July 20, 2018 09:28 AM
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON, Plaintiff-Respondent, Washington County Circuit Court Respondent on Review, Case No. C14185CR v. CA A159939
VICTOR UROZA-ZUNIGA, SC S065368 Defendant-Appellant, Petitioner on Review.
BRIEF OF AMICI CURIAE LEAGUE OF OREGON CITIES AND CITY OF BEAVERTON IN SUPPORT OF RESPONDENT ON REVIEW
On Review of the Decision of the Court of Appeals on Appeal from a Judgment of the Circuit Court for Washington County, the Honorable Rick Knapp, Judge.
Opinion Filed: August 2, 2017. Author of Opinion: Wilson, Senior Judge. Concurring Judges: Armstrong, Presiding Judge, and Shorr, Judge.
Attorney information on next page. July 2018
ERNEST LANNET, OSB 013248 ELLEN ROSENBLUM, OSB 753239 Chief Defender Attorney General Criminal Appellate Section BENJAMIN GUTMAN, OSB 160599 ANNA E. BELAIS, OSB 141046 Solicitor General Deputy Public Defender JORDAN R. SILK, OSB 105031 Office of Public Defense Services Assistant Attorney General 1175 Court Street NE Appellate Division Salem, OR 97301 Oregon Department of Justice (503) 378-3349 1162 Court Street NE [email protected] Salem, OR 97301 (503) 378-4402 Attorneys for Petitioner on Review. [email protected]
Attorneys for Respondent on Review.
PHILIP M. THOENNES, OSB 154355 WILLIAM B. KIRBY, OSB 842622 Assistant General Counsel City Attorney JAYME HAFNER, OSB 121285 Beaverton City Attorney’s Office Assistant General Counsel 12725 SW Millikan Way League of Oregon Cities PO Box 4755 1201 Court Street NE, Suite 200 Beaverton, OR 97076 Salem, OR 97301 (503) 526-2215 (503) 588-6550 [email protected] [email protected] [email protected] Attorney for Amicus Curiae City of Beaverton. Attorneys for Amicus Curiae League of Oregon Cities.
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...... ii
I. INTEREST OF AMICI CURIAE ...... 1
II. STATEMENT OF THE CASE ...... 2
III. SUMMARY OF THE ARGUMENT ...... 2
IV. ARGUMENT ...... 3
A. A brief history of home rule in Oregon...... 4
B. ORS 430.402(1)(b) does not conflict with BC 5.02.083...... 11
1. The text of ORS 430.402(1)(b) allows cities to enact general prohibitions on public drinking and does not allow any conduct prohibited by BC 5.02.083...... 14
2. The text of ORS 430.402(1)(b), considered in context, encompasses the city’s ban on public drinking...... 17
3. The legislative history indicates that the legislature intended to preserve local authority to enact broad bans on public drinking...... 21
C. Holding that ORS 430.402(1)(b) conflicts with BC 5.02.083 will create uncertainty throughout the state...... 24
V. CONCLUSION ...... 26
ii
TABLE OF AUTHORITIES
Cases
Federal
Hunter v. City of Pittsburgh, 207 US 161, 28 S Ct 40, 52 L Ed 151 (1907) ...... 5
Oregon Supreme Court
Branch v. Albee, 71 Or 188, 142 P 598 (1914) ...... 8
City of Corvallis v. Carlile, 10 Or 139 (1882) ...... 5
City of Portland v. Dollarhide, 300 Or 490, 714 P2d 220 (1986) ...... 10
City of Portland v. Jackson, 316 Or 143, 850 P2d 1093 (1993) ...... 3, 11, 12
Gunderson, LLC v. City of Portland, 352 Or 648, 290 P3d 803 (2012) ...... 10
Jenkins v. Board of Parole, 356 Or 186, 335 P3d 828 (2014) ...... 15
La Grande/Astoria v. PERB, 281 Or 137, 576 P2d 1204, adh’d to on recons, 284 Or 173, 586 P2d 765 (1978) ...... 8, 9
Lane County v. LCDC, 325 Or 569, 942 P2d 278 (1997) ...... 17
iii
Mid-County Future Alternatives v. City of Portland, 310 Or 152, 795 P2d 541 (1990) ...... 6, 7, 8
PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993) ...... 15
Rogue Valley Sewer Services v. City of Phoenix, 357 Or 437, 353 P3d 581 (2015) ...... 10
Rose v. Port of Portland, 82 Or 541, 162 P 498 (1917) ...... 8
State v. Blair, 348 Or 72, 228 P3d 564 (2010) ...... 15
State v. Cloutier, 351 Or 68, 261 P3d 1234 (2011) ...... 15
State ex rel Heinig v. City of Milwaukie et al, 231 Or 473, 373 P2d 680 (1962) ...... 8, 9
State v. Fair, 353 Or 588, 302 P3d 417 (2013) ...... 2
State v. Gaines, 346 Or 160, 206 P3d 1042 (2009) ...... 3, 14
Oregon Court of Appeals
State v. Uroza-Zuniga, 287 Or App 214, 402 P3d 772 (2017) ...... 11
Thunderbird Mobile Club, LLC v. City of Wilsonville, 234 Or App 457, 228 P3d 650 (2010) ...... 10, 11
Constitutional Provisions
US Const, Amend X ...... 5
iv
Or Const, Art I, § 9 ...... 3
Or Const, Art IV, § 1(5) ...... 1, 7
Or Const, Art XI, § 2 ...... 1, 7
Legislation
Statutes and Session Laws
Former ORS 166.035 ...... 22
Former ORS 460.325 ...... 22
ORS 161.015(10) ...... 13
ORS 430.306(1) ...... 18
ORS 430.402 ...... 1, 2, 3, 11, 12, 14, 15, 17, 19, 21, 22, 23, 25
ORS 430.402(1) ...... 18, 19, 20, 23, 24
ORS 430.402(1)(b) ...... 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25
