City of Portland v. Jackson

FADELEY, J.,

dissenting.

The court is asked to permit Portland to prohibit, as a crime in that city only, acts or conduct that would not be a crime under state law. In this specific case we are asked, without knowing the factual allegations of the charge, to bless a new crime created by the city by ordinance. The ordinance creates the new crime by generally copying a state law on the subject, except that it deletes one element required by the state law to constitute a crime.

The Portland City Code ordinance, PCC § 14.24.060, 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.”

No intent is required. The state law, 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:
*160“(c) An act of exposing the genitals of the person with the intent of arousing the sexual desire of the person or another person.”

As can be seen, the state law requires a specific intent before criminal sanctions are imposed but the Portland ordinance does not. Thus, in Portland, all exposures of human genitals, without a specific intent being necessary, including an exposure which would escape criminal sanctions under state law, are made criminal.

I

This opinion evaluates the validity of the Portland city ordinance by applying a precedent of this court which the majority and concurrence1 assiduously seek to avoid. As noted above, petitioner was charged with violating PCC § 14.24.060. Petitioner demurred, arguing that the ordinance is invalid because it conflicts with the state’s criminal laws.

Indeed, petitioner is correct that serious questions about the validity of a local criminal ordinance arise when such an ordinance conflicts with a state criminal law. While Article XI, section 2, of the Oregon Constitution authorizes local governments to make their own local laws, it expressly limits that authority in the area of criminal law. That constitutional provision states:

“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.)

This court has determined that under Article XI, section 2, local ordinances, whether civil or criminal, are displaced by “incompatible” state law. Because that provision specifically states that local lawmaking authority is “subject to” state criminal laws and the state constitution, this court has imposed and must impose a stricter standard of compatibility in the criminal law context than would apply in the civil law context. Thus, in deciding whether a state civil law displaces a local civil ordinance, it is assumed that the *161state and local laws are compatible unless some manifest legislative intent to exclude local legislation on the matter is found. But in deciding whether a state criminal law on a given subject displaces a local criminal ordinance, that assumption is reversed. City of Portland v. Dollarhide, 300 Or 490, 501, 714 P2d 220 (1986).

This court’s opinion in City of Portland v. Dollarhide discusses and applies the proper test for assessing the compatibility of a local criminal ordinance with state law (and thus, for assessing the validity of such ordinances). In that case, a criminal defendant challenged her conviction under a Portland City Code ordinance which defined and prohibited prostitution in substantially identical terms as an Oregon state statute, but which, unlike the state statute, provided a mandatory minimum penalty. In determining that the penalty section of the ordinance was invalid due to incompatibility with the state statute, this court stated:

“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.’ [LaGrande/Astoria v. PERB, 281 Or 137, 576 P2d 1204 (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 P2d 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.” Id. (emphasis added).

Giving force to that assumption, we placed the burden of coming forth with some evidence that the legislature authorized local criminal legislation in the area of prostitution when this court said:

“The parties have cited nothing in the text or legislative history of the state laws regarding prostitution, nor have we *162found anything, to indicate that the state intended cities to be authorized to enact inconsistent local [criminal] laws in this area.” Id.

This court then went on to say:

“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, supra, [110 Or 257, 223 P 541 (1924), overruled on other grounds by Landreth v. Gladden, 213 Or 205, 324 P2d 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. * * *
“As to the requisite symmetry of state and city criminal penalty provisions, we again turn to Harlow v. Clow, supra, for the proposition that, until the legislature intends otherwise and so indicates, city punishment of the same conduct made criminal by state law may be ‘lighter’ than that prescribed by state statute. However, a city penalty that is greater than the state prescribed penalty (minimum or maximum) for the same criminal conduct is incompatible with the state penalty and must fall. Nothing in the text or legislative history of the Oregon Criminal Code of 1971 contradicts this.
“Thus, under Article XI, section 2, while a city has some leeway between the state prescribed minimum and maximum criminal penalties, without evidence of legislative acquiescence, a city ordinance cannot increase either the minimum or maximum penalty that is authorized by state law for the same criminal conduct.” Id. at 501-02 (footnote omitted; emphasis added).

