defaults, Secretary of State completes redistricting. Any elector may petition Oregon Supreme Court to review compliance with law; if deficient, court may create plan. Measure replaces current process with 11-member commission. County Commissioners appoint members (excluding recent elected officials, spouses, and some political party officials). Rural areas receive disproportionately high representation. Changes constitutional, statutory requirements; district boundaries must have shortest possible "aggregate linear distance." Five public hearings required. Plan adopted by majority commission vote. Legislature funds commission, otherwise uninvolved. 15 electors required to petition Supreme Court. Court review limited to constitutional defects. Upon default, Supreme Court completes redistricting. Other provisions."

II. ANALYSIS

Three petitions for review of the certified ballot title for IP 5 were filed in this court by electors who timely had submitted comments concerning the Attorney General's draft ballot title (and who therefore had standing to seek such review). ORS 250.085(2). Two of the petitions challenge all three sections of the certified ballot title-that is, the caption, the result statements, and the summary. The third petition challenges only the summary. We begin with the challenges to the caption.

A. Caption

We review the caption for compliance with the statutory requirement, set out at ORS 250.035(2)(a), that a ballot title's caption shall consist of "not more than 15 words that reasonably identify the subject matter of the measure," to be preceded by the words "Amends Constitution" if the measure would amend the Oregon Constitution. For purposes of ORS 250.035(2)(a), a measure's "subject matter" is its "actual major effect"-or, if there is more than one, all such major effects that can fit within the statutory word limit. Markley/Lutz v. Rosenblum , 362 Or. 531, 534, 413 P.3d 966 (2018). To identify a measure's "actual major effect" (or effects), we consider "the changes that the proposed measure would enact in the context of existing law." Id. at 535, 413 P.3d 966.

After thus ascertaining the measure's actual major effects, we examine the caption to determine whether it reasonably identifies those effects. Rasmussen v. Kroger , 350 Or. 281, 285, 253 P.3d 1031 (2011).

We begin with the objections to the Attorney General's caption raised by petitioner Uherbelau. Only two of Uherbelau's three objections warrant extended discussion. Uherbelau first argues that the caption fails to comply with the requirements of ORS 230.035(2)(a) because it fails to mention the most significant "actual major effect" of IP 5, which is to repeal the existing constitutional provision that places redistricting in the hands of the legislature. She explains that it is important to inform the voters that the current legislatively controlled redistricting process, which is enshrined in the Oregon Constitution, will be repealed in its entirety if IP 5 is adopted. And she observes that the phrase "[t]ransfers legislative redistricting to commission" in the certified ballot title's caption fails to provide that information.

Uherbelau also argues that the certified ballot title's caption is flawed because it fails to notify voters that IP 5 creates an entirely new commission to carry out the reapportionment functions that presently are carried out by the legislature. She contends that the fact that the initiative measure creates a new body to assume the duties previously assigned to the legislature should be reflected in the caption.

The Attorney General's responses to those two objections are essentially the same. She argues that neither the fact that IP 5 repeals the existing constitutional provision for reapportionment by the legislature, nor the fact that it creates a new commission to take over the task of reapportionment, are significant changes in the law that need to be highlighted in the caption. She contends that it is more important-and sufficient-to inform voters that the measure provides that redistricting authority will be transferred to a commission and that judicial review of the commission's redistricting efforts will be limited.

We do not agree with the Attorney General's position that a caption that simply states that IP 5 would "transfer legislative redistricting to [a] commission" adequately describes the measure's actual major effects, i.e. , the most significant changes that it would adopt in the context of existing law. Rasmussen , 350 Or. at 285, 253 P.3d 1031. Under existing law, i.e. , Article IV, section 6, of the Oregon Constitution, the legislature is charged with redistricting, and the repeal of that constitutional arrangement clearly is one of the most, if not the most, significant change to existing law that IP 5 would adopt. Although there is no requirement that the term "repeal" be used to describe the change, the caption must somehow convey that IP 5 would eliminate the existing constitutional provision for reapportionment by the legislature.

