State v. Keys

                                        171

  Argued and submitted January 7; decision of Court of Appeals reversed, and
   case remanded to Court of Appeals for further proceedings June 10, 2021


                   STATE OF OREGON,
                    Petitioner on Review,
                              v.
                CLIFFORD DARRELL KEYS,
                   Respondent on Review.
          (CC 16CR24492) (CA A163519) (SC S067691)
                                    

    Defendant was charged by information with possessing methamphetamine.
At his preliminary hearing, defendant’s appointed counsel waived defendant’s
right to a preliminary hearing. Defendant appealed, arguing that he did not
knowingly waive his right to a preliminary hearing as required by Article VII
(Amended), section 5, and that the lack of a valid waiver deprived the circuit
court of subject matter jurisdiction. Held: An invalid waiver of a preliminary
hearing does not deprive a circuit court of subject matter jurisdiction, so a challenge to the validity of such a waiver is subject to ordinary rules of preservation.
    The decision of the Court of Appeals is reversed, and the case is remanded to
the Court of Appeals for further proceedings.



    On review from the Court of Appeals.*
   Kyle Krohn, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the
brief for respondent on review. Also on the brief was Ernest
G. Lannet, Chief Defender.
   Jordan R. Silk, Assistant Attorney General, Salem,
argued the cause and filed the briefs for petitioner on
review. Also on the briefs were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
  Before Walters, Chief Justice, and Nakamoto, Flynn,
Duncan, Nelson, and Garrett, Justices, and Kistler, Senior
Judge, Justice pro tempore.…
______________
    * On appeal from Marion County Circuit Court, Sean E. Armstrong, Judge.

, 

 (2020).
    … Balmer, J., did not participate in the consideration or decision of this case.
172                                        State v. Keys

  KISTLER, S. J.
   The decision of the Court of Appeals is reversed, and
the case is remanded to the Court of Appeals for further
proceedings.
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        KISTLER, S. J.
         The primary question that this case presents
is whether a defective waiver of a preliminary hearing
deprives a circuit court of jurisdiction. Following Huffman
v. Alexander, 

, 

 (1952), reh’g den, 

, 

 (1953), the Court of Appeals held
that it does. State v. Keys, 

, 

 (2020). The Court of Appeals accordingly considered
defendant’s unpreserved challenge to his waiver, found the
waiver defective, and reversed his conviction. We allowed
the state’s petition for review to consider whether a defective
waiver of a preliminary hearing is a jurisdictional defect.
We hold that Huffman stands for a more limited proposition
than defendant perceives and that the state constitutional
provision on which he relies does not establish that a defective waiver of a preliminary hearing deprives a circuit court
of subject matter jurisdiction. We accordingly reverse the
Court of Appeals decision and remand this case to the Court
of Appeals for further proceedings.
         The relevant facts are procedural. A deputy district attorney filed an information charging defendant with
possessing methamphetamine. At arraignment, the circuit
court appointed an attorney to represent defendant. After
confirming defendant’s identity and date of birth, defendant’s attorney told the court:
       “We will acknowledge receipt of the Information, waive
   any further reading or advice of rights. His name and date
   of birth are correctly set out on that document. We are prepared to waive preliminary hearing at this time, reserving the right to assert that in the future should it become
   necessary.”

         Several days later, defendant filed a motion to suppress evidence that he had possessed methamphetamine.
The trial court denied the motion, and defendant agreed
to a stipulated facts trial. Among other things, defendant
stipulated that, during a traffic stop, an officer “observed
what he believed was a small bindle of controlled substance
in defendant’s wallet” and that the substance tested positive for methamphetamine. Based on those and other
174                                                           State v. Keys

stipulations, the circuit court found defendant guilty of possessing methamphetamine.
         On appeal, defendant did not challenge the circuit
court’s ruling on his suppression motion. Rather, he argued
that he had not knowingly waived his right to a preliminary
hearing, as the Oregon Constitution requires. See Or Const,
Art VII (Amended), § 5(5) (providing that a person may be
charged by information with a felony if a magistrate finds
probable cause after a preliminary hearing or “if the person
knowingly waives preliminary hearing”). Defendant noted
that his attorney waived his right to a preliminary hearing
only moments after she met him and before she had had a
chance to speak with him about his rights. It necessarily
followed, he contended, that he had not been informed of his
right to a preliminary hearing and, as a result, his waiver
had not been knowing.
          Defendant acknowledged he had not raised that
issue in the trial court. He relied, however, on this court’s
decision in Huffman for the proposition that an invalid
waiver of a preliminary hearing is a jurisdictional issue that
can be raised for the first time on appeal. Alternatively, he
argued that, even if an invalid waiver is not a jurisdictional
issue, it is a plain error that the Court of Appeals not only
can but must correct. The state responded that, under the
Court of Appeals decision in State v. Sheppard, 

, 

 (1978), rev den, 

 (1979), defendant
had waived his right to a preliminary hearing by proceeding to trial while being represented by counsel and without
objecting to the absence of a preliminary hearing.
         In analyzing the parties’ arguments, the Court of
Appeals limited its decision in Sheppard to its unique procedural facts and sought to follow this court’s decision in
Huffman. Keys, 

. The court began by
noting that it was undisputed that defendant’s waiver had
failed to comply with Article VII (Amended), section 5(5), of
the Oregon Constitution. 

.1 In considering whether
that failure was a jurisdictional problem under Huffman,
the Court of Appeals acknowledged that Huffman’s use of
     1
       Consistently, the state does not dispute on review that defendant’s waiver
failed to comply with Article VII (Amended), section 5(5).
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the term “jurisdiction” was atypical. The court determined,
however, that Huffman established that a defective waiver
of a preliminary hearing deprives a circuit court of “jurisdiction to try or convict” a defendant. Id. at 523 (emphasis
in original). The court did not decide whether “jurisdiction
to try or convict a defendant” differs from subject matter
jurisdiction. Rather, the court concluded that, without a preliminary hearing or a valid waiver of a preliminary hearing,
a circuit court lacks “the kind of jurisdiction that must exist
for a court to try or convict a defendant and, like the absence
of subject matter jurisdiction, its absence may be raised for
the first time on appeal.” Id. at 524 (emphasis in original).
The Court of Appeals accordingly reversed the trial court’s
judgment.
         We allowed the state’s petition for review to consider
that issue. We discuss the text of Article VII (Amended),
section 5(3) - (5) in greater detail below. However, to put the
issue in context, we first describe those subsections briefly.2
Article VII (Amended), section 5(3) - (5), defines how a person may be charged with a crime punishable as a felony.
The charge may be initiated by a grand jury indictment.
Or Const, Art VII (Amended), § 5(3). Alternatively, a felony
charge may be initiated by a district attorney’s information
if the person charged appears before a circuit court judge
and knowingly waives indictment. Id. § 5(4). Finally, a felony
charge may be initiated by a district attorney’s information
if the information is accompanied either by a preliminary
hearing before a magistrate to establish probable cause or
by the person’s knowing waiver of a preliminary hearing.
Id. § 5(5).

   2
     Article VII (Amended), section 5, provides, in part:
        “(3) Except as provided in subsections (4) and (5) of this section, a person
   shall be charged in a circuit court with the commission of any crime punishable as a felony only on indictment by a grand jury.
        “(4) The district attorney may charge a person on an information filed
   in circuit court of [sic] a crime punishable as a felony if the person appears
   before the judge of the circuit court and knowingly waives indictment.
        “(5) The district attorney may charge a person on an information filed in
   circuit court if, after a preliminary hearing before a magistrate, the person
   has been held to answer upon a showing of probable cause that a crime punishable as a felony has been committed and that the person has committed it,
   or if the person knowingly waives preliminary hearing.”
176                                                        State v. Keys

         Article VII (Amended), section 5(3) - (5), requires two
components to initiate a felony prosecution. First, it requires
an accusatory instrument, either an indictment or an information. Second, it requires a check on the district attorney’s
charging authority. That check can be in the form of the
grand jury’s determination of probable cause, a magistrate’s
determination of probable cause, or the determination by
the person charged, reflected in the person’s waiver, that
a grand jury or a magistrate’s determination of probable
cause is an unnecessary procedural step. See Official Voters’
Pamphlet, General Election, Nov 5, 1974, 13 (describing a
magistrate’s determination of probable cause and a person’s
waiver of that right as coequal checks on the district attorney’s charging authority).
         With that background in mind, we note that this
is not a case in which there was no accusatory instrument.
No one disputes that the district attorney properly initiated
this case by filing an information charging defendant with
possessing methamphetamine. Nor does this case require
us to reconsider our decision in State v. Terry, 

