Chapter §16.2 NATURE OF THE ISSUE

• Jurisdiction: Oregon

§16.2 NATURE OF THE ISSUE

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. If a litigant contends that a particular governmental act or the application of a statute, rule, ordinance, policy, or practice is unconstitutional under the circumstances presented in that case, the litigant is presenting an "as-applied" challenge. If a litigant challenges the validity of a statute, rule, ordinance, or other governmental policy or practice in general, the case involves a "facial" challenge. See State v. Carr, 215 Or App 306, 310 n 5, 170 P3d 563 (2007) ("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," (internal quotation marks omitted)).

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 given 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 Huddleston v. Sawyer, 324 Or 597, 932 P2d 1145 (1997), superseded by statute on other grounds as stated in State v. Silverman, 159 Or App 524, 977 P2d 1186 (1999) (Measure 11's mandatory sentence requirements are not facially unconstitutional). See also Clarke v. Oregon Health Sciences Univ, 343 Or 581, 175 P3d 418 (2007) (ORS 30.265(1), as applied to plaintiff, violates Article I, section 10, of the Oregon Constitution); Jensen v. Whitlow, 334 Or 412, 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 applying the statute, rule, or ordinance to that party under the facts of that case violates the Oregon Constitution. Clarke v. Oregon Health Sciences Univ., 343 Or 581, 175 P3d 418 (2007). See also State v. Hirsch, 338 Or 622, 627, 114 P3d 1104 (2005) (litigant bringing an as-applied challenge need only show "that the statute is unconstitutional as applied to the particular facts at hand"). The Oregon Supreme Court has indicated that, "in most cases, a record containing evidence of the nature of the injury sustained by a plaintiff and a jury's assessment . . . is a necessary prerequisite to [a] court's consideration of an 'as-applied' challenge to a statute." Jensen v. Whitlow, 334 Or 412, 415, 51 P3d 599 (2002).

§16.2-2 Facial Challenges

"For a statute to be facially unconstitutional, it must be unconstitutional in all circumstances, i.e., there can be no reasonably likely...