facial vagueness challenge in Oregon

1997See, e.g., State v. Farrar, 309 Or 132, 183 , 786 P2d 161 (1990) (considering and rejecting a facial vagueness challenge to an aggravated murder statute); State v. Cornell/Pinnell, 304 Or 27 , 741 P2d 501 (1987) (upholding an aggravated murder statute against a claim that one of its terms — “torture”—was vague on its face); State v. Graves, 299 Or 189 , 700 P2d 244 (1985) (striking down a first degree burglary statute on facial vagueness grounds).

1997See, e.g., State v. Farrar, 309 Or 132, 183 , 786 P2d 161 (1990) (considering and rejecting a facial vagueness challenge to an aggravated murder statute); State v. Cornell/Pinnell, 304 Or 27 , 741 P2d 501 (1987) (upholding an aggravated murder statute against a claim that one of its terms — “torture”—was vague on its face); State v. Graves, 299 Or 189 , 700 P2d 244 (1985) (striking down a first degree burglary statute on facial vagueness grounds).

1994A facial vagueness challenge should be upheld, although the challenged statute does not implicate First Amendment rights or constitutionally protected conduct, “if the enactment is impermissibly vague in all of its applications.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 US 489, 494-95 , 102 S Ct 1186 , 71 L Ed 2d 362 (1982) (quoted with approval in State v. Robertson, 293 Or 402 , 411 n 8, 649 P2d 569 (1982)).

1994A facial vagueness challenge should be upheld, although the challenged statute does not implicate First Amendment rights or constitutionally protected conduct, “if the enactment is impermissibly vague in all of its applications.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 US 489, 494-95 , 102 S Ct 1186 , 71 L Ed 2d 362 (1982) (quoted with approval in State v. Robertson, 293 Or 402 , 411 n 8, 649 P2d 569 (1982)).

2010However, a reasonable degree of certainty is required by Article I, sections 20 and 21.” (Internal citations and footnote omitted.) This court has also stated that “absolute precision is not required to overcome a facial vagueness challenge.” Illig-Renn, 341 Or at 243 .

2009Second, a statute may create an ‘unlawful delegation issue’ under the Due Process Clause of the Fourteenth Amendment in that it contains no identifiable standards or employs standards that rely on the ‘shifting and subjective judgments of the persons who are charged with enforcing it.’ Third, a statute may be so poorly written as to fail to provide ‘fair warning’ of the conduct that it prohibits, in violation of the Due Process Clause.” (Citations omitted.) Defendants contend that ORS 260.402 is flawed in each of those respects, although they do not explain precisely why that is so, beyond com

2021In State v. Krueger, we explained that a party must show that a law is unconstitutionally vague in all possible applications to prevail on a facial vagueness challenge, and articulated that, “if we can identify conduct that the statute clearly proscribes, then it is irrelevant that the defendant is able to identify problems concerning how the statute might be applied to other conduct.” 208 Or App 166, 171 , 144 P3d 1007 (2006).

2021In State v. Krueger, we explained that a party must show that a law is unconstitutionally vague in all possible applications to prevail on a facial vagueness challenge, and articulated that, “if we can identify conduct that the statute clearly proscribes, then it is irrelevant that the defendant is able to identify problems concerning how the statute might be applied to other conduct.” 208 Or App 166, 171 , 144 P3d 1007 (2006).

2003In 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.

2003In 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.

2003Indeed, 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.

2003Indeed, 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.

2003Id.

2003See State v. Maxwell, 165 Or App 467, 472-73 , 998 P2d 680 (2000), rev den, 334 Or 632 (2002) (if a criminal statute is unconstitutionally vague, the facts alleged in an indictment under that statute do not constitute an offense); State v. Young, 161 Or App 507, 510-12 , 985 P2d 835 (1999), rev den, 329 Or 590 (2000) (where the facts alleged in an indictment do not constitute a crime, demurrer under ORS 135.630(4) is appropriate and may be raised for the first time on appeal).

2003See State v. Maxwell, 165 Or App 467, 472-73 , 998 P2d 680 (2000), rev den, 334 Or 632 (2002) (if a criminal statute is unconstitutionally vague, the facts alleged in an indictment under that statute do not constitute an offense); State v. Young, 161 Or App 507, 510-12 , 985 P2d 835 (1999), rev den, 329 Or 590 (2000) (where the facts alleged in an indictment do not constitute a crime, demurrer under ORS 135.630(4) is appropriate and may be raised for the first time on appeal).

2003Id. at 327, 37 P.3d 1024 .

2001ORS 163.684 prohibits duplicating “any photograph, motion picture, videotape, or other visual recording of sexually explicit conduct involving a child.” The specific types of recordings that the statute prohibits make clear that the general reference to “other visual recording[s]” is limited to visual recordings that involve real children and real abuse, not images that are “virtual” or “invented.” See Stoneman, 323 Or at 540 n 3 (applying the doctrine of ejusdem generis to a virtually identical statutory phrase).

1998Butterfield, 128 Or App at 7-8 .

1997See, e.g., State v. Farrar, 309 Or 132, 183 , 786 P2d 161 (1990) (considering and rejecting a facial vagueness challenge to an aggravated murder statute); State v. Cornell/Pinnell, 304 Or 27 , 741 P2d 501 (1987) (upholding an aggravated murder statute against a claim that one of its terms — “torture”—was vague on its face); State v. Graves, 299 Or 189 , 700 P2d 244 (1985) (striking down a first degree burglary statute on facial vagueness grounds).

