author: GARRETT, J.

text:
    Richard HARISAY; Charles Montgomery; and Stephen Bintliff, Chief Petitioners and Electors of the State of Oregon, Plaintiffs-Appellants, v. Jeanne ATKINS, Secretary of State of Oregon, Defendant-Respondent.
    A158925
    Court of Appeals of Oregon.
    Submitted March 2, 2017 December 19, 2018
    Daniel W. Meek filed the briefs for appellants.
    Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.
    Before DeVore, Presiding Judge, and Garrett, Judge, and James, Judge.
   GARRETT, J.

Plaintiffs brought this action seeking to enjoin defendant, then the Secretary of State, to certify Initiative Petition 2016-005 (IP 5) for the 2016 general election ballot. The proposed initiative, if passed, purports to be an "application" to Congress to call a constitutional convention pursuant to Article V of the United States Constitution. The secretary refused to certify IP 5 on the ground that it was not a permissible use of the initiative power. Plaintiffs brought claims against the secretary under the state and federal constitutions, and the trial court granted the secretary's motion for judgment on the pleadings.

On appeal, we reject most of plaintiffs' arguments without discussion but write to address what we understand to be the principal issue, which is whether IP 5 proposes a "law" within the meaning of Article IV, section 1(2)(a), of the Oregon Constitution. As explained below, we conclude that it does not, and that the secretary, for that reason, correctly determined that IP 5 is not procedurally compliant with the Oregon Constitution. Accordingly, the trial court did not err in granting the secretary's motion for judgment on the pleadings. We affirm.

The relevant facts are procedural and undisputed. Plaintiffs submitted IP 5, set out in an appendix to this opinion below, to the secretary to commence the process of certifying the petition for the 2016 ballot. The text of IP 5 contains recitals criticizing decisions of the United States Supreme Court regarding campaign finance law and the political rights of corporations. Following those recitals, Section 1 of the petition states, "We the People of the state of Oregon * * * hereby call for an Article V Convention by enacting into law this Application, in accordance with Article V of the U.S. Constitution, for the specific and exclusive purpose of considering a Constitutional Amendment consistent with" two enumerated principles, which IP 5 denominates, respectively, "Corporations Are Not People" and "Money is Not Speech." Section 2 provides that the initiative shall be a "continuing application * * * until at least two-thirds of the legislatures of the several states have made similar applications pursuant to Article V." Section 3 provides that copies of IP 5 "shall be transmitted" by unspecified persons "to the President of the United States" and other officials. Section 4 provides that IP 5 shall be codified in the Oregon Revised Statutes.

While certification was pending, the Attorney General issued a letter opinion advising the secretary that "a court reviewing the initiative would probably conclude that the application for a constitutional convention is not a 'law' for purposes of exercising the initiative power reserved to the people of Oregon." See generally Or. Const., Art. IV, § 1 (2)(a) ("The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution * * * at an election independent of the Legislative Assembly." (Emphasis added.) ). Citing that letter, the secretary refused to certify IP 5 pursuant to OAR 165-014-0028(1) (secretary reviews an initiative petition "to determine if it complies with the procedural requirements established in the Oregon Constitution").

Plaintiffs filed this action to enjoin the secretary to certify the petition, and the secretary moved for judgment on the pleadings. The trial court granted the secretary's motion, affirming the secretary's and Attorney General's conclusion that IP 5 failed to propose a "law" under the Oregon Constitution. Plaintiffs appeal.

While this appeal was pending, the deadline for submitting enough signatures to place IP 5 on the ballot for the 2016 general election passed (as did the election itself), rendering the case moot. See Couey v. Brown , 257 Or.App. 434, 443, 306 P.3d 778 (2013), rev'd on other grounds sub nom. , Couey v. Atkins , 357 Or. 460, 522-23, 355 P.3d 866 (2015) (challenge to proposed initiative moot after deadline for collecting signatures and the election had passed). The parties have not addressed whether the case remains justiciable. We address that issue first.

Under ORS 14.175, an otherwise moot case that involves a constitutional challenge to the act of a public body is justiciable if (1) the party that commenced the action had standing to commence it, (2) the challenged act (here, the secretary's rejection of IP 5) is capable of repetition, and (3) the challenged act is likely to evade judicial review in the future. See Couey , 357 Or. at 520, 355 P.3d 866 (Oregon Constitution does not impose "justiciability limitations on the exercise of judicial power in public actions or cases involving matters of public interest"). All three requirements under the statute are met here. First, plaintiffs have standing to challenge the secretary's decision. See ORS 246.910 (appeals for acts and orders by secretary). Second, the issue in this case is capable of repetition because plaintiffs could resubmit the same or a similar initiative petition in a future election and the secretary could reject it for the same reason as here. Third, future challenges to this (and similar) initiative petitions are likely to evade judicial review because election cycles are short and the judicial process can be lengthy. See Couey , 357 Or. at 477-83, 355 P.3d 866 (applying the "capable of repetition, yet evading review" exception to an election-related challenge); see also State ex rel. Smith v. Hitt , 291 Or.App. 750, 754, 424 P.3d 749 (2018) (same).

However, even where all elements of ORS 14.175 are met, it is a matter of our discretion whether to review a moot issue. Eastern Oregon Mining Association v. DEQ , 360 Or. 10, 19, 376 P.3d 288 (2016) ; Eastern Oregon Mining Assoc. v. DEQ , 285 Or.App. 821, 829, 398 P.3d 449, rev. allowed , 362 Or. 175, 406 P.3d 612 (2017). In deciding whether to exercise our discretion, we consider several "prudential justifications," including, but not limited to, (1) the adversarial nature of the parties' interests, (2) whether the parties are advocating narrow arguments and rules of law that may benefit only themselves or are presenting arguments affecting a wider group of parties or interests, (3) judicial economy, and (4) the extent of the public importance of the issues presented. Eastern Oregon Mining , 285 Or.App. at 830, 398 P.3d 449.

Here, the second and fourth factors strongly favor review. Whether a proposed ballot initiative meets the procedural requirement of being a "law" under Article IV, section 1, is an issue relevant to future initiative petitions and one that Oregon courts have not yet addressed; therefore, the issue being litigated would affect a wider class of interests than the parties to this case. See Eastern Oregon Mining , 285 Or.App. at 833, 398 P.3d 449 (second factor favored exercising discretion because, while the "litigated issues certainly affect the parties," they would also affect "a wider class of interests-those interested in the proper regulation and practice of small suction dredge mining, including government, environmental, and mining interests"). The fourth factor, the "relative public importance of the issues," id. at 832, 398 P.3d 449, also favors review, given that the proposed measure purports to express the views of Oregonians on whether to call a national constitutional convention. Cf. Smith , 291 Or.App. at 754, 424 P.3d 749 ("Because this case concerns an initiative measure enacted by the voters of Douglas County that imposes term limits on a public office, and therefore concerns a matter of public importance, we exercise our discretion to review the case."). The other prudential considerations do not weigh against review.

Accordingly, we conclude that, although the case is moot, it is justiciable under ORS 14.175, and we exercise our discretion to review it. We turn to the merits.

As noted, plaintiffs attack the secretary's and the trial court's reasoning on various grounds. As far as we can tell, however, plaintiffs agree that, to constitute a valid exercise of the initiative power, IP 5 must propose a "law" under Article IV, section 1(2)(a), and if it does not, then the secretary was not required to certify it for the ballot. Cf. Herbring v. Brown , 92 Or. 176, 182, 180 P. 328 (1919) (upholding Attorney General's refusal to provide a ballot title for a referendum that proposed neither a "bill" nor an "act" as provided in Article IV, section 1 of the Oregon Constitution ). We address that question below.

Article IV, section 1, of the Oregon Constitution provides, in relevant part:

"(1) The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly, consisting of a Senate and a House of Representatives.
"(2)(a) The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly."

(Emphasis added.)

Because, following a legislative referral, the relevant language in Article IV, section 1, was adopted by the voters as an amendment to the Constitution in 1902, our task in construing the provision requires us to discern the voters' intent by applying the analytical framework set out in Ecumenical Ministries v. Oregon State Lottery Comm. , 318 Or. 551, 559-60, 871 P.2d 106 (1994). See Stranahan v. Fred Meyer Inc., 331 Or. 38, 57-58, 11 P.3d 228 (2000) (holding that, in construing constitutional amendment referred to voters by the Legislative Assembly, Oregon courts use methodology set out in Ecumenical Ministries for construction of constitutional provisions adopted through initiative process); see also State v. Lane , 357 Or. 619, 625, 355 P.3d 914 (2015) (explaining aim of constitutional interpretation method). We first examine the text of the provision in context; if the voters' intent remains unclear, we also examine the enactment history of the provision and consider applicable canons of constitutional construction. Ecumenical Ministries , 318 Or. at 559-60, 871 P.2d 106. Although constitutional provisions that empower the people to propose and vote on initiatives and referenda are to be liberally construed to achieve their purpose, Barnes v. Paulus , 36 Or.App. 327, 333, 588 P.2d 1120, rev. den. , 284 Or. 81, 588 P.2d 1084 (1978), it is also true that the "authority of the electorate to enact measures by popular vote is not * * * without limitation," Amalgamated Transit v. Yerkovich , 24 Or.App. 221, 225, 545 P.2d 1401 (1976).

Beginning with the text of Article IV, section 1, we presume that the voters intended the provision's language to be given its ordinary meaning. Ecumenical Ministries , 318 Or. at 560, 871 P.2d 106. The relevant language in that provision, "propose laws ," was first adopted in 1902. In 1902, "law" ordinarily meant:

"1. In general, a rule of being or of conduct, established by an authority able to enforce its will; a controlling regulation; the mode or order according to which an agent or a power acts.
"* * * * *
"4. In human government: (a ) An organic rule, as a constitution or charter, establishing and defining the conditions of the existence of a state or other organized community. (b ) Any edict, decree, order, ordinance, statute, resolution, judicial decision, usage, etc., made, or recognized, and enforced, by the controlling authority."

