Lead Opinion
Because this case comes to us on a demurrer, we need not recite the facts in detail. State v. Illig-Renn ,
Defendant demurred, arguing, in part, that CMC 5.03.040.010.10 is unconstitutional because ORS 471.410(3), part of the Oregon Liquor Control Act, preempts it. That statutory provision, which we discuss in more detail later, generally prohibits a person who is present and in control of private property from knowingly allowing a minor who is not the person's own child or ward to consume alcoholic liquor on the property. The first time that a person violates ORS 471.410(3), that person has committed a Class A violation; each subsequent violation "is a specific fine violation" with a presumptive fine of $1,000. ORS 471.410(10).
The municipal court allowed defendant's demurrer and declared the ordinance invalid. Plaintiff appealed to the circuit court, arguing that the ordinance is a valid exercise of its home rule authority not preempted by state law. The trial court affirmed the municipal
Oregon grants municipalities home rule authority in Article XI, section 2, of the Oregon Constitution.
The test for whether state law conflicts with a local ordinance is "whether the local rule in truth is incompatible with the legislative policy, either because both cannot operate concurrently or because the legislature meant its law to be exclusive." Id. at 148,
We begin our analysis by considering which of the Dollarhide tests-the civil/regulatory or the criminal-applies in this context. Plaintiff argues that the civil/ regulatory analysis applies, as ORS 471.410(3) is not a criminal law, both because it falls outside of the criminal code and because the Liquor Control Act's primary purpose is regulatory. Defendant counters that ORS 471.410(3) creates a crime, as evidenced by the criminal nature of subsections (1) and (2) of the same statute,
The parties' arguments, focused as they are on the statutory provision, overlook part of the analysis. To determine whether the regulatory or the criminal analysis applies, we must consider both the nature of the statutory provision and the nature of the ordinance that the statute arguably preempts. After all, if the voters intended to strictly limit the ability of municipalities to adopt criminal ordinances even in contexts in which the state legislature also believed that criminalizing certain types of conduct was appropriate, the voters must also have intended to strictly limit municipalities' authority to criminalize behavior that the state legislature has specifically decided not to criminalize. That is, a criminal municipal ordinance
Although ORS 471.410(3) defines a noncriminal violation, it is part of a statute that creates misdemeanor crimes. ORS 471.410(1), (2). Thus, although subsection (3) itself does not create a crime, it is part of a statute that reflects the legislature's intention to criminalize certain conduct and to not criminalize other conduct. Moreover, plaintiff's ordinance expressly provides that a violation of its terms constitutes a Class A misdemeanor, with each conviction carrying a mandatory sentence that, upon a third conviction, includes imprisonment.
An ordinance that criminalizes conduct conflicts with a state statute if it "either prohibits conduct that the statute permits[ ] or permits conduct that the statute prohibits." State v. Krueger ,
We begin by examining the ordinance and the statute. Defendant was charged with hosting a party for minors in violation of CMC 5.03.040.010.10(1), which, as set out
As noted, defendant argues that the ordinance conflicts with ORS 471.410(3) of Oregon's Liquor Control Act. ORS 471.410(3) provides:
"(a) A person who exercises control over private real property may not knowingly allow any other person under the age of 21 years who is not a child or minor ward of the person to consume alcoholic liquor on the property, or allow any other person under the age of 21 years who is not a child or minor ward of the person to remain on the property if the person under the age of 21 years consumes alcoholic liquor on the property.
"(b) This subsection:
"(A) Applies only to a person who is present and in control of the location at the time the consumption occurs;
"(B) Does not apply to the owner of rental property, or the agent of an owner of rental property, unless the consumption occurs in the individual unit in which the owner or agent resides; and
"(C) Does not apply to a person who exercises control over a private residence if the liquor consumed by the person under the age of 21 years is supplied only by an accompanying parent or guardian."
