City of Portland v. Dollarhide
| Decision Date | 18 March 1986 |
| Citation | 300 Or. 490,714 P.2d 220 |
| Parties | CITY OF PORTLAND, Respondent on Review/Petitioner on Review, v. Susan Joanne DOLLARHIDE, Petitioner on Review/Respondent on Review. DA 261430; CA A31427; SC S31408; SC S31398. |
| Court | Oregon Supreme Court |
Stephen A. Houze, Portland, argued the cause for petitioner on review/respondent on review. With him on petition was Birkland, Koch & Houze, Portland.
James E. Mountain, Jr., Sol. Gen., Salem, argued the cause for respondent on review/petitioner on review. With him on the petition were Dave Frohnmayer, Atty. Gen., and Thomas H. Denney, Asst. Atty. Gen., Salem.
Timothy J. Sercombe and Stanton F. Long, Eugene, filed a memorandum amicus curiae for the City of Eugene in response to questions by the court. With them on the memorandum was Harrang, Swanson, Long & Watkinson, P.C., Eugene.
This case involves the scope of the power granted to cities by one of the home rule provisions of the Oregon Constitution (Art. XI, § 2) to enact criminal ordinances which prohibit the same conduct that is prohibited by state law.
In 1983, the Portland City Council adopted section 14.36.065 of the Code of the City of Portland, 1 which defines and prohibits prostitution in terms substantially identical to ORS 163.305, 167.002 and 167.007. 2 At the same time, the City Council also adopted a mandatory minimum penalty provision for violation of the prostitution ordinance. 3 There is no mandatory minimum penalty for a conviction of prostitution under state law. ORS 167.007, 161.615 and 161.635. 4
Defendant was charged with prostitution for violation of section 14.36.065 of the City Code. Prior to trial, defendant filed a demurrer or, in the alternative, a motion to dismiss the complaint on the ground, inter alia, that it failed to state facts constituting a crime because the city ordinance was "preempted" by state criminal law. Defendant contended that both the city ordinance defining and prohibiting prostitution and the mandatory minimum penalty provision applicable to it were in conflict with the state criminal code. The Multnomah County District Court judge, sitting as a municipal court judge pursuant to ORS 46.045(1), disallowed the demurrer as to the City Code provision defining and prohibiting prostitution, but he allowed the demurrer as to the penalty provision because it "runs counter to ORS 161.035." 5 A trial date was set. On that date, defendant's motion to dismiss the complaint was renewed and granted. The trial court was persuaded that the prohibitory ordinance could not stand after the applicable penalty provision had been struck down.
The City appealed pursuant to ORS 138.060(1), 6 raising two issues: (1) whether a demurrer is proper to challenge the penalty provision of an ordinance; and (2) whether the state law prohibiting prostitution so preempts the field that a city is precluded from enacting a mandatory minimum penalty when there is none under state law for substantially the same criminal conduct. In defendant's brief, she again argued that the Oregon Criminal Code of 1971 evidenced a legislative intent totally to occupy the field of criminal law in every political subdivision of the State of Oregon. Defendant contended that whatever authority cities had before 1971 to enact criminal ordinances, it was revoked by the legislature as part of the 1971 criminal law revision, and that today localities cannot enact ordinances which either duplicate or redefine in any way conduct that is made criminal by Oregon criminal laws.
The Court of Appeals agreed with the trial court that the City's mandatory minimum penalty provision was invalid, and that the ordinance prohibiting prostitution was valid. The Court of Appeals, however, found the invalid penalty provision severable, and reversed and remanded for trial. City of Portland v. Dollarhide, 71 Or.App. 289, 692 P.2d 162 (1984).
Both defendant and the City petitioned this court for review. Defendant again argues that the city ordinance defining and prohibiting prostitution, as well as the mandatory minimum penalty provision, is preempted by the state criminal code. She argues that the home rule amendment (Art. XI, § 2) and the Oregon criminal code prohibit cities from adopting any ordinances making conduct criminal that has been made criminal by state criminal law. The City contends that both its prohibitory provision and its mandatory minimum penalty provision are valid. The City argues that its penalty provision is valid because: (1) there is no legislative intent, expressed either in the Oregon Criminal Code of 1971 or the Commentary thereto, to prohibit cities from adopting different penalties for the violation of ordinances prohibiting prostitution; and (2) a mandatory minimum penalty in a city ordinance that is no greater than the maximum penalty provided under state law for the same conduct should not be equated with a "greater" penalty than is authorized by state law.
The first issue we must address is the City's contention that a pretrial demurrer was not the proper vehicle to challenge the penalty provision of a city ordinance. The written record of the dismissal consists only of the following notation by the trial court on the face of the complaint: "preemption invalidated statute [ordinance]." From the tape recording of the oral argument on defendant's motion to dismiss, it is clear that the trial court dismissed the complaint because he believed that state law preempted the City's mandatory minimum penalty provision and that the proscriptive ordinance could not stand without a valid penalty provision.
The validity of ordinance provisions can be challenged pretrial. ORS 221.370. Defendant's pretrial motion did not attack solely the penalty provision; defendant's motion also attacked the ordinance prohibiting prostitution on the grounds, inter alia, that (1) the Oregon Criminal Code of 1971 evinces a legislative intent entirely to "preempt" the field of the prohibition of prostitution; and (2) because the City's mandatory minimum penalty provision is invalid, there can be no prosecution under the prohibiting ordinance, for the reason that the offense carries no penalty.
