BENJAMIN GUTMAN #160599 ANNA BELAIS #141046 Solicitor General Deputy Public Defender JORDAN R

May 7, 2018 04:23 PM

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON, Washington County Circuit Court Case No. C141815CR Plaintiff-Respondent, Respondent on Review, Court of Appeals No. A159939 v. Supreme Court No. S065368 VICTOR UROZA-ZUNIGA,

Defendant-Appellant, Petitioner on Review.

PETITIONER’S BRIEF ON THE MERITS

Review of the decision of the Court of Appeals on an appeal from a judgment of the Circuit Court for Washington County Honorable Rick Knapp, Judge

Opinion Filed: August 2, 2017 Author of Opinion: Wilson, Senior Judge Concurring Judges: Armstrong, Presiding Judge, and Shorr, Judge

ERNEST G. LANNET #013248 ELLEN F. ROSENBLUM #753239 Chief Defender Attorney General Criminal Appellate Section BENJAMIN GUTMAN #160599 ANNA BELAIS #141046 Solicitor General Deputy Public Defender JORDAN R. SILK #105031 Office of Public Defense Services Assistant Attorney General 1175 Court Street NE 400 Justice Building Salem, OR 97301 1162 Court Street NE [email protected] Salem, OR 97301 Phone: (503) 378-3349 [email protected] Attorneys for Petitioner on Review Phone: (503) 378-4402 Attorneys for Respondent on Review

64409 05/18 i

TABLE OF CONTENTS

STATEMENT OF THE CASE ...... 1

Introduction ...... 1

Questions Presented and Proposed Rules of Law ...... 3

Summary of Argument ...... 4

Argument ...... 7

A. The state is sovereign; a city is merely its agent and not a competing or coequal sovereign...... 8

B. Article XI, section 2, preserves the state’s plenary authority to enact general laws that apply throughout the state...... 10

C. Article XI, section 2, preempts a city’s authority to enact or enforce a local ordinance that conflicts with state law...... 13

II. BCC 5.02.083 conflicts with ORS 430.402 and is therefore preempted under Article XI, section 2...... 20

A. ORS 430.402 precludes local legislation penalizing public drinking in all public places...... 21

B. Construing ORS 430.402 to allow a local government to regulate public drinking conduct in all public places within its jurisdiction would frustrate state policy...... 35

C. BCC 5.02.083 is preempted by state law...... 36

III. An arrest for violating an unconstitutionally preempted local ordinance violates Article I, section 9...... 38

A. Probable cause is an objective legal determination made by the court after considering all relevant circumstances...... 38

B. Defendant’s arrest was not justified by probable cause because the objective facts did not actually violate the law...... 44

CONCLUSION ...... 47

TABLE OF AUTHORITIES

Cases

1000 Friends of Oregon v. Land Conservation and Development Comm’n, 303 Or 430, 737 P2d 607 (1987) ...... 29

Brentmar v. Jackson County, 321 Or 481, 900 P2d 1030 (1995) ...... 25

Burton v. Gibbons, 148 Or 370, 36 P2d 786 (1934) ...... 10

City of Klamath Falls v. Oregon Liquor Control Comm’n, 146 Or 83, 29 P2d 564 (1934) ...... 20

City of Portland v. Dollarhide, 300 Or 490, 714 P2d 220 (1986) ...... 16, 17, 18

City of Portland v. Jackson, 316 Or 143, 850 P2d 1093 (1993) ...... 16, 17, 19, 21

City of Portland v. Lodi, 308 Or 468, 782 P2d 415 (1989) ...... 16, 17, 19

iii

Hunter v. City of Pittsburgh, 207 US 161, 28 S Ct 40, 52 L Ed 151 (1907) ...... 8

Kalich v. Knapp, 73 Or 558, 142 P 594, reh’g den, 145 P 22 (1914) ...... 15

Keeney v. City of Salem, 150 Or 667, 47 P2d 852 (1935) ...... 37

LaGrande/Astoria v. PERB, 281 Or 137, 576 P2d 1204, adh’d to on reh’g, 284 Or 173 (1978) .. 13, 14, 15, 16, 17, 18, 20, 30, 36

Michigan v. DeFillippo, 443 US 31, 99 S Ct 2627, 61 L Ed 2d 343 (1979) ...... 44, 45, 46

PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993) ...... 22, 23

Powell v. Texas, 392 US 514, 88 S Ct 2145, 20 L Ed 2d 1254 (1968) ...... 32

Rogue Valley Sewer Servs. v. City of Phoenix, 357 Or 437, 353 P3d 581 (2015) ...... 18

Rose v. Port of Portland, 82 Or 541, 162 P 498 (1917) ...... 9, 10, 11, 12, 13, 14

State v. Branch, 362 Or 351, 408 P3d 1035 (2018) ...... 23

State v. Clemente-Perez, 357 Or 745, 359 P3d 232 (2015) ...... 28

State v. Cloman, 254 Or 1, 456 P2d 67 (1969) ...... 40, 41, 42, 45

State v. Cloutier, 351 Or 68, 261 P3d 1234 (2011) ...... 22, 23, 28

State v. Cooper, 319 Or 162, 874 P2d 822 (1994) ...... 22

State v. Czerniak, 336 Or 392, 84 P3d 140 (2004) ...... 25

State v. Davis, 295 Or 227, 666 P2d 802 (1983) ...... 46

State v. Davis, 313 Or 246, 834 P2d 1008 (1992) ...... 46

State v. Duffy, 135 Or 290, 295 P 953 (1931) ...... 39, 40

State v. Esplin, 314 Or 296, 839 P2d 211 (1992) ...... 43

State v. Fair, 353 Or 588, 320 P3d 417 (2013) ...... 38

State v. Gaines, 346 Or 160, 206 P3d 1042 (2009) ...... 22, 35

State v. Hart, 85 Or App 174, 735 P2d 1283 (1987) ...... 43

State v. Heilman, 268 Or App 596, 342 P3d 1102 (2015) ...... 42

State v. Holmes, 311 Or 400, 813 P2d 28 (1991) ...... 38

State v. Makin, 360 Or 238, 381 P3d 799 (2016) ...... 25

State v. Martin, 327 Or 17, 956 P2d 956 (1998) ...... 43

State v. Miller, 345 Or 176, 191 P3d 651 (2008) ...... 39, 40, 41, 42, 45 v

State v. Okeke, 304 Or 367, 745 P2d 418 (1987) ...... 30

State v. Owens, 302 Or 196, 729 P2d 524 (1986) ...... 39

State v. Serrano, 346 Or 311, 210 P3d 892 (2009) ...... 25

State v. Snow, 337 Or 219, 94 P3d 872 (2004) ...... 41

State v. Stearns, 196 Or App 272, 101 P3d 811 (2004) ...... 43

State v. Stookey, 255 Or App 489, 297 P3d 548 (2013) ...... 42

State v. Tiffin, 202 Or App 199, 121 P3d 9 (2005) ...... 43

State v. Tourtillott, 289 Or 845, 618 P2d 423 (1980) ...... 38

State v. Uroza-Zuniga, 287 Or App 214, 402 P3d 772 (2017), rev allowed, ___ Or ___ (2018) ... 3, 47

State v. Vasquez-Rubio, 323 Or 275, 917 P2d 494 (1996) ...... 35

State v. Vasquez-Villagomez, 346 Or 12, 203 P3d 193 (2009) ...... 38, 43

State v. Walker, 356 Or 4, 333 P3d 316 (2014) ...... 26

Stull v. Hoke, 326 Or 72, 948 P2d 722 (1997) ...... 30

W. Linn Corp. Park, L.L.C. v. City of W. Linn, 349 Or 58, 240 P3d 29 (2010) ...... 37 vi

Winters v. Bisaillon, 152 Or 578, 54 P2d 1169 (1936) ...... 15

Constitutional Provisions and Statutes

US Const, Amend VIII ...... 32

US Const, Amend XIV ...... 32

Or Const Art I, § 9 ...... 1, 2, 3, 4, 6, 7, 38, 39, 42, 43, 44, 45, 46

Or Const Art IV, § 1 ...... 8, 10

Or Const, Art XI, § 2 ...... 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 17, 19, 20, 30, 44

Former ORS 166.035, repealed by Or Laws 1975, ch 715 § 2 ...... 31

Former ORS 166.160, repealed by Or Laws 1971, ch 743, § 432 ...... 31

ORS 174.010 ...... 28

ORS 221.916 ...... 9

ORS 430.325(2), renumbered as ORS 430.402(2) (2011) ...... 19

ORS 430.402 ..... 1, 2, 3, 4, 6, 7, 17, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 33, 34, 35, 36, 37

