Westhaven, LLC v. City of Dayton , 316 Or. App. 641 ( 2021 )

641
Argued and submitted September 2, 2020, appeal dismissed December 29, 2021
WESTHAVEN, LLC,
Plaintiff-Appellant,
v.
CITY OF DAYTON,
acting through its Municipal Court
and Judge Mahr,
Defendant-Respondent.
Yamhill County Circuit Court
18CV50363; A170224
504 P3d 1279
In this appeal from a judgment dismissing a petition for a writ of review,
Westhaven, LLC was cited for violating a City of Dayton municipal ordinance for
operating a short-term rental in a residential zone, and a municipal court found
it was in violation. Westhaven petitioned for a writ of review in the circuit court,
which the court denied. On appeal, Westhaven argues that the circuit court erred
in dismissing its petition for writ of review and in denying its alternate request to
transfer the case to the Land Use Board of Appeals. The city responds that this
court lacks jurisdiction to hear the appeal, but that, in any event, the appeal has
no merit. Held: The Court of Appeals lacked appellate jurisdiction under ORS
221.360 because Westhaven did not raise a constitutional challenge on appeal to
the court.
Appeal dismissed.
John L. Collins, Judge.
George W. Kelly argued the cause and filed the briefs for
appellant.
Christopher D. Crean argued the cause for respondent.
Also on the brief were Heather R. Martin and Beery, Elsner
& Hammond, LLP.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
POWERS, J.
Appeal dismissed.
642 Westhaven, LLC v. City of Dayton
POWERS, J.
In this appeal from a circuit court judgment dis-
missing a petition for a writ of review, we must first deter-
mine whether we have appellate jurisdiction to address a
challenge to a violation of a municipal ordinance. We con-
clude, as explained below, that we do not have jurisdiction.
Accordingly, we dismiss the appeal.
Westhaven, LLC was cited for violating the City
of Dayton’s Municipal Code prohibition on the operation of
a short-term rental in a residential zone. Westhaven pro-
ceeded to a trial in Dayton Municipal Court, which is not a
court of record, and was found in violation and fined $500.
Westhaven then sought review of that decision in the circuit
court. See ORS 221.359(1).1
Westhaven did not seek a new trial in the circuit
court under ORS 221.390, but instead petitioned for a writ
of review. See ORS 157.070 (preserving ability of parties in
justice court to seek a writ of review, under ORS 34.010 to
34.100, to have “the judgment reviewed in the circuit court
for errors in law appearing upon the face of the judgment or
the proceedings connected therewith”). In its petition for a
writ of review, Westhaven raised seven assignments of error,
including an argument that the municipal court’s judgment
was unconstitutional because it violated Westhaven’s due
process rights under the Fifth and Fourteenth Amendments
to the United States Constitution. The City of Dayton moved
to dismiss Westhaven’s petition, arguing that the writ of
review process was inapplicable to this case and that ORS
138.057 governed appeals of a municipal court decision. The
circuit court agreed with the city’s argument and dismissed
the writ of review, reaching four conclusions: (1) the writ of
review process under ORS 34.010 was inapplicable; (2) ORS
138.057 was the appropriate method for appeal of a violation
of a city ordinance; (3) even if the appeal were not subject to
1
ORS 221.359(1) provides, in part:
“Except as provided [for municipal courts that have become courts of
record], whenever any person is convicted in the municipal court of any city
of any offense defined and made punishable by any city charter or ordinance,
such person shall have the same right of appeal to the circuit court within
whose jurisdiction the city has its legal situs and maintains its seat of city
government as now obtains from a conviction from justice courts.”
Cite as 316 Or App 641 (2021) 643
ORS 138.057, there was an insufficient record for the cir-
cuit court to review; and (4) Westhaven’s timely filed writ of
review could not be converted to or substituted for a notice
of appeal under ORS 138.057. The circuit court then entered
a general judgment dismissing the petition.
Westhaven now appeals from the circuit court’s
judgment, assigning as error the court’s dismissal of its peti-
tion for writ of review and its denial of the alternate request
to transfer the case to the Land Use Board of Appeals
(LUBA). Importantly, Westhaven does not raise any consti-
tutional arguments on appeal. For its part, the city argues
that we lack appellate jurisdiction and further argues that,
even if Westhaven’s challenges are cognizable on appeal,
those arguments fail on their merits. Westhaven does not
squarely address the city’s argument that this court lacks
appellate jurisdiction.
For the reasons explained below, we conclude that
we lack jurisdiction to consider the matters that Westhaven
raises on appeal. Accordingly, we dismiss the appeal.
The source of our appellate jurisdiction is statutory.
