OAG 85-9.

• Case Date: May 07, 1985
• Court: Oregon

Oregon Attorney General Opinions 1985. OAG 85-9. 407OPINION NO. 85-9[44 Or. Op. Atty. Gen. 407]No. 8169May 7, 1985The Honorable Larry L. CampbellState Representative QUESTION PRESENTEDAre nonresident guides and outfitters unconstitutionally discriminated against by ORS 704.020(2)?ANSWER GIVENNo. We find no violation under either the Oregon or the United States Constitution. DISCUSSION I. Introduction and Summary Representative Campbell asked our opinion on the constitutionality of ORS 704.020(2), enacted in 1983 as part of an act regulating persons who provide outfitting and guiding services in Oregon.(fn1) Or Laws 1983, ch 655. ORS 704.020(2)(fn2) requires an annual registration fee of $25 per year for both resident and nonresident outfitters and guides unless the nonresident outfitter or guide resides in a state that charges Oregon outfitters and guides a license or registration fee in excess of $25. In the latter instance the nonresident registration fee is the higher fee charged in the nonresident's home state. The states that border Oregon all issue similar licenses. The license fee in each state for nonresident outfitters and guides exceeds $25.(fn3) Thus, outfitters and guides from these states seeking to do business in Oregon must pay a higher fee than do Oregon residents. The apparent purpose of Oregon's statute is to attempt to remove obstacles to out-of-state business by Oregon outfitters and guides. By charging higher fees to nonresident outfitters and guides whose 408states impose a nonresident license fee exceeding $25, Oregon may place indirect pressure on the lawmakers of other states to lower the licensing fees charged to nonresidents, thereby accomplishing the law's aim. In examining Representative Campbell's question, we have considered both state and federal constitutional provisions. Our analysis begins with the Oregon Constitution, because a state law does not deny federally protected rights if those rights are vindicated by the state constitution. See, e.g., Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981). In the following analysis, we review the merits of potential challenges to ORS 704.020(2) under three provisions of the Oregon Constitution: Article I, section 20, the guaranty of "equal privileges and immunities"; Article I, section 21, the prohibition against unlawful delegation of lawmaking authority by the legislature; and Article I, section 32, the requirement of uniform taxation. Finding no violation of any state constitutional provision, we also consider the constitutionality of the statute under three provisions of the United States Constitution: The Equal Protection Clause of the Fourteenth Amendment; Article I, section 8, the Commerce Clause; and Article IV, section 2, the Privileges and Immunities Clause. We again find that ORS 704.020(2) does not deny any constitutional rights. II. Article I, section 20: Oregon's Guaranty of Equal Privileges and Immunities Article I, section 20 of the Oregon Constitution provides:

"No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens."

The text of this provision differs from that of the Fourteenth Amendment and, therefore, Article I, section 20 is applied differently:

"The provisions of the state Constitution are the antithesis of the fourteenth amendment in that they prevent the enlargement of the rights of some in discrimination against the rights of others, while the fourteenth amendment prevents the curtailment of rights . . . ." State ex rel Reed v. Schwab, 287 Or 411, 417, 600 P2d 387 (1979), quoting State v. Savage, 96 Or 53, 59, 184 P 567, 189 P 427 (1920).

Notwithstanding these semantic and conceptual differences, however, the result under the two provisions is often the same. State v. Clark, 291 Or 231, 243-244, 630 P2d 810 (1981); City of Klamath Falls v. Winters, 289 Or 757, 769, n 10, 619 P2d 217 (1980). The initial inquiry under Article I, section 20, is whether there exists a "class" of citizens to whom the law grants privileges or immunities not equally available to all citizens. See State v. Clark, supra, 291 Or at 239-243.(fn4) Here, the favored "class" includes Oregon resident outfitters and guides, and nonresident outfitters and guides who reside in states that impose a licensing fee on nonresident outfitters and guides not exceeding $25. All other nonresident 409outfitters and guides comprise the disadvantaged "class." For purposes of this opinion only, we assume that this scheme results in a classification triggering Article I, section 20 analysis.(fn5) We must next apply a "balancing" test, weighing the detriment to those denied the privilege against the state's ostensible justification for the disparate treatment. See Cooper v. OSAA, 52 Or App 425, 433, 629 P2d 386, rev den, 291 Or 504 (1981). The detriment to nonresident outfitters and guides required to pay the higher fee is purely financial, and relatively minor: The differential between $25 and the fee deemed reasonable by their home states to charge nonresident outfitters and guides. As noted above, the state's justification for the disparate treatment is its desire to bring pressure on out-of-state legislatures to reduce licensing fees for nonresident outfitters and guides, thereby removing obstacles to out-of-state business by Oregon outfitters and guides. This statutory scheme is similar in concept to the retaliatory tax upheld under the federal Equal Protection Clause in Western & Southern Life Ins. Co. v. State...