ORS 471.001 ...... 23

ORS 471.164 ...... 9

ORS 475.894 ...... 1

ORS 810.410 ...... 43

ORS 811.170 ...... 20

ORS Chapter 221 ...... 9 vii

Senate Bill 431 (1971) ...... 30, 31, 32, 34

Other Authorities

John F. Dillon, 1 The Law of Municipal Corporations (2d ed 1873) ...... 9

William S. U’Ren, Introductory Statement, Arguments and Suggested Amendments to the Constitution of Oregon and an Anti-Pass Law for Public Officials, September 6, 1905 ...... 11

2017 Or Laws, ch 21 § 60 ...... 34

Beaverton City Code 5.02.010 ...... 6, 37

Beaverton City Code 5.02.083 ...... 1, 2, 3, 4, 6, 7, 20, 36, 37, 44

Beaverton City Code 5.02.100 ...... 37

Black’s Law Dictionary (10th ed 2014) ...... 37

Or Laws 1971, ch 622 ...... 30

Or Laws 1972, ch 622, § 1, codified as ORS 430.315 ...... 31

Or Laws 1972, ch 622, § 2, codified as ORS 430. 30 ...... 31

Or Laws 1971, ch 622, § 3, codified as ORS 430.325, renumbered as ORS 430.402 (2011) ...... 31

Or Laws 1972, ch 622, §§ 4–6 ...... 31

Or Laws 1971, ch 622, § 6, codified as ORS 426.450, renumbered as ORS 430.397 (1995) ...... 31

Or Laws 1971, ch 622, § 7, codified as ORS 426.460, renumbered as 430.399 (1995) ...... 31

Or Laws 1973, ch 795 § 3 ...... 34

viii

Or Laws 1975, ch 715 § 1 ...... 33

Or Laws 1977, ch 745 § 39 ...... 34

Or Laws 2017, Ch 21, § 60 ...... 21

Oregon State Archives Exhibit, Prohibition in Oregon, available at http://sos.oregon.gov/archives/exhibits/highlights/Pages/prohibition.aspx (last accessed May 7, 2018) ...... 20

Tape Recording, House Committee on Health, Education & Welfare, SB 431, May 7, 1971, Tape 2, side 2 ...... 33

Tape Recording, Senate Human Resources Committee, SB 431, March 16, 1971, Tape 4, side 2 ...... 32

The Oregon Liquor Control Act of 1933 ...... 23

Webster’s Third New Int’l Dictionary (unabridged ed 2002) ...... 23 PETITIONER’S BRIEF ON THE MERITS

STATEMENT OF THE CASE

Introduction

In this criminal case, a Beaverton police officer saw defendant drinking from an open bottle of beer in a convenience store parking lot. The officer arrested defendant for violating a local ordinance that prohibits drinking or possessing an open container of alcohol in any public place. The local ordinance provides, in relevant part:

“No person shall consume alcoholic liquor or possess an open container of an alcoholic beverage while in or upon any public place, unless authorized by the [Oregon Liquor Control] Commission or [by written permit within a park under the jurisdiction of Tualatin Hills Park and Recreation District].”

Beaverton City Code (BCC) 5.02.083(A). An inventory of defendant’s wallet at the police station revealed methamphetamine. The state charged defendant with unlawful possession of methamphetamine, ORS 475.894.

Defendant moved to suppress evidence derived from an unreasonable seizure under Article I, section 9, of the Oregon Constitution. The police officer lacked objectively reasonable probable cause to arrest defendant because

BCC 5.02.083 is preempted by ORS 430.402, which provides in part:

“(1) A political subdivision in this state shall not adopt or enforce any local law or regulation that makes any of the following 2

an offense, a violation or the subject of criminal or civil penalties or sanctions of any kind:

“* * * * *

“(b) Public drinking, except as to places where any consumption of alcoholic beverages is generally prohibited.”

The trial court denied the motion and, ultimately, entered a judgment of conviction.

On appeal, defendant maintained that BCC 5.02.083 conflicts with, and is therefore preempted by, state law. First, defendant argued that BCC 5.02.083’s prohibition and punishment of public drinking is broader than allowed by ORS

430.402(1)(b). The ordinance penalizes consumption or possession of an open container of alcohol in any public place, whereas ORS 430.402 expressly forbids local governments from prohibiting public drinking generally—except as to specific places where alcohol consumption is prohibited. Second, defendant argued that construing the exception to allow local punishment of public drinking in any public place would frustrate the state’s policy approach to public intoxication and alcoholism. App Br 11–19.

The state responded with two arguments. First, the state asserted that

BCC 5.02.083 fits squarely within the exception provided in ORS

430.402(1)(b). Resp Br 2–5. Second, the state argued that, even assuming the local ordinance is unconstitutional, defendant’s arrest did not run afoul of

Article I, section 9, because an officer who reasonably believes that someone is

3 violating an ordinance has probable cause to arrest—even an ordinance later shown to lack legal effect due to state-law preemption. Resp Br 6–13.

Defendant replied in protest to the state’s invitation to recognize a good- faith exception as to that aspect of probable cause. He argued that the objective-reasonableness inquiry for an arrest under Article I, section 9, hinges on actual authority rather than an officer’s good-faith belief as to the state of the law. Reply Br 2–5.

The Court of Appeals held that ORS 430.402(1)(b) does not preempt

BCC 5.02.083; because the court concluded that BCC 5.02.083 was not preempted, it did not reach the suppression issue. State v. Uroza-Zuniga, 287

Or App 214, 402 P3d 772 (2017), rev allowed, ___ Or ___ (2018).

This court allowed review to answer two questions: (1) whether the

Beaverton ordinance for which defendant was arrested is preempted by state law and (2) whether an arrest for violating an unconstitutional local ordinance violates Article I, section 9.

Questions Presented and Proposed Rules of Law

First Question Presented: Does ORS 430.402(1)(b), which prohibits political subdivisions from adopting or enforcing any local law or regulation that penalizes public drinking, “except as to places where any consumption of alcoholic beverages is generally prohibited” conflict with Beaverton City Code

(BCC) section 5.02.083, which prohibits consumption or possession of an open container of alcoholic beverage in “any public place”?

First Proposed Rule of Law: Yes. ORS 430.402(1)(b) allows local governments to penalize public drinking only in certain places, but not in all public places or in public at large. Because BCC 5.02.083 penalizes public drinking in all public places, it conflicts with, and is therefore preempted by,

ORS 430.402.

Second Question Presented: Does an arrest for violating an unconstitutional local ordinance violate Article I, section 9, of the Oregon

Constitution?

Second Proposed Rule of Law: Yes. Probable cause to arrest under

Article I, section 9, has both a subjective and objective component: an officer must subjectively believe that a person is subject to arrest and a constitutionally sufficient objective basis must justify that belief. An officer lacks probable cause to arrest a person for violating an unconstitutional statute or ordinance when the facts as reasonably believed do not constitute a violation of law.

Summary of Argument

Defendant’s arrest for violating BCC 5.02.083 was not supported by probable cause because that ordinance is preempted by state law and is therefore invalid. Accordingly, defendant’s arrest violated Article I, section 9,

5 and all evidence derived from the unlawful arrest should have been suppressed. The analysis breaks into three sections, paralleled below in the argument section.

I. The legislature has plenary power to enact general laws that apply uniformly throughout the state. Article XI, section 2, grants a city power to enact ordinances without prior approval from the legislature, but it preempts a city’s authority to enact a local ordinance that conflicts with state law. A local ordinance conflicts with state law if it is incompatible with legislative policy, either because both cannot operate concurrently or because the legislature meant its law to be exclusive.

II. ORS 403.402(1)(b) expresses the legislature’s intent to occupy the field and to preclude local regulation of public drinking conduct, save one exception.

While the plain text is somewhat ambiguous, the text in context evinces an intent to prohibit a political subdivision from penalizing public drinking in every public place, or in public at large, within its jurisdiction. Such an interpretation would upend the undeniable ban on public drinking ordinances.

Rather, the legislature intended to allow local authority latitude to exclude public drinking in certain places that, in the exercise of local political will, are deemed particularly incompatible with alcohol consumption. Further, the legislative history shows that the local preemption of public drinking conduct gave effect to a sweeping change in policy approach to alcoholism and its

6 attendant behavior. To construe ORS 430.402(1)(b) liberally to allow a blanket local prohibition of public drinking would allow a local government to circumvent the legislature’s intent to preempt the field.

The Beaverton City Code penalizes consuming or possessing an open container of alcohol in any public place, defined as any place to which the general public has access. BCC 5.02.083; BCC 5.02.010. The local ordinance conflicts with ORS 430.402(1)(b) because the City of Beaverton circumvented the ban on public drinking ordinances by prohibiting public drinking in all public places within city limits instead of specified places selected through political will. Accordingly, BCC 5.02.083 is preempted under Article XI, section 2, and has no legal effect.