The creation of an entirely new deliberative body to make reapportionment decisions is, likewise, one of the most consequential changes to existing law that IP 5 would adopt. The simple statement that the measure would "transfer legislative redistricting to commission" does not convey (or even imply, as the Attorney General suggests) that the commission at issue would be newly created by and in accordance with the provisions of IP 5 itself. Neither does the statement "commission over-represents rural areas"-which we discuss at greater length below-fill the gap. Without some wording that clearly conveys that IP 5 creates and configures the commission to which redistricting authority would be transferred, the ballot title's caption fails to reasonably describe the measure's "actual major effect," i.e. , its "subject matter."

Having concluded that the caption certified by the Attorney General is deficient in the two ways that petitioner Uherbelau has identified, we turn to the objections raised by petitioners Fletchall, Lee, and Mannix (the Fletchall petitioners). They contend that the caption fails to comply with ORS 250.035(2)(a) in four different respects: (1) it does not adequately describe the nature of the commission;

(2) it incorrectly or irrelevantly describes the commission as "over-represent[ing] rural areas"; (3) it includes a phrase-"limits judicial review"-that is misleading; and (4) it fails to mention the overriding standard for redistricting set out in IP 5-that districts should be "maximally compact."

With respect to the first point, the Fletchall petitioners argue that an actual major effect of IP 5 is the transfer of responsibility for redistricting from the legislature, which is made up of "partisan office holders," to a commission made up of "nonpartisan, non-elected citizens." They contend that describing the commission as a "non-partisan, citizen commission" is necessary to convey that point because it highlights the ways in which members of the contemplated commission would differ from members of the legislature: they could not be persons who held elective office or who had held any elective office within the previous 10 years; they would not be selected for membership in the commission in a partisan process; they would serve only until their work was done; and they would receive only a per diem allowance for the days that they actually work. The Attorney General responds, however, that the inclusion of the descriptors "citizen" and "non-partisan" would not convey anything about the proposed measure's actual major effects. The term "citizen," the Attorney General explains, has so many different meanings and applications that it likely would not be understood in the way that the Fletchall petitioners suggest. And, because virtually all governmental commissions are "nonpartisan" in some sense, the Attorney General asserts, including the descriptor "nonpartisan" in the caption would not impart anything meaningful about the effect of IP 5 to the voters.

We generally agree with the Attorney General's point that the words "citizen" and "nonpartisan" do not add much, if anything, that is informative to the term that it would modify-"commission." We also observe that those words are not neutral in this context. Given the subject matter, the phrase "nonpartisan, citizen committee" invokes familiar and emotionally charged themes relating to political independence and government by "professional politicians" that would have a greater tendency to promote passage of the measure than to convey its actual content to the voters. Such phrases are not properly included in any part of a measure's ballot title, including the caption. See Earls v. Myers , 330 Or. 171, 176, 999 P.2d 1134 (2000) (phrase "freedom to choose" was likely to prejudice voters in favor of measure and was not properly included in ballot title caption); see also Dirks v. Myers , 329 Or. 608, 616, 993 P.2d 808 (2000) (court would not incorporate terms in ballot title that "tend[ed] more to promote or defeat passage of the measure than to describe its substance accurately").

The Fletchall petitioners next challenge the inclusion of the phrase "commission over-represents rural areas" in the caption. They contend that that phrase does not belong in the ballot title because it erroneously suggests that there is something abnormal or undesirable about the composition of the commission. They note that, in fact, it is quite common for members of a state commission to be chosen to reflect geographic diversity (as is the membership of the commission contemplated by IP 5, in their view)-more common, in fact, than having the members apportioned by population.