If the statute permits conduct that the ordinance prohibits in any of the three ways Jackson identified, then the statute displaces the ordinance. We first consider whether the Liquor Control Act occupies the field of liquor control, precluding local legislation on that topic. Jackson ,
Third, we consider whether the legislature has otherwise manifested its intention to permit specific conduct that the ordinance criminalizes. Jackson ,
In arguing that ORS 471.410(3) does not preempt its "hosting" ordinance, plaintiff contends that the legislature did not intend the statute to regulate the same "juvenile party" conduct that plaintiff's ordinance addresses; rather, plaintiff suggests that the two laws address different subjects entirely. To assess that argument, we start by considering the phrasing of ORS 471.410(3). As
The first three subsections of ORS 471.410 prohibit three types of conduct. Subsection (1) prohibits selling, giving, or otherwise making available any alcoholic liquor to a visibly intoxicated person. Using similar terminology, subsection (2) prohibits making alcohol available to a person under 21 years old, unless the person providing the alcohol is the minor's parent or guardian and the activity takes place in certain specified circumstances. Subsection (3)-the provision at issue here-prohibits a person "who exercises control over private real property" from knowingly allowing a person under the age of 21 to consume alcohol on the property (unless the minor is the child or ward of the person who controls the property). Thus, ORS 471.410(2) and (3) have different objectives. Subsection (2) is concerned with giving alcohol to minors, while subsection (3) is aimed at preventing people who own or otherwise control real property
Legislative history confirms that ORS 471.410(3) was meant to target the locations at which juveniles might consume alcohol. Representative Ken Strobeck sponsored the 1995 house bill that added subsection (3) to the statute. House Bill (H.B.) 2582 (1995). At the first committee hearing on the bill, Strobeck explained that the bill was designed as a means to hold people "in control of the premises" accountable for parties involving underage drinking-specifically those parties thrown by teenagers when their parents are away. Tape Recording, House General Government and Regulatory Reform, Regulatory Reform Subcommittee, H.B. 2582, Apr. 3, 1995, Tape 23, Side A (statement of Rep. Ken Strobeck). In other words, the statute was enacted to regulate juvenile parties. Representative Strobeck explained to various legislative committees (the House General Government and Regulatory Reform, Regulatory Reform Subcommittee, the House General Government and Regulatory Reform Committee, and the Senate Business and Consumer Affairs Committee) that the bill arose from conversations with Beaverton police about their effective use of a local ordinance to combat risks associated with teen drinking.
We turn to considering, more broadly, whether the legislature has manifested an intention to permit conduct that the ordinance criminalizes. "In theory, what the
Here, the legislature was not indifferent to the issue of whether a culpable mental state should be required, but consciously decided to require a knowing mental state. Again, the
The legislative history is again helpful in assessing the significance of that difference between the statute and the ordinance. As introduced, the bill that added subsection (3) to ORS 471.410 prohibited people who control real property from (a) allowing underage drinking on the property and (b) allowing a person under age 21 to remain on the property if the person controlling the property "knows or should know that the person under the age of 21 years will consume alcoholic liquor on the property." H.B. 2582 (1995), introduced. Subsequent legislative discussion resulted in
Plaintiff asserts that the statutory mental state requirements were added to protect owners of large tracts of private property in the event that those properties were used without their knowledge as the locations for juvenile parties-a concern different from plaintiff's goal of prohibiting juvenile parties within city limits. True, specific statements in the legislative record reflect that protecting owners of large, rural properties from criminal liability was one aim of the pertinent amendments. Tape Recording, House General Government and Regulatory Reform, Full Committee, H.B. 2582, Apr. 19, 1995, Tape 99, Side B (statement of Rep. Ken Strobeck). However, a broader consideration of the legislative history reveals that the mental-state requirements were not added solely to protect owners of large tracts of private property, but were intended to more generally clarify that the statute targets people who facilitate events at which minors consume alcohol.