III. Article I, section 9, requires that an arrest be justified by probable cause. Probable cause has both a subjective and an objective component: the officer must subjectively believe that a person is subject to arrest, and a constitutionally sufficient objective basis must support that belief. The objective component is a legal question made by the court by determining whether the facts observed by the officer, objectively considered, could justify a belief that someone violated the law. Here, defendant’s arrest was not supported by probable cause because the facts observed by the officer did not actually constitute a violation of the law.

Argument

Defendant seeks suppression of evidence found during an inventory of his belongings after his arrest for violating a Beaverton local ordinance that prohibits drinking or possessing an open container of alcohol in any public place. Defendant’s arrest violated Article I, section 9, of the Oregon

Constitution because it was not supported by probable cause. BCC 5.02.083 is not a valid ordinance because it conflicts with ORS 430.402(1)(b) and is therefore preempted under Article XI, section 2, of the Oregon Constitution.

Thus, the objective facts perceived by the arresting officer did not constitute a violation of the law.

Should the court conclude that defendant’s arrest did not violate Article I, section 9, defendant would not be entitled to suppression. The court could potentially so hold without reaching the preemption issue. That is, the court could hold that an officer’s objectively reasonable belief that someone violated a local ordinance—even one preempted by state law—justified an arrest.

Nonetheless, defendant addresses the preemption issue first, because both implicate constitutional questions, and because a practice of deciding an Article

I, section 9, issue first in this context would insulate local ordinances from a review for constitutionality absent a prosecution for that offense and entry of a demurrer.

I. The Oregon Constitution vests the Legislative Assembly with plenary power to enact general laws that apply throughout the state. Article XI, section 2, preempts a city’s authority to enact a local ordinance that conflicts with state law. This case ultimately turns on whether the City of Beaverton has authority to prohibit public drinking in any public place subject to arrest and penalty of imprisonment. Defendant begins this section by reviewing the sources of a city’s authority to define and enforce local criminal ordinances. Defendant then discusses how Article XI, section 2, allocates power between a city and the state, and specifically how it both limits a city’s authority to enact local ordinances and preserves the state’s authority to enact general laws to which a city must conform. Finally, defendant discusses this court’s modern preemption doctrine and its application in the criminal context.

A. The state is sovereign; a city is merely its agent and not a competing or coequal sovereign. The Oregon Constitution vests the state’s legislative power in the

Legislative Assembly. Or Const Art IV § 1. “Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be intrusted to them.”

Hunter v. City of Pittsburgh, 207 US 161, 178, 28 S Ct 40, 52 L Ed 151 (1907).

Cities are not sovereign and have no inherent powers; they possess only those powers specifically delegated to them by state law, and such powers are strictly construed. Id. (“The number, nature, and duration of the powers conferred

9 upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the state.”); John F. Dillon, 1 The Law of

Municipal Corporations, § 9b, 93 (2d ed 1873) (“[Municipalities] possess no powers or faculties not conferred upon them, either expressly or by fair implication, by the law which creates them, or other statutes applicable to them.”).

Enabling legislation grants Oregon cities authority to incorporate and govern themselves and includes fairly broad, but not unlimited, power to legislate in substantive areas. See ORS Chapter 221 (governing the organization and government of cities and including the 1893 Incorporation

Act, ORS 221.901–928). For example, cities may “[e]xercise any and all police regulations concerning the public morals, public safety, public health and public convenience of the inhabitants of any such city.” ORS 221.916(1)(m). The legislature also grants authority to cities in specific substantive areas. See, e.g.,

ORS 471.164(1) (allowing cities to adopt reasonable time, place, and manner regulations on the nuisance aspects of establishments licensed to serve alcoholic beverages if the city makes specific findings).

But a city’s authority to adopt a municipal charter and to enact ordinances pursuant to a charter—to “legislate power unto itself to legislate”— remains limited by express legislative grants of authority. Rose v. Port of

Portland, 82 Or 541, 573, 162 P 498 (1917). Importantly, the legislature retains

10 plenary power to enact general laws to which a city must conform, even to the extent of amending their charter authority. Burton v. Gibbons, 148 Or 370,

375–76, 36 P2d 786 (1934).

B. Article XI, section 2, preserves the state’s plenary authority to enact general laws that apply throughout the state. In 1906, voters adopted Article XI, section 2, which provides:

“Corporations may be formed under general laws, but shall not be created by the Legislative Assembly by special laws. 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.”

Shortly after its adoption, this court undertook a thorough review of the text and history of Article XI, section 2. In Rose v. Port of Portland, 82 Or 541, 162 P

498 (1917), the court considered whether Article XI, section 2, confers upon ports (corporations formed under general laws)—as well as cities and towns— the power to amend their own charters.1 Id. at 549. The court interpreted

Article XI, section 2, by examining the history of the amendment, and it sought to determine the voters’ intent, give effect to each provision, and harmonize it

1 The court also considered whether the other “home rule” amendment adopted by 1906 voter initiative conferred that power. Rose emphasized that Article XI, section 2, and Article IV, section 1a (now 1(5)), of the Oregon Constitution, which reserves the initiative and referendum powers to municipalities as to all local, special and municipal legislation, must be read together. 82 Or at 549–51. While this court has consistently followed that directive, this case does not implicate Article IV, section 1(5).

11 with the Constitution as a whole. Id. at 548–49. The court rejected the contention that Article XI, section 2, grants absolute home rule to cities and towns. Id. at 571–72.

The People’s Power League of Oregon, an organization whose membership included William S. U’Ren and future Oregon Supreme Court

Chief Justice Thomas McBride (who later joined the unanimous opinion in

Rose), proposed Article XI, section 2, as a means to achieve a specific government reform: to end the legislature’s practice of granting charter authority to a particular city or town by a special law drafted and referred by only a few legislators. Rose, 82 Or at 561–62 (citing William S. U’Ren,

Introductory Statement, Arguments and Suggested Amendments to the

Constitution of Oregon and an Anti-Pass Law for Public Officials, September 6,

1905). Proponents contended that the legislature was the wrong representative body to determine purely local affairs because “[o]f what interest are the local laws of Portland to farmers of Klamath county, or the charter or ordinances of

Lakeview to the fishermen of the Columbia river?” Id. Article XI, section 2, would instead enable a committee of local citizens to draft a charter to be approved by the people at a local election and thereby “place the power to make the city laws in the hands of the people who have to obey them.” Id. at 561.

Proponents billed the amendment as “another step towards home rule in home affairs” for cities and towns. Id.

Rose concluded that neither the text nor the history of Article XI, section 2, evinced an intent to grant absolute home rule to cities and towns. To the contrary, while the text of Article XI, section 2, limits the legislature’s power to enact special laws concerning municipalities, cities, and towns, it in no way limits the legislature’s plenary power to enact general laws concerning all municipalities, cities, and towns alike:

“The Legislature has the right to pass a general law concerning municipalities, cities, and towns; the right is contained in the Constitution; and therefore, when the legal voters of a city or town enact or amend a charter, they do so subject to the right of the Legislature to pass a general law because their right to enact or amend their charter must be exercised ‘subject to the Constitution.’”

Rose, 82 Or at 568–69. Further, nothing in the amendment’s drafts or promotional materials suggested “that evils were necessarily involved in the enactment of general laws which affected all the cities and towns alike.” Id. at

561.

The court’s conclusion that Article XI, section 2, preserves the legislature’s power to enact general laws that apply to all cities alike comported with the voters’ intent because

“[w]hile the farmers of Klamath county might not be interested in a law which applied only to Portland, and the Columbia river fishermen might not be concerned in the charter or ordinances of Lakeview, yet, both the Klamath county farmers and the Columbia river fishermen might be vitally interested in a general law which expressed a state–wide policy concerning municipalities * * *.”

Rose, 82 Or at 561–62. Finally, the court’s interpretation squared the amendment with the rest of the constitution by giving effect to home rule without infringing upon state sovereignty:

“The construction adopted here removes friction between the two [“home rule”] amendments, promotes harmony between them, makes them consistent with each other and with themselves and with the Constitution as a whole, and, above all, carries out and preserves the idea of home rule without at the same time creating an imperium in imperio [state within a state] or denying the power of legislation to the sovereign people of the state at large or their agent and representative, the Legislative Assembly, where, in the words of the Constitution itself, ‘the legislative authority of the state shall be vested.’”

Rose, 82 Or at 574 (brackets added).

C. Article XI, section 2, preempts a city’s authority to enact or enforce a local ordinance that conflicts with state law. In the 70 years following Rose, this court decided more than 75 cases addressing the relationship between the authority of the legislature and that of local governments under the home-rule amendments, but the interpretation and application of Article XI, section 2, at times lacked consistency. See

LaGrande/Astoria v. PERB, 281 Or 137, 141–42, 576 P2d 1204, adh’d to on reh’g, 284 Or 173 (1978). LaGrande/Astoria marked a turning point that clarified and distilled this court’s preemption analysis to its current form.