Webster's International Dictionary 835 (unabridged ed. 1898) (boldface and italics in original). The term was also defined in contemporaneous legal dictionaries:

"1. That which is laid down, ordained, or established. A rule or method according to which phenomena or actions co-exist or follow each other.
"2. A system of principles and rules of human conduct, being the aggregate of those commandments and principles which are either prescribed or recognized by the governing power in an organized jural society as its will in relation to the conduct of the members of such society, and which it undertakes to maintain and sanction and to use as the criteria of the actions of such members."

Black's Law Dictionary 690 (1st ed. 1891) (boldface omitted; emphasis in original). Alexander M. Burrill's A New Law Dictionary and Glossary states:

"In the most general sense,-a rule of action prescribed by a superior. * * *
"In a stricter sense,-a rule of civil conduct, prescribed by the supreme power in a state. * * * Blackstone's definition, in full, is, 'a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.' * * *
"In the strictest sense,-a statute; a rule prescribed by the legislative power. 'The laws of a state,' observes Mr. Justice Story, 'are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws.' "

Alexander M. Burrill, 2 A New Law Dictionary 664 (1850) (emphasis in original); cf. State v. Werdell , 202 Or.App. 413, 425, 122 P.3d 86 (2005) (citing Burrill's law dictionary).

All of those definitions share (at least) two similarities. First, they all define a "law" as a "rule" of civil conduct or action. Second, they explain that the "rule" applies to members of a particular community over which the rulemaking entity has authority. One does not make "laws" for people over whom one exercises no controlling authority.

Oregon cases interpreting Article IV, section 1, provide additional context for the phrase "to propose laws." See Kerr v. Bradbury , 193 Or.App. 304, 315, 89 P.3d 1227 (2004) (contextual analysis includes examination of case law construing relevant constitutional provisions). Although no cases, to our knowledge, discuss the meaning of that phrase specifically, several cases dealing with preelection and post-enactment challenges to initiatives and referenda have consistently limited the scope of the initiative and referendum powers to encompassing the proposal of measures that set forth "rules of civil conduct" that are "permanent" and of "general application," rejecting measures that propose something else-that is, something that is administrative, executive, adjudicative, or advisory in nature. See, e.g. , Amalgamated Transit , 24 Or.App. at 226-27, 545 P.2d 1401 (initiative measures must propose "rules of civil conduct * * * of general application" relating to "questions or subjects of a permanent or general character," and not something "executing a law already in existence" (internal quotation marks and italics omitted; ellipsis in Amalgamated Transit ) ); Rossolo v. Multnomah County Elections Div. , 272 Or.App. 572, 584, 357 P.3d 505 (2015) ("In classifying an enacted or proposed law as * * * subject to the initiative and referendum provisions in the Oregon Constitution[,] * * * Oregon courts assess the law to determine if it makes policy of general applicability and is more than temporary in duration * * *, or if it applies previous policy to particular actions, or is otherwise compelled in substance or process by predicate policy * * *."); Beal v. City of Gresham , 166 Or.App. 528, 537, 998 P.2d 237 (2000) (part of proposed initiative that "establish[ed] the procedure by which * * * decisions will be made" was appropriate use of initiative power); Long v. City of Portland , 53 Or. 92, 100-01, 98 P. 149 (1908), reh'g den. , 53 Or. 92, 98 P. 1111 (1909) ("[Acts subject to referendum] must be considered in the sense of general laws, namely, rules of civil conduct prescribed by the lawmaking power and of general application. * * * [T]he law is said to be a rule-not a transient, sudden order to and concerning a particular person, but something permanent, uniform, and universal."). In contrast, a measure which is merely a "public opinion bill, advisory in nature," and thus "which sets forth no prescribed rule of civil conduct," is not considered to be an appropriate use of the initiative and referendum powers. Amalgamated Transit , 24 Or.App. at 225, 228, 545 P.2d 1401 ("The courts have * * * taken cognizance of the ways in which the conduct of government would be seriously hampered were the initiative and referendum to be used to compel or bar 'administrative' acts by elected officials."). In short, the foregoing authorities suggest that the phrase "to propose laws" in Article IV, section 1(2)(a), should be interpreted to refer to the proposal of measures that establish new legal rules regulating conduct in the state of Oregon, typically of a permanent and generally applicable nature.

With that understanding, we return to the text of IP 5 and conclude that, whatever it does, it does not propose a "law." Importantly, IP 5 does not purport to affect the conduct of anyone within the State of Oregon. Plaintiffs concede that "[t]he largest effect of IP 5 is upon Congress" and "IP 5 says nothing about what Oregon elected officials should or should not do." Although the measure says that copies of IP 5 will be "transmitted" to various federal officials, the petition binds no particular state entity to do so. Thus, it cannot be said that IP 5 proposes a rule that is made and enforced by "the controlling authority" of those being governed by the rule. Put simply, IP 5 would regulate no one in Oregon and, thus, would not be an exercise of Oregon lawmaking.

IP 5 also bears little resemblance to a "rule of conduct." The core purpose of IP 5 is to "call" or "apply," and thus trigger (supposing enough other states implement similar applications), a constitutional convention under a pre-existing process set out in Article V of the United States Constitution. If passed (and if enough other states passed similar measures), IP 5 would ostensibly require Congress to hold a convention and consider certain enumerated legal principles at that convention; however, once such a convention were to convene, the measure would cease to have any effect. See, e.g. , Rossolo , 272 Or.App. at 584, 357 P.3d 505 (measure may be proposed via initiative petition if it "makes policy of general applicability," but not if it "applies previous policy to particular actions, or is otherwise compelled in substance or process by predicate policy"); Beal , 166 Or.App. at 537, 998 P.2d 237 (measure may be proposed via initiative petition if it establishes the procedure by which decisions will be made); State ex rel. Dahlen v. Ervin , 158 Or.App. 253, 257, 974 P.2d 264, rev. den. , 329 Or. 357, 994 P.2d 124 (1999) (proposed initiative that "does not attempt to change a specific siting decision of the county but, rather, to change the framework within which the county makes siting decisions" was an appropriate use of the initiative power).

Rather, what IP 5 undisputedly does is express the will of Oregon voters for Congress to hold a constitutional convention. In that way, IP 5 is more akin to a legislative memorial. See Office of Legislative Counsel, Bill Drafting Manual § 16.5 (2018) (A joint memorial is used when both houses of the Legislative Assembly join to address or petition Congress, the President of the United States or the officials or agencies of another governmental body."); id. at § 16.1 ("A resolution or memorial is not a law and is not submitted to the Governor for approval or disapproval."); Oregon Legislative Assembly, Form and Style Manual for Legislative Measures, 19, 57 (2017) (same). Indeed, the Oregon legislature has already passed a joint memorial very similar to IP 5. See, e.g. , House Joint Memorial 6 (2013) (criticizing the Supreme Court's decision in Citizens United v. Federal Election Comm'n , 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), and resolving that the Oregon legislature "urge[s] the Congress of the United States of America to propose and send to the states for ratification an amendment to the United States Constitution * * * clarifying the distinction between the rights of natural persons and the rights of corporations and other legal entities" and that "a copy of this memorial shall be sent to the President of the United States" and other federal officials). There is little question that a legislative memorial would fall outside the scope of the initiative and referendum powers. See Amalgamated Transit , 24 Or.App. at 228, 545 P.2d 1401 (measure that is a "public opinion bill, advisory in nature" is not an appropriate use of the initiative and referendum powers); cf. Herbring , 92 Or. at 182, 180 P. 328 (Attorney General was not required to approve for the ballot a referendum to pass a legislative resolution voting to ratify a proposed amendment to the United States Constitution because legislative resolutions fall outside the scope of the referendum power).

Courts of other states have reached similar conclusions regarding initiatives and referenda that propose applications for constitutional conventions and other functions under Article V. The Supreme Judicial Court of Massachusetts concluded that an initiative requesting the legislative assembly to support an amendment to the Massachusetts Constitution to repeal an amendment of the United States Constitution was not a "proposed law" under the Massachusetts Constitution:

"The word 'law' imports a general rule of conduct with appropriate means for its enforcement declared by some authority possessing sovereign power over the subject; it implies command and not entreaty; it is something different in kind from an ineffectual expression of opinion possessing no sanction to compel observance of the views announced. The text of the proposed law accompanying this initiative petition does not prescribe a general rule of conduct. It merely invites a declaration of opinion by voters on a subject over which the people of the commonwealth possess no part of the sovereign power."

Opinion of the Justices Relative to the Eighteenth Amendment of the Constitution of the United States , 262 Mass. 603, 605, 160 N.E. 439, 440 (1928).

Similarly, the Supreme Court of California concluded that a proposed initiative requiring the California legislature to adopt a resolution applying to Congress for an Article V convention was not a "statute" under the California Constitution. See American Federation of Labor v. Eu , 36 Cal. 3d 687, 206 Cal.Rptr. 89, 686 P.2d 609 (1984). That court reasoned that the initiative proposed "in part a simple declaration of policy, without statutory implementation, and in part a step in a federal process which may eventually lead to amendment of the federal Constitution." Id. at 714, 206 Cal.Rptr. 89, 686 P.2d at 627. The initiative accordingly did "not create law and thus * * * [did] not 'adopt' a 'statute' within the meaning of article II of the California Constitution." Id. at 714, 206 Cal.Rptr. 89, 686 P.2d at 628 ; see also, e.g. , In re Initiative Petition No. 364 , 1996 O.K. 129, 930 P.2d 186, 195 (1996) (application for an Article V convention "is not binding, * * * is incapable of being carried into effect, and * * * is incapable of being enforced").

