State v. Hemenway

498 April 25, 2013 No. 19

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

LELAND JAY HEMENWAY,

Petitioner on Review.

(CC 071107; CA A136981; SC S059085 (Control))

STATE OF OREGON,

Petitioner on Review,

v.

LELAND JAY HEMENWAY,

Respondent on Review.

(S059392)

(Consolidated)

En Banc

On petition for reconsideration filed January 31, 2013,

and motion to vacate filed February 4, 2013.*

Peter Gartlan, Chief Defender, Office of Public Defense

Services, Salem, filed the petition for reconsideration, the

motion to vacate, and the reply for Leland Jay Hemenway,

petitioner on review/respondent on review.

Rolf Moan, Assistant Attorney General, Salem, filed

the response for State of Oregon, respondent on review/

petitioner on review. With him on the response were Mary

H. Williams, Deputy Attorney General, and Anna M. Joyce,

Solicitor General.

BALMER, C. J.

This court’s decision in State v. Hemenway, 353 Or 129,

295 P3d 617 (2013), is vacated as moot; the Court of Appeals

decision, State v. Hemenway, 232 Or App 407, 222 P3d 1103

______________

*  353 Or 129, 295 P3d 617 (2013).

Cite as 353 Or 498 (2013) 499

(2009), is vacated; and the judgment of conviction is vacated.

Defendant’s petition for reconsideration is dismissed as

moot.

After the Court issued its decision affirming defendant’s judgment of

conviction for possession of methamphetamine, defense counsel filed a petition for

reconsideration, asking the Court to reconsider and modify or reverse its decision

or, at a minimum, to remand the case to the trial court for additional proceedings

consistent with the Court’s opinion. Four days later, defense counsel filed a

notice informing the Court that defendant had died more than a year before and

contending that the case therefore was moot. Defense counsel also moved to vacate

the Court’s opinion and the judgment of conviction. Held: (1) The case was moot

when the Court issued its decision affirming defendant’s judgment of conviction;

and (2) the Court should vacate its decision in the case, whether the issue was

analyzed as one of the Court’s lack of jurisdiction to decide a moot case or as one

of the Court’s exercise of its equitable powers. This Court’s decision in State v.

Hemenway, 353 Or 129, is vacated as moot; the Court of Appeals decision, State v.

Hemenway, 232 Or App 407, 222 P3d 1103 (2009), is vacated; and the judgment of

conviction is vacated.

Defendant’s petition for reconsideration is dismissed as moot.

500 State v. Hemenway

BALMER, C. J.

This court issued its decision in this case on

January 10, 2013. State v. Hemenway, 353 Or 129, 295 P3d

617 (2013). That decision reversed the decision of the Court

of Appeals and affirmed defendant’s judgment of conviction

for possession of methamphetamine. On January 31, 2013,

defense counsel filed a petition for reconsideration, asking

the court to reconsider and modify or reverse its decision

or, at a minimum, to remand the case to the trial court for

additional proceedings consistent with this court’s opinion.

On February 4, 2013, defense counsel filed a notice pursuant

to ORAP 8.45 informing the court that defendant had died

more than a year before, on January 27, 2012, and contending

that the case therefore was moot. Defense counsel also

moved to vacate this court’s opinion and the judgment of

conviction. Defense counsel argues that, because defendant’s

death rendered the case moot as of January 2012, the case

necessarily was moot at the time this court issued its

decision, and the appropriate disposition is to vacate that

decision. Defense counsel further asserts that, because

(1) the proper disposition of the case—as argued in the

petition for reconsideration—is to remand to the trial court

for further proceedings, and (2) defendant’s death means that

he cannot take steps in the trial court to undo his conviction,

this court also should vacate the judgment of conviction. The

state opposes the motion to vacate, arguing that “the public

interest in leaving the court’s decision undisturbed far

outweighs any equitable interests supporting vacatur.” For

the reasons that follow, we vacate this court’s decision and

the decision of the Court of Appeals and vacate defendant’s

judgment of conviction.

