Defendant was convicted of obstructing governmental or judicial administration based on her oral refusal to cooperate in being photographed after she was arrested and lodged in a county jail. Under ORS 162.235(1), a person commits the offense of obstructing governmental or judicial administration if he or she "intentionally obstructs, impairs or hinders the administration of law or other governmental or judicial function by means of intimidation, force, physical or economic interference or obstacle." The issue that this case presents is whether defendant's refusal to cooperate was a "means of * * * physical * * * interference or obstacle" within the meaning of the statute. The Court of Appeals concluded that it was and affirmed defendant's conviction. State v. Gaines, 211 Or.App. 356, 361, 155 P.3d 61, modified and adh'd to as modified on recons, 213 Or.App. 211, 159 P.3d 1291 (2007). As we will explain, we hold that a person's mere failure to act in compliance with a lawful directive, without more, does not violate the statute. We therefore reverse the decision of the Court of Appeals and the judgment of conviction.
Because this issue arises on defendant's motion for judgment of acquittal, we state the facts in the light most favorable to the state. State v. Wolleat, 338 Or. 469, 471, 111 P.3d 1131 (2005). In January 2004, defendant was arrested and lodged in a county jail on an unrelated charge. Defendant remained incarcerated at that facility when, on March 7, 2004, Corrections Sergeant Jacobs reviewed prisoner booking photographs and discovered that defendant's file contained only a profile photograph and not also a frontal photograph of her. Jacobs informed defendant, who was in her cell, that she needed to proceed to the booking area (which was in the basement) to take that photograph. Defendant orally refused and became teary-eyed and uncooperative. Jacobs decided not to force the issue at that time. Instead, he told defendant that he would speak with her about it the next time that he visited her housing unit in the jail.
One week later, Jacobs again approached defendant and told her that she needed to go to the basement to have the photograph taken. Defendant again orally refused and, in addition, asked to speak to her attorney. To avoid using physical force, Jacobs again did not press the issue. Jacobs instead told defendant that she could first speak to her attorney and that they would resolve the issue the next time that he was in her housing unit.
On March 20, 2004, Jacobs approached defendant a third time. Defendant told Jacobs that her attorney had advised her that Jacobs could not lawfully take her photograph unless he produced the relevant law in writing. Jacobs informed defendant that he was not obligated to produce policies or laws. He then gave defendant a direct order to proceed to the basement to have her photograph taken. For a third time, defendant voiced her unwillingness to comply. In response, Jacobs informed defendant that he was placing her on disciplinary status until
After defendant's third refusal, Jacobs checked the computer reports and discovered that defendant also had refused to cooperate during the initial booking process. According to those reports, defendant had turned her head to the side each time that the officers had attempted to take a frontal photograph of her. The reports also indicated that the officers had been required to resort to physical force to fingerprint defendant and dress her in jail garments. Due to defendant's resistance, the booking process took 17 hours to complete, instead of the normal three hours or so.
Given defendant's conduct during the initial booking process, Jacobs concluded that defendant likely would respond with physical resistance if Jacobs tried to force her to have her photograph taken. Rather than prompt a physical confrontation with defendant, Jacobs charged defendant by information with obstructing governmental or judicial administration, in violation of ORS 162.235(1). The information alleged that defendant, "on or about March 21, 2004," did "unlawfully and intentionally obstruct, impair and hinder the administration of law by means of physical interference and obstacle."
Defendant was tried in a bench trial. Jacobs's testimony for the state established that defendant orally had refused to go to the booking area to be photographed and took no action to cooperate. Beyond that oral refusal and her physical inaction, the state produced no evidence of any physical resistance on defendant's part. At the close of the state's evidence, defendant moved for a judgment of acquittal, arguing that her oral refusal to go to the booking area in the basement to have her picture taken did not constitute a means of "physical * * * interference or obstacle" within the meaning of ORS 162.235. The trial court denied the motion. At the conclusion of the trial, the court found defendant guilty of the charge.