Although LaGrande/Astoria concerned the validity of a state law, Justice

Linde’s majority opinion advanced three guiding principles. First, the court explained that the effect of a general law in a substantive policy area reigns

14 supreme and preempts local authority to enact contrary legislation. 281 Or at

148–49. Second, the court advised that the test for determining the validity of a local ordinance differs depending on whether or not a contrary state law exists.

Id. at 141–42. Third, the court elucidated the judiciary’s proper role in analyzing whether a conflict exists between state and local law. Id. at 147.

LaGrande/Astoria reaffirmed the principle from Rose that the legislature retains plenary authority to enact general laws that apply to all cities alike.

Article XI, section 2, allows the people of the locality to decide upon the organization of their government and the scope of its powers under its charter without having to obtain statutory authorization from the legislature. 281 Or at

142. At the same time, “it is elementary that the legislature has plenary authority except for such limits as may be found in the constitution or in federal law.” Id.

The court emphasized that Article XI, section 2, does not grant cities substantive power, but rather governs the allocation of power between cities and the state, and that this allocation of power informs how a court determines whether a conflict exists. Id. at 142–43. Thus, “[t]he validity of local action depends, first, on whether it is authorized by the local charter or by a statute * *

*; second, on whether it contravenes state or federal law.” Id. at 142. Outside the context of laws prescribing the modes of local government (where a city’s home-rule authority is strongest), “the first inquiry must be whether the local

15 rule in truth is incompatible with the legislative policy, either because both cannot operate concurrently or because the legislature meant its law to be exclusive.” Id. at 148 (emphasis added). “[W]hen a local enactment is found incompatible with a state law in an area of substantive policy, the state law will displace the local rule.” Id. at 149. The court emphasized that “[n]o state law in an area of substantive policy has ever been held insubordinate to a contrary local rule since Kalich v. Knapp, [73 Or 558, 142 P 594, reh’g den, 145 P 22

(1914)] was overruled [by Winters v. Bisaillon, 152 Or 578, 54 P2d 1169

(1936)].” LaGrande/Astoria, 281 Or at 149.

Further, because Article XI, section 2, does not “purport to divide areas of substantive policy between the levels of government,” in determining whether a conflict exists the court should not weigh the merit of competing policies, which “are the essence of political, not judicial, decision.” Id. at 142,

148. Rather, the court’s decisions “must be derived from a constitutional standard, not from the court’s own view of competing public policies.” Id. at

147. To that end, the court developed a constitutional standard of review for challenges under Article XI, section 2: “It is reasonable to interpret local [civil] enactments, if possible, to be intended to function consistently with state laws, and equally reasonable to assume that the legislature does not mean to displace

16 local civil or administrative regulation of local conditions by a statewide law unless that intention is apparent.” Id. at 148–49 (footnote omitted).2

D. A local criminal ordinance conflicts with state law if it is incompatible with legislative policy, either because both cannot operate concurrently or because the legislature meant its law to be exclusive. This court has decided only three preemption cases challenging the validity of a local criminal ordinance since LaGrande/Astoria: City of Portland v. Dollarhide, 300 Or 490, 714 P2d 220 (1986), City of Portland v. Lodi, 308

Or 468, 782 P2d 415 (1989), and City of Portland v. Jackson, 316 Or 143, 850

P2d 1093 (1993). All three cases presented the preemption issue in the context of a demurrer filed to challenge a local criminal ordinance on the grounds that it conflicted with a state criminal law prohibiting the same or similar conduct.

The approach for determining the validity of the local ordinance applied in those cases does not apply here. As the court in LaGrande/Astoria observed, the conflict analysis differs depending on whether or not a state statute exists on the same subject. 281 Or at 142. Dollarhide, Lodi, and Jackson addressed and refined the approach for determining whether the legislature intended to

“permit” specified conduct (and thereby preclude local criminal ordinances

2 In a footnote, the court stated that “the reservation in [A]rticle XI, section 2, supra, regarding state criminal law reverses the assumption with respect to such laws.” 281 Or at 149 n 18. Although this court adopted and applied the reverse assumption in two cases, it shortly thereafter disavowed that standard of review in City of Portland v. Jackson, 316 Or 143, 149, 850 P2d 1093 (1993).

17 prohibiting the conduct) in the absence of an express provision doing so.

Here, the legislature affirmatively expressed its intent to occupy the field and to preclude local regulation of public drinking, save one exception. ORS

430.402(1)(b). The meaning and scope of that savings clause controls whether

Beaverton’s public drinking ordinance is valid, because ORS 430.402(1)(b) fully circumscribes a city’s authority to penalize public drinking. Thus, unlike

Dollarhide, Lodi, and Jackson, where the court searched for a political decision from which it could infer an intent to preempt local regulation, here the intent to preempt is express and the court must construe ORS 430.402 to determine the scope of that preemptive intent.

That said, Dollarhide, Lodi, and Jackson each offer some guidance for this case. First, all three cases expressly adopted and applied the “essential test” from LaGrande/Astoria to determine whether a conflict exists under Article XI, section 2. Dollarhide, 300 Or at 501 (“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.’” (quoting

LaGrande/Astoria, 281 Or at 148)); Lodi, 300 Or at 471–72 (adopting the

Dollarhide approach); Jackson, 316 Or at 146–47 (same). Thus, the same principles underlying Article XI, section 2, and preemption in the civil context apply to the criminal context.

Second, while none of the three cases applied the first prong of the essential incompatibility test from LaGrande/Astoria (i.e., whether the local rule in truth is incompatible with the legislative policy because both cannot operate concurrently), those decisions do not foreclose its application.

LaGrande/Astoria instructs that the fundamental question in determining whether a conflict exists between local and state law is compatibility.

Incompatibility exists if either the legislature intends its law to be exclusive or the local law cannot operate concurrently with the state statute. 281 Or at 148.

This court continues to determine compatibility under both prongs in the civil context. See, e.g., Rogue Valley Sewer Servs. v. City of Phoenix, 357 Or 437,

455, 353 P3d 581 (2015) (analyzing both whether the legislature intended to occupy the field and whether the state law and local ordinance can operate concurrently). The LaGrande/Astoria analysis should apply equally in the criminal context, and it would benefit the bench and bar for this court to so clarify.

Finally, each case suggested how a court would analyze the circumstances presented here, where the state enacts a substantive policy and precludes local legislation of certain conduct, but no state law exists prohibiting the conduct. Dollarhide suggested that the validity of a local criminal ordinance with no state counterpart would turn on legislative intent:

“The inquiry is more complicated when the legislature has repealed a criminal statute or expressly decriminalized certain conduct. * * * A court would have to ascertain whether the legislature, by repealing a statute or decriminalizing certain conduct, intended also to preclude local prohibition and punishment of that conduct.”

300 Or 502 n 9. Lodi noted that, “under Article XI, section 2, a ‘policy’ preempts local ordinances only if it expressly or impliedly is adopted as part of the state’s law.” Lodi, 308 Or at 474. And Jackson cited the statute at issue here, ORS 430.402 (former ORS 430.325), as an example of express field occupation:

“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) [renumbered as ORS 430.402 (1) (2011)] prohibits local governments from creating offenses that involve public intoxication, public drinking, and drunk and disorderly conduct. In essence, the legislature has made a decision to prevent local governments from regulating those subjects.”

316 Or at 147 (footnote and citation omitted) (brackets added). The court further cited ORS 430.325(2), renumbered as ORS 430.402 (2) (2011), which expressly authorizes local governments to regulate driving while under the influence of intoxicants, as an example of expressly permitting local legislation on a subject. 316 Or at 147 n 2.

With that guidance, defendant turns to the local ordinance at issue here.

II. BCC 5.02.083 conflicts with ORS 430.402 and is therefore preempted under Article XI, section 2. A local ordinance is valid if it is authorized by the local charter or by a statute, and it does not contravene state or federal law. LaGrande/Astoria, 281

Or at 142. Defendant does not contend that Beaverton lacked implied authority under enabling legislation to prohibit public drinking conduct in specified public places.3 But when the legislature precluded local legislation prohibiting such conduct except as to specified places, that legislative act preempted the city’s authority, by operation of Article XI, section 2, to prohibit such conduct in any public place.

3 Liquor control is a highly regulated area with a complex legal history in Oregon. See generally, Oregon State Archives Exhibit, Prohibition in Oregon, available at http://sos.oregon.gov/archives/exhibits/highlights/Pages/prohibition.aspx (last accessed May 7, 2018) (describing, among other highlights, the voter initiative adopting the 1904 Local Option Act, the 1916 constitutional prohibition amendment and its repeal, and the 1933 Oregon Liquor Control Act (OLCA)); City of Klamath Falls v. Oregon Liquor Control Comm’n, 146 Or 83, 29 P2d 564 (1934) (holding that the prohibition amendment impliedly repealed the 1910 amendment to Article XI, section 2, that vested cities and towns with exclusive authority to regulate the sale of liquor; that the repeal of the prohibition amendment did not revive that clause of Article XI, section 2; and that the OLCA preempts local authority in the field).

