State v. Nix

768 March 5, 2015 No. 5

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

ARNOLD WELDON NIX,

Petitioner on Review.

(CC CRH090155; CA A145386; SC S060875)

On review from respondent on review’s Motion to Deter-

mine Jurisdiction, filed August 25, 2014, and petitioner on

review’s Motions to Dismiss Appeal and Vacate Opinions,

filed November 13, 2014; considered and under advisement

on November 14, 2014.*

Jamie K. Contreras, Assistant Attorney General, Salem,

filed the motion for respondent on review. With her on the

motion was Ellen F. Rosenblum, Attorney General, and

Anna M. Joyce, Solicitor General.

David J. Celuch, Portland, filed the motions for petitioner

on review.

Erin J. Snyder, Deputy Public Defender, Salem, filed the

brief for amicus curiae Office of Public Defense Services.

With her on the brief was Peter Gartlan, Chief Defender.

Before Balmer, Chief Justice, and Kistler, Walters,

Linder, Landau, and Baldwin, Justices.**

LANDAU, J.

This court’s decision in State v. Nix, 355 Or 777, 334 P3d

437 (2014), and the Court of Appeals decision in State v. Nix,

251 Or App 449, 283 P3d 442 (2012), are vacated. The state’s

appeal is dismissed for lack of jurisdiction.

______________

**  Appeal from Umatilla County Circuit Court, Jeffrey M. Wallace, Judge.

251 Or App 449, 283 P3d 442 (2012), aff’d, 355 Or 777, 334 P3d 437 (2014).

**  Brewer, J., did not participate in the consideration or decision of this case.

Cite as 356 Or 768 (2015) 769

After the Oregon Supreme Court had issued a decision on the underlying

merits, the state moved to determine whether the state had jurisdiction to bring

an appeal from a judgment of conviction in a misdemeanor case, to challenge the

lawfulness of defendant’s sentence. Defendant, conversely, moved to dismiss the

appeal and vacate the decisions of the appellate courts. Held: (1) ORS 138.060

does not authorize the state to appeal a judgment of conviction for a misde-

meanor; (2) the Oregon Supreme Court would not treat a notice of appeal as hav-

ing the effect of triggering original jurisdiction in mandamus; and (3) the appel-

late courts never had jurisdiction, thus the Oregon Supreme Court dismissed the

appeal and vacated its decision and the decision of the Court of Appeals.

This court’s decision in State v. Nix, 355 Or 777, 334 P3d 437 (2014) and the

Court of Appeals decision in State v. Nix, 251 Or App 449, 283 P3d 442 (2012) are

vacated. The state’s appeal is dismissed for lack of jurisdiction.

770 State v. Nix

LANDAU, J.

In this misdemeanor criminal case, the state

appealed a judgment of conviction, challenging the lawful-

ness of the sentence. The Court of Appeals reversed and

remanded for resentencing. State v. Nix, 251 Or App 449,

283 P3d 442 (2012). We affirmed the decision of the Court

of Appeals. State v. Nix, 355 Or 777, 334 P3d 437 (2014).

Shortly after our opinion was published, however, the state

filed a motion to stay the issuance of the appellate judgment

and a motion to determine jurisdiction; the state noted that,

although it had prevailed on its appeal, it perhaps had lacked

authority to file an appeal in the first place, because no stat-

ute authorizes it to appeal a judgment of conviction for a

misdemeanor. Defendant responded by moving to vacate

both opinions and dismiss the appeal.

For the reasons that follow, defendant’s motions are

well taken. We commend the state for bringing the matter

to our attention. But we conclude that it lacked authority to

appeal the judgment of conviction in this misdemeanor case.

Both the Court of Appeals and this court lacked subject

matter jurisdiction over the appeal. As a result, we vacate

both opinions and dismiss the appeal.

The relevant facts are few and undisputed. Defen-

dant was found guilty of 20 counts of second-degree animal

neglect, a misdemeanor. ORS 167.325(2) (2009).1 The state

asked the trial court to impose sentence on 20 separate

convictions. Defendant objected, arguing that violations

“merge” into a single conviction under Oregon’s anti-merger

statute, ORS 161.067, when there are multiple violations of

a single statute and only one victim. In this case, defendant

argued, animals are not “victims” within the meaning of

that statute, so the trial court should impose a sentence on

a single, merged, conviction. The trial court agreed and did

just that.