, 

 (2001), in which we held that a defective
accusatory instrument does not deprive a circuit court of
subject matter jurisdiction. Defendant does not contend that
the accusatory instrument in this case was defective in any
respect. Finally, we note that this is not a case in which there
was no apparent waiver of a preliminary hearing. Rather,
the issue in this case reduces to the question whether an
invalid waiver of a preliminary hearing will deprive a circuit court of subject matter jurisdiction.3 Put differently,
the question is whether a defect in the constitutional check
on a district attorney’s charging authority—i.e., a defect in
the defendant’s waiver, a defect in the magistrate’s probable
cause determination, or a defect in the grand jury’s probable cause determination—deprives a court of subject matter
jurisdiction.
        On that issue, this court has long recognized that a
constitutional defect in the manner in which a grand jury is
composed is not a jurisdictional problem that may be raised

    3
      Defendant frames the issue in this case as an absence of subject matter
jurisdiction, and we accept his formulation.
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at any time. Compare State v. Witt, 

, 

 (1899) (holding that a failure to comply with the constitutionally mandated method of selecting grand jurors
could not be raised after the defendant’s plea), with State
v. Lawrence, 

, 

 (1885) (setting aside
the grand jury’s indictment based on a timely objection to
the manner in which the grand jurors were selected). More
recently, we recognized that a defect in the indictment does
not deprive a court of subject matter jurisdiction. Terry,

. Defendant argues, however, that a defect in
waiving a preliminary hearing will deprive a circuit court of
subject matter jurisdiction.

         If a defect in the indictment or a defect in the manner in which the grand jury is selected does not deprive a
court of subject matter jurisdiction, as this court held in
Terry and Witt, it is difficult to see why a defect in waiving a preliminary hearing should lead to a different result.
Defendant, however, argues that this court’s decision in
Huffman establishes that a defective waiver of a preliminary
hearing will deprive a court of subject matter jurisdiction.
He argues that Huffman is a well-reasoned decision, which
we should follow. Moreover, he argues that Huffman’s holding follows naturally from the text and history of Article VII
(Amended), section 5(3) - (5), and that, even if Huffman were
wrongly decided, the voters approved Huffman’s holding
when they amended Article VII (Amended) in 1958 and
again in 1974, or that they approved a comparable 1887 federal decision when they amended Article VII (Original) in
1908.

         The state, for its part, does not question whether
the complete absence of an accusatory instrument would
present a jurisdictional problem. Rather, it views a defendant’s ability to waive a preliminary hearing as a personal
constitutional right that, like other personal constitutional
rights, must be raised below or come within an exception to
the preservation rule to be considered on appeal. In its view,
the text and history of Article VII demonstrate that, to the
extent Huffman held that an invalid waiver of an indictment
deprives a court of subject matter jurisdiction, Huffman was
wrongly decided and should be overruled.
178                                                          State v. Keys

          In considering the parties’ arguments, we begin by
describing our decision in Huffman. We then explain why
Huffman is best understood as resolving only the issue
that it stated it was deciding—whether an alleged error in
waiving an indictment was a cognizable ground for relief
in a state habeas corpus proceeding. More specifically, we
explain that the ambiguity that the Court of Appeals perceived in Huffman’s use of the term “jurisdiction” stems from
an issue that was unique to the federal habeas corpus cases
on which Huffman’s analysis relied and does not reflect a
determination regarding subject matter jurisdiction. We
then turn to the text and history of Article VII (Amended),
section 5, to consider whether, as defendant argues alternatively, those sources either lead independently to the conclusion that Huffman reached or demonstrate that, in amending Article VII, the voters approved either the holding in
Huffman or the federal decision on which Huffman relied.
                 I. HUFFMAN v. ALEXANDER
         The petitioner in Huffman filed a petition for a
state writ of habeas corpus. He alleged, among other things,
that his criminal conviction should be set aside because he
had limited education and had been fraudulently induced
to waive his right to a grand jury indictment in violation
of Article VII (Original), section 18 (1927), of the Oregon
Constitution.4 Huffman, 

. The trial court
dismissed the petitioner’s state habeas claim without holding an evidentiary hearing on that issue, apparently because
he sought to impeach on habeas what appeared from the
face of the criminal trial record to be an informed, valid
waiver. See 

.

    4
      Until 1927, Article VII (Original), section 18 (1908), and Article VII
(Amended), section 5 (1910), were parallel constitutional provisions. Both provided that “any crime or misdemeanor” could be charged only by indictment. In
1927, the voters amended Article VII (Original), section 18 (1908), to permit a
person to waive indictment, but the voters did not amend the parallel text in
Article VII (Amended), section 5 (1910). See Or Laws 1929 p 5. In 1932, this
court held that the 1910 amendment to Article VII had not repealed Article VII
(Original), section 18, and that the 1927 amendment to Article VII (Original),
section 18, permitted a person to waive indictment. State v. Tollefson, 

, 

 (1932). For that reason, in 1952, Huffman addressed
whether the petitioner’s waiver violated Article VII (Original), section 18
(1927).
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         As this court analyzed the petitioner’s habeas
claim in Huffman, it presented two questions. The first was
whether the claim was cognizable in state habeas. See id. at
296-97. If it was, the second question was whether the petitioner could go behind the criminal trial record and impeach
on collateral review what appeared from the face of the trial
record to be an informed, valid waiver. See id. at 301.
         In resolving the first question, Huffman began by
discussing the categories of issues that were cognizable, as
a matter of state common law, on a writ of habeas corpus.
Id. at 297-99. Huffman explained that state habeas corpus
could not “ ‘be resorted to for the purpose of reviewing judgments or decrees of a court of competent jurisdiction for
either errors of fact or law.’ ” Id. at 297 (quoting Harrington
v. Jones, 

, 

 (1909)). Rather, the writ
was available, at least initially, only if the court that issued
the judgment or decree lacked “ ‘jurisdiction of the person
and the subject-matter.’ ” 

 (quoting Harrington, 

); see Chavez v. State of Oregon, 

, 

 (2019) (describing state habeas practice).
        Huffman recognized, however, that this court had
recently described the issues cognizable in state habeas
“somewhat more broadly.” 

-98 (citing Garner v.
Alexander, 

, 

 (1941)). It explained that
Garner had “no doubt [been] influenced” by federal cases
recognizing that habeas was available not only “where there
[was a] want of jurisdiction over the person or the case,” but
also where there was “some other matter rendering the judgment void.” Id. at 298 (internal quotation marks omitted;
emphasis added by Huffman).
         Huffman noted that a judgment will be “void or subject to attack in habeas corpus” when there is a “[l]ack of
jurisdiction of the subject-matter, jurisdiction of the person,
or jurisdiction to render the particular judgment assailed.”
Id. (internal quotation marks omitted; emphasis added by
Huffman). The court did not explain what the phrase that
it emphasized—“jurisdiction to render the particular judgment assailed”—meant. However, it provided one clue when
it quoted with approval an earlier decision recognizing that
a judgment will be void for the purposes of state habeas
180                                              State v. Keys

when it “ ‘is not authorized … by the pleadings.’ ” Id. at
298-99 (quoting Rust v. Pratt, 

, 

(1937)).
         Having canvassed the cases addressing when an
issue will be cognizable in state habeas, Huffman explained
that the “first question [to be decided] is whether an Oregon
court has jurisdiction to try a defendant on an information in
the absence of a waiver of indictment.” Id. at 299. Huffman’s
use of the phrase “jurisdiction to try a defendant” is ambiguous. The phrase could refer to the absence of subject matter
jurisdiction, or it could refer to the absence of “jurisdiction
to render the particular judgment assailed,” which Huffman
had noted differed from subject matter jurisdiction. Id. at
298. That is, in framing the first question to be decided,
Huffman could have been using the term “jurisdiction to try
a defendant” to refer to a “court’s [lack of] authority to grant
the relief requested in a particular case” rather than its lack
of subject matter jurisdiction. See Dept. of Human Services
v. C. M. H., 

, 

 (2021) (discussing various ways in which courts historically used the term
jurisdiction).
          As we explained in C. M. H., courts have not
always been precise in their use of the term “jurisdiction.”
Sometimes, their lack of precision has not had a practical
consequence. 