See, e.g., Varde v. Run! Day Camp for Dogs, LLC, 309 Or App
387, 390, 482 P3d 795 (2021) (so recognizing). As explained
in City of Klamath Falls v. Winters, 289 Or 757, 770, 619 P2d
217 (1980), appeal dismissed, 451 US 964 (1981), the stat-
utory framework provides for two routes of appeal when a
defendant is charged with violating a municipal ordinance,
depending on which court the defendant was initially tried
in. “[I]n those cities where persons charged with violating
municipal ordinances are tried in municipal court, they
may take an appeal to the circuit court and obtain de novo
review in the form of a new trial,” and “[i]n cities where such
persons are tried in [circuit] court, they may appeal to the
Court of Appeals.”2 Winters, 289 Or at 770 (citing former
ORS 221.350 (1980), renumbered as ORS 221.359 (1999);
ORS 221.390; former ORS 46.047 (1980), renumbered as ORS
2
The jurisdiction and authority of district courts was transferred to circuit
courts effective January 15, 1998. Or Laws 1995, ch 658, §§ 1, 150; see generally
Oregon AFSCME Council 75 v. OJD-Yamhill County, 304 Or App 794, 796-809,
469 P3d 812, rev den, 367 Or 75 (2020) (describing the history of the unified
Oregon court system). Although the court’s decision in Winters predated that
transfer, the same principle applies to persons tried in circuit court.
644 Westhaven, LLC v. City of Dayton
3.134 (1997)). When an appeal arises following “a municipal
court conviction for violation of a municipal code provision”
that was “entered by a municipal court that was not a court
of record,” then “the sole potential source of our jurisdiction
is ORS 221.360.” City of Lowell v. Wilson, 197 Or App 291,
311, 105 P3d 856, rev den, 339 Or 406 (2005) (footnote omit-
ted). ORS 221.360 provides:
“In all cases involving the constitutionality of the char-
ter provision or ordinance under which the conviction was
obtained as indicated in ORS 221.359, such person shall
have the right of appeal to the circuit court in the manner
provided in ORS 221.359, regardless of any charter provi-
sion or ordinance prohibiting appeals from the municipal
court because of the amount of the penalty or otherwise.
An appeal may likewise be taken in such cases from the
judgment or final order of the circuit court to the Court of
Appeals in the same manner as other appeals are taken
from the circuit court to the Court of Appeals in other crim-
inal cases. Where the right of appeal in such cases depends
upon there being involved an issue as to the constitution-
ality of the charter provision or ordinance, the decision of
the appellate court shall be upon such constitutional issue
only.”
We have explained that, under ORS 221.360, “when
a defendant has been convicted in municipal court, and
then convicted in circuit court following a trial de novo, we
have jurisdiction to review the circuit court judgment only
if the defendant is challenging the constitutionality of the
ordinance he was convicted of violating.” City of Eugene v.
Smyth, 239 Or App 175, 181, 243 P3d 854 (2010), rev den, 350
Or 230 (2011). That is, when a defendant does “not attack
the validity of the underlying city charter provisions or ordi-
nances, then, by reason of the provisions of ORS 221.360,
no right of appeal exists beyond the circuit court.” Winters,
289 Or at 764. A defendant must have raised that constitu-
tional challenge before the municipal court or circuit court
and raise it on appeal to this court. See Wilson, 197 Or App
at 301 (“[T]hat constitutional challenge is not cognizable on
appeal because it was never raised and preserved before the
municipal court or the circuit court.”); see also Smyth, 239
Or App at 181 (concluding that, when the defendant was
convicted in municipal court, and then convicted in circuit
Cite as 316 Or App 641 (2021) 645
court following a trial de novo, we have jurisdiction to review
the circuit court judgment only if the defendant “is challeng-
ing” the constitutionality of the ordinance he was convicted
of violating).
Here, although Westhaven neither sought nor received
de novo review from the circuit court, ORS 221.360 still
controls. See Wilson, 197 Or App at 293-96 (applying ORS
221.360 to an appeal where the defendant pled no contest
to a municipal violation in a municipal court, and then filed
a motion in the circuit court to “reverse and vacate” the
municipal court’s judgment, rather than seeking a new trial
in the circuit court). As such, for this court to have juris-
diction, Westhaven needed to raise a constitutional chal-
lenge before the municipal or circuit courts and on appeal
to this court. Westhaven raised a due process challenge
before the municipal and circuit courts; however, it does
not assert any constitutional challenge on appeal to this
court. Despite contending at oral argument that it had not
abandoned its constitutional arguments on appeal to this
court, nowhere in its opening or reply briefs did Westhaven
raise a constitutional argument or even cite to the United
States Constitution. Rather, in two assignments of error,
Westhaven challenged only the denial of its petition for writ
of review and the denial of its request to transfer the case to
LUBA. Because Westhaven has not raised a constitutional
challenge on appeal to this court, we lack appellate jurisdic-
tion under ORS 221.360.
Appeal dismissed.