State v. Illig-Renn

• Decision Date: 30 July 2003
• Citation: 73 P.3d 307,189 Or. App. 47
• Parties: STATE of Oregon, Appellant, v. Rose Mary ILLIG-RENN, Respondent.
• Court: Oregon Court of Appeals

73 P.3d 307

189 Or. App. 47

STATE of Oregon, Appellant, v. Rose Mary ILLIG-RENN, Respondent.

CR0014215; A114387.

Court of Appeals of Oregon.

Argued and Submitted March 31, 2003.

Decided July 30, 2003.

Douglas F. Zier, Assistant Attorney General, argued the cause for appellant. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Ryan Kahn, Assistant Attorney General.

Tammy W. Sun, Deputy Public Defender, argued the cause for respondent. With her on the brief was David Groom, Acting Executive Director, Office of Public Defense Services.

Before EDMONDS, Presiding Judge, and KISTLER and SCHUMAN, Judges.

KISTLER, J.

Defendant was charged by information with "refusing to obey a lawful order by a peace officer." ORS 162.247(1)(b).¹ According to the information, defendant refused "to step down from [a] truck" when ordered to do so. Defendant demurred to the information, arguing that the statutory phrase "lawful order" is overbroad and facially vague. The trial court allowed the demurrer. The state filed a pretrial appeal, arguing that ORS 162.247(1)(b) is neither overbroad nor facially vague. We reverse and remand.

We begin with the state's argument that ORS 162.247(1)(b) is not overbroad under either the state or the federal constitution. A statute is overbroad if it reaches a substantial amount of constitutionally protected conduct. State v. Garcias, 296 Or. 688, 699 n. 10, 679 P.2d 1354 (1984) (explaining that, under the state constitution, a statute that "reaches constitutionally protected behavior only rarely when compared with legitimate applications of the law need not succumb to an overbreadth attack"); Houston v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). In State v. Ausmus, 178 Or.App. 321, 325, 37 P.3d 1024 (2001),rev. allowed, 334 Or. 288 (2002), the defendants contended that a statute criminalizing the refusal to obey a "lawful order of the police to disperse" was overbroad. The state responded that the law was not overbroad because it required the defendant to comply only with lawful orders to disperse—i.e., orders that did not infringe on constitutionally protected rights. In agreeing with the state's argument, we reasoned:

"An order to disperse that violates a person's constitutional rights—for example, the rights of freedom of expression or freedom of assembly guaranteed by Article I, sections 8 and 26 of the Oregon Constitution, respectively—is not a `lawful' order. [The statute] prohibits refusal to comply only with a `lawful' order. We conclude that, on its face, the statute is not unconstitutionally overbroad."

Ausmus, 178 Or.App. at 326, 37 P.3d 1024. The same reasoning applies equally here. Like the statute in Ausmus, ORS 162.247(1)(b) requires compliance only with lawful orders and cannot, by its terms, be overbroad.²

Relying on Ausmus, the state also argues that ORS 162.247(1)(b) is not facially vague. In Ausmus, we began by recognizing that the defendant's vagueness claim rested on Article I, sections 20 and 21, of the Oregon Constitution and the Due Process Clause of the federal constitution.³ 178 Or.App. at 326, 37 P.3d 1024. We explained that

"[u]nder both state and federal law, in a facial challenge on vagueness grounds, the facts of a particular case are irrelevant; the challenge will not succeed unless the person advancing it can demonstrate that the statute is unconstitutionally vague in all of its possible applications."

178 Or.App. at 326, 37 P.3d 1024 (emphasis in original). In Ausmus, we followed the test that the court announced for state constitutional vagueness claims in State v. Chakerian, 325 Or. 370, 381, 938 P.2d 756 (1997), and that it later reaffirmed in State v. Compton, 333 Or. 274, 280, 39 P.3d 833 (2002).⁴ Because the statute at issue in Ausmus was capable of constitutional application, we held that the defendants' facial vagueness challenge in that case failed. Id. at 327, 37 P.3d 1024.

Relying on Ausmus, the state argues that, because ORS 162.247(1)(b) is also capable of constitutional application, defendant's facial vagueness challenge in this case fails as well. Defendant does not explain, in response, why the test that we applied in Ausmus should not apply here,⁵ nor does she argue that ORS 162.247(1)(b)—the statute at issue here—is not capable of constitutional application. Indeed, defendant acknowledges that we rejected a facial vagueness challenge to ORS 162.247(1)(b) in State v. Andre, 178 Or.App. 566, 570, 38 P.3d 949 (2002), reasoning that the statute was capable of constitutional application. Under Ausmus and Andre, defendant's facial vagueness challenge fails.

