Chapter § 10.4

• Jurisdiction: Oregon

§ 10.4 CRIMINAL STATUTES AND ORDINANCES

§ 10.4-1 If Conflict, Constitutional Presumption Favors Statutes

The effects of the home-rule amendments on criminal statutes and local criminal ordinances received comparatively little attention until 1986. For the next 20 years, Article XI, section 2, of the Oregon Constitution proved to be a fertile source of challenges to cities' criminal ordinances. Article XI, section 2, expressly recognizes the legislature's preeminence in criminal matters: it grants cities home-rule authority "subject to the Constitution and criminal laws."

Despite the clear constitutional directive, the court in one of the early cases, Kalich, 73 Or 558, in the course of holding a statutory speed limit unconstitutional as applied inside the City of Portland, declared that Article XI, section 2, was intended to "restrain the legislature from legislating in criminal matters affecting those subjects that are purely local and municipal in character." Kalich, 73 Or at 578. Kalich was expressly overruled by Winters, 152 Or 578. Another early case, Harlow v. Clow, 110 Or 257, 223 P 541 (1924), overruled in part by Landreth v. Gladden, 213 Or 205, 324 P2d 475 (1958), upheld a city ordinance that defined the offense of vagrancy identically to the state offense but prescribed a lesser penalty; the court found no conflict between the state and local versions of the offense.

§ 10.4-2 The Dollarhide-Lodi-Jackson Trilogy

The modern law on cities' powers to create and enforce a criminal ordinance that differs from statutory offenses is shaped by three decisions involving Portland ordinances. The first, City of Portland v. Dollarhide, 300 Or 490, 714 P2d 220 (1986), concerned a challenge to the city's minimum penalty for prostitution; the defendant argued that state law, which set no minimum penalty, preempted the city's authority to set a minimum penalty. The city argued that there was no conflict because its minimum penalty was still less than the state's maximum penalty. The court began by noting that the constitutional assumption regarding statutory preemption of local ordinances differs for criminal and civil laws. While the court will assume that the legislature did not intend civil statutes to displace local charters or ordinances unless it makes that intention apparent, the reverse is true for state criminal law. Dollarhide, 300 Or at 501. The court then formulated different tests for the definitional and the penalty provisions of an ordinance that is asserted to conflict with a criminal statute.

As to the definitional and prohibitory provisions of an offense, the test is whether the city's criminal ordinance "prohibits an act which the statute permits, or permits an act which the statute prohibits." Dollarhide, 300 Or at 502. The ordinance at issue in Dollarhide defined prostitution in terms that were nearly identical to the statutory definition, so the court did not have to explain whether a statute or ordinance "permits" something merely by not prohibiting it, but that question would present itself soon. As to penalty provisions, when conduct constitutes an offense under both state and local law, the city may punish it less severely than the state does, unless the legislature has expressed a contrary intent. However, a city penalty that is greater than the state-prescribed minimum or maximum penalty for the same conduct is "incompatible" with state law, and therefore invalid. Dollarhide, 300 at 502.

The next case to reach the supreme court, City of Portland v. Lodi, 308 Or 468, 782 P2d 415 (1989), concerned the substantive definition of an offense. A city ordinance prohibited carrying any concealed knife with a blade longer than 3 1/2 inches; the defendant...