Transcript Of Objection To Motion To Dismiss
CLATSOP COUNTY DISTRICT ATTORNEY,
PlaintiffPlaintiff,
v.
CITY OF
ASTORIACITY OF ASTORIA,
DefendantDefendant.
Case No.
11-243011-2430
PLAINTIFF'S
OBJECTION TO DEFENDANT'S MOTION TO DISMISS (ORCP 21A)
Department of Justice
1162 Court
Street NE
Salem, OR 97301-4096
(503)
947-4700 / Fax:
(503)
947-4794PLAINTIFF'S OBJECTION TO DEFENDANT'S
MOTION TO DISMISS (ORCP 21A)
1.
Plaintiffs, Joshua Marquis in his capacity as Clatsop County
District Attorney, and the office of the Clatsop County District Attorney, by
and through counsel, Thomas Castle, Assistant Attorney General, respectfully
objects to Defendant’s Motion to Dismiss. The Court should deny the motion
because:
•the Clatsop County District Attorney is the
real party in interest;
•the Complaint alleges facts that show a
justiciable controversy exists between the parties; and,
•there are no indispensable or necessary
parties whose absence prevents the Court
from
resolving the controversy.
Supporting this motion are the plaintiff’s declaration and
the Memorandum of Authorities.
MEMORANDUM OF
AUTHORITIES TC
"
MEMORANDUM OF AUTHORITIES" \f C \l "1"
2.
Introduction TC "
Introduction" \f C \l "2"
Plaintiff, Clatsop County District
Attorney, asks this Court
to declare that the Clatsop County District Attorney has exclusive authority to
control and conduct the prosecution of all driving under the influence of
intoxicants (DUII) cases, and state-law criminal charges arising out of the same
criminal episode, that arise within the City of Astoria. Defendant mistakenly
believes that the controversy concerns whether DUII cases that arise in the City
of Astoria should be prosecuted in circuit court or municipal
court. The question,
however, is notwhere DUIIs should be prosecuted but rather who should control the prosecution. Based on this
misunderstanding, defendant argues (1) that the Clatsop County District Attorney is not the
“real party in interest”; (2) plaintiff’s complaint does not allege a
justiciable controversy because plaintiff has not alleged that it has standing to
bring this claim; and (3)
plaintiff’s complaint fails to name all necessary parties as
defendants.
Defendant’s Motion to Dismiss fails as a matter of law,
because this case presents a genuine controversy between plaintiffs and
defendant. Plaintiffs contend that the Clatsop County District Attorney has
constitutional and statutory authority to control and conduct the prosecution of
all DUIIs committed in Clatsop County — including those committed within the
City of Astoria. Defendant disagrees with that proposition and believes that it
has the sole authority to prosecute DUIIs committed in Astoria. Plaintiffs’
complaint for declaratory relief seeks a resolution to that dispute; therefore,
this court should deny defendant’s motion.
3.
In
ruling on a motion to dismiss based on the pleadings, a court must “liberally
construe the pleadings and consider as true the fact’s alleged in plaintiff’s
complaint and all reasonable inferences that may be drawn from those
facts.” Especially in light of that deferential standard, this court
should deny defendant’s motion. First, plaintiffs are the real party in
interest. The complaint seeks a declaration delineating plaintiffs’
constitutional and statutory authority to prosecute criminal charges in the name
of the state; although the State of Oregon — as prosecutor — will be affected by
the outcome of the case, it is plaintiffs’ authority, status, and legal
relations with other parties that is directly implicated by this action.
Plaintiffs are the real parties in interest. Second, and for many of the same
reasons, plaintiffs have standing to bring this action; therefore, a justiciable
contr
oversy exists. Finally, plaintiffs have named all necessary
parties as defendants to this action. Plaintiffs’ dispute is with only the City
of Astoria, because it is only the City of Astoria that refuses to allow
plaintiffs to control and conduct prosecutions of DUIIs committed within the
city.
4.
Joshua Marquis, in his capacity as the Clatsop County
District Attorney, and the Clatsop County District Attorney’s Office are the
real parties in interest in this action TC
"
Joshua Marquis, in his capacity as the Clatsop County
District Attorney, and the Clatsop County District Attorney’s Office are the
real parties in interest in this action" \f C \l
"2" .
The
purpose of a declaratory relief action is “to settle and to afford relief from
uncertainty and insecurity with respect to rights, status and other legal
relations.” A plaintiff
bringing a declaratory judgment action must have some direct involvement or
interest in the controversy; in other words, the plaintiff must be one whose
right, status, or legal relation will be affected by the
action. Declaratory
relief is appropriate to determine the statutory duties of a public
officer.