Or Laws 1971, ch 622, § 1 ...... 18
Or Laws 1973, ch 795, § 3 ...... 23
Or Laws 1975, ch 715, § 1 ...... 22
Or Laws 1975, ch 715, § 2 ...... 22
Or Laws 1975, ch 715, § 6 ...... 23
Or Laws 1977, ch 745, § 39 ...... 23
Or Laws 1983, ch 338, § 928 ...... 23
Or Laws 2017, ch 21, § 60 ...... 19, 23 v
A Bill to Incorporate the City of Portland in Washington County, HB 29 (Jan 14, 1851) ...... 6
Legislative History
Bill File, SB 431 (1971), Introduced Bill ...... 21
Bill File, SB 431 (1971), -2 Amendments (April 21, 1971) ...... 23
Bill File, SB 431 (1971), Enrolled Bill ...... 23
Minutes, House Subcommittee on Health, SB 431, April 2, 1971 ...... 23
Tape Recording, House Subcommittee on Health, SB 431 April 21, 1971, Tape 6, Side 2 ...... 23
Other Authorities
Municipal Codes
Astoria City Code 5.370 ...... 25
Beaverton Code 5.02.010 ...... 13
Beaverton Code 5.02.083 ...... 1, 2, 3, 11, 13, 17, 24, 25
Beaverton Ordinance 380 (March 14, 1955) ...... 23
Burns City Code 9.30.040 ...... 25
Coquille City Code 9.08.050 ...... 25
Enterprise City Code 9.16.020(B) ...... 25
Eugene Code 4.190(1) ...... 25
Grants Pass City Code 5.68.010(A) ...... 25 vi
Gresham Revised Code 7.10.120(1) ...... 25
Hillsboro Municipal Code 7.08.080(A) ...... 25
Klamath Falls City Code 5.438 ...... 25
Madras City Ordinance 497, § 19 ...... 25
Newport City Code 9.55.010 ...... 25
Ontario City Code 3-3-8(A) ...... 25
Portland City Code 14A.50.010(A) ...... 25
Prineville City Code 130.15 ...... 25
Roseburg City Code 7.02.030(A) ...... 25
Salem Revised Code 90.020(a) ...... 25
Books, Periodicals, Treatises, & Misc.
37 Op Atty Gen 647 (1975) ...... 20
Jake Sullivan, The Tenth Amendment and Local Government, 112 Yale LJ 1935 (2003) ...... 5
Jay S. Bybee, The Tenth Amendment Among the Shadows: On Reading the Constitution in Plato’s Cave, 23 Harv JL & Pub Pol’y 551 (2000) ...... 5
John F. Dillon, The Law of Municipal Corporations (2d ed 1873) ...... 5
Paul A. Diller, The Partly Fulfilled Promise of Home Rule in Oregon, 87 Or L Rev 939 (2008) ...... 8
Plato, The Republic (Allan Bloom trans, 2d ed 1968) ...... 5
vii
Stephen L. Piot, Giving Voters a Voice: The Origins of Initiative and Referendum in America (1995) ...... 6
Thomas A. Balmer & Katherine Thomas, In the Balance: Thoughts on Balancing and Alternative Approaches in State Constitutional Interpretation, 76 Alb L Rev 2027 (2013) ...... 9
Webster’s Third New Int’l Dictionary (unabridged ed 2002) ...... 16
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I. INTEREST OF AMICI CURIAE
The League of Oregon Cities (League) is organized under ORS chapter 190 as a consolidated department of Oregon’s 241 incorporated cities. Founded in
1925, the League was formed to be, among other things, the effective and collective voice of Oregon’s cities before the state courts and an advocate for preserving local authority under Oregon’s home rule amendments. Cities in
Oregon derive their home rule authority from Article XI, section 2, and Article IV, section 1(5), of the Oregon Constitution. Those provisions grant the voters of every municipal corporation the right to adopt a home rule charter and thereby vest home rule authority in their city government. Today, all of Oregon’s cities operate under home rule charters, including the city of Beaverton.
At issue in this case is whether ORS 430.402, which prohibits a local government from adopting or enforcing a local law or regulation that, among other things, prohibits public drinking except as to places where any consumption of alcoholic beverages is generally prohibited, preempts Beaverton Code (BC)
5.02.083, which prohibits the consumption of alcohol in public places.
This Court’s resolution of the preemption issue could impact the authority of home rule municipalities to enact and enforce bans on public drinking within their jurisdictions. The League and its members, including Beaverton, therefore have a substantial interest in this case. Further, the League has a substantial interest in 2
this case because of its potential to alter the case law interpreting the home rule amendments to the Oregon Constitution. Specifically, petitioner on review asks this Court to ignore the home rule authority of Oregon’s municipal corporations and grant the state plenary authority in civil and criminal matters alike. The
Oregon Constitution, the case law interpreting it, and stare decisis counsel against such a radical reinterpretation of the local-state relationship. The League therefore desires to advise the Court on the proper application of home rule doctrine to the issues raised herein.
