City of Portland v. Jackson , 316 Or. 143 ( 1993 )

PETERSON, J.

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

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

“It is unlawful for any person to expose his or her genitalia while in a public place or place visible from a public place, if the public place is open or available to persons of the opposite sex.”

Defendant demurred, claiming that the ordinance is invalid because it is in conflict with the state “public indecency” statute, ORS 163.465, which provides in part:

“(1) A person commits the crime of public indecency if while in, or in view of, a public place the person performs:

“(c) An act of exposing the genitals of the person with the intent of arousing the sexual desire of the person or another person.”

The trial court sustained the demurrer and dismissed the case. On the city’s appeal, the Court of Appeals affirmed, stating that the city ordinance “prohibits what the state legislature intended to permit.” City of Portland v. Jackson, 111 Or App 233, 245, 826 P2d 37 (1992).

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

“The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon * * (Emphasis added.)

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

Rose v. Port of Portland, 82 Or 541, 162 P 498 (1917), contains an extensive discussion of the events leading to the adoption of Article XI, section 2, of the Oregon Constitution. “[T]he idea which was uppermost in the minds of all was to take from the legislature the power to make a charter for a city or town by a special law.” 82 Or at 561 (emphasis in original). The opinion makes it clear that local governments “could legislate concurrently upon the same subject and make use of its legislation if the city legislation did not conflict with the state legislation.” Id. at 571. See also Harlow v. Clow, 110 Or 257, 263, 223 P 541 (1924) (city vagrancy ordinance that provided for a lesser penalty than a duplicate state statute held not in conflict),partially overruled on other grounds by Landreth v. Gladden, 213 Or 205, 324 P2d 475 (1958). We interpret the words “subject to” in Article XI, section 2, to mean “not in conflict with.” Local governments cannot enact criminal laws in conflict with state criminal laws. Local governments thus arebarred from, e.g., creating a “safe haven” for outlaws by legalizing, within the boundaries of the city, that which the legislature has made criminal statewide. This case, defendant claims, involves the converse of the foregoing scenario; here, a city ordinance is alleged to be “in conflict with” a state statute because the ordinance forbids conduct that, according to defendant, state law permits. We turn to that question.

The “not in conflict” interpretation of Article XI, section 2, was used by this court recently in City of Portland v. Dollarhide, 300 Or 490, 714 P2d 220 (1986). There, a city prostitution ordinance was virtually identical to a state statute, except that the ordinance required a mandatory minimum sentence, while the statute did not. This court held that the sentencing provision of the ordinance violated Article XI, section 2. The Dollarhide court stated a method for determining whether a criminal ordinance and statute are in conflict:

“[I]n determining whether the * * * provisions of a city criminal ordinance conflict with a state criminal statute, the test is whether the ordinance prohibits an act which the statute permits, or permits an act which the statute prohibits.” 300 Or at 502.

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

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

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

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

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

City of Portland v. Lodi, 308 Or 468, 474, 782 P2d 415 (1989), is illustrative of legislative permission by implication. In Lodi, a city ordinance prohibited the carrying of a pocketknife with a blade beyond a certain length. The legislature had enacted a statute concerning concealed weapons. The legislative history revealed that an earlier draft of the proposed law had listed as a dangerous weapon “any knife other than a pocketknife,” along with a switchblade, dirk, or dagger. A legislative subcommittee later amended the bill by removing all reference to knives other than switchblades, dirks, or daggers. The Lodi court held that, because the legislative history showed that a decision had been made to permit the concealed carrying of any knife not a switchblade, dirk, or dagger, the city ordinance prohibited conduct that the legislature intended to permit, and the ordinance was displaced by the state statute. 308 Or at 475. “The search is not for particular words but for a political decision, for what the state’s lawmakers either did or considered and chose not to do.” Id. at 474.

Neither Dollarhide nor Lodi addressed the situation in which the statute and its legislative history are silent or unclear as to whether a decision to “permit” conduct has been made. Dollarhide, 300 Or at 501, states that “[t]he analysis of compatibility begins then with the assumption that state criminal law displaces conflicting local ordinances which prohibit and punish the same conduct.”³ (Emphasis in original.) Dollarhide quoted a footnote from LaGrande/ Astoria v. PERB, 281 Or 137, 149, 576 P2d 1204, adhered to on rehearing, 284 Or 173, 586 P2d 765 (1978), a case concerned with whether state statutes regarding retirement benefits for city police and firefighters impinged on a local government’s home rule powers. The court there stated that it is ‘ ‘reasonable to assume that the legislature does not mean to displace local civil or administrative regulation of local conditions by a statewide law unless that intention is apparent.” In a footnote, the court then stated the dictum that “[t]he reservation in article XI, section 2, supra, regarding state criminal law reverses this assumption with respect to such laws.” That passage could be interpreted in the present case to mean that, if the legislature has not made a clear decision to permit conduct that an ordinance prohibits, we should nevertheless “assume” that the legislature intended to permit that conduct, and thus also “assume” that the ordinance is displaced by the statute.

