Sunflower v. Bladorn

LANDAU, J.,

dissenting.

This case is about the rules of statutory construction and whether this court will follow them. At issue is the meaning of ORS 90.380(1), which uses the statutory term “posting” a dwelling that fails to meet health and safety standards. Usually, “posting” refers to nailing or otherwise affixing a notice to a wall or a post. That is, in fact, how the term is used elsewhere in the statute; indeed, it is how the term is used throughout the Oregon Revised Statutes. It is also how the term is used in relevant housing authority regulations and is, according to the legislative history, how the drafters of ORS 90.380(1) and those who enacted it used the term, as well.

The concurrence nevertheless concludes that the term refers merely to a housing authority “determination” that a dwelling fails to meet health and safety standards, regardless of whether the housing authority tells anyone *219 about that determination. On its face, the concurrence’s reading of the statute is contrary to the ordinary meaning of its terms. In fact, its interpretation of the term “posting,” so far as I can tell, is entirely unprecedented. In arriving at its novel reading of the statute, the concurrence cites several rules of statutory construction, but then ignores each of them. Instead, it ascribes to the legislature a broad purpose and then forces the language to meet that purpose. Such analysis cannot be reconciled with any of the rules of statutory construction. I therefore dissent.

I begin with how the statute should have been interpreted in this case and then turn to a critical analysis of the concurrence’s interpretation. ORS 90.380(1) provides:

“If a governmental agency has posted a dwelling as unlawful to occupy due to the existence of conditions that violate state or local law and materially affect health or safety, a landlord shall not enter into a rental agreement for the dwelling unit until the conditions leading to the posting are corrected.”

The statute thus prohibits landlords from renting premises that have been “posted” as unlawful to occupy. The question is what “posted” means.

The analytical process for arriving at an answer is well-known. We are to begin with the ordinary meaning of the disputed term. See, e.g., Smurfit Newsprint Corp. v. Dept. of Rev., 329 Or 591, 597 , 997 P2d 185 (2000) (“At the first level of analysis, we examine the text and context, giving words of common usage their plain, natural, and ordinary meaning.”); State v. Higgins, 165 Or App 442, 445 , 998 P2d 222 (2000) (“[w]ords of common usage should be given their ‘plain, natural and ordinary meaning’ ”); State v. Perry, 165 Or App 342, 347 , 996 P2d 995 (2000) (“The words of a statute are given their plain, natural and ordinary meaning.”); Young v. State of Oregon, 161 Or App 32, 36 , 983 P2d 1044 , rev den 329 Or 447 (1999) (“[B]ecause the term ‘labor’ is not modified, is not defined anywhere in the statute or related statutes, and is a word of common usage, we must ascribe to it, its plain, natural and ordinary meaning.”).

The rule is frequently stated in terms of a presumption, that we are bound to give a statutory term its ordinary *220 meaning unless there is clear evidence that the legislature intended some other meaning. See, e.g., Wyatt v. Body Imaging, P.C., 163 Or App 526, 533 , 989 P2d 36 (1999), rev den 330 Or 252 (2000) (“we begin with [statutory text], giving the textual terms their ordinary meanings, unless the statutes or their contexts make clear that a different meaning was intended”); Welliver Welding Works v. Farmen, 133 Or App 203, 208 , 890 P2d 429 (1995) (“We are generally constrained to assume that the legislature intended the words of a statute to be given their common, ordinary meaning unless there is a clear indication that some other meaning was intended.”); SAIF v. Meredith, 104 Or App 570, 574 , 802 P2d 95 (1990) (“in the absence of a clear legislative intent to the contrary, the court is bound to give to the words of a statute their natural and ordinary meaning”).

If the language of the statute gives no clear answer one way or the other — that is, if the language is reasonably capable of more than one construction — we are permitted to examine legislative history for extrinsic evidence of which among the reasonable possibilities the legislature intended. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12 , 859 P2d 1143 (1993).