The state appealed, arguing that the trial court

had erred in accepting defendant’s contention that animals

cannot be “victims” within the meaning of the anti-merger

1

The legislature has since amended the statute to provide that second-

degree animal neglect is now a felony if the offense was committed as part of a

criminal episode involving 11 or more animals. ORS 167.325(3)(b).

Cite as 356 Or 768 (2015) 771

statute. In its notice of appeal, it cited ORS 138.060(1)(e)

as the basis for appellate jurisdiction. That provision autho-

rizes the state to appeal a “judgment of conviction based on

the sentence as provided in ORS 138.222.” The state appar-

ently relied on a subsection of the cross-referenced statute,

ORS 138.222(4), that authorizes an appellate court to review

a claim that “[t]he sentencing court failed to comply with

the requirements of law in imposing or failing to impose a

sentence.”

Defendant did not contest the jurisdiction of the

Court of Appeals to hear the state’s appeal of his misde-

meanor conviction. That court proceeded to review the

state’s appeal on the merits and, as we have noted, agreed

with the state and reversed and remanded for resentenc-

ing. Defendant then sought review in this court, which we

allowed, ultimately affirming the decision of the Court of

Appeals.

Approximately two weeks later, the state moved

the court to stay the issuance of the appellate judgment

and entertain a motion to determine jurisdiction. The state

asserted that it had come to its attention that, although

ORS 138.222(4)—at least on the surface—appeared to per-

mit an appeal on a claim that the trial court had erred in

imposing a sentence in any case, closer inspection of the

statute suggests that it actually applies only to appeals in

felony cases. We granted the motion to stay issuance of the

appellate judgment and solicited from the parties further

briefing on the jurisdictional issue that the state raised. We

also solicited a brief amicus curiae from the Office of Public

Defense Services.

In response, the state acknowledged that, on fur-

ther reflection, it “lacked a statutory basis to file a notice of

appeal in this case,” because no statute authorizes the state

to appeal a judgment of conviction for a misdemeanor. The

state argued that this court nevertheless had jurisdiction,

“because it could have heard the case in mandamus.”

Defendant argued that, because the state lacked

authority to appeal a judgment of conviction for a misde-

meanor, the appellate courts lacked jurisdiction, and this

court should vacate the opinions of both appellate courts

772 State v. Nix

and dismiss the appeal. OPDS, in an excellent and helpful

amicus brief, likewise argued that the state lacked the stat-

utory authority to appeal and that we should vacate both

opinions and dismiss the appeal.

The state rejoined that, even if this court lacked

jurisdiction over the appeal, defendant has failed to estab-

lish that he is entitled to the “extraordinary remedy” of

vacatur. The state argued that we should deny the motions

to vacate and dismiss the appeal.

Thus framed, the parties’ arguments present a

sequence of three potential questions for us to answer: (1) Did

the state have statutory authority to appeal the judgment

of conviction for a misdemeanor? (2) If not, does this court

nevertheless have jurisdiction over the case because the

state could have filed a petition for a writ of mandamus?

And (3), if not, should we vacate the opinions and dismiss

the appeal? We address each question in turn.

1.  Did the state have authority to appeal the judgment of

conviction for a misdemeanor?

There is no inherent right to an appeal. State v.

McAnulty, 356 Or 432, 438, 338 P3d 653 (2014). Instead, the

right to appeal must be statutorily authorized. Waybrant v.

Bernstein, 294 Or 650, 653, 661 P2d 931 (1983). The statute

authorizing an appeal may include limitations on the issues

that may be reviewed in an appeal. Logsdon v. State and

Dell, 234 Or 66, 70, 380 P2d 111 (1963). In that regard, it

is worth emphasizing that, although the terms are some-

times inadvertently used interchangeably,2 “appealability”

and “reviewability” are not the same. State v. Montgomery,

294 Or 417, 420, 657 P2d 668 (1983). “Appealability” gen-

erally concerns whether an appeal may be taken at all. Id.