In sum, the text and context of Article IV, section 1, reflect that the voters did not intend for the scope of the initiative power to include applications for Article V conventions to amend the United States Constitution. We conclude that IP 5 does not propose a "law" and consequently fails to meet the procedural requirements for initiative petitions under Article IV, section 1, of the Oregon Constitution.

Accordingly, the trial court did not err in granting the secretary's motion for judgment on the pleadings.

Affirmed.

APPENDIX

INITIATIVE PETITION 2016-005

Oregon We the People Initiative

Whereas:

• Decisions by the U.S. Supreme Court have equated spending money in elections with speech and granted corporations the constitutional rights of the People, permitting the wealthy to buy enormous influence in our government through uncontrolled political spending. This undermines the aspirations of Oregonians to a true democracy with a level playing field.
• Corporations, including for-profit and non-profit organizations, unions, and other artificial legal entities, are created under state laws. There is no mention of these entities in the Constitution.
• Money is property, not speech. Its unregulated use for political purposes creates unequal access to political power and influence. Money contributed or spent for political purposes should he subject to regulation.

Therefore:

(1) We the People of the state of Oregon, with the legislative power retained by us under the Oregon Constitution (including Article IV, Section 1, and Article II, Section 18 ), hereby call for an Article V Convention by enacting into law this Application, in accordance with Article V of the U.S. Constitution, for the specific and exclusive purpose of considering a Constitutional Amendment consistent with the following principles:

(a) Corporations Are Not People. Artificial entities, such as corporations, unions and non-profit corporations, established by the laws of any State, the United States, or any foreign state, shall have no constitutional rights and shall be subject to regulation by the People, through Federal, State or Local law. Nothing in this clause shall be construed to limit the rights of the People as specified in the U.S. Constitution and its Amendments.
(b) Money is Not Speech. Money is property and shall not be construed as speech. The People, to ensure a level playing field for all people regardless of their economic status, empower and direct Federal, State, and Local governments to regulate, limit or prohibit the contribution and spending of money for political purposes and to require full and prompt public disclosure of all such transactions.

(2) This measure constitutes a continuing application in accordance with Article V of the Constitution of the United States, until at least two-thirds of the legislatures of the several states have made similar applications pursuant to Article V.

(3) A copy of this initiative shall be transmitted to the President of the United States; to each member of the Oregon Congressional Delegation; to the presiding officers of the U.S. Senate and House of Representatives; to each Governor and presiding office of each legislative body of each of the United States.

(4) This Application shall be codified in Title 17 of Oregon Revised Statutes.

      Article V of the United States Constitution provides, in relevant part:
      "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments , which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress [.]."
      (Emphasis added.)

      When the initiative and referendum power was first adopted in 1902, Article IV, section 1, provided, in relevant part:
      "The legislative authority of the state shall be vested in a Legislative Assembly, consisting of a Senate and House of Representatives, but the people reserve to themselves power to propose laws and amendments to the Constitution * * * independent of the Legislative Assembly * * *. The first power reserved by the people is the initiative[.] "
      (Emphasis added.) The provision was later amended in 1968, although that amendment did not change the phrase "propose laws." According to the 1968 official Voters' Pamphlet, the 1968 amendment was intended primarily to (1) change the basis for determining the number of signatures required for initiative and referendum petitions, (2) allow additional time after the filing deadline for certification of signatures, and (3) "clean up" the wording and obsolete sections while "in no way * * * diminish[ing] the power of the people to initiate or refer measures." Official Voters' Pamphlet, Primary Election, May 28, 1968, 8; State v. Campbell/Campf/Collins , 265 Or. 82, 89, 506 P.2d 163 (1973). We accordingly assume that the 1968 amendment made no substantive changes to the scope of the initiative powers. See id. at 90, 506 P.2d 163. Plaintiffs agree that, for purposes of our review, the meaning of the term "laws" has not changed since 1902.

      The ordinary meaning of "law" had changed little when Article IV, section 1, was amended in 1968 Webster's provided:
      "The binding custom or practice of a community; rules or mode of conduct made obligatory by some sanction which is imposed and enforced for their violation by a controlling authority."
      Webster's New Int'l Dictionary 1401 (unabridged 2d ed. 1961).

      The parties have identified nothing in the enactment history of Article IV, section 1, that suggests that the voters who enacted the provision had a different understanding of the ordinary meaning of "laws" or the scope of the initiative power. See Ecumenical Ministries , 318 Or. at 560 n. 8, 871 P.2d 106 (enactment history of a constitutional amendment adopted by initiative includes sources of information available to the voters at the time the measure was adopted and that disclose the public's understanding of the measure, such as news reports published before the relevant election). Newspaper articles published in the months preceding the passage of the 1902 amendment indicate that voters would have understood the initiative and referendum powers as concerning lawful rules that affect Oregonians. See Let The People Decide: Purpose of Initiative and Referendum Amendment. Judge Williams Replies to a Recent Critic of the Popular Legislative Plan. , The Morning Oregonian 10 (May 27, 1902) ("The initiative and referendum is simply a practical application of the principle of self-government by the people, and it has been found by actual experience that people can be trusted to vote directly upon any legislative enactments affecting their interests."); Vote for the Amendment: Plea for Initiative and Referendum Amendment by League Voters , The Morning Oregonian 10 (May 31, 1902) (statement of G. Y. Harry, organizer of the State Federation of Labor) ("[T]he power of the people to initiate their own laws[ ] should appeal to all classes of our citizens alike."); accord The Initiative and Referendum. , Coquille City Herald (May 20, 1902); see also, e.g. , The Referendum , The East Oregonian (April 2, 1902) (publishing various endorsements of the amendment, including an endorsement by a Hillsboro publication) ("[J]ust vote yourself the rights to have something to say about laws under which you must live.").

      Regardless of the effect that IP 5 would have on Oregonians, there are strong reasons to believe that IP 5 would be ineffective as part of a multistate effort to bind Congress, which, if true, would be yet another reason why IP 5 fails to propose a "law." In Hawke v. Smith , 253 U.S. 221, 227, 40 S.Ct. 495, 64 L.Ed. 871 (1920), the United States Supreme Court held that the term "Legislatures," in its second iteration in Article V regarding the ratification of proposed amendments, refers to only legislative bodies of states rather than citizens acting through the initiative and referendum power. Under the reasoning set out in Hawke , the term "Legislatures" in its first iteration under Article V also likely refers only to state legislatures. Cf. Morrissey v. State , 951 P.2d 911, 916 (Colo 1998) ("The citizens' use of the initiative process to demand passage of a constitutional amendment clearly violates the strict language of Article V, which precludes state citizens from direct participation in the amendment process."); American Federation of Labor v. Eu , 36 Cal. 3d 687, 706, 686 P.2d 609, 622, 206 Cal.Rptr. 89 (1984) ("We conclude that a state may not, by initiative or otherwise, compel its legislators to apply for a constitutional convention, or to refrain from such action. Under [A]rticle V, the legislators must be free to vote their own considered judgment, being responsible to their constituents through the electoral process.").
      Plaintiffs disagree and argue that the Court would conclude that a state may apply for a constitutional convention via the initiative power. That argument presumes either that the Court would overrule Hawke or that the term "Legislatures" has two different meanings within the same clause of Article V. In any event, we need not further consider that issue, because, for the other reasons explained in this opinion, we conclude that IP 5 fails to propose a "law" for purposes of Article IV, section 1, of the Oregon Constitution.


source: Caselaw Access Project

author: LAGESEN, P.J.

license: Public Domain

text:
    Benjamin Lee EDWARDS, Petitioner-Respondent Cross-Appellant, v. Jeri TAYLOR, Superintendent, Eastern Oregon Correctional Institution, Defendant-Appellant Cross-Respondent.
    A161671
    Court of Appeals of Oregon.
    Argued and submitted August 2, 2017 December 19, 2018
    Greg Rios, Assistant Attorney General, argued the cause for appellant-cross-respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Jed Peterson, Portland, argued the cause for respondent-cross-appellant. Also on the brief was O'Connor Weber LLC.
    Before Lagesen, Presiding Judge, and Egan, Chief Judge, and DeVore, Judge.

      Egan, C.J., vice James, J.

   LAGESEN, P.J.

Defendant, the superintendent of the Eastern Oregon Correctional Institution, appeals a judgment granting post-conviction relief and setting aside petitioner's convictions and sentences for 11 crimes: four counts of first-degree robbery with a firearm; four counts of second-degree robbery with a firearm; first-degree unlawful sexual penetration; first-degree unlawful sexual penetration with a firearm; and first-degree assault with a firearm. Petitioner cross-appeals. The post-conviction court granted relief on the ground that the failure of petitioner's trial counsel to object to the delivery of the so-called "natural-and-probable-consequences" jury instruction-which the Supreme Court later discredited in State v. Lopez-Minjarez , 350 Or. 576, 260 P.3d 439 (2011) -constituted inadequate and ineffective assistance of counsel, in violation of petitioner's rights under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. The post-conviction court did so after concluding that the doctrine of issue preclusion barred the superintendent from contesting that petitioner's trial counsel's failure to object to the instruction was deficient and, further, that petitioner was prejudiced by that failure to object. The court rejected petitioner's other asserted grounds for relief. We conclude that the post-conviction court erred in its application of the doctrine of issue preclusion and also in concluding that petitioner suffered prejudice with respect to his four convictions for second-degree robbery, but that the court did not otherwise err in its prejudice determination. On the appeal, we therefore reverse and remand for further proceedings consistent with this opinion, but we affirm on the cross-appeal.