Because, as indicated above, the Portland prostitution ordinance defined and prohibited prostitution in substantially identical terms as the statute, this court found that the latter part of the test had been met. Therefore, the part of the ordinance defining and prohibiting prostitution was valid.

*163But the “indecent exposure” ordinance at issue in this case does not survive the Dollarhide test. As in Dol-larhide, we must assume, in the face of a state statute dealing with “indecent exposure,” that the state legislature intended to displace the conflicting local ordinance, absent some manifestation of contrary legislative intent. Proponents of the local ordinance have pointed to nothing that suggests any such contrary intent.

But before concluding, based on the above-stated assumption, that the state indecent exposure law displaces the local law, it must be ascertained, as in Dollarhide, whether the state and local laws are in conflict. The language of Dollarhide, as quoted above, suggests that a conflict exists unless the statutes and ordinances virtually “duplicate” one another. More particularly, the local ordinance conflicts with the state law if it “prohibits an act which the statute permits, or permits an act which the statute prohibits.”

That a conflict exists between the Portland indecent exposure ordinance and ORS 163.465 could not be more clear; while exposure of the genitals in a public place without any intent to sexually arouse either oneself or a viewer is lawful or “permissible” under the state criminal law, it is prohibited conduct under the local ordinance.

Thus, under the analysis set out in Dollarhide, which requires us to assume that local ordinances have been displaced by any conflicting state statute in the absence of any evidence of contrary legislative intent, PCC § 14.24.060 is invalid.

The majority circumvents this obvious result by interpreting the term “permit” in the Dollarhide test as meaning “legislatively authorize,” that is, expressly approved by the legislature. This is a test that the great majority of everyday activities taking place within the state could not meet under the civil statutes, let alone in the criminal code. Furthermore, the context and the very structure of the sentence in which the term appears make it clear that the Dollarhide court used “permit” in its simplest sense. It was meant to convey only an absence of prohibition — that the conduct under examination is “not prohibited.”

*164By skewing the interpretation of the term to mean “legislatively authorized,” the majority turns what was intended as a simple comparison of the elements of a crime into an examination of legislative intent. Given that the first part of the Dollarhide test already focuses attention on the intent of the state legislature, it seems disingenuous to read the second part of the test as doing essentially, and only, the same thing. And the majority’s proposed test becomes downright disastrous in application because it empowers any home rule city to make any act criminal unless that very act is covered by and also expressly permitted by state criminal law.2

Furthermore, the Portland indecent exposure ordinance is invalid even under the majority’s erroneous analysis. The majority opinion adverts to the fact that in 1971, the state legislature repealed a longstanding indecent exposure statute which criminalized both sexually motivated and non-sexually motivated exposure and replaced it with the statute that is now in effect, which criminalizes only exposure of genitalia that is sexually motivated. That fact, in itself, would seem to attest to a conscious decision by the legislature to permit uncovering the full body so long as that act of exposure was not intended to arouse sexual desire in another person or the actor. But given that the legislative history also indicates that the legislature affirmatively considered the element of sexual motivation before the present bill was passed, a conclusion that the legislature consciously intended to permit non-sexually motivated nudity seems obligatory.3 Therefore, even *165assuming for the sake of argument, that local criminal ordinances prohibiting some conduct are invalidated only when the state has manifested some intent to affirmatively permit the conduct in the sense of consciously repealing or changing its former criminal statutes, the record shows affirmative decriminalization by the state legislature of the conduct that Portland wishes to prohibit in this case.

II

In addition to avoiding the precedent established in Dollarhide, the majority opinion rests on the assumption that the Oregon Constitution authorizes local governments to make their own, dissimilar, criminal laws. An examination of the relevant language in the constitution, the history of its adoption, and past decisions discloses the error in that assumption.

Article XI, section 2, of the Oregon Constitution provides:

“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.)