. Huffman illustrates that category of
cases. In Huffman, there was no need to be precise about the
court’s use of the term “jurisdiction,” since a lack of subject
matter jurisdiction or a lack of authority to take a particular action would both give rise to a cognizable state habeas
claim. See 

. In other cases, the sense in
which the term “jurisdiction” is used can matter greatly.
This case illustrates the latter category of cases. In this
case, if a defective waiver of a preliminary hearing deprives
a court of subject matter jurisdiction, then that defect can
be raised for the first time on appeal. See C. M. H., 

. However, if a defective waiver instead deprives a court
of the authority to render a conviction, then the defect cannot be raised for the first time on appeal unless the defect
comes within an exception to the preservation rule. See
id.; cf. Peeples v. Lampert, 

, 

(2008) (discussing exceptions to the preservation rule).
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         In answering the first question it posed, Huffman
did not explicitly identify the sense in which it was using
the term “jurisdiction.” Specifically, in deciding whether
the underlying criminal conviction was “subject to attack
in [state] habeas corpus,” Huffman quoted the text of
Article VII (Original), section 18 (1927), which provided that
a person could be charged in circuit court with a “crime or
misdemeanor” by indictment but also provided that a person could be charged by a district attorney’s information if
the person appeared before a judge of the circuit court and
knowingly waived indictment. Huffman, 

.
          The court then quoted two authorities that addressed
whether the absence of an indictment will give rise to a
cognizable habeas claim. The court initially quoted a legal
encyclopedia for what it described as the “general rule” on
that issue. 

 at 299-300 (quoting Habeas Corpus, 25 Am
Jur § 38 (1940)). The court noted that “ ‘[i]t is essential to the
validity of a conviction not only that the court have jurisdiction of the crime, but that its jurisdiction be invoked in the
manner sanctioned by law.’ ” Id. (quoting Habeas Corpus, 25
Am Jur § 38 (1940)). It then quoted the encyclopedia for the
proposition that, if a crime can be charged only by indictment and if a habeas petitioner “ ‘has not been indicted …,
his conviction is void, and he may be released on habeas
corpus.’ ” Id.
         The court also discussed a second authority, the
United States Supreme Court’s 1887 decision in Ex parte
Bain, 

, 

, 

 (1887). This court
explained that the district court in Bain had erroneously
deleted a phrase in the indictment, which it had viewed as
surplusage. Huffman, 

 (describing Bain). The
United States Supreme Court concluded that the erroneously amended indictment was “ ‘no indictment’ ” at all. See

 (quoting Bain, 

). And even though the district
court otherwise would have had jurisdiction over the person
and the crime, Bain reasoned that, as a result of the erroneous amendment, “ ‘the jurisdiction of the offense is gone,
and the [federal district] court ha[d] no right to proceed any
further in the process of the case for want of an indictment.’ ”

 (quoting Bain, 

). It followed that the claimed
error in Bain was cognizable on federal habeas.
182                                              State v. Keys

        Having described the general rule from the legal
encyclopedia and the holding in Bain, Huffman concluded:
      “While the provision concerning indictment in the Fifth
   Amendment [which had been at issue in Bain] is inapplicable to state prosecutions, the same rule must be applied
   under Article VII, section 18 of the Oregon Constitution.”

Id. at 301. The court added: “It follows from the express
language of the [Oregon] constitutional provision and from
the authorities cited that unless a defendant validly waives
indictment he cannot be tried upon information filed by the
district attorney. A judgment rendered upon an information
without waiver of indictment would be void” and subject to
collateral attack on state habeas. Id.
         Although Huffman did not expressly identify the
sense in which it was using the term “jurisdiction,” its reasoning provides some clues as to its use of the term. Huffman’s
conclusion that a judgment based on an invalid waiver of
indictment will be “void” implies that the court was relying
on “some other matter rendering the judgment void” rather
than the absence of subject matter jurisdiction. See 

 (internal quotation marks omitted; emphasis added
by Huffman). The same implication follows from the fact that
Huffman emphasized that phrase and later emphasized the
phrase “jurisdiction to render the judgment assailed,” which
Huffman noted differed from subject matter jurisdiction. 

In short, if we had to determine the sense in which Huffman
used the term “jurisdiction” solely from the court’s decision,
we would conclude, tentatively, that Huffman was not using
the term to refer to an absence of subject matter jurisdiction or something akin to subject matter jurisdiction, as the
Court of Appeals determined. Rather, Huffman was using
the term to refer to a lack of authority to take an action,
which meant only that the issue was cognizable on state
habeas.
         Huffman, however, does not stand alone. Rather, it
drew from a long line of federal habeas corpus cases, which
provide greater insight into how Huffman used the term
“jurisdiction.” We accordingly look to those decisions to better understand this court’s decision in Huffman.
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                II. FEDERAL HABEAS CORPUS
          When Congress passed the Judiciary Act of 1789,
it authorized persons held in federal custody to petition for
a federal writ of habeas corpus. The Judiciary Act of 1789,
ch 20, § 14, 1 Stat 81-82. The Judiciary Act, however, did not
specify which issues were cognizable in federal habeas, and
the Court looked initially to the common law to make that
determination. Ex parte Watkins, 28 US (3 Pet) 193, 201-02,

 (1830). In applying the common law in Watkins,
the Court held that the only issue cognizable in federal
habeas was whether the court that issued the judgment had
“general jurisdiction over criminal cases.” 

. It
reasoned: “An imprisonment under a judgment cannot be
unlawful, unless the judgment be an absolute nullity; and it
is not a nullity if the court has general jurisdiction of the subject, although [the judgment] should be erroneous.” 

 That
was true even if, as the petitioner in Watkins alleged, he had
been indicted for a nonexistent crime. Id. at 201, 209. As long
as the court that issued the judgment had jurisdiction over
the subject, its judgment was conclusive on federal habeas.5
         In applying that common-law limitation, the Court
had to accept one fact: Until 1891, a person convicted of a
crime in federal court could not, as a general matter, appeal
his or her conviction. Paul M. Bator, Finality in Criminal
Law and Federal Habeas Corpus for State Prisoners, 76 Harv
L Rev 441, 473 (1963).6 That is, as a general rule, a person convicted in federal court could not challenge either on
direct appeal or by a petition for a writ of certiorari whether
the conviction was erroneous. Id. The only recourse for a
person convicted of a crime in federal court was to petition
for a federal writ of habeas corpus. However, as Watkins
explained, habeas was available only if the court that issued
    5
      In reaching that conclusion, the Court contrasted judgments from courts of
general jurisdiction with judgments from “inferior courts of limited jurisdiction,”
such as courts martial. Watkins, 

 (distinguishing Wise v. Withers,

, 

 (1806)).
    6
      In 1891, Congress provided for a direct appeal in federal criminal cases to
the newly created federal courts of appeal. Bator, 76 Harv L Rev at 473 n 75. For
a two-year period between 1889 and 1891, an appeal was available to the United
States Supreme Court in capital cases. 

 Before then, appeals in federal criminal cases were available in the United States Supreme Court but only if there
was a division of opinion among the district courts on a question of law. 

