State v. Illig-Renn
| Decision Date | 24 August 2006 |
| Docket Number | SC S52633.,CC CR0014215.,CA A114387. |
| Citation | 142 P.3d 62,341 Or. 228 |
| Parties | STATE of Oregon, Petitioner on Review, v. Rose Mary ILLIG-RENN, Respondent on Review. |
| Court | Oregon Supreme Court |
Ryan Kahn, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Tammy W. Sun, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.
Before De MUNIZ, Chief Justice, and CARSON, GILLETTE, DURHAM, RIGGS, and BALMER, Justices.**
This case concerns the constitutionality of ORS 162.247(1)(b), a statute that makes it a crime to "refuse[] to obey a lawful order by [a] peace officer." Defendant, who was charged with that crime, demurred to the charge on the ground that the statute is unconstitutionally vague and overbroad. The trial court allowed the demurrer and the Court of Appeals ultimately affirmed the trial court's judgment. On the state's petition for review, we reverse the decision of the Court of Appeals and the judgment of the trial court and remand to the trial court for further proceedings.
Defendant was charged with violating ORS 162.247(1)(b) (1999), which provides:
Defendant demurred to the charging instrument,2 arguing that ORS 162.247(1)(b) is unconstitutionally overbroad and vague on its face, in violation of the free speech and assembly guarantees in the Oregon and United States constitutions. The trial court allowed the demurrer. The Court of Appeals initially reversed, State v. Illig-Renn, 189 Or.App. 47, 73 P.3d 307 (2003). (Illig-Renn I), relying on its decision in State v. Ausmus, 178 Or.App. 321, 37 P.3d 1024 (2001). In its decision in Ausmus, the Court of Appeals had rejected a criminal defendant's claim that a part of Oregon's disorderly conduct statute, ORS 166.025(1)(e), was unconstitutionally vague and overbroad to the extent that it made it a crime to "refuse[] to comply with a lawful order of the police to disperse" in certain circumstances. This court had allowed review in Ausmus before the Court of Appeals decided Illig-Renn I.
Ultimately, this court reversed the Court of Appeals decision in Ausmus: We held that the "refusal to disperse" provision in ORS 166.025(1)(e) was unconstitutionally overbroad because by its terms it restrained conduct (speech and assembly) that the Oregon Constitution protects. State v. Ausmus, 336 Or. 493, 85 P.3d 864 (2003). Shortly thereafter, we issued an order vacating the Court of Appeals decision in Illig-Renn and remanding the case to that court for reconsideration in light of this court's Ausmus decision. State v. Illig-Renn, 337 Or. 327, 99 P.3d 290 (2004) (Illig-Renn II).
The Court of Appeals then issued a second opinion in Illig-Renn, this time holding that ORS 162.247(1)(b) was unconstitutionally overbroad. State v. Illig-Renn, 196 Or.App. 765, 103 P.3d 1178 (2004) (Illig-Renn III). The Court of Appeals reached that conclusion by comparing ORS 162.247(1)(b) with the disorderly conduct provision at issue in Ausmus:
Illig-Renn III, 196 Or.App. at 769, 103 P.3d 1178 (emphasis in original). The court then went on to hold that, because ORS 162.247(1)(b) necessarily also reached a significant amount of constitutionally protected behavior, the statute was unconstitutionally overbroad. Id. at 769-70, 103 P.3d 1178.
Shortly thereafter, the Court of Appeals issued yet another Illig-Renn opinion, this time on the state's petition for reconsideration. The court reaffirmed its holding in Illig-Renn III and specifically rejected the state's objection that, according to the analysis used in Article I, section 8, cases, ORS 162.247(1)(b) is not a proper subject of a facial overbreadth challenge because it does not expressly proscribe constitutionally protected conduct. State v. Illig-Renn, 199 Or. App. 124, 110 P.3d 137 (2005) (Illig-Renn IV). The court concluded that nothing in the Article I, section 8, cases foreclosed the possibility of a facial challenge to a "speech-neutral" statute and that, in any event, there was no basis for concluding that the limitations on overbreadth analysis developed in the context of Article I, section 8, cases would carry over to challenges (like that raised by defendant in the Illig-Renn cases) under Article I, section 26, of the Oregon Constitution. Id. at 127-28, 110 P.3d 137.