II. STATEMENT OF THE CASE
Amici curiae accept and adopt the Statement of the Case set out in respondent on review’s answering brief.
III. SUMMARY OF THE ARGUMENT
This case raises two issues: (1) whether ORS 430.402 preempts BC 5.02.083 and (2) if so, whether an arrest made pursuant to a preempted ordinance violates
Article I, section 9, of the Oregon Constitution.1 Amici will only address the question whether ORS 430.402 preempts BC 5.02.083. The answer to that
1 If such an arrest is unconstitutional—i.e., unreasonable, see State v. Fair, 353 Or 588, 602, 302 P3d 417 (2013) (constitutionality of a seizure turns on reasonableness)—the subsequent issue is whether evidence obtained during the search incident to the unconstitutional arrest should be suppressed. Amici take no position on either of those issues. 3
question depends on whether the legislature intended to preempt local ordinances like BC 5.02.083. Determining the legislature’s intent, of course, requires an analysis of the text of ORS 430.402 in context, informed by any legislative history this court deems appropriate. State v. Gaines, 346 Or 160, 171-172, 206 P3d 1042
(2009) (setting out that methodology).
As explained more fully below, the legislature did not intend to preempt a city’s authority to ban the consumption of alcohol in public places, so long as the city enacted a general ban on the consumption of alcohol in such places. The statute in question specifically carves out an exemption that preserves local authority to adopt such an ordinance. Further, an examination of the statutory text in context, together with the legislative history, supports the conclusion that cities retain the authority to adopt bans on drinking alcohol in public places. A holding to the contrary runs counter to the test set out in City of Portland v. Jackson, 316
Or 143, 850 P2d 1093 (1993), which addresses when a local criminal law is compatible with, a thus not preempted by, a state criminal law.
IV. ARGUMENT
Determining whether the legislature meant to preempt local ordinances such as BC 5.02.083 requires an understanding of the relationship between state law and local law. The state does not enjoy plenary authority over local civil and criminal 4
law.2 Rather, the Oregon Constitution guarantees home rule authority for municipal corporations, leaving them free to enact their own substantive and procedural laws without state authorization. Only when the legislature expressly or impliedly preempts local law does state law prevail. Determining when state law preempts local law, whether civil or criminal, requires an understanding of the century-long body of case law interpreting Oregon’s home rule amendments.
Amici thus begin with an overview of home rule in Oregon.
A. A brief history of home rule in Oregon.
Petitioner on review misconstrues the home rule authority of Oregon cities and the specific relationship between state and local criminal law. Because the relationship between state and local criminal law fits within the larger framework of home rule doctrine, amici begin with a short history of home rule in Oregon.
Under federal constitutional law, municipal corporations are “convenient agencies” of their respective states. Hunter v. City of Pittsburgh, 207 US 161, 178,
28 S Ct 40, 52 L Ed 151 (1907). As such, the states enjoy every prerogative to add or withdraw authority from municipalities, merge municipalities, or abolish municipalities altogether, “unrestrained by any provision of the Constitution of the
2 Petitioner on review states that “[c]ities 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.” Petitioner on Review’s Opening Brief at 8. That has not been the law in Oregon since 1905. 5
United States.”3 Id. at 179. If cities are simply convenient agencies of their states, it follows that cities lack inherent authority and possess only those powers affirmatively granted by the state. That principle, known as “Dillon’s Rule,” dominated legal scholarship in the nineteenth and early twentieth centuries.4 In
3 Some scholars reject the Hunter analysis and argue that the federal constitution does offer substantive protections for cities qua cities. They typically locate that protection in the Tenth Amendment, which reserves to the states “or to the people” all powers not otherwise granted to the federal government. US Const, Amend X; see also Jake Sullivan, The Tenth Amendment and Local Government, 112 Yale LJ 1935 (2003) (arguing that the Tenth Amendment can support federal constitutional protections for local governments as a representative of “the people[’s]” rights); Jay S. Bybee, The Tenth Amendment Among the Shadows: On Reading the Constitution in Plato’s Cave, 23 Harv JL & Pub Pol’y 551 (2000) (exploring various ways to understand the Tenth Amendment in the context of American federalism).
In the fourth century BCE, the sophists recognized that cities are manifestations of the needs of the collective:
“‘Well then,’ [Socrates] said, ‘a city, as I believe, comes into being because each of us isn’t self sufficient but is in need of much. Do you believe there’s another beginning to the founding of a city?’”
“‘None at all,’ [Adeimantus] said.”
Plato, The Republic, ch II, at ¶ 369b (Allan Bloom trans, 2d ed 1968).
4 The eponymous rule comes from John F. Dillon, an Iowa Supreme Court justice and, later, federal judge. Dillon authored an influential treatise on municipal law in which he argued that cities lack inherent lawmaking powers and derive all authority from their respective states. See 1 Dillon, The Law of Municipal Corporations, § 9(b), at 93 (2d ed 1873). This court endorsed Dillon’s view of local authority in 1882. See City of Corvallis v. Carlile, 10 Or 139, 141 (1882) (citing Dillon’s treatise). 6
nineteenth-century Oregon, the legislature retained all power over local affairs and had the exclusive authority to adopt and amend city charters, to establish and alter municipal boundaries, and to grant and remove legislative authority.5
That model of city-state relations, however, began to change in the first decades of the twentieth century. A wave of Progressive Era populism brought numerous political reforms, including initiative and referendum, women’s suffrage, and the direct election of United States Senators. Among those reforms was a push for local authority over local government and local policies.6 As this court later summarized the sentiment of the voters, the legislature’s control over local matters fostered discontent because “[m]any people perceived the legislature and those who could influence it as politically self-interested rascals and not as statesmen truly concerned with the needs of the people of Oregon.” Mid-County Future
5 For example, the Oregon Territorial Legislature first incorporated the city of Portland through special legislation. See A Bill to Incorporate the City of Portland in Washington County, HB 29 (Jan 14, 1851), available at http://efiles.portlandoregon.gov/Record/3672705/.