Whether or not a term is given its plain, ordinary meaning, we always are constrained by the reasonable construction of the language that the legislature actually enacted. See, e.g., Dean Warren Plumbing v. Brenner, 150 Or App 422, 428 , 946 P2d 356 (1997), rev dismissed 327 Or 174 (1998) (“ ‘we are constrained by the reasonable construction of the language that the legislature actually enacted’ ”) (quoting Deluxe Cabinet Works v. Messmer, 140 Or App 548, 553 , 915 P2d 1053 (1996)); Tee v. Albertson’s, Inc., 148 Or App 384, 389 , 939 P2d 668 (1997), rev den 326 Or 465 (1998) (same); Fernandez v. Board of Parole, 137 Or App 247, 252 , 904 P2d 1071 (1995) (same). In other words, even if a term is not given its plain, ordinary meaning, there are limits to what we can say that a statute means, regardless of what the legislature intended.

This is not a rule of mechanical literalism. No word is so crystal clear as to avoid some fuzziness around the edges *221 in some contexts. But there are — indeed, there must be— limits. In consequence, the courts have held that when the legislature uses language that cannot reasonably be construed to accomplish a particular purpose, we are without authority to go beyond the boundaries of the reasonable construction of the language actually enacted. See, e.g., Young, 161 Or App at 39 (declining to read statute to exempt white collar workers from overtime law because “there is no principled way” to read the existing statutory language to say that); Messmer, 140 Or App at 554 (declining to read statute to change existing law because “the language of the statute cannot reasonably be read” to do that).

Those limits are generally determined by reference to dictionaries, which frequently list wide ranges of definitional possibilities. See, e.g., State v. Holloway, 138 Or App 260, 265 , 908 P2d 324 (1995) (dictionaries “suggest what the legislature could have meant by the terms it enacted”) (emphasis in original). The way the term is used in context, along with other relevant evidence of legislative intent, establishes which among the reasonable possibilities reflected in the dictionary is the correct one. See, e.g., Steele v. Employment Department, 143 Or App 105, 113 , 923 P2d 1252 (1996), aff'd 328 Or 292 (1999) (“[t]he subject and purpose of the statute, together with the statutory language that surrounds the word in question, narrow the array of definitional choices that dictionaries alone afford”).

Thus, according to settled rules of statutory construction, the proper method of analysis is as follows. First, ascertain the range of possible meanings of the term “post” or “posting.” Second, examine the context to determine whether, from among the definitional possibilities, the legislature clearly intended one other than the plain, ordinary meaning. Third, if examination of the text in context does not reveal the answer, examine the legislative history and, if necessary, other aids to construction. The ordinary meaning of the term must be applied unless there is clear evidence that the legislature intended one of the other definitions. In all events, the interpretive choices are limited by the reasonable construction of the language actually enacted.

*222 I hasten to emphasize that what I have described are well-settled rules of construction; I did not make them up. They are not necessarily the rules of interpretation that I would propose were we writing on a clean slate. But we are not writing on a clean slate.

In this case, the verb “to post” is defined as follows:

“1: to affix (as a paper or bill) to a post, wall, or other usual place for public notices: PLACARD <~the notice on the bulletin board* <signs are ~ed throughout the state* 2a: to publish, announce, or advertize by or as if by the use of a placard <the students’ grades are ~ed> <the yardmaster... ~s the track number —Monsanto Mag.> <the -ed price for ... crude oil —N.Y. Times> b: to denounce (as a person or institution) by public notice <~ed the theater as unfair —Upton Sinclair* <harry and - a man for his losings — Rudyard Kipling* c: to enter (a name) on a public listing <nurses -ed for night duty* <~ed missing in the flood —John Blight* d: to forbid (property) to trespassers under penalty of legal prosecution by notices placed along the boundaries <~ a brook* <wandering around -ed property —Ronald Sercombe* * *

Webster’s Third New Int’l Dictionary, 1771 (unabridged ed 1993). Black’s Law Dictionary similarly defines the term to mean:

“To bring to the notice or attention of the public by affixing to a post or wall, or putting up in some public place; to announce, publish or advertise as by use of [a] placard.”

Black’s Law Dictionary, 1049 (5th ed 1979).

There can be no debating that the plain, natural, and ordinary meaning of “to post” is the first one, that is, to nail a piece of paper to a post, wall, or similar place of public notice. The question is whether there is any indication in the text or context of the statute that the legislature clearly intended that the term “posting” in ORS 90.380(1) mean something other than what it usually means.

