Huffman and Wright Logging Co., [317 Or. at 452, 857 P.2d 101] (emphasis in original) [ (trespassing protesters not immune despite expressive conduct while trespassing) ]; see also City of Portland v. Tidyman, 306 Or. 174, 182, 759 P.2d 242 (1988) (‘A grocery store gains no privilege against a zoning regulation by selling The National Enquirer and Globe at its check-out counter.’).”City of Eugene v. Lincoln, 183 Or.App. 36, 43, 50 P.3d 1253 (2002). Rather, to determine whether the enforcement of a speech-neutral statute violates an individual's rights under Article I, section 8, we apply the analysis that we described and explained in Lincoln.
The city, invoking City of Salem v. Polanski, 202 Or 504, 276 P2d 407 (1954), asserts that we lack jurisdiction under ORS 221.360 because "[d]efendant's opening brief reveals no constitutional arguments as to [the city's] ordinance under which she pled no contest." The city acknowledges, however, that language in City of Eugene v. Lincoln, 183 Or App 36, 50 P3d 1253 (2002), "appears to aid an argument for jurisdiction over non-constitutional issues." Nevertheless, the city contends that the pertinent language in Lincoln was dicta that is irreconcilable with Polanski and other Supreme Court authority and should, consequently, be disavowed.
Both challenges equally attack the constitutionality of the [statute]." City of Eugene v. Lincoln, 183 Or App 36, 41, 50 P3d 1253 (2002). In reviewing defendant's conviction, we apply the analysis for deciding issues under Article I, section 8, that the Supreme Court established in State v. Robertson, 293 Or 402, 649 P2d 569 (1982).
An example of the third type of law is a trespass statute that, although it does not mention expressive activity, could be enforced against political protesters engaging in political expression. See City of Eugene v. Lincoln, 183 Or App 36, 50 P3d 1253 (2002). Such laws are facially constitutional; whether applying them violates Article I, section 8, depends necessarily on the facts of a particular case.
See Mullane , 339 U.S. at 314, 70 S.Ct. 652 ("An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."). We do not understand defendant to argue that the affirmative defense statute, as applied to the facts of this case or on its face, violates the Due Process Clause.See, e.g. , City of Eugene v. Lincoln , 183 Or. App. 36, 41, 50 P.3d 1253 (2002) (explaining that "[a] facial challenge asserts that lawmakers violated the constitution when they enacted the ordinance; an as-applied challenge asserts that executive officials, including police and prosecutors, violated the constitution when they enforced the ordinance"). Accordingly, we limit our analysis to the meaning of "received notice" under ORS 811.180(1)(b).
That is, as relevant here, the law must have been enforced against the complainant. City of Eugene v. Lincoln , 183 Or. App. 36, 41, 50 P.3d 1253 (2002) ("A facial challenge asserts that lawmakers violated the constitution when they enacted the ordinance; an as-applied challenge asserts that executive officials, including police and prosecutors, violated the constitution when they enforced the ordinance."). The state defendants successfully argued to the trial court that that prerequisite was not met in this case.
Id. at 417–18, 649 P.2d 569. An example of the third type of law is a trespass statute that, although it does not mention expressive activity, could be enforced against political protesters engaging in political expression. See City of Eugene v. Lincoln, 183 Or.App. 36, 50 P.3d 1253 (2002). Such laws are facially constitutional; whether applying them violates Article I, section 8, depends necessarily on the facts of a particular case.
In this case, where there has been no executive action against plaintiff and where the only government action to have occurred was enactment of the ordinances by the city council, we construe plaintiff's claim as a facial challenge. See City of Eugene v. Lincoln, 183 Or App 36, 41, 50 P3d 1253 (2002) ("A facial challenge asserts that lawmakers violated the constitution when they enacted the ordinance; an as-applied challenge asserts that executive officials * * * violated the constitution when they enforced the ordinance."). By so construing plaintiff's claim as a facial challenge, we do not intend to offer any opinion as to the merit of pursuing an "as-applied" substantive due process challenge to economic regulation.
Defendants' only challenge to ORS 164.887 is facial. Thus, facts involving the circumstances of defendants' arrests are immaterial; the only relevant "fact" in this case is that defendants were convicted of violating that statute, and the only issue is whether the legislature transgressed one of the specified state or federal constitutional provisions by enacting it. City of Eugene v. Lincoln, 183 Or App 36, 41, 50 P3d 1253 (2002). That is a purely legal question that we review for legal error.
Further, the harm must be intentionally inflicted. The element of intention distinguishes this case from City of Eugene v. Lincoln, 183 Or App 36, 50 P3d 1253 (2002). In that case, we held that an animal-rights protester could not constitutionally be stifled even though her expressive activity could have provoked a violent response.