On appeal, defendant challenged that ruling, and the Court of Appeals affirmed. The Court of Appeals reasoned that "defendant's failure to move when ordered to do so obstructed Jacobs's efforts to take her photograph `by means of * * * physical [* * *] interference  or obstacle.'" Gaines, 211 Or.App. at 361, 155 P.3d 61. We allowed defendant's petition for review.
The question presented—i.e., whether defendant's conduct, as described, constituted a "means of * * * physical * * * interference or obstacle" within the meaning of ORS 162.235(1)—poses an issue of statutory interpretation. The methodology that Oregon courts follow in interpreting statutes is a distillation of settled interpretative principles, some of which have been codified in Oregon statutes since early statehood and others of which have been articulated in this court's case law for many years. Mastriano v. Board of Parole, 342 Or. 684, 691, 159 P.3d 1151 (2007). The methodology, as outlined in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993), entails three sequential levels of analysis to determine the legislature's intent. First, the court examines the text and context of the statute. Id. at 610-11, 859 P.2d 1143. If the legislature's intent is obvious from that first level of analysis, "further inquiry is unnecessary." Id. at 611, 859 P.2d 1143. "If, but only if," the legislature's intent is not obvious from the text and context inquiry, "the court will then move to the second level, which is to consider legislative history[.]" Id. at 611, 859 P.2d 1143.
As a preliminary matter, defendant argues that this court's so-called "PGE methodology" for interpreting statutes has been legislatively changed. Specifically, relying on
ORS 174.020 codifies—as it has for many years—the "cardinal rule" of statutory construction that a court "shall pursue the intention of the legislature if possible." See Holman Trf. Co. et al. v. Portland et al, 196 Or. 551, 564, 249 P.2d 175 (1952) (so characterizing the rule when it was codified at OCLA § 2-217). In 2001, the legislature added provisions directed specifically to the court's consideration of legislative history. As amended (and with the 2001 additions italicized), the statute provides:
ORS 174.020 (emphasis added).
A threshold question for our resolution, then, is: What did the legislature intend with the addition of those provisions? That question, paradoxically, requires us to interpret the 2001 amendments, which we ordinarily would do using the PGE methodology that defendant asserts the amendments have changed. We thus are faced with a conundrum—if we follow the settled PGE methodology to determine whether the 2001 amendments changed that methodology, and if the text and context are sufficiently plain to preclude consideration of legislative history, we run afoul of what ORS 174.020 requires, if defendant's argument is correct. For the limited purpose of resolving the meaning of the amendments to the statute, therefore, we begin with text and context, as we ordinarily would do. We then also consider, regardless of any lack of ambiguity in that text, the legislative history pertaining to what the legislature intended with the 2001 amendments to the statute.
Textually, paragraph (1)(b) of ORS 174.020 provides that a party "may" offer legislative history to the court to assist in the construction of a statute. Subsection (3) complements that provision. It states that the court "may" limit its consideration of legislative history to what the parties have offered and declares that the court "shall" give the legislative history the weight that the court "considers to be appropriate." Those 2001 amendments to the statute are reasonably straightforward and provide, in effect, for three things. First, a party is statutorily entitled, but not obligated, to offer the court legislative history. Second, the court permissibly may limit its consideration to that history; the court is not obligated to independently research legislative history. Third, the court may give whatever weight it deems appropriate to the legislative history that a party offers.
In those respects, the 2001 amendments would seem to work little change to preexisting practices. No procedural rule or practice in the past has limited a party's ability to present legislative history to a court, ambiguity or no ambiguity. Nothing has ever compelled the court—other than its own resolve to correctly discern legislative intent—to go beyond the legislative history proffered by the parties. And, the use that the courts have made of legislative history traditionally has been for the courts to decide.