6 The populist drive in Oregon was largely led by William Simon U’Ren. U’Ren was instrumental in establishing the “Oregon System” of popular democratic participation through initiative and referendum processes, local home rule, and, later, popular election of United States Senators. See generally Stephen L. Piot, Giving Voters a Voice: The Origins of Initiative and Referendum in America (1995). 7
Alternatives v. City of Portland, 310 Or 152, 158, 795 P2d 541, cert den, 498 US
999 (1990).
Thus, in 1906, contemporary with home rule reforms in other states, the voters of Oregon amended the state constitution to limit the power of the legislature over local matters and empower cities with home rule authority.
Specifically, the voters amended Article XI, section 2, which now provides, in part:
“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.”
Or Const, Art XI, § 2. In the same election, the voters amended the initiative and referendum provision of the Oregon Constitution to reserve those powers “to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district.”
Or Const, Art IV, § 1(5).
Taken together, Article XI, section 2, and Article IV, section 1(5), guarantee the voters of each municipality the right to draft, amend, and vote on municipal charters and ordinances and insulate those powers from state interference. Of course, the passage of the home rule amendments did not end the debate over the scope of local government authority vis-à-vis state authority. On the contrary, the 8
passage of Article XI, section 2, and Article IV, section 1(5), catalyzed a century- long process of interpreting, refining, reconsidering, and applying those amendments. The case law arising out of that process has not always been clear, consistent, or concise. See Mid-County, 310 Or at 158-61 (demonstrating the extent of inconsistencies by examining major home rule case law); Paul A. Diller,
The Partly Fulfilled Promise of Home Rule in Oregon, 87 Or L Rev 939, 956-70
(2008) (criticizing inconsistent interpretations of the home rule amendments and opinions that read those amendments narrower than originally intended).7
The tangled two-steps-back-one-step-forward line of home rule cases culminated in the seminal home rule decision of the modern era:
La Grande/Astoria v. PERB, 281 Or 137, 576 P2d 1204, adh’d to on recons, 284
Or 173, 586 P2d 765 (1978). In La Grande, this court rejected a balancing test set out in State ex rel Heinig v. City of Milwaukie et al, 231 Or 473, 481, 373 P2d 680
7 At times, for example, this court took the view that local charters were not subject to any statewide civil laws. See Branch v. Albee, 71 Or 188, 195-96, 142 P 598 (1914). At other times, this court stated that local charters were subject to general civil laws, but not special civil laws. See Rose v. Port of Portland, 82 Or 541, 572-73, 162 P 498 (1917). Still later, this court balanced statewide and local interests to determine whether a generally applicable civil law could constitutionally override a local charter. See State ex rel Heinig v. City of Milwaukie et al, 231 Or 473, 481, 373 P2d 680 (1962) (asking “whether the state’s interest or that of the city is paramount”) (citation omitted). 9
(1962).8 Rather than balancing state and local interests, the La Grande court declared that although Article XI, section 2, protects the “structure and procedures” of local government from state interference, the amendment does not shield local policy preferences from state preemption. Specifically, the La Grande court crafted a two-part test to determine where local authority ends and state authority begins:
“When a statute is addressed to a concern of the state with the structure and procedures of local agencies, the statute impinges on the powers reserved by the amendments to the citizens of local communities. Such a state concern must be justified by a need to safeguard the interests of persons or entities affected by the procedures of local government.”
“Conversely, a general law addressed primarily to substantive social, economic, or other regulatory objectives of the state prevails over contrary policies preferred by some local governments if it is clearly intended to do so, unless the law is shown to be irreconcilable with the local community’s freedom to choose its own political form. In that case, such a state law must yield in those particulars necessary to preserve that freedom of local organization.”
Id. at 156 (footnote omitted).
Thus, La Grande draws a distinction between the structure and procedures of local government, on the one hand, and social, economic, and regulatory
8 Justice Linde’s disavowal of Heinig’s balancing test fit within a larger trend, during the 1970s and 1980s, of moving away from balancing legal interests and toward a more categorical approach to constitutional interpretation. See Thomas A. Balmer & Katherine Thomas, In the Balance: Thoughts on Balancing and Alternative Approaches in State Constitutional Interpretation, 76 Alb L Rev 2027, 2040-47 (2013) (identifying that trend). 10
objectives (i.e., policy preferences), on the other. The former is protected from state interference, while the latter is subject to legislative preemption. In the years since La Grande, home rule disputes have almost exclusively involved the question whether a state law preempts local policy choice. Those local policies, in turn, take the form of local criminal laws or substantive civil laws.
