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

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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 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. ...................................................... 8 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 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. ............................................................................................... 16 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 ii 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 iv 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) ...............................................................
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