Interesting new case from the Court of Appeals: City of Eugene v. Smyth, A141624 (2010), which involves an appeal from a circuit court decision that affirmed a conviction in municipal court. Briefly, the defendant was convicted in municipal court of violating the City’s DUII ordinance, a decision he appealed to circuit court for a trial de novo under ORS 221.359. In circuit court, defendant made a number of evidentiary and statutory arguments for reversing the municipal court decision. The circuit court was not persuaded and affirmed the municipal court’s decision. Defendant then appealed to the Court of Appeals under ORS 221.360. The Court of Appeals dismissed for lack of jurisdiction because the defendant did not challenge the constitutionality of the city’s DUII ordinance. Citing earlier cases, the court wrote: “[T]here can be no appeal from the circuit court * * * in cases involving ordinance violations, arising in the municipal court and appealed to the circuit court, excepting only where constitutional questions are involved.” City of Salem v. Polanski, 202 Or 504, 276 P2d 407 (1954). The “essential prerequisite--the sine qua non--of our jurisdiction under ORS 221.360 is that the appellant raise a cognizable facial or as-applied challenge to the constitutionality of the ordinance." City of Lowell v. Wilson, 197 Or App 291, 296, 105 P3d 856, rev den, 339 Or 406 (2005).
This is a very useful case for the municipal lawyer to keep in mind for those rare but inevitable appeals from municipal court.