I begin with the section in which the term is used. It provides that,

“[i]f a governmental agency has posted a dwelling as unlawful to occupy due to the existence of conditions that violate state or local law and materially affect health or *223 safety, a landlord shall not enter into a rental agreement for the dwelling unit until the conditions leading to the posting are corrected.”

ORS 90.380(1). Certainly, the sentence makes perfect sense if the plain, natural, and ordinary definition of the term “post” is applied. If a government has affixed a notice of unhabitability to a dwelling, the landlord may not rent it out until the conditions have been corrected.

I turn next to the balance of the landlord-tenant statute. ORS 90.750, which describes the rights of tenants to engage in “canvassing” other tenants in a facility, provides, in part:

“As used in this subsection, ‘canvassing’ includes door-to-door contact, an oral or written request, the distribution, the circulation, the posting or the publication of a notice or newsletter or a general announcement or any other matter relevant to the membership of a tenants’ association.”

ORS 90.750(3) (emphasis added). Clearly, “posting” is used in its ordinary sense in that statute. Strictly speaking, of course, ORS 90.750(3) is not “context” for the enactment of ORS 90.380(1), as it was not enacted until several years later. Stull v. Hoke, 326 Or 72, 79-80 , 948 P2d 722 (1997). But it is still relevant to understanding how the legislature uses the term. See City of Eugene v. Nalven, 152 Or App 720, 725-26 , 955 P2d 263 , rev den 327 Or 431 (1998) (“We consider other statutes in pari materia, if not strictly speaking as ‘context’ of the statute — because the other statutes were later enacted— then certainly because of our obligation to give full meaning and effect to all relevant statutory provisions.”) (citation omitted). Indeed, the Supreme Court has held that we are to presume that “use of the same term throughout a statute indicates that the term has the same meaning throughout the statute.” PGE, 317 Or at 611 ; see also Racing Com. v. Multnomah Kennel Club, 242 Or 572, 584 , 411 P2d 63 (1966) (“the presumption is that the word was used to express the same meaning in both sections”).

I also note the broader context, that is, the manner in which the legislature uses the same term in other statutes. My research of the Oregon Revised Statutes reveals that the *224 legislature consistently uses the term “post” to refer to publicly displaying a physical notice. ORS 624.085(3)(b), for example, provides that, if the Assistant Director for Health determines that closure of a restaurant or bed and breakfast facility is necessary to protect public health, the assistant director must “[p]ost a notice of closure upon the restaurant or bed and breakfast facility * * * in public view * * There can be no question that “post” means what it usually means, that is, affixing a notice in a public place. Similarly, in ORS 3.311(2), the clerk of a trial court is required to “post a notice of the time and place of the trial in a conspicuous place * * Likewise, in ORS 36.420(1), the clerk is required to “post a notice of the time and place” of an arbitration hearing “in a conspicuous place.” In ORS 87.045(2), a contractor is required to “post and record a completion notice,” and that posting must occur “in some conspicuous place upon the land or upon the improvement situated thereon.” ORS 87.045(3). In each case, the term is used in the same sense: affixing a notice where it can be seen by the public. See also ORS 194.162(4) (notaries must “post the notice” that he or she is not licensed to practice law “in a conspicuous place in the notary’s place of business”); ORS 203.079(l)(a) (authorities may not remove homeless persons from established camping site until they “post a notice”); ORS 279.350(4) (contractors and subcontractors engaged in public works contracts must “keep the prevailing wage rates posted in a conspicuous and accessible place”); ORS 342.700 (a school district’s sexual harassment policy “shall be posted” on a sign in all grade 6 through 12 schools); ORS 441.067(2) (owner of licensed long-term care facility “shall post” recent inspection reports, procedures for filing complaints); ORS 443.755(3)(b) (owner of licensed adult foster homes “shall post the inspection report in the entry or equally prominent place”); ORS 459.426(1) (any person selling new lead-acid batteries “shall post in each area where lead-acid batteries are sold a clearly visible and legible sign” regarding proper disposal). 1

*225 I also review the regulatory context in which the statute was enacted. See Fisher Broadcasting, Inc. v. Dept, of Rev., 321 Or 341 , 898 P2d 1333 (1995) (examining existing tax regulations as context for enactment of uniform tax act). ORS 90.380(1) was enacted in 1983. Or Laws 1983, ch 356. 2 The contemporaneous City of Portland housing regulations, for example, drew a clear distinction between merely determining that a building is unsafe and “posting” it as such. Indeed, the regulations drew a distinction between merely providing notice and “posting” it:

“If * * * [a] building official finds [a building] to contain one or more substandard conditions, as defined in this title, he shall, in writing, notify the owner * * * of the substandard conditions.