“Reviewability” concerns what type of decisions and rulings

the appellate court may consider in a case that is appeal-

able. Id.

2

For example, in State v. Loyer, 303 Or 612, 616, 740 P2d 177 (1987), this

court referred to ORS 138.050—a statute describing judgments that may be

appealed—as a statute that limits the “scope of review.” As we noted in State v.

Cloutier, 351 Or 68, 89 n 1, 261 P3d 1234 (2011), that is not correct, although the

phrasing made no difference in the context of that particular case.

Cite as 356 Or 768 (2015) 773

An appellate court lacks subject matter jurisdiction

over an appeal from a judgment that is not appealable. Young

v. Hill, 347 Or 165, 170, 218 P3d 125 (2009). Thus, because

the issues before us implicate our jurisdiction, we have an

independent duty to determine whether the state’s appeal

was statutorily authorized, regardless of the state’s conces-

sion that it was not. State v. Shaw, 338 Or 586, 599, 113 P3d

898 (2005). Likewise, we have an obligation to acknowledge

the existence of jurisdiction if our review reveals it. State v.

Ainsworth, 346 Or 524, 538 n 16, 213 P3d 1225 (2009).

As we have noted, the state cited ORS 138.060(1)(e)

as authorizing its appeal. That statute provides that “[t]he

state may take an appeal from the circuit court * * * to the

Court of Appeals from * * * [a] judgment of conviction based

on the sentence as provided in ORS 138.222.” ORS 138.222,

which generally concerns appeal and review of felony con-

victions, includes a subsection, ORS 138.222(4)(a), that

provides, “[i]n any appeal, the appellate court may review

a claim that * * * [t]he sentencing court failed to comply

with requirements of law in imposing or failing to impose

a sentence.” (Emphasis added.) 3 The question before us is

3

ORS 138.222 provides, in part:

“(1)  Notwithstanding the provisions of ORS 138.040 and 138.050, a sen-

tence imposed for a judgment of conviction entered for a felony committed on

or after November 1, 1989, may be reviewed only as provided by this section.

“(2)  Except as otherwise provided in subsection (4)(c)  of this section, on

appeal from a judgment of conviction entered for a felony committed on or

after November 1, 1989, the appellate court may not review:

“(a)  Any sentence that is within the presumptive sentence prescribed by

the rules of the Oregon Criminal Justice Commission.

“(b) A sentence of probation when the rules of the Oregon Criminal

Justice Commission prescribe a presumptive sentence of imprisonment but

allow a sentence of probation without departure.

“(c)  A sentence of imprisonment when the rules of the Oregon Criminal

Justice Commission prescribe a presumptive sentence of imprisonment but

allow a sentence of probation without departure.

“(d) Any sentence resulting from a stipulated sentencing agreement

between the state and the defendant which the sentencing court approves on

the record.

“(e)  Except as authorized in subsections (3) and (4) of this section, any

other issue related to sentencing.

“(3) In any appeal from a judgment of conviction imposing a sentence

that departs from the presumptive sentence prescribed by the rules of the

Oregon Criminal Justice Commission, sentence review is limited to whether

774 State v. Nix

whether those two statutes, in conjunction, confer authority

on the state to appeal a judgment of conviction for a misde-

meanor to challenge the lawfulness of the sentence imposed.

On the bare text of the statutes, the answer appears

doubtful. ORS 138.060(1)(e) does authorize the state to

appeal, “as provided in ORS 138.222.” Yet that cross-

referenced statute pertains to appeals of felony convictions

only. It is true that ORS 138.222(4) refers to an appeal “in

any case,” without limiting its effect to felonies. But that

subsection does not authorize the state to appeal anything;

rather, it refers to the issues that may be reviewed in a case

that is otherwise appealable. Moreover, a careful exam-

ination of the history and context of the statute as a whole

makes clear that the statute does not confer authority to

appeal a judgment of conviction in a misdemeanor case.