Considered as a whole, that history persuades us that the legislature deliberately chose to include a culpable
Affirmed.
Notes
Article XI, section 2, 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 * * *."
ORS 471.410(1) states that a person "may not sell, give or otherwise make available any alcoholic liquor to any person who is visibly intoxicated." Violation is a Class A misdemeanor. ORS 471.410(5). Subsection (2) of the statute similarly prohibits people from providing alcohol to minors unless, under certain circumstances, the alcohol is provided by the minor's parent or guardian. Violation of that provision is a misdemeanor under some circumstances and a violation under others. ORS 471.410(5), (6).
Here, the legislature has chosen to criminalize certain conduct involving the provision of alcohol to minors, ORS 417.410(2), (5), and has chosen not to criminalize the related conduct described in subsection (3) of the same statute. Discerning legislative intent may be more challenging "when there is no state criminal law on the subject"; in that circumstance, "[t]he assumption * * * that the legislature intended to displace conflicting local criminal ordinances * * * does not apply" and a court "would have to ascertain whether the legislature, by repealing a statute or decriminalizing certain conduct, intended also to preclude local prohibition and [criminal] punishment of that conduct." Dollarhide ,
Plaintiff argues that the ordinance is a civil regulation, in part because CMC 5.03.010.080 permits a private person to commence an infraction or misdemeanor charge. The CMC does authorize citizen complaints, which may also be used to commence and serve as the basis for nonfelony criminal actions and commence felony criminal actions under ORS 131.005(3) and (4). That a private individual's complaint triggers the prosecution does not, however, change the nature of the proceeding from criminal to civil.
Concurrence Opinion
Concurrence Opinion
The majority holds that the City of Corvallis's teenage-party ordinance is preempted by state law because the legislature made a "deliberate choice" to include a mental-state requirement in the statute. City of Corvallis v. Pi Kappa Phi ,
Jackson recognizes that that begs a question: "How does one determine whether a state law permits that which an ordinance prohibits?"
Jackson identifies three ways that a state law may "permit" conduct and thereby conflict with a local ordinance prohibiting it. First , the legislature may expressly "occupy an entire field of legislation on a subject." Id . An example of preempting the field is a statute that expressly "prohibits local governments from creating offenses that involve public intoxication, public drinking, and drunk and disorderly conduct." Id .Second , the legislature may "expressly permit specified conduct," such as a statute that prohibits prosecution of persons with a concealed handgun permit from possessing a firearm in a public building. Id . at 148,
In articulating the three ways that the legislature may "permit" conduct, the Jackson court emphasized that, if "the statute and its legislative history are silent or unclear as to whether a decision to 'permit' conduct has been made," the court should not assume that the legislature intended to "permit" it. Id . at 148-49,
The specific ordinance at issue in Jackson made it "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." Id . at 152,
Jackson implicitly recognizes that not all legislative history is created equal. That point is made even more directly in Lodi :
"In theory, what the legislature 'permits' can range from express permissive terms to total inattention and indifference to a subject. 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. The search for a negative decision, in the context of preemption, can involve variations ranging from mere inaction on a bill or other proposal , which hardly represents a collective judgment, to rejection of a proposal by vote after debate (perhaps even after passage by one house) , which may be a collective decision although it also falls short of affirmative lawmaking."