“Should the building official find the existence of one or more substandard conditions to the extent that an immediate danger is posed to the health, safety or property of the occupants, the owner, or the general public, he may order the residential property to be vacated forthwith. If the building official orders the property vacated, he shall post a copy of the order to vacate on or near the main entrance to the main building and serve such order on the owner or his agent.”

City of Portland Housing Ordinance § 29.04.050 (adopted September 29,1979) (emphasis added). Thus, under the local housing regulations, a notice was “posted” only if the substandard condition was dangerous enough to require immediate vacating of the premises. And “posting” plainly refers to affixing a physical notice “on or near the main entrance” of the premises. 3

*226 In light of the foregoing, it is difficult for me to understand how it can be contended that there is clear evidence that the legislature intended something other than the plain, natural, and ordinary meaning of the term “posting” to apply to ORS 90.380(1). To the contrary, all of the usual “first level” evidence of legislative intent clearly indicates that the legislature intended the term to mean what it usually means: The way the term is used in ORS 90.380(1) itself, the way the legislature uses it in the balance of the landlord-tenant statute, the way the legislature uses the term in every other statute, and the way that the term is used in the relevant regulatory context all point to the unremarkable proposition that the statute simply means what it says.

Because the text of the statute, properly considered in its context, admits of only one reasonable interpretation, I would end my analysis of ORS 90.380(1) at this point. But, because the concurrence ventures into the legislative history, I do so also; it only makes the legislature’s intentions clearer yet. ORS 90.380(1) was enacted by the 1983 Legislative Assembly. Apparently, it was drafted by Michael Marcus, then the Director of Multnomah County Legal Aid, and introduced as House Bill 2554. Before the House Judiciary Committee, Marcus offered written testimony that explained the purpose of the bill:

“HB 2554 is designed to address a fairly common problem: a landlord removes a notice posted by a code enforcement agency prohibiting reoccupancy of a dwelling and rents the dwelling unlawfully to an unsuspecting tenant.”

Written Testimony, House Judiciary Committee, HB 2554, April 21, 1983, Ex A (statement of Michael Marcus) (emphasis added). In his oral testimony to the committee, Marcus likewise explained:

“HB 2554 is designed to address a problem which is fairly common in Portland and, I understand, other urban areas. It is designed to deal with a situation in which a *227 rental unit becomes vacant and has been posted as unlawful to occupy by a code enforcement agency. Typically a red tag in Portland — other agencies use different forms — but the premises are quite prominently posted as unlawful to occupy because of code violations and against the code to reoccupy. It is very common, unfortunately, for owners of such buildings to remove the tag and to rent to new tenants. This bill is not designed to reach a tenant who is there at the time a problem arises [but] designed to reach illegal rerentals of buildings that have been posted.”

Tape recording, House Judiciary Subcommittee 2, HB 2554, April 21,1983, Tapes 259, Side B, and 260, Side A (statement of Michael Marcus). Marcus’s use of the term “posting” hardly could be clearer. It refers to a physical notice affixed to a public place. Indeed, it is typically a “red tag” in Portland and a different form in other cities.

The same understanding is reflected in the House floor debate. Representative Smith, for example, explained:

“This bill simply prohibits a landlord from entering into a rental agreement with someone after a premises has been red tagged. Red tagging basically is what a local government might do to a unit because it falls down under code violations and frankly shouldn’t be occupied.”