Most of what is commonly known about the legislative history of Article XI, section 2, was summed up in Justice Harris’ opinion in Rose v. Port of Portland, 82 Or 541, 162 P 498 (1917), overruled on other grounds by State ex rel Heinig v. Milwaukie, 231 Or 473, 373 P2d 680 (1962), written only 11 years after the amendment became law. Justice Harris described how a circular letter accompanied by a tentative draft of the proposed amendment was mailed ‘ ‘to more than a thousand representative citizens of Oregon to get their opinion on the wisdom of trying to submit the * * * suggested constitutional amendments.” 82 Or at 560. The tentative *166draft was “substantially the same and almost identical in terms with Senate Joint Resolution No. 3, which was adopted by the legislative assembly in 1901 and again in 1903.” Id.4 However, the initiative petitions were not circulated until certain changes had been made to this tentative draft based on that consultation with representative citizens. Id. at 562.

One of those changes is significant here. According to the language in the tentative draft, which followed the language of the 1901 and 1903 state legislative resolutions,

“cities or towns * * * shall be subject to and controlled by general laws. Any city shall be permitted to frame and enact a charter for its own government consistent with and subject to the constitution and laws of this state * * (Emphasis added.)

“Introductory Statements, Arguments and Suggested Amendments to the Constitution of Oregon and an Anti-Pass Law for Public Officials,” at 5. But the phrase that appeared in the initiative petitions actually proposing the city home rule amendment which became part of the Oregon Constitution made the powers given cities and towns thereunder “subject to the Constitution and criminal laws of the State of Oregon.”

Little is recorded about the precise reason for the change from the more general limitation of “general laws” to the specific “criminal laws” limitation. However, where the earlier version of a provision of law sought to prevent any conflict between state and local legislation, and the latter “amended” version, as enacted, gave local governments some freedom to enact conflicting general laws, but no equivalent freedom to enact conflicting criminal laws, we should heed that fact and give it force. As the leading authority on municipal law in Oregon put it, the phrase ‘subject to,’ in the context of Article IX, section 2, of the Oregon Constitution,

“implies * * * that city voters cannot include in a city charter any feature that runs counter to the constitution or criminal laws of the state. The phrase also implies that subsequent changes in the constitution and criminal laws apply to charters and ordinances, impliedly amending or even repealing every conflicting provision in them. The phrase implies that *167the preceding prohibition against the legislature’s amending a city charter is limited to amendment by noncriminal law, allowing the legislature to affect city law by state criminal law, but not by noncriminal general law — * * * not by ‘civil’ law.” Etter, Municipal Home Rule In Oregon 555-56 (Sourcebook Version 1991) (footnotes and citations omitted).

Clearly, we must attribute some significance to the fact that criminal law is singled out for special treatment. Without a doubt, we must approach local criminal legislation using a standard requiring more scrutiny than local general legislation. As we said in City of Portland v. Dollarhide, supra, 300 Or at 497:

“[w]e are left * * * with the inescapable conclusion that the voters who adopted Article XI, section 2[,] envisioned a stricter limitation on the lawmaking power of cities in respect of criminal laws than with regard to civil or regulatory measures. Thus, the same interpretation and assumptions of compatibility found in civil and regulatory areas cannot be applied in evaluating the relationship between state and municipal criminal laws.” (Emphasis added.)

In City of Portland v. Dollarhide, supra, we adopted the “reversed assumption” as the rule for analyzing state/ municipal disputes in the criminal context. Id. at 501. Shortly thereafter, in City of Portland v. Lodi, 308 Or 468, 472, 782 P2d 415 (1989), we subjected a local criminal ordinance to the “reversed assumption” analysis again:

In the criminal law context, because of the “subject to * * * criminal laws of the State” language in the constitution, we should assume that the legislature did, in fact, intend to exclude local criminal legislation on the same subject. A proponent of preemption by a state criminal law may rest on that assumption unless the supporters of the local ordinance are able to point to some clear legislative expression (1) that the state law and municipal ordinances may function consistently or (2) that the legislature did not intend to exclude related local criminal law.5

*168We should conclude, from the foregoing analysis, that if Article XI, section 2, authorized incompatible local legislation in the criminal field, any assumption of state exclusivity would be rendered meaningless — proponents of local criminal laws could always point to the home rule provision as a clear expression that the state had authorized, and did not intend to exclude, their city’s or town’s enactments of criminal law.

Thus, Article XI, section 2, while granting local governments general authority to legislate, accomplished no such grant in the area of criminal and constitutional law. In granting charter authority to cities and towns “subject to the Constitution and criminal laws of the State of Oregon,” Article XI, section 2, reserves those two areas of law to the state as a whole; it neither delegates nor cedes those two areas to any sovereignty by cities and towns.

