State v. Illig-Renn , 189 Or. App. 47 ( 2003 )

KISTLER, J.

Defendant was charged by information with “refusing to obey a lawful order by a peace officer.” ORS 162.247(l)(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(l)(b) is neither overbroad nor facially vague. We reverse and remand.

We begin with the state’s argument that ORS 162.247(l)(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 P2d 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 US 451, 458, 107 S Ct 2502, 96 L Ed 2d 398 (1987). In State v. Ausmus, 178 Or App 321, 325, 37 P3d 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. The same reasoning applies equally here. Like the statute in Ausmus, ORS 162.247(l)(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(l)(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. We explained that

“[u]nder both state and federal law, in & 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 (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 P2d 756 (1997), and that it later reaffirmed in State v. Compton, 333 Or 274, 280, 39 P3d 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.

Relying on Ausmus, the state argues that, because ORS 162.247(l)(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(l)(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(l)(b) in State v. Andre, 178 Or App 566, 570, 38 P3d 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 (Schuman, J., concurring). 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 P3d 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 P3d 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.

1 Under ORS 162.247,

“(1) [a] person commits the crime of interfering with a peace officer if the person, knowing that another person is a peace officer:

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“(b) Refuses to obey a lawful order by the peace officer.”

2 Because we decided Ausmus after the trial court granted defendant’s demurrer, the court did not have the benefit of our opinion in that case or of our opinion in State v. Andre, 178 Or App 566, 38 P3d 949 (2002).

3 A law will be vague in violation of the Due Process Clause if it fails to give fair notice of what it prohibits. Delgado v. Souders, 334 Or 122, 148, 46 P3d 729 (2002). A penal law will be vague in violation of Article I, section 21, of the Oregon Constitution if it gives judges and juries “unbridled discretion” to decide after the fact what is prohibited in a given case. Id. at 144. Similarly, a law that “give[s] unbridled discretion to judges and juries to decide what is prohibited in a given case * * * results in the unequal application of criminal laws” in violation of Article I, section 20. State v. Graves, 299 Or 189, 195, 700 P2d 244 (1985).

4 In Chakerian, the defendants argued that the riot statute was unconstitutionally vague in violation of Article I, sections 20 and 21. 325 Or at 380. They did not raise a due process vagueness claim. See id. The court began its analysis of the defendants’ state constitutional argument by stating that “to succeed on a facial vagueness claim, a party must show that a statute is unconstitutionally' “vague in all of its possible applications.” ’ ” Id. at 381 (italics and internal quotations omitted). Although the court stated that test, its analysis of the defendants’ state constitutional vagueness claim was not as confined as the stated test would suggest. See id. at 382-84. The same is true of the court’s analysis of the defendant’s state constitutional vagueness claim in Compton. See 333 Or at 280-81.

5 Specifically, defendant does not argue that the test in Ausmus should not apply to vagueness claims under Article I, sections 20 and 21.

6 We agree with the concurrence that, even if the test articulated in Chakerian is limited to vagueness claims under the Due Process Clause, ORS 166.247 is not facially vague in violation of Article I, sections 20 and 21. The phrase “lawful order” provides a meaningful standard that is reasonably capable of determination. It thus does not present a risk of ad hoc administration or ex post facto lawmaking that would run afoul of Article I, sections 20 and 21.