Housing Authority of Portland v. Comstock

DEITS, C. J.,

dissenting.

The decisive question in this case is whether the term “landlord” in ORS 90.400(3)(a) includes all of the landlord’s agents and employees, as well as the actual landlord him, her, or itself. ORS 90.400(3)(a) provides:

“The landlord, after 24 hours’ written notice specifying the causes, may immediately terminate the rental agreement and take possession in the manner provided in ORS 105.105 to 105.168, if:
“(a) The tenant, someone in the tenant’s control or the tenant’s pet seriously threatens immediately to inflict personal injury, or inflicts any substantial personal injury, upon the landlord or other tenants[.]” (Emphasis added.)

ORS 90.100(15) defines “landlord” for purposes of the Residential Landlord and Tenant Act as meaning

“the owner, lessor or sublessor of the dwelling unit or the building of which it is a part, and it also means a manager of the premises who fails to disclose as required by ORS 90.305.”1

Thus, the word “landlord” in ORS 90.400(3)(a) itself is stated in the singular, and it is not accompanied by any language (e.g., “or his agents or employees”) to suggest that any persons or entities other than the actual landlord are contemplated. Similarly, the definition of the term “landlord” is not compatible with the understanding that it embraces all of the landlord’s employees or agents. To the contrary, the definition indicates that the term can include only one agent of the landlord or entity other than the landlord qua landlord, *469i.e., a “manager of the premises” who fails to make the disclosures required by the Act.

Based on the language of ORS 90.400(3)(a) and of the statutory definition of the word “landlord” itself, the clear answer to the question confronting us is that “landlord” as used in ORS 90.400(3)(a) means the actual landlord and, if it includes any employees or agents of the landlord, then it does not extend to personnel, like those involved here, who are not premises managers.

However, the majority reaches the opposite answer and, out of apparent obedience to PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993), it finds that answer in statutes other than the one we are construing or the one that defines the relevant term. Instead of focusing on those provisions, the majority gravitates in turn from the definition of “landlord” in ORS 90.100 to that section’s definitions of “owner,” “person” and “organization.” At the end of that chain of provisions, which the majority presumably understands to be “context” under the PGE rubric, the majority finds that “corporations” can be “landlords.” The majority reasons further that corporations can act only through their human agents and officers, that corporations themselves cannot suffer injury and, therefore:

“It must be assumed * * * that, when the legislature referred to making threats of personal injury to a corporation, it meant threats to the agents of the corporation. Any other construction would necessitate concluding that, when the legislature referred to making threats against a landlord, it did not mean to include corporations. That would require us not only to leave a sizeable loophole in the statute but also to conclude that the statute — which expressly defines ‘landlord’ to include corporations — does not mean what it plainly says.” 163 Or App at 467.

I do not dispute that corporations can be landlords. However, the majority’s analytical approach causes it to lose sight of the facts that not all landlords are corporations, that ORS 90.400(3)(a) refers to landlords generically rather than corporate landlords specifically, and that the section’s concern with a form of tenant conduct that can only affect natural persons is not necessarily an unintended “loophole in the *470statute” as opposed to an intentional legislative choice to distinguish between threats to landlords who are natural persons and those who are not.

That that was the legislature’s intent is borne out by paragraph (b) of ORS 90.400(3). Unlike paragraph (a), which includes physical threats only to the landlord and to other tenants among the bases for a 24-hour notice and eviction, paragraph (b) allows the landlord to pursue that remedy in cases where the tenant actually inflicts personal injury, inter alia, on persons who are “on the premises with permission of the landlord or another tenant.” Hence, a literal reading of the word “landlord” in paragraph (a) does not leave a loophole in the statute but is instead consistent with a logical scheme of distinction and gradation. A threat of injury to the landlord’s person is enough to give rise to the remedy under ORS 90.400(3), but the actual infliction of injury on other persons associated with the landlord is required. Contrary to the majority’s understanding, that distinction was not an insensible one for the legislature to make in connection with an eviction remedy that, as described in ORS 90.400(3)(e), is reserved for tenant conduct that is “outrageous in the extreme.”

Insofar as the majority’s concern is that a literal reading of the word “landlord” in ORS 90.400(3)(a) results in a disparity in the way that the statute treats “natural” and corporate landlords, the simple answer is that that, too, is a distinction the legislature was entitled to make. A threat of injury to one’s landlord is conduct that the legislature could have regarded as serious enough to warrant the extreme remedy for which ORS 90.400(3) provides, but the legislature was not required to extend that remedy to situations where the landlord itself cannot suffer injury and therefore cannot be meaningfully affected by threats of injury.2

*471In short, the statute as written and as read literally makes sense. Beyond that, however, the main reason why this court should read the statute literally — and thus interpret the words “the landlord” to mean “the landlord” rather than “the landlord and the landlord’s agents” — is that that is what the statute says. Even if the majority were right in the view that there is a “loophole” or other problem with the statute as so written and as so read,

“it is for the legislature to translate its intent into operational language. This court cannot correct clear and unambiguous language for the legislature to better serve what the court feels was, or should have been, the legislature’s intent.” Monaco v. U.S. Fidelity & Guar., 275 Or 183, 188, 550 P2d 422 (1976).

When all is said and done, the majority’s holding realistically turns more on the word “corporation” contained in one of the definitions in ORS 90.100 than it does on the word “landlord” (or any other words) in ORS 90.400(3)(a). However, it is the latter provision that we are construing. I acknowledge that the majority’s approach may be a tenable application of the PGE methodology. However, where the text of the statute in question is unambiguous and its clearly expressed language is conclusive of the issue in the case, judicial efforts to find the “intended” meaning of the statute elsewhere are more conducive to obfuscation than illumination.

I would hold that the legislature meant what it said in ORS 90.400(3) and that plaintiff has no right to proceed under that statute.3 Consequently, I respectfully dissent.

ORS 90.305(1) provides:

“The landlord or any person authorized to enter into a rental agreement on behalf of the landlord shall disclose to the tenant in writing at or before the commencement of the tenancy the name and address of:
“(a) The person authorized to manage the premises; and
“(b) An owner of the premises or a person authorized to act for and on behalf of the owner for the purpose of service of process and receiving and receipting for notices and demands.”

The majority maintains that my interpretation ignores the word “corporation” in ORS 90.100 and, therefore, violates the requirement of ORS 174.010 that the courts not “omit from a statute language that the legislature has included.” 163 Or App at 467. I, of course, do not agree with the majority. In any event, ORS 174.010 also prohibits the courts from inserting into statutes what the legislature has not. The term “agents” that the majority reads into the ORS 90.100 definitions and into ORS 90.400(3)(a) is not to be found in those provisions as the legislature wrote them. It is noteworthy in that respect that the legislature did use the word “agents” and its analogs elsewhere in ORS chapter 90, where they do reflect its *471intent. See, e.g., ORS 90.322(1)(d) (relating to entry of dwelling by “landlord or landlord’s agent”); ORS 90.243(1)(c)(A) (relating to abstinence by “employees, staff, agents of the landlord” in drug and alcohol free housing); ORS 90.150(2) (“service or delivery of actual notice to an agent of the landlord shall constitute notice to the landlord”).

I have considered plaintiffs other arguments, as well as the one on which the majority bases its decision, and find them unpersuasive.