1997See, e.g., State v. Farrar, 309 Or 132, 183 , 786 P2d 161 (1990) (considering and rejecting a facial vagueness challenge to an aggravated murder statute); State v. Cornell/Pinnell, 304 Or 27 , 741 P2d 501 (1987) (upholding an aggravated murder statute against a claim that one of its terms — “torture”—was vague on its face); State v. Graves, 299 Or 189 , 700 P2d 244 (1985) (striking down a first degree burglary statute on facial vagueness grounds).

1997The only limitation on facial vagueness challenges to which this court has referred is that, to succeed on a facial claim, a party must show that a statute is unconstitutionally “ ‘vague in all of its possible applications.’ ” Robertson, 293 Or at 411 n 8 (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 US 489, 494-95 , 102 S Ct 1186 , 71 L Ed 2d 362 (1982)). 14 In other words, the statute must be shown to specify “ ‘no [discernable] standard of conduct * * * *382 at all.’ ” Ibid, (quoting Coates v. City of Cincinnati, 402 US 611, 614 , 91 S Ct 1686 , 29 L Ed 2d 214

1997The only limitation on facial vagueness challenges to which this court has referred is that, to succeed on a facial claim, a party must show that a statute is unconstitutionally “ ‘vague in all of its possible applications.’ ” Robertson, 293 Or at 411 n 8 (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 US 489, 494-95 , 102 S Ct 1186 , 71 L Ed 2d 362 (1982)). 14 In other words, the statute must be shown to specify “ ‘no [discernable] standard of conduct * * * *382 at all.’ ” Ibid, (quoting Coates v. City of Cincinnati, 402 US 611, 614 , 91 S Ct 1686 , 29 L Ed 2d 214

1994Cases in which this court and the Supreme Court have addressed facial vagueness challenges to statutes that did not implicate First Amendment rights, include State v. Farrar, 309 Or 132, 181-84 , 786 P2d 161 (1990) (upholding provisions of an aggravated murder statute after considering the defendant’s facial vagueness challenge), State v. Graves, 299 Or 189 , 700 P2d 244 (1985) (striking down a provision of an aggravated burglary statute, apparently on its face), and State v. Moeller, 105 Or App 434 , 806 P2d 130 , rev den 312 Or 76 , 815 P2d 701 (1991) (sustaining a facial vagueness challenge

1994Cases in which this court and the Supreme Court have addressed facial vagueness challenges to statutes that did not implicate First Amendment rights, include State v. Farrar, 309 Or 132, 181-84 , 786 P2d 161 (1990) (upholding provisions of an aggravated murder statute after considering the defendant’s facial vagueness challenge), State v. Graves, 299 Or 189 , 700 P2d 244 (1985) (striking down a provision of an aggravated burglary statute, apparently on its face), and State v. Moeller, 105 Or App 434 , 806 P2d 130 , rev den 312 Or 76 , 815 P2d 701 (1991) (sustaining a facial vagueness challenge

1994Cases in which this court and the Supreme Court have addressed facial vagueness challenges to statutes that did not implicate First Amendment rights, include State v. Farrar, 309 Or 132, 181-84 , 786 P2d 161 (1990) (upholding provisions of an aggravated murder statute after considering the defendant’s facial vagueness challenge), State v. Graves, 299 Or 189 , 700 P2d 244 (1985) (striking down a provision of an aggravated burglary statute, apparently on its face), and State v. Moeller, 105 Or App 434 , 806 P2d 130 , rev den 312 Or 76 , 815 P2d 701 (1991) (sustaining a facial vagueness challenge

1994Cases in which this court and the Supreme Court have addressed facial vagueness challenges to statutes that did not implicate First Amendment rights, include State v. Farrar, 309 Or 132, 181-84 , 786 P2d 161 (1990) (upholding provisions of an aggravated murder statute after considering the defendant’s facial vagueness challenge), State v. Graves, 299 Or 189 , 700 P2d 244 (1985) (striking down a provision of an aggravated burglary statute, apparently on its face), and State v. Moeller, 105 Or App 434 , 806 P2d 130 , rev den 312 Or 76 , 815 P2d 701 (1991) (sustaining a facial vagueness challenge

1994We upheld that statute against a vagueness challenge, because ORS 166.715(4) provides a specific and detailed definition of what conduct constitutes a "pattern of racketeering activity." State v. Romig, 73 Or.App. 780, 788 , 700 P.2d 293 , rev. den. 299 Or. 663 , 704 P.2d 514 (1985).

1994We upheld that statute against a vagueness challenge, because ORS 166.715(4) provides a specific and detailed definition of what conduct constitutes a "pattern of racketeering activity." State v. Romig, 73 Or.App. 780, 788 , 700 P.2d 293 , rev. den. 299 Or. 663 , 704 P.2d 514 (1985).

1993State v. Drummond, 6 Or App 558, 562 , 489 P2d 958 (1971).” (Footnote omitted.) In State v. Farrar, 309 Or 132 , 786 P2d 161 (1990), the defendant made a facial vagueness challenge to the two aggravated murder statutes under which he was convicted.

1993State v. Drummond, 6 Or App 558, 562 , 489 P2d 958 (1971).” (Footnote omitted.) In State v. Farrar, 309 Or 132 , 786 P2d 161 (1990), the defendant made a facial vagueness challenge to the two aggravated murder statutes under which he was convicted.