Oregon Advisory Opinions September 12, 2003: OAG 03-2 (September 12, 2003)
Collection: Oregon Attorney General Opinions
Docket: OAG 03-2
Date: Sept. 12, 2003
Advisory Opinion Text
OAG 03-2.
OPINION NO. 2003-2
September 12, 2003
HARDY MYERS
Attorney General
Attorney General
PETER D. SHEPHERD
Deputy Attorney General
Deputy Attorney General
DEPARTMENT OF JUSTICE
GENERAL COUNSEL DIVISION
GENERAL COUNSEL DIVISION
Brenda Rocklin,
Director Oregon State Lottery
P.O. Box 12649
Salem, OR 97309
Director Oregon State Lottery
P.O. Box 12649
Salem, OR 97309
Re: Opinion Request OP-2003-2
Dear Ms. Rocklin:
You ask whether ORS 461.030 preempts the City of Grants Pass
Development Code Ordinance 14.640 as that ordinance relates
to video lottery machines. We conclude that ORS 461.030
preempts the Grants Pass ordinance as it applies to sales and
distribution of video lottery provided in establishments
otherwise subject to the ordinance.
Discussion
The issue is whether ORS 461.030 preempts local regulation
affecting the manufacture, transportation, distribution,
advertising, possession or sale of any lottery tickets or
shares within the State of Oregon.1/ Although your question
focuses on section 14.640 of the Grants Pass Development
Code, several provisions of that code are relevant.2/ Article
30 of the code defines "adult use" and "adult
business."3/ Article 14 of the code "establishes an
overlay area where adult businesses are not permitted."
GRANTS PASS, OR., DEVELOPMENT CODE, section 14.610 (1994).
Section 14.6404/ provides that an adult business that does
not conform to the requirements of sections 14.600 to 14.650
cannot expand its adult uses. 5/
Video Lottery is an "adult use" in an "adult
business" as those terms are defined in the Grants Pass
Development Code.6/ Consequently, section 14.640 of that code
purports to regulate placement of video lottery terminals
and, hence, video lottery sales, within the City of Grants
Pass.
The Oregon Supreme Court has articulated the framework for
evaluating questions concerning state preemption of local
regulation. See LaGrande/Astoria v. PERB, 281 Or 137, 576 P2d
1204 (1978). Under this framework, the determination of
whether section 14.640 of the Grants Pass Development Code is
preempted by ORS 461.030 requires analysis of two issues.
They are, first, whether the enactment of section 14.640 is
within the authority of the city under its charter and,
second, whether that authority is preempted by state law. 281
Or at 142. Upon a determination that enactment of the local
ordinance is authorized, the analysis turns to whether and to
what extent the ordinance conflicts with state law.
[T]he first inquiry must be 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. It is reasonable to interpret
local enactments, if possible, to be intended to function
consistently with state laws, and equally reasonable to
assume that the legislature does not mean to displace local
civil or administrative regulation of local conditions by a
statewide law unless that intention is apparent.
Id. at 148-49 (footnote omitted). Each issue is addressed in
turn, below.
1. City Authority to Enact Ordinance
In general, under constitutional "home rule"
provisions, cities are permitted to determine the
organization and powers of local governments without the need
to obtain authority from the state legislature. Or Const, Art
IV, § 1(5) and Art XI, § 2; Jarvill v. City of
Eugene, 289 Or 157, 168-69, 613 P2d 1, cert den 449 US 1013,
101 S Ct 572, 66 L Ed2d 472 (1980). Article XI, section 2 of
the Oregon Constitution provides that "[t]he 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."
Additionally, Article IV, section 1(5) provides, in part:
The initiative and referendum powers reserved to the people *
* * are further reserved to the qualified voters of each
municipality and district as to all local, special and
municipal legislation of every character in or for their
municipality or district.
The "home rule" authority of local governments
enables them to enact reasonable regulations to further local
interests with respect to public health, safety, and welfare.
City of Eugene v. Miller, 318 Or 480, 491 n 12, 871 P2d 454
(1994).
