Saturday, May 26, 2012

DA Wins Battle Over DUII Cases

Clatsop County DA wins battle over DUII case jurisdiction

by Thom Jensen KATU News and staff Published: May 25, 2012 at 11:05 PM PDT Last Updated: May 28, 2012 at 2:10 PM PDT. Original story click here.

It's a ruling that could end what critics call a "good ol' boy" system of prosecuting drunken drivers along the Oregon Coast. Prosecutors in Clatsop County have been fighting the city of Astoria for jurisdiction over those cases.

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In the ruling issued Thursday, Circuit Court Judge Albin W. Norblad wrote, "It is this court's opinion the district attorney controls and directs prosecutions of DUII's in all the courts in his county, and in this case, the city of Astoria."

But will the order change the politics of prosecuting repeat offenders?

Ever since anyone in Astoria can remember, drunken driving cases inside the city limits have been handled by the city attorney.

But some say that has caused problems. One woman pointed to how her mom died of an overdose after her mother only received slaps on the wrist for multiple drunken driving arrests that were handled at Astoria’s municipal court. Other people pointed to a mayor who never did any jail time even after getting a third DUII.                

Even after the judge said Astoria needs to handle these cases differently, the judicial turf war continues.

It's a subject that many Astorians are reluctant to talk about publicly, saying it's too political and they don't want to buck the system in the town with a population of only 10,000. Many, however, complained that they believed a "good old boy" system was in place at city court and connected people were getting off easy while others faced stiff punishments.

But for the past two years, District Attorney Josh Marquis has been bucking the system and fighting to take over all DUII cases in Clatsop County. He took the city to court in April and now can claim victory.

"I'm hoping that we can work together on this and that this is over now," he said.

Marquis said he'll make certain everyone gets a fair shake if his office handles the cases.

"It will mean more accountability and more consistency, and whether you get arrested in Cannon Beach or Seaside or on the Megler Bridge, or the old Youngs Bay Bridge or in front of the courthouse, you will be treated the same," he said.

Astoria's mayor has repeatedly refused to talk to KATU News about his DUII's and whether Marquis or the city attorney should handle these cases.

City attorney Blair Henningsgaard was out of town and not available for comment Friday.

Marquis said he's hopeful Henningsgaard will respect the judge's ruling and turn over all drunken driving cases over to his office.

But Henningsgaard told The Daily Astorian he believes the judge's ruling still leaves the cases in the municipal court but with Marquis' office handling them. Marquis made it clear, since he has control of the cases now, he will move all cases to the state court where he is sure everyone will be treated equally.


  1. You should be very proud of yourself. This is an interesting accomplishment.

  2. Josh, can you give us some details about how this will work please? First, in reading the ruling the judge does not say where you must prosecute these cases and some say that you must petition the municipal judge to dismiss the case for refiling in circuit court. Is this accurate? If so and if the municipal judge refuses, what happens?
    Second, if you allow the city prosecutor to prosecute some cases that you have the authority to prosecute, how do you find out about Astoria DUII cases if the Astoria Police continue to file them into the municipal court? Do you have some access to the APD court data stream or the power to issue an enforcable order to the municipal court to disclose this information?
    It would be good if we citizens could see how you will manage this system and, in my opinion, we have a right to that information. I for one would rather hear it from you than read it in the paper, mostly because the local reporter just doesn't have the experience to write an accurate report on a complicated matter.

  3. I am pleased that this controversy may be over soon.
    This is not a personal issue for me. I have been elected to represent the citizens of Clatsop County in criminal cases and this is one of those obligations.