Relying on legislative history, however, defendant argues that the 2001 amendments require a court to consult legislative history at the first level—that is, along with text and context, and to give that legislative history "weight equal to the weight given to text
First, the legislature intended that, if a party proffered legislative history, a reviewing court not only would be free to consult that history together with text and context, but that the court in fact would do so. In that regard, a key sponsor of the bill, Representative Max Williams, testified that the 2001 amendments were intended to overcome the "harsh and limiting construct" of the PGE methodology of interpretation, which that legislator (and perhaps others) viewed as precluding the court's consideration of legislative history unless and until the court identified an ambiguity in a statute's text. Tape Recording, Senate Committee on Judiciary, HB 3677, May 15, 2001, Tape 139, Side A (statement of Rep. Max Williams). Williams specifically stated that the amendments were intended to "rais[e] the court's ability to consider legislative history to the same level, not above, but to the same level as text and context." Id.; see also Tape Recording, House Committee on Judiciary, HB 3677, Apr. 18, 2001, Tape 77, Side A (statement of Rep. Max Williams) (similarly explaining that the bill would require a court to consider legislative history "at the same level as text and context"). In that respect, the amendments were intended to "effectuate some minor change to PGE [.]" Tape Recording, House Committee on Judiciary, Apr. 18, 2001, Tape 77, Side A (statement of Rep. Max Williams).
Second, and equally important, the legislative history confirms that the legislature intended the courts to retain full discretion to determine what weight—if any—to give to proffered legislative history in analyzing a statute's meaning. Instead, "the weight to be given to the legislative history will be what the court considers to be appropriate." Tape Recording, House Committee on Judiciary, HB 3677, Apr. 18, 2001, Tape 77, Side A (statement of Rep. Max Williams); see also Tape Recording, Senate Committee on Judiciary, May 15, 2001, Tape 139, Side A (statement of Rep. Max Williams). "To mandate more," Williams cautioned, "would be both problematic and imprudent. We want judges to judge." Id. The legislative history thus makes it clear that the legislature specifically intended not to mandate or intrude on that traditional province of the judicial branch. The history therefore refutes, rather than supports, defendant's position that the 2001 amendments were intended to mandate that equal weight be given to text, context, and legislative history.
Finally, the legislative history demonstrates the complementary aspects of the legislature's dual objectives of raising consideration
The legislative history supporting the 2001 amendments to ORS 174.020 does not alter our understanding of the statute's meaning, as informed by the text itself. The legislative history does, however, illuminate the problem that the legislature intended the amendments to ORS 174.020 to solve—i.e., those amendments would remove the barrier that the PGE methodology placed on the consideration of legislative history and instead place legislative history on a par with text and context. The legislature thus intended to ease the unyielding "if, but only if" constraint that PGE appeared to have placed on the court's ability to even review and consider otherwise pertinent legislative history. See PGE, 317 Or. at 611, 859 P.2d 1143 ("If, but only if, the intent of the legislature is not clear from the text and context inquiry, the court will then move to the second level, which is to consider legislative history[.]"); see also Owens v. Maass, 323 Or. 430, 449, 918 P.2d 808 (1996) (Unis, J., dissenting) (majority errs in finding an ambiguity in the statutory text; because there is no ambiguity, the analysis must stop at the first level of PGE, and legislative history should not be considered). Beyond that, the legislature left it to judicial discretion to decide what value to place on legislative history proffered by a party.
To be sure, in practice, this court may not always have adhered strictly to the unyielding sequential methodology that PGE announced. At least some of this court's cases have reviewed and considered the legislative history, without identifying an ambiguity, and sometimes after concluding affirmatively that there was none.