The Attorney General responds that commissions whose members are chosen to provide geographic diversity either do so in a way that involves an equal distribution of the state's population among commission members (as is the case, for example, with the Oregon Liquor Control Commission, which must have a member from each congressional district in the state, ORS 471.705(1) ) or serve a function to which specific geographical regions are particularly relevant (as in the case, for example, of the Water Resources Commission, which must have one member from "each of the five regional river basin management areas" in the state, ORS 536.022(1) ). The uneven representation of the state's population in the redistricting commission contemplated by IP 5 cannot be explained on either of those grounds, the Attorney General notes. More importantly, the Attorney General adds, regardless of any purpose of providing geographic diversity, the geographic distribution of membership of the new "Citizen Commission on Legislative Redistricting" is "a stark and a major effect of the measure," given that some positions on the commission represent areas that are inhabited by more than 800,000 residents, while others represent areas that are inhabited by fewer than 100,000 residents.

We agree with the Fletchall petitioners that the phrase "commission over-represents rural areas" is problematic, for similar reasons discussed above. The word "over-represents" is not neutral, but rather has a normative component. That word is likely to prejudice voters against the measure because, rather than making the accurate, factual point that rural areas would have greater representation per capita than population centers, it appears to include a judgment that the representation of rural areas would be excessive. The term "over-represents" should not be used in the caption, or any other part of the ballot title, for that reason. On the other hand, we think that it is permissible and even necessary to highlight the fact that IP 5 transfers reapportionment-a process that, by its nature, is concerned with representation-from a body whose membership is strictly apportioned in accordance with population to one that effectively inverts that population-based apportionment, such that rural areas with fewer residents have more representatives (and, thus, more power). Put more simply, we believe that most people would view the way that membership is allocated as perhaps the most politically consequential feature. It is, therefore, an actual major effect of IP 5 that must be included in the ballot title's caption.

The Fletchall petitioners' third challenge to the caption in the Attorney General's certified ballot title concerns the inclusion of the phrase "[l]imits judicial review." The Fletchall petitioners argue that that phrase is erroneous or misleading because this court will have substantially the same jurisdiction to review a redistricting plan adopted by the Citizen's Commission on Legislative Redistricting that it currently has to review a redistricting plan enacted by the legislature. They contend that the only real difference under IP 5 would be that the applicable standards for reapportionment would all appear in the Oregon Constitution, rather than being spread among statutory provisions and the state and federal constitution, as they currently are. But that difference, they argue, does not place substantial limits on the judicial review of reapportionment that current law provides. The Attorney General counters that the phrase "[l]imits judicial review" accurately describes IP 5 because the measure increases to fifteen the number of petitioners needed to challenge a redistricting plan, shortens the time frame for filing a petition, and precludes review on any non-constitutional basis. The Attorney General insists, moreover, that those changes constitute an actual major effect of the measure that must be included in the caption.

We conclude that the phrase "limits judicial review" is impermissibly vague and potentially misleading. The judicial review currently provided by Article I, section 6(b), is not unlimited, so the statement that IP 5 "limits judicial review" does not helpfully convey any change or effect arising from the measure. To the extent that the words were meant to convey that IP 5 places more limits on judicial review of a reapportionment plan than the limits that currently exist, they fail to do so. In the end, the words do not serve the function of identifying an actual major effect, i.e. , the "subject matter," of the measure.

Having said all of that, the issue is not an important one in this context. Any changes to the judicial review process provided in IP 5 are part of, and secondary to, one of the actual major effects that we already have identified-the establishment of a new, commission-based process for redistricting. They are not, in themselves, an actual major effect of the measure that must be included in the ballot title caption.

The Fletchall petitioners contend, finally, that the caption is deficient because it does not refer to the important new criterion for reapportionment that IP 5 imposes: the requirement that each district be "as compact in area as possible." The Attorney General responds that the effect of that new criterion is sufficiently captured by the phrase "changes redistricting requirements." We agree with the Attorney General that there is no need to separately refer to the new compactness criterion in the caption. In fact, doing so without also mentioning the measure's elimination of the present requirement that districts "not divide communities of common interest," ORS 188.010(1)(d), would provide a skewed understanding of the measure's effect on the legal criteria for the formation of legislative districts. The phrase "changes redistricting requirements" avoids that problem-but, again, the issue is of little consequence in this context. The changes from the current redistricting criteria are significant effects of IP 5, but not so significant that they should displace the "actual major effects" of IP 5 that we already have identified.