We disavow such an interpretation. It is important to note that LaGrande/Astoria concerned the constitutionality of state administrative statutes and that Dollarhide concerned the constitutionality of a mandatory minimum penalty provision. Neither case involved criminal laws governing conduct, neither involved the issue whether the state legislature, by enacting a similar statute, intended to permit conduct that a criminal ordinance prohibits.

The people of Oregon, by amending Article XI, section 2, gave to the people of a municipality (acting through their local government) the right to pass laws, and restrict their own individual freedom and the freedom of others within their jurisdiction, subject only to the “Constitution and the criminal laws of the State of Oregon.” We cannot simply “assume” that, by its silence, the legislature intended to permit conduct made punishable under an ordinance. The state constitutional rights granted to the citizens of a municipality are not so easily discarded. When a local criminal ordinance prohibits conduct, unless the legislature has permitted that same conduct, either expressly or under circumstances in which the legislative intent to permit that conduct is otherwise apparent, the ordinance is not in conflict with state criminal law and is valid under Article XI, section 2, of the Oregon Constitution.

Events occurring near the time of the 1906 enactment of Article XI, section 2, confirm this conclusion. In 1903, the Legislative Assembly passed a special act that granted a charter to the City of Portland. Special Laws of Oregon 1903, chapter I. Article I, section 3, provided:

“The City of Portland shall be invested within its limits with authority to perform all public services and with all governmental powers, except such as are expressly conferred by law upon other public corporations and subject to the limitations prescribed by the constitution and laws of the state, except as hereinafter provided.”

Article IV, section 73, of the charter, provided in part:

“The council has power and authority, subject to the provisions, limitations, and restrictions in this charter contained—

“ 1. To exercise within the limits of the City of Portland all the powers, commonly known as the police power, to the same extent as the State of Oregon has or could exercise said power within said limitsf]”

Similar provisions remain in the charter to this day. The current charter contains this provision:

“The City of Portland by its Council has power and authority, subject to the provisions, limitations and restrictions contained in this Charter or in statute, to exercise any power or authority granted to the City by statute, general or special, or by this Charter, and may do any other act necessary or appropriate to carry out such authority, or exercise any other power implied by the specific power granted.

“(a) Among such specific powers, the City has the power and authority:

“1. To exercise within the City and City-owned property, all the powers commonly known as the police power to the same extent as the State of Oregon has or could exercise said power within said areas, and to make and enforce within said areas all necessary or appropriate water, local, police, sanitary and safety laws and regulations.” City of Portland Charter, Art I, ch 2, § 2-105 (1988).

And see, e.g., Covey Garage v. Portland, 157 Or 117, 139, 141, 70 P2d 566 (1937) (Portland city ordinance requiring inspection of rental cars upheld under provision of Portland charter granting the city the power “to exercise within the limits of the City of Portland all the powers commonly known as the ‘police power’ to the same extent as the State of Oregon has or could exercise said power within said limits”; city ordinance held not to conflict with either constitutional provision or statute).

The 1903 and 1905 legislative action occurred near the time that the Home Rule Amendment was adopted. The legislature’s grant of plenary power to the City of Portland in 1903 and 1905 establishes its contemporary understanding of the powers of cities, even absent the Home Rule Amendment.⁴ The drafters of the Home Rule Amendment likely were aware of these powers of local government. Assuredly, they intended to protect the right of cities and towns to pass legislation. They certainly did not intend to reduce a city’s powers from those then existing.

Since Harlow v. Clow, supra, was decided in 1924, this court consistently has held that the validity of local criminal legislation turns on whether it conflicts with state legislation. Contrary to the assertion in the dissent, that was the basis for this court’s decision in City of Portland v. Dollarhide, supra, and City of Portland v. Lodi, supra.

We turn, then, to the ordinance and statutes at issue here. As stated above, we first must examine the ordinance and statutes that the parties claim are in conflict. Next, we determine what conduct the ordinance prohibits. Third, we look 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, 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.

We again quote the ordinance and statute at issue. Defendant was charged with “indecent exposure” under PCC § 14.24.060, which provides:

“It is unlawful for any person to expose his or her genitalia while in a public place or place visible from a public place, if the public place is open or available to persons of the opposite sex.”

Defendant claims that the ordinance is in conflict with the state “public indecency” statute, ORS 163.465, which provides in part:

“(1) A person commits the crime of public indecency if while in, or in view of, a public place the person performs:

<<* * * * #

“(c) An act of exposing the genitals of the person with the intent of arousing the sexual desire of the person or another person.”

The ordinance prohibits all public exposure of genitalia if the public place is “open or available to persons of the opposite sex,” regardless of the person’s mental state; the statute prohibits only public exposure of genitalia accompanied by the intent of arousing a person’s sexual desire.

