State v. Neff

HASELTON, J.,

dissenting.

Defendant’s — and the majority’s — position rests on the irreducible premise that, in a circumstance in which multiple persons are recording/“obtaining” a conversation, if someone gives notice to all participants that one person is recording the conversation, that is sufficient to insulate all *199other recording parties from culpability under ORS 165.540(l)(c), even if one or more of the participants is unaware that the conversation is being recorded by those other persons. That premise is irreconcilable with the statute’s unambiguous language in context. Accordingly, I dissent.

ORS 165.540 provides, in pertinent part:

“(1) Except as otherwise provided in ORS 133.724 or 133.726 or subsections (2) to (7) of this section, a person may not:
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“(c) Obtain or attempt to obtain the whole or any part of a conversation by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, if not all participants in the conversation are specifically informed that their conversation is being obtained.”

Thus, as pertinent here, the elements of ORS 165.540(l)(c) that the state must prove are that defendant (1) obtained the conversation and (2) did so without the requisite notice. Defendant acknowledges that the first element has been established. Accordingly, the issue narrows to whether the requisite notice was given.

The statute’s initial operative phrase, “a person may not * * * [o]btain or attempt to obtain” (emphasis added), refers, unambiguously, to each, individual act of “obtaining”/ recording a conversation. That is, if two people (or 50) are separately recording the same conversation, each is, potentially, subject to conviction under ORS 165.540(l)(c). “Obtain,” thus, unambiguously connotes each individual act of recording.

However, each act of “obtaining” is not culpable per se. Rather, a person is culpable under ORS 165.540(l)(c) only if he or she “[o]btain[s] or attempts] to obtain” the conversation and “not all participants in the conversation are specifically informed that their conversation is being obtained.” (Emphasis added.) As defendant correctly notes, ORS 165.540(l)(c) does not provide who must provide the notice or even how notice is to be given. Nevertheless, the content of the requisite notice, as prescribed in the final *200phrase of subsection (l)(c), is unambiguous despite the use of the passive voice, which the majority emphasizes. See 246 Or App at 191.

The referent for “is being obtained” as used in that final phrase of subsection (l)(c) is “[ojbtain” as used in the first phrase. That is, “is being obtained” for purposes of the requisite notice (or lack of notice) connotes, unambiguously, each, separate act of “obtaining.” Thus, if an individual obtains (or attempts to obtain) a conversation and each participant is not “specifically informed” of that separate act of obtaining, that person violates ORS 165.540(l)(c). That is so regardless of whether all participants have been informed that some other individual is obtaining the conversation.

That conclusion is compelled by the fundamental canon of textual construction that a term — here, “[o]btain” in the first phrase and “is being obtained” in the concluding phrase — is presumptively to be given the same meaning within the same statute. See, e.g., PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993) (“[U]se of the same term throughout a statute indicates that the term has the same meaning throughout the statute[.]”); Pete’s Mountain Homeowners v. Ore. Water Resources, 236 Or App 507, 518, 238 P3d 395 (2010) (“It is a longstanding principle of statutory construction that words may be assumed to be used consistently throughout a statute.”). That construction further comports with the statute’s requisite that all participants be “specifically informed” (emphasis added) — viz., that they be given notice of the “specific,” particular act of recording.1

*201The application of ORS 165.540(l)(c) in this case is straightforward. Defendant recorded his conversations with Ou without Ou being informed that defendant was doing so. Thus, regardless of Ou’s obtaining of the conversation— which did satisfy the statute’s particularized notice requirement-defendant’s conduct did not. Accordingly, defendant’s conviction under ORS 165.540(l)(c) must be affirmed.* 2

Nakamoto, J., joins in this dissent.

The majority’s contrary construction of “specifically informed” refers, in part, to ORS 165.540(l)(a) as context for construing ORS 165.540(l)(c). See 246 Or App at 192-93. That reliance is misplaced for two interrelated reasons. First, ORS 165.540(l)(a) and ORS 165.540(l)(c) address qualitatively different circumstances' — the former pertains to the obtaining of telecommunications or radio communications by nonparticipants to those communications (e.g., “wire-tapping”), and the latter pertains to the obtaining of face-to-face conversations by either participants or third persons.

Second, culpability under each of the two provisions depends on a condition (or exception) that does not apply to the other. Specifically, obtaining by a nonparticipant violates ORS 165.540(l)(a) “unless consent is given by at least one participant” (emphasis added), but obtaining by any person violates ORS 165.540(l)(c) unless all participants have been notified of the obtaining — “if not all participants in the conversation are specifically informed that their conversation is being *201obtained” (emphasis added). Thus, even if all participants to a telephonic or radio communication under subsection (l)(a) were notified/“speeifically informed” that a nonparticipant was obtaining their communication, he or she would still be culpable under subsection (l)(a) unless one or more of those participants consented to that obtaining; conversely, even if a person were to secure the consent of one or more, but not all, of the participants in a conversation under subsection (l)(c) to the obtaining of the conversation, he or she would still be liable under subsection (l)(c) unless all of the participants had been “specifically informed” of that obtaining.

Given those qualitative circumstantial and functional differences, ORS 165.540(l)(a) simply does not provide useful context (even in an off-hand “The Legislature could have done it differently * * *” fashion) for construing the requisite notification under ORS 165.540(l)(c).

I would reach the same result even if the statute were ambiguous and we were somehow required to resort to the third-level maxim by which we “attempt to determine how the legislature would have intended the statute to be applied had it considered the issue.” PGE, 317 Or at 612.

Any default to that maxim is innately disquieting, effectively reconstituting the court as a mini-legislature. Nevertheless (as a hypothetical reasonable legislator), given ordinary social/group dynamics, a participant’s knowledge of who is recording a conversation may well be extremely important in determining what he or she says (or does not say) — or how something is said. If I am in a potentially contentious meeting and know that my best friend is recording the discussion, I may very well conduct myself differently than if I know that my worst enemy is recording the discussion to be shared with others (potentially concurrently via social media). Thus, notification of each act of recording is not just material, but central, to the policies that the legislature, presumably, sought to promote through the “specifically informed” proviso of ORS 165.640(1)(c).