State law can preempt local civil law expressly or impliedly. A state law expressly preempts local civil law when the “text, context, and legislative history of the statute ‘unambiguously expresses an intention to preclude local governments from regulating’ in the same area as that governed by the statute.” Rogue Valley
Sewer Services v. City of Phoenix, 357 Or 437, 450-51, 353 P3d 581 (2015)
(quoting Gunderson, LLC v. City of Portland, 352 Or 648, 663, 290 P3d 803
(2012)) (emphasis deleted). State law impliedly preempts local civil law when the two are in “conflict,” meaning that compliance with both state and local law is
“impossible.” Thunderbird Mobile Club, LLC v City of Wilsonville, 234 Or App
457, 474, 228 P3d 650, rev den, 348 Or 524, 236 P3d 152 (2010).
Unlike civil law, Oregon courts presume that state criminal law preempts local criminal law. See City of Portland v. Dollarhide, 300 Or 490, 501, 714 P2d
220 (1986) (explaining presumption). To overcome the presumption of preemption, a local government must show that a local ordinance or charter provision is not in “conflict” with state law, meaning local law does not 11
criminalize conduct that state law allows or permit conduct that state law makes a crime.10 Jackson, 316 Or at 151 (so stating). In this case, the Court of Appeals correctly applied the Jackson test to the question whether ORS 430.402 preempts
BC 5.02.083. See State v. Uroza-Zuniga, 287 Or App 214, 223, 402 P3d 772
(2017), rev allowed, ___ Or ___ (Feb 15, 2018) (applying Jackson).
In sum, Article XI, section 2, and Article IV, section 1(5), fundamentally altered the relationship between the state and municipal corporations. The state no longer enjoys plenary authority over home rule corporations but is permitted to preempt local policy choices, within certain boundaries. Here, the question is whether the legislature preempted a local criminal ordinance. Thus, amici proceed with the preemption analysis required by this court’s decision in Jackson.
B. ORS 430.402(1)(b) does not conflict with BC 5.02.083.
To determine whether BC 5.02.083 conflicts with and is thus preempted by
ORS 430.402, this court
“first must examine the ordinance and statutes that the parties claim are in conflict. Next, [this court] determine[s] what conduct the ordinance prohibits. Third, [this court] look[s] to see whether the applicable statute or statutes permit that conduct, either by an express legislative decision, by a decision apparent in the legislative history,
10 Importantly, “conflict” in the context of criminal law preemption means something quite different than “conflict” in the context of civil law preemption. State and local civil laws “conflict” when compliance with both is impossible. See Thunderbird Mobile Club, LLC, 234 Or App at 474. 12
or otherwise. If the ordinance prohibits conduct that the statute permits, the laws are in conflict and the ordinance is displaced under Article XI, section 2.”
Jackson, 316 Or at 151 (emphasis in Jackson). Consistent with the first step of the
Jackson analysis, amici turn to an examination of the texts of the statute and ordinance, respectively.
ORS 430.402 provides, in part:
“(1) A political subdivision in this state shall not adopt or enforce any 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:
“* * * * *
“(b) Public drinking, except as to places where any consumption of alcoholic beverages is generally prohibited.”
The statute prohibits political subdivisions from adopting or enforcing any law or regulation that makes public drinking an offense, a violation, or subject to civil or criminal penalties. Subsection (1)(b), however, goes on to provide an exemption to that blanket preemption. Namely, cities are free to make public drinking an offense—and levy concomitant criminal and civil penalties—in “places where any consumption of alcoholic beverages is generally prohibited.” Thus, as set out in the statute, a city may enact a ban on the consumption of alcoholic beverages in any place where such consumption is “generally” prohibited.
The city’s municipal code provides, in part: 13
“A. 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 Commission or by subsection B of this section.
“B. Alcoholic liquor may be consumed and an open container of an alcoholic beverage may be possessed within a park under the jurisdiction of the Tualatin Hills Park and Recreation District, provided such consumption or possession takes place only as duly authorized by written permit issued by the Park District and, if required by state law, the activity has been licensed, in advance, for drinking or consumption purposes by the Commission.
“C. For purposes of this section, a park is under the jurisdiction of the Tualatin Hills Park and Recreation District, if the park is owned, managed or otherwise controlled by the Park District.”
BC 5.02.083. Put simply, the ordinance creates a general prohibition on the consumption of alcohol and the possession of open containers of alcohol in any public place,11 except in public parks with a duly issued permit. In this case, then, the second step of the Jackson analysis is quite simple, for the conduct prohibited by the ordinance is clear.
11 The city’s 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.” BC 5.02.010. The state criminal code defines “public place” identically. See ORS 161.015(10). 14
The more difficult analysis lies with the third step of Jackson: Does the statute allow conduct that the city prohibits? In other words, is a ban on the consumption of liquor in “any public place”—as set out in the ordinance—a ban on the consumption of liquor where such consumption is “generally prohibited”?
Reduced even further: Does the city’s ordinance generally prohibit the consumption of alcohol in any public place? The answer depends on what the legislature meant when it allowed bans on the consumption of alcohol in places where such conduct is “generally prohibited,” as set out in ORS 430.402(1)(b). If
Beaverton’s ban on public drinking falls within the scope of the Subsection (1)(b) exemption, then ORS 430.402 does not allow any conduct prohibited by the city.
As explained more fully below, the text, context, and legislative history of
ORS 430.402 demonstrate that the legislature meant to encompasses local ordinances like the city’s within the exemption to preemption.
1. The text of ORS 430.402(1)(b) allows cities to enact general prohibitions on public drinking and does not allow any conduct prohibited by BC 5.02.083.
To determine the meaning of a statutory provision—that is, to divine what the legislature “intended” when it enacted a law—the text and context of the statute enjoy “primary weight in the analysis.” Gaines, 346 Or at 171. This court remains free, of course, to examine pertinent legislative history, even in the absence of 15
textual ambiguity. Id. at 172; see also State v. Blair, 348 Or 72, 80, 228 P3d 564
(2010) (so stating).
