- About NCO
A ruling has been made in the ongoing feud between the City of Astoria and the District Attorney elected to serve in Clatsop County, Joshua Marquis. Yet, the issue is far from settled with many questions remaining. What was the battle over? Who is going to be prosecuting what? And which court is the Astoria Police Department going to cite the accused to appear in? Whatever the answers, for now both sides have declared a victory.
Blair Henningsgaard, the attorney for the City of Astoria, says that his interpretation of the decision is that the judge is not giving the city exclusive rights to the DUIIs that occur within the city limits, but the Judge did not give District Attorney Marquis the authority to take cases to Clatsop County Circuit Court, either.
Henningsgaard stated, “Oregon Law allows city police officers to file their cases either in municipal or circuit court. Judge Norblad’s decision does not change this.” He added, “In fact, his decision says he does not have that authority.”
Marion County Judge Norblad states in his decision: “The request is to declare the district attorney, as opposed to the city attorney, the appropriate person to prosecute DUII cases within the limits of the city.”
“It is this court’s opinion the district attorney controls and directs prosecutions of DUIIs in all the courts in his county, and in this case, the city of Astoria. This would include all DUIIs filed under state statute or city ordinance. Further it is this court’s opinion that the district attorney under ORS 221.339(5) can allow the prosecutions be handled by the city attorney,” Norblad wrote.
District Attorney Marquis has stated that he expects all the DUII cases to now be sited to Circuit Court. Marquis said that if they are sited to Municipal Court he will dismiss the cases from Municipal Court and refile them in Circuit Court so that they are done in a *court of record. Henningsgaard refutes Marquis assertion, declaring “DAs can not dismiss cases,” and clarifies, “Judges dismiss cases.”
Henningsgaard interpreted Norblad’s decision to be even more significant, stating, “ORS 8.660 provides that the DA shall attend the terms of all courts having jurisdiction of public offenses and conduct the prosecution therein. Largely for historical reasons the City’s position has been that the term “all courts having jurisdiction of public offenses” did not include municipal courts. No District Attorney has ever undertaken the responsibility of prosecuting cases that are filed in Municipal Court. Judge Norblad decided that ORS 8.660 applies to municipal court.”
Henningsgaard continues, “Therefore, I believe the upshot of this decision is that the District Attorney will be obligated to prosecute criminal cases filed in municipal court. This means all criminal cases, DUIIs and other misdemeanors.” Furthermore, Henningsgaard emphasized, “Oregon law does not allow a District Attorney to dismiss or decline to prosecute a case.”
In the article referred to by OPB, Marquis stated, “I really hope the city of Astoria will now work with me on this and not generate any further legal costs on either side. I hope we can put our differences aside. The Astoria Police Department is an excellent police department and they do excellent work. We work with them all the time so there should be no reason that we can’t get these cases prosecuted.”
Johnston, in his email, concurs with Marquis’ assessment of the Astoria Police Department and its relationship with the District Attorney’s office, writing, “The official position of the Astoria Police Department is that we will aggressively pursue and investigate drivers who operate motor vehicles while under the influence of intoxicants. We will cite those drivers into the appropriate court and participate, in the most professional manner possible, with the prosecutor prosecuting the case. The Department enjoys a professional relationship with both the District Attorney’s Office and the City Attorney’s Office. We will cooperate fully with both offices in the prosecution of crimes.”
According to Henningsgaard, the Municipal Court handles between 50 and 60 DUII cases a year. The fines from these cases are used for a substantial part of paying for Municipal Court costs as they are the principal part of the cases heard and generate the most revenue. If it loses the DUII cases to the Circuit Court it would have to split the fines from penalties associated with the DUIIs with the State of Oregon after paying $60 per case off the top.
Johnston gave the number of DUII citations that the Astoria Police Department have written out as follows: 75 DUII citations year to date in 2012; in the calendar year of 2011 there were 91 citations; in 2010 there were 84 citations; 2008 was a big year with 192 citations; and 2007 saw 166 citations written. “As you can see,” Johnston commented, “it varies substantially year to year.”
When asked if Marquis successfully showed how he handles cases differently than the city’s prosecutor Henningsgaard replied, “No, he made no effort to do so. In fact, when the District Attorney was asked for evidence that would support this type of claim, he refused to provide it and continues to refuse to provide any evidence that he handles cases differently than municipal court. From what I understand, the DA’s office has made exactly the same types of plea arrangements that he has criticized former municipal court prosecutors for making.”
While still avoiding the issue regarding how he handles DUII cases different than the City’s prosecutor, District Attorney Marquis responded in an email, “I have made it very clear that the approximately 25 non-diversion eligible DUII cases that we would assume each year will require no additional staff or funding. I have made these representations as recently as May 8th to the Board and Budget Committee.” Marquis claims his numbers come from a presentation made by Henningsgaard at a March 31, 2011, presentation to the House Judiciary Committee.
However, the only way for those 25 cases to be determined is for all of DUII citation cases to be examined by an attorney. According to the Oregon Judicial Department a person who is guilty of Driving Under the Influence of Intoxicants must meet specific guidelines before being admitted into the Diversion program. In order to get to that phase in the proceeding, someone from Marquis office will have had to vet the DUII citations to see which ones are the non-diversion eligible DUII cases. Hence, Henningsgaards practical solution of citing Astoria’s DUIIs through the Municipal Court with Marquis prosecuting them all there.
The other alternative is having cases bounce back and forth between the two courts as Marquis’ staff searches through hundreds of citations for the 25 cases a year he feels is all his office will be handling. Marquis has not shared his plan to cull the 25 cases out of the one or two hundred DUIIs that the APD cite.
Marquis denies that Clatsop County will incur any cost for his staff to handle the additional DUII cases coming from Astoria, ranging from 60 to 192 cases according to Henningsgaard and Chief Johnston and the potential of even more should Henningsgaard’s interpretation of Norblad’s ruling be correct. While the state covers its District Attorneys’ salaries the counties are responsible to staff the District Attorneys’ offices and pay for the running of them.
According to Tom Bennett, Community Relations Coordinator for Clatsop County, the county has not received any information from the District Attorney on the Municipal Court DUII cases. Currently, the District Attorney’s Department is comprised of a full time staff of 15.9 employees.
While Astoria, through its Municipal Court, and the state, through its Circuit Court, will share in the fines collected from the DUIIs, Clatsop County will get virtually none of these funds, even in the event that resources provided by Clatsop County are used to prosecute them, according to Marquis, who repeatedly reiterated that his office would require no additional staffing or funding to handle the cases.
When the question arose regarding Henningsgaard’s differing interpretation of Norblad’s decision Marquis responded, “The only interpretation that matters is Norblad’s.”
* The circuit court is a “court of record,” which means that an official court reporter or special audio or video recording system records every word of most cases except small claims and noncriminal offenses such as violations. The “record” is used in any appeal. Most appeals are “on the record,” which means that the appellate court does not hold a new trial but relies on the record and on oral and written arguments to decide whether the trial court’s decision was proper.