The City of Grants Pass Charter broadly confers on the city
all powers consistent with constitutional home rule
provisions:
The city shall have all powers which the constitutions,
statutes, and common law of the United States and of this
state expressly or impliedly grant or allow municipalities,
as fully as though this charter specifically enumerated each
of these powers. * * * The charter shall be broadly construed
to the end that the city shall have all powers necessary or
convenient for the conduct of its municipal affairs,
including all powers that cities may assume pursuant to state
laws and to the municipal home rule provisions of the state
constitution.
City of Grants Pass Charter, ch II, §§ 1-2 (1977).
Enactments by local governments of reasonable regulations on
matters of local health, safety, and welfare, are generally
valid unless a court determines that the local regulation
conflicts with state law or is clearly intended to be
preempted. Ashland Drilling, Inc. v. Jackson County, 168 Or
App 624, 634, 4 P3d 748, rev den 331 Or 429, 26 P3d 148
(2000). According to the Oregon Supreme Court:
In recent times, the judicial demand for explicit expressions
of authority and a recognition of only attendant authorities
"necessarily implied" by those expressed has given
way to an interpretation that local governments have broad
Burt v. Blumenaur, 299 Or 55, 61, 699 P2d 168 (1985). Here,
the City of Grants Pass had the necessary authority to enact
the ordinance in question, as the ordinance affects a matter
generally within the City's broad powers under its
charter and pursuant to constitutional home rule provisions.
Consequently, our inquiry turns to whether the exercise of
that authority is preempted by ORS 461.030.7/
2. State Preemption of Local Regulation
Under the framework prescribed by LaGrande/Astoria, the next
question is whether the legislature intended to preempt the
type of ordinance at issue, either by indicating intent that
the state law be exclusive or by virtue of the fact that the
local ordinance is incompatible with state law. 281 Or at
148-49. The intention to preempt is apparent if it is
expressly stated or otherwise clearly manifested in the
statutory language. Ashland, 168 Or App at 634. Although a
statute need not use the word "preempt" to manifest
an intention to preclude local regulation, it is generally
required that the preemptive intent be clearly stated.
AT&T Communications of the Pacific Northwest, Inc. v.
City of Eugene, 177 Or App 379, 395, 35 P3d 1029 (2001), rev
den 334 Or 491 52 P3d 1056 (2002). The extent of any
preemption also is measured by the statutory language.
Boytano v. Fritz, 321 Or 498, 505-07, 901 P2d 835 (1995). If
the statutory language reveals an express or clearly
manifested intention that the state law be exclusive, the
analysis ends there. LaGrande/Astoria, 281 Or at 148. If,
however, there is no such manifestation of intent to preempt,
it is necessary to examine whether an ordinance can
"operate concurrently" with state law. Id.
Here, we ask whether ORS 461.030 expressly or otherwise
preempts the City of Grants Pass ordinance. To answer this
question, we examine the text and context of ORS 461.030,
because text and context is considered to be the best
evidence of the legislature's intent. PGE v. Bureau of
Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993).
As an aid to statutory interpretation, we also may consider
rules of construction that bear directly on how to read the
text, including that words of common usage typically should
be given their plain, natural, and ordinary meaning. 317 Or
at 611. If, after consideration of the text and context of a
statute, the intent of the legislature is clear, the analysis
is complete. Id.
ORS 461.030(1) provides that "chapter [461] shall be
applicable and uniform throughout the state and all political
subdivisions and municipalities therein, and no local
authority shall enact any ordinances, rules or regulations in
conflict with the provisions hereof." The plain language
of this provision evinces a legislative intent to preempt
local law to some extent. See AT&T Communications of the
Pacific Northwest, Inc., 177 Or App at 395 ("ORS
461.030(1)
* * * makes the legislature's preemptive intentions quite
clear"). The extent of preemption under ORS 461.030(1)
is clearly expressed to extend to local laws "in
conflict" with the provisions of Chapter 461. ORS
461.030(2) extends the preemptive reach of this statute to
"[a]ny other state or local law or regulation providing
any penalty, disability or prohibition for the manufacture,
transportation, distribution, advertising, possession or sale
of any lottery tickets or shares." Read in tandem, these
two subsections express the intent for state lottery laws to
be exclusive, insofar as those laws relate to the
"manufacture, transportation, distribution, advertising,
possession or sale of any lottery tickets or shares."
See Ashland, 168 Or App at 637 (legislature may reserve for
its exclusive control certain aspects of a particular subject
matter). Both subsections contain express language indicative
of preemptive intent. See AT&T Communications, 177 Or App
at 396 (the phrase "no local government shall" is a
declaration of preemptive intent).