While the OLCA contains some criminal provisions, it does not regulate individual public drinking conduct generally. Further, no state statute exists prohibiting public drinking. The closest analog resides in the Vehicle Code. ORS 811.170, a Class B traffic violation, prohibits drinking or possessing alcohol in a motor vehicle when the vehicle is on a highway.

A. ORS 430.402 precludes local legislation penalizing public drinking in all public places. ORS 430.402 (2014) provides:

“(1) A political subdivision in this state shall not adopt or enforce any local law or regulation that makes any of the following an offense, a violation or the subject of criminal or civil penalties or sanctions of any kind:

“(a) Public intoxication.

“(b) Public drinking, except as to places where any consumption of alcoholic beverages is generally prohibited.

“(c) Drunk and disorderly conduct.

“(d) Vagrancy or other behavior that includes as one of its elements either drinking alcoholic beverages or using controlled substances in public, being an alcoholic or a drug-dependent person, or being found in specified places under the influence of alcohol or controlled substances.

“(e) Using or being under the influence of controlled substances.

“(2) Nothing in subsection (1) of this section shall 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.”

(Emphasis added.)4

As the court observed in Jackson, ORS 430.402 expresses the legislature’s intent to exclusively occupy the field in the regulation of specified

4 The legislature amended ORS 430.402(d) and (e) in 2017 to include language concerning using or being under the influence of cannabis. Or Laws 2017, Ch 21, § 60.

22 conduct, with two exceptions. Subsection (2) expressly allows local regulation of DUII and “similar offenses that involve the operation of motor vehicles.” Subsection (1)(b) expressly precludes local regulation of “[p]ublic drinking, except as to places where any consumption of alcoholic beverages is generally prohibited.”

Thus, ORS 430.402(1)(b) allows a local government to penalize public drinking only as to “places where any consumption of alcoholic beverages is generally prohibited.”5 The meaning and scope of this exception is a question of statutory construction. When determining the meaning of a statute, the main goal is to discern the intent of the legislature, as evidenced by the text and context of the statute and any legislative history that the court finds helpful.

State v. Gaines, 346 Or 160, 171–72, 206 P3d 1042 (2009); PGE v. Bureau of

Labor and Industries, 317 Or 606, 610–12, 859 P2d 1143 (1993). If the statute remains ambiguous, the court may resort to maxims of construction. Gaines,

346 Or at 172. A statute is “ambiguous” when there are at least two reasonable interpretations of disputed terms. State v. Cooper, 319 Or 162, 167, 874 P2d

822 (1994). A reasonable interpretation is one that is “not wholly implausible.”

State v. Cloutier, 351 Or 68, 76, 261 P3d 1234 (2011).

5 It may be helpful to rephrase subsection (1)(b) as an affirmative grant of authority: “A political subdivision may adopt and enforce a local law or regulation that makes public drinking an offense * * * as to places where any consumption of alcoholic beverages is generally prohibited.”

1. The text of ORS 430.402(1)(b) is somewhat ambiguous. “[T]he text of the statutory provision itself is the starting point for interpretation and is the best evidence of the legislature’s intent.” PGE, 317 Or at 610. Only one term in subsection (1)(b) has a statutory definition. The

Oregon Liquor Control Act defines “alcoholic beverage” as “any liquid or solid containing more than one-half of one percent alcohol by volume and capable of being consumed by a human being.” ORS 471.001(1); see Cloutier, 351 Or at

99 (applying the assumption that the legislature uses terms in related statutes consistently, absent contrary evidence). Because the rest of subsection (1)(b) consists of words of common usage, it is appropriate to consult dictionary definitions to determine the meaning of its terms “on the assumption that, if the legislature did not give the term a specialized definition, the dictionary definition reflects the meaning that the legislature would naturally have intended.” State v. Branch, 362 Or 351, 357, 408 P3d 1035 (2018) (quotation omitted).

The common meanings of the terms are easily identified. The conjunction or verb “except” means “1 : to take or leave out (something) from a number or a whole : exclude or omit (as from consideration).” Webster’s Third

New Int’l Dictionary 791 (unabridged ed 2002). “As to” is a preposition that means “with reference to : in regard to : as regards : a : ABOUT, CONCERNING,

RESPECTING.” Id. at 134. “Place” as a noun can mean “2 b(1) : a building or

24 locality used for a special purpose” or “3 a : a particular region or center of population.” Id. at 1727. “Any” is an adjective that modifies the noun phrase,

“consumption of alcoholic beverages.” In that context, “any” has two possible meanings: “2 : one, some, or all indiscriminately of whatever quantity : a : one or more : not none—used as a function word to indicate a positive but undetermined number or amount * * * b : ALL—used as a function word to indicate the maximum or whole of a number or quantity.” Id. at 97.

“Generally” is an adverb that modifies “prohibited.” “Generally” is a synonym for “in general,” which also has two possible meanings: “1 a : without exception : inclusively b : in all things : in all respects 2 : for the most part : generally.” Id. at 944. Finally, “prohibit” means “1 : to forbid by authority or command : enjoin, interdict.” Id. at 1813.

Putting those elements together, “public drinking, except as to places where any consumption of alcoholic beverages is generally prohibited” means public drinking, but not in regard to (1) (A) special purpose locations (or spaces) (or buildings) or (B) a center of population where (2) some (or all) consumption of alcoholic beverages is, without exception (or for the most part), forbidden by authority or command.

Aside from the nature of the “places” referenced, the ordinary meaning of the text is ambiguous in at least four ways. First, does “any” mean some consumption or all consumption? Second, must the prohibition be without

25 exception or only for the most part? Third, who may forbid alcohol consumption in such places? ORS 430.402(1)(b) uses the passive voice and does not identify the actor, so it is unclear who the legislature had in mind.

State v. Serrano, 346 Or 311, 322, 210 P3d 892 (2009) (use of passive voice without identifying the actor creates an initial ambiguity); see also Brentmar v.

Jackson County, 321 Or 481, 487, 900 P2d 1030 (1995) (where a statute uses the passive voice of the key verb and does not specify the actor, the operative wording of the statute is ambiguous); but see State v. Makin, 360 Or 238, 242 n

3, 381 P3d 799 (2016) (passive voice might also imply that the legislature was not concerned with the actor, but the action). Thus, it is plausible that the legislature had any number of authorities in mind—the state, the political subdivision, prevailing social norms, the proprietor of a public accommodation, or some combination thereof—or none in mind at all. Fourth, how broad may the exception sweep? In other words, is there a limit on the number or designation of such places?

2. The context suggests that ORS 430.402(1)(b) allows a political subdivision to penalize public drinking conduct only when it accompanies an attendant circumstance and that the conduct and circumstance are not coextensive. In construing a statute, individual phrases should not be read in isolation, but must be considered in context. State v. Czerniak, 336 Or 392, 401, 84 P3d

140 (2004). Context includes other parts of the same statute, the session laws,

26 and related statutes. Id. Here, other subsections of ORS 430.402 shed light on the meaning of subsection (1)(b) and suggest that the legislature intended to preclude local regulation of public drinking conduct unless it accompanies an attendant circumstance, viz. it occurs in a place where alcohol consumption is prohibited. The context also suggests that the conduct element cannot be coextensive with the attendant circumstance element because it would render the exception meaningless surplusage. That is, public drinking (the conduct) must mean something other than a place where drinking is prohibited (the attendant circumstance).

Each subsection of ORS 430.402(1) specifies certain conduct that a political subdivision may not penalize and together help to clarify the exception in subsection (1)(b). State v. Walker, 356 Or 4, 15 n 5, 333 P3d 316 (2014)

(applying noscitur a sociis, “an old maxim which summarizes the rule both of language and of law that the meaning of words may be indicated or controlled by those with which they are associated” (citations omitted)). ORS

430.402(1)(a), (c), (d), and (e) specify conduct a local government may not regulate, without qualification: public intoxication, drunk and disorderly conduct, vagrancy, and using or being under the influence of controlled substances.

Conversely, subsections (1)(b) and (1)(d) specify conduct a local government may not regulate, with qualification. Subsection (1)(d) precludes a

27 political subdivision from penalizing other behavior if it includes as one of its elements the conduct separately specified in subsections (1)(a) (public intoxication/being found in specified places under the influence of alcohol),

(1)(b) (public drinking/drinking alcoholic beverages), or (1)(e) (using or being under the influence of controlled substances/using controlled substances in public). In other words, subsection (1)(d) prevents a political subdivision from penalizing public intoxication, public drinking, or using or being under the influence of controlled substances indirectly by making such conduct an element of other conduct that it may otherwise regulate. Thus, ORS 430.402 precludes local ordinances punishing the conduct both by itself and as an element of other conduct not listed.