To recap, we have identified three "actual major effects" of IP 5 that must be included in the caption of the measure's ballot title: (1) the measure repeals the existing constitutional provision directing the legislature to reapportion legislative districts; (2) the measure creates a new commission to carry out reapportionment in the legislature's stead; and (3) the measure configures the commission in a way that gives rural areas relatively more influence over the reapportioning process than population centers. None of those three major effects are included in the certified ballot title's caption, although we believe that it is possible to include all three in the applicable 15-word limit. It follows that the caption fails to substantially comply with the requirements of ORS 250.035(2)(a) and must be referred to the Attorney General for modification.

B. Result Statements

Petitioner Uherbelau and the Fletchall petitioners also challenge the result statements in the Attorney General's certified ballot title. The standards for the result statements are set out at ORS 250.035(2)(b) and (c) : A "yes" vote result statement must set out a "simple and understandable statement of not more than 25 words that describes the result if the state measure is approved," while the "no" vote result statement must describe the result, within the same limitations, "if the state measure is rejected." This court has stated that a "yes" vote result statement should include the results of enactment of the measure that are "most significant and immediate, or that carr[y] the greatest consequence, for the general public." Novick/Crew v. Myers , 337 Or. 568, 574, 100 P.3d 1064 (2004). The "no" vote result statement, on the other hand, should accurately describe the "substance of current law on the subject matter of the proposed measure." Markley/Lutz , 362 Or. at 538, 413 P.3d 966.

1. "Yes" Vote Result Statement

In challenging the Attorney General's "yes" vote result statement, both Uherbelau and the Fletchall petitioners rely in part on themes that they raised in challenging the Attorney General's caption. Uherbelau challenges the "yes" result statement's failure to mention the repeal of the longstanding constitutional provision for redistricting by the legislature and the creation of a new commission to which the task of redistricting would fall. The Fletchall petitioners condemn the statement's failure to describe the commission as a "non-partisan, citizen commission" and its inclusion of the statements "[l]imits judicial review" and "commission over-represents rural areas."

Although we evaluate the "yes" vote result statement in a certified ballot title under a different standard than we evaluate the certified ballot title's caption, our answers to those challenges are essentially the same. We agree with Uherbelau that IP 5's repeal of the constitutional provision for redistricting by the legislature and its creation of a new commission to take over the task of redistricting are the results of the measure that "carry the greatest consequence for the general public," and therefore should be included in the "yes" vote result statement. Novick/Crew , 337 Or. at 574, 100 P.3d 1064. We agree with the Fletchall petitioners that the specific phrase "over-represents rural areas" is problematic for the reasons discussed, but conclude that the underlying point-that the commission that IP 5 would create gives greater representation to rural areas of the state than to its population centers-is yet another result of great consequence to the general public that should be included in the "yes" vote result statement. We conclude that the statement "[l]imits judicial review" should be excluded because it does not intelligibly state an effect or "result" of IP 5. And, because describing the commission as a "nonpartisan, citizen commission" would tend to prejudice voters in favor of the measure rather than inform them as to its effect, we reject the Fletchall petitioners' contention that the "yes" vote result statement must describe the commission in those terms.

But petitioners raise other arguments that are more exclusively directed at the wording of the certified "yes" vote result statement (as opposed to wording that is repeated in all parts of the certified ballot title). The Fletchall petitioners contend that the phrase "limits 'aggregate linear distance' of borders," in the "yes" vote result statement, although drawn directly from IP 5, is misleading because it is unintelligible: The average voter would not understand what was being conveyed by the requirement. They contend that the meaning of the "aggregate linear distance" requirement, in conjunction with a requirement that districts "shall be as compact in area as possible," is more effectively conveyed by a phrase such as "requires maximally compact districts." The Attorney General responds that, insofar as the limitation on "aggregate linear distance" of district borders is the specific method stated in the measure for ensuring that districts are "as compact in area as possible," it is not inaccurate or misleading.

