PLF legal scholarship makes a difference in court


Author: Timothy Sandefur

I’m proud to say that my law review article, The Timing of Facial Challenges, 43 Akron L. Rev. 51 (2010), was cited and quoted by the Supreme Court of Utah in a decision it issued in February.* It’s a bit of a technical issue, but it’s an important one, and it’s an example of how PLF attorneys make a difference not just through litigation, but also by writing and publishing in law reviews and books.

The issue I address in my article is whether a person can bring a facial constitutional challenge to a law that has been on the books for a long time. Some lawyers and judges have taken the position that you can’t bring a facial challenge if the statute of limitations period has lapsed after the law’s enactment. As I explain in my article, this isn’t right—so long as you file your lawsuit within the statute of limitations period after you have been injured, you can argue that a law is facially unconstitutional no matter how long ago the law in question was passed.

That’s what the Utah Supreme Court decided in Gillmor v. Summit County, 2010 UT 69, decided Feb. 3. The plaintiff in that case was challenging the constitutionality of a zoning ordinance that was enacted in 1998, and the government argued “that the statute of limitations for facial challenges to a zoning ordinance begins to run not when a particular plaintiff is injured by application or enforcement of the ordinance, but rather on the date the ordinance is enacted. Based on this position, the County argues that any facial challenges to the 1997 Plan and 1998 Code must have been brought within thirty days of their enactment, and that after thirty days the 1997 Plan and 1998 Code became completely immune from facial challenge.” The court rejected this position:

once petitioners have satisfied the jurisdictional requirements…and are properly before the district court, they may raise any and all claims relating to the alleged arbitrary, capricious, or illegal nature of a county land use decision that adversely affects their interests—including facial challenges to the ordinance or regulation upon which the county’s decision is based….

Although the facial/as-applied distinction may be procedurally significant in some contexts, this distinction generally “has nothing to do with the accrual or ripeness of a cause of action” for statute of limitations purposes. Instead, the accrual date of a facial or as-applied challenge is identical to the accrual date of other substantive claims—the date upon which the plaintiff’s injury occurred and the cause of action became complete. Thus, as long as a party satisfies CLUDMA’s jurisdictional prerequisites to be in court—including bringing her claim within thirty days of the date she was injured—she may challenge a law’s validity “whether she chooses to argue that the law is facially unconstitutional or only unconstitutional as applied in her case….”

[I]t is entirely appropriate for a petitioner to assert a facial challenge to the constitutionality of a zoning ordinance in an appeal to a land use decision in an effort to demonstrate that the decision was illegal because it was based on a facially unconstitutional ordinance.

It’s quite an honor to be quoted in the decision and to have had a meaningful impact on this important procedural issue.

*-Update: Actually, issued back in December, only published in February.