5.
Generally, if a defendant is not deprived of a defense or a
counterclaim, and a judgment in favor of the named plaintiff will fully protect
the defendant from future actions by other parties when discharged, the
defendant’s concern about the real party in interest is at an
end. A motion to dismiss
on “real party in interest” grounds is not the proper vehicle for challenging
the underlying allegations of a complaint.
6.
Here, the elected District Attorney of Clatsop County
and the office of the
Clatsop County District
Attorney are the
appropriate plaintiffs
because their authority,
status, and legal relations to
other entities and citizens are directly affected by the declaration sought. The Oregon
Constitution makes the elected district attorney the law officer for the state
in the county in which he or she is elected, and it provides for the legislature to designate
the district attorney’s duties. The legislature has provided that “[t]he district attorney
in each county is the public prosecutor therein,” and that he or she “shall attend the terms of
all courts having jurisdiction of public offenses within the district attorney’s
county, and, except as otherwise provided in this section, conduct, on behalf of
the state, all prosecutions of such offenses herein.” The question presented by this action, then, is what
specific authority does Article VII, section 17, and ORS 8.650 and 8.660 confer
on the district attorney when it provides that he or she shall “conduct” criminal prosecutions within the
county. The answer to
that question is one that will uniquely affect plaintiffs.
7.
Defendant’s argument that the State of Oregon is the real
party in interest is mistaken. Although it is true that the state — as criminal
prosecutor — will experience some indirect effects of any decision in this case,
it is not the state’s “rights, status, or legal relations” that will be
primarily affected by the prayed for declaration. Rather, this is a question
about which prosecutor —plaintiff or defendant — has authority to represent the state in the class of criminal proceedings
at issue here. More specifically, the question presented is whether the
district attorney has constitutional and statutory authority that trumps the
city’s authority to represent the state in such cases.
8.
Defendant cites several cases as authority for its argument
that the district attorney is not the real party in interest. None of those
cases, however, dictate the result defendant requests here. First, defendant
asserts that State Land Board v. Lee, stands for the proposition that “[i]f a suit is for the
benefit of the state, the state is the real party in interest.” (Mot 3).
Lee, of
course, was not interpreting the phrase “real party in interest” as it is used
in ORCP 26 A, and so provides no authority for this court on that question.
Moreover, Lee was
a case involving whether the State Land Board enjoyed the same immunity from a
statute of limitations defense as did the State as a whole. The Supreme Court
concluded that it did. Notably, however, the court did not suggest that the
action in that case had to be brought by “the State of Oregon” as opposed to the
State Land Board. State Land Board v.
Campbell, also
cited by defendant, provides a similar holding.
9.
Allen v. Craig, is also not to the contrary. There, the Supreme Court held
that a county assessor could not sue in his own
name to collect an unpaid
tax penalty, because the penalty owed belonged to the county. Here, of course,
plaintiff does not bring this action in his personal capacity. Rather, plaintiffs are Joshua
Marquis in his official capacity and the office of the elected District Attorney
of Clatsop County. The
question presented by this action is whether that office has particular
authority to direct the prosecution of all state law violations occurring within
the county. Certainly the office of the district attorney is the real party in
interest in that case.
10
Defendant argues that this Court lacks subject matter
jurisdiction because no statute specifically authorizes a district attorney to
seek a declaratory judgment. Defendant citesGortmaker v.
Seaton, for the
proposition that a district attorney lacks standing to seek a declaratory judgment.
Gortmaker v. Seaton was dismissed because the district attorney failed to assert
sufficient facts to establish a justiciable controversy. The Court never questioned the district
attorney’s legal authority to seek a declaratory judgment. Rather, the Court found that there was no jurisdiction
because the parties’ interests were not adverse – the parties sought an advisory
opinion. Declaratory judgment plaintiffs have standing if their
“
rights,
status
or
other
legal
relations” are affected by a particular law or
statute and if they have a “
direct,
substantial
interest
in
the
controversy.”
Marks v. City of Roseberg, 65 Or App 102, 106 (1983) citing Gaffney v.
Babb, supra at 50 Or App 623. The defendant has repeatedly denied the plaintiff’s authority
to conduct the prosecution of all DUIIs that occur within the City of Astoria.
The district attorney has a “direct, substantial interest” in that controversy
because he is being denied his legal authority to conduct the prosecution of all
criminal offenses that occur within his jurisdiction. The parties’ interests
are definitely adverse.
11.