184                                                 State v. Keys

the conviction lacked jurisdiction over the crime or the person. See Watkins, 

.
         One commentator has explained that the absence of
a direct appeal in federal criminal cases “placed tremendous
expansive pressure on [federal] habeas corpus jurisdiction.”
Bator, 76 Harv at 473. Perhaps for that reason, in the second half of the nineteenth century, the Court began expanding the categories of issues that were cognizable in federal
habeas. See United States v. Cotton, 

, 

, 

 (2002) (noting that connection).
For example, the Court issued a writ of habeas corpus in
Ex parte Siebold, 100 US (10 Otto) 371, 

 (1879),
to decide whether a federal criminal statute that resulted in
the petitioners’ convictions was unconstitutional. The Court
acknowledged, as Watkins had recognized, that the writ of
habeas corpus cannot be used to correct an erroneous judgment. Id. at 375. It explained, however, that the writ could
be issued for “want of jurisdiction in [a district] court over
the person or the cause, or some other matter rendering its
proceedings void.” Id. (emphasis added).
         In explaining why a judgment based on an unconstitutional statute was “void” rather than erroneous, the
Court reasoned:
   “An unconstitutional law is void, and is as no law. An
   offence created by it is not a crime. A conviction under it
   is not merely erroneous, but is illegal and void, and cannot
   be a legal cause for imprisonment. It is true, if no writ of
   error lies, the judgment may be final in the sense that there
   is no means of reversing it. But personal liberty is of so
   great moment in the eye of the law that the judgment of an
   inferior court affecting it is not deemed so conclusive but
   that, as we have seen, the question of the [district] court’s
   authority to try and imprison the party may be reviewed
   on habeas corpus.”
Id. at 376-77.
         We do not question the interest that the Court
recognized in Siebold in protecting persons from being
imprisoned based on unconstitutional laws. However, the
line between being convicted of a nonexistent crime and an
unconstitutional crime seems a fine one. If, as the Court
held in Watkins, a judgment based on a nonexistent crime
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may not be reexamined on federal habeas because the district court had general jurisdiction over the subject, it is difficult to see why a judgment based on an unconstitutional
statute should lead to a different result.
         The Court followed a similar pattern in other habeas
cases arising from federal convictions in the late nineteenth
century; that is, it issued a federal writ of habeas to determine if a federal criminal judgment was “void” in whole or
in part for lack of jurisdiction or authority. For example, the
Court issued a writ of habeas in Ex parte Snow, 

,

, 

 (1887), because the district court
lacked “jurisdiction” to impose consecutive sentences for
three separately charged crimes that, the Court concluded,
constituted only a single continuing offense.7 

. As the Court explained, the district court had jurisdiction to enter a sentence for only one offense. 

 Similarly,
in Ex parte Lange, 85 US (18 Wall) 163, 164, 

 (1873),
the district court had vacated an erroneous sentence shortly
after entering it and imposed an amended sentence. The
Court held that double jeopardy divested the district court of
authority to resentence the petitioner, that the new sentence
was not merely erroneous but void because “the power of the
court to punish further was gone,” and that habeas would lie
to correct that lack of authority.8 Id. at 175-78.
         In Siebold, Snow, and Lange, the Court did not hold
that the district court lacked subject matter jurisdiction.
    7
      In Snow, the grand jury issued three indictments, each of which charged
the petitioner with continuously cohabiting with the same seven women for one of
three successive years, and the trial court imposed three consecutive sentences
on the resulting three convictions. 

. The Court reasoned that,
because cohabitating with the same persons is a continuing crime, the three
indictments charged only a single offense, the trial court had no “jurisdiction” to
impose consecutive sentences, and habeas would lie to release the petitioner from
serving the second and third consecutive sentences. 

.
    8
      The district court initially sentenced the petitioner in Lange to serve
a prison sentence and pay a fine. Shortly afterwards, it vacated the sentence
because the underlying statute authorized a prison sentence or a fine, and the
court resentenced the petitioner solely to a term of imprisonment. In holding that
habeas would lie to consider the amended sentence, the Court recognized that
district courts have the authority to vacate a defendant’s sentence during the
same term of court, as the district court had done in Lange. 85 US (18 Wall) at
167. However, because the petitioner had already paid the fine and thus satisfied
a separate part of his sentence, the Court held that double jeopardy divested the
district court of the authority to resentence him, the new sentence was “void,”
and habeas would lie to correct a void sentence. Id. at 176-78.
186                                                            State v. Keys

Rather, it identified constitutional or other errors that
resulted in what the Court characterized as a lack of authority or “jurisdiction” to take further action. It followed, the
Court reasoned, that the resulting lack of authority rendered
the petitioners’ convictions “void” rather than erroneous and
that habeas would lie to correct those errors. Although the
Court posited in Siebold that the difference between an erroneous sentence and a void one was self-evident, see 

, it later candidly acknowledged in Ex parte Bigelow,

, 

, 

 (1885), “It may be
confessed that it is not always very easy to determine what
matters go to the jurisdiction of [the district] court so as to
make its action when erroneous a nullity.”
         Bain, which this court followed in Huffman, employed
similar reasoning. The Court explained in Bain that the
district court had amended an indictment to remove what
it erroneously had perceived was a superfluous phrase.

.9 The Court concluded that the erroneous
amendment did not merely result in a defective indictment;
it resulted in “no indictment” at all. 

. The Court
reasoned that, even though the district court “would have
[had] jurisdiction of the crime, if it were properly presented
by indictment, the jurisdiction of the offense is gone, and
the court has no right to proceed any further in the progress of the case for want of an indictment.” 

 Because the
district court had no “jurisdiction … [or] right to proceed,”
the error was cognizable on federal habeas. Id.10

    9
       Most of the Court’s discussion in Bain focused on whether the district
court had erroneously amended the indictment. 

. To paraphrase
the indictment in Bain, it initially alleged that the petitioner had intended “to
deceive A and B.” See 

. On the government’s motion, the district court
deleted the reference to A so that the indictment, as amended, alleged that the
petitioner had intended to deceive B. 

. The Court held in Bain that not
only was the reference to A not superfluous but that deleting it meant that the
amended indictment was “no indictment” at all and the district court lacked
jurisdiction to try the petitioner for deceiving B. 

.
    10
       Another indictment case preceded Bain. See Ex parte Wilson, 

,

, 

 (1885). The primary question in Wilson was whether
possessing a counterfeit federal security was an “infamous crime” that, under
the Fifth Amendment, could be charged only by a grand jury presentment or
indictment. 

. Having determined that it was and that the Fifth
Amendment applied, the Court stated, in a sentence, that the district court
“exceeded its jurisdiction” in sentencing the petitioner to a penitentiary. 

. As a result, the petitioner could seek federal habeas relief.
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         In 1867, Congress authorized persons held in state
custody to petition for a federal writ of habeas corpus. The
Habeas Corpus Act of Feb 5, 1867, ch 28, § 1, 14 Stat 385.
Persons convicted of crimes in state court could, as a general
rule, appeal to a state appellate court to correct any errors
that might have led to their conviction. Marc M. Arkin,
Rethinking the Constitutional Right to a Criminal Appeal,
39 UCLA L Rev 503, 527 (1992). As a result, many of the
early federal habeas cases arising out of state convictions
focused on whether persons held in state custody had to
exhaust their state remedies before seeking federal habeas
relief and what deference, if any, a federal court owed a state
court’s resolution of federal issues. See, e.g., Ex parte Royall,

, 

, 

 (1886).
         For the most part, the substantive grounds for
reviewing state convictions on federal habeas corpus initially
paralleled those for reviewing federal convictions. However,
in 1915, the Court began expanding the grounds for issuing
a federal writ of habeas corpus to review state and federal
convictions. See Frank v. Magnum, 

, 

, 

 (1915) (due process violation for trial dominated by mob violence); accord Johnson v. Zerbst, 

, 

, 

 (1938) (waiver of
counsel). Initially, the Court characterized the new grounds
for issuing the writ as ones that deprived a court of jurisdiction and, as a result, concluded that those grounds were
cognizable on federal habeas. See Johnson, 

-
68; Frank, 

.
         In 1942, the Court recast the reasoning in Johnson,
decided four years earlier, and explained that a petitioner
need not show that an essentially identical issue was a jurisdictional defect in order for it to be cognizable on habeas.
See Waley v. Johnson, 

, 

,

 (1942) (per curiam) (coerced guilty plea). The
Court reasoned that, when the facts relied on to establish a
federal constitutional violation “are dehors the record and
their effect on the judgment was not open to consideration
and review” on direct appeal, “the use of the writ in the federal courts to test the constitutional validity of a conviction
for a crime is not restricted to those cases where the judgment of conviction is void for want of jurisdiction of the trial
188                                                           State v. Keys

court to render it.” 

 Rather, federal habeas jurisdiction
extends to “those exceptional cases where the conviction has
been in disregard of the constitutional rights of the accused,
and where the writ is the only effective means of preserving
[the petitioner’s] rights.” 