I. BACKGROUND

A. Underlying Criminal Proceedings

The facts pertinent to the issues before us are not disputed. Petitioner's convictions stem from a jury's finding that petitioner was involved in a brutal home invasion robbery in Banks. Three friends of H, the homeowner-R, G, and C-were in the living room getting ready to view a movie when three masked men burst into the house. The first man to enter the house had his gun drawn and started barking orders; the others may also have been armed. The first man to enter the house appeared to those present to be the group leader.

The intruders ordered R, G, and C to get face down on the floor and to shut their eyes. C was hogtied using zip ties and an extension cord and R's wrists were tied with zip ties. H, a medical marijuana cardholder, was in the bathroom at the time. He had just harvested some of his marijuana and was cleaning his equipment. When he came out of the bathroom, he was hogtied with speaker wire.

The intruders repeatedly asked H and his visitors where the money was and rummaged through the house. When they did not find what they were looking for, one grabbed R by the throat, shook him, and threatened to cut his face with a piece of glass if he did not disclose where the money was; R passed out from the shaking. One of the intruders kicked H in the head, fracturing his eye socket, cheek, and upper jaw.

Unable to get H to admit that there was any more money in the house, the man who appeared to be the group's leader ordered G to strip and get down on her hands and knees, and then violently sexually assaulted her three times in an effort to convince H to admit that there was more money in the house. He first jammed his fist into her vagina, then his gun, and then another object that G could not identify. With each penetration, the intruder asked if his assault on G made a difference in H's denial that there was more money.

Having failed to locate more money, the three men discussed leaving. H, C, and G were all put in the bathtub, stacked on top of one another. One of the intruders held a gun to G's head and cocked the gun, stating that he would kill them. The victims were then told that they would be killed if they called the police. Someone tied the bathroom door shut, and the three men left, taking what money they had found, marijuana, and a few other items.

R regained consciousness after the intruders left. Although his hands and feet were tied, he was able to make his way out of the house and to the neighbors' house while yelling for help. The neighbors called police and tried to remove the zip ties from R's hands. They were able to get one off, but the other one was secured so tightly that they were unable to remove it. Paramedics later were able to cut off the zip tie. R's hand had to be put in a cast to treat the injuries inflicted by the tight zip tie. In the meantime, G, C, and H had managed to free themselves and get out of the bathroom.

Detective Marcom was one of the officers who responded to the incident. H told him that he thought there was a possibility that Felix, who had lived in the house with him previously, was involved. Marcom later arrested Felix, and she disclosed that she had set up the robbery through her friend Lummus and had driven Lummus and another person she did not know to H's house to check it out before the robbery. After Lummus was arrested, he implicated petitioner and another man, Moffett. According to Lummus, petitioner was the person who had led the three into the house, who had carried the gun and provided the zip ties, and who had choked R, kicked H, and sexually assaulted G.

Petitioner was arrested and charged with 15 offenses: four counts of first-degree robbery (one for each victim) by committing theft by using and threatening the use of physical force "while armed with a deadly weapon" (Counts 1 to 4); two counts of first-degree robbery (one each for victims H and R) for committing theft by using physical force "while causing serious physical injury" to H and R (Counts 5 to 6); four counts of second-degree robbery (one for each victim) for committing theft by using and threatening to use physical force "while aided by another person actually present" (Counts 7 to 10); three counts of unlawful sexual penetration committed against G (Counts 11 to 13); and two counts of first-degree assault (one count each for victims H and R) for "[cause] serious physical injury" by means of the zip ties (Counts 14 to 15).

At trial, Lummus testified for the state and, consistent with Lummus's version of events, the state's theory was that petitioner had been the first to enter the house and was the one who had choked R, kicked H, and sexually assaulted G. The state's alternative theory was that, even if petitioner was not the ringleader, he was one of the other intruders and was necessarily liable as a principal or accomplice on all of the charges by virtue of that fact. Petitioner's defense was that he was not one of the intruders and that Lummus was lying to secure a good plea deal. On the state's request, the trial court provided the "natural-and-probable-consequence" instruction to the jury as part of the instructions addressing accomplice liability.

As a whole, the instructions regarding accomplice liability provided:

"So, what is aiding and abetting? A person aids or abets another in the commission of a crime if, with the intent to promote or make easier the commission of the crime, that person either encourages, or procures, or advises, or assists, either by acting or by advice, the planning or commission of the crime.
"* * * * *
"A person who aids or abets another person in committing a crime, in addition for being criminally responsible for the crime that is committed, is also criminally responsible for any act or other crimes that were committed as a natural and probable consequence of the planning, preparation or commission of the intended crime."

In closing argument, the state explained that, under its aiding-and-abetting theory, all three intruders and Felix were culpable for all of the crimes:

"As a side note, I'm going to get to the aid and abet instructions momentarily, but when I say the defendant committed * * * 'X,' 'Y,' or 'Z,' that can be the defendant; that can be Tammy Felix, who set the whole thing up; that can be Robert Lummus; that can be Ryan Moffett. Because remember everybody is responsible for the conduct of everyone else."

Later, discussing the instructions specifically, the prosecutor explained that, in the context of the case, the natural-and-probable-consequence instruction might mean that Felix could not be held liable on the sexual penetration charges because "[i]t's not necessarily a natural and probable consequence of a robbery that somebody is going to be sexually assaulted." But, the prosecutor argued, with respect to the three men in the house that night, that everybody was responsible for everything that happened:

"Now, what do we have in this particular case? We have all three defendants who are in the house. All three defendants who are there when the people are hurt. All three defendants are there when people are tied up. And all three defendants are there when [G] is sexually assaulted. What's more, we have all three defendants who continued to participate in the robbery when [G] is sexually assaulted.
"Now, I expect when you go back and you talk amongst yourselves, and you look at all the evidence, that you're going to find that the person who shoved his fist into the vagina from behind of [G] is [petitioner]. The person who shoved his gun into the vagina from behind of [G] is [petitioner].
"But, if you find that another person that was there was actually responsible for that, it changes in no way the defendant's liability for that. Why? Because when this robbery goes too far, when-if you find that this defendant didn't sign up for that part, then his actions need to show it. At that point he drops the stolen property, he walks out the door, and he goes and he calls 9-1-1, and he says 'You know what, I'm sorry, I signed up for a robbery, I didn't sign up for this horrible sexual assault of this woman.'
"Instead, what everybody did, what all three people did, and what makes them all on the hook for this, is when the defendant committed this horrible crime, everyone else stayed put, everyone else commits-continued with the robbery. Everybody else participated in assaulting the victims, everybody else participated in stacking them in the bathtub, locking up the door, and they all left together. They all left together with stolen property that was divided among themselves * * *."

The jury found petitioner guilty on all 10 robbery counts, the two counts of unlawful sexual penetration, and the count of assault against R. The jury acquitted petitioner on the assault count involving H. Petitioner then appealed. Relying on the Supreme Court's then-recent decision in Lopez-Minjarez , 350 Or. 576, 260 P.3d 439, he assigned as plain error the trial court's delivery of the "natural-and-probable-consequence" instruction, as well as the trial court's failure to merge the guilty verdicts on Counts 1 and 5 (the two counts of first-degree robbery with H as a victim) and on Counts 4 and 6 (the two counts of first-degree robbery with R as a victim). State v. Edwards , 251 Or. App. 18, 281 P.3d 675, rev. den. , 352 Or. 665, 293 P.3d 226 (2012). We rejected petitioner's jury instruction challenge on the ground that ORCP 59 H(1) made it unreviewable, but, on the state's concession, determined that the trial court plainly erred when it failed to merge the guilty verdicts on Counts 1 and 5, and Counts 4 and 6, and remanded to the trial court to correct that error. Id .

B. Post-Conviction Proceedings

Thereafter, petitioner initiated this post-conviction proceeding. He alleged that his trial counsel was inadequate and ineffective for not objecting to the delivery of the natural-and probable-consequence instruction that the Supreme Court invalidated in Lopez-Minjarez , among other grounds for relief. The post-conviction court ultimately granted relief on that ground in a two-step process. First, on petitioner's motion for partial summary judgment, the court ruled that, in view of the prior case of Wade v. Brockamp , 268 Or. App. 373, 342 P.3d 142 (2015), the doctrine of issue preclusion barred the superintendent from contesting that trial counsel performed deficiently by failing to object to the natural-and-probable-consequence instruction. Based on that determination, the court further concluded that, as a matter of law, trial counsel's failure to object to the natural-and-probable-consequence instruction constituted deficient performance as a matter of law. Then, following a hearing, the post-conviction court determined that that deficiency could have affected the jury's verdict on all counts of conviction and, thus, the deficiency prejudiced petitioner with respect to all counts of conviction. The court rejected petitioner's remaining asserted grounds for relief.

The superintendent appeals and petitioner cross-appeals. The superintendent assigns error to the post-conviction court's grant of relief, contending that the court erred by ruling on summary judgment that the doctrine of issue preclusion barred the superintendent from contesting that counsel performed inadequately, and also that the court erred in concluding that counsel's deficiency prejudiced petitioner on any of the counts of conviction. In his cross-appeal, petitioner contends that the post-conviction court erred in rejecting the other asserted grounds for relief.

II. STANDARDS OF REVIEW AND GENERAL LEGAL STANDARDS

We generally review a post-conviction court's grant or denial of relief for legal error, accepting the court's implicit and explicit factual findings if there is evidence to support them. Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015). With respect to the post-conviction court's grant of partial summary judgment, "[w]e review the post-conviction court's grant of summary judgment to determine whether the court correctly concluded that there are no genuine issues of material fact and that [the superintendent] was entitled to judgment as a matter of law." Putnam v. Angelozzi , 278 Or. App. 384, 388, 374 P.3d 994 (2016).