This court remains responsible for fashioning rules of statutory interpretation that, in the court's judgment, best serve the paramount goal of discerning the legislature's intent. In that regard, as this court and other authorities long have observed, there is no more persuasive evidence of the intent of the legislature than "`the words by which the legislature undertook to give expression to its wishes.'" State ex rel Cox v. Wilson, 277 Or. 747, 750, 562 P.2d 172 (1977) (quoting U.S. v. American Trucking Ass'ns., 310 U.S. 534, 542-44, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940)). Only the text of a statute receives the consideration and approval of a majority of the members of the legislature, as required to have the effect of law. Or. Const., Art. IV, § 25. The formal requirements of lawmaking produce the best source from which to discern the legislature's intent, for it is not the intent of the individual legislators that governs, but the intent of the legislature as formally enacted into law:
Thomas M. Cooley, A Treatise on the Constitutional Limitations 130 (1868). For those reasons, text and context remain primary, and must be given primary weight in the analysis. Nothing in the 2001 amendments to ORS 174.020 purports to require the courts to retreat from that long-standing recognition.
We therefore conclude that, in light of the 2001 amendments to ORS 174.020, the appropriate methodology for interpreting a statute is as follows. The first step remains an examination of text and context. PGE, 317 Or. at 610-11, 859 P.2d 1143. But, contrary to this court's pronouncement in PGE, we no longer will require an ambiguity in the text of a statute as a necessary predicate to the second step—consideration of pertinent legislative history that a party may proffer. Instead, a party is free to proffer legislative history to the court, and the court will consult it after examining text and context, even if the court does not perceive an ambiguity in the statute's text, where that legislative history appears useful to the court's analysis.
With regard to this changed mathodology, we clarify that a party seeking to overcome seemingly plain and unambiguous text with legislative history has a difficult task before it. Legislative history may be used to confirm seemingly plain meaning and even to illuminate it; a party also may use legislative history to attempt to convince a court that superficially clear language actually is not so plain at all—that is, that there is a kind of latent ambiguity in the statute.
With that understanding of ORS 174.020, and the role it gives—and does not give—to legislative history in the court's task of interpreting statutes, we turn to the merits of defendant's challenge to her conviction. ORS 162.235(1), which defines the offense of obstructing governmental administration, provides:
The principal dispute between the parties is over the meaning of the terms "physical interference or obstacle."
Defendant, for her part, does not dispute that, when she refused to accompany the officer to the booking area, she obstructed, impaired, or hampered the performance of a governmental function. In defendant's view, however, she did not do so through a physical means. Defendant urges that the statute requires some form of affirmative physical action by a defendant and that it is not enough that a defendant "verbally" refuses to comply with an order to take physical action.
The state counters that defendant did more in this case than merely verbally refuse to do something; she in fact did not move her body from one place to another. The state emphasizes that defendant could have said nothing or could have agreed to go to the booking area and, under the state's theory, she still would have violated the statute based on her failure to physically go to the booking area when told to do so.
The Court of Appeals agreed with the state's line of argument, reasoning that "[a] failure to move one's body can fairly be said to `relate to the body.'" Gaines, 211 Or.App. at 360, 155 P.3d 61. The court explained:
Id. at 360-61, 155 P.3d 61.
We begin—as exercises in statutory interpretation always should begin— with the text of the statute. The legislature did not define any of the terms in the phrase "physical interference or obstacle." They are, however, terms of common usage. See PGE, 317 Or. at 611, 859 P.2d 1143 (court ordinarily presumes that legislature intended terms to have plain, natural, and ordinary meaning). "Interference" commonly means an act that meddles in or hampers an activity or process.
So understood, mere inaction, without more, would not seem to qualify. More to the point for purposes of this case, a person who takes no action to assist a governmental official by moving from point A to point B, under circumstances where that person is not physically blocking or in the way of the official, would not be a "physical interference or obstacle," as those words are ordinarily understood. It runs counter to the common and natural meaning of those words to conclude that something or someone is a "physical interference or obstacle" to a governmental function because that someone or something is not where the government needs someone or something to be, rather than because the someone or something is tangibly in the government's way.
