Thursday, November 13, 2014

The Court of Appeals issued its decision in the DUII case today. The summary is appended below.

The decision puts us pretty much right back where we were. No decision has been made about appealing the Court's decision. The state's District Attorneys meet twice a year and I expect this case to be discussed when we meet in three weeks.

The Court did make it clear this decision affects only Astoria and not any other city municipal courts, and also makes clear the DA has no obligation to appear in Municipal Court.

My office continues to believe there is a strong need for the City and the County to work together to insure that people are held accountable for conduct that endangers not only their lives, but the lives of everyone on the road.  My office has steadfastly maintained a dedication to this ideal and is the reason for seeking this opinion from the Court of Appeals.  

Astorians' best interests are served in Circuit Court, a full court of record, where the roles and responsibilities of the full-time professionals involved are clearly defined and do not change from day to day.

So, it remains up to the City to decide whether it wants to continue to spend money on prosecuting DUIIs in municipal court and, more importantly, where justice is best served for its citizens.


Clatsop County District Attorney v. City of Astoria

(Armstrong, P. J.)
The City of Astoria appeals a judgment declaring that the Clatsop County District Attorney has exclusive authority to control and direct the prosecution of misdemeanor driving under the influence of intoxicants (DUII) offenses committed within the City of Astoria. Both parties also appeal the trial court's declaration that the district attorney is required to attend and prosecute cases in Astoria Municipal Court.

Held: The trial court correctly denied the city's motion to dismiss the action on the ground that it failed to include the necessary parties under ORS 28.110. The text, history, and context of ORS 8.650, ORS 8.660, and ORS 221.229 establish concurrent jurisdiction in the municipal and circuit courts for prosecution of those offenses. 

Accordingly, the trial court erred in declaring that the district attorney had exclusive authority to direct and control those prosecutions. The court also erred in requiring the district attorney to attend and prosecute cases in the municipal court. Reversed in part and remanded with instructions to enter judgment omitting the declarations in paragraphs 4 and 5 and declaring the rights of the parties in accordance with this opinion; otherwise affirmed.


  1. So, after spending thousands and thousands of taxpayer dollars, the appeals court decides that District Attorney Marquis and the Attorney General's vast hoard of lawyers were wrong and little old Blair Henninsgaard was right - jurisdiction for DUII cases is not the sole purview of the DA but, as the court pointed out, when the City Attorney decides to prosecute, the DA has no jurisdiction. The law the Court cited is quite clear and one has to wonder why our DA and AG missed it, thereby costing not them but us. However, it will be interesting to see what kind of vengeance is reaped by the parties now.

  2. You haven't read the opinion. Jurisdiction is CONCURRENT, not exclusive, meaning it's a "race to the courthouse" which the City is likely to win since they own and appoint their court....I don't.
    The funds spent by the DA were from budgeted, existing dollars and the suit was pursued at the recommendation of the Attorney General, other elected DAs, and hundreds of Astorians.
    Some solutions are political, not legal.

    1. It's OK, Josh. The misery of this will go away in a few years. Better luck next time.

    2. A race to the courthouse? No. It means it is the policy of the law enforcement agency that files the complaint. Maybe you, DA Marquis, haven't read the opinion.

      What were the budgeted, existing dollars initially approved to fund, before being re-allocated for legal expenses?

      Were any Attorney costs awarded to either party?

    3. Well...."Brian," the policy of APD has changed frequently and it's not set by officers. Generally unfettered discretion is disallowed.
      But as I have said - for the last time in a string where only one poster is identifying himself, the decision now lies with political or if you like a policy decision by the City.
      No attorney fees were allowed to either side.
      The DA has about 1.3 million a year budgeted. We didn't go to some trainings and otherwise tightened our belts. Lawyers should never represent themselves. In this case we were following the advice of the AG's office.

    4. Thanks for the reply. Also, I did not realize my last name wasn't displayed. Brian Van Gundy

  3. I think your analysis of the decision over looks the significant aspects of the case. You say this decision puts us right back were we were, but in fact it says that if an Astoria police officer cites an offense into Municipal Court it stays there, and you cannot move it, as opposed to the perspective that the DA has a superior right to prosecute all cases in his/her county, which is the interpretation of the law you proposed. Seems a significant change in how your understand the law, as an attorney, to me.
    How do you plan to move forward? Do you think the new Astoria police chief will acquiesce to your earlier demands?
    Do you think the new city council, which includes your wife, will demand that cases be forwarded to you?
    Are you willing to accept all cases if the municipal court is closed by the new city council?
    Hopefully, as an elected and public official, you will disclose your direction on this matter.

  4. At present this court decision says wherever the officer cites it is where the case goes. The DA's office takes scores of misdemeanor cases that could be prosecuted in municipal court but are cited into Circuit Court every year, and will continue to do so. The City doesn't have to pay for the trial or incarceration of anyone tried in Circuit Court.

    1. I agree with your statement. The officer should decide and the DA should prosecute all the cases it gets where there is probable cause.
      In fact, I don't see why all cases are not sent to your court and the all the municipal courts in the county eliminated. Sure, there may have been some double dealing in the Astoria Court, but a few years ago the Warrenton Judge was the City Manager who is not even a lawyer. Seaside and Cannon Beach have also had their problems, they have just not gotten in the paper.
      If the Astoria Municipal Court is not capable of dealing with DUII cases in accordance with the law, as you suggested, how can it deal with any other cases within the law? As someone said on another site, the Municipal Court now deals with cases where people are actually hurt by someone else, but you want only the cases where, in the vast number, the driver is caught drunk by the cops before he has hurt someone. I agree with the idea that if the cases where no one is hurt should not be in the municipal court, all the cases where someone is hurt should also not be there.

  5. The City of Seaside made a FINANCIAL decision to send all it's DUIIs to Circuit Court a decade ago. Astoria policy changes frequently but already some DUIIs are sent to Circuit, ALL domestic violence, and increasing numbers of lesser "quality of life crimes." We take them on without complaint and without asking for more staff and funding. We also provide, at no cost, state constitutionally-required victim services, to Muni court victims (there was a lawsuit against the City over that to, but not by the DA's office but by a crime victims law center. That wasn't in the paper either.

  6. Nobody I know of is suggesting ABOLISHING any of the 5 municipal
    courts in Clatsop County. They serve a valid purpose in enforcing non-criminal infractions and are in that sense a revenue-producer for cities.
    Crimes are a different matter and few muni courts handle then because unless reduced to violations they cost a lot to handle.

  7. I encourage you to keep pressing this issue and appeal to the Supreme Court. The city should not get away with this, especially the councils smugness at their last meeting when the decision was announced. You should feel free to spend all the money you want, its the states money anyway.