At issue in this matter are parallel claims of inadequate assistance of trial counsel under Article I, section 11, and ineffective assistance of trial counsel under the Sixth Amendment. To establish that his trial counsel rendered inadequate assistance for purposes of Article I, section 11, petitioner was required to prove two elements: (1) a performance element-that trial counsel "failed to exercise reasonable professional skill and judgment"; and (2) a prejudice element-that "petitioner suffered prejudice as a result of counsel's inadequacy." Johnson v. Premo , 361 Or. 688, 699, 399 P.3d 431 (2017). A functionally equivalent two-element standard governs petitioner's claim of ineffective assistance of counsel under the Sixth Amendment. Id . To prevail on that claim, petitioner was required to demonstrate that "trial counsel's performance 'fell below an objective standard of reasonableness,' " and also that "there was a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Id . at 700, 399 P.3d 431 (quoting Strickland v. Washington , 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). We examine the challenged rulings of the post-conviction court in light of those standards. As neither party suggests that, with respect to those particular claims, the state and federal constitutions require separate analyses, our analysis below applies to petitioner's claims under both constitutions.

III. ANALYSIS

A. The Superintendent's Appeal

The superintendent contends that the post-conviction court erred in two different ways. First, the superintendent contends that the post-conviction court erred when it concluded that trial counsel's failure to object to the delivery of the natural-and-probable-consequence instruction prejudiced petitioner with respect to any of his 13 convictions. The superintendent further asserts that that error means that the grant of post-conviction relief should be reversed with respect to all of petitioner's convictions. Second, the superintendent argues that the post-conviction court erred when it determined, on summary judgment, that the doctrine of issue preclusion barred the superintendent from contesting that trial counsel was inadequate for not objecting to the natural-and-probable-consequence instruction, and that we must reverse and remand for further proceedings to address the adequacy of counsel's performance. We conclude that the post-conviction court correctly determined that the delivery of the natural-and-probable-consequence instruction prejudiced petitioner with respect to his convictions for sexual penetration and assault, but erred in concluding that the instruction prejudiced petitioner with respect to the robbery convictions. We also conclude that the post-conviction court erred when it ruled that the doctrine of issue preclusion barred the superintendent from contesting whether trial counsel performed inadequately by failing to object to the delivery of the natural-and-probable-consequence instruction.

1. Prejudice

We start with the superintendent's challenge to the post-conviction court's determination of prejudice because, were the superintendent to succeed on that challenge, it would obviate the need to address the superintendent's challenge to the trial court's ruling on the performance element of petitioner's claim. See Drown v. Persson , 294 Or. App. 754, 432 P.3d 1144 (2018) (addressing question of whether a post-conviction petitioner was prejudiced by the delivery of the natural-and-probable-consequence instruction because a determination of no prejudice would be dispositive of the appeal).

In our recent decision in Drown , we described the general framework for evaluating whether a post-conviction petitioner was prejudiced by his or her trial counsel's failure to object to the delivery of the natural-and-probable-consequence instruction discredited in Lopez-Minjarez. As the Supreme Court explained in Lopez-Minjarez , the risk of harm created by the natural-and-probable-consequence instruction is that it permits a jury to convict a defendant for a crime without requiring the jury to find that the defendant had the requisite criminal intent with respect to that crime. Lopez-Minjarez , 350 Or. at 582-84, 260 P.3d 439. In general, however, for that risk of harm to have materialized with respect to one or more convictions, there must be some likelihood that the jury could have found the defendant guilty of a prior offense under an ordinary aiding-and-abetting theory. Thus, as we explained in Drown , to determine whether a post-conviction petitioner was prejudiced by the delivery of the natural-and-probable-consequence instruction,

"we must determine whether, in light of the parties' evidence and arguments, the jury's guilty verdict on one or more of the charges could have been based on the theory of criminal responsibility contained in the erroneous instruction. Stated differently, for each charged crime, we must determine whether the jury could have found the defendant guilty of the crime on the theory that the crime was a natural and probable consequence of an earlier crime in which the defendant had aided or abetted. That inquiry requires that we first identify in time the initial, intended crime for which the jury could have found the defendant guilty based on an ordinary accomplice theory. That is because to trigger criminal responsibility under the erroneous instruction, the jury first had to find defendant guilty of at least one predicate crime on an accomplice (i.e. , aiding and abetting) theory."

294 Or. App. at 760, 432 P.3d 1144 (internal quotation marks and citations omitted). As noted, we conduct that inquiry by examining the parties' evidence and arguments. Id.

Having conducted that inquiry in this case, we disagree with the post-conviction court that the instruction prejudiced petitioner with respect to all of his convictions. Given the evidence and the theory of the case that the prosecution presented to the jury, we conclude that the instruction did not have a tendency to affect the jury's verdict on the four second-degree robbery charges, Counts 7 to 10, but that it did with respect to the remaining counts.

Under Drown , we must identify the first-in-time convictions, if any, on which the jury could have found petitioner guilty as an ordinary accomplice. On the record in this case, those first-in-time convictions are the second-degree robbery charges (Counts 7 to 10). The prosecutor pitched the case to the jury in that manner, basically arguing that the intruders committed second-degree robbery by "march[ing] in" the way that they did to commit the theft that they did:

"[I]f they had marched in, and none of them had a gun, and they didn't cause any injuries to the victims, but they were aided by another person actually present, there was more than one person that came in, and threatened the use of physical force during the commission of theft, that would be Robbery in the Second Degree."

Although, as was the case in Lopez-Minjarez itself, the jury could have found petitioner guilty on those charges as a principal, there is also some likelihood that the jury convicted petitioner as an ordinary accomplice without determining that he committed the elements of the offense himself. That is because the prosecutor explicitly told the jury that it could think of the case in that manner and treat the different participants in the incident interchangeably: "[W]hen I say the defendant committed * * * 'X,' 'Y,' or 'Z,' that can be the defendant; that can be Tammy Felix, who set the whole thing up; that can be Robert Lummus; that can be Ryan Moffett. Because remember everybody is responsible for the conduct of everyone else."

That means, on the record in this case, there is some likelihood that the jury's verdicts on the remaining counts against petitioner could have turned on the erroneous natural-and-probable-consequence instruction. The instruction allowed the jury to convict petitioner on the first-degree robbery counts without finding that he had the requisite criminal intent with respect to the use of a gun or the causing of physical injury; it also allowed the jury to convict him of the charges of unlawful sexual penetration and assault without finding that he had the requisite criminal intent with respect to those charges. That is particularly so in light of how the prosecutor framed the case for the jury in closing argument. The prosecutor effectively told the jury that petitioner was on the hook for all charges even if all he "signed up for" was robbery because there was no evidence that he took action, such as calling the police, to admit that he had intended to participate in the robbery but not the other offenses. That argument, together with the prosecutor's argument that petitioner would be liable for second-degree robbery if the intruders had simply marched in to commit the thefts without using a gun or causing injuries, invited the jury to conclude that petitioner was liable for all charged offenses, simply by virtue of his participation in the second-degree robbery. The natural-and-probable-consequence instruction, with its erroneous indication that the jury could convict petitioner of an offense without finding that he had the requisite criminal intent, reinforced that argument to the jurors and, thus, could have affected the verdicts on the counts other than the four second-degree robbery counts. Thus, we conclude that petitioner was not prejudiced by trial counsel's failure to object to the natural-and-probable-consequence instruction with respect to Counts 7 to 10.

Petitioner urges us to reach a different conclusion and affirm the post-conviction court's conclusion that the instruction was prejudicial as to all counts of conviction. Relying on Wade , petitioner argues that a different analysis applies. Petitioner notes that, in Wade , we concluded that the delivery of the natural-and-probable-consequence instruction was prejudicial based on our conclusion that the jury might have relied on the instruction to convict the petitioner of robbery and assault under the theory that those offenses were the natural-and-probable consequence of the petitioner's decision to facilitate the uncharged offense of theft. 268 Or. App. at 389-90, 342 P.3d 142. Petitioner points out, correctly, that that analysis did not require us to determine, as we did in Drown , that the jury could have convicted petitioner of an earlier offense under an aid-and-abet theory. He argues that, in this case, as in Wade , the jury could have convicted him of all offenses under the theory that all of those offenses were the natural-and-probable consequence of a prior uncharged theft.

We reject that argument for two reasons. First, nothing in the evidence or the arguments presented at petitioner's criminal trial would have suggested to the jury that that was a viable theory of conviction. There is simply no reason to think that the jury viewed the case in that manner. Petitioner acknowledged as much below, telling the court that he did not think the erroneous instruction likely affected the jury's verdict on the second-degree robbery charges.

Second, and relatedly, the prejudice analysis in Wade did not follow the same path as our analysis in Drown . That is because the prosecutor in that case argued to the jury that it could convict the petitioner without finding that she intended to assist in the charged robbery and assault but, instead, could do so even if it found that she only had intended to facilitate an uncharged offense such as theft. Wade , 268 Or. App. at 377, 389, 342 P.3d 142. In view of the specific way that the prosecutor presented that case to the jury-which, in essence, invited the jury to convict the petitioner on the basis that the charged offenses were the natural-and-probable consequence of the petitioner's decision to aid and abet an uncharged theft-we concluded that the instruction was prejudicial. Here, by contrast, no such theory was presented to the jury and, for the reasons that we explained in Drown , the instructions on aiding-and-abetting liability, when considered as a whole, do not suggest to the jury that it is permissible to convict a defendant of an offense under a natural-and-probable-consequence theory without having first found the defendant guilty of at least one offense under an ordinary aiding-and-abetting theory. We therefore reject petitioner's argument that Wade requires us to engage in a different prejudice inquiry than the one set forth in Drown , given the context of this case.