The state sought review of the Court of Appeals decisions in Illig-Renn III and Illig-Renn IV, arguing that this court's cases clearly establish that only statutes that expressly proscribe expression are subject to facial overbreadth challenges under Article I, section 8, and that, logically, a parallel rule should apply to right of assembly analysis under Article I, section 26. The state also argued that what it described as the Court of Appeals' "novel" approach to overbreadth in Illig-Renn III and IV had no basis in the law and unreasonably expanded the idea of overbreadth. We allowed the state's petition to consider those arguments and also to consider defendant's alternative contention that, if ORS 162.247(1)(b) is not overbroad, it nonetheless is unconstitutional on its face because it is impermissibly vague.
We turn first to the issue of overbreadth. In general parlance, a statute is said to be "overbroad" if, by its terms, it reaches conduct that is constitutionally protected and the statute is not susceptible to a narrowing construction. See, e.g., Ausmus; 336 Or. at 504-07, 85 P.3d 864 (). However, not every statute that is theoretically overbroad will be subject to invalidation on that ground. As we shall explain, a statute that proscribes protected conduct only at its margins remains valid, although the statute's application to particular constitutionally protected conduct may be challenged successfully on an "as applied" basis.
Defendant argues that ORS 162.247(1)(b) is facially overbroad. The Court of Appeals, in considering that argument, opined that the courts should invalidate a statute for facial overbreadth if "it prohibits a significant amount of constitutionally protected conduct or speech and it is not susceptible to a narrowing construction that would conform to legislative intent." Illig-Renn III, 196 Or.App. at 767, 103 P.3d 1178. As noted, the Court of Appeals then concluded that ORS 162.247(1)(b) was facially overbroad. The court relied on this court's decision in Ausmus, reasoning that, because this court had concluded in Ausmus, 336 Or. at 506-07, 85 P.3d 864, that a different statute — ORS 166.025(1)(e) — reaches a significant amount of constitutionally protected conduct and, thus, was overbroad, and because (in the view of the Court of Appeals) ORS 162.247(1)(b) reaches all or most of the same conduct and more, it necessarily follows that ORS 162.247(1)(b) reaches a significant amount of conduct that is constitutionally protected and must therefore be unconstitutionally overbroad. Id. at 768-70, 103 P.3d 1178.
The state contends, however, that the Court of Appeals' facial overbreadth analysis is misplaced because ORS 162.247(1)(b) is not the sort of statute that is susceptible to a facial challenge under the Oregon Constitution. The state argues that, under City of Eugene v. Miller, 318 Or. 480, 871 P.2d 454 (1994), State v. Plowman, 314 Or. 157, 838 P.2d 558 (1992), cert. den., 508 U.S. 974, 113 S.Ct. 2967, 125 L.Ed.2d 666 (1993), and State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982), this court analyzes statutes for facial overbreadth only if they expressly restrict constitutionally protected conduct. It then argues that this court analyzes statutes like ORS 162.247(1)(b), which do not refer to constitutionally protected conduct at all, only to determine whether they violate the constitution as applied.
Notably, when the state raised that same argument before the Court of Appeals, that court acknowledged that both Robertson and Miller contained statements suggesting that statutes that do not by their terms forbid particular forms of expression (called "speech-neutral" statutes by the Court of Appeals) are to be analyzed to determine whether they violate the constitution "as applied." However, the court ultimately concluded that none of those statements from Robertson and Miller foreclosed the possibility of a facial challenge to such statutes. The court also suggested that the statements pertained specifically to free expression challenges and arguably were inapplicable to challenges invoking the free assembly guarantee of Article I, section 26. Illig-Renn IV, 199 Or.App. at 127-28, 110...
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