We thus initially conclude, based on our examination of the text of ORS 162.235(1), that defendant has the better of the argument—that is, for a defendant to obstruct a governmental function by means of a "physical interference or obstacle" requires some conduct or act on a defendant's part that results in a bodily or material obstruction to a governmental activity or process. The text does not support a conclusion that mere inaction or mere lack of cooperation is within the statute's scope.
The state, however, cites two other criminal statutes that, the state argues, provides contextual support for its position. The first is ORS 162.247(1)(b), which prohibits "[i]nterfering with a peace officer" and provides, in part, "A person commits the crime of interfering with a peace officer or parole and probation officer if the person, knowing that another person is a peace officer * * * [r]efuses to obey a lawful order by the peace officer * * *." The other statute is ORS 162.315(1), which prohibits "[r]esisting arrest," and provides, in part, "A person commits the crime of resisting arrest if the person intentionally resists a person known by the person to be a peace officer or parole and probation officer in making an arrest." In both statutes, the legislature expressly enacted an exception for "passive resistance" and provided that such resistance does not violate the statute. ORS 162.247(3)(b); ORS 162.315(2)(c). Relying on those express exceptions, the state urges that the legislature's failure to include a similar express exclusion in ORS 162.235 must be viewed as a purposeful omission, with the result that passive resistance falls within the conduct that the statute proscribes.
The state's reliance on those other statutes is misplaced, however. Neither statute is limited to "physical" conduct. The offense of interfering with an officer requires only that the person refuse to obey a lawful order, not that he or she disobey in a physical way. Likewise, the offense of "resisting arrest" requires only that someone intentionally "resists" arrest, and "resists" is defined to include "physical force or any other means * * * includ[ing] behavior clearly intended to
Consistently with ORS 174.020(1)(b), as we earlier explained, we do not end our analysis at text and context, however. We next consider the legislative history that the parties have proffered, along with any pertinent legislative history that we independently have examined. We again caution that, in considering legislative history, we will not lightly disregard our understanding of the statute based on the common and natural meaning of its text and context. Stated another way, highly probative and persuasive legislature history would have to inform our understanding of the meaning of the words for us to conclude that "physical interference or obstacle" includes someone's failure, without more, to cooperate by physically assisting a governmental official. In this instance, as we will explain, the legislative history neither reveals a latent ambiguity in the words nor contradicts our understanding of the import of the words themselves. To the contrary, the legislative history corroborates the meaning that the text itself conveys.
ORS 162.235 was enacted as part of the 1971 Legislative Assembly's comprehensive revision of Oregon's criminal code. That revision began with the creation, in 1967, of the Criminal Law Revision Commission. State v. Garcia, 288 Or. 413, 416, 605 P.2d 671 (1980) (describing history of 1971 criminal code revision). As this court most recently has explained:
State v. Lonergan, 344 Or. 15, 25 n. 3, 176 P.3d 374 (2008) (Kistler, J., dissenting; citation omitted); see also State v. Woodley, 306 Or. 458, 462, 760 P.2d 884 (1988) (unless a contrary indication exists, court assumes that the legislature accepted the Commission's explanations for its drafting choices); State v. Knowles, 289 Or. 813, 822, 618 P.2d 1245 (1980) (the extensive Commission minutes, including the commentaries to the preliminary drafts, are a rich source of legislative history); Garcia, 288 Or. at 416, 605 P.2d 671 (same).