In sum, petitioner was prejudiced by trial counsel's failure to object to the natural-and-probable-consequence instruction with respect to Counts 1 to 6, 11, 12, and 15. Petitioner was not prejudiced by the failure to object with respect to Counts 7 to 10. The post-conviction court erred to the extent that it concluded otherwise.

2. Issue preclusion

Because we have concluded that petitioner was prejudiced by trial counsel's failure to object to the delivery of the natural-and-probable-consequence instruction, we must also address the superintendent's contention that the post-conviction court erred when it determined that the doctrine of issue preclusion barred the superintendent from contesting the conclusion that petitioner's trial lawyer performed inadequately by not objecting to the natural-and-probable-consequence instruction because that same issue previously had been resolved by Wade , 268 Or. App. 373, 342 P.3d 142. We conclude that the court erred. Under the doctrine of issue preclusion, "[i]f one tribunal has decided an issue, the decision on that issue may preclude relitigation of the issue in another proceeding if five requirements are met[.]" Nelson v. Emerald People's Utility Dist. , 318 Or. 99, 104, 862 P.2d 1293 (1993). The first of those requirements is that the issue in the two proceedings must be "identical." Id . That requirement is not met here.

In this case, the pertinent issue is whether petitioner's trial counsel, in not objecting to the trial court's delivery of the natural-and-probable-consequence instruction, "failed to exercise reasonable professional skill and judgment * * *." Pereida-Alba v. Coursey , 356 Or. 654, 661, 342 P.3d 70 (2015). The resolution of that issue necessarily turns on an examination of the historical facts and circumstances underlying petitioner's counsel's failure to object to the instruction. Id . at 662, 342 P.3d 70 ; Johnson , 361 Or. at 710, 399 P.3d 431 ("What constitutes 'reasonable professional skill and judgment' in defending criminal charges is a highly fact-specific inquiry."). The issue in Wade , by contrast, was whether trial counsel for the petitioner in that case failed to exercise reasonable professional skill and judgment by not objecting to the delivery of the natural-and-probable-consequence instruction under the facts and circumstances of that case. See Wade , 268 Or. App. at 385, 342 P.3d 142 (explaining why, on the record created in that case, the post-conviction court correctly determined that the petitioner's criminal trial lawyer failed to exercise reasonable professional skill and judgment by not objecting to the natural-and-probable-consequence instruction). Although similar, the two issues are not identical, because the issues involve different lawyers in different cases in different factual circumstances.

It may be that the facts surrounding trial counsel's failure to object, when fully developed on remand, will be materially indistinguishable from the facts developed in Wade , such that the holding in Wade will compel the legal conclusion that petitioner's trial counsel performed inadequately in the same way that the lawyer at issue in Wade performed inadequately. But that will be because principles of stare decisis compel that conclusion, not because the doctrine of issue preclusion does.

In sum, the post-conviction court erred in determining that the doctrine of issue preclusion barred the superintendent from contesting whether trial counsel was inadequate for not objecting to the natural-and-probable-consequence instruction and in granting partial summary judgment to petitioner on that basis.

B. Petitioner's Cross-Appeal

In his cross-appeal, petitioner assigns error to the post-conviction court's denial of relief on two additional specifications of inadequate and ineffective assistance of counsel. Having considered those assignments of error, we reject them without further discussion.

IV. CONCLUSION

For the foregoing reasons, we reverse the judgment granting post-conviction relief and remand for further proceedings consistent with this opinion.

Reversed and remanded on appeal; affirmed on cross-appeal.

      The jury returned guilty verdicts on two additional counts of first-degree robbery with a firearm. In petitioner's direct appeal, we held that the verdicts on those counts merged with the verdicts on other counts. State v. Edwards , 251 Or. App. 18, 24, 281 P.3d 675, rev. den. , 352 Or. 665, 293 P.3d 226 (2012).

      One count of unlawful sexual penetration was later dismissed.

      Our decision in petitioner's direct appeal that ORCP 59 H rendered his claim of instructional error unreviewable turned on a line of cases that the Supreme Court later overruled in State v. Vanornum , 354 Or. 614, 317 P.3d 889 (2013).

      The analysis that the superintendent sets forth in his brief is consistent with the framework we set out in Drown .

      As noted, petitioner's defense was that he was not a participant in the robbery; apart from pointing to reasons why the jury should have reasonable doubt about petitioner's participation in the crime, trial counsel only minimally contested the prosecutor's theory of the case.

      As we explained in Drown ,
      "[b]y its terms, the instruction subjects a defendant to liability for conduct occurring after the defendant aids or abets another in committing an initial offense; that is, it 'also' imposes liability for 'acts or other crimes that [are] committed' in addition to the 'intended crime.' "
      294 Or. App. at 759, 432 P.3d 1144 (quoting the natural-and-probable-consequence instruction).


text:
    KINZUA RESOURCES, LLC, an Oregon Limited Liability Company; Frontier Resources, LLC, an Oregon Limited Liability Company; ATR Services, Inc., an Oregon Corporation; and Gregory M. Demers, an Individual, Petitioners, v. OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY, an Agency of the State of Oregon, and Oregon Environmental Quality Commission, an Agency of the State of Oregon, Respondents.
    A161527
    Court of Appeals of Oregon.
    Argued and submitted August 8, 2017. December 12, 2018
    Julie A. Weis, Portland, argued the cause for petitioners. Also on the opening brief were Michael E. Haglund and Sara Ghafouri. Also on the reply brief was Michael E. Haglund.
    Denise G. Fjordbeck, Assistant Attorney General, argued the cause for respondents. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.
   DEHOOG, P. J., Petitioners seek judicial review of a final order of the Environmental Quality Commission relating to property owned and previously operated as a landfill by petitioner, Kinzua Resources, LLC (Kinzua). Petitioners contend that the commission lacked authority to impose fines against petitioner Demers, an individual who met and corresponded with the Department of Environmental Quality (DEQ) regarding Kinzua's land disposal site, or against petitioners ATR Services, Inc. (ATR), and Frontier Resources, LLC (Frontier), two entity members of Kinzua. Acting under ORS 459.205 and ORS 459.268, the commission fined each of those parties on the theory that they were persons "controlling" a landfill site within the meaning of those statutes and were, therefore, required to comply with the applicable landfill permit and OAR 340-095-0090. In light of the text, context, and legislative history of ORS 459.205 and ORS 459.268, we conclude that the statutory term "controlling" means actually exercising "restraining or directing influence" over a landfill site or the property on which it is located, and not merely having the authority to do so or communicating on behalf of an entity exercising such control. Because the commission's decision relied on an erroneous interpretation of those provisions of law, we reverse and remand the final order.

We begin by reciting the relevant aspects of the administrative law judge's (ALJ) findings of fact, most of which were adopted by the commission and are not challenged on appeal.

Kinzua is a limited liability company registered in Oregon. Kinzua has only two members, Frontier and ATR, both of which are entities registered to conduct business in Oregon. Demers is a member of Frontier, as well as a shareholder in, and the president of, ATR. Demers is neither the sole member of Frontier nor the sole shareholder of ATR.

In 1996, Kinzua acquired a sawmill and wood waste landfill located on adjacent parcels in Pilot Rock, Oregon. Kinzua also acquired approximately 300,000 acres of timberland. Kinzua operated the sawmill and landfill until at least 2010. The landfill's sole purpose was to accept wood waste from the adjacent sawmill. Kinzua sold the marketable timberland in 1998 but retained ownership of the sawmill and landfill until February 2006, when Kinzua sold the properties on which those facilities were located to LeeLyn, Inc. and Wiley Mt., Inc. For some time after that sale, Kinzua continued to operate the sawmill and landfill.

In late February 2005, Kinzua applied for a renewal of its solid waste permit, and, in May 2006, DEQ issued a solid waste disposal site permit identifying Kinzua as the permittee, property owner, and facility operator. The permit, which expired on February 28, 2016, authorized Kinzua to accept wood waste and related debris at the landfill from the onsite activities of the adjacent sawmill.

Among other things, Kinzua's permit required the permit holder to maintain continuous financial assurance for the costs of closing down the landfill and post-closure maintenance and related activities. See ORS 459.205 ; ORS 459.268 ; OAR 340-095-0090. In October 2006, Kinzua provided DEQ with a financial assurance plan that estimated certain per-acre closure and post-closure costs. DEQ found the estimated per-acre costs to be reasonable but determined that the plan failed to account for the total acreage of the landfill. Using Kinzua's plan, DEQ recalculated the estimated costs and determined that the total costs associated with closure and post-closure activities would be $1,445,040.

In December 2009, LeeLyn and Wiley Mt. quitclaimed the landfill site back to Kinzua as part of a larger plan to sell the sawmill to Boise-Cascade. Following its acquisition of the sawmill, Boise-Cascade delivered 40,000 cubic yards of wood waste to Kinzua's landfill. Since that delivery in September 2010, Kinzua has not accepted any waste at the landfill. As of the hearing date in late 2014, however, Kinzua had not closed the landfill.

In summer 2010 and again in summer 2011, one or more surface fires erupted at the landfill. In 2010, Demers and other members and shareholders of Frontier and ATR agreed that Demers would respond to DEQ's inquiries regarding issues related to the landfill site. From that time on, DEQ exclusively communicated with Demers regarding such issues, including fire-control efforts at the site and the financial assurance requirements of the permit.

