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ORS 164.887 Declared Unconstitutional (Borowski): But Read the Fine Print


One of the toughest lessons on the law for non-attorneys is that The Law is not black and white and that searching for The Law, or The Answer, in the texts of statutes and constitutions is only the beginning of the research adventure. Analysis, persuasion, persistence, and luck must also be stirred into the mix.

As a colleague of mine always tells his students: “If you read only what is written in the statutes and the constitutions you will be absolutely wrong about what the law is.”

Here’s one case, among thousands, but perhaps it can serve as a useful example. I recommend you read the whole case – the excerpts below are only to whet your appetite (notice also the complete absence of a retelling of the facts – frustrating to those who love the law in part for its stories). (And we don’t yet know if there will be an appeal, so this may not be the final word from the Oregon Courts.)

Oregon v. BOROWSKI, A132129 (10/28/09):

“… Defendants were arrested for “[i]nterfer[ing] with agricultural operations,” a Class A misdemeanor. ORS 164.887 (set out below)….

We conclude that the statute does not violate any provision of the Oregon Constitution, but that it does violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution….

We therefore conclude that, because it contains the impermissible labor-nonlabor distinction, ORS 164.887 violates the Equal Protection Clause. That conclusion, however, does not end our inquiry. We will not declare an entire statute unconstitutional based on the unconstitutionality of one of the statute’s parts; rather, the preferred remedy is to sever the unconstitutional provision and salvage the remainder. The legislature has codified that preference in ORS 174.040:…” (read full opinion, A132129)

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