City of Portland v. Jackson

• Decision Date: 29 April 1993
• Citation: 316 Or. 143,850 P.2d 1093
• Parties: CITY OF PORTLAND, Petitioner on Review, v. Lugene Alva JACKSON, Respondent on Review. DC DA 396491-8906; CA A64089; SC S39063.
• Court: Oregon Supreme Court

Page 1093

850 P.2d 1093

316 Or. 143

CITY OF PORTLAND, Petitioner on Review, v. Lugene Alva JACKSON, Respondent on Review.

DC DA 396491-8906; CA A64089; SC S39063.

Supreme Court of Oregon In Banc.

Argued and Submitted Sept. 4, 1992.

Decided April 29, 1993.

Madelyn F. Wessel, Deputy City Atty., Portland, argued the cause and filed the petition for petitioner on review.

Garrett A. Richardson, Multnomah Defenders, Inc., Portland, argued the cause for respondent on review.

PETERSON, Justice.

The issue in this case is this: When a state statute that forbids public exposure of genitalia has as an element "the intent of arousing the sexual desire of the person or another person," and a defendant is prosecuted under a city ordinance that forbids public exposure of genitalia, regardless of the defendant's culpable mental state, is the city ordinance in conflict with the statute and therefore invalid under the "home rule" provision of the Oregon Constitution, Article XI, section 2? We hold that the city ordinance is not invalid.

Defendant was charged with a crime, "indecent exposure," under a Portland City Code ordinance, PCC § 14.24.060, which provides:

"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."

Defendant demurred, claiming that the ordinance is invalid because it is in conflict with the state "public indecency" statute, ORS 163.465, which 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."

The trial court sustained the demurrer and dismissed the case. On the city's appeal, the Court of Appeals affirmed, stating that the city ordinance "prohibits what the state legislature intended to permit." City of Portland v. Jackson, 111 Or.App. 233, 245, 826 P.2d 37 (1992).

In 1906, Article XI, section 2, and Article IV, section 1a (now section 1(5)), of the Oregon Constitution were added in order to provide "home rule" for cities and towns. For our purposes, we are concerned with Article XI, section 2, which in part provides:

"The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. 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 added.)

Article XI, section 2, has long been interpreted to prohibit local governments from enacting legislation that conflicts with state criminal laws.

Rose v. Port of Portland, 82 Or. 541, 162 P. 498 (1917), contains an extensive discussion of the events leading to the adoption of Article XI, section 2, of the Oregon Constitution. "[T]he idea which was uppermost in the minds of all was to take from the legislature the power to make a charter for a city or town by a special law." 82 Or. at 561, 162 P. 498 (emphasis in original). The opinion makes it clear that local governments "could legislate concurrently upon the same subject and make use of its legislation if the city legislation did not conflict with the state legislation." Id. at 571, 162 P. 498. See also Harlow v. Clow, 110 Or. 257, 263, 223 P. 541 (1924) (city vagrancy ordinance that provided for a lesser penalty than a duplicate state statute held not in conflict), partially overruled on other grounds by, Landreth v. Gladden, 213 Or. 205, 324 P.2d 475 (1958). We interpret the words "subject to" in Article XI, section 2, to mean "not in conflict with." Local governments cannot enact criminal laws in conflict with state criminal laws. Local governments thus are barred from, e.g., creating a "safe haven" for outlaws by legalizing, within the boundaries of the city, that which the legislature has made criminal statewide. This case, defendant claims, involves the converse of the foregoing scenario; here, a city ordinance is alleged to be "in conflict with" a state statute because the ordinance forbids conduct that, according to defendant, state law permits. We turn to that question.

The "not in conflict" interpretation of Article XI, section 2, was used by this court recently in City of Portland v. Dollarhide, 300 Or. 490, 714 P.2d 220 (1986). There, a city prostitution ordinance was virtually identical to a state statute, except that the ordinance required a mandatory minimum sentence, while the statute did not. This court held that the sentencing provision of the ordinance violated Article XI, section 2. The Dollarhide court stated a method for determining whether a criminal ordinance and statute are in conflict:

"[I]n determining whether the * * * 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 502, 714 P.2d 220.

