The Oregon Supreme Court affirmed a Court of Appeals decision that authorized a criminal sentence to reflect harm to individual animal victims of abuse. Until State v. Nix,1 multiple counts of misdemeanor animal abuse were “merged” into one conviction with a lesser penalty. In a similar case involving human beings, each person harmed would count as a victim and represent a separate conviction.
Animal rights organizations celebrated the Nix case2, which unfortunately did not go nearly as far as it could have in recognizing animals as sentient beings who would certainly qualify as victims of human abuse under nearly any other standard. Now, however, whatever animals gained in Nix would appear to have been erased. Yesterday, the Oregon Supreme Court dismissed the state’s appeal and vacated both its Nix decision and that of the Court of Appeals.3
The question of subject matter jurisdiction is a basic civil procedure that every lawyer, criminal or civil, knows or should know. As the Oregon Supreme Court noted, “[t]here is no inherent right to an appeal.”4 A statute must authorize one. If there is no such statute, then the appellate court has no jurisdiction over the case. A court without jurisdiction is without judicial power to act by doing things such as setting aside criminal convictions. This is why “one of the first questions that must be answered [in litigation] is whether the chosen court has the power or competence to decide the kind of controversy that is involved.”5
In this case, the state believed that “ORS 138.060(1)(e) . . . authoriz[ed] its appeal. That statute provides that ‘the 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.’”6 The Oregon Supreme Court explained that “ORS 138.222, which generally concerns appeal and review of felony convictions, includes a subsection, ORS 138.222(4)(a), that provides, ‘in any appeal, the appellate court may review a claim that the sentencing court failed to comply with requirements of law in imposing or failing to impose a sentence.’”7 The Court then set forth the key question—one that no one apparently asked before the case made it all the way to and through Oregon’s highest judicial authority—: “[W]hether those two statutes, in conjunction, confer authority on the state to appeal a judgment of conviction for a misdemeanor to challenge the lawfulness of the sentence imposed.”8
The Court held that the statutes conferred no such authority. Interpreting them as applicable only to felony convictions, not convictions for misdemeanor crimes like the animal abuse charged in Nix, the Court then determined that it had no choice but to dismiss the state’s appeal for lack of jurisdiction. In Nix, the Court reasoned, “the appellate courts never had appellate jurisdiction; the state lacked authority to appeal the defendant’s judgment of conviction for a misdemeanor.”9 Thus, “[a]lthough neither the state nor defendant raised the issue of jurisdiction until after both the Court of Appeals and this court issued their opinions, the fact remains that neither court possessed the authority to issue an opinion.”10
Although now vacated, both earlier appellate opinions in Nix were published. Their reasoning thus remains readily available to animal law attorneys arguing for animals as victims in future cases. And Oregon law now provides that future horrific situations like the one for which the defendant was convicted will be treated more severely. “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.”11.
1.355 Or. 777, 334 P.3d 437 (2014).
2. Scott Heiser & Lora Dunn, Two Great Victories for Animals in Oregon, Animal Legal Defense Fund, Aug. 11, 2014.
3. State v. Nix, 356 Or. 768 (2015).
4. Id. at 772.
5. Jack H. Friedenthal, Mary Kay Kane, & Arthur R. Miller, Civil Procedure 9 (4th ed. 1999).
6. Nix, 356 Or. at 773 (internal alterations omitted).
8. Id. at 774.
9. Id. at 782.
11. Id. at 770 (citing ORS 167.325(3)(b)).