facial constitutional challenge in Colorado

2016Pathways v. Ritter , 178 P.3d 524, 534 (Colo. 2008) (quoting Sanger , 148 P.3d at 410 ). ¶27 In contrast, a facial constitutional challenge is used when a party seeks "to render [a statute] utterly inoperative." Id. (quoting Sanger , 148 P.3d at 410 ).

2016Pathways v. Ritter, 178 P.3d 524, 534 (Colo.2008) (quoting Sanger, 148 P.3d at 410 ). ¶ 27 In contrast, a facial constitutional challenge is used when a party seeks “to render [a statute] utterly inoperative.” Id. (quoting Sanger, 148 P.3d at 410 ), Under such challenges, a statute can be stricken using the rational basis test only “if there exists no reasonably conceivable set of facts to establish a rational relationship between the statute and a legitimate governmental purpose.” Pace Membership Warehouse, 938 P.2d at 507 .

2014See Mariani v. Colo. Dep't of Corr., 956 P.2d 625 , 630 (Colo.App.1997) ("[A] facial challenge to administrative regulations on the grounds of vagueness and overbreadth is beyond the scope of C.R.C.P. 106(a)(4)."); see also Danielson v. Zoning Bd. of Adjustment, 807 P.2d 541 , 543 (Colo.1990) (" C.R.C.P.106(a)(4) and its ... time limitation apply only to judicial review of a quasi-judicial action of an inferior tribunal and do not apply to challenges to legislative acts."); Tri-State Generation & Transmission Co. v. City of Thornton, 647 P.2d 670 , 677 (Colo.1982) (a facial constitutional chal

1983In contrast ... a facial constitutional challenge concerns a general rule or policy applicable to an open class of individuals and, as such, is generally a legislative act subject to review under C.R.C.P. 57 rather than C.R.C.P. 106(a)(4). 647 P.2d at 676, n. 7 .

2025United States v. Salerno, 481 U.S. 739, 745 (1987). ¶19 For example, robbery, "by its very nature, ... is per se grave or serious because it will always involve knowing conduct and grave harm (or the threat of grave harm) to the victim or society (or both)." Wells-Yates, ¶ 64, 454 P.3d at 209 ; see also McDonald, ¶ 13, 560 P.3d at 419 (enumerating aggravated robbery, robbery, burglary, attempted burglary, conspiracy to commit burglary, felony menacing, accessory to first degree murder, and the sale or distribution of narcotics as crimes that remain per se grave or serious after Wells-Yates').

2025See Horrell v. Dep’t of Admin., 861 P.2d 1194, 1198 (Colo. 1993); Cerbo v. Protect Colo. Jobs, Inc., 240 P.3d 495, 504 (Colo. App. 2010) (addressing a challenge to Colorado Constitution, article XXVIII, section 2(10)(a)(I)). 12 Colorado Constitution precisely because section 111.7 conflicts with section 9(2)(a).

2025See Horrell v. Dep’t of Admin., 861 P.2d 1194, 1198 (Colo. 1993); Cerbo v. Protect Colo. Jobs, Inc., 240 P.3d 495, 504 (Colo. App. 2010) (addressing a challenge to Colorado Constitution, article XXVIII, section 2(10)(a)(I)). 12 Colorado Constitution precisely because section 111.7 conflicts with section 9(2)(a).

2025United States v. Salerno, 481 U.S. 739, 745 (1987). ¶19 For example, robbery, "by its very nature, ... is per se grave or serious because it will always involve knowing conduct and grave harm (or the threat of grave harm) to the victim or society (or both)." Wells-Yates, ¶ 64, 454 P.3d at 209 ; see also McDonald, ¶ 13, 560 P.3d at 419 (enumerating aggravated robbery, robbery, burglary, attempted burglary, conspiracy to commit burglary, felony menacing, accessory to first degree murder, and the sale or distribution of narcotics as crimes that remain per se grave or serious after Wells-Yates').

2025Instead, we construe the phrase " [c] ases in which a statute . . . has been declared unconstitutional" in section 13-4-102 (1) (b) to apply to situations in which a district court has declared a statute to be facially unconstitutional. ¶14 A facial constitutional challenge is "a claim that the law or policy at issue is unconstitutional in all its applications." Bucklew v. Precythe , 587 U.S. 119, 138 ( 2019 ) .

2025Instead, we construe the phrase "[c]ases in which a statute . . . has been declared unconstitutional" in section 13-4-102(1)(b) to apply to situations in which a district court has declared a statute to be facially unconstitutional. ¶14 A facial constitutional challenge is "a claim that the law or policy at issue is unconstitutional in all its applications." Bucklew v. Precythe , 587 U.S. 119, 138 (2019).

