Chapter §10.4 CRIMINAL STATUTES AND ORDINANCES

• 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. Since then, Article XI, section 2 of the Oregon Constitution, has 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 v. Knapp, 73 Or 558, 142 P 594, rev'd on reh'g, 73 Or 558, 145 P 22 (1914), 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 v. Bisaillon, 152 Or 578, 54 P2d 1169 (1936). Another early case, Harlow v. Clow, 110 Or 257, 223 P 541 (1924), overruled in part by Application of Landreth, 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...