Historically, the authority of the state to appeal

in criminal cases was narrowly circumscribed. The Deady

Code of 1864 authorized the state to appeal in only two

the sentencing court’s findings of fact and reasons justifying a departure

from the sentence prescribed by the rules of the Oregon Criminal Justice

Commission:

“(a)  Are supported by the evidence in the record; and

“(b)  Constitute substantial and compelling reasons for departure.

“(4)  In any appeal, the appellate court may review a claim that:

“(a)  The sentencing court failed to comply with requirements of law in

imposing or failing to impose a sentence;

“(b)  The sentencing court erred in ranking the crime seriousness classi-

fication of the current crime or in determining the appropriate classification

of a prior conviction or juvenile adjudication for criminal history purposes; or

“(c)  The sentencing court erred in failing to impose a minimum sentence

that is prescribed by ORS 137.700 or 137.707.

“* * * * *

“(7) Either the state or the defendant may appeal a judgment of con-

viction based on the sentence for a felony committed on or after November

1, 1989, to the Court of Appeals subject to the limitations of chapter 790,

Oregon Laws 1989. The defendant may appeal under this subsection only

upon showing a colorable claim of error in a proceeding if the appeal is from

a proceeding in which:

“(a)  A sentence was entered subsequent to a plea of guilty or no contest;

“(b)  Probation was revoked, the period of probation was extended, a new

condition of probation was imposed, an existing condition of probation was

modified or a sentence suspension was revoked; or

“(c)  A sentence was entered subsequent to a resentencing ordered by an

appellate court or a post-conviction relief court.”

Cite as 356 Or 768 (2015) 775

circumstances, namely, after a trial court issued a judgment

on a demurrer to the indictment and after a court issued an

order arresting judgment. See generally State v. Robertson,

293 Or 402, 404-05, 649 P2d 569 (1982) (summarizing

early history of state authority to appeal in criminal cases).

Beginning in 1963, the legislature gradually added to the

list of trial court orders that the state may appeal. See gen-

erally State v. Carrillo, 311 Or 61, 66-67, 804 P2d 1161 (1991)

(detailing amendments to ORS 138.060 from 1963 to 1989

that broadened state’s right to appeal). By 1989, the state

was authorized to appeal from four types of orders:

“(1)  An order made prior to trial dismissing or setting

aside the accusatory instrument;

“(2)  An order arresting the judgment;

“(3)  An order made prior to trial suppressing evidence;

[and]

“(4)  An order made prior to trial for the return or res-

toration of things seized.”

ORS 138.060 (1987).

In 1989, the legislature enacted legislation essen-

tially overhauling the state’s sentencing law and approving

what became known as the “sentencing guidelines.” Or Laws

1989 ch 790. In brief, the new legislation provided that,

for felonies committed on or after November 1, 1989, trial

courts must impose a presumptive sentence determined by

reference to rules of the State Sentencing Guidelines Board

(now the Oregon Criminal Justice Commission), unless the

courts make certain findings that justify a departure from

the presumptive sentence. See generally State v. Davis, 315

Or 484, 486-88, 847 P2d 834 (1993) (summarizing sentenc-

ing guidelines legislation).

As part of the larger package of legislation con-

cerning the new sentencing law, the legislature enacted

two statutes of relevance to this case. The first is what is

now ORS 138.222. Or Laws 1989, ch 790, § 21. That statute

both authorizes appeals and specifies what issues may be

reviewed in those appeals. See generally Cloutier, 351 Or at

90-91 (describing scope of ORS 138.222). On the subject of

776 State v. Nix

appealability, the statute provides that “[e]ither the state or

the defendant may appeal a judgment of conviction based on

the sentence for a felony committed on or after November 1,

1989, to the Court of Appeals.” ORS 138.222(7). The statute

nowhere mentions authority to appeal a judgment of convic-

tion in a misdemeanor case.