Lodi ,
Lodi foresees an important and challenging question that is inherent in the idea of implicit preemption and that remains unclear 25 years after Jackson : When does something that "falls short of affirmative lawmaking" nonetheless establish a "collective decision" of the legislature to "permit" particular conduct? We know that "silence" is
Part of the difficulty in answering that question lies in our historical ambivalence towards legislative history. To explain, a short detour into the land of statutory construction is necessary. In the past, for purposes of statutory construction, legislative history could be considered only if a statute was ambiguous on its face. State v. Gaines ,
For purposes of statutory construction, the Gaines court expressly repudiated the notion that legislative history should be given the same weight as text. It recognized that "[t]he formal requirements of lawmaking produce the best source from which to discern the legislature's intent, for it is not the intent of the individual legislators that governs, but the intent of the legislature as formally enacted into law." Id ."[T]here is no more persuasive evidence of the intent of the legislature than the words by which the legislature undertook to give expression to its wishes." Id . (internal quotation marks omitted). As explained in an 1868 treatise quoted by the Gaines court,
"[N]ot only is it important that the will of the law-makers be expressed, but it is also essential that it be express in due form of law ; since nothing is law simply and solely because the legislators will that it shall be, unless they have expressed their determination to that effect, in the mode pointed out by the instrument which invests them with the power, and under all the forms which that instrument has rendered essential ."
Gaines ,
In other words, the legislature typically must take formal action before we will give the force of law to its intentions. Due to the critical distinction between formal legislative action and, frankly, everything else, "text and context remain primary" in statutory construction "and must be given primary weight in the analysis," whereas legislative history receives only "whatever weight [the court] deems appropriate." Id . at 166, 171,
With that in mind, let us return to the law of preemption. There is inherent tension between our approach to legislative history when construing statutes and our approach to legislative history when analyzing preemption. In construing a criminal statute for purposes of convicting, fining, and jailing citizens, we are not required to search for any legislative history that the parties do not provide, we have broad discretion to disregard legislative history if we do not consider it useful, and we treat the words of the statute as far more compelling evidence of legislative intent than anything in the legislative history. In the preemption arena, however, we are required to pore over the legislative history and, at least in some circumstances, give it the same weight as affirmative lawmaking. And we are doing so for constitutional purposes.
This leads me to make two observations. First, we need better guidance from the Supreme Court as to the third means of establishing preemption under Jackson . Without it, there is too much risk of inconsistent decisions. Indeed, the "evidence" of legislative intent in Lodi ,
Second, we should be very cautious about finding collective "legislative intent" in legislative history. By definition, any analysis of implicit preemption involves a situation in which the legislature has not expressly occupied the field or expressly permitted the conduct at issue. As such, Jackson necessarily recognizes the possibility of establishing legislative intent by legislative history alone, and we are bound by Jackson . At the same time, we should not forget the cautions in Jackson , Lodi , and Gaines about different types of legislative history. We must ask ourselves whether a given piece of legislative history evidences the intent of the legislature , or whether it evidences only the intent of an individual legislator, the members of a particular committee or subcommittee, or perhaps even one legislative chamber.
We may also need to grapple with whether the reason that the legislature decides not to prohibit something is relevant. For example, if someone introduces legislation to regulate a broad class of weapons, and the legislature later decides to regulate a narrower class of weapons, does it matter why? Does it matter whether it was in response to citizen complaints about wanting to carry certain weapons, versus in response to a budget analysis of the cost to enforce a broader law? There are many reasons that the legislature may consider prohibiting, but then ultimately decide not to prohibit, particular conduct that do not necessarily reflect a collective decision that the conduct is desirable and affirmatively should be allowed to occur. Sometimes it is just not worth the effort and cost of regulating. Moreover, individual legislators may
A "deliberate choice" by the legislature not to include certain conduct in a criminal statute, for any reason, appears to be all that we require under our current case law. In both City of Eugene v. Kruk ,
Jackson suggests a higher standard. In my view, preemption should be limited to circumstances where there is clear evidence that the legislature made a collective decision that conduct should be affirmatively allowed in the State of Oregon. A choice not to prohibit certain conduct for political, budgetary, or like reasons should not be treated as preventing local governments from prohibiting that conduct in their own jurisdictions, nor should the views of only a subset of legislators lead us to declare a local ordinance unconstitutional. Here, the legislative history of ORS 471.410(3) does not persuade me that the legislature made a collective political decision that the citizens of our state should be allowed to recklessly, negligently, and unintentionally allow