.
         In 1953, less than one year after this court issued
its decision in Huffman, the Court effectively eliminated
many of the restrictions on federal habeas corpus review of
state criminal convictions. See Brown v. Allen, 

,

, 

 (1953).11 As the decision in Brown
confirmed, a writ of federal habeas corpus is available when
a criminal judgment is based on a federal constitutional
error, without regard to whether the error can be recast as
jurisdictional.
         In the federal courts, the longstanding common-law
rule that a federal writ of habeas corpus was available only
if a court lacked jurisdiction over the subject or the person
was “softened by a long process of expansion of the concept of
a lack of ‘jurisdiction,’ ” in large part as a result of a federal
criminal defendant’s inability initially to appeal his or her
conviction. Henry M. Hart, Jr., Foreword: The Time Chart
of the Justices, 73 Harv L Rev 84, 104 (1959). Jurisdiction,
as the federal courts used that term in the late nineteenth
century to determine whether an issue was cognizable on
federal habeas, bore little resemblance to the concept of subject matter jurisdiction. As another commentator explained,
   “Once the concept of ‘jurisdiction’ is taken beyond the
   question of the court’s competence to deal with the class of
   offenses charged and the person of the prisoner, it becomes
   a less than luminous beacon. How is one to tell which errors
   cause a court to lose jurisdiction and which do not, which
   render a judgment void and which do not?”
Bator, 76 Harv L Rev at 470-71 (footnotes omitted).12
     11
        We say “effectively” because the majority decision in Brown is somewhat
opaque. However, the decision has been viewed as removing many, although not
all, common-law limitations on federal habeas review of state and, by extension,
federal convictions.
     12
        Bator sought to cabin the expansion of jurisdiction in the late nineteenth century cases to instances in which a federal conviction was based on
an unconstitutional statute or a court had exceeded its authority in imposing a sentence. See Bator, 76 Harv L Rev at 471. However, the cases do not
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          Both Professors Hart and Bator recognized that,
as federal habeas corpus evolved in the late nineteenth and
early twentieth centuries, the federal courts’ use of the term
“jurisdiction” was not limited to a court’s “competence to
deal with the class of offenses charged and the person of the
prisoner.” 

 Rather, they used phrases, such as a “lack of
jurisdiction” and its corollary “a void judgment,” to express
a conclusion that the alleged error was cognizable on federal habeas. That much follows from the contrast between
Johnson’s obligatory nod at the end of the opinion to “a lack
of jurisdiction” to justify issuing a federal writ of habeas
corpus and Waley’s recognition four years later that a court
need not label an essentially identical error as jurisdictional
to reach it on federal habeas.
          We need not determine the precise contours of the
phrases “lack of jurisdiction” or “a void judgment,” as the
Court used those phrases in Lange, Siebold, Snow, and
Bain, to resolve this case. It is sufficient to recognize that
the Court used those phrases in federal habeas cases in
the late nineteenth century to express a conclusion that an
issue was cognizable on federal habeas. It follows that Bain’s
use of the term “jurisdiction” in 1887 and Huffman’s repetition of that term in 1952 are best understood as standing
only for the proposition that the particular claims raised in
those cases were cognizable respectively in federal and state
habeas corpus proceedings.
          To be sure, a lack of subject matter jurisdiction was
one of the issues that was cognizable, as a common-law matter, in state and federal habeas. However, it is difficult to
read Huffman as holding that a defective waiver deprives
a court of subject matter jurisdiction, as opposed to merely
opening the door to state habeas. Subject matter jurisdiction
cannot be waived. C. M. H., 

; State v. Goodall,

expressly state those limiting principles, and Bator recognized that the limiting principles he identified did not explain the Court’s expansion of “jurisdiction” in Wilson and Bain to defective indictments. 

 In any event, the
important point that both Hart and Bator recognized is that, in the context
of nineteenth-century federal habeas decisions, the Court used the phrase
“a lack of jurisdiction” to describe a class of errors that were cognizable on
habeas; it did not use the phrase to describe a limit on the federal courts’
competence to deal with the class of offenses charged or the person of the
petitioner.
190                                             State v. Keys

, 

 (1916); Evans v. Christian, 

 (1873). We hesitate to interpret Huffman, as defendant urges us to do, as holding that a grand jury’s probable
cause determination is an essential component of a circuit
court’s subject matter jurisdiction while simultaneously
recognizing that that determination can be waived. Those
two propositions are antithetical. In our view, the more logical reading of Huffman is that this court recognized that
an invalid waiver of an indictment will divest a court of
authority (but not subject matter jurisdiction) to try a case.
As such, the court’s lack of authority will be sufficient, as
Huffman held, to state a cognizable state habeas claim but
not sufficient, as defendant argues, to deprive a court of subject matter jurisdiction.
         One final contextual clue supports that reading of
Huffman. In 1931, more than 20 years before Huffman followed the rule from Bain, the federal courts recognized that
the Fifth Amendment right to have a grand jury make a
probable cause determination is a personal right that can
be waived, like the right to counsel or the right against double jeopardy. See United States v. Gill, 55 F2d 399, 402-03
(D NM 1931). In doing so, the federal courts declined to read
Bain for the proposition that a grand jury’s probable cause
determination, reflected in an indictment, is a component of
a court’s subject matter jurisdiction that cannot be waived.
See 

         Moreover, in 1944, the United States Supreme
Court promulgated Rule 7 of the Federal Rules of Criminal
Procedure, which permits federal criminal defendants to
waive indictment. The commentary to that rule cites Gill
and thus confirms a more limited understanding of Bain.
See Rule 7, Fed R Crim P (1944) (Commentary); see also
Cotton, 

 (overruling Bain “[i]nsofar as it held
that a defective indictment deprives a court of [subject matter] jurisdiction”).
        We accordingly conclude that Huffman did not
hold that an invalid waiver of an indictment will deprive
a court of subject matter jurisdiction. Rather, Huffman
stands for the more limited proposition that an invalid
waiver of an indictment was the kind of error that was
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cognizable, as a matter of state common law, in state habeas.13
And, after the enactment of Oregon’s Post-Conviction
Hearing Act in 1959, the common-law limitations on state
habeas that Huffman addressed in 1952 became largely
irrelevant. See Chavez, 

 (explaining that the
1959 state post-conviction act simplified the procedure for
bringing a state collateral challenge to a criminal conviction by replacing state common-law writs, such as habeas
corpus and coram nobis, with a single statutory cause of
action).
        III.    TEXT AND HISTORY OF ARTICLE VII
                   (AMENDED), SECTION 5
         Defendant advances an alternative argument. He
contends that the text and history of Article VII (Amended),
section 5, lead independently to the conclusion that an
invalid waiver of a preliminary hearing will deprive a court
of subject matter jurisdiction. We address that argument
briefly.
A.    Text
        Three subsections of Article VII (Amended), section 5,
bear on defendant’s alternative argument. They provide:
        “(3) Except as provided in subsections (4) and (5) of
     this section, a person shall be charged in a circuit court

    13
       As a preface to its consideration of the petitioner’s defective waiver argument, Huffman cited several state habeas cases that, following the practice in
the federal habeas cases, considered whether an error in sentencing, double jeopardy, and the like deprived a court of “jurisdiction.” See 

. Those
cases either held or assumed that the alleged errors were “jurisdictional” and
thus were cognizable on state habeas. See Macomber v. State et al., 

,

 (1947) (whether the trial court lacked jurisdiction to sentence the
defendant as a recidivist); Kelley v. Meyers, 

, 

 (1928) (whether
the trial court lacked jurisdiction to impose an allegedly cruel and unusual sentence); Ex parte Foster, 

, 

 (1914) (holding that a sentence
that differed in kind from one authorized by statute was void but a sentence
that exceeded the one authorized by statute was voidable); Ex parte Tice, 

