# Schmidt v. Mt. Angel Abbey

> Oregon Supreme Court · December 24, 2009 · 347 Or. 389

URL: https://www.frixlaw.com/law-library/cases/9503272

## Case

- **Full name:** David SCHMIDT, Petitioner on Review, and N. M., Plaintiff, v. MT. ANGEL ABBEY, an Oregon Not for Profit Corporation, Respondent on Review, and ARCHDIOCESE OF PORTLAND IN OREGON, an Oregon Corporation; Roman Catholic Archbishop of Portland in Oregon, Dba Archdiocese of Portland in Oregon and Roman Catholic Archbishop of Portland in Oregon, and Successors, a Corporation Sole; And Louis Charvet, Deceased, Defendants-Respondents, and SWISS-AMERICAN CONGREGATION OF THE ORDO SANCTI BENEDICTI, Defendant
- **Court:** Oregon Supreme Court
- **Decided:** December 24, 2009
- **Citations:** 347 Or. 389; 223 P.3d 399; 2009 Ore. LEXIS 1016
- **Precedential status:** Published
- **Opinion:** Concurrence by Walters
- **Judges:** Walters, Balmer
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9503272

## How later opinions describe it (automated extraction)

- explaining that, for purposes of ORS 12.117(2)(a)(B), the phrase “cruelty to [a] child” “most reasonably is interpreted to include (1) acts that are performed with the specific intent of injuring or harming the child and that are capable of producing those results and (2) acts…
- explaining that “the phrase ‘including but not limited to,’ followed by a list of examples, [often] conveys an intent to illustrate or to broaden, rather than to limit the meaning of a general term”
- describing the principle as useful to discern what the legislature intended by a general term for which it provided specific examples

## Opinion text

WALTERS, J.,
concurring.
I concur in the majority’s decision. I write separately to note a small, but I think important, point about the application of the principle of ejusdem generis. Under the principle of ejusdem generis, a general statutory phrase is not given its plain and ordinary meaning; its meaning is limited or narrowed by the specific examples that the legislature provides in conjunction with that general term. Lewis v. CIGNA Ins. Co., 339 Or 342, 351 , 121 P3d 1128 (2005). In this case, the majority decides that it is not always constrained by the principle of ejusdem generis when the legislature precedes the specific examples with the phrase “including but not limited to.” 347 Or at 404.
I agree with the majority that the principle of ejusdem generis may not apply in that circumstance, but I want to explain why. The assumption underlying the principle of ejusdem generis is that the legislature intentionally has used specific examples to limit or narrow the meaning of a general term. In my experience, however, that is not always the case. The legislature may instead use examples to illustrate the applicability of a term, without intending to limit or *409 narrow its common meaning, or to broaden the common meaning of a term. It is understandable to think that the phrase “including but not limited to,” followed by a list of examples, conveys an intent to illustrate or to broaden, rather than to limit the meaning of a general term. After all, the phrase says that the general term is not limited to the examples. But as this case demonstrates, that phrase can mean that the examples given are not the only application of a general term, and in that sense, that the examples are not limiting, without also meaning that the examples do not perform a different narrowing function. In other words, a general statutory term may be limited by, even though it is not limited to, specific statutory examples. I write to point out that the phrase “including but not limited to” is itself imprecise, and to urge that the legislature both decide the purpose for which it uses examples and convey that purpose as clearly as it can.
Let me illustrate the various purposes to which examples may be put. Suppose that the legislature were to enact a statute prohibiting the “cutting of all trees, including but not limited to oak, maple, and birch.” One common meaning of the word “tree,” as stated in the dictionary, is “a woody perennial plant, having a single main stem that may be short but is usu[ally] considerably elongated, has generally few or no branches on its lower part, and is crowned with a head of branches and foliage or (as in palms) of foliage only.” Webster’s Third New Int’l Dictionary 2435 (unabridged ed 2002). By giving three examples of plants the legislature considers to fall within the definition of the word “tree,” the legislature could be seeking to narrow the dictionary definition of the general term “tree,” or it could be using the examples to illustrate the application of that definition, or even to broaden that definition.
If the legislature intended to use the examples to limit the dictionary definition of “tree” to plants that share common characteristics with oak, maple, and birch, we would apply the principle of ejusdem generis when faced with a question of whether the statute prohibits the cutting of a certain plant that might not be considered a tree. We would look, as we do in this case, for a common characteristic that those three examples share beyond the fact that all are tall, woody, *410 and crowned with foliage. We would then determine if the plant at issue also shared that characteristic.
If, alternatively, the legislature intended to protect all plants that fall within the dictionary definition of the word “tree,” but used the examples to ensure that certain trees, the only ones actually growing in the area subject to statutory protection, would not be cut, we might take a different approach. We might understand the examples as illustrative and not examine whether the plant at issue had characteristics in common with oak, maple, or birch, other than those required by the dictionary definition of the word “tree.”
Still another possibility is that the legislature used the examples to expand, rather than to contract, the dictionary definition of “tree.” A “maple” is “a tree or shrub of the genus Acer.” Id. at 1379 (first emphasis added; second emphasis in original). By specifically including “maple” in its list of protected plants, the legislature could have intended to broaden the dictionary definition of “tree” to prohibit the cutting of all maples, including small Japanese maples, which might not otherwise be considered “trees.”
Examples serve no right or wrong purpose, and the legislature may use examples in one statute to establish limits on an ambiguous term, and in another to illustrate or expand. Precisely because there are so many ways in which the legislature may use examples, I write to urge that the legislature consider the distinctions that I have drawn, use care in selecting examples, and express as clearly as possible the office that it expects its examples to serve. With that assistance, courts will be better able to carry out the legislature’s intent.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9503272. Public record. Not legal advice.