On the subject of reviewability, the statute then

provides that “a sentence imposed for a judgment of con-

viction entered for a felony” committed after the effective

date of the sentencing guidelines “may be reviewed only as

provided by this section.” ORS 138.222(1). Following that,

the statute first sets out a list of which issues may not be

reviewed on appeal “from a judgment of conviction entered

for a felony.” ORS 138.222(2). It next provides that, in an

appeal from a judgment of conviction imposing a departure

sentence, appellate court review is limited to whether the

sentencing court’s findings are supported by evidence in the

record and whether the court’s reasons for the departure are

“substantial and compelling.” ORS 138.222(3). That subsec-

tion does not say that it is limited to sentences imposed on

felony convictions, but the wording makes that intention

clear; it refers to the challenge of a sentence that “departs

from the presumptive sentence” prescribed by the sentenc-

ing guidelines that apply to felony convictions only.

Then, in ORS 138.222(4), the statute provides that,

“In any appeal, the appellate court may review a claim

that:

“(a)  The sentencing court failed to comply with require-

ments of law in imposing or failing to impose a sentence;

“(b)  The sentencing court erred in ranking the crime

seriousness classification of the current crime or in deter-

mining the appropriate classification of a prior conviction

or juvenile adjudication for criminal history purposes; or

“(c)  The sentencing court erred in failing to impose a

minimum sentence that is prescribed by ORS 137.700 or

137.707.

That subsection does begin with the words “[i]n any appeal.”

But, in context, there can be no mistake that the reference

is to an appeal taken under ORS 138.222: that is, an appeal

Cite as 356 Or 768 (2015) 777

of a judgment of conviction for a felony committed on or after

the effective date of the sentencing guidelines. To begin with,

ORS 138.222(1) specifies that the subsections that follow

list the issues that are, and are not, reviewable in an appeal

concerning “a sentence imposed for a judgment of conviction

entered for a felony” on or after the effective date of the sen-

tencing guidelines legislation. Consistently with that spec-

ification, ORS 138.222(4) itself refers to review of a claim

that the trial court erred in, among other things, “ranking

the crime seriousness classification” of the relevant crime,

which pertains to the sentencing guidelines that apply to

felony convictions only. ORS 138.222(4)(b).

This court reached the same conclusion about the

scope of ORS 138.222 generally in Cloutier. At issue in that

case was whether a defendant who had pleaded no con-

test to a misdemeanor offense could appeal the conviction

to challenge the lawfulness of the sentence imposed. The

court reviewed the history of the criminal appeal statutes

and concluded that “appeal and review of sentences imposed

for felonies committed after November 1, 1989, are governed

by ORS 138.222.” 351 Or at 91. Appeal and review of sen-

tences for misdemeanor offenses, the court explained, are

authorized by other statutes—specifically, ORS 138.040 and

ORS 138.050. Id. Both of those statutes authorize a crimi-

nal defendant to appeal in specified circumstances; neither

authorizes the state to take an appeal.

The second statute that the legislature enacted as

part of its 1989 sentencing guidelines legislation was an

amendment to ORS 138.060. Or Laws 1989, ch 790, § 21a.

Recall that, as of that date, ORS 138.060 authorized the

state to appeal four types of trial court orders only. Given

that ORS 138.222(7) authorized the state to appeal a judg-

ment of conviction for a felony committed on or after the

effective date of the sentencing guidelines, the legislature

needed to amend ORS 138.060 to reflect that additional

basis for a state’s appeal. Accordingly, it amended the stat-

ute to provide, as it now states, that “[t]he state may take

an appeal from the circuit court * * * to the Court of Appeals

from * * * [a] judgment of conviction based on the sentence as

provided in ORS 138.222.”

778 State v. Nix

Thus, in the context of the other legislation of which

the amendment to ORS 138.060 was a part, it becomes clear

that the authorization of the state to appeal “as provided in

ORS 138.222” refers to the authority of the state to appeal in

felony cases only, as provided in ORS 138.222. ORS 138.060

does not authorize the state to appeal a judgment of convic-

tion for a misdemeanor. The state points to no other statu-

tory basis for appealing such a conviction.

2.  Does this court nevertheless have jurisdiction because the

state could have filed a petition for a writ of mandamus?

The state argues that, even if we conclude that ORS

138.060 does not authorize its appeal of defendant’s misde-

meanor conviction in this case, this court still has appellate

jurisdiction “because it could have heard the case in manda-

mus.” In support, the state cites to State v. Bray, 352 Or 809,

816-17, 291 P3d 727 (2012), and Mueller v. Benning, 314 Or

615, 620-21, 841 P2d 640 (1992).