The text of ORS 430.402(1)(b) encompasses the city’s public drinking ban.
As mentioned above, ORS 430.402 unambiguously prohibits political subdivisions from adopting or enforcing any law or regulation that makes public drinking an offense or violation, with one important exemption. Namely, the text of ORS
430.402(1)(b) specifically authorizes cities to enforce public drinking prohibitions and penalties in “places where any consumption of alcoholic beverages is generally prohibited.” (Emphasis added.) What did the legislature mean when it used the adverb “generally” to modify the allowed prohibition?
When analyzing the text of a statute, “words of common usage typically should be given their plain, natural, and ordinary meaning.” PGE v. Bureau of
Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). Absent a statutory definition, the courts presume that ordinary meanings of words are reflected in a dictionary. See Jenkins v. Board of Parole, 356 Or 186, 194, 335 P3d 828 (2014)
(noting that “dictionary definitions * * * can be useful” in determining the meaning of an undefined word or phrase). Of course, “[d]ictionaries * * * do not tell us what words mean, only what words can mean, depending on their context and the particular manner in which they are used.” State v. Cloutier, 351 Or 68, 96, 261 16
P3d 1234 (2011) (emphasis in original). Thus, the dictionary provides an analytical starting point, not a dispositive authority.
In amici’s view, the only word in Subsection (1)(b) that could reasonably require resort to the dictionary is the adverb “generally.” In ordinary usage,
“generally” can mean “in a general manner : as a * * * as a whole : COLLECTIVELY b * * * : with respect to all : UNIVERSALLY c : in a reasonably inclusive manner : in disregard of specific instances and with regard to an overall picture * * * d : on the whole : as a rule * * *.” Webster’s Third New Int’l Dictionary 945 (unabridged ed 2002). When used to modify the verb “prohibited,” the word “generally,” therefore, can mean a universal or all-encompassing prohibition. A universal or all-encompassing prohibition, however, can reasonably be read two different ways.
Petitioner on review argues that “generally prohibited” refers to the nature of the places where alcohol is consumed, meaning that a local government can only ban the consumption of alcohol in those places where such consumption is prohibited universally or as a rule. Amici and respondent on review argue that “generally prohibited” refers to the nature of the ban, meaning that a local government can prohibit the consumption of alcohol anywhere it wants, so long as the prohibition is all-encompassing.
Under amici’s reading of the text, Beaverton’s public drinking ban simply does what is allowed under the exemption set out in ORS 430.402(1)(b). 17
BC 5.02.083 enacts a general ban on the consumption of alcoholic beverages in public places. The ordinance does not seek to regulate the content of the beverage, the volume of alcohol permitted, or the type of alcoholic beverage consumed in public. Thus, “any consumption” of alcohol in a public place in Beaverton is
“generally prohibited.” The context and legislative history of ORS 430.402(1)(b) further support the argument that Beaverton’s ban on public drinking falls within the exemption.
2. The text of ORS 430.402(1)(b), considered in context, encompasses the city’s ban on public drinking.
ORS 430.402(1)(b) must be read in conjunction with the rest of
ORS 430.402. See Lane County v. LCDC, 325 Or 569, 578, 942 P2d 278 (1997)
(“[W]e do not look at one subsection of a statute in a vacuum; rather, we construe each part together with the other parts in an attempt to produce a harmonious whole.”). That exercise demonstrates that the legislature viewed public drinking as different in kind from other behaviors associated with the consumption of alcohol and intended to preserve local authority to enact universal bans on public drinking.
The legislature first enacted ORS 430.402 in 1971. Senate Bill (SB) 431
(1971) was an evolution in the state’s approach to combating alcoholism—the law both increased treatment options and reduced criminal penalties. To that end, the legislature created an Alcoholism and Intoxication Treatment Program and 18
decriminalized many of the behaviors associated with alcoholism. Indeed, the legislature declared that “alcoholism is an illness. The alcoholic is a sick person and should be afforded treatment for his [sic] illness.” Or Laws 1971, ch 622, § 1.
Although SB 431 decriminalized many of the behaviors associated with alcoholism, the legislature differentiated between much of the conduct of an alcoholic individual12 and the specific act of public drinking. Unlike the exemption from preemption for local laws that prohibit public drinking, there is no parallel exemption for local laws that prohibit and punish public intoxication, drunk and disorderly conduct, or vagrancy.13 On the one hand, the conduct
12 An “alcoholic” is defined as “any person who has lost the ability to control the use of alcoholic beverages * * *.” ORS 430.306(1). 13 Compare the language of 430.402(1)(b) with the other provisions of 430.402(1):
“(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 cannabis or controlled substances in public, being an alcoholic or a drug-dependent person, 19
identified in ORS 430.402(1)(a), (c)-(e), relates to behaviors commonly associated with individuals suffering from alcoholism. Local governments are explicitly and unambiguously preempted from making those behaviors an offense or violation.
On the other hand, a local government’s ability to ban public drinking is specifically exempted from preemption. True, public drinking may very well be associated with alcoholism. Importantly, however, unlike the rest of the conduct set out in ORS 430.402(1), the act of public drinking is objective: Was a person consuming alcohol in public? The other provisions require a subjective determination of the extent to which alcohol has affected an individual’s behavior—i.e., is the person intoxicated or under the influence of alcohol, is the person drunk or disorderly, is the person an alcoholic? The legislature saw fit to remove those subjective determinations from the purview of local criminal law.