At issue here is a local regulation that purports to prohibit
the sale of video lottery in certain "adult
businesses," as that term is defined in the Grants Pass
ordinance. While the preemptive intent of ORS 461.030 is
clear as it relates to local laws or regulations that, among
other things, provide any penalty, disability or prohibition
for the sale of any lottery tickets or shares, it is not
clear on the face of the statute whether the sale of video
lottery is included in the "sale of any lottery tickets
or shares." It is, therefore, necessary to determine
whether video lottery games involve lottery tickets or
shares.
ORS 461.030 was adopted by voter initiative in the 1984
general election as part of Ballot Measure 5. To interpret a
statute adopted by initiative, we seek to determine the
voters' intent by applying the methodology set forth in
PGE v. Bureau of Labor and Industries, 317 Or at 612, n. 4
(PGE methodology applies not only to statutes enacted by the
legislature, but also to statutes adopted by initiative);
Ecumenical Ministries v. Oregon State Lottery Commission, 318
Or 551, 560, 871 P2d 106 (1994). Under PGE, a review of the
text and context may include other provisions of the same
statute, and related statutes. PGE, 317 Or at 610-611;
Ecumenical Ministries, 318 Or at 560. Because the voters
adopted Ballot Measure 4, a companion ballot measure amending
Article XV, Section 4 of the Oregon Constitution, at the same
time as Measure 5, Measure 4 is part of the context of
Measure 5. Ecumenical Ministries, 318 Or at 562.
The ordinary meaning of the word "lottery" is
"a scheme for the distribution of prizes by lot or
chance; esp: a scheme by which prizes are distributed to the
winners among those persons who have paid for a chance to win
them usu. as determined by the numbers on tickets as drawn at
random (as from a lottery wheel)". WEBSTER'S THIRD
NEW INTERNATIONAL DICTIONARY at 1338 (Unabridged 1993). ORS
461.010(5) contains a similar definition of "Lottery
game":
any procedure authorized by the commission whereby prizes are
distributed among persons who have paid, or unconditionally
agreed to pay, for tickets or shares which provide the
opportunity to win such prizes.
Throughout chapter 461 the words "tickets" and
"shares" are used in the same phrase, connected by
the disjunctive "or".8/ The use of the word
"or" in the phrase makes it clear that a ticket is
not a share. See Recovery House VI v. City of Eugene, 156 Or
App 509, 512, 965 P2d 488 (1998) (the words "and"
and "or", as used in statutes, are not
interchangeable, but rather are strictly of a conjunctive or
disjunctive nature). "Ticket" is commonly defined
as "a certificate, evidence, or token of a right (as of
admission to a place of assembly, of passage in a public
conveyance, of debt, or of a chance) * * * a lottery [ticket]
* * *." WEBSTER'S at 2389-2390. "Share" is
defined as "a portion belonging to, due to, or
contributed by an individual." Id. at 2087. Read in
conjunction, these definitions indicate that a lottery ticket
and a lottery share each separately represent an opportunity
or chance to win a prize that is purchased by a player. A
ticket is a tangible item, "a certificate, evidence, or
token," while a share likely is intangible. Indeed,
Lottery is required to print certain information on tickets,
see ORS 461.210; 461.220(2), but no such requirements apply
to shares. Moreover, Lottery is required to develop
"security measures that are designed to prevent the
redemption of fraudulent tickets," see ORS 461.210(1),
but is not required to do so with shares. Therefore, although
video lottery games do not issue any form of receipt to the
player at the time he or she places a wager, the player may
be said to have an interest, or a share, in winning a prize.
This reading of the text is consistent with Ballot Measure 4
and related lottery statutes. Ballot Measure 4 authorized
Lottery to operate
any game procedure authorized by the commission, except
parimutuel racing,
social games, and the games commonly known in Oregon as bingo
or lotto,
whereby prizes are distributed using any existing or future
methods among adult
persons who have paid for tickets or shares in that game;
provided that in lottery
games utilizing computer terminals or other devices, no coins
or currency shall
ever be dispensed directly to players from such computer
terminals or devices.