Under the Dollarhide test, if a statute permits conduct that an ordinance prohibits, the two laws are in conflict.

Statutes defining crimes normally are not written in terms of permitted conduct; they normally are written to prohibit conduct. If the criminal statutes of Oregon are interpreted to permit all conduct not prohibited, the interpretation would swallow Article XI, section 2, for it would bar all local governments from legislation in the area of criminal law unless the local legislation was identical to its state counterpart. The question, then, is one not asked or answered in Dollarhide: How does one determine whether a state law permits that which an ordinance prohibits? This question may be answered in several ways.

1. The legislature expressly could occupy an entire field of legislation on a subject, and expressly preclude local legislation on the subject. Or, stated otherwise, the legislature could pre-empt the field. For example, ORS 430.325(1) prohibits local governments from creating offenses that involve public intoxication, public drinking, and drunk and disorderly conduct. ¹ In essence, the legislature has made a decision to prevent local governments from regulating those subjects. Compare Harlow v. Clow, supra, 110 Or. at 263, 223 P. 541 ("It was not the intention of the legislative assembly, by the enactment of the statute against vagrancy, to occupy the whole field of legislation upon that subject."). ²

2. The legislature could expressly permit specified conduct. See, e.g., ORS 166.370(2)(d) (persons with a permit to carry a concealed handgun cannot be prosecuted for possessing a firearm in a public building). By implication, local governments could not criminalize the specified conduct.

3. The legislature could otherwise manifest its intent to permit specified conduct. By implication, local governments could not prohibit the specified conduct.

City of Portland v. Lodi, 308 Or. 468, 474, 782 P.2d 415 (1989), is illustrative of legislative permission by implication. In Lodi, a city ordinance prohibited the carrying of a pocketknife with a blade beyond a certain length. The legislature had enacted a statute concerning concealed weapons. The legislative history revealed that an earlier draft of the proposed law had listed as a dangerous weapon "any knife other than a pocketknife," along with a switchblade, dirk, or dagger. A legislative subcommittee later amended the bill by removing all reference to knives other than switchblades, dirks, or daggers. The Lodi court held that, because the legislative history showed that a decision had been made to permit the concealed carrying of any knife not a switchblade, dirk, or dagger, the city ordinance prohibited conduct that the legislature intended to permit, and the ordinance was displaced by the state statute. 308 Or. at 475, 782 P.2d 415. "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." Id. at 474, 782 P.2d 415.

Neither Dollarhide nor Lodi addressed the situation in which the statute and its legislative history are silent or unclear as to whether a decision to "permit" conduct has been made. Dollarhide, 300 Or. at 501, 714 P.2d 220, states that "[t]he analysis of compatibility begins then with the assumption that state criminal law displaces conflicting local ordinances which prohibit and punish the same conduct." ³ (Emphasis in original.) Dollarhide quoted a footnote from LaGrande/ v. PERB, 281 Or. 137, 149, 576 P.2d 1204, adhered to on rehearing, 284 Or. 173, 586 P.2d 765 (1978), a case concerned with whether state statutes regarding retirement benefits for city police and firefighters impinged on a local government's home rule powers. The court there stated that it is "reasonable to assume that the legislature does not mean to displace local civil or administrative regulation of local conditions by a statewide law unless that intention is apparent." In a footnote, the court then stated the dictum that "[t]he reservation in article XI, section 2, supra, regarding state criminal law reverses this assumption with respect to such laws." That passage could be interpreted in the present case to mean that, if the legislature has not made a clear decision to permit conduct that an ordinance prohibits, we should nevertheless "assume" that the legislature intended to permit that conduct, and thus also "assume" that the ordinance is displaced by the statute.

We disavow such an interpretation. It is important to note that LaGrande/Astoria concerned the constitutionality of state administrative statutes and that Dollarhide concerned the constitutionality of a mandatory minimum penalty provision. Neither case involved criminal laws governing conduct; neither involved the issue whether the...