  4. The final order has not been made by the judge yet and although our side prevailed and therefore gets to prepare the order the losing side can, and I presume will, make objections.
    IF the court requires that the cases be started in Muni Court I will likely move them to Circuit to save money, mostly for Astoria PD. In prior cases the Muni Judge has said publicly that he has "no choice" but to dismiss any case if the prosecutor so moves (see Sarah Leloff case). Because Astoria Muni is NOT a court of record any defendant has not just the right of appeal (which they have in Circuit Court) but the right to a "trial de novo" - a whole new trial. That gets very expensive - two sets of trials with officer OT, lawyer, judge, and jury time.
    If the judge agrees I would expect to simply direct that all DUIIs be cited into Circuit Court. Just as we do the hundreds of DUIIs my office handles every year, we would evaluate to see if the person is eligible for diversion (about ha;f of arrestees for DUII are diversion eligible).
    As Judge Norblad;s order clearly says the DA can allow the City Attorney to handle crimes. Since the only dispute was over DUIIs and that is the only "crime" (versus money-making infractions the City has always handled and will continue to handle) that was a matter of dispute. Officers have always had the ability to direct a case to circuit court by simply checking the appropriate box on a citation. Please keep in mind I started this several years ago after Astoria PD officers ca,e to me and my staff and asked us to intercede. I repeatedly asked the city to allow either an anonymous poll of APD officers or even an advisory vote (in 2010 it would have cost nothing to have it on a city-wide ballot). My offer/requests were ignored or rejected.
    To answer your question I do not need to petition the muni court judge for anything. The Supreme Court has ruled that Judge Kaino is not a judge as regulated by the Judicial Fitness Commission and my duty is to prosecute crimes, not infractions. I have consistently said the city will save a lot of money if they keep infractions and hand off DUIIs - like the other 4 municipal courts on Clatsop County have done for some time. City officials conceded on 3/31/11 at the Hosue Judiciary Committee that at best handling DUIIs "is a wash" financially and in materials the CITY submitted at the trial on 4/27/12 they quoted testimony by a former state courts official named Brad Swank who made it very clear that handling cases like DUIIs COST money and were a negative for Muni Courts and handling infractions (speeding tickets and the like) were positive money makers.
    As I said, I REALLY hope that both sides on this dispute can stop paying public money to lawyers and work towards the common goal of equal and fair treatment of all people both as defendants and victims.

  5. It is now June 20th and the APD has arrested about 10 people for DUII since the court decision that requires you to prosecute these cases. Yet, the Daily Astorian has reported nothing on the disposition of these cases.
    What has happened, Josh? Has the APD filed all the cases in Circuit Court as you insisted, or are they still filing them in the Municipal Court for you to prosecute? Obviously, what Steve Forrester wanted is not happening because if it was he would be crowing about it.
    So, what is going on?
    Are we paying you to prosecute DUIIs in Astoria or are we paying the City Attorney or are we now paying for both?
    Thanks for helping us understand this confusing situation.

  6. So, please, what is the answer to the question above? How does this situation that you have created work?

  7. The lawyers for the City of Astoria had three days to object to the wording of the order has prepared by the winning lawyers, the AG's office. They have continued to refuse to agree to the language and apparently continue to try their case in the newspaper (as evidenced by the details of all the letters published). The AG's office are my attorneys and they are much more patient and tolerant than am I. I find it hard to believe there have 10 DUIIs in Astoria in one month that are not felonies, over .25 or in one of the other categories the City has already decided to send them to the DA's Office/Circuit Court. Based on the document filed by the city's attorney with the House Judiciary Committee on 3/31/11 there were 50 total DUIIs filed in 2010 in Astoria Muni Court and about 20 went to diversion.
    As is well known I have twice (before the lawsuit) directed the City to file DUIIs in Circuit Court. They refused/ignored my directive and apparently continue to on the basis the judge's order has not been filed. A person, by example, is not actually convicted under Oregon law, until sentence is handed down and by extention no decision of a court is final until the judge's order if filed - which has not happened as of 6/29/12.

    The DA's office continues to review, file, and prosecute DUIIs including several sent to is by APD. As stated many times previously my office will handle all the DUIIs they send us without asking for any additional expenses or staff. As stated previously when the judge's order is finally signed I would expect the cases to be heard in Circuit Court. Because the Astoria Muni Court is NOT a court of record if a DUII defendant goes to trial and is convicted they have a right to a whole new trial from scratch in Circuit Court (something that just took place with the City prosecuting both cases - winning the case in Muni Court and losing in Circuit). The waste of resources, particularly police officers' time, would make trying cases twice foolish and is another practical reason for the cases being tried - once - in Circuit Court. I have been trying to get the City to do this since March of 2010 and it it takes another month, so be it.

  8. It appears from the Daily Astorian article on 8/10/12 that while you have the authority to prosecute DUII cases filed in the Astoria Municipal Court, you must conduct those prosecutions in that Court unless the Municipal Judge agreed to allow their transfer to Circuit Court. This seems different than what you planned, as described above.
    Do you plan to attend the Municipal Court and prosecute these cases? If not, can you legally force the city prosecutor to prosecute these cases if she declines, and, in such case, do you have the responsibiilty to prosecute these cases using your staff?