Tape recording, House Floor, HB 2554, May 12, 1983, Reel 12, Track 1 (statement of Representative Smith). Once again, the reference to “red tagging,” which, as Marcus explained, meant posting the premises with a written notice. Marcus gave the same explanation to the Senate Judiciary Committee:

“This bill is designed to respond to the scenario in which a landlord unlawfully removes a code enforcement notice prohibiting further occupancy because of code violations and rerents the apartment without curing those violations. The bill is only intended to address dwellings which become vacant and are then posted as unlawful to occupy.”

Written testimony, Senate Judiciary Committee, HB 2554, June 8,1983, Ex E (statement of Michael Marcus) (emphasis added). Again, the meaning of “posted” is clear. It refers, as it usually does, to the affixing of a physical notice where it can be seen by the public. The Senate Staff Measure Summary *228 repeats the explanation that Marcus provided: The problem the bill seeks to address is that “[landlords who have had their buildings posted for violations of housing or building codes have been known to remove the notice and rerent the premises.” (Emphasis added.)

Particularly in light of the regulatory context that I have mentioned, the references to “posting” and “removing the notice” seem quite clear. Recall that the Portland City Code that was in effect at the time the legislature considered HB 2554 drew a distinction between merely determining that a violation existed and “posting” premises as uninhabitable by affixing a notice on a wall or door. Taking such regulations into account, the concerns that Marcus identified about landlords removing a posted notice cannot be mistaken. Those concerns had to do with the removal of a physical posting affixed to a public place. There is absolutely no evidence in the legislative history that any witness, staff person, or legislator used the term “posting” in any sense other than its ordinary sense.

To summarize, then: The plain, natural, and ordinary meaning of the term “posting” refers to affixing a physical notice to a post, wall, or the like. That meaning is perfectly consistent with the phrasing of ORS 90.380(1). It is likewise consistent with the use of the term in other provisions of the statute, with the use of the term in other statutes, and with the use of the term in applicable regulations known to the legislature at the time of enactment. Moreover, the author of the bill that ultimately became ORS 90.380(1) explained quite clearly that “posting” a dwelling is synonymous with “red tagging” it, that is, affixing a red piece of paper (or a different form in some cities) to the door or wall of the dwelling. And legislators adopted that phrasing in their own discussions of the bill. Those are all sources of legislative intent that the rules of statutory construction require us to examine in determining the meaning of a disputed enactment. Every single one of them points to the same conclusion, namely, that the term “posting” means what it ordinarily means.

But the concurrence concludes otherwise, and it is to the rationale for that conclusion that I now turn. According to *229 the concurrence, to “post” a building as uninhabitable means merely to “determine” that it is uninhabitable. In arriving at that conclusion, the concurrence begins well enough, correctly identifying the objective of statutory construction as ascertaining the intended meaning of the statute and correctly noting that our first obligation is to examine the text of the statute in context. It even cites — although somewhat selectively 4 — portions of several dictionary definitions of the term “to post.” 168 Or App at 208. The problem is, having cited the foregoing rules of statutory construction, the concurrence promptly ignores all of them.

Consider, for example, how the concurrence refers to the ordinary meaning of the term. It acknowledges that “[t]he verb ‘posted’ in section (1) could be understood to refer to a notice affixed to a wall, such as to post a public notice.” 168 Or App at 208. But it never applies the rule that that definition must apply in the absence of clear evidence that the legislature intended otherwise. The closest the concurrence comes to explaining why it declines to apply the ordinary meaning of the term is to suggest that, when the legislature enacted an enhanced penalty for a landlord’s “knowing” violation of the statute, it implicitly suggested that the statute could be violated unknowingly, which, in turn, implicitly suggests that the term “posting” has nothing to do with notice, which, in turn, implicitly suggests that “posting” does not have to mean what it usually means. 168 Or App at 211.

To begin with, it is difficult for me to understand how stacking such inferences satisfies the clear statement rule that ordinarily applies. E.g., Meredith, 104 Or App at 574 (“in the absence of a clear legislative intent to the contrary, the court is bound to give to the words of a statute their natural and ordinary meaning”) (emphasis added). But aside from that, the concurrence’s reasoning is not logical. It simply does not necessarily follow that, because the statute imposes an enhanced penalty for knowing violations, the term “posting” cannot mean what it usually means.