Subsection (1)(b) operates inversely to subsection (1)(d). That is, a political subdivision may not penalize public drinking in and of itself, but it may do so if such conduct involves the additional element of being in a place where any consumption of alcoholic beverages is generally prohibited. Thus, while subsection (1)(d) allows a political subdivision to penalize other behavior within its power so long as it does not include as an element specified conduct, subsection (1)(b) precludes local regulation of public drinking unless it also includes an additional circumstance element (i.e., the conduct occurs in certain places).

It follows that the conduct the legislature intended to capture—public drinking—is not identical to or coextensive with the additional circumstance element—a political subdivision’s public place. In other words, the legislature did not intend “places where any consumption of alcoholic beverages” to be coextensive with the public at large or all public places under the local government’s control. Otherwise, that phrase would have no distinct meaning in ORS 430.402(1)(b) and would be superfluous. The court should give effect to all provisions of a statute and avoid an interpretation that renders some part mere surplusage. State v. Clemente-Perez, 357 Or 745, 755, 359 P3d 232

(2015) (noting that, under ORS 174.010, the court generally assumes that the legislature did not intend any portion of its enactments to be meaningless surplusage); Cloutier, 351 Or at 98 (“[A]n interpretation that renders a statutory provision meaningless should give us pause, both as a matter of respect for a coordinate branch of government that took the trouble to enact the provision into law and as a matter of complying with the interpretive principle that, if possible, we give a statute with multiple parts a construction that ‘will give effect to all’ of those parts.”). Thus, although one meaning of “place” is a particular region or population center, the legislature likely did not use it in the sense of the entire region or population center within the local jurisdiction.

The text of subsection (1)(b) becomes clearer read in context. The fact that the legislature used the plural “places” suggests that it refers to discrete

29 buildings or localities and not the public at large. The legislature’s use of the word “except” to describe the attendant circumstance also suggests that the

“places” cannot be the same as the local public at large because “except” implies that the something left out of the whole is smaller than the whole.

Indeed, that the attendant circumstance is an exception to the general rule suggests that it is narrower than the rule. See 1000 Friends of Oregon v. Land

Conservation and Development Comm’n, 303 Or 430, 441, 737 P2d 607 (1987)

(declining to construe a statute with preemptive language to allow an exception to swallow the rule).

In sum, the text read in context resolves one ambiguity: a political subdivision may not regulate public drinking in every public place or the public at large within its jurisdiction. Although the precise scope of the exception is not clear from the text or context, it would not be necessary for the court to decide the outer bounds of the exception to resolve this case because it is enough to invalidate the ordinance that “any public place” is not the same as, and is broader than, “places where any consumption of alcoholic beverages is generally prohibited.”

However, ambiguities remain. The text and context do not resolve whether the consumption of alcohol may be partial or must be total, or which actor(s) may forbid consumption of alcohol in such places. Defendant provides further context and legislative history of ORS 430.402 to shed additional light

30 on the legislature’s intent. Aside from this court’s duty to correctly construe a statute, Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997), the court’s role in reviewing a challenge of a local act under Article XI, section 2, militates against formulations that give no guidance to government. LaGrande/Astoria, 281 Or at 147.

3. Additional context and the legislative history of ORS 430.402 show that the legislature preempted local punishment of public drinking to give force to a comprehensive policy change in how Oregon approaches problem alcohol use. The legislature enacted ORS 430.402 (former ORS 430.325) as part of

Senate Bill (SB) 431 (1971), which advanced a comprehensive change in the state’s approach to public intoxication and alcoholism. Or Laws 1971, ch 622.

During that legislative session,

“the Legislative Assembly decided to end the longstanding practice of dealing with public drunkenness as a criminal offense [] and to treat it instead as a health problem. A central aim of this legislative reform was to repeal penal laws against public intoxication and to redirect police responsibility toward taking intoxicated persons to their homes or other safe shelter rather than jailing the person in a police ‘drunk tank.’”

State v. Okeke, 304 Or 367, 370–71, 745 P2d 418 (1987) (suppressing evidence found when the defendant was involuntarily admitted to a detoxification center pursuant to authority of statute enacted by SB 431 (1971)) (footnote omitted).

SB 431 (1971) implemented that goal on several fronts. First, it established a state policy that alcoholism—defined by a person’s problematic

31 alcohol use—is an illness that should be afforded treatment. Or Laws 1972, ch 622, § 1, codified as ORS 430.315; Or Laws 1972, ch 622, § 2, codified as

ORS 430. 306. Next, SB 431 (1971) expressly forbade local governments from enacting ordinances that penalize conduct characteristic of alcoholism. Or

Laws 1971, ch 622, § 3, codified as ORS 430.325, renumbered as ORS 430.402

(2011). Third, SB 431 (1971) authorized the Mental Health Division to administer alcohol treatment programs at public facilities. Or Laws 1972, ch

622, §§ 4–6. Finally, the bill authorized police officers to voluntarily and involuntarily admit publicly intoxicated persons to treatment facilities or to take them home. Or Laws 1971, ch 622, § 6, codified as ORS 426.450, renumbered as ORS 430.397 (1995); Or Laws 1971, ch 622, § 7, codified as ORS 426.460, renumbered as 430.399 (1995).

During the same session, the legislature separately repealed the state public intoxication statute that prohibited entering or being found in specified public places or creating a public disturbance while in a state of intoxication.

See former ORS 166.160, repealed by Or Laws 1971, ch 743, § 432. The legislature enacted a replacement statute as part of the revision of the Criminal

Code that prohibited public intoxication only if the person “creates, while in a state of intoxication, any disturbance of the public in any public or private business or place.” Former ORS 166.035, repealed by Or Laws 1975, ch 715 §

2. The legislature repealed former ORS 166.035 for good in 1975. These

32 changes in the law show an intent to remove conduct characteristic of alcoholism from the criminal law system unless the person also creates an additional harm, such as a public disturbance.

As introduced, SB 431 (1971) proposed a comprehensive policy scheme.

One proponent stated that the intent of the bill was to do what the United States

Supreme Court did not have the courage to do in Powell v. Texas, 392 US 514,

518, 88 S Ct 2145, 20 L Ed 2d 1254 (1968) (upholding a public intoxication conviction under the Eighth and Fourteenth Amendments).6 Tape Recording,

Senate Human Resources Committee, SB 431, March 16, 1971, Tape 4, side 2

(statement of George Dimas, Program Director, Alcohol and Drug Section,

Oregon Mental Health Division). For example, the bill originally included a legislative finding that “[t]he criminal law is ineffective to deter intoxication and to deal with what are basically major problems of human inadequacy and alcoholism” and declaring “[r]emoval of public intoxication from the criminal system[.]” SB 431 (1971), as introduced § 2(4) and (5) (March 3, 1971).

Further, the bill originally precluded local governments from penalizing public drinking conduct without qualification. Id. at § 5.

6 SB 431 likely was modeled on the Uniform Alcoholism and Intoxication Treatment Act drafted by the National Conference of Commissioners on Uniform State Laws. It is available online at http://www.uniformlaws.org/shared/docs/Alcoholism%20and%20Intoxication %20Treatment/Alcoholism%201971.pdf (last accessed May 7, 2018).

After passing the Senate, House amendments removed some of the broader policy language and added the public-drinking exception, but it nonetheless marked a sweeping change in the law. Discussions surrounding the bill after the House amendments indicate that it was still understood to represent “a radical change in the approach to the drunkard—to the treatment of the alcoholic.” Tape Recording, House Committee on Health, Education &

Welfare, SB 431, May 7, 1971, Tape 2, side 2 (statement of Rep Morris

Crothers) (“The philosophy behind this bill is that the criminal system is not the appropriate way of taking care of the alcoholic. That he should be treated rather than be confined for punishment.”). When members of the committee specifically discussed preemption of local authority (Section 3 of the re- engrossed bill), Representative Crothers described that section as “the heart” of the bill and stated, “Public drinking can’t be an offense.” Id. When pressed on the contours of the exception allowing local regulation of public drinking,

Representative Crothers responded that cities can prohibit drinking in “certain places.” Id. Representative Crothers did not say that a local authority could prohibit drinking in all public places or the public at large.

Subsequent amendments to ORS 430.402 have not altered the language in subsection (1)(b). However, amendments have generally expanded the scope of local preemption. See, e.g., Or Laws 1975, ch 715 § 1 (removing the language allowing a local government to enact a local counterpart to the state

34 public intoxication statute); Or Laws 1973, ch 795 § 3 (incorporating conduct of being under the influence of narcotics or other dangerous drugs); Or Laws

1977, ch 745 § 39 (changing “narcotic or dangerous drugs” to “controlled substances”); 2017 Or Laws, ch 21 § 60 (incorporating conduct of being under the influence of cannabis).