The relationship between ORS 430.402(1)(b) and the other subsections of the statute is underscored by a 1975 Attorney General opinion. State Senator
Robert Smith asked the Attorney General about a proposed amendment to ORS
or being found in specified places under the influence of alcohol, or cannabis or controlled substances.
(e) Using or being under the influence of cannabis or controlled substances.”
The reference to “cannabis” was added to the statutory language of ORS 430.402 in 2017. Or Laws 2017, ch 21, §60. 20
430.402(1)(b) that would have allowed cities to adopt local laws that made any disturbance of the public in any public or private place by an intoxicated person a
Class C misdemeanor. See 37 Op Atty Gen 647 (1975). The Attorney General opined that cities were permitted to “prohibit public drinking of alcoholic beverages in certain places without violating the federal [Uniform Alcoholism and
Intoxication Act] since drunkenness is not an element of the offense.” Id. The
Attorney General further stated that “[t]he only requirement [in the Act] is that the prohibited conduct defined in the statute, ordinance or law not contain drunkenness as an element of the offense.” Id.
Unlike the other behaviors identified in ORS 430.402(1), the act of public drinking is objective and unambiguous. In addition, ORS 430.402(1)(b) does not contain drunkenness or alcoholism as an element of the offense. Identifying public drinking does not require a subjective judgment on the part of a law enforcement official, nor does it require that an individual be intoxicated or an alcoholic. Thus, permitting a local government to ban public drinking accords with the legislature’s goal of decriminalizing alcoholism and its associated behaviors.
The legislature’s broad policy in enacting SB 431 was to combat alcoholism and, as a result, the legislature preempted cities from regulating the behavior of individuals who lost the ability to control the use of alcoholic beverages.
Consistent with that policy, the city does not regulate public intoxication, 21
disorderly conduct, vagrancy, or specific alcohol content or volume—it provides only that alcohol may not be consumed in a public place. Thus, judged by the text of ORS 430.402(1)(b) in context, the city’s public drinking ban falls within the exemption created by the legislature for local laws that broadly prohibit the act of drinking alcohol in public.
3. The legislative history indicates that the legislature intended to preserve local authority to enact broad bans on public drinking.
The legislative history of ORS 430.402 is far from dispositive but does lend further support to amici’s and respondent on review’s reading of the
Subsection (1)(b) exemption. SB 431, as introduced, did not include an exemption from preemption for local laws that prohibited public drinking. Instead, the introduced bill stated, in part:
“No county, municipality or other political subdivision of this state shall adopt any local law, ordinance, resolution or regulation rendering public intoxication, public drinking, drunk and disorderly conduct, or vagrancy or other behavior that includes as one of its elements either drinking in public or being a common drunkard for being found in enumerated placed in an intoxicated condition, an offense, a violation or the subject of criminal or civil penalties or sanctions of any kind.”
Bill File, SB 431 (1971), Introduced Bill (emphasis added). The introduced version of the bill expressly preempted cities from regulating or banning public drinking without exception. After the bill moved out of the Senate, however, the 22
House Subcommittee on Health entirely rewrote the quoted section. The amended bill read, in part:
“No political subdivision in this state shall adopt any local law, ordinance, resolution 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, except that the political subdivision may adopt a local law, ordinance, resolution or regulation identical to section 221, chapter___, Oregon Laws 1971 (Enrolled Senate Bill 40).14
“(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 in public or being a common drunkard or being found in specified places in an intoxicated condition.”
Bill File, SB 431 (1971), -2 amendments (April 21, 1971) (emphasis added).
It is not entirely clear why the Subcommittee on Health amended SB 431 and created an exemption from preemption for local bans on public drinking. In
1971, several cities had existing public drinking bans—indeed, the city of
14 In 1971, legislation permitted local public intoxication ordinances identical to former ORS 166.035 (making it a crime to be intoxicated in public only if the intoxicated person disturbed the peace). However, in 1975, the legislature repealed ORS 166.035 and the associated exemption to local preemption found in former ORS 460.325. See former ORS 166.035, repealed by Or Laws 1975, ch 715, § 2; see former ORS 460.325 (renumbered as ORS 430.402 in 2011), amended by Or Laws 1975, ch 715, § 1. 23
Beaverton’s ban was first enacted in 195515—and the Subcommittee on Health may have been responding to the concerns of local officials who wanted to maintain their bans on public drinking.16 In any event, the legislature passed SB
431 as amended and has preserved local authority to ban public drinking through all subsequent amendments to ORS 430.402(1).17 Bill File, SB 431 (1971),
Enrolled Bill.
The text, context, and legislative history of ORS 430.402(1)(b) demonstrate that Beaverton’s ban on drinking alcohol in any public place falls within the
15 See Beaverton Ordinance 380 (March 14, 1955) (“No person shall drink or consume any alcoholic liquor in or upon any street, alley, public grounds, or other public place unless such place has been licensed for that purpose by the Oregon Liquor Control Commission.”). 16 The amendment authorizing local bans on public drinking was most likely introduced by Representative Nancie Fadeley, but the quality of audio recording from the hearing is poor and the speakers did not always identify themselves during the subcommittee hearing. Tape Recording, House Subcommittee on Health, SB 431, April 21, 1971, Tape 6, Side 2 (statement of Rep Nancie Fadeley). Representative Fadeley introduced the amendment after the city of Portland submitted testimony in favor of SB 431, along with suggested amendments, to the Subcommittee. Minutes, House Subcommittee on Health, SB 431, April 2, 1971, 3 (The minutes state that Portland’s “statement and suggested amendments are attached to the archive minutes.”) Unfortunately, Portland’s statement and suggested amendments are missing from the archives, in both hardcopy and in microfiche.
