City of Portland v. Jackson

• Decision Date: 15 April 1992
• Citation: 111 Or.App. 233,826 P.2d 37
• Parties: CITY OF PORTLAND, Appellant, v. Lugene Alva JACKSON, Respondent. DA 396491-8906; CA A64089.
• Court: Oregon Court of Appeals

Page 37

826 P.2d 37

111 Or.App. 233

CITY OF PORTLAND, Appellant, v. Lugene Alva JACKSON, Respondent.

DA 396491-8906; CA A64089.

Court of Appeals of Oregon,

In Banc.

Argued and Submitted Jan. 25, 1991.

Resubmitted In Banc Nov. 6, 1991.

Decided Feb. 12, 1992.

Reconsideration Denied April 15, 1992.

Madelyn F. Wessel, Deputy City Atty., Portland, argued the cause and filed the brief for appellant.

Joan Peterson, Multnomah Defenders, Inc., Portland, argued the cause and filed the brief for respondent.

RICHARDSON, Judge.

Defendant was charged with indecent exposure under Portland City Code (PCC) § 14.24.060. He demurred, contending that ORS 163.465 preempts the ordinance. The trial court agreed and dismissed the charge. The city appeals, and we affirm.

PCC § 14.24.060 provides, in part:

"It is unlawful for any person to expose his or her genitalia while in a public place or place visible from a public place, if the public place is open or available to persons of the opposite sex."

ORS 163.465 provides, in part:

"(1) A person commits the crime of public indecency if while in, or in view of, a public place the person performs:

" * * * * *

"(c) An act of exposing the genitals of the person with the intent of arousing the sexual desire of the person or another person."

Because the general issue with which we are concerned has arisen so frequently and been treated so variably by the two appellate courts in recent years, we begin by discussing the relevant precedent in some detail. Under Article XI, section 2, one of the Home Rule Amendments to the Oregon Constitution, the legislative authority of cities is made "subject to the Constitution and criminal laws of the State of Oregon." In La Grande/Astoria v. PERB, 281 Or. 137, 148-49, 576 P.2d 1204, on rehearing 284 Or. 173, 586 P.2d 765 (1978), the Supreme Court explained generally how the criminal law "reservation" in the amendment bears on whether municipal criminal legislation is preempted by state law:

"It is reasonable to interpret local enactments, if possible, to be intended to function consistently with state laws, and equally reasonable to assume that the [state] legislature does not mean to displace local civil or administrative regulation 18 of local conditions by a statewide law unless that intention is apparent.

La Grande/Astoria was 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 were preempted by the state prostitution statutes. The court said:

"The essential test for displacement of local ordinances (civil or criminal) by state law is whether the local rule is 'incompatible with the legislative policy, either because both cannot operate concurrently or because the legislature meant its law to be exclusive.' [La Grande/Astoria v. PERB, 281 Or. 137, 148, 576 P.2d 1204, on rehearing 284 Or. 173, 586 P.2d 765 (1978).] In the area of civil or administrative ordinances regulating local conditions, it is reasonable to assume that the legislature did not mean to displace local ordinances, unless that intention is apparent. See, e.g., State ex rel Haley v. City of Troutdale, 281 Or. 203, 576 P.2d 1238 (1978) (finding no manifest legislative intent to exclude local provisions which 'supplemented' the state building code). The reservation in Article XI, section 2, however, reverses this assumption with respect to state criminal law.

"The analysis of compatibility begins then with the assumption that state criminal law displaces conflicting local ordinances which prohibit and punish the same conduct, absent an apparent legislative intent to the contrary. * * *

"The inquiry does not end here, of course, because we have yet to decide how much symmetry between state and city criminal laws is required by Article XI, section 2, so as not to be in conflict. Harlow v. Clow, [110 Or. 257, 223 P. 541 (1924), overruled on other grounds, Landreth v. Gladden, 213 Or. 205, 223, 324 P.2d 475 (1958) ], a case decided relatively close in time to the adoption of Article XI, section 2, suggests that, in order that the defining elements of a city's crime not conflict with state law, they must virtually 'duplicate' the state law elements. We state the rule that in determining whether the defining and prohibiting provisions of a city criminal ordinance conflict with a state criminal statute, the test is whether the ordinance prohibits an act which the statute permits, or permits an act which the statute prohibits." 300 Or. at 501-02, 714 P.2d 220. (Emphasis in original; footnote omitted.)

Applying those principles, the court concluded that the prohibitory aspects of the ordinance, which virtually duplicated the state statute, were not preempted, but that the city penalty, which exceeded that under the statute, was "displaced."