We are not persuaded that the addition of a compactness criterion for drawing district boundaries has any place in the "yes" vote result statement at all, particularly when that statement does not also refer to the measure's elimination of the longstanding and politically significant requirement that districts be drawn in a way that does not divide "communities of common interest." ORS 188.010 (1)(d). Assuming (as we do) that the combined changes to the criteria for drawing legislative districts constitute one of the "greatest consequence for the general public" of adopting IP 5, Novick/Crew , 337 Or. at 574, 100 P.3d 1064, and therefore merits inclusion in the "yes" vote results statement, then the express reference to one change (the introduction of a compactness requirement) without also mentioning another important change (the elimination of the communities of common interest requirement) causes the "yes" vote result statement to be underinclusive. Cf. Kain v. Myers , 336 Or. 116, 121, 79 P.3d 864 (2003) (caption that identifies measure's subject matter by mentioning some aspects, but leaving other major aspects unmentioned, is underinclusive). If it is not possible to fit both changes, along with other highly consequential results of IP 5 that we have identified, within the 25 words allotted for such statements in ORS 250.035(2)(b), the Attorney General may consider including a general phrase such as "changes redistricting requirements" and leaving the specifics of those changes to the ballot title's summary section. See Novick/Crew , 337 Or. at 575-77, 100 P.3d 1064 (Attorney General properly described most significant and immediate result of the enactment of proposed measure in general terms in "yes" vote results statement and then provided more particular results and explanation in summary).

With regard to the "yes" vote result statement, petitioner Uherbelau also contends that the phrase "[f]ewer hearings" is impermissibly vague and misleading because it does not specify that IP 5 would significantly reduce the number of public hearings that would be required before a final redistricting plan could be approved. Uherbelau suggests that readers of the Attorney General's "yes" vote result statement might erroneously interpret the "fewer hearings" phraseology to mean that there would be fewer legislative-type hearings, missing the point that public participation in the process of redistricting would be drastically curtailed. The Fletchall petitioners focus on the same phrase, but for different reasons: They contend that, because IP 5 does not affirmatively direct that there be fewer hearings, but only lowers the number that are required, the phrase "fewer hearings"-which suggests that fewer hearings necessarily will be held-is inaccurate. They also contend that the change in the number of required hearings is a relatively minor aspect of IP 5 that does not warrant inclusion in the "yes" vote result statement. The Attorney General responds that the phrase "fewer hearings" accurately captures the fact that IP 5 requires fewer hearings and thus sufficiently conveys the most immediate impact of adopting IP 5 with respect to deliberative activity, particularly when greater detail about the diminished opportunities for public participation can be (and is) provided in the summary portion of the ballot title.

Both arguments are valid. The phrase "fewer hearings" implies that there will be fewer hearings, when IP 5 in fact provides that the commission "shall conduct at least one public hearing in each congressional district"-meaning that fewer hearings are required but that more are entirely possible. At the same time, the simple reference to "hearings" does not convey the important point that the hearings at issue are the public's opportunity to participate in the redistricting process-not merely internal deliberations by the commission. Ultimately, then, the phrase "fewer hearings" is imprecise in a way that might mislead a voter who is attempting to understand the result of a "yes" vote. The Attorney General should attempt to add wording that corrects the misimpression that the present wording conveys, e.g. , "fewer required public hearings." If that is not possible, given the applicable 25-word limit and the obligation to describe other, more important results if IP 5 is approved, a description of the change in the number of required hearings could appropriately be relegated to the ballot title summary. Novick/Crew , 337 Or. at 575-77, 100 P.3d 1064 (details about results of a measure may be left to the summary).

