§ 19.5 Deficiencies in the Criminal Statute

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 19.5 DEFICIENCIES IN THE CRIMINAL STATUTE

§ 19.5-1 Preemption

§ 19.5-1(a) Overview

Although the United States Constitution makes a select few of the federal government's powers exclusive, the vast majority of federal statutes address areas in which states also have the authority to legislate. See Caleb Nelson, Preemption, 86 Va L Rev 225 (2000). The doctrine of preemption defines the boundaries of state and federal control when conflict arises. Mary J. Davis, Unmasking the Presumption in Favor of Preemption, 53 SC L Rev 967, 968 (2002). Preemption analysis stems in large part from the Supremacy Clause of the United States Constitution, which states that federal law "shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." US Const, Art VI, cl 2-3. The Supremacy Clause of the United States Constitution establishes the preeminence of federal law over state law. See Laurence H. Tribe, American Constitutional Law § 6-28 (3d ed 2000).

The United States Supreme Court has defined three types of cases in which federal law preempts state law: (1) express preemption: when a federal statute explicitly withdraws power from states (see § 19.5-1(b)(1)); (2) field preemption: when the court concludes that a statute occupies the field so completely that it was Congress's implied intent to exclude the states from legislating in that subject area (see § 19.5-1(b)(2)); and (3) conflict preemption: when state law and a federal statute directly conflict (see § 19.5-1(b)(3)). Nelson, 86 Va L Rev at 226-28.

In Oregon, state criminal law may preempt parallel city ordinances. See City of Portland v. Dollarhide, 300 Or 490, 501-03, 714 P2d 220 (1986); City of Portland v. Lodi, 94 Or App 735, 767 P2d 108, aff'd, 308 Or 468, 782 P2d 415 (1989). The home-rule provisions of Article XI, section 2, of the Oregon Constitution empower cities to enact criminal ordinances that prohibit conduct also outlawed by state law. Dollarhide, 300 Or at 492. However, city ordinances "cannot conflict or be incompatible with state statutes." Lodi, 94 Or App at 737. And express prohibitions against enacting local laws or regulations also may preempt enforcement of ordinances. See State v. Uroza-Zuniga, 364 Or 682, 695, 439 P3d 973 (2019) (concluding that a local public-drinking ordinance fell within an exception to prohibition in ORS 430.402 against enacting public-intoxication offenses).

For further discussion on home rule, see Oregon Constitutional Law chapter 10 (OSB Legal Pubs 2022).

§ 19.5-1(b) Substantive Issues

§ 19.5-1(b)(1) Express Preemption

"When a federal law expressly preempts a state law, the state law is without effect." State v. Oidor, 254 Or App 12, 17, 292 P3d 629 (2012), adh'd to as modified on recons, 258 Or App 459, 310 P3d 671 (2013), rev den, 354 Or 814 (2014) (citing Wolf v. Central Oregon & Pacific Railroad, Inc., 230 Or App 269, 216 P3d 316 (2009)). In Oidor, 254 Or App at 17-20, the court of appeals held that the federal Copyright Act contains a provision expressly preempting ORS 164.865(1)(b), which governs unlawful sound recording. Section 301 of the Copyright Act provides that the act preempts a state law if the work in question is fixed in a tangible medium, comes within the subject matter of copyright, and state law creates a right that is "equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106." Oidor, 254 Or App at 17. The court concluded that section 301 was an example of express preemption, that ORS 164.865(1)(b) created an equivalent right, and that congress intended section 301 to apply to state criminal law as well as state civil law. Oidor, 254 Or App at 17.

§ 19.5-1(b)(2) Field Preemption

To apply the "occupation of the field" doctrine, courts look to whether congress intended to exclusively occupy a field. Derenco, Inc. v. Benj. Franklin Federal Savings & Loan Ass'n, 281 Or 533, 541-42, 577 P2d 477, cert den, 439 US 1051 (1978). The factors to be considered include whether the subject matter is of particular federal interest and whether the regulatory scheme is comprehensive in its coverage of the subject matter. Derenco, Inc., 281 Or at 541-43.

In Hines v. Davidowitz, 312 US 52, 59-60, 61 S Ct 399, 85 L Ed 581 (1941), the United States Supreme Court considered whether the federal Alien Registration Act preempted the Pennsylvania Alien Registration Act. The court held that federal power in the general field of foreign affairs, including immigration, was supreme, and that the Pennsylvania Alien Registration Act was invalid. Davidowitz, 312 Or at 62. When Congress passed the federal law in question, "it plainly manifested a purpose to do so in such a way as to protect the personal liberties of law-abiding aliens through one uniform national registration system." Davidowitz, 312 Or at 74. Congress intended, therefore, to occupy the entire field of immigration, naturalization, and deportation. Other state laws, whether or not they were in direct conflict with the federal act, could not coexist with the national regulatory scheme. Davidowitz, 312 Or at 66-68.

§ 19.5-1(b)(3) Conflict Preemption

The Oregon Supreme Court recognizes that conflict preemption occurs "not only when it is physically impossible to comply with both the state and federal law, but when 'under the circumstances of the particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Willis v. Winters, 350 Or 299, 308, 253 P3d 1058 (2011), cert den, 565 US 1110 (2012), cert den sub nom Gordon v. Sansone, 565 US 1110 (2012) (quoting Hines v. Davidowitz, 312 US 52, 67-68, 61 S Ct 399, 85 L Ed 581 (1941)).

In Willis, the Oregon Supreme Court held that a statute requiring county sheriffs to issue concealed handgun licenses to qualified applicants regardless of medical marijuana use was not preempted by the federal prohibition on gun possession by marijuana users. Willis, 350 Or at 308. Because the Gun Control Act of 1968 (the federal statute at issue) expressly renounced any congressional intent to preempt state law unless the law was in "direct and positive" conflict with the act, only conflict preemption was at issue. Willis, 350 Or at 308-09. The court concluded that the federal and state statutes were not in direct conflict because the federal law did not govern the conduct of state sheriffs. Furthermore, the court held that state law was not an obstacle to Congress's purpose in enacting the federal statute because it did not preclude full enforcement of the federal law by federal law enforcement officers. Willis, 350 Or at 311.

In Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, 348 Or 159, 230 P3d 518 (2010), the Oregon Supreme Court considered whether Oregon law requires employers to accommodate employees using federally defined illegal drugs that are permitted under state law. In the...