It is beyond dispute that no conviction can be had for the violation of a statute for which no penalty is provided. See, e.g., Smallman v. Gladden, 206 Or. 262, 277, 291 P.2d 749 (1956), overruled on other grounds, State v. Collis, 243 Or. 222, 413 P.2d 53 (1966). A defendant charged under a criminal law for which only an allegedly invalid penalty is provided may challenge the penalty pretrial because, if the challenge is successful, the charge will be dismissed and the defendant will not be made to stand trial. Because defendant's challenge to the penalty provision was linked to her challenge of the prohibitory ordinance under which she was charged, defendant's pretrial challenge of the penalty provision was proper. In these circumstances, because the trial court invalidated the City's prohibitory provision, based upon the court's conclusion that the mandatory minimum penalty provision was displaced by state law, the ruling on the penalty provision was not premature. This case is appropriate for review.
Defendant challenges the City's authority to enact an ordinance defining and prohibiting prostitution which is identical in all material respects to the state criminal code provisions defining and prohibiting the same conduct. The City questions whether state criminal penalties for prostitution displace local criminal punishment which differs from that prescribed by state law. The answers to these questions are found in the analysis of Article XI, section 2, of the Oregon Constitution.
In 1906, Oregon voters adopted by initiative process two amendments to the Oregon Constitution which together provide "home rule" for cities and towns. Art. XI, § 2; Art. IV, § 1a (now 1(5)). Article XI, section 2 provides, in relevant part:
"The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon * * *." (Emphasis supplied.)
This sentence in Article XI, section 2 contains a grant of power to the citizens of local communities, but it also contains a limitation. Defendant's supplemental memorandum contains a comprehensive review of the "subject to" clauses in state home rule provisions. We note that Oregon is the only state which limits municipal home rule in this particular way. The vast majority of states with such provisions have made municipal home rule subject to the state's "laws" or "general laws."
The meager history of Article XI, section 2 indicates that its proponents, the People's Power League, used the following language in their informational circular promoting the adoption of Article XI, section 2:
Introductory Statements, Arguments and Suggested Amendments to the Constitution of Oregon and an Anti-Pass Law for Public Officials at 5. (Emphasis supplied.)
Nevertheless, the initiative petition successfully circulated by the People's Power League both entitled and phrased the proposed amendment in the terms that now appear in the constitution: "subject to the Constitution and criminal laws of the State of Oregon." (Emphasis supplied.)
We have been unable to discern an explanation for the change from subject to "laws" and "general laws" to subject to the "criminal laws." We are left, however, with the inescapable conclusion that the voters who adopted Article XI, section 2...
To continue reading
Request your trial
-
THUNDERBIRD MOBILE CLUB v. WILSONVILLE
...invalidity of municipal criminal laws that are inconsistent with state criminal laws was established in City of Portland v. Dollarhide, 300 Or. 490, 501, 714 P.2d 220 (1986). That rule was later refined in Jackson, 316 Or. at 149-51, 850 P.2d 1093. In Dollarhide, the defendant challenged a ......
-
City of Portland v. Jackson
...concerned with civil legislation. The court first had occasion to apply its dictum to criminal legislation in City of Portland v. Dollarhide, 300 Or. 490, 714 P.2d 220 (1986), where the issue was whether the city ordinance provisions criminalizing and fixing the penalty for prostitution wer......
-
Eckles v. State
...two was the raison d'etre of the Act. We conclude that the provisions are severable. See ORS 174.040; City of Portland v. Dollarhide, 300 Or. 490, 503-05, 714 P.2d 220 (1986).20 Cf. Holmes, The Path of the Law, in Collected Legal Papers 175 (1920): "The duty to keep a contract at common law......
-
Sekne v. City of Portland
...inconsistent with the act. City of Portland v. Sunseri, 66 Or.App. 261, 265, 673 P.2d 1369 (1983); see also City of Portland v. Dollarhide, 300 Or. 490, 501, 714 P.2d 220 (1986). Here, there is no inconsistency between the act and the ordinances. ORS 472.180(5) provides that the Liquor Cont......
-
Chapter §16.4 REMEDIES
...State v. Borowski, 231 Or App 511, 526-30, 220 P3d 100 (2009) (applying principle). In City of Portland v. Dollarhide, 300 Or 490, 504, 714 P2d 220 (1986), the court held that the "same analysis should be employed to determine whether part of an ordinance, if held to be unconstitutional, sh......
-
Chapter § 16.4
...State v. Borowski, 231 Or App 511, 526-30, 220 P3d 100 (2009) (applying principle). In City of Portland v. Dollarhide, 300 Or 490, 504, 714 P2d 220 (1986), the court held that the "same analysis should be employed to determine whether part of an ordinance, if held to be unconstitutional, sh......
-
Chapter §10.4 CRIMINAL STATUTES AND ORDINANCES
...from statutory offenses is shaped by three decisions involving Portland ordinances. The first, City of Portland v. Dollarhide, 300 Or 490, 714 P2d 220 (1986), concerned a challenge to the city's minimum penalty for prostitution; the defendant argued that state law, which set no minimum pena......
-
Chapter § 10.4
...from statutory offenses is shaped by three decisions involving Portland ordinances. The first, City of Portland v. Dollarhide, 300 Or 490, 714 P2d 220 (1986), concerned a challenge to the city's minimum penalty for prostitution; the defendant argued that state law, which set no minimum pena......