The motion before us involves the related but distinct

issues of mootness and vacatur. This court consistently has

held that Oregon courts have no authority to decide moot

cases: The judicial power granted to courts under the Oregon

Constitution is “limited to the adjudication of an existing

controversy.” Yancy v. Shatzer, 337 Or 345, 362, 97 P3d 1161

(2004). When the court is asked to decide “a matter that no

longer is a controversy between the parties[,] Article VII

(Amended), section 1, of the Oregon Constitution constrains

Cite as 353 Or 498 (2013) 501

us from doing so.” Id. at 363. In Yancy, Portland police, acting

pursuant to a city ordinance, had issued the petitioner a

citation excluding him from two city parks for a period of 30

days. After the exclusion period expired, the petitioner sought

to challenge the exclusion citation in circuit court, and the

circuit court ruled against the petitioner on the merits. The

petitioner appealed to the Court of Appeals, which “observed

that the case was moot, because the exclusion period had

expired and ordered the circuit court to vacate its judgment

and dismiss the matter as moot.” Id. at 347. On review,

this court agreed with the Court of Appeals and affirmed.

The court reaffirmed cases holding that the judicial power

extends only to “justiciable controvers[ies],” which require

an “  ‘actual and substantial controversy between parties

having adverse legal interests.’  Id. at 349 (quoting Brown

”

v. Oregon State Bar, 293 Or 446, 449, 648 P2d 1289 (1982)).

If, because of changed circumstances, a “ decision no longer

‘

will have a practical effect on or concerning the rights of the

parties,’ ” the case is moot and will be dismissed. Yancy, 337

Or at 349 (quoting Brumnett v. PSRB, 315 Or 402, 406, 848

P2d 1194 (1993)).

The state does not dispute that this case became

moot when defendant died and thus was moot before this

court issued its decision. Rather, the state argues that the

court nevertheless should decline to exercise its equitable

power to vacate its decision. The state cites Kerr v. Bradbury,

340 Or 241, 131 P3d 737, adh’d to on recons, 341 Or 200,

140 P3d 1131 (2006), for the propositions that vacatur is

an exercise of the court’s equitable power and is dependent

on the circumstances of a particular case, that vacatur is

an “ ‘extraordinary remedy’ ” to which a party must show an

“ ‘equitable entitlement,’  that choices regarding vacatur

”

must take into account the public interest, and that

“ ‘[j]udicial precedents are presumptively correct and

valuable to the legal community as a whole.’  340 Or at

”

247, 250 (quoting U.S. Bancorp Mortgage Co. v. Bonner Mall

Partnership, 513 US 18, 26, 115 S Ct 386, 130 L Ed 2d 233

(1994)).

Applying those principles, the state argues that our

decision in Hemenway clarified prior decisions regarding

the exclusionary rule in consent-search cases by modifying

502 State v. Hemenway

the analysis set out in State v. Hall, 339 Or 7, 115 P3d 908

(2005). It asserts that, if Hemenway is vacated, the result

will be confusion in the lower courts and the bar because of

the uncertain status of Hall. That uncertainty and resulting

inefficiency are contrary to the public interest, the state

argues, because the validity of consent searches is an issue

in a large number of pending cases. The state contrasts

that substantial public interest with the “minimal” interest

that defendant, now deceased, has in vacating this court’s

decision. The state points out that the fact that the case

was moot at the time that it was decided—and that this

court likely would not have decided the case had it known

of the mootness before its decision—is only one of the

“nonexhaustive list of factors” that may be considered in

deciding whether to vacate the decision. The state also cites

Terhune v. Myers, 342 Or 376, 153 P3d 109 (2007), where

the court declined to vacate a decision in a ballot title case,

even though, unbeknownst to this court, the underlying

controversy had become moot months before the decision

had issued.