The commentary to the preliminary draft of what would later become ORS 162.235 explained that the statute was based on a composite of the parallel provisions of Michigan, New York, and the Model Penal Code. Criminal Law Revision Commission, Article 24, Preliminary Draft No. 1, June 1969, p. 11 ("Preliminary Draft No. 1"). The statute was intended to be a "general provision directed at suppression of the unlawful obstruction of governmental functions," id. at 5, which would serve as a residual provision that would reach the obstruction of governmental functions not covered by more specific
To temper the provision's breadth, however, the drafters incorporated significant limitations as well. As the commentary to the Model Penal Code characterized it, the provision was intended to be an "amalgam of generality and constraint." Model Penal Code, comment 2 at 203. One significant constraint is that the provision requires a person to have acted intentionally and with a conscious objective to obstruct a governmental function. Also, the provision requires success—that is, a governmental function actually must be hindered or impeded to some degree. Preliminary Draft No. 1 at 11; Model Penal Code, comment 2 at 204. Finally, and most significantly for purposes of this case, the provision specifies and limits the means by which the obstruction is created. Those prohibited means include, among others, "physical interference or obstacle." The comments to the Model Penal Code explain that the point of that wording was to ensure that the provision included more than violence and force, but was still limited to some form of physical action: "[T]he section [through the phrase "physical interference or obstacle"] reaches any affirmative act of physical interference not explicitly excepted, whether or not violence is involved." Model Penal Code, comment 3 at 204.
In some tension with that observation, the drafters of Oregon's provision suggested that, in the right circumstance, the necessary "physical" act might be a "passive indirect, or circuitous" one. Preliminary Draft No. 1 at 7. Specifically, the preliminary draft quoted 48 ALR 749 (1927), a legal annotation that made the following observation about the reach of statutes around the country that prohibited resisting or obstructing a police officer in the line of duty:
In all events, later in the preliminary draft, the drafters made clear that a mere refusal to act or to obey an order would not suffice to violate the obstruction statute. The drafters made that policy choice by following Michigan's lead in not including, contrary to the approach of the Model Penal Code and New York, an "unlawful act" as an additional means of obstructing a governmental function. The drafters explained:
Preliminary Draft No. 1 pp. 10-11 (omissions in original).
Those parts of the legislative history are, in our view, the most informative for purposes of the issue before us.
We therefore hold that mere inaction, as a matter of law, does not amount to "physical interference or obstacle" within the meaning of ORS 162.235(1). The statute is not designed to compel people to cooperate with government any time that government needs them to physically move their body from one locale to another for government to most efficiently do its job.
In this case, defendant passively refused to accompany the officer from her cell to the booking area; she did nothing more. That mere refusal was not enough to convict her of a violation of ORS 162.235(1).
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
The court has also consulted the legislative record, without first declaring the text to be ambiguous, to determine whether the legislature modeled the statute on another jurisdiction's legislation. See Nakashima v. Board of Education, 344 Or. 497, 512 n. 18, 185 P.3d 429 (2008) (court examined legislative history to confirm that federal law was the source of distinctive terminology in statute); O'Donnell-Lamont and Lamont, 337 Or. 86, 105, 91 P.3d 721 (2004), cert. den., 543 U.S. 1050, 125 S.Ct. 867, 160 L.Ed.2d 770 (2005) (addressing legislative history of statute, without identifying a textual ambiguity, to consider amendments made by the legislature to conform to federal case law developments).
Testimony, House Committee on Judiciary, HB 3677, Apr. 18, 2001, Tape 77, Side A (statement of Justice W. Michael Gillette).
The legislature frequently uses the term "bodily" when it intends to describe only acts of or relating to the body. See, e.g., ORS 161.085(2) ("voluntary act" includes a "bodily movement" performed consciously); ORS 167.062(5)(a) ("Live public show" means a public show in which human beings, animals, or both "appear bodily" before spectators or customers). The context in which the term "physical" is used here—i.e., obstructing governmental functions— would be an odd one for the legislature to intend to give a narrow meaning to the term "physical." That is, it would seem to all but frustrate the purpose of the statute for the legislature to prohibit acts in which a person uses his or her body to obstruct a governmental function, but not prohibit the use of a material object or other tangible means to accomplish the same end (and indeed, to accomplish it as well or possibly better). As the legislative history that we later examine confirms, the legislature intended the term "physical" to have a broad meaning in this statutory context, rather than be limited to "bodily" interferences.
Michigan Revised Criminal Code, § 4505 (1967) 326.