The Partly Fulfilled Promise of Home Rule in Oregon
40 Pages Posted: 2 Aug 2009
Date Written: July 30, 2009
This Article, presented during a symposium on the sesquicentennial of the Oregon constitution, analyzes the state’s system of municipal home rule, which was established by constitutional amendment in 1906, and makes two claims. First, the Article argues that a unique aspect of Oregon’s home rule amendment – its presumption against the validity of local criminal laws – offers a functionally sound template for home rule by discouraging a patchwork of criminal ordinances that might ensnare unwitting individuals undeserving of criminal punishment for their conduct. The Article urges Oregon courts to recognize this functional value in clarifying the doctrine in this area, which has focused too much on the search for legislative intent. Second, the Article argues that although Oregon’s judiciary has favored local policy innovation on the civil side through its presumption of validity for civil ordinances, the legislature has been too quick to preempt expressly local authority on a wide variety of subjects. This frequent preemption, often undertaken at the behest of well-funded interest groups, has stunted policy experimentation among Oregon municipalities, constituting one possible reason why Oregon cities and counties have not led the nation in enacting trendsetting local ordinances.
Keywords: Oregon, home rule, preemption, local ordinances, municipal law, state and local government, criminal law
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