  9. The story in the Daily Astorian is largely accurate, the headline is not.
    The judge has NOT in any changed the most important part of his ruling, issued May 22, 2012 in which he said "the DA controls and
    directs ALL DUII prosecutions...including those in Astoria Municipal Court."
    The City kept objecting to the AG's form of the order and the judge gave the City a very small win. He said the DA would have to go about moving these cases wherever they were filed.
    If they are filed oun Mini Court the judge changed the City''s requested language that the DA "must appear" to "must attend." There is a big difference.
    I or the AG will be writing the City making it clear that I am NOT agreeing to allow the City Prosecutor to handle the cases, as the judge said I could do if I chose (this is a ruling that is made not just in relation to MY relation to Astoria but how the law applies too DAs and Muni Courts elsewhere -
    (in several counties the City Prosecutor runs a robust operation that the local DAs - most of whom have very short staff - are happy to have them handle)
    If the City refuses -again, in face of Judge Norblad's order, I will appear" by motion seeking dismissal of the Muni Court DUIIs. Since Astoria Muni Cout is NOT a court of record any person convicted get a whole new trial from scratch - two prosecutions, two defenses, two juries , and most cost inefficient, double the APD officer's court time. So it simply makes no sense financially to try these cases twice - since any conviction will end up in Circuit Court that is where they should be filed. I'll have to wait to see if the City follows that key language which did NOT change and caused the May 22 ruling to be described by the Daily Astoria in May as "Judge Ends Astoria DUII Standoff/." that was and remains correct. The the City's oft-stated claim this is about saving money I would like to see why they don't obey the judge's order and allow me to the job I, not the City Attorney, was elected to do, prosecute any DUII case in the county. I/the DAs office will "get" nothing out of it. I made it very clear we can handle the relatively small number of cases without asking for more money or staff. My staff has fully paid the AG for their legal work out of last year's budget. How much is the City willing to spend extra (my expenses came out of existing budgeted resources, no special addition) to contest the core of Judge Norblad's ruling.
    Also the Daily A was apparently provided an informal e-mail sent to the attorneys. Just as after Mayy 22 until now there is still no "order" that can be acted on and won't be until both parties have signed off on the language and the judge signs it. Then you can expect to see some actiivity or maybe the City will do the sensible, cost-effective thing and simply cite all DUIIs into Circuit Court where any guilty verdict is likely to end up no matter who is prosecuting. One last time, my decision will SAVE the City the costs of hiring part-time lawyers to prosecute and defend, the extra dollars the muni judge gets handling motions and trial and most importantly from a budget standpoint, the officers time. The DA's office won't get a dome for doing this and any fines will go to the taxpayers through the general fund.

  10. The judge has NOT changed the
    most important part of his order of May 22.
    That the DA directs and controls
    all DUIIs...including those filed in Muni Court.
    The headline "City Wins" is inaccurate although the story
    itself get most of the important issues.
    Since Astoria is NOT a court of record
    I will renew my call for all DUIIS
    to be filed in Circuit Court because
    if not and someone is convicted at trial they get a whole new,
    from scratch, second trial, called
    a "trial de novo." it makes
    no sense from a money standpoint to have to try these cases twice with the City, Unlike the DA. having to pay
    extra for prosecutors, defense attorneys, juries and most
    significantly police time.
    Just as on May 22 all we have is
    an e-mail to the lawyers from the judge.
    When an actual order, the language
    of which has to be signed off by
    both sides, will a legal order
    to enforce exist. The City complained repeatedly about the order submitted
    by the "winning party" - the AG
    My budget is done paying the AG.
    Is the City still paying to litigate
    something that now seems closed?
    The judge did change "appear in" to "attend."
    That means the DA can appear by motion, just as many defense lawyers

  11. The judge's order gives the DA "control and direction" of prosecution. That certainly includes WHICH court to file in and there is no reason to file cases in a court before a judge who is otherwise a criminal defense attorney and because it's not a court of record every conviction means the defendant gets a whole second do-over trial in....Circuit Court, where they will now start and finish to save time and money.