On July 17, 2010, DEQ issued a Notice of Civil Penalty Assessment and Order alleging that Kinzua had violated certain administrative rules and the requirements of its permit by failing to maintain financial assurance in an amount sufficient to cover the costs of closure and post-closure maintenance. Following a default by Kinzua, DEQ issued a final order in March 2011, in which it found that Kinzua had failed to maintain the required financial assurance and assessed a civil penalty against Kinzua in the amount of $25,075. The order also directed Kinzua to secure the financial assurance required by its permit. Kinzua has not complied with that order.

In August 2013, DEQ issued the amended notice at issue in this case, once again naming Kinzua as a responsible party, but also naming others, including Demers, Frontier, and ATR as persons "owning or controlling" the land disposal site. In its amended notice, DEQ proposed civil penalties totaling $790,062 against each of those parties, jointly and severally, in connection with Kinzua's landfill site. DEQ alleged, among other things, that, between July 1, 2011 and August 23, 2013, petitioners had failed to notify DEQ of a surface fire at the site, failed to close the disposal site after it stopped accepting waste, and failed to maintain financial assurance.

In addition to adopting the foregoing factual findings as its own, the commission found-contrary to the ALJ's findings-that Demers had exercised control over the landfill site. To support that finding of control, the commission made additional findings of fact.

The commission found, based on email communications between DEQ and Demers in 2010 and 2014, that Demers had provided for fire control measures at the landfill in response to DEQ's requests, that he had been working with a consultant in an effort to resolve problems arising at the landfill, and that he had identified himself as a member of Kinzua. The commission also found that Demers had signed a contract engaging fire control services on behalf of Kinzua, identifying himself as Kinzua's president in the process. Finally, the commission found that Demers had signed the registration form seeking reinstatement of Kinzua with the State of Oregon Corporation Division.

The commission, in part, based its findings regarding Demers's control of the landfill site on his own, some-what inconsistent testimony at the hearing. For example, when asked what his relationship with Kinzua was, Demers stated, "I believe I'm the president and secretary. No, I take that back. I'm sorry. I personally don't believe I have a relationship. You mean me or one of my * * * I don't have a relationship to Kinzua."

The commission observed that the record contained "significant evidence" of Demers's operational relationship with Kinzua. For example, Demers had exchanged an email with DEQ following up on a meeting between the two in which they had discussed Kinzua's violation of the financial assurance requirement of its permit. In another email, Demers described operations "we" have taken at the landfill and referred to the landfill's permit as "our permit." The commission found that such documentary evidence was consistent with the testimony of a DEQ representative that Demers had demonstrated his control of the landfill during the violation period alleged in the amended notice. Demers also testified that he and his "partners" had agreed in 2010 that he would be the one delegated to deal with the "whole DEQ thing" when it "came up." Accordingly, the commission found that Demers both had and exercised control over the landfill site. Based upon those findings, the commission concluded that Demers personally was liable for the violations of ORS 459.205 and ORS 459.268.

The commission also concluded that Frontier and ATR were controlling persons under those statutes. In contrast to its assessment of Demers's role, however, the commission made no specific findings regarding those entities' actions in connection with the landfill. Instead, the commission concluded as a matter of law that ATR and Frontier were liable based on their authority to control Kinzua and its property, including the landfill. The commission noted that, under Kinzua's articles of organization, Kinzua was to be managed by its members, and that Kinzua's only members were ATR and Frontier. And, according to the commission, ATR and Frontier had "presented no evidence to the contrary at the hearing." The commission therefore concluded that, as a matter of law, ATR and Frontier were persons "controlling" the landfill site by virtue of their membership in Kinzua. The commission expressly acknowledged that DEQ had not presented any evidence that ATR and Frontier had actually exercised that legal control. The commission nonetheless concluded that ATR and Frontier were liable under ORS 459.205 and ORS 459.268 by virtue of the control that they had over the landfill, regardless of whether they had exercised that control.

On appeal, petitioners assign error to the commission's findings that Demers, ATR, and Frontier were persons controlling the landfill site within the meaning of ORS 459.205 and ORS 459.268. In their assignments, petitioners specifically argue that the commission erroneously interpreted the term "controlling" in ORS 459.205 and ORS 459.268 to encompass petitioners' conduct or their status as members of Kinzua. See ORS 183.482(8)(a). The question whether the commission properly construed the term "controlling" poses an issue of statutory interpretation. Petitioners and respondents propose competing definitions for "controlling." Petitioners assert that a person in control of a land disposal site is akin to a landfill operator, such that the person must be shown to have actively participated in the operation or maintenance of a landfill during the relevant period to be liable under either statute. Respondents, on the other hand, contend that the definition of control is more expansive, such that it does not require active participation and encompasses those with the authority to control a land disposal site, whether or not they actually exercise that authority.

As with all matters of statutory construction, we begin with the text and context of the relevant statutory provisions in an effort to determine the legislature's intended meaning. See Polacek and Polacek , 349 Or. 278, 284, 243 P.3d 1190, 1193 (2010) (the text and context are the "best evidence of the legislature's intent"); State v. Gaines , 346 Or. 160, 171, 206 P.3d 1042 (2009) (text and context are "primary" and must be given "primary weight" in the analysis). We will consult the legislative history of the statute to the extent that such history appears useful to our analysis. Gaines , 346 Or. at 172, 206 P.3d 1042. If the legislative intent remains unclear after examining the text, context, and legislative history, we may resort to general maxims of statutory construction. Id.

We first examine the relevant text. ORS 459.205(2), which sets forth the permit requirement for landfills that have been closed, provides:

"The person who holds or last held the permit issued under subsection (1) of this section, or, if that person fails to comply, then the person owning or controlling a land disposal site that is closed and no longer receiving solid waste must continue or renew the permit required under subsection (1) of this section after the site is closed for the duration of the period in which the department continues to actively supervise the site, even though solid waste is no longer received at the site."

(Emphasis added.) ORS 459.268, which sets forth the post-closure maintenance requirements for landfills, provides:

"When solid waste is no longer received at a land disposal site, the person who holds or last held the permit issued under ORS 459.205 or, if the person who holds or last held the permit fails to comply with this section, the person owning or controlling the property on which the disposal site is located , shall close and maintain the site according to the requirements of this chapter, any applicable rule adopted by the Environmental Quality Commission under ORS 459.045 and any requirement imposed by the Department of Environmental Quality as a condition to renewing or issuing a disposal site permit."

(Emphasis added.) The legislature has not defined "controlling" as used in those statutes.

Generally, when a word is not statutorily defined, we assume that the legislature intended for the word to have its ordinary meaning. State v. Cox , 219 Or. App. 319, 322, 182 P.3d 259 (2008) ; see Karjalainen v. Curtis Johnston & Pennywise, Inc. , 208 Or. App. 674, 681, 146 P.3d 336 (2006), rev. den. , 342 Or. 473, 155 P.3d 51 (2007) (words of common usage typically should be given their plain, natural, and ordinary meaning). "The principal source for determining ordinary meaning is a dictionary of common usage." Cox , 219 Or. App. at 322, 182 P.3d 259. When consulting that definition, it is important to keep in mind the part of speech that the legislature used. Id. Consistently with the principle, we note that, in both ORS 459.205 and ORS 459.268, the legislature used the term "controlling," a verb, rather than "control," a noun. Accordingly, we look to the dictionary definition of the verb "control."

As the commission observed, the verb "control" is defined, in relevant part, as "to exercise restraining or directing influence over" and "to have power over." Webster's Third New Int'l Dictionary 496 (unabridged ed. 2002). Although those dictionary definitions are helpful, they are not the end of our textual analysis. That is particularly true here, where the meaning "to exercise restraining or directing influence over" supports petitioners' interpretation of "controlling," whereas the definition "to have power over" supports respondents' construction and the commission's application of the statutes. After further examining the text, we are persuaded that the concept of exercising "restraining or directing influence over" better reflects the legislature's chosen text for two reasons.

First, by using the term "controlling," the legislature chose the present form of the verb control. That choice, much like the part of speech that the legislature chose, can inform our understanding of the legislature's intended meaning.

See, e.g. , Martin v. City of Albany , 320 Or. 175, 181, 880 P.2d 926 (1994) ("[W]e do not lightly disregard the legislature's choice of verb tense, because we assume that the legislature's choice is purposeful. In most cases, we best effectuate the legislative intention by giving effect to the plain, natural, and ordinary meaning of the verb tense chosen by the legislature."). And, in both ORS 459.205 and ORS 459.268, the reference to a person "controlling" a landfill site suggests a person actively involved with the land disposal site. Merely having power over a site, on the other hand, does not readily evoke active involvement in that site.

Second, under both ORS 459.205 and ORS 459.268, the primary responsibility for renewing the permit and closing the landfill site is on the permittee. If the permittee fails to discharge that responsibility, then the statutes allocate it to the person "owning or controlling" the landfill site. In that situation, then, the person owning or controlling the landfill site steps into the shoes of the permittee and must do those things that the permittee failed to do as required. And, in our view, the legislature would reasonably have assigned that role to persons whose involvement with the land disposal site was most comparable to the permittee who previously had operated or maintained the landfill. Overall, then, the text of ORS 459.205 and ORS 459.268 aligns best with the definition of "controlling" as exercising "restraining or directing influence over."

