Hunt & Associates P.C.

Must a Phone Make a Sound in Order to “Ring” Under Oregon Law? Yes, Says the Court of Appeals in a Ten-Page Open Letter to the State

humpty-1851204_1920In a win for statutory plain meaning, the Oregon Court of Appeals on May 24, 2017 reversed a defendant’s conviction for telephonic harassment because “the plain and unambiguous text of ORS 166.090(1)(b) requires the other person’s telephone ‘to ring,’ which we interpret to mean that the telephone must emit an audible sound.”

Like Humpty Dumpty in Lewis Carroll’s sequel to Alice’s Adventures in Wonderland, it seems that the Oregon Department of Justice (DOJ) attempted to stretch the meaning of a word (“ring”) beyond its normal definition.  The defendant cried foul, and the Court of Appeals agreed with the defendant.

Interestingly, prosecutors could have charged this defendant under a different part of the telephonic harassment statute, ORS 166.090(1)(c), which prohibits leaving a voicemail after being forbidden to do so.  It is unclear why prosecutors did not charge the defendant with violating this part of the statute given that the evidence was probably more likely to yield a conviction.  (Hooray for double jeopardy rules, anyone?)

After the defendant appealed, the DOJ admitted that the plain meaning of the word “ring” implies that the telephone must make a sound.  However, the DOJ argued that based on the legislative history of the statute, the legislature must have intended to prohibit a person’s unauthorized calls to another person regardless of the specific statutory wording.  Therefore, the DOJ reasoned that violating the statute should not require evidence that the other person’s telephone made any sound when the defendant called.

The Oregon legislature passed the telephonic harassment statute at issue in 1987.  At that time (long before cell phones became commonplace) silent and vibrating phone ring capability was not something that the legislators probably considered.

The Court of Appeals ultimately sided with the defendant because Oregon law prohibits interpreting a statute in a way that is inconsistent with its plain text.  The Court of Appeals thus refused to rewrite the statute to keep pace with modern technology, but left the door open for the Oregon legislature to do so.

Final score this round: Defendant 1; Webster’s Dictionary 1; DOJ 0; Humpty Dumpty 0.

© 6/26/2017 Michael Litvin of Hunt & Associates, P.C.  All rights reserved.


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