, 

 (1897) (explaining that a claim of double jeopardy deprived
a court of jurisdiction to take further action). If defendant were correct that an
invalid waiver of an indictment deprives a court of subject matter jurisdiction, as
opposed to merely opening the door to state habeas, then presumably the errors
considered in those earlier state habeas cases also would deprive courts of subject
matter jurisdiction.
192                                                 State v. Keys

   with the commission of any crime punishable as a felony
   only on indictment by a grand jury.
      “(4) The district attorney may charge a person on an
   information filed in circuit court of [sic] a crime punishable
   as a felony if the person appears before the judge of the circuit court and knowingly waives indictment.
      “(5) The district attorney may charge a person on an
   information filed in circuit court if, after a preliminary
   hearing before a magistrate, the person has been held to
   answer upon a showing of probable cause that a crime punishable as a felony has been committed and that the person
   has committed it, or if the person knowingly waives preliminary hearing.”
Or Const, Art VII (Amended), § 5(3) - (5).
         The text of Article VII (Amended), section 5(3) - (5),
sets out the procedures for charging a person with a crime
punishable as a felony. As defendant acknowledges, those
three subsections do not mention jurisdiction. He contends, however, that, because those subsections define the
procedures for invoking the court’s jurisdiction to decide
criminal cases, compliance with those procedures is itself
jurisdictional.
         Defendant’s argument fails to distinguish two separate aspects of Article VII (Amended), section 5(3) - (5). As
discussed above, subsections (3) through (5) require both
a charging instrument (an indictment or an information)
and a check on the district attorney’s charging authority (a
grand jury’s determination of probable cause, a magistrate’s
determination of probable cause, or a defendant’s waiver of
that check). Defendant’s jurisdictional argument focuses
on the former requirement—the presence of a charging
instrument—and it echoes our recent reaffirmation in
C. M. H. that whether a court acquires subject matter
jurisdiction can depend on the allegations in a petition or
complaint and, by extension, a charging instrument. See
C. M. H., 

.
        Even if we assume that the presence of a charging
instrument that alleges the commission of a crime is a
necessary component of a circuit court’s subject matter
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jurisdiction, the difficulty with defendant’s textual argument is that there is no dispute that the information in this
case alleged that defendant had committed the offense of
possessing methamphetamine. Indeed, defendant has not
claimed that the information in this case was defective in
any respect. Cf. Terry, 

 (holding that a defect
in a charging instrument does not deprive a court of subject
matter jurisdiction). Rather, defendant’s argument focuses
on a related but separate issue—whether a defective waiver
in the constitutionally required check on a district attorney’s
charging authority will deprive a court of subject matter
jurisdiction.
         We considered a similar issue in Figueroa v. BNSF
Railway Co., 

, 

 (2017). The issue in
that case was whether a statute that authorized a plaintiff
to initiate litigation by serving the registered agent for an
out-of-state defendant gave a state court personal jurisdiction over the defendant. We explained that jurisdiction and
the process for initiating litigation address separate issues.
We reasoned:
   “Textually, [the statute at issue in Figueroa] addresses
   service, not jurisdiction. Jurisdiction refers to the forum’s
   authority to adjudicate claims against a defendant. Service
   refers to the process by which a defendant over whom the
   court has jurisdiction is brought before the court. Both are
   necessary for a court to issue a binding judgment, but the
   two concepts are not synonymous.”

 (citations omitted).
         The same reasoning applies here. Subject matter
jurisdiction refers to a court’s “power to deal with the general subject involved.” Garner, 

 (internal quotation marks omitted); accord Terry, 

 (“Subject
matter jurisdiction defines the scope of the proceedings that
may be heard by a particular court of law ….”). Article VII
(Amended), section 5(3) - (5), defines how an action over
which a circuit court has jurisdiction can be initiated and
provides a check on the district attorney’s charging authority. To paraphrase Figueroa, the question whether the allegations in a charging instrument gave a circuit court subject matter jurisdiction to adjudicate criminal charges is
194                                                            State v. Keys

separate from the question whether the defendant’s waiver
of a check on a district attorney’s charging authority was
defective.14
B.    Context and history
          Technically, only Article VII (Amended), section 5(5),
is at issue in this case. Subsection (5), however, authorizes a
person to knowingly waive a preliminary hearing in terms
that echo, at least in part, those used in subsection (4) for
waiving an indictment, and subsection (5) identifies an
alternative charging procedure to those set out in subsections (3) and (4). We accordingly address not only the history
of Article VII (Amended), section 5(5), but also the text of
Article VII (Original) and the various amendments to that
article that bear on the three subsections that currently set
out the procedure for charging felonies.
      1.   Article VII (Original)
         Article VII (Original), section 9 (1859), vested “[a]ll
judicial power, authority, and jurisdiction” in the circuit
courts unless the constitution or laws vested jurisdiction
exclusively in some other court. At the same time, Article VII
(Original), section 18 (1859), directed the legislature to provide for a seven-person grand jury and specified how many
grand jurors must concur to find an indictment. Original
section 18 also provided, however, that the “Legislative
Assembly may modify or abolish grand Juries.” Or Const,
Art VII (Original), § 18 (1859).
         The state argues, and defendant does not dispute,
that the legislature’s authority, under original section 18,
to abolish grand juries and provide for a different charging
procedure demonstrates that a circuit court’s subject matter jurisdiction to hear criminal cases, set out in original
section 9, was not dependent on criminal charges being initiated by a grand jury indictment, as opposed to some other

    14
       As explained above, there is no dispute that, in this case, a constitutionally permissible charging instrument alleged that defendant had committed a
criminal offense. This case accordingly does not require us to decide whether
the complete absence of a charging instrument would present a jurisdictional
problem.
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charging instrument.15 The question accordingly becomes
whether the various amendments to Article VII demonstrate an intent to depart from that original understanding.
     2. The 1908 amendment
         The 1899 Legislative Assembly eliminated the
requirement that crimes be charged by a grand jury indictment and permitted crimes to be charged solely by a district attorney’s information. See State v. Haji, 

, 

 (2020). In 1908, the people responded by
amending Article VII (Original), section 18, to require that
“any crime or misdemeanor” be charged in circuit court by a
grand jury indictment. See Or Laws 1909, p 12. As amended
in 1908, Article VII (Original), section 18, provided:
    “No person shall be charged in any Circuit Court with the
    commission of any crime or misdemeanor defined or made
    punishable by any of the laws of this State, except upon
    indictment found by a grand jury. Provided, however, that
    any District Attorney may file an amended indictment
    whenever an indictment has, by a ruling of the court, been
    held to be defective in form.”

 (emphasis in original).
         The proponents of the measure explained that district attorneys had unchecked power to initiate criminal
prosecutions by information and could blacken a person’s
reputation, even when the district attorney did not intend
to pursue the charges alleged in the information. Official
Voters’ Pamphlet, General Election, June 1, 1908, 116. The
proponents reasoned that, left unchecked, district attorneys
could initiate a criminal proceeding “to serve some political
purpose, private revenge or the scheme of a ring hostile to
the victim. It is un-American. It is too much like the despotism of Russia and it is too much power to be vested in the
hands of any one man.” 

 They noted that, in England,
“no man can be brought to trial save on an indictment by a
grand jury. The fathers of our country were careful to write
    15
       Of course, a failure to follow statutorily or constitutionally required
charging procedures can result in an error that leads to the case being dismissed
by the trial court or, if the issue were properly before an appellate court, the
judgment being reversed on appeal. Our focus here is only on whether the error
deprives a court of subject matter jurisdiction.
196                                              State v. Keys

that into the United States Constitution, but it is not yet an
article of the State Constitution.” Id. at 116-17. The proponents warned that, without a state constitutional grand jury
requirement, the “time will inevitably come when wealth
and great interests will seek to shut the mouth of every man
who is against them; and if we may judge the future by the
past, the powerful interests are apt to control the political
offices, including the district attorney.” Id. at 117.
         Neither the text of the 1908 amendment nor the
reasons offered for its adoption suggest that the requirement that a grand jury determine probable cause was
viewed as an essential component of a circuit court’s subject
matter jurisdiction. Rather, the reason for requiring that
determination was to check the district attorney’s charging
authority. The voters may well have understood that some
charging instrument was necessary to invoke the circuit
court’s subject matter jurisdiction; however, nothing in the
text or the history of the 1908 amendment suggests that
they understood that the check they added—a grand jury’s
probable cause determination—was an essential component
of subject matter jurisdiction.
        Defendant argues that the 1908 amendment was
modeled on the Fifth Amendment Presentment Clause,
and he relies on State v. Stockfleth/Lassen, 

,

 (1991), for the proposition that, “when Oregon
adopts the statute of another jurisdiction, the legislature is
presumed also to adopt prior constructions of that statute by
the highest court of that jurisdiction.” It follows, he reasons,
that, when the voters amended Oregon’s constitution in
1908, they should be presumed to have adopted not only the
Fifth Amendment Presentment Clause but also the United
States Supreme Court’s interpretation of that clause in
Bain.
         Defendant’s argument is problematic. We have
applied the presumption stated in Stockfleth/Lassen only
when the text of the statute that the Oregon legislature
adopted was “virtually identical” to the text of the other
jurisdiction’s statute. See Stockfleth/Lassen, 

