Chapter § 16.2

• Jurisdiction: Oregon

§ 16.2 NATURE OF THE ISSUE: FACIAL OR AS-APPLIED

State constitutional litigation typically involves a challenge to the application or validity of a statute, rule, municipal ordinance, or other governmental policy, practice, or act. A litigant presents an "as-applied" challenge by contending that a governmental act or the application of a statute, rule, ordinance, policy, or practice is unconstitutional under the circumstances in that case. Couey v. Atkins, 357 Or 460, 472, 355 P3d 866 (2015) (noting that "the law may be challenged on the ground that it is unconstitutional as applied to a particular individual on a particular set of facts"). If a litigant challenges the validity of a statute, rule, ordinance, or other governmental policy or practice in all possible ways it could be applied, that is a "facial" challenge. Couey, 357 Or at 472 ("A party challenging the constitutionality of a statute may contend that the law is unconstitutional in all possible applications—that is, it is unconstitutional on its face."); State v. Carr, 215 Or App 306, 310 n 5, 170 P3d 563 (2007), rev den, 344 Or 109 (2008) ("A facial challenge asserts that lawmakers violated the constitution when they enacted the statute; an as-applied challenge asserts that executive officials . . . violated the constitution when they enforced the statute. Both challenges equally attack the constitutionality of the statute." (alterations, internal quotation marks, and citations omitted)); cf. In re Validation Proceeding to Determine Regularity & Legality of Multnomah County Home Rule Charter Section 11.60, 366 Or 295, 326, 462 P3d 706 (2020) (concluding that specific charter provisions "are not subject to facial challenge [and] are not, therefore, facially invalid under Article I, section 8," but "the county's limits may be subject to as applied challenges [although] respondents have raised only a facial challenge").

The nature of the challenge—facial or as-applied—can affect the outcome. Compare State v. Rodriquez, 347 Or 46, 217 P3d 659 (2009) (mandatory sentences as applied to certain criminal defendants under Ballot Measure 11 (1994) violate Article I, section 16, of the Oregon Constitution), with State ex rel. Huddleston v. Sawyer, 324 Or 597, 932 P2d 1145 (1997) (Measure 11's mandatory sentence requirements are not facially unconstitutional), superseded by statute on other grounds as stated in State v. Silverman, 159 Or App 524, 977 P2d 1186 (1999); see also Clarke v. Oregon Health Sciences University, 343 Or 581, 610, 175 P3d 418 (2007) (ORS 30.265(1), as applied to the plaintiff, violates Article I, section 10, of the Oregon Constitution); Jensen v. Whitlow, 334 Or 412, 421, 51 P3d 599 (2002) (ORS 30.265(1) on its face does not violate Article I, section 10).

§ 16.2-1 As-Applied Challenges

To prevail on an as-applied challenge, a party must establish that...