The state acknowledges the presumptive rule set

out in ORAP 8.05(2)(c)(ii) that, if a criminal defendant dies

while the defendant’s appeal of the conviction is pending

and the defendant has made an assignment of error that,

if successful, would result in reversal of the conviction,

the appellate court “will vacate the judgment and dismiss

the appeal.”1 It notes, however, that the rule creates a

1

ORAP 8.05(2) provides, in part:

“(a)  Any party who learns of the death of a defendant in a criminal case

that is pending on appeal shall notify the court and all other parties of the

death within 28 days after learning of the death. Any party may move to

dismiss the appeal.

“(b)  If the appeal is from a judgment of conviction and sentence, the party

filing the notice also may, concurrently with filing the notice of the defendant’s

death, file a memorandum addressing whether the court should dismiss the

appeal or vacate the judgment, or both. Within 28 days after the filing of the

notice of the defendant’s death, any other party or interested person may file a

memorandum addressing the same issues.

“(c)  The following are presumptive dispositions under this subsection:

“(i)  For a state’s appeal, the court will dismiss the appeal.

“(ii)  For a defendant’s appeal, if the defendant has made an assignment

of error that, if successful, would result in reversal of the conviction, the court

will vacate the judgment and dismiss the appeal.”

Cite as 353 Or 498 (2013) 503

rebuttable, not an irrebuttable, presumption. In any event,

the state asserts, “the public interest in leaving the court’s

decision undisturbed, and in avoiding the uncertainty and

inefficiency that vacatur would produce, outweighs any

presumption supporting vacatur.”

Defense counsel responds that Yancy, Brown, and

similar cases from this court demonstrate that this case

became moot when defendant died, whether or not this court

was aware of that fact. Therefore, defense counsel argues,

there was no justiciable controversy when the court issued

its opinion, the opinion was advisory only, and the court has

stated that it cannot render advisory opinions. Yancy, 337 Or

at 363. In defense counsel’s view, because this court lacked

authority to issue its decision, the decision must be vacated.

Defense counsel disputes the state’s claim that vacatur will

result in uncertainty in consent-search cases, noting that

“it [is] unclear whether and to what extent a fine-tuned

Hall test will affect actual outcomes.” Defense counsel

also points to the presumptive rule in ORAP 8.05(2)(c)(ii)

that an appeal ordinarily will be dismissed and the

judgment of conviction vacated if a criminal defendant

dies while the case is on direct appeal by the defendant.2

Finally, defense counsel argues that one of the critical

equitable considerations in deciding to vacate is whether

the underlying cause of mootness was within the control of

the party requesting vacatur—and that here the reason for

mootness obviously was unexpected and beyond defendant’s

desire or control.

We agree with the parties that the case was moot

when this court issued its decision in January 2013. We

therefore turn to whether the court should vacate that

decision. As noted, defense counsel argues that Oregon

courts have no jurisdiction over moot cases and no authority

to issue an opinion in a case that becomes moot before a final

judgment is entered. Because this court had no jurisdiction

2

Defense counsel also cites multiple federal appellate decisions in which

an appellate court vacated or abated a defendant’s criminal conviction after the

defendant died while the case was on appeal. Those cases are consistent with

the presumptive disposition set out in ORAP 8.05(2)(c), but none of them involve

a circumstance where a court of last resort issued an opinion after the case,

unbeknownst to the court, had become moot.

504 State v. Hemenway

over this case when it issued its opinion, defense counsel

contends, the opinion must be vacated. The state counters

that this court has used the equitable considerations

identified in Kerr in deciding whether to vacate an opinion

in a case that has become moot; indeed, the state argues,

the court did just that in Terhune, where it considered

the equities and declined to vacate an opinion that had

issued months after the case became moot. Those equitable

considerations, the state maintains, weigh against vacating

our opinion in this case.

We recognize that our cases are in tension. Yancy

and Brown, while not focusing on vacatur, unambiguously

hold that Oregon courts are without jurisdiction to decide

moot cases.3 In Terhune, however, this court applied the

equitable principles discussed in Kerr and exercised its

discretion to not vacate a decision issued in a case that was

moot at the time of the decision.