 (stating that requirement); Clackamas Cty Assessor v.
Village at Main St. Phase II, 

, 245 P3d
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81 (2010) (applying that requirement). While the texts
of the 1908 amendment to Article VII (Original) and the
Fifth Amendment Presentment Clause both draw from the
same Anglo-American tradition, their texts could hardly
be described as “virtually identical.”16 We thus have little
basis for presuming that the voters intended to adopt Bain’s
holding. Beyond that, as explained above, Bain held only
that an erroneously amended indictment was a “jurisdictional” issue that was cognizable on habeas. Even if we presume that the voters adopted Bain when they amended the
Oregon Constitution in 1908, that does not establish that
they intended to go beyond that holding and establish that a
defective indictment deprives a circuit court of subject matter jurisdiction.
     3. The 1910 amendments to Article VII
         In 1910, the voters substantially amended
Article VII (Original). The 1910 amendments, however,
bear only indirectly on the issue that this case presents.
As a result of the 1910 amendments, some sections of
Article VII (Original) “were not incorporated into or made
a part of [Article VII (Amended)].” State v. Farnham, 

, 

 (1925). Those unincorporated sections of
Article VII (Original) retained no constitutional force after
the 1910 amendments. 

. However, as a result
of Article VII (Amended), section 2 (1910), the unincorporated sections remained in effect as statutes that could be
amended by the legislature. 

.
    16
       The Fifth Amendment Presentment Clause provides: “No person shall be
held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” US Const, Amend V. The 1908 amendment
to Oregon’s constitution, by contrast, was not limited to “capital, or otherwise
infamous crime[s]” but applied to “any crime or misdemeanor defined or made
punishable by any of the laws of this State.” Or Const, Art VII (Original), § 18
(1908). The only textual limit to the 1908 amendment’s application turned on
whether the charge was initiated in a “circuit court,” as opposed to some other
court. See State v. Langworthy, 

, 

 (1909), reh’g den,

, 

 (1910) (holding that the 1908 amendment did not apply to
a misdemeanor charged initially in justice court and appealed to circuit court).
Finally, the Presentment Clause permits two types of charging instruments
(presentments and indictments) while Oregon’s 1908 amendment permitted only
indictments. Cf. Renée B. Lettow, Reviving Federal Grand Jury Presentments, 103
Yale L J 1333, 1334 (1994) (explaining that presentments are charges initiated
by the grand jury while indictments are typically initiated by the prosecutor and
submitted to the grand jury).
198                                                          State v. Keys

         The 1910 amendments, however, did incorporate
some sections of Article VII (Original). See State v. Tollefson,

, 

 (1932). The incorporated sections
of Article VII (Original) were not repealed but remained in
effect as parallel, operative constitutional provisions. See 

. Because Article VII (Amended), section 5 (1910),
incorporated Article VII (Original), section 18 (1908), both
original section 18 (1908) and amended section 5 remained
in effect after the 1910 amendment. Id.
      4. The 1927 amendment
         In 1927, the voters amended Article VII (Original),
section 18 (1908), to permit a person to waive indictment. See
Official Voters’ Pamphlet, Special Election, June 28, 1927,
8.17 When the 1927 amendment was referred to the people,
the proponents explained that the amendment was intended
“to save time and expense in disposing of the cases of criminals who desire to plead guilty.” Id. at 9. They observed
that, under the then-current system, a person charged with
a crime or misdemeanor had to be bound over to the grand
jury and await an investigation by that body. Id. Moreover,
a grand jury investigation could take months to complete,
especially in counties with few court terms each year. Id.
The proponents reasoned that, because most criminal cases
were resolved by guilty pleas, requiring grand jury investigations in every case often resulted in unnecessary costs to
the counties and unnecessary burdens on witnesses who had
to travel to testify before the grand jury. Id. The amendment
accordingly permitted a person accused of a crime or misdemeanor to waive indictment and be prosecuted on a district attorney’s information, as long as the waiver occurred
before a circuit court judge and was knowing.
        The 1927 amendment requires a charging instrument (either an indictment or an information), but it treats

    17
       The voters added the following amendment to Article VII (Original), section 18:
    “provided further, however, that if any person appear before any judge of
    the circuit court and waive indictment, such person may be charged in such
    court with any such crime or misdemeanor on information filed by the district attorney.”
See Voters’ Pamphlet, June 28, 1927, at 8.
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the right to a grand jury determination of probable cause
as a personal right of a defendant, which a defendant can
choose to assert or waive. That is, the amendment does not
treat the right to a grand jury’s probable cause determination as an essential component of a court’s subject matter
jurisdiction, which cannot be waived. See Goodall, 

 (subject matter jurisdiction cannot be waived); Evans, 

 (same). To be sure, the voters could have intended
to adopt a constitutional amendment in 1927 that altered
the well-established rule that subject matter jurisdiction
cannot be waived. But nothing in the text or the explanation
for the amendment suggests they intended such a change.
The more likely explanation is that the 1908 amendment
did not make a grand jury’s determination of probable cause
a jurisdictional prerequisite, and the 1927 amendment permitting a waiver of that personal right did not conflict with
the rule that subject matter jurisdiction cannot be waived.
    5.   The 1958 amendment
          The 1958 Legislative Assembly submitted a proposed amendment to Article VII to the voters. See Official
Voters’ Pamphlet, General Election, Nov 4, 1958, 25. The
proposed amendment made two changes to Article VII.
First, it authorized the legislature to provide for more than
one grand jury in a county to conduct special investigations. 

 Second, it repealed Article VII (Original), section
18 (1927), and integrated the provisions in that section into
Article VII (Amended), section 5. 

        Most of the discussion in the Voters’ Pamphlet
focused on the first change. Id. at 26-27. The second
change received far less attention. The official explanation
described the second change as follows: “This measure also
rearranges for purposes of convenience and clarity sections
of the Constitution dealing with indictments, but makes no
change in existing constitutional law other than to allow the
use of more than one Grand Jury.” Id. at 26. The proponents
of the measure described the second change similarly. After
discussing the first change, they explained:
      “The only other change made by this proposition is
   purely technical. Section 5 of Amended Article VII of the
   Constitution, as adopted in 1910, was identical with Section
200                                              State v. Keys

   18 of Original Article VII. In 1927 the voters approved an
   amendment to Section 18 of the Original Article, which
   had never been repealed. This measure makes the same
   amendment, allowing waiver of indictment and plea to an
   information, to Section 5 of the Amended Article VII, and
   repeals Section 18 of the Original Article, since it then
   would be completely repetitious.”
Id. at 27.
         Defendant argues that, because the voters repealed
Article VII (Original), section 18 (1927), and reenacted
Article VII (Amended), section 5, as amended, we should
presume that they intended to adopt this court’s decision in
Huffman unless the constitution’s wording clearly shows a
contrary purpose. Defendant draws that presumption from
a 1929 statutory construction case, Overland v. Jackson,

, 

 (1929). Whatever the validity of Overland in interpreting statutes, we have focused
more closely on the history of constitutional amendments in
determining the voters’ intent in reenacting existing constitutional provisions.
         This court explained in Haji that, “when the disputed text of an amended constitutional provision consists
of text reincorporated from a prior version of the constitutional provision, this court will examine the enactment of
that prior version in our effort to determine the meaning
of the amended provision.” 