In sum, the context and legislative history of ORS 430.402 show that it gave force to a comprehensive legislative policy intended to fundamentally reform how the state approaches alcoholism by targeting its defining trait, problem alcohol use. The philosophy behind SB 431 (1971) suggests that the legislature intended to decriminalize certain conduct associated with alcoholism and redirect alcoholics into the health care system by preempting local legislation that would undermine a uniform state policy. The legislature contemplated that the exception to subsection (1)(b) would allow a city to designate certain places to prohibit public drinking but would not allow a city to enact a blanket public drinking ban. Just as public intoxication alone could not be a crime without an accompanying public disturbance, so public drinking alone cannot be a crime without an accompanying place where alcohol is prohibited. But the legislative history does not further clarify the precise scope of the exception or conclusively resolve the remaining ambiguities.

B. Construing ORS 430.402 to allow a local government to regulate public drinking conduct in all public places within its jurisdiction would frustrate state policy. Should the court conclude that the scope of ORS 430.402(1)(b) is not clear from the text and context, and is not conclusively resolved in the legislative history, this court may apply maxims of construction. Gaines, 346

Or at 172. The relevant maxim for resolving the ambiguity is that the court should avoid a literal application of the statutory test if it will produce an absurd result. The maxim

“is best suited for helping the court to determine which of two or more plausible meanings the legislature intended. In such a case, the court will refuse to adopt the meaning that would lead to an absurd result that is inconsistent with the apparent policy of the legislation as a whole.”

State v. Vasquez-Rubio, 323 Or 275, 282–83, 917 P2d 494 (1996).

It is reasonable to conclude that the legislature did not intend for local municipalities to impede the comprehensive reform of which ORS

430.402(1)(b) was a part by allowing the exception to be liberally construed to prohibit public drinking in virtually all public places. If that were the case, the exception would effectively swallow the rule. Put another way, if a local government’s blanket prohibition on drinking alcohol in any public place renders all public places “places where any consumption of alcohol is generally prohibited,” a city could circumvent the legislature’s intent to preempt local regulation of public drinking generally.

Similarly, the principles underlying preemption militate in favor of an interpretation of ORS 430.402 that precludes local punishment of public drinking in any public place. State substantive policy always displaces contrary local legislation where the two cannot operate concurrently. LaGrande/Astoria,

281 or at 148. That is certainly the case here. The state’s policy and apparent political decision that conduct associated with alcoholism, including public drinking, is no longer a concern of public morals, public safety, or public convenience; it is rather a public health concern uniformly governed by state policy to afford treatment instead of punishment.

C. BCC 5.02.083 is preempted by state law. As explained above, ORS 430.402(1)(b) does not authorize a local government to prohibit public drinking conduct by itself or to prohibit public drinking in all public places or the public at large within its jurisdiction. The

Beaverton City Code provides:

BCC 5.02.083(A). The Beaverton City Code defines “public place” as:

“A place to which the general public has access and includes, but is not limited to, hallways, lobbies and other parts of apartment houses and hotels not constituting rooms or apartments designed for actual residence and highways, streets, schools, places

of amusement, parks, playgrounds, and premises used in connection with public passenger transportation.”

BCC 5.02.010.7 On its face, BCC 05.02.083 prohibits public drinking in or upon “any public place.” Because ORS 430.402(1)(b) precludes a local government from punishing public drinking in every public place within its jurisdiction, BCC 5.02.083 conflicts with, and is preempted by, state law.

Indeed, enacting and enforcing BC 5.02.083 are ultra vires acts. An act of a city or other governmental entity is ultra vires when that act falls outside the entity’s corporate powers. W. Linn Corp. Park, L.L.C. v. City of W. Linn,

349 Or 58, 96, 240 P3d 29 (2010) (citing Keeney v. City of Salem, 150 Or 667,

669–71, 47 P2d 852 (1935)); Black’s Law Dictionary 1755 (10th ed 2014)

(defining “ultra vires” as “unauthorized, beyond the scope of power allowed or granted by a corporate charter or by law”). When a governmental entity’s power is conferred by statute, actions outside the scope of that power are “extra statutory” and therefore ultra vires. W. Linn Corp. Park, L.L.C., 349 Or at 96.

An ultra vires act renders the action void and of no legal effect. Id. at 97.

7 The Beaverton City Code authorizes punishment for violating BCC 5.02.083 with up to a $2,500 fine and up to 365 days in jail upon conviction. BCC 5.02.100.

III. An arrest for violating an unconstitutionally preempted local ordinance violates Article I, section 9. Article I, section 9, provides, in part: “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure[.]” As this court has explained, Article I, section 9, imposes limits on seizures “in order to prevent arbitrary and oppressive interference by [law] enforcement officials with the privacy and personal security of individuals.” State v. Tourtillott, 289 Or 845, 853, 618 P2d

423 (1980) (quotation omitted). A police-citizen encounter that intrudes upon a constitutionally protected interest is a “seizure,” and the degree of intrusiveness on a citizen’s liberty must correlate with the degree of justification required for the intrusion. State v. Fair, 353 Or 588, 593–94, 320 P3d 417 (2013) (citing

State v. Holmes, 311 Or 400, 407, 813 P2d 28 (1991)). An arrest is a constitutionally significant seizure that “involve[s] protracted custodial restraint and require[s] probable cause.” Fair, 353 Or at 593–94.

A. Probable cause is an objective legal determination made by the court after considering all relevant circumstances. “Under Article I, section 9, of the Oregon Constitution, two components comprise probable cause: ‘[a]n officer must subjectively believe that a crime has been committed and thus that a person or thing is subject to seizure, and this belief must be objectively reasonable in the circumstances.’” State v. Vasquez-

Villagomez, 346 Or 12, 23, 203 P3d 193 (2009) (quoting State v. Owens, 302 Or

196, 204, 729 P2d 524 (1986)) (footnote omitted). In State v. Miller, 345 Or

176, 191 P3d 651 (2008), this court clarified what is sufficient to establish the subjective component of probable cause under Article I, section 9. In doing so, the court explained that whether an arrest is supported by probable cause is an objective legal question the court determines after considering all relevant circumstances. 345 Or at 187–88.

In Miller, the arresting officer testified that, at the time of the arrest, he had reasonable suspicion, but had not yet developed probable cause, to arrest the defendant. Id. at 179. The court concluded that the officer’s opinion on a

“complex legal issue” does not determine whether an arrest is lawful, so long as

“objectively there is a constitutionally sufficient basis” to justify the arrest. Id. at 185, 187–88. Rather, while the subjective component of probable cause—a law enforcement officer’s belief in the culpability of the person subjected to arrest—is a key factor in determining the legality of a warrantless arrest, some objective foundation must support that belief. Id. at 182–83.

The court explained that the “mechanics of probable cause” under Article

I, section 9, have long consisted of “a subjective component coupled with an objective basis for concluding that there was probable cause to arrest.” 345 Or at 184. The court pointed to State v. Duffy, 135 Or 290, 295 P 953 (1931), which first recognized both components of probable cause under Article I, section 9:

“‘To justify an officer in making an arrest without a warrant, mere suspicion is insufficient; likewise a belief unsupported by facts or circumstances will not justify his action. * * * The officer must have probable cause to believe in the guilt of the suspected party, and ‘probable cause’ has been defined as the existence of such circumstances which would lead a reasonably prudent man to believe in the guilt of the accused party.’”

Miller, 345 Or at 183–84 (quoting Duffy, 135 Or at 301).

Miller then explained the difference between the subjective and objective components of probable cause. The subjective component is satisfied if the officer believes that he or she has lawful authority to restrain the individual’s liberty. Id. at 185. “The fact that the officer may be mistaken about the basis or the extent of the restraint is not fatal for the purposes of the subjective component, as long as objectively there is a constitutionally sufficient basis for the officer’s actions.” Id. (emphasis added).

By contrast, the objective component requires the court to determine whether both the facts and the law establish a constitutionally sufficient basis for the arrest. Id. at 186. The court explained that State v. Cloman, 254 Or 1,

456 P2d 67 (1969), illustrates the objective component of probable cause. In

Cloman, the officers suspected the defendant of stealing copper wire, but arrested him on charges of violating an “after-hours” city ordinance. 254 Or at

4–5. This court concluded that the officers’ rationale for the arrest was not sufficient to justify the seizure and search of the defendant and his vehicle. Id.

41 at 5. But the court nevertheless concluded that the arrest was justified because it had been supported by probable cause to arrest for a different crime:

“We believe it reasonable to conclude that the officers gave this cause for arrest because of their uncertainty of the law of probable cause for arrest. We also believe it reasonable to conclude that the actual cause for which the officers arrested [the defendant] was some charge concerning the stolen wire. Under the circumstances, we find nothing to be served by holding the arrest invalid because the officers were uncertain about a problem which puzzles the courts. We hold that if the officers had probable cause to arrest, the arrest is not rendered illegal because the officers expressed another and improper cause for arrest.”