Ballot Measure 4, § 4, codified at Or Const Art XV
§ 4(4)(c). The phrase providing that games involving
video devices may not dispense coins or currency modifies the
clause authorizing Lottery to operate games that sell tickets
or shares. Moreover, this provision and ORS chapter 461
presuppose that any game operated by Lottery necessarily
involves the sale of tickets or shares. See ORS 461.200
("[T]he director shall begin public sales of tickets or
shares."); ORS 461.010(7) (lottery game retailer is
"a person with whom the lottery commission has
contracted for the purpose of selling tickets or shares in
lottery games to the public."); ORS 461.220(1) (Lottery
must adopt rules that specify the number and value prizes of
tickets or shares in each lottery game); ORS 461.310
(commission to determine compensation for retailers for sales
of lottery tickets or shares).
We are permitted to rest on a "first level" text
analysis only if the text permits a single construction and
all other possible interpretations are "wholly
implausible". State v. Allison, 143 Or App 241, 247, 923
P2d 1224, rev den 324 Or 487, 930 P2d 852 (1996), citing
Owens v. MVD, 319 Or 259, 268, 875 P2d 463 (1994) and Carroll
v. Boise Cascade Corp., 138 Or App 610, 616, 910 P2d 1111
(1996). The only plausible interpretation of "lottery
tickets or shares" is that "shares" refers to
video lottery. Lottery is authorized to operate any game
procedure involving the purchase of tickets or shares, and at
the same time has authority to operate games using video
lottery terminals. See Or Const, Art XV, § 4(4)(c); ORS
461.010(5); ORS 461.215; ORS 461.230(2). If video lottery
games do not involve the sale of a ticket or share, Lottery
would not have constitutional authority to operate them. This
result would be contrary to the voters' intent as
evidenced by their express condition that games using
computer terminals shall not directly dispense coins or
currency. Or Const, Art XV, § 4(4)(c). Moreover, Ballot
Measures 4 and 5 create a regulatory framework based on the
assumption that all games involve the sale of tickets or
shares. Lottery must pay all prizes and expenses from the
sale of tickets or shares and turn the net proceeds over to
the Legislative Assembly. Or Const Art XV, § 4(4)(d);
ORS 461.510(5). At least 84 percent of the revenue from the
sale of tickets or shares must be returned to the public as
prizes or revenue benefiting the public purpose. Or Const Art
XV, § 4(4)(d); ORS 461.500(1). Conversely, no more than
16 percent may be spent on Lottery's administrative
expenses. If video lottery games do not use tickets or
shares, these limits on expenditures would not apply to video
lottery revenue.
Lottery has interpreted "share" to include the
opportunity to win a prize in a video lottery game. By
administrative rule, Lottery defines "share" as
"an opportunity to win a prize in a Lottery game that
does not use certificates or tokens, such as in video lottery
games." OAR 177-010-0003(15). "Ticket" is
defined as "a certificate or token of the opportunity to
win a prize in a Lottery game." OAR 177-010-0003(16).
When an agency's interpretation of a provision of law is
at issue, the standard of review depends upon whether the
phrase at issue is an exact term, an inexact term, or a
delegative term. Springfield Education Assn. v. School
District, 290 Or 217, 223, 621 P2d 547 (1980); Coast Security
Mortgage Corp. v. Real Estate Agency, 331 Or 348, 353-54, 15
P3d 29 (2000). "Exact terms," such as
"rodent" and "30 days" have relatively
precise meanings. Springfield, 290 Or at 223-24.
"Inexact terms," such as "escrow agent"
and "condition of employment" are less precise;
they embody a complete expression of legislative meaning, but
that meaning may not be obvious. Springfield, 290 Or at
224-228; Coast Sec., 331 Or at 354. "Delegative
terms" express incomplete legislative meaning that the
agency is authorized to complete. Springfield, 290 Or at 228.
"Lottery tickets or shares" is an inexact phrase.
The phrase embodies a complete expression of legislative
policy, yet application of the phrase may be imprecise. With
an "inexact term," we review the agency's
interpretation for consistency with legislative intent. Coast
Sec., 331 Or at 354; LegalClub.com v. DCBS, 182 Or App 494,
504, 50 P3d 1196 (2002). Lottery expressly includes video
lottery in its definition of "share", which is
consistent with the text and context analysis of ORS 461.030
set forth above.