Whether this court could have exercised original

jurisdiction in mandamus, the fact remains that, in this

case, the state did not file a petition for a writ of manda-

mus. It filed a notice of appeal with the Court of Appeals.

The state has not asked that we consider that notice as a

petition for a writ of mandamus. Nor could we do so. Among

other things, the notice was filed with the Court of Appeals,

not the Supreme Court, and it does not contain any of the

information required by ORAP 11.05, such as a statement

of material facts; a statement why the petition is timely; a

statement why there exists no plain, speedy, and adequate

remedy in the ordinary course of law; and a memorandum of

law supporting the petition for the writ. Nor was it served on

the judge whose action is challenged. ORS 34.250(3). That

service is not a mere formality, for a judge whose action is

challenged in mandamus may seek to intervene in the pro-

ceeding. ORS 34.250(4). The state does not suggest, and we

are not aware, of any other filing that might reasonably be

construed as a petition for a writ of mandamus.

Neither of the cases on which the state relies sup-

ports the proposition that the state’s notice of appeal was

sufficient to confer jurisdiction because of the possibility

Cite as 356 Or 768 (2015) 779

that the state could have instead filed a petition for a writ of

mandamus following the trial court’s sentencing decision. In

Bray, the trial court, after sentencing, ordered the victim to

produce certain evidence so that it could be preserved pend-

ing the defendant’s appeal. 352 Or at 811, 816. The victim

filed a notice of interlocutory appeal, challenging the trial

court’s order. Id. at 814. The state argued that the victim’s

notice of appeal was improper, as relevant statutes permit-

ted such an interlocutory appeal only to challenge orders

entered before sentencing. This court agreed. The court did

not dismiss the appeal, however. It noted that the victim

had simply “mislabeled” the document initiating her appeal;

it should have been denominated a “petition for review.” Id.

at 816. The court noted that the initiating document that

she had filed “was timely and contained all the same docu-

ments required for a petition.” Id. Under the circumstances,

the court concluded that it was appropriate to construe the

mislabeled initiating document as a petition for review.

In this case, by contrast, the state’s notice of appeal

did not contain all the same information required for a peti-

tion for a writ of mandamus; it was not even filed with the

correct court to initiate such a proceeding. It is not a case of

merely mislabeling an initiating document.

Mueller similarly involved a case of mislabeling

a claim for relief. The petitioner had been found guilty

except for insanity and committed to the jurisdiction of the

Psychiatric Security Review Board. 314 Or at 617. He sent

a letter to the Marion County Circuit Court complaining

about the adequacy of his representation at the criminal

trial and on appeal. The court construed the letter as a peti-

tion for a writ of habeas corpus and, after a hearing, denied

relief. Id. When the petitioner appealed, the state argued

that the court had lacked jurisdiction, because a petition for

post-conviction relief was the petitioner’s sole remedy. Id.

This court disagreed, concluding that “the mislabeling of

the claim does not deprive the court of jurisdiction.” Id. at

620.

Again, in this case, the state is not asking us to

overlook a mislabeled claim. The state is asking us to con-

clude that, although it did not timely file a petition for a

780 State v. Nix

writ of mandamus containing all the required information,

because it could have done so, we should treat its notice of

appeal as having the effect of triggering original jurisdic-

tion in mandamus. No case of which we are aware stands for

that proposition.

3.  Should we vacate the opinions and dismiss the state’s

appeal?

There remains the question of the proper disposi-

tion of this appeal in light of the fact that neither the Court

of Appeals nor this court had subject matter jurisdiction to

decide it. Defendant asks us to vacate the opinions. Amicus

OPDS concurs, arguing that under Yancy v. Shatzer, 337 Or

345, 362-63, 97 P3d 1161 (2004), we are required to vacate

both opinions because both the Court of Appeals and this

court lacked subject matter jurisdiction over the appeal.

The state argues that vacatur is an extraordinary remedy

to which defendant has failed to show an equitable entitle-

ment. The state contends that the issue that the appeal pre-

sented was one of significance, and the public interest in

published judicial opinions would be diminished were we to

vacate the decisions of the appellate courts.

