State v. Moore

ARMSTRONG, J.,

dissenting.

I dissent from the majority’s conclusion that PCC 14.24.030 proscribes defendant’s conduct. The code provision prohibits people from drinking “alcoholic liquor upon any *101street, sidewalk, or other public right of way.” PCC 14.24.030(A). According to the majority’s interpretation of “right of way” in the provision, the lobbies, hallways, escalators, and elevators used by the public in public buildings are rights-of-way equivalent to streets and sidewalks. I cannot believe that the City of Portland intended its ordinance to treat as rights-of-way the public space in public buildings. Consequently, I would reverse defendant’s conviction for drinking alcohol in a seating area in the terminal building at the Portland airport.

The majority is correct that, in interpreting ordinances, we abide by the same rules that govern the construction of statutes. Harris v. Sanders, 142 Or App 126, 130, 919 P2d 512, rev den 324 Or 322 (1996). Our starting point is thus the text of the ordinance, and we give the words of the ordinance “their plain, natural, and ordinary meaning.” Id. (citations omitted). We have also observed that dictionaries may be useful starting points for determining the meaning of words. State v. Holloway, 138 Or App 260, 265, 908 P2d 324 (1995). Where the majority errs is in interpreting the dictionary definition that it sets out. It quotes the following definition of “right-of-way” from Webster’s Third New Int’l Dictionary and then erroneously interprets the second alternative definition, which explicitly relies on the first alternative definition, in isolation from the first, thus distorting the meaning of the second:

“1 : a legal right of passage over another person’s ground * * *; 2 : the area or way over which a right-of-way exists: as a : path or thoroughfare which one may lawfully use (as in crossing the property of another) : one established by persons exercising the right to pass over the property of another b : the strip of land devoted to or over which is built a public road[.]”

Webster’s Third New Int’l Dictionary, 1956 (unabridged ed 1993). In context with the first definition, the second definition becomes “an area or way over which exists the right to pass over another person’s ground.” A “public right of way” would then be “an area or way within another person’s ground over which the public in general has the right to pass.”

*102Instead of acknowledging the limited scope of the term “right of way,” the majority concentrates on the word “area” in the second definition and downplays the term’s central focus as a “right of passage.” It further broadens the definition when it concludes that a “public right of way” is an “area” that the public in general “may lawfully use.” 174 Or App at 99. By substituting the very broad verb “use” for “right of passage” and by focusing on the word “area” to the exclusion of the words modifying it, the majority manages to sweep airport terminal areas into its newly created concept of a public right-of-way. The trouble is that the majority’s new concept of “right of way” bears little relation to the ordinary meaning of the term. Moreover, in a large public area, such as an airport terminal, the idea that a right-of-way is supposed to be a circumscribed passageway through another person’s property is completely lost; because both the airport terminal itself and most passageways inside it are public, the reference to “another person’s ground” loses meaning. The majority oversteps its power in its eagerness to affirm defendant’s conviction in light of the fact that he engaged in the commonly proscribed conduct of drinking in public.

The narrow focus of the definition of “right of way” in Webster’s Third New Int’l Dictionary is borne out by the definitions in Black’s Law Dictionary and in the case law from various jurisdictions. Nowhere in my research have I encountered a definition of “right of way” broad enough to encompass airport terminal areas. The seventh edition of Black’s Law Dictionary defines “right-of-way” as “[a] person’s legal right, established by usage or by contract, to pass through grounds or property owned by another.” Black’s Law Dictionary, 1326 (7th ed 1999). The fourth edition describes the term in slightly more detail:

“The right of passage or of way is a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, or horseback, or in a vehicle, to drive beasts of burden or carts, through the estate of another.”

Black’s Law Dictionary, 1489 (4th ed 1968). Both definitions affirm that a “right of way” is a right of passage and suggest *103that that right of passage exists over a narrowly circumscribed geographical area within land owned by another.

Examining the dictionary definition of “way” further reinforces that conception. Webster’s Third New Int’l Dictionary defines “way” as “a thoroughfare used or designed for traveling or transportation from place to place,” Webster’s Third New Int’l Dictionary at 2587, and Black’s Law Dictionary, 1587 (7th ed 1999), defines “way” as “[a] passage or path.” To broaden “right of way,” as the majority does, to include any area that the public in general may lawfully use completely obliterates the meaning of “way” and deletes that word from the term “right of way.”

All of the dictionary definitions imply that a “right of way’ is something that is outside, unlike the enclosed terminal area at issue here. The Webster’s definition quoted above refers to “passage over another person’s ground,” Webster’s Third New Int’l Dictionary at 1956; the word “ground” in that definition suggests unenclosed land rather than an enclosed structure. Similarly, the seventh edition of Black’s Law Dictionary refers to “grounds or property owned by another.” Black’s Law Dictionary, 1326 (7th ed 1999). Both “grounds” and “property” suggest outdoor, exposed land, rather than enclosed spaces inside buildings. Even the definitions of “way” cited above refer to “paths” and “thoroughfares,” both of which are difficult to envision anywhere but outside.1 The majority’s extension of the concept of “right of way” to passageways and other areas inside buildings is quite radical. If the majority’s interpretation is taken to its logical conclusion, then escalators, lobbies, and hallways in public buildings all are public rights-of-way. PCC 14.24.030 would then be given an extensive application that quite exceeded the city council’s intentions as evidenced by the plain meaning of the term “right of way.”

The majority concedes that, given that the ordinance at issue forbids drinking alcohol upon “any street, sidewalk, or other public right of way,” PCC 14.24.030(A) (emphasis *104added), the doctrine of ejusdem generis is applicable, and, as a consequence, public rights-of-way that are subject to the ordinance must have the same characteristics as streets and sidewalks.2 174 Or App at 99. However, it proceeds to misapply the principle, as demonstrated by a review of the Supreme Court’s decision in Groshong v. Mutual of Enumclaw Ins. Co., 329 Or 303, 985 P2d 1284 (1999).

In Groshong, the Supreme Court applied the doctrine to a list of items in an insurance policy. The policy covered “wrongful entry or eviction, or other invasion of the right to private occupancy.” Groshong, 329 Or at 306 (internal quotation marks omitted). The question before the court was whether housing discrimination directed at a prospective renter was an other invasion of the right to private occupancy. Id. at 312-13. In holding that it was not, the court noted that both wrongful entry and eviction required the existence of an established possessory interest and that the victim of the housing discrimination at issue had no such interest. Because of that difference, the court held that suffering housing discrimination was not an injury of like kind and character as wrongful eviction and wrongful entry and that it was therefore not covered by the policy. Id. at 313-14. Similarly, streets and sidewalks have the shared characteristics of being outdoor thoroughfares over which people travel in various modes. Terminal areas in airports, in contrast, are not thoroughfares, and they are not outdoors. People do travel within them, but that is true of the interior space of most public braidings. Therefore, under the Supreme Court’s holding in Groshong, as well as under the majority’s own analysis of the requirements of the ejusdem generis doctrine, an airport terminal area is not a public right-of-way, and defendant’s conduct was not proscribed by the ordinance.

Because I conclude that a public terminal area in a public airport is not a public right-of-way, I would reverse defendant’s conviction for violating PCC 14.24.030. Accordingly, I respectfully dissent.

Indeed, the implicit limitation to outdoor passageways in the above definitions makes sense. It is difficult to imagine implying in law or buying or condemning the right to walk through another person’s building at one’s leisure.

As defined by the majority, ejusdem generis is the principle that “an open-ended ‘catch-all’ term at the end of a list of specific items is intended to encompass only like items,” 174 Or App at 99 (citations omitted).