The only remaining question, then, is whether section 14.640
of the Grants Pass code falls within the limits of prohibited
local regulation under ORS 461.030. In other words, does the
Grants Pass ordinance provide a penalty for, disable, or
prohibit the manufacture, transportation, distribution,
advertising, possession or sale of any lottery tickets or
shares.
To analyze whether section 14.640 of the Grants Pass code
regulates an activity that is within the state's
exclusive control under ORS 461.030, it is necessary to
analyze the meaning and intent of that section. The same
rules that govern the construction of statutes apply to the
construction of municipal ordinances. State v. Tschantre, 182
Or App 313, 319, 50 P3d 1174 (2002); State v. Moore, 174 Or
App 94, 98-100, 25 P3d 398 (2001); and Lincoln Loan Co. v.
City of Portland, 317 Or 192, 199, 855 P2d 151 (1993). The
analysis starts with the text of the ordinance and also may
consider the context in which it occurs. See Moore, 174 Or
App at 98
99. If the legislative body's intent is clear based on
the text and context of the ordinance, the analysis ends.
Lincoln Loan Co., 317 Or at 192.
To determine the meaning of section 14.640 of the Grants Pass
ordinance, we examine its component parts. As discussed
above, section 14.640 of the Grants Pass ordinance provides
that an adult business that does not conform to the
requirements contained in sections 14.600-14.650 of the code
cannot expand its adult uses - those uses that are not
accessible to persons under 21 years of age. GRANTS PASS,
OR., DEVELOPMENT CODE, art. 14, § 14.640 (1994). An
"adult business" is one that prohibits admission to
persons less than 21 years of age and an "adult
use" is any use conducted on the premises of an adult
business in an area where persons under 21 years of age are
not allowed. Id., ARTICLE 30. Video lottery qualifies as an
adult use. See note 6. Next, under its plain language,
section 14.640 of the ordinance applies only to adult
businesses that do not conform to the criteria in sections
14.600-14.650 of the code. Finally, those non-conforming
businesses are prohibited from expanding the current adult
uses in their businesses to include other types of adult
uses.
The text of this ordinance is clear - non-conforming adult
businesses may continue adult uses present at the time the
ordinance was enacted, but cannot expand their businesses to
include other adult uses. For example, at the time the
ordinance was enacted, a tavern that does not have video
lottery, but serves alcohol and is, thus, closed to minors,
that is located 1000 feet or less from a public library, does
not conform to section 14.630(2)c.2. See note 5. Under the
ordinance, the tavern can continue to serve alcohol, but
cannot obtain and sell video lottery. Because the ordinance
prohibits video lottery sales in these circumstances, it
regulates an area reserved exclusively to the state under ORS
461.030. Thus, we conclude that section 14.640 of the Grants
Pass ordinance, as it relates to distribution and sales of
video lottery, is preempted by ORS 461.030.
The legal opinions stated in this letter of advice are given
solely for your use and benefit. The Department of Justice
does not act as legal counsel to cities and counties. Those
local governments are entitled to seek and rely upon advice
from their own counsel.
Sincerely,
Donald C. Arnold Chief Counsel General Counsel Division
DCA:SNR:KLK:tjh:naw/GENF1319
1/ ORS 461.030 provides, in relevant part: (Emphasis added.)
(1) This chapter shall be applicable and uniform throughout
the state and all political
subdivisions and municipalities therein, and no local
authority shall enact any
ordinances, rules or regulations in conflict with the
provisions hereof.
(2) Any other state or local law or regulation providing any
penalty, disability or prohibition
for the manufacture, transportation, distribution,
advertising, possession or sale of any
lottery tickets or shares shall not apply to the tickets or
shares of the state lottery. The
gambling laws of the State of Oregon shall not apply to
lottery tickets or shares, or to the
operation of the state lottery established by the
Constitution of the State of Oregon and
this chapter.
2/ The City of Grants Pass initially adopted the amendments
restricting the use and operation of adult businesses at
issue here in 1994. Some of the provisions have since been
revised, but the genesis of your question is the 1994
amendments.
3/ The definitions are:
ADULT BUSINESS. Any person, group, firm, business, or
organization (except nonprofit corporations which are not
open to the general public) which prohibits admission to all
or a portion of the premises to any persons younger than 21
years of age.