254 Or at 12.

Thus, Cloman “established that an officer’s expressed reason for making an arrest does not control a court’s determination of that arrest’s legality—so long as the officer acted on the belief that there was a legal justification for the action (the subjective component) and the officer’s belief was objectively reasonable (the objective component).” Miller, 345 Or at 186 (emphasis in original). The court further supported this conclusion by emphasizing that

“[w]hether probable cause has properly preceded an arrest * * * is not a question of fact; it is a question of law.” Id. at 187 (citing State v. Snow, 337 Or

219, 223 n 2, 94 P3d 872 (2004)). Furthermore, “[d]eciding questions of law is the province of the court, not the witnesses who come before it.” Miller, 345

Or at 187; ORS 136.310 (“All questions of law, including the admissibility of testimony, the facts preliminary to such admission and the construction of

42 statutes and other writings and other rules of evidence shall be decided by the court.”). The court emphasized that the “broader question, viz., was the arrest justified by probable cause?” is an objective determination a court must make

“after considering all the circumstances relevant to the arrest.” Id. at 188.

In sum, probable cause consists of two distinct components under Article

I, section 9. The subjective component requires the officer to believe that the person is subject to arrest based on articulable facts. The objective component requires the court to make an objective legal determination after applying the objective facts to the relevant law.

This court has had occasion to apply the objective probable cause analysis to determine only whether the facts constitute a sufficient basis for an officer’s belief that a person is subject to arrest. But Miller and Cloman instruct that the objective analysis must also determine whether the facts actually violate the law—that is, whether the defendant’s conduct could objectively constitute a crime positively and validly defined by law. Indeed, the Court of Appeals has consistently held that probable requires that objective determination of the law, both before and after Miller. See State v. Heilman, 268 Or App 596, 606–07,

342 P3d 1102 (2015) (holding that an officer lacked probable cause to stop the defendant where the facts perceived by the officer did not violate a statute);

State v. Stookey, 255 Or App 489, 500, 297 P3d 548 (2013) (same); State v.

Tiffin, 202 Or App 199, 203–04, 121 P3d 9 (2005) (same); State v. Stearns, 196

Or App 272, 275, 101 P3d 811 (2004) (same); State v. Hart, 85 Or App 174,

176–77, 735 P2d 1283 (1987) (applying principle under ORS 810.410).

Certainly, a court provides appropriate leeway to an officer’s assessment of the facts in the objective determination of the officer’s actions. “In determining whether the state has established that the facts are objectively reasonable, the court looks at the totality of the circumstances, including the officer’s training and experience.” State v. Vasquez-Villagomez, 346 Or 12, 23,

203 P3d 193 (2009) (citing State v. Martin, 327 Or 17, 22, 956 P2d 956 (1998))

(emphasis added). Further, the court looks only to the facts preceding the arrest to objectively justify the officer’s belief. Vasquez-Villagomez, 327 Or at 23

(“Subsequent validation of the officer’s subjective or objective belief as to the existence of probable cause to arrest is irrelevant to the inquiry.” (citing State v.

Esplin, 314 Or 296, 304–05, 839 P2d 211 (1992)). But no similar leeway exists in determining whether the law objectively justifies the officer’s actions. The facts are reasonably within the officer’s purview at the time of the arrest, but the law is solely within the province of the court.

Article I, section 9, protects the individual right to be free from unjustified intrusions by law enforcement. To vindicate that right, the court must determine whether a defendant’s conduct actually violated the law. To hold otherwise would render individuals in Oregon subject to oppressive

44 intrusions into personal security and privacy and allow unrestrained executive interference into personal liberty.

B. Defendant’s arrest was not justified by probable cause because the objective facts did not actually violate the law. Here, defendant’s arrest was not supported by probable cause. Defendant does not dispute that the officer subjectively believed that defendant had violated the local ordinance and believed that he had authority to arrest defendant, or that the facts observed by the officer at the time of the arrest were sufficient to support that belief. Rather, defendant’s arrest was not supported by probable cause because there was not a constitutionally sufficient objective basis as a matter of law that defendant violated a criminal law. BCC 5.02.083 is invalid because it conflicts with state law and is therefore preempted under

Article XI, section 2. The facts as the officer perceived them did not actually violate a criminal law because BCC 5.02.083 does not validly define a crime subject to arrest or punishment. Accordingly, no constitutionally sufficient objective basis justified defendant’s arrest under Article I, section 9.

In the Court of Appeals, the state cited Michigan v. DeFillippo, 443 US

31, 99 S Ct 2627, 61 L Ed 2d 343 (1979), to support its argument that defendant’s arrest was supported by probable cause and therefore did not violate Article I, section 9. In that case, the defendant was arrested for violating a Detroit ordinance for refusing to identify himself upon being stopped by

45 police. 443 US at 33–34. A search following the arrest revealed drugs on the defendant’s person, and the defendant was charged with possession of a controlled substance. Id. at 34. The defendant moved to suppress the evidence on the ground that his arrest was not supported by probable cause because the

Detroit ordinance was unconstitutionally vague. Id.

The Court assumed, without deciding, that the Detroit ordinance was unconstitutional, but held that the defendant’s arrest was supported by probable cause. Id. at 37–38. The Court reasoned that because there was no controlling legal authority regarding the ordinance’s constitutionality, it was presumptively valid and the officer was reasonable to rely on it in making the arrest. Id. In other words, the presumptive validity of the ordinance rendered the officer’s good-faith belief that the defendant had committed an arrestable offense objectively reasonable: “A prudent officer, in the course of determining whether respondent had committed an offense under all the circumstances shown by this record, should not have been required to anticipate that a court would later hold the ordinance unconstitutional.” Id.

DeFillippo does not control this case because the probable cause analysis differs under the Fourth Amendment. As explained above, an officer’s assessment of the law is irrelevant to the objective component of probable cause under Article I, section 9. Miller, 345 at 187–88; Cloman, 254 Or at 12.

Rather, it pertains only to whether the officer subjectively believes that the arrest is legally justified and acts on that belief. Miller, 345 at 186.

Further, unlike the deterrence rationale of the Fourth Amendment, Article

I, section 9, vindicates the individual right to be free from unreasonably arbitrary and oppressive police intrusions and preserves the right “to the same extent as if the government’s officers had stayed within the law.” State v.

Davis, 313 Or 246, 253, 834 P2d 1008 (1992) (quoting State v. Davis, 295 Or

227, 234, 666 P2d 802 (1983). Accordingly, the officer’s good-faith reliance on the law has no bearing on whether an individual’s rights were violated or should be vindicated.

Finally, should the court conclude that defendant’s arrest did not violate

Article I, section 9, the result would effectively revive a city-to-state silver platter doctrine where local criminal ordinances could perpetually evade judicial review. See DeFillippo, 443 US at 40–41 (Blackmun, J., concurring)

(“[I]f the arrest for violation of the [unconstitutional] ordinance is not open to challenge, the ordinance itself could perpetually evade constitutional review.”).

In sum, defendant’s arrest was not supported by probable cause, and all evidence derived therefrom should have been suppressed.

CONCLUSION

For the foregoing reasons, defendant respectfully asks this court to reverse the judgment of the Court of Appeals and remand this case to the trial court for further proceedings.

Respectfully submitted,

ERNEST G. LANNET CHIEF DEFENDER CRIMINAL APPELLATE SECTION OFFICE OF PUBLIC DEFENSE SERVICES

ESigned ______ANNA BELAIS OSB #141046 DEPUTY PUBLIC DEFENDER [email protected]

Attorneys for Defendant-Appellant Victor Uroza-Zuniga

CERTIFICATE OF COMPLIANCE WITH ORAP 5.05

Brief length I certify that (1) this brief complies with the word-count limitation in ORAP 5.05 and (2) the word-count of this brief is 11,239 words.

Type size I certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes.

NOTICE OF FILING AND PROOF OF SERVICE

I certify that I directed the original Petitioner's Brief on the Merits to be filed with the Appellate Court Administrator, Appellate Courts Records Section, 1163 State Street, Salem, Oregon 97301, on May 7, 2018.

I further certify that, upon receipt of the confirmation email stating that the document has been accepted by the eFiling system, this Petitioner's Brief on the Merits will be eServed pursuant to ORAP 16.45 (regarding electronic service on registered eFiler) on Benjamin Gutman #160599, Solicitor General, attorney for Plaintiff-Respondent.

Respectfully submitted,

ERNEST G. LANNET CHIEF DEFENDER CRIMINAL APPELLATE SECTION OFFICE OF PUBLIC DEFENSE SERVICES

ESigned ______ANNA BELAIS OSB #141046 DEPUTY PUBLIC DEFENDER [email protected]

Attorneys for Petitioner on Review Victor Uroza-Zuniga