17 ORS 430.402—originally ORS 430.325 but renumbered by Legislative Counsel in 2011—has been amended five times since its enactment in 1971. See Or Laws 1973, ch 795, § 3; Or Laws 1975, ch 715, § 6; Or Laws 1977, ch 745, § 39; Or Laws 1983, ch 338, § 928; Or Laws 2017, ch 21, § 60. 24
exemption to preemption. As noted above, ORS 430.402(1) generally preempts cities from enacting bans on the listed conduct. The legislature, however, provided one exemption to that blanket preemption: local jurisdictions are free to prohibit public drinking in places where any consumption of alcoholic beverages is
“generally prohibited.” In amici’s view, a general prohibition is one that applies universally, wherever the prohibition is enforced. BC 5.02.083 does just that. The
Subsection (1)(b) exemption was meant to preserve an area of local regulatory authority while promoting the statewide policy of decriminalizing alcoholism.
Interpreting ORS 430.402(1)(b) to encompass BC 5.02.083 preserves the authority of local governments and the voters of each community to decide for themselves whether to adopt a ban on drinking in public.
C. Holding that ORS 430.402(1)(b) conflicts with BC 5.02.083 will create uncertainty throughout the state.
If this court holds that the city’s public drinking ban conflicts with state law, the result will bring great uncertainty to communities throughout the state. While the League has not researched the code of every city in Oregon, numerous cities throughout each of Oregon’s geographic regions and each of the six most populous cities ban the public consumption of alcohol: Astoria, Newport, and Coquille along the coast; Grants Pass, Roseburg, and Klamath Falls to the southwest; Madras and
Prineville in Central Oregon; Ontario, Enterprise, and Burns to the east; and 25
Portland, Eugene, Salem, Gresham, Hillsboro, and Beaverton. See Astoria City
Code 5.370; Newport City Code 9.55.010; Coquille City Code 9.08.050; Grants
Pass City Code 5.68.010(A); Roseburg City Code 7.02.030(A); Klamath Falls City
Code 5.438; Madras City Ordinance 497, § 19; Prineville City Code 130.15;
Ontario City Code 3-3-8(A); Enterprise City Code 9.16.020(B); Burns City Code
9.30.040; Portland City Code 14A.50.010(A); Salem Revised Code 90.020(a);
Eugene Code 4.190(1); Gresham Revised Code 7.10.120(1); Hillsboro Municipal
Code 7.08.080(A); BC 5.02.083.
In amici’s view, each of those bans is expressly authorized by ORS
430.402(1)(b). If this court holds that Beaverton’s ban does not fall within the exemption to preemption in ORS 430.402(1)(b), cities across the state must reexamine their bans on public drinking and attempt to craft a prohibition that does something other than broadly prohibit the public consumption of alcohol but still fits within the exemption. Such a result is not supported by the text, context, and legislative history of ORS 430.402 or the home rule provisions of the Oregon
Constitution, and would create uncertainty throughout the state.
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V. CONCLUSION
For the foregoing reasons, amici respectfully ask this court to affirm the decision of the Court of Appeals.
Respectfully submitted this 20th day of July, 2018.
By: s/ Philip Thoennes s/ Jayme Hafner PHILIP M. THOENNES, OSB 154355 Assistant General Counsel JAYME HAFNER, OSB 121285 Assistant General Counsel League of Oregon Cities 1201 Court Street NE, Suite 200 Salem, OR 97301 (503) 588-6550 [email protected] [email protected]
Of Attorneys for Amici Curiae League of Oregon Cities and City of Beaverton.
CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH AND TYPE SIZE REQUIREMENTS
Brief Length
I certify that (1) this brief complies with the word-count limitation in ORAP 5.05(1)(b)(i) and (2) the word count of this brief (as described in ORAP 5.05(1)(a)) is 7,479 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 as required by ORAP 5.05(3)(b)(ii).
By: s/ Philip Thoennes Philip M. Thoennes, OSB 154355
Of Attorneys for Amici Curiae League of Oregon Cities and City of Beaverton.
CERTIFICATE OF FILING AND SERVICE
I certify that on July 20, 2018, I electronically filed the foregoing Brief of
Amici Curiae League of Oregon Cities and City of Beaverton with the
Appellate Court Administrator, Appellate Court Records Section, by using the
Oregon Appellate eFiling System.
I further certify that on July 20, 2018, I served the forgoing Brief of
Amici Curiae League of Oregon Cities and City of Beaverton on the following parties by using the electronic service function of the eFiling system:
ANNA E. BELAIS, OSB 141046 JORDAN R. SILK, OSB 105031 Deputy Public Defender Assistant Attorney General Office of Public Defense Services Appellate Division 1175 Court Street NE Oregon Department of Justice Salem, OR 97301 1162 Court Street NE (503) 378-3349 Salem, OR 97301 [email protected] (503) 378-4402 [email protected] Attorney for Petitioner on Review. Attorney for Respondent on Review.
By: s/ Philip Thoennes Philip M. Thoennes, OSB 154355
Of Attorneys for Amici Curiae League of Oregon Cities and City of Beaverton.