Finally, the Fletchall petitioners argue that the "yes" vote result statement should include some reference to the fact that the measure authorizes the Supreme Court to produce a redistricting plan if the "Citizens Committee" fails to produce one. We agree with the Attorney General, however, that that aspect of IP 5 is not one of the measure's most significant effects and that the Attorney General could properly choose to disclose that effect in the summary, instead of the "yes" vote result statement.

2. "No" Vote Result Statement

Petitioner Uherbelau raises two issues with respect to the "no" vote result statement. She first challenges the statement's use of the term "elector" ("Elector can seek court review"). She insists that that word "elector" is unfamiliar to the voting public and that the more common term "voter" should be used instead. The argument is not well taken. Although we accept Uherbelau's point that the term "voter"

is more commonly used than the term "elector," the use of the latter term does not render the Attorney General's "no" vote result statement incomprehensible or otherwise preclude its compliance with the "simple and understandable statement" standard set out in ORS 250.035(2)(c).

Petitioner Uherbelau also contends that the "no" vote result statement is punctuated in a way that would lead readers to understand it as a series of stand-alone legal consequences of a "no" vote, when, in fact, the statement seeks to convey that a "no" vote would "retain" each of the legal consequences appearing in the series. Petitioner Uherbelau observes that the problem can easily be remedied by changing the periods between the statements to commas. We agree with Uherbelau's assessment of the problem and its solution. Because the Attorney General's "no" vote result statement, as it now is punctuated, is not an easily understandable statement of the results of a "no" vote, it fails to substantially comply with the requirements of ORS 250.035(2)(c) and must be remanded to the Attorney General for modification.

C. Summary

All three petitions challenge the summary in the Attorney General's certified ballot title. To pass muster on review, a ballot title summary must be a "concise and impartial statement of not more than 125 words summarizing the state measure and its major effect." ORS 250.035 (2)(d). While the summary thus is similar to the "yes" vote result statement, in that both are required to notify voters of the measure's most significant effects or results, the allotment of 125 words to the summary "signals an intention to require the Attorney General to disclose in greater detail the proposed measure's major effects" by, among other things, including "additional important consequences or details that the result statement does not convey" and "helpful contextual information about the impact of the proposed measure on existing law." Novick/Crew , 337 Or. at 574, 100 P.3d 1064.

Petitioner Uherbelau contends that the summary is objectionable in the same ways that the caption and "yes" vote result statement are objectionable-it fails to clearly convey that IP 5 would repeal the existing constitutional provision for redistricting by the legislature, and it fails to convey that IP 5 would create and configure a new commission to carry out the task of redistricting. We agree that the summary is deficient insofar as it does not disclose those effects of the measure. Uherbelau also objects to the sentence, "Measure replaces current process with 11-member commission," on the ground that it illogically and wrongly suggests that IP 5 would replace an entire decisional process with a deliberative body. Again, we agree: The challenged sentence should be modified to make the comparison between the current and projected decisional arrangements more sensible.

Finally, petitioner Uherbelau challenges the sentence, "Changes constitutional, statutory requirements; district boundaries must have shortest possible 'aggregate linear distance.' " She contends that the vague reference to "changes" is inaccurate insofar as it fails to convey that IP 5 actually would eliminate some of the current statutory criteria for formation of legislative districts-including, most importantly, the requirement that legislative districts "not divide communities of common interest." ORS 188.010(1)(d). The omission of the current "communities of common interest" criterion is made particularly egregious, in Uherbelau's view, by the summary's express reference to the addition of a new criterion: "district boundaries must have shortest possible 'aggregate linear distance.' " Uherbelau contends that expressly mentioning that change to the redistricting criteria without also mentioning other important changes-most particularly, the elimination of the requirement that "communities of common interest" not be divided-causes the "changes * * * requirements" sentence to be underinclusive.