This case does not require us to resolve the tension

in our prior decisions, however. Both the argument that we

lacked jurisdiction and the argument that the equities favor

vacatur lead to the same result here: This court’s January 10,

2013, opinion should be vacated. Under Yancy and the cases

it relied on, the absence of an “existing controversy” means

that this court lacked “judicial power” conferred by Article

VII (Amended), section 1, of the Oregon Constitution to issue

the decision that it did. 337 Or at 362-63. Accordingly, the

decision should be vacated. We reach the same conclusion if

we instead consider the decision to vacate as an equitable

one and apply the factors discussed in Kerr.

We briefly review those factors as they apply here.

We recognize, as the state argues, that if we vacate our

decision in Hemenway, there may be some uncertainty

as to the status of Hall, because Hemenway attempted to

clarify the earlier decision. We also agree, as we stated in

Kerr, that “ [j]udicial precedents are presumptively correct

‘

and valuable to the legal community as a whole,’  which

”

counsels against vacatur. 340 Or at 250 (quoting Bonner

3

In Yancy, this court discussed and overruled a number of earlier decisions

that suggested that Oregon courts, in some circumstances, had jurisdiction to

decide cases that had become moot. 337 Or at 349-50, 363.

Cite as 353 Or 498 (2013) 505

Mall, 513 US at 26). However, as the state points out, there

are a number of pending cases raising consent-search issues

similar to those decided in Hemenway—including cases in

which a petition for review has been filed with this court.

If this court chooses to address the consent-search issue in

another case, we will have ample opportunity to do so.

A second equitable consideration is that the

parties and various courts, including this court, expended

substantial effort to answer a difficult legal question, and

it would be unfortunate for that work to have been futile.

Those considerations give some support to the state’s

argument that it would be adverse to the public interest if

we vacate our decision.

However, other equitable considerations point in the

opposite direction. In Kerr, this court quoted and followed

the United States Supreme Court’s decision in Bonner Mall

Partnership:

“

‘The principal condition to which we have looked [in

determining whether to vacate a decision or not] is whether

the party seeking relief from the judgment below caused

the mootness by voluntary action.’ ”

Kerr, 340 Or at 249 (quoting Bonner Mall, 513 US at 24)

(emphasis omitted). Here, of course, defendant did not take

any voluntary action to cause the case to become moot.

Moreover, there is no suggestion that either the state or

defense counsel knew of defendant’s death and failed to

inform the court. Consequently, neither party is to blame

for the fact that the court was not informed of defendant’s

death until after its opinion had been issued. Although we

recognize that Kerr and Bonner Mall—unlike this case—

involved the question of vacating a decision that was not

moot when it issued, we nevertheless view the fact that

defendant did not cause the mootness by his voluntary

action as an equitable consideration in favor of vacatur.

We also find support for vacating our decision—and

the lower court decisions—in ORAP 8.05(2)(c). That rule

expresses a general “presumpti[on]” that, if a defendant has

appealed a criminal judgment and the appeal, if successful,

“would result in reversal of the conviction,” then, if the

defendant dies while the appeal is pending, “the court will

506 State v. Hemenway

vacate the judgment and dismiss the appeal.” ORAP 8.05(2)(c).

The state is correct that the rule is presumptive only.

Moreover, the present circumstances are beyond the express

scope of the rule. However, the concern underlying the rule—

that the criminal judgment should be vacated if a criminal

defendant dies while pursuing a direct appeal that might

result in a reversal of the conviction—also is pertinent here.

After examining the equitable considerations for and

against vacatur in this case, we have determined that those

factors militate in favor of vacatur. We conclude that we

should vacate our decision in this case, whether the issue is

analyzed as one of the court’s lack of jurisdiction to decide

a moot case or as one of the court’s exercise of its equitable

powers.

This court’s decision in State v. Hemenway, 353

Or 129, 353 Or 129, 295 P3d 617 (2013), is vacated as

moot; the Court of Appeals decision, State v. Hemenway,

232 Or App 407, 222 P3d 1103 (2009), is vacated; and the

judgment of conviction is vacated. Defendant’s petition for

reconsideration is dismissed as moot.