Certainly there is no ground for objection to local criminal ordinances that exactly duplicate state criminal laws — such ordinances can provide additional enforcement, not to mention revenue for cities, without disturbing the state’s legislative authority. 6 In addition, it is clear that some local power to draft criminal ordinances may arise, either expressly or by implication, from state statutes. For instance, ORS 221.410(1) appears to grant cities authority to pass criminal ordinances which are “necessary or convenient for the government of [their] local affairs.”7 ORS 221.340, dealing with *169prosecution of city parking ordinances, and ORS 153.500(4), defining city traffic offenses, imply state authorization to pass criminal ordinances in those areas of the law. 8 On the other hand, the state legislature expressly has forbidden city legislation in certain criminal areas, including public intoxication and vagrancy, ORS 430.325(1), but at the same time, has stated that this prohibition “shall [not] affect any local law or regulation of any political subdivision in this state against driving while under the influence of intoxicants, as defined in ORS 813.010, or other similar offenses that involve the operation of motor vehicles.” ORS 430.325(2).

We should conclude, therefore, that the Article XI, section 2, grants local governments a large degree of freedom to make general laws applicable to their locality, but no equivalent authority to make criminal or unconstitutional laws. When amending the state constitution to provide for home rule, the people of Oregon recognized the peculiar importance of criminal and constitutional law to our system of government, and sought to protect individual citizens from the whims of local lawmakers in those areas of the law by requiring relative uniformity across the state.9 Local criminal ordinances which duplicate state criminal law, even where not supported by specific legislative authority, are to be tolerated and even encouraged, because they do not offend this principle of uniformity but at the same time have the beneficial effect of expanding the state’s enforcement apparatus. But local criminal laws that are not precisely identical *170to state laws on the same subject are presumptively invalid. Only if proponents can identify some specific expression authorizing such laws will they be allowed to stand.

I respond to proponents of a contrary interpretation of Article XI, section 2 — who argue that the amendment creates city-states and must be read generally to allow nonidentical local criminal legislation — by directing their attention to the nearly contemporary interpretation of the “subject to” clause, discussed in note 9 above. Proponents of the contrary interpretation do not offer any support, scanty or otherwise, to rely on. I choose the interpretation supported soon after passage in Winters v. Bisaillon, 152 Or 578, 54 P2d 1169 (1936), and by Orval Etter.

Turning to Portland’s indecent exposure ordinance, it immediately is clear that PCC § 14.24.060 departs significantly from the state indecent exposure law. To secure a conviction under the local ordinance, prosecutors need not prove “intent to arouse sexual desire” — an element that is essential for conviction under state law. Evidently, the Portland ordinance does not duplicate the state law, and is more than a localized extension of the state’s enforcement authority. Therefore, it is necessary to apply the assumptions spelled out in LaGrandeiAstoria, Dollarhide, and Lodi.

As stated in those cases, it must be assumed that, when analyzing a local criminal ordinance that purports to compete with a state criminal law, the state legislature intended to exclude any competing local legislation. In this case, the city has not drawn our attention to any legislative expression controverting that assumption. Nor have I been able to identify any such expressions.

In particular, the state legislature never has expressly or impliedly authorized municipal lawmaking in the area of public indecency. Nor does the general statutory grant at ORS 221.410(1) appear to authorize Portland’s indecent exposure law, because that provision covers only local actions which are necessary and convenient to governance of local affairs, and public indecency is clearly a matter of statewide, rather than merely local, concern. In short, in the absence of concrete evidence to the contrary, I would find that the Portland exposure ordinance, punishing criminally *171without requiring that the exposure be accompanied by the intent specified in state law, is the product of an ultra vires exercise of municipal power violative of the “subject to” clause in the home rule amendment and is therefore invalid.10

Carson, C. J., joins in this dissent.

The concurring opinion relies on delegations of police power to the city by the state legislature in the early 1900’s to support the ordinance. This case is about the state constitutional provision making a city’s legislative acts “subject to * * * the criminal laws of the State.” Or Const, Art XI, § 2. This dissent is limited to that issue.