Petitioners David Rogers and Reyna Lopez (the Rogers petitioners) are also concerned about the summary's failure to mention the proposed measure's elimination of the current requirement that legislative districts "not divide communities of common interest," but for a different reason than those expressed by Uherbelau. In their view, the elimination of the current "communities of common interest" requirement must be included in the ballot title's summary, regardless of what else is included about changes to the criteria for redistricting. That is so, they argue, because the "communities of common interest" requirement has been a central feature of Oregon redistricting law and, indeed, federal constitutional law for many years, and has been recognized as an important tool for protecting the representativeness of legislative bodies and combatting the negative effect of gerrymandering. See generally Miller v. Johnson , 515 U.S. 900, 115 S Ct 2475, 132 L Ed 2d 762 (1995) (discussing racial gerrymandering and importance of drawing districts in a way that is sensitive to communities of common interest); Stephen J. Malone, Recognizing Communities of Interest in a Legislative Apportionment , 83 Va L Rev 461, 465 (1997) ; Jonathan Bernstein, All the Pretty Little Districts , The American Prospect, August 23, 2013, (https://prospect.org/article/all-pretty-little-districts) (accessed May 30, 2019) (describing how preserving communities of common interest redistricting requirement helps block gerrymandering efforts). In light of those facts, the Rogers petitioners argue, the proposed measure's elimination of the requirement that districts be drawn in a way that preserves communities of common interest is, in itself, a major effect of the measure that must be highlighted in the ballot title summary. The Attorney General responds, very briefly, that the summary "adequately conveys to voters what will happen if IP 5 passes," by stating that the measure changes the requirements for redistricting.

We conclude that mentioning the "shortest possible aggregate linear distance" requirement that is included in the proposed measure without also mentioning its elimination of a requirement of longstanding importance in Oregon redistricting law-that communities of common interest be preserved-causes the summary to be underinclusive and, ultimately, inaccurate.

That brings us, finally, to the Fletchall petitioners' objections to the Attorney General's summary. Two of those objections will be familiar to the reader at this point, and we can dispose of them in a shorthand way. We reject the contention that the summary is inaccurate or inadequate because it fails to use the terms "citizen" and "nonpartisan" in connection with the commission that IP 5 envisions. As we have already explained, those terms are not informative and are not neutral in this context. With respect to the Fletchall petitioners' objection to the statement in the summary that "[r]ural areas receive disproportionately high representation," we again observe that the wording must be changed to avoid value-laden terminology (in this case, "disproportionately"), but that the underlying point-that IP 5 gives rural areas more representation on the commission than population centers-must be included in the summary.

In a variation on an objection that they raised to wording in the certified caption, the Fletchall petitioners object to the summary's statement that, under IP 5, "court review" would be "limited to constitutional defects." They appear to be referring to their earlier argument that, because IP 5 places all procedural and substantive requirements for reapportionment in a new Article IV, section 6, of the Oregon Constitution, rather than spreading them between statutory and constitutional provision, it is wrong to suggest that judicial review under IP 5 is more limited than under current law because of its limitation to "errors constitut[ing] a violation of [the Oregon] Constitution or of the United States Constitution." Because we do not see the challenged statement as overtly setting out a comparison to judicial review arrangements under current law, we are not persuaded by the Fletchall petitioners' argument. Rather, the statement simply (and correctly) conveys the very strong limitation on judicial review expressed in IP 5: "No error or errors by the Citizen Commission shall be grounds for modification of the Final Redistricting Plan unless the error or errors constitute a violation of this Constitution or the United States Constitution."

The Fletchall petitioners' final objection to the summary is that it describes the proposed measure's new redistricting criteria with a statement that is incomprehensible to the average voter: "[D]istrict boundaries must have shortest possible 'aggregate linear distance.' " The Fletchall petitioners acknowledge that the "aggregate linear distance"

wording is drawn directly from IP 5 itself, but they contend that this is an instance in which use of the measure's literal terms obscures its meaning rather than conveying the practical information that the law requires. See Cross v. Rosenblum , 359 Or. 136, 145, 373 P.3d 125 (2016) (Attorney General's use of measure's literal terms to define the term "abortion" obscured that terms meaning, rather than conveying the practical information about the measure that ORS 250.035 requires). The Fletchall petitioners insist that the summary should refer, instead, to a requirement that legislative districts be "maximally compact *** based on census tracts." The Attorney General responds that including the "aggregate linear distance" wording from the measure itself is preferable to the "maximum[ ] compact[ness]" wording that the Fletchall petitioners suggest because it specifically conveys how the quality of compactness is to be measured.