. That is, we look
initially and primarily at what the provision meant when
it was originally enacted. Intervening court interpretations
will inform our understanding of the reincorporated provision, but we have not treated them as dispositive. See State
v. Reinke, 

, 

, adh’d to as modified on recons, 

, 

 (2013) (explaining
that this court’s prior interpretation of the word “crime” in
Article VII (Amended), section 5 (1929), “forms the backdrop against which the 1974 amendment to that article was
adopted and informs the meaning of the word ‘crime’ in the
1974 amendment”).
         As explained above, the 1927 amendment does not
reflect an intent to make a defective waiver of an indictment
a jurisdictional issue. And nothing in the history of the 1958
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amendment leads to a different conclusion; that is, the history of the 1958 amendment provides no reason to think that
the voters understood that, in “rearrang[ing]” the existing
terms of Article VII, they were altering the understanding of the 1927 amendment to original section 18. Beyond
that, even if we assume that the voters intended to approve
Huffman’s holding when they amended Article VII in 1958,
Huffman held only that a defective waiver was a cognizable
“jurisdictional” issue in a state habeas proceeding. It did not
establish the separate and distinct proposition that a defective waiver of an indictment will deprive a circuit court of
subject matter jurisdiction.
     6.    The 1974 amendment
         In 1974, the legislature referred a proposed amendment to Article VII (Amended), section 5, to the voters. The
proposed amendment repealed the then-existing section 5
and replaced it with a new section 5. See Official Voters’
Pamphlet, General Election, Nov 5, 1974, 13-17. Although
the 1974 amendment replaced section 5 in its entirety, it
made primarily one substantive change to former section 5.
It added a new subsection that authorized an additional procedure for charging felonies.18 The new subsection provided
that, in addition to the existing procedure for charging a felony (a grand jury indictment or an information accompanied
by a waiver of indictment), a district attorney could charge
a felony by an information accompanied by a preliminary
hearing before a magistrate to establish probable cause or
by a knowing waiver of that right. 

         The official explanation for the amendment stated
that it gave district attorneys an additional, more flexible
charging option. Id. at 13. It told the voters that the reason for requiring either a preliminary hearing or a knowing
waiver was to make certain either that “some disinterested
judicial officer (the magistrate) has determined that probable cause exists” or “where [the preliminary] hearing has
been waived, to at least insure the reasonable implication
that there is probable cause to conclude that a felony has
    18
       The 1974 amendment changed former section 5 substantively in another
respect. As amended, section 5(3) - (5) applies only to felonies while former section
5 applied to “any crime or misdemeanor.”
202                                              State v. Keys

been committed by the accused or the accused would have
asked for a hearing.” Id. Put differently, the explanation
made clear that a probable cause hearing before a magistrate and a waiver of that right provide coequal checks on a
district attorney’s charging authority.
         Although defendant argues that the 1974 amendment approved Huffman, the only reason that he identifies
for that argument is that Huffman preceded the amendment.
Nothing in the text or history of the 1974 amendment suggests that the voters would have understood that they were
approving Huffman. Moreover, the 1959 post-conviction
act mooted the issue that Huffman had decided—whether
a defective waiver of a preliminary hearing is cognizable
in state habeas. If the voters were aware of Huffman, they
also presumably would have been aware that the issue that
Huffman decided no longer mattered. In adopting the 1974
amendment, the voters did not endorse the notion that a
defective waiver of a preliminary hearing deprives a court
of subject matter jurisdiction.
         We note one final contextual clue that bears on
defendant’s argument. In Terry, this court held that, if a
defendant has been indicted for a felony, a defective indictment does not divest a circuit court of subject matter jurisdiction. 

. It follows that a defective waiver of
an indictment or a preliminary hearing does not divest a
circuit court of subject matter jurisdiction either. Although
defendant argues that Terry is inconsistent with older
Oregon cases, we recently observed that, previously, “ ‘judicial opinions sometimes obscure[d] the different meanings
[of jurisdiction] by dismissing for ‘lack of jurisdiction’ without explicitly addressing whether the problem was a lack
of subject matter jurisdiction or only a failure of the particular claim.’ ” C. M. H., 

 (quoting Arbaugh v.
Y & H Corp., 

, 

, 

 (2006); internal quotation marks in Arbaugh omitted
by C. M. H.). So too here.
        Our holding today is narrow. In this case, there
was a charging instrument and an apparent waiver of a
preliminary hearing. Accordingly, we need not and do not
decide whether the complete absence of either a charging
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instrument or a waiver would be a jurisdictional problem.
Rather, the only question that this case presents is whether
an invalid waiver of a preliminary hearing deprives a circuit
court of subject matter jurisdiction. For the reasons stated
above, we hold that it does not. Because defendant did not
argue before the trial court that his waiver was invalid, he
can raise that issue on appeal only if he comes within an
exception to the preservation rule. See Peeples, 

. We turn to that issue.

  IV. EXCEPTIONS TO THE PRESERVATION RULE

         Ordinarily, before an issue may be raised and considered on appeal, it must first be presented to the trial
court. Peeples, 

. There are, of course, exceptions to that rule. As we noted in Peeples, “plain error” is
the primary exception. See 

. The court also
noted another exception. It observed that a right may not be
subject to the preservation requirement “due to the unique
nature of the right itself.” 

 at 220-21 (citing State v. Barber,

, 

 (2007)). On review, defendant
relies on the latter exception while he relied on the former
exception in the Court of Appeals.

          We begin with the latter exception, which this court
discussed in Barber. The defendant in Barber had not signed
a written jury waiver, as Article I, section 11, of the Oregon
Constitution requires. This court explained that the “special peculiarity” of the state constitutional right to a jury
trial in criminal cases derives from the fact that the Oregon
Constitution not only recognizes the right but also “specifies the only way in which the right may be lost—viz., by a
written waiver executed before trial commences, together
with trial court consent.” Barber, 

. The court
concluded that, unless both those formal requirements are
satisfied, a criminal defendant will not lose the right to a
jury trial and may object, for the first time on appeal, to
having been tried by the court. 

 As this court “emphasize[d],” however, in Barber, requiring a written waiver of a
criminal jury trial is “unique.” See 

 (using the word
“unique” three times in the same sentence to describe the
right and the procedure for waiving it).
204                                                           State v. Keys

         In this case, defendant argues that, because the text
of Article VII (Amended), section 5(5), specifies that a waiver
of a preliminary hearing must be “knowing,” the right to
a preliminary hearing is one of those unique rights that,
under Barber, may be raised for the first time on appeal.
Article VII (Amended), section 5(5), however, does not specify either the procedure for waiving the right to a preliminary hearing or that only a written waiver will suffice, as
the constitutional text at issue in Barber did. Rather, the
text of section 5(5) specifies only that the waiver be “knowing.” Compare Or Const, Art VII (Amended), § 5(5) (requiring that the waiver of a preliminary hearing be knowing),
with Or Const, Art VII (Amended), § 5(4) (requiring that the
waiver of an indictment be both knowing and occur before
a circuit court judge). Indeed, a knowing waiver is required
for many personal constitutional rights, which do not come
within the class of unique rights identified in Barber. See
Barber, 

 (distinguishing the right to a
criminal jury trial, which will not be lost without a written
waiver, from other personal constitutional rights). We are
not persuaded by the parties’ briefing that there is a textual basis for including waivers of the right to a preliminary
hearing in the “unique” class of rights identified in Barber.19
         Alternatively, defendant argued in the Court of
Appeals that his waiver of his right to a preliminary hearing was not knowing and, as such, was a plain error that
the Court of Appeals should reach. It is unclear from defendant’s briefing in this court whether he believes we should
review the validity of his waiver under the plain error doctrine. However, even if he does, we conclude that the issue is
more appropriately left to the Court of Appeals. As this court
repeatedly has recognized, even when a trial court’s error
is plain, the Court of Appeals retains discretion to decide
whether to reach it. See, e.g., Peeples, 

 (discussing factors that bear on whether the Court of Appeals
should exercise its discretion to reach a plain error); Ailes

    19
       There may be circumstances specific to the waiver in this case that bear
on whether it should be reviewed under the plain error doctrine or perhaps comes
within the class of constitutional rights that, under Barber, do not need to be
raised below. Defendant’s brief on review does not address those circumstances,
and we leave that issue for another day.
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v. Portland Meadows, Inc., 

, 

(1991) (same).
         In this case, the Court of Appeals never decided
whether it should exercise its discretion to reach the validity of defendant’s waiver. Its conclusion that the error was
jurisdictional foreclosed its consideration of that discretionary issue. We also note that the briefing before this court
has appropriately focused on whether the error was jurisdictional, not on whether it was the type of error that the Court
of Appeals should exercise its discretion to reach under the
plain error doctrine. In these circumstances, we think that
the better course is to reverse the Court of Appeals decision
and remand this case to the Court of Appeals so that it can
consider, in the first instance, whether it should exercise its
discretion to reach the validity of defendant’s waiver under
the plain error doctrine. State v. Vanornum, 

,

 (2013) (taking the same approach).
        The decision of the Court of Appeals is reversed,
and the case is remanded to the Court of Appeals for further
proceedings.