*230 The fact is that the statute works perfectly well by giving its terms their ordinary meanings. A building may be posted by the ordinary means, and a landlord may rent it out either knowingly or unknowingly. If the building has been red tagged and the landlord knowingly rents it out nevertheless, then the landlord will be subject to the enhanced penalties that the statute provides. If the building has been red tagged and the landlord is not yet aware of that fact, then the enhanced penalties do not apply. That only makes sense. The purpose of “posting,” afterall, is to provide notice to the public, not the landlord.

Consider further that the concurrence, having cited the range of definitional possibilities, ultimately adopts none of them, opting instead for a definition of the term “posting” that is utterly original. In the process, it abandons the rule that there are limits to what courts can make statutory words to mean, that we are constrained by the reasonable definitions of the words actually enacted. E.g., Fernandez, 137 Or App at 252 (“we are constrained by the reasonable construction of language that the legislature actually enacted”).

Consider also the concurrence’s use of the legislative history. To begin with, it ignores the rule that it is not appropriate to resort to legislative history in the absence of an ambiguity. PGE, 317 Or at 611 (legislative history may be examined “[i]f, but only if’ there is ambiguity). Nothing in its opinion even purports to address, much less actually establish, the existence of more than one reasonable construction of the statutory language. Koitzsch v. Liberty Northwest Ins. Corp., 125 Or App 666, 669 , 866 P2d 514 (1994) (a statute is ambiguous if “it is capable of more than one reasonable interpretation”).

Even more perplexing is the concurrence’s reading of the legislative history itself. I am no fan of resorting to legislative history. But in my years on the bench, I have seen few, if any, cases in which it speaks more clearly to the point. Marcus explicitly defined “posting” in terms of its ordinary meaning, indeed, referring to it as “red tagging” by posting a paper on a door or wall. The concurrence ignores that, exhibiting what the late Judge Harold Leventhal quipped is the practice of treating legislative history as if “entering a *231 crowded cocktail party and looking over the heads of the guests for one’s friends.” 5

The concurrence also refers to the legislative history of certain amendments to the statute in 1993, some ten years after ORS 30.980(1) was enacted. In so doing, it fails to heed the well-established rule that “[subsequent statements by legislators are not probative of the intent of statutes already in effect.” United Telephone Employees PAC v. Secretary of State, 138 Or App 135, 139 , 906 P2d 306 (1995). In any event, the legislative history that the concurrence cites reflects the same use of the term “posting” that Marcus did in explaining the original bill to the 1983 legislature, that is, posting by affixing a physical notice to a door, wall, or post. The summary prepared by the sponsors of the 1993 amendments explained that, as amended, the statute would address situations in which:

“[A] landlord rents a rental unit which the landlord knows to have previously been posted by a governmental agency as unlawful to occupy (a health or safety code violation or, in Portland, ‘renting over a red tag’).”

Testimony, Senate Judiciary Committee, HB 2968A, June 21, 1993, Ex C (statement of Kevin Hanway, Association of Oregon Housing Authorities) (emphasis added). Similarly, a representative of the Lane County Legal Aid Service explained that the amended statute would cover situations in which:

“[A] landlord does what in Portland is known as ‘renting over a red tag.’ A unit has already been determined to be unsafe for occupancy by a local government agency and that agency has posted it as unsafe for occupancy and the landlord removes the posting and rents it anyway.”

*232 Tape recording, Senate Judiciary Committee, HB 2968, June 21, 1993, Tape 198, Side A (statement of John Van Landingham, Lane County Legal Aid Service) (emphasis added). There can be no debate that the witness used the term “posting” in its ordinary sense.

The concurrence’s only response is to observe that the statute makes no mention of “red tagging” and to assert that is merely an example of a practice, not a statutory prerequisite. 168 Or App at 216-17. Whether the statute mentions “red tagging,” however, it does require “posting.” The question is what that term means. The ordinary meaning of the term, its use in statutory and regulatory context, and its explicit definition in the legislative history all demonstrate that it means physically affixing a notice to a door, wall, or the like. In Portland, that is accomplished by affixing a red sheet. No one suggests that the statute requires affixing a notice of any particular color. But the fact remains that the term was understood to apply to some sort of physical notice affixed to the premises.