The statutory context provides little further assistance. Generally, context can include other provisions of the same statute, the session laws, and related statutes, as well as the preexisting common law and statutory framework within which the law was enacted. Stevens v. Czerniak , 336 Or. 392, 401, 84 P.3d 140 (2004). We note that, here, the parties disagree as to what context is most relevant to our inquiry. Respondents argue that the most pertinent context is ORS chapter 459 as a whole, which they contend evinces a legislative intent to broadly define "control." Petitioners on the other hand, direct our attention to federal law. Emphasizing that no other Oregon statute uses the phrase "owning or controlling"-and none clarifies specifically what it means to control a landfill-petitioners argue that the most helpful context can be found in analogous federal law, where liability depends on direct control. Respondents rejoin that, because they do not use the term "controlling," the federal statutes that petitioners identify are no more helpful than the state law context on which respondents rely. We consider those arguments below, ultimately concluding that none of the proposed context provided by the parties is particularly helpful in clarifying the meaning of "controlling" as that term is used in ORS 459.205 and ORS 459.268.

As noted, respondents argue that ORS chapter 459, as a whole, provides the best context. Respondents observe that the focus of that chapter is landfill safety. To that end, the legislature has provided measures governing the safe operation and decommissioning of landfill sites; the legislature has also allocated the financial burden of ensuring that safety to those who operate, own, or control sites. In respondents' view, that purpose is best served by a broad reading of "controlling," so as to minimize the likelihood that those ends will go unserved. To be sure, much of ORS chapter 459 is directed at public safety and mitigating the environmental impact of both active and inactive landfill sites. See, e.g. , ORS 459.017(1)(a) (the planning, location, acquisition, development, and operation of landfills is a matter of state-wide concern); ORS 459.045(1)(a) (the commission is tasked with development of rules to prevent the spread of disease or pollution of air, water, or land). However, that overriding purpose of protecting public safety sheds little light on the meaning of specific terms within the chapter. It certainly cannot, in our view, bridge the gap-if one exists-between liability based on actual control over a landfill site and liability based upon mere authority to control the site, whether or not actually exercised.

Turning to petitioners' argument, they contend that federal regulations addressing solid waste management-as well as federal case law interpreting those regulations-should inform our assessment of the intended meaning of "controlling." Petitioners point to the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), 42 USC §§ 6901 - 6992k, which, like ORS chapter 459, addresses solid waste management.

Similarly to Oregon's statutes, RCRA's regulations require that the "owner or operator" of a landfill facility provide financial assurance for the closure and post-closure costs of the landfill site. 40 CFR §§ 265.143, 265.145, 265.147. RCRA also authorizes the Environmental Protection Agency to take action against any person who is the "owner or operator of a treatment, storage, or disposal facility[.]" 42 USC § 6973(a). Notably, however, even though RCRA establishes a landfill permitting and liability scheme similar to Oregon's, it imposes liability on an "owner or operator " of a landfill site, rather than the person "owning or controlling " the landfill site, as ORS 459.205 and ORS 459.268 provide. (Emphases added.) Because of that potentially significant difference in wording, the parties dispute the extent to which federal case law interpreting RCRA should inform our construction of the term "controlling" under Oregon law.

As a general matter, we can examine federal precedent for contextual support when construing state statutes that "parallel" federal law. PSU Association of University Professors v. PSU , 352 Or. 697, 710-11, 291 P.3d 658 (2012) ; see also McKean-Coffman v. Employment Div. , 312 Or. 543, 550, 824 P.2d 410, adh'd to on recons. , 314 Or. 645, 842 P.2d 380 (1992) (examining federal legislative history to analyze Oregon statute that was "virtually verbatim" with federal statute);

Badger v. Paulson Investment Co., Inc. , 311 Or. 14, 21, 803 P.2d 1178 (1991) (when a state statute is based on a similar federal statute, federal court decisions may provide guidance, but are not binding); Karsun v. Kelley , 258 Or. 155, 161, 482 P.2d 533 (1971) (finding legislative history of a federal statute helpful in construing a substantially similar state statute).

However, after reviewing the federal statutes and regulations identified by the parties, as well as case law construing them, we are unpersuaded that those authorities provide helpful context for our analysis. It is true, as petitioners point out, that ORS 459.205 and ORS 459.268 were adopted as a means of implementing an Oregon solid waste regulatory program in compliance with RCRA. See 42 USC § 6947 (authorizing state programs); ORS 459.046 (authorizing the commission and DEQ to obtain approval of a solid waste regulatory program under RCRA). And, as noted, RCRA has permitting and financial assurance requirements similar to Oregon's. But, despite the language of RCRA and the legislature's evident awareness of its provisions, we cannot overlook the legislative choice of "person owning or controlling" where federal law employs "owner or operator." That distinction suggests that the legislature did not intend for ORS 459.205 and ORS 459.268 to wholly parallel the federal provisions. Accordingly, case law construing the federal provisions provides little guidance here.

The absence of helpful context does not necessarily end our inquiry. After examining the text and context of a statute, we will consult legislative history where that history appears useful to our analysis. Gaines , 346 Or. at 172, 206 P.3d 1042. Here, the parties argue that the legislative history supports each of their proposed definitions of "controlling." As with the parties' contextual arguments, however, we do not find the legislative history of the relevant portions of ORS 459.205 and ORS 459.268 to be particularly helpful.

In 1983, the legislature amended ORS 459.205 and ORS 459.268 to add the provisions at issue in this case, specifically providing that, if a landfill permittee fails to comply with the terms of a permit or related laws, the person owning or controlling the landfill property must close and maintain the site. Or. Laws 1983, ch. 766, §§ 7, 2. In the course of adopting those changes, the legislature did not expressly discuss the term "controlling," nor does anything in the legislative history suggest that the legislature understood the term to have a specific meaning.

In contending that the legislative history demonstrates that the legislature intended "controlling" to mean actively participating in landfill operations, petitioners point to statements made during committee meetings by several representatives of DEQ and the Oregon Sanitary Service Institute. In those meetings, the representatives tended-conversationally, at least-to equate the person "controlling" the landfill site with the "operator" of the landfill. See, e.g. , Tape Recording, House Committee on Environment and Energy, H.B. 2241, May 20, 1983, Tape H-83-EE-213, Side A (statement of Oregon Sanitary Institute representative Roger Emmons). Petitioners contend that that usage demonstrates that, in contemplating the term "controlling," the legislature's focus was on persons operating landfill sites, and so is consistent with the concept of an "owner or operator" under RCRA. However, although it is true that committee members appeared to have referenced persons "controlling" landfills interchangeably with "operators" of them, the legislature ultimately opted for the term "controlling." That ambiguous history leaves us uncertain whether the legislature intended a different meaning because it used a different word, cf. State v. Meek , 266 Or. App. 550, 556, 338 P.3d 767 (2014) (citing the "general assumption that, when the legislature employs different terms within the same statute, it intends different meanings for those terms" (internal quotation marks omitted) ), or, instead, simply chose one of two words that it deemed equivalent. As a result, that legislative history is ultimately unhelpful.

For their part, respondents argue that the legislative history supports the commission's broad interpretation of "controlling." Respondents point to a representative's prepared statement, as well as staff analyses of the house bill that led to ORS 459.205 and ORS 459.268, and argue that they all suggest that solid waste management-and landfill closures in particular-are issues of public health, safety, and welfare. See, e.g. , Staff Measure Analysis, House Committee on Environment and Energy, H.B. 2241 1983; Staff Measure Analysis, Senate Committee on Rules, H.B. 2241 1983. And, as with respondents' characterization of ORS chapter 459, we agree with that broad contention, as far as it goes. Again, however, we fail to see how that broad underlying purpose can inform our understanding of the specific reach of ORS 459.205 and ORS 459.268. As a result, we are no more persuaded by respondents' reliance on legislative history than by petitioners'.

Thus, after considering the context and legislative history of ORS 459.205 and ORS 459.268, we conclude that we must return to the plain text of those statutes to determine what "controlling" means. And, in our view, the best reading of that text is that the term "controlling" is directed at those persons actively involved in the operation or management of a landfill site; in other words, those who, after a permit holder fails to comply with its obligations under a landfill permit regarding a particular site, step in and exercise restraining or directing influence over that site.

Our conclusion that "controlling" means exercising "restraining or directing" influence over a disposal site leaves open the question whether substantial evidence and reason support the commission's conclusions that Demers, ATR, and Frontier were persons controlling Kinzua's landfill site at the time of the alleged violations. We do not, however, reach that question. It may be that, with the correct understanding of "controlling" in mind, the commission will again determine that one or more of the petitioners is liable; on the other hand, it may determine that the evidence does not support the conclusion that any of the petitioners were "controlling" persons within the meaning of ORS 459.205 and ORS 459.268. In our view, it is appropriate to allow the commission to make those determinations applying the correct meaning of the statutes in the first instance, and to give the commission an opportunity to explain its reasoning anew. See ORS 183.482(8)(a)(B) (authorizing that disposition when agency decision relies on an erroneous interpretation of the law). Accordingly, we reverse and remand the final order.

Reversed and remanded.

      The text of those statutes is set out below, 295 Or. App. at 402-03, 434 P.3d at 464-65.

      Under ORS 459.268, a landfill that is no longer receiving solid waste must be closed and maintained in compliance with the terms of the landfill permit and applicable laws.

      On appeal, no party challenges the commission's conclusions that those statutes and the related requirements of Kinzua's permit and the applicable regulations had been violated. Thus, the only issue in this appeal is whether petitioners may be held liable for those violations.

      Like Frontier and ATR, Demers argues on appeal that the commission erroneously construed ORS 459.205 and ORS 459.268. Demers does not separately contend that, to the extent his personal conduct otherwise constituted "controlling" under those statutes, he acted merely as an agent of Kinzua or another business entity and therefore cannot be held personally liable.

      Neither ATR nor Frontier disputes that "persons" under the relevant statutes includes legal entities such as limited liability companies and corporations. See ORS 459.005 (18) (providing that "person" means, among other things, an "individual, partnership, association, firm, trust, estate or any other legal entity").