ADULT USE. A use of whatever character, conducted on the
premises of an adult business, which use is conducted in the
area in which any persons under 21 years of age are
prohibited.
GRANTS PASS, OR., DEVELOPMENT CODE, art. 30 (1994).
4/ Section 14.640 provides:
MODIFICATION OF AN ADULT USE IN A NON-CONFORMING ADULT
BUSINESS. An adult business which, at the time of adoption of
14.600-14.650, does not conform to the criteria contained
therein, shall be governed by the provisions of Article 15 of
the Development Code except that the current adult use may
not be expanded to include other types of uses which by law
are not accessible by persons of any age group under 21 years
of age. Any such modification of the adult use shall result
in automatic loss of the rights under Article 15 and shall
cause the adult business to be in violation of Article 14.
GRANTS PASS, OR., DEVELOPMENT CODE, art. 14, § 14.640
(emphasis added).
5/ Section 14.620 creates specific permit requirements for
adult business and section 14.630 sets forth additional
criteria for permit approval, as follows: accommodations that
are not restricted at any time by age and which restaurant
accommodations have a floor area equal to or greater in size
than the portion of the premises where any persons younger
than 21 years of age are prohibited; or
(1) a. The adult business is located in a Riverfront Tourist
Commercial Zone
and has 10,000 or more square feet of covered and enclosed
building
space open to the public; or
b. The adult business is located more than 200 feet from any
R-1, R-2, R-3,
or R-4 residential zones (measured in a straight line from
the closest edge
of the property line on which the business is located to the
closest edge
of property in the residential zone); and
(2) a. The adult business is located in a Riverfront Tourist
Commercial Zone
and has 10,000 or more square feet of covered and enclosed
building
space open to the public; or
b. The adult business has 10,000 or more square feet of
covered and
enclosed building space open to the public, and contains
restaurant
c. The adult business has less than 10,000 square feet of
covered and enclosed building space open to the public, and
the adult business is located more than 1000 feet from all of
the following facilities (measured in a straight line from
the closest property line on which the adult business is
located to the closest edge of the property line on which the
facility is located):
1.
A "school, public" as defined by Article 30, with
an average weekday attendance (during any continuous 3 month
period during the preceding 12 months) of not less than 50
children who are under 18 years of age.
2.
A public library.
3.
A public park which covers an area of not less than 20,000
square feet and has facilities such as a playground, baseball
field, football field, soccer field, tennis court, basketball
court, or volleyball court.
4.
A commercial or residential recreational facility, as defined
in Article 30, which serves children under 18 years of age,
and has a total area for indoor and outdoor recreation (not
including parking) of not less than 20,000 square feet.
6/ ORS 461.217 permits video lottery terminals to be placed
only in establishments closed to minors. Because the Grants
Pass Development Code defines an "adult business"
as one which prohibits admission to persons less than 21
years of age and "adult use" as a use conducted in
an area where persons under 21 years of age are prohibited,
by definition the Grants Pass ordinance applies to
establishments where video lottery is available.
7/ We express no opinion regarding whether the ordinance may
be subject to challenge or preempted by any other statutory
or constitutional provision.
8/ See ORS 461.010, 461.030, 461.180, 461.200, 461.220,
461.240, 461.250, 461.260, 461.300, 461.310, 461.330,
461.500, 461.510, 461.560, 461.600 (using phrase
"tickets or shares").
9 ORS 461.544 directs Lottery to allocate "[a]ll net
proceeds from video lottery games" to Economic
Development Fund." If the restriction on spending more
than 16 percent on Lottery administrative expenses does not
apply, Lottery may be less likely to produce any "net
proceeds" in video games.
10 There also may be constitutional grounds to invalidate the
subject ordinance. In accordance with Article XI, section 2
of the Oregon Constitution, a municipality's power to
enact charters is subject to the Constitution and criminal
laws of the State of Oregon. The Grants Pass ordinance may
conflict with constitutional provisions relating to the
operation of the State Lottery, but due to our determination
under ORS 461.030(1), it is not necessary for us to examine
those grounds. Marriage of Crocker, 332 Or 42, 46-47, 22 P3d
759 (2001) ("courts ordinarily will not decide
constitutional questions when an adequate subconstitutional
basis for the decision exists").