Recall, for example, the statements contained in the legislative history that the concurrence itself relies on. The witness from Lane County Legal Aid Service explained that the statute applies when the local housing authority “has posted [the dwelling] as unsafe for occupancy and the landlord removes the posting and rents it anyway.” The witness certainly did not use the term “posting” in the way that the concurrence suggests. If he had, his testimony would make no sense. It would refer to situations in which the local housing authority “has [determined] it as unsafe for occupancy and the landlord removes the [determination] and rents it anyway.” If the determination was not physically affixed to the premises, how could the landlord remove it?

In the end, the concurrence resorts to declaring, ipse dixit, that the legislature intended broadly to prohibit renting out premises that have been determined to be uninhabitable and that affixing a public notice to that effect amounts to a mere “procedural nicety.” 168 Or App at 217. In the first place, as I have noted, the language and the legislative history show — repeatedly, in the case of the legislative history— *233 that the legislature’s focus was considerably more narrow. But aside from that, the concurrence’s analytic approach is backwards. Under current interpretive rules, the proper focus is not to divine some broad purpose and then force the statutory language to meet that purpose. As the Supreme Court explained in State v. Vasquez-Rubio, 323 Or 275, 280 , 917 P2d 494 (1996), the text must be consulted first, and any attribution of purpose must be fairly embraced by that text:

“To interpret a statute properly, this court must focus on the exact wording of the statute. Indeed, it is the text — or ‘the exact wording of the statute’ — that provides the best evidence of the legislature’s intent.”

In this case, the exact wording of the statute is that a landlord is liable under ORS 90.380(1) only if the premises have been “posted” as uninhabitable. Applying the relevant rules of construction compels the conclusion that the term “posted” carries its plain, normal, ordinary meaning. Nothing in the text of the statute or its context or its enactment history demonstrates that the legislature clearly intended any other definition to apply, much less the entirely original one that the concurrence adopts.

I respectfully dissent.

Deits, C. J., and De Muniz, Haselton, and Brewer, JJ., join in this dissent.

I do not list all the references that use the term “post” in this way. There are 93 of them. So far as I can tell, the Oregon Revised Statutes use the term “post” in only two other ways: first, in an accounting sense, as in “posting” a bookkeeping entry, see, e.g., ORS 311.370(3) (“the tax collector shall post the payments evidenced by the receipts 4 4 4”); and second, in the sense of offering payment, as in “posting” a bond, see, e.g., ORS 87.076(4)(a) (“falny person entitled to post a bond *225 * * *”). I have found no statute that uses the term “post” or “posted” in the sense of “make or made a determination.”

Actually, both subsections (1) and (2) were enacted in 1983. A third subsection was added in 1987, and four additional subsections were added in 1993.

The current Portland City Code retains the distinction between merely notifying a landlord of substandard conditions and “posting” the premises as such. Portland City Code § 8.20.200.

Other municipal codes likewise draw a distinction between serving a notice on the landlord and “posting” the premises by affixing a notice on a post, door, or wall. See, e.g., Eugene City Code § 6.080 (if city manager finds that a nuisance exists, he or she “shall cause a notice to be posted on the premises or at the site of the *226 nuisance” and “shall cause a copy of the notice to be personally served” on the owner); Salem City Code § 56.290 (if a building is determined to be in violation of building code, a notice “shall be served on the record owner and posted on the property”).

The concurrence, for example, cites Webster’s Third New Int’l Dictionary, 1771 (unabridged ed 1993), as defining “to post” to mean “ ‘denounced’ or to invoke censure.” 168 Or App at 208. It avoids quoting the complete text of even that definition, which includes the qualifying phrase “by public notice.” (Emphasis added.)

The concurrence’s selective reading of the legislative history also is inconsistent with its own conclusion about the meaning of the statute. At one point, it declares that the legislative history demonstrates “that the legislature’s focus was on providing a disincentive for landlords who know that their buildings are unlawful to occupy to rent to new tenants.” 168 Or App at 211. Yet at another point, it declares that whether the landlord knows that the buildings are unlawful to occupy is irrelevant to a violation of ORS 90.380(1) and is only relevant in determining penalties under ORS 90.380(2). 168 Or App at 208-11.