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.