Our next inquiry is whether the Oregon legislature intended to “permit” conduct that the ordinance proscribes — non-sexually motivated public exposure of genitalia in a public place open to or available to persons of the opposite sex. It has not, by legislation, expressly permitted public exposure of genitalia occurring without an intent to arouse. We examine the legislative history to see whether it has otherwise manifested its intent to allow such conduct.

In 1971, the legislature enacted ORS 163.465 and repealed former ORS 167.145, an “indecent exposure” statute, which had remained essentially unchanged since 1864.⁵ Arguably, former ORS 167.145 prohibited sexually motivated behavior and non-sexually motivated behavior. Thus, its repeal and replacement with a law that prohibits only sexually motivated public nudity is evidence that the legislature made a decision to permit non-sexually motivated public nudity. Repeal of a statute may be evidence of a political decision to permit conduct that was previously forbidden.

In the present case, however, former ORS 167.145 was replaced, and the commentary to its replacement, ORS 163.465, does not indicate that the legislature intended to permit non-sexually motivated public nudity. The commentary states that “[a]n exposure that is not sexually motivated would not violate this section, but might be ‘disorderly conduct.’ ” Criminal Law Revision Comm, Oregon Criminal Code of 1971, SB 40, reprinted in Proposed Oregon Criminal Code, Final Draft and Report § 120, Public Indecency at 129 (July 1970). Whether or not public nudity would constitute “disorderly conduct,”⁶ this commentary is insufficient to demonstrate a legislative political decision to permit non-sexually motivated public nudity.

Defendant contends that a correct interpretation of the commentary to the Criminal Code indicates that the legislature considered criminalizing non-sexually motivated public nudity, but chose not to. Defendant relies on the Commentary to Tentative Draft No. 1 of the Proposed Oregon Criminal Code, which states that the public indecency statute, ORS 163.465, “requires an intent to arouse the sexual desire of the actor or another. An accidental or negligent exposure would not violate this section.” Judge Richard L. Unis, Oregon Criminal Code 1972, Preliminary and Ten-atative Drafts, Art 13, Sexual Offenses, Tentative Draft No. 1, at p 70 (Feb. 1970). Defendant asserts that this passage establishes that the legislature made a political decision to “permit” accidental or negligent public exposure of genitalia.

We do not agree with defendant. The statement in the tentative draft was not included in the commentary. The lone statement in Draft No. 1 is far from establishing a legislative political decision.

We do not believe that the repeal of former ORS 167.145, without more, establishes a legislative political decision to permit non-sexually motivated public nudity. In the absence of stronger evidence of legislative intent, we are unconvinced that the legislature intended to permit the conduct prohibited in the city ordinance. Therefore, city’s “indecent exposure” ordinance does not conflict with the state “public indecency” statute, and the ordinance is valid under Article XI, section 2, of the Oregon Constitution.

The decision of the Court of Appeals and the judgment of the district court are reversed. The case is remanded to the district court for further proceedings.

1 ORS 430.325(1) provides in part:

“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.”

2 The legislature also expressly could permit local legislation on a subject. The legislature has done' this. For example, ORS 430.325(2) expressly authorizes local governments to regulate “driving while under the influence of intoxicants.”

3 It might have been more accurate to say in Dollarhide, consistent with other statements therein (see quotation from Dollarhide, ante at 146-47, that the “analysis of compatibility begins then with the proposition that state criminal law displaces local ordinances that conflict with a criminal statute.”

4 The legislature continues to recognize the powers of local governments. ORS 221.916 lists the powers of city councils, including the power to:

“(8) Suppress and prohibit anything which is injurious to the public morals, public safety or the public health of the inhabitants of any such city, including the power to define, suppress and prohibit nuisances of every kind, including those arising out of the receipt, sale or disposal of intoxicating liquor in violation of law.”

5 Former ORS 167.145, repealed by Or Laws 1971, ch 743, § 432, provided:

‘ ‘Any person who wilfully and lewdly exposes his person or the private parts thereof in any public place, or in any place where there are present other persons to be offended or annoyed thereby, or takes any part in any model artist exhibition, or makes any other exhibition of himself to public view, or to the view of any number of persons, which is offensive to decency, or is adapted to excite vicious or lewd thoughts or acts, shall be punished upon conviction by imprisonment in the county jail for not less than three months nor more than one year, or by a fine of not less than $50 nor more than $500.”

6 ORS 166.025 provides in part:

“(1) A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, the person:

íís¡: * * * *

“(g) Created a hazardous or physically offensive condition by any act which the person is not licensed or privileged to do.

“(2) Disorderly conduct is a Class B misdemeanor.”

The language of ORS 166.025 gives no indication that the legislature intended to prohibit all non-sexually motivated public nudity as “disorderly conduct.” ORS 166.025, the disorderly conduct statute, requires a mental state of recklessness or intent. An accidental or negligent exposure would not be criminalized as disorderly conduct; PCC § 14.24.060 would criminalize such an exposure.