State v. Hemenway , 353 Or. 498 ( 2013 )

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 U.S. 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 U.S. 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 U.S. 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.