The arguments of the parties reveal some tension

in this court’s case law. On the one hand, decisions such as

Yancy declare categorically that courts of this state lack

judicial power to act in an absence of justiciability or subject

matter jurisdiction. See State v. Hemenway, 353 Or 498, 504,

302 P3d 413 (2013) (“Yancy [and another case], while not

focusing on vacatur, unambiguously hold that Oregon courts

are without jurisdiction to decide moot cases.”); Shaw, 338

Or at 599 (in the absence of appellate jurisdiction, this court

“lacks judicial power to resolve any substantive issues” in

an appeal). From that line of authority, it necessarily follows

that any decision issued at a time when the court lacked

judicial power to act should be vacated. See Hemenway, 353

Or at 504 (so noting).

On the other hand, in Terhune v. Myers, 342 Or 376,

153 P3d 109 (2007), the court decided not to vacate a deci-

sion that had been issued after the case had become moot.

In that case, the petitioners sought judicial review of a cer-

tified ballot title. After briefing, the matter was submitted

Cite as 356 Or 768 (2015) 781

and taken under advisement. Shortly after that, the chief

petitioner for the initiative measure withdrew it. No one

informed this court, however. The court proceeded to issue

an opinion referring the ballot title to the Attorney General

for modification. Following the issuance of that opinion, the

Attorney General moved to dismiss the proceeding as moot

and moved to vacate the court’s opinion. Id. at 378-79.

This court granted the motion to dismiss on moot-

ness grounds, but it denied the motion to vacate the opin-

ion. Explaining its decision to deny the motion to vacate,

the court mentioned that whether the court had jurisdic-

tion to issue the decision in the first place is a relevant con-

sideration. Id. at 381. Nevertheless, it concluded that “the

Attorney General presents no argument that unfairness or

inequity will result from a denial of vacatur in this case.” Id.

The court did not mention further the fact that the case had

become moot before it had issued its opinion.

The two lines of cases are difficult to reconcile. But

this case does not require that we do so, for either set of prec-

edents requires that we vacate the opinions in this case. As

we have noted, under Yancy, the fact that both the Court of

Appeals and this court lacked judicial power under Article

VII (Amended) to issue opinions in this case requires that

we vacate the opinions.

The same result is required under Terhune, which

requires a consideration of equitable factors, only one of

which is whether a court had jurisdiction at the time it issued

an opinion. In this case, the want of subject matter jurisdic-

tion weighs especially heavy, however. Unlike Terhune, the

appellate courts in this case never had jurisdiction. See Kerr

v. Bradbury, 340 Or 241, 251, 131 P3d 737 (2006) (declining

to vacate an opinion rendered moot after issuance because,

“this is not a situation in which the Court of Appeals ought

not have rendered a decision on the merits”). It is true that,

as the state suggests, the public has an interest in published

decisions of this court. But that consideration, by itself, can-

not justify declining to vacate the opinions in this case,

as the same could be said in virtually any case in which

there is a motion to vacate. Moreover, were we to decline

to vacate the opinions, we would be, in effect, sanctioning

782 State v. Nix

an “end run”—however inadvertently caused—around the

legislature’s considered policy choice not to permit the state

to appeal judgments of conviction in misdemeanor cases. Cf.

State ex rel Marbet v. Keisling, 314 Or 235, 238, 838 P2d

585 (1992) (declining to exercise original mandamus juris-

diction because doing so would thwart “[t]he limited judicial

review policy established by the legislature”).

In this case, the appellate courts never had appel-

late jurisdiction; the state lacked authority to appeal defen-

dant’s judgment of conviction for a misdemeanor. Although

neither the state nor defendant raised the issue of jurisdic-

tion until after both the Court of Appeals and this court

issued their opinions, the fact remains that neither court

possessed authority to issue an opinion.

This court’s decision in State v. Nix, 355 Or 777, 334

P3d 437 (2014), and the Court of Appeals decision in State v.

Nix, 251 Or App 449, 283 P3d 442 (2012), are vacated. The

state’s appeal is dismissed for lack of jurisdiction.