Under the majority’s analysis, nothing prevents Portland and other Oregon cities from passing criminal ordinances on other subjects to enforce majority attitudes within that given community, such as imposing abortion procedural delays and Saturday bank openings.

The majority assigns to state criminal laws the function of disclosing what human conduct is permitted conduct. But those passing such laws traditionally believe, instead, that they are deciding only what conduct is prohibited. Looking for what is “permitted” in criminal laws designed and intended to “prohibit” is at best like looking for a needle in a haystack. At worst, it suggests that the people of the state have no personal freedoms of conduct, vis-a-vis, city or town government, unless spelled out in the state criminal code.

As the majority points out, the legislative commentary to ORS 163.465 states, “[a]n exposure that is not sexually motivated would not violate this section, but might be ‘disorderly conduct.’ ” Commentary to Oregon Criminal Code of 1971, 156 (1975).

The majority infers from this statement that the legislature had in fact not decided that nonsexually motivated conduct was permissible, because such conduct *165might be prohibited as “disorderly conduct.” But the disorderly conduct statute criminalizes only disorderly behavior which is performed with an intent “to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof.” ORS 166.025.

That fact strongly suggests that the “disorderly conduct” reservation in the legislative commentary merely reflected the legislature’s acknowledgment that nudity accompanied by these latter types of specific intent was made criminal under the disorderly conduct heading — not that the legislature had stopped short of deciding that nudity without some specific intent was permitted.

Justice Harris was Speaker of the House in 1903.

In City of Portland v. Lodi, 308 Or 468, 574-75, 782 P2d 415 (1989), we found that a municipal criminal ordinance had been preempted by pointing to legislative history of a competing state law that suggested an intention to preempt. Although instructive, this exercise was unnecessary under the terms of the above analysis. It was incumbent upon the proponents of the local ordinance to demonstrate a *168legislative intention to allow competing local criminal legislation, and their failure to do so settled the question.

It is, of course, axiomatic that local governments have no inherent sovereign authority — any powers that local governments enjoy must derive from some’ delegation by a higher authority. See City of Corvallis v. Carlile, 10 Or 139 (1882) (strict construction of charter powers, ordinance requiring Sunday closures not within power of city to pass ordinances to secure the peace of the city); Richards v. City of Portland, 121 Or 340, 349, 255 P 326 (1927) (strict construction of charter grant of power to a municipality, doubtful cases should be resolved against finding a grant of power).

ORS 221.410 in its entirety provides:

“Except as limited by express provision or necessary implication of general law, a city may take all action necessary or convenient for the government of its local affairs.” Notably, this delegation of legislative authority is limited to actions related to local affairs. Because most of criminal law cannot be legitimately considered purely local in nature, this would appear to be a fairly significant *169restriction. The level of intent required to trigger criminal sanctions is not a local affair but applies uniformly statewide.

See also, e.g., ORS 167.121, authorizing cities and counties to allow certain “social games” in the face of state gambling laws.

This court has, on at least one previous occasion, discussed the destructive effect that a patchwork pattern of local criminal ordinances would have on state criminal law. In Winters v. Bisaillon, 152 Or 578, 591, 54 P2d 1169 (1936), this court held that the state retained the right to enact traffic laws, “which right * * * can not be curtailed, infringed upon or annulled by local authorities.” In so holding, this court said “[i]t would be a sad commentary on the wisdom of the electorate if we should hold that the movement of a citizen of the state or a traveler from abroad was subject to the whim of every municipality, great or small, between the Columbia River and the California line as to the rate of speed he should drive and the care he should exercise * * *. The state law is a criminal law whose every provision would be worthless but for the penalties prescribed for its violation.” Id. at 585 (quoting Lidfors v. Pflaum, 115 Or 142, 157, 236 P 1059 (1925)).

There is not the slightest hint that the home rule amendment was intended to confer on cities the power of state sovereignty to make general criminal laws, laws not necessary for controlling local affairs. A. Eaton, The Oregon System 59-60 (1912). In any event, Article IV, section 3, of the Constitution of the United States, a provision not yet interpreted by the highest court, provides that “no new State shall be formed or erected within the Jurisdiction of any other State.”