The Supreme Court revisited the issue in City of Portland v. Lodi, 308 Or. 468, 782 P.2d 415 (1989), where the question was whether the city prohibition of carrying a concealed pocketknife with a blade longer than a specified length was preempted by ORS 166.240, the state statute that criminalizes carrying certain concealed knives but not knives of the kind in question. The court said:

"The preemption issue arises under Article XI, section 2, of the Oregon Constitution, which authorizes the voters of a city to enact and amend the city's charter 'subject to the Constitution and criminal laws of the State of Oregon.' The background of the quoted phrase and its judicial interpretation were reviewed in City of Portland v. Dollarhide, 300 Or. 490, 714 P.2d 220 (1986). That decision involved a penal ordinance which prohibited prostitution in terms essentially identical to the state's criminal code but, unlike the state law, imposed mandatory minimum penalties. This court held that the primacy of the state's criminal law over city penal ordinances forbade the city not only to extend the reach of an offense but also to increase the penalties for a substantively identical offense without a showing of legislative consent to such an extension.

" * * * * *

"The City further objects to the Court of Appeals' conclusion that the statute permits the carrying of the kind of concealed knife that the ordinance prohibits. The Court of Appeals drew from Dollarhide, 300 Or. at 502 , the proposition that a city 'cannot prohibit an act that the statute permits,' [City of Portland v. Lodi,] 94 Or.App. at 738 [767 P.2d 108 (1989) ]. The City argues that statutory silence should not be construed as 'permission.'

"The word 'permits' lends itself to this argument, but the preemption issue is the same without the word. In theory, what the legislature 'permits' can range from express permissive terms to total inattention and indifference to a subject. The search is not for particular words but for a political decision, for what the state's lawmakers either did or considered and chose not to do. The search for a negative decision, in the context of preemption, can involve variations ranging from mere inaction on a bill or other proposal, which hardly represents a collective judgment, to rejection of a proposal by vote after debate (perhaps even after passage by one house), which may be a collective decision although it also falls short of affirmative lawmaking." 308 Or. at 471-74, 782 P.2d 415. (Footnote omitted.)

The court then looked to the legislative history of the statute, and discerned an intent to disallow the criminalization of carrying concealed knives of the kind prohibited by the city. The court based its decision on affirmative evidence of a preemptive intent. Although it nominally reiterated the assumption of preemption standard, its decisional analysis assumed nothing.

We applied the Dollarhide- Lodi principles in Denton Plastics, Inc. v. City of Portland, 105 Or.App. 302, 804 P.2d 1199 (1991), and State v. Long, 106 Or.App. 389, 807 P.2d 815, clarified 107 Or.App. 284, 812 P.2d 831 (1991). We summarized in Long:

"In Denton Plastics[, Inc.] v. City of Portland, 105 Or.App. 302, 305, 804 P.2d 1199 (1991), we articulated a two-step preemption analysis: (1) Does the ordinance conflict with state law? (2) If so, did the legislature intend to permit a conflict? Legislative permission 'can range from express permissive terms to total inattention and indifference to a subject.' City of Portland v. Lodi, 308 Or. 468, 474, 782 P.2d 415 (1989). There are two types of conflict. The first is facial, when an ordinance directly contradicts a state law in an area of substantive policy. In the criminal context, the facial conflict arises because the ordinance prohibits an act that the state permits or permits an act that the state prohibits. City of Portland v. Dollarhide, 300 Or. 490, 502, 714 P.2d 220 (1986). If the laws conflict facially, the ordinance is preempted, because the legislature has made a political policy decision. See City of Portland v. Lodi, supra, 308 Or. at 474 (1989).

"The second type of conflict is when laws dealing with the same subject differ in part but are still compatible as a whole. See City of Portland v. Dollarhide, supra, 300 Or. at 498-499 ; Harlow v. Clow, 110 Or. 257, 223 P 541 (1924). This type of conflict is not necessarily fatal to the ordinance. For example, a criminal ordinance and a state statute may prohibit the same general act, but there may be differences in either the elements of, or penalties for, the offenses. In that situation, there is a rebuttable presumption that the ordinance is preempted because of Article XI, section 2, of the Oregon Constitution. See Denton Plastics[, Inc.] v. City of Portland, supra, 105 Or.App. at 306 ; see also 6 McQuillan, Municipal Corporations, § 23.05, 507 (3d ed, 1988 rev).

"A criminal ordinance that conflicts with state law in that way...