2014See Mariani v. Colo. Dep't of Corr., 956 P.2d 625 , 630 (Colo.App.1997) ("[A] facial challenge to administrative regulations on the grounds of vagueness and overbreadth is beyond the scope of C.R.C.P. 106(a)(4)."); see also Danielson v. Zoning Bd. of Adjustment, 807 P.2d 541 , 543 (Colo.1990) (" C.R.C.P.106(a)(4) and its ... time limitation apply only to judicial review of a quasi-judicial action of an inferior tribunal and do not apply to challenges to legislative acts."); Tri-State Generation & Transmission Co. v. City of Thornton, 647 P.2d 670 , 677 (Colo.1982) (a facial constitutional chal

2014See Mariani v. Colo. Dep't of Corr., 956 P.2d 625 , 630 (Colo.App.1997) ("[A] facial challenge to administrative regulations on the grounds of vagueness and overbreadth is beyond the scope of C.R.C.P. 106(a)(4)."); see also Danielson v. Zoning Bd. of Adjustment, 807 P.2d 541 , 543 (Colo.1990) (" C.R.C.P.106(a)(4) and its ... time limitation apply only to judicial review of a quasi-judicial action of an inferior tribunal and do not apply to challenges to legislative acts."); Tri-State Generation & Transmission Co. v. City of Thornton, 647 P.2d 670 , 677 (Colo.1982) (a facial constitutional chal

2009United States v. Morgan, 230 F.3d 1067, 1071 (8th Cir.2000) (“No court has applied the exception to a claim ... that a statute is unconstitutional as applied.”); United States v. Johnston, 199 F.3d 1015 , 1019 n. 3 (9th Cir.1999) (“this circuit has held that [jurisdictional] claims are limited to claims that the statute is facially unconstitutional”); United States v. Johnson, 194 F.3d 657, 659 (5th Cir.1999) (guilty plea barred subsequent as-applied challenge), vacated on other grounds and remanded, 530 U.S. 1201 , 120 S.Ct. 2193 , 147 L.Ed.2d 230 (2000), and reinstated with modification, 246

2009United States v. Morgan, 230 F.3d 1067, 1071 (8th Cir.2000) (“No court has applied the exception to a claim ... that a statute is unconstitutional as applied.”); United States v. Johnston, 199 F.3d 1015 , 1019 n. 3 (9th Cir.1999) (“this circuit has held that [jurisdictional] claims are limited to claims that the statute is facially unconstitutional”); United States v. Johnson, 194 F.3d 657, 659 (5th Cir.1999) (guilty plea barred subsequent as-applied challenge), vacated on other grounds and remanded, 530 U.S. 1201 , 120 S.Ct. 2193 , 147 L.Ed.2d 230 (2000), and reinstated with modification, 246

2009United States v. Morgan, 230 F.3d 1067, 1071 (8th Cir.2000) (“No court has applied the exception to a claim ... that a statute is unconstitutional as applied.”); United States v. Johnston, 199 F.3d 1015 , 1019 n. 3 (9th Cir.1999) (“this circuit has held that [jurisdictional] claims are limited to claims that the statute is facially unconstitutional”); United States v. Johnson, 194 F.3d 657, 659 (5th Cir.1999) (guilty plea barred subsequent as-applied challenge), vacated on other grounds and remanded, 530 U.S. 1201 , 120 S.Ct. 2193 , 147 L.Ed.2d 230 (2000), and reinstated with modification, 246

2009United States v. Morgan, 230 F.3d 1067, 1071 (8th Cir.2000) (“No court has applied the exception to a claim ... that a statute is unconstitutional as applied.”); United States v. Johnston, 199 F.3d 1015 , 1019 n. 3 (9th Cir.1999) (“this circuit has held that [jurisdictional] claims are limited to claims that the statute is facially unconstitutional”); United States v. Johnson, 194 F.3d 657, 659 (5th Cir.1999) (guilty plea barred subsequent as-applied challenge), vacated on other grounds and remanded, 530 U.S. 1201 , 120 S.Ct. 2193 , 147 L.Ed.2d 230 (2000), and reinstated with modification, 246

2009United States v. Morgan, 230 F.3d 1067, 1071 (8th Cir.2000) (“No court has applied the exception to a claim ... that a statute is unconstitutional as applied.”); United States v. Johnston, 199 F.3d 1015 , 1019 n. 3 (9th Cir.1999) (“this circuit has held that [jurisdictional] claims are limited to claims that the statute is facially unconstitutional”); United States v. Johnson, 194 F.3d 657, 659 (5th Cir.1999) (guilty plea barred subsequent as-applied challenge), vacated on other grounds and remanded, 530 U.S. 1201 , 120 S.Ct. 2193 , 147 L.Ed.2d 230 (2000), and reinstated with modification, 246

2008People v. Shell, 148 P.3d 162, 172 (Colo.2006); see also People v. Czemerynski, 786 P.2d 1100, 1112 (Colo.1990).

2008People v. Shell, 148 P.3d 162, 172 (Colo.2006); see also People v. Czemerynski, 786 P.2d 1100, 1112 (Colo.1990).

1989Broadrick v. Oklahoma, 413 U.S. 601, 613-15 , 93 S.Ct. 2908, 2916-18 , 37 L.Ed.2d 830 (1973); State v. Newman, 108 Idaho 5, 11 , 696 P.2d 856, 862 (1985); Stoianoff v. State of Montana, 695 F.2d 1214, 1218 (9th Cir.1983).

1989Broadrick v. Oklahoma, 413 U.S. 601, 613-15 , 93 S.Ct. 2908, 2916-18 , 37 L.Ed.2d 830 (1973); State v. Newman, 108 Idaho 5, 11 , 696 P.2d 856, 862 (1985); Stoianoff v. State of Montana, 695 F.2d 1214, 1218 (9th Cir.1983).

1989Broadrick v. Oklahoma, 413 U.S. 601, 613-15 , 93 S.Ct. 2908, 2916-18 , 37 L.Ed.2d 830 (1973); State v. Newman, 108 Idaho 5, 11 , 696 P.2d 856, 862 (1985); Stoianoff v. State of Montana, 695 F.2d 1214, 1218 (9th Cir.1983).