City of Lowell v. Wilson
| Citation | 105 P.3d 856,197 Or. App. 291 |
| Parties | CITY OF LOWELL, Respondent, v. Toshiko WILSON, Appellant. |
| Decision Date | 02 February 2005 |
| Court | Court of Appeals of Oregon |
David C. Force, Eugene, argued the cause and filed the brief for appellant.
Jeffery J. Matthews, Eugene, argued the cause for respondent. With him on the brief was Harrang Long Gary Rudnick P.C.
Before HASELTON, Presiding Judge, and LINDER and ORTEGA, Judges.
Defendant appeals from a judgment of the circuit court dismissing her appeal from a judgment of the City of Lowell Municipal Court that convicted defendant of multiple violations of Lowell City Ordinance No. 130 (Ordinance 130). As explained below, we conclude that we lack jurisdiction to consider any of the matters that defendant raises on appeal. Accordingly, we dismiss the appeal.
The facts that are material to our analysis and disposition are undisputed. Defendant owned a building in the City of Lowell (the city), which was damaged by a fire in June 1996. The city asserted that the building was unsafe and demanded that defendant either perform structural repairs and clean up the site or completely demolish the building. When defendant did not comply to the city's satisfaction, the city initiated a series of complaints in municipal court,1 alleging that defendant had committed violations of Ordinance 130. As pertinent here, Ordinance 130 provides that a person who owns a "dangerous building" and who allows that building to "remain dangerous" for ten or more days after the period specified in an abatement order may be fined not more than $250 for each violation.2 Ultimately, the city filed 324 complaints, one for each day of alleged violation, seeking total fines of $81,000.
Defendant moved to dismiss the complaints, alleging that the Lowell Municipal Court lacked jurisdiction either because the then-extant (1984) version of the city charter did not authorize such a court or because the city's complaints against defendant exceeded that court's jurisdiction. Defendant further argued, pursuant to another city ordinance, that the court lacked authority to impose a maximum total fine in excess of $1,000. The municipal judge who considered that matter denied defendant's motion to dismiss. Thereafter, defendant pleaded "no contest" with respect to the 324 charged offenses, and the municipal court entered a "sentencing order" that imposed total fines and unitary assessments of $27,5403 but provided that all but $3,564 of that amount would be suspended if, inter alia, defendant immediately demolished the structure. Defendant complied with that condition, and the municipal court entered a "judgment and sentence" accordingly.4
Defendant then appealed to the Lane County Circuit Court. In her "amended notice of appeal," defendant asserted that (1) a 1972 Lowell ordinance establishing the municipal court was no longer effective because of the intervening enactment of a new city charter in 1984, and, thus, there was no existing ordinance that authorized a municipal court; (2) the municipal judge who adjudicated the complaints was not duly appointed to that position; (3) the municipal court exceeded its authority by imposing a total fine exceeding $1,000 for seriatim violations of the same ordinance; and (4) alternatively, under ORS 51.080(3), the municipal court was limited to imposing a forfeiture of not more than $3,500.
Defendant did not seek a new trial in circuit court. Instead, defendant informed the court that, because the issues were purely legal and were to be resolved through motions, "there will not be a trial and no witnesses will be called." Thereafter, defendant filed a motion in the circuit court to "reverse and vacate" the municipal court's judgment. That motion substantially reiterated the arguments that defendant had made to the municipal court and that defendant had identified in her notice of appeal to the circuit court, viz., that the municipal court was improperly constituted and lacked jurisdiction or, at least, that the fine imposed exceeded the municipal court's lawful authority.
The city responded by arguing, in part, that under ORS 138.050(1),5 because defendant had appealed from a no contest plea, the circuit court lacked jurisdiction to consider defendant's challenges to the municipal court's jurisdiction. See, e.g., State v. Belzons, 140 Or.App. 198, 200-01, 915 P.2d 428 (1996),rev. den., 324 Or. 513, 930 P.2d 853 (1997) (). The city further argued that, even if defendant's challenges to the municipal court's jurisdiction were somehow cognizable in an appeal to the circuit court following a no contest plea, those arguments failed on their merits. Finally, the city argued that, even though the circuit court did have jurisdiction to address defendant's "excessive sentence" challenges, those challenges should be rejected on the merits.
The circuit court, without amplification, denied defendant's motion to "reverse and vacate." The court subsequently issued its "final judgment," which states, in part:
6
Defendant now appeals to this court, reiterating the arguments that she made before the municipal court and, again, before the circuit court. In addition, defendant argues, for the first time, that the municipal court's imposition of sentence did not comport with due process and, hence, was unconstitutional.7 The city responds that we lack jurisdiction either under ORS 221.360 or under ORS 138.050. The city further argues that, in all events, defendant's arguments fail on the merits. We begin with the city's jurisdictional arguments and find them dispositive.
In addressing appellate jurisdiction, we emphasize that our jurisdiction is not plenary. Rather, the sole source of appellate jurisdiction is statutory. City of Portland v. Duntley, 185 Or. 365, 371, 203 P.2d 640 (1949). That is, we "cannot acquire authority to act except in the manner provided by statute." City of Klamath Falls v. Winters, 289 Or. 757, 763, 619 P.2d 217 (1980), appeal dismissed, 451 U.S. 964, 101 S.Ct. 2037, 68 L.Ed.2d 343 (1981) (quoting McCargar v. Moore 89 Or. 597, 599, 175 P. 77 (1918)). Three statutes bear directly on whether we have appellate jurisdiction: ORS 221.360, ORS 138.050, and ORS 138.057.
We begin with ORS 221.360. That statute provides:
8
The city, invoking City of Salem v. Polanski, 202 Or. 504, 276 P.2d 407 (1954), asserts that we lack jurisdiction under ORS 221.360 because "[d]efendant's opening brief reveals no constitutional arguments as to [the city's] ordinance under which she pled no contest." The city acknowledges, however, that language in City of Eugene v. Lincoln, 183 Or.App. 36, 50 P.3d 1253 (2002), "appears to aid an argument for jurisdiction over non-constitutional issues." Nevertheless, the city contends that the pertinent language in Lincoln was dicta that is irreconcilable with Polanski and other Supreme Court authority and should, consequently, be disavowed.
As described below, we conclude that we lack jurisdiction under ORS 221.360, because defendant failed to preserve any cognizable constitutional challenge under that statute.
Polanski is the baseline precedent. There, the defendant was convicted, following a jury trial in municipal court, of violating a municipal ordinance that prohibited driving while under the influence of intoxicating liquor. 202 Or. at 504-05, 276 P.2d 407. The defendant then appealed to the circuit court, where, following a second jury trial, he was again found guilty. Id. at 505, 276 P.2d 407. The defendant then appealed from the circuit court's judgment to the Supreme Court. Id. The city moved to dismiss the Supreme Court appeal, arguing that the court lacked jurisdiction because, under ORS 221.360 (1953),9 the appellant's assertion of a constitutional challenge was a necessary prerequisite to jurisdiction in such circumstances, and the defendant had failed to raise any such challenge. 202 Or. at 505, 276 P.2d 407.
The Supreme Court began, as we have here, by emphasizing that, except in cases of original jurisdiction, statutes are "the sole source of appellate jurisdiction." Id. (internal quotation marks and citation omitted). The court then proceeded to recount the evolution of the operative statutory language, id. at 505-09, 276 P.2d 407, and concluded:
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