Although we are not convinced by the logic of the Attorney General's explanation, neither are we persuaded by the Fletchall petitioners' proposal. The relationship between the two redistricting requirements-that legislative districts be "as compact in area as possible" and that the "aggregate linear distance" of their boundaries be "as short as possible"-is not immediately evident. In light of that fact, we cannot easily accept the Fletchall petitioners' contention that the "maximally compact" wording that they suggest constitutes a more understandable version of the "aggregate linear distance" wording that the Attorney General drew from IP 5 and included in the summary. In such circumstances, we cannot require the Attorney General to substitute the Fletchall petitioners' preferred phrasing for the phrasing that appears in the measure.

III. CONCLUSION

After considering the various arguments and objections raised by petitioners, we conclude that the caption, "yes" and "no" vote result statements, and summary of the Attorney General's certified ballot title for IP 5 do not substantially comply with the requirements set out in ORS 250.035(2)(a) to (d). The certified ballot title must be modified, and we refer it to the Attorney General for that purpose.

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

      Although IP 5 purports to repeal only Article IV, section 6, and contains no reference to the statutory requirements for apportionment set out in ORS chapter 188, the proposed initiative would effectively nullify those statutory requirements, at least as they relate to apportionment of state legislative districts, because the statutory requirements purport to control the reapportionment activities of only the Legislative Assembly and the Secretary of State-neither of which would be involved in reapportionment under the version of Article IV, section 6, that IP 5 would adopt.

      The electors who filed timely comments were chief petitioners Kevin Mannix, Michele Fletchall, and Charles Lee, as well as Joe Baessler, David Rogers and Reyna Lopez, Becca Uherbelau, and the League of Women Voters of Oregon and League of Women Voters of the United States (collectively LWV). The LWV did not file a petition. The Lincoln County Republicans submitted comments after the statutory deadline for filing comments; it was noted that those comments were similar to comments made by the Secretary of State and chief petitioners.

      Petitioner Uherbelau's third objection is that the hyphenated word "over-represents" must be counted as two words and that, in consequence, the caption certified by the Attorney General's caption exceeds the 15-word limit provided in ORS 250.035(2)(a). Uherbelau makes the same argument with respect to the use of the word "over-represents" in the "yes" vote result statement. We disagree: "Overrepresent" is a single word, and the Attorney General's choice to insert a hyphen does not make it less so.

      Judicial review of a reapportionment by the legislature is available only upon the petition of an "elector of the state" and only for petitions filed before August 1 of the year of the reapportionment. For judicial review of a reapportionment by the Secretary of State, it is only for petitions filed before September 15 of the year of reapportionment. Or. Const., Art. IV, § 6 (2)(a).

      We discuss the significance of IP 5's elimination of the "communities of common interest" criterion below, in the section of the opinion directed at the summary in the Attorney General's certified ballot title.

      In addition to the two objections leveled by petitioner Uherbelau, the Fletchall petitioners vaguely assert that their concerns regarding the language in the certified ballot title's "yes" vote results statement are equally applicable to the "no" vote results statement. That assertion provides an insufficient basis for further review.

      ORS 188.010(1)(d), enacted as Or. Laws 1979, ch. 667, § 1.

      At the same time, it is not clear that the requirement that the "aggregate linear distance" of a legislative district's boundaries be as short as possible is a method for ensuring "maximum compactness," as the Attorney General argues.

      The Fletchall petitioners notably have not challenged the summary on the ground that it fails to include any reference to the requirement that legislative districts be "as compact in area as possible" in addition to the "aggregate linear distance" requirement that it does include.