The concurrence would apply a different standard. In its view, the test for facial vagueness challenges that the court articulated in Chakerian should apply only to vagueness claims based on a lack of fair notice in violation of the Due Process Clause. 189 Or.App. at 55, 73 P.3d at 312 (Schuman, J., concurring) (slip op. at 5). A different test should apply, it reasons, when a party brings a facial vagueness challenge under Article I, sections 20 and 21. Id. The concurrence bases that conclusion on the fact that the Supreme Court recently clarified that a vagueness claim based on a lack of fair notice arises only under the Due Process Clause. See Delgado v. Souders, 334 Or. 122, 144 n. 12, 46 P.3d 729 (2002). Although the court has clarified that point, it has not taken the additional step of explaining that the test for facial vagueness claims that it announced in Chakerian for state constitutional claims is limited to vagueness claims based on the Due Process Clause. Until it does so, we are bound to apply that test in deciding defendant's state constitutional vagueness claims. See Powell v. Bunn, 185 Or.App. 334, 357, 59 P.3d 559 (2002) (following a Supreme Court precedent whose doctrinal underpinnings had been eroded).⁶ We accordingly reverse the trial court's order and remand this case for trial.

Reversed and remanded.

SCHUMAN, J., concurring.

The majority holds that ORS 162.247(1)(b), which makes it a crime for a person "knowing that another person is a peace officer" to refuse to obey "a lawful order by the peace officer," is, on its face, neither overbroad nor fatally vague under either the Oregon or United States constitution. To reach that conclusion, the majority relies on State v. Andre, 178 Or.App. 566, 38 P.3d 949 (2002), which, in turn, relies on State v. Ausmus, 178 Or.App. 321, 37 P.3d 1024 (2001), rev allowed, 334 Or 288 (2002). I agree that the majority's conclusions are correct and that they necessarily follow from Andre and Ausmus. I write separately, however, because I believe that the Oregon Supreme Court's recent decision in Delgado v. Souders, 334 Or. 122, 46 P.3d 729 (2002), undermines any precedential value that Ausmus and Andre have in deciding defendant's claim that ORS 162.247(1)(b) is unconstitutionally vague under Article I, sections 20 and 21, of the Oregon Constitution. The majority reaches the correct conclusion on that issue but it does so under the wrong premise.

Vague criminal statutes offend at least three distinct constitutional requirements. First, "because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (footnote omitted). This failure to provide "fair notice" violates the requirement of fundamental fairness imposed by the Due Process Clause of the Fourteenth Amendment. Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). Second, vague penal statutes delegate to prosecutors, judges, or juries the ability to declare what conduct is unlawful after that conduct has occurred. This delegation violates the prohibition against ex post facto lawmaking in Article I, section 21, of the Oregon Constitution. State v. Hodges, 254 Or. 21, 27, 457 P.2d 491 (1969). Third, they may give to law enforcement officers, prosecutors, judges, or juries the ability to engage in standardless, arbitrary law enforcement contrary to the mandate for equal treatment in Article I, section 20, of the Oregon Constitution. State v. Cornell/Pinnell, 304 Or. 27, 32-33, 741 P.2d 501 (1987).

Until relatively recently, Oregon courts clearly distinguished between the "fair notice" requirement of the United States Constitution and the "nondelegation" requirements of the Oregon Constitution. See, e.g., Cornell/Pinnell, 304 Or. at 32,741 P.2d 501. However, in a series of cases in the 1990s, the Supreme Court appeared to blur the distinction by finding a "fair notice" requirement in the Oregon Constitution. See, e.g., State v. Plowman, 314 Or. 157, 160, 838 P.2d 558 (1992),cert den, 508 U.S. 974, 113 S.Ct. 2967, 125 L.Ed.2d 666 (1993); State v. Chakerian, 325 Or. 370, 382, 938 P.2d 756 (1997). That mistake was recognized and rectified, however, in Delgado:

"[T]his court's case law could be read to suggest that a vagueness challenge under Article I, section 21, can encompass a `fair notice' element—that is, that Article I, section 21, prohibits the enactment of a law that fails to inform those who are subject to it, in a sufficiently explicit manner, `"what conduct on their part will render them liable to its penalties."'

"Upon closer examination of the case law, however, it is apparent that such suggestions concern the nature of the vagueness doctrine generally, rather than articulating any `fair notice' requirement under Article I, section 21."

334 Or. at 144 n. 12, 46 P.3d 729 (citations omitted). Therefore, it is once again clear that an attack on a statute based on its failure to provide fair notice asserts a violation of the Due Process Clause of the...