Oregon’s courts permit state officers to seek declaratory
relief when there is a justiciable controversy between the parties’ rights,
status and legal relations TC "
Oregon’s courts permit state officers to seek declaratory
relief when there is a justiciable controversy between the parties’ rights,
status and legal relations" \f C \l "2" .
Plaintiff argues that “state offices and officers” are not
“persons” with standing to seek declaratory relief. Courts hearing declaratory judgment actions
must always determine jurisdiction, including a plaintiff’s standing, before
reaching the merits. In Frohnmayer v. SAIF, 294 Or 570 (1983), the Oregon Supreme Court
decided a declaratory judgment proceeding on the merits brought by a state
officer, Attorney General Dave Frohnmayer. The Attorney General asked the court
to declare whether SAIF could employ outside counsel and institute legal
proceedings without authorization of the Attorney General. The Oregon Supreme
Court did not question the Attorney General’s standing to seek declaratory
relief. Instead, the Court implicitly found standing and ruled on the
merits. The statutory
scheme for determining declaratory judgment jurisdiction is not exclusionary –
the court may exercise its general powers in any case where a declaratory
judgment will terminate the controversy and remove any
uncertainty. Moreover,
the statutes are to be liberally construed to settle and afford relief from
uncertainty and insecurity with respect to rights, status, and other legal
relations. The
plaintiff moved to amend the Complaint to add Joshua Marquis in his official
capacity as theClatsop
County District Attorney as a named plaintiff. Plaintiffs believe this amendment
resolves the issue of whether the plaintiff is “a
person” under
ORS 28.130.
12.
The Complaint alleges sufficient facts to establish the
existence of a justiciable controversy TC "
The Complaint alleges sufficient facts to establish the
existence of a justiciable controversy" \f C \l "2" .
Defendant argues that the Complaint fails to state a claim
for relief under ORCP 21A(8) because it does not “allege that any right of the
district attorney has been affected.” The
defense of failure to state a claim is not a proper defense in a declaratory
judgment proceeding. The
facts pled allege that Oregon law, specifically the Oregon Constitution and ORS
8.660, authorize plaintiff to conduct the prosecution of all public offenses
(with several limited exceptions not relevant here) that occur within Clatsop
County including DUIIs. The plaintiff has first requested then instructed the
defendant to turn over all DUIIs to his office for prosecution. Defendant has
either ignored the requests or expressly refused. Plaintiff seeks a declaration
that 1) he has exclusive authority to conduct the prosecution of all DUIIs, and state-law criminal
charges arising out of the same criminal episode, that arise within the City of
Astoria; and, 2) supplemental injunctive relief to enforce the requested
declaration. There is an actual and substantial controversy between parties
having adverse interests. There is an ongoing present dispute because defendant
refuses to allow the plaintiff to conduct all DUII prosecutions that arise in
the City of Astoria. The Court’s declaration will resolve any uncertainty and
settle the dispute.
13.
The plaintiff seeks a determination as to the scope of his
authority – not the rights of the public or others TC "
The plaintiff seeks a determination as to the
scope of his authority – not the rights of the public or
others" \f C \l
"2" .
Defendant asserts that the Declaratory Judgment Act only
permits a plaintiff to seek a determination of “the person’s own
rights.” Defendant
correctly argues that Oregon law does not permit a declaration as to the rights
of others or as to some public right. The legislature invested the district
attorney with the authority to conduct the prosecution of all public offenses
that allegedly occur within the district attorney’s county. The defendant
disputes the plaintiff’s authority to conduct the prosecution of DUII’s that
arise within the City of Astoria. The Court’s decision will determine if the
scope of the district attorney’s authority includes the prosecution of all
DUII’s that allegedly occur in the City of Astoria. But the declaration will
not determine the rights of the public or others.
14.
There are no other indispensable or necessary
partieswho have or claim an interest in the subject matter of this
proceeding which would be affected the Court’s
declaration.TC
"
There are no other indispensable or necessary parties that
claim an interest in the subject matter of this proceeding" \f C \l "2"
Defendant urges dismissal because plaintiff failed to include
as party-defendants all other Oregon cities with municipal
courts. ORS 28.110
requires that a plaintiff include as defendants “parties who have or claim any interest which
would be affected by the declaration.” The dispute is solely between the Clatsop County District
Attorney and the City of Astoria. The issue is the plaintiff’s authority to
conduct prosecutions of cases that arise within defendant’s boundaries. No
other municipality will be affected by a declaration herein.
a.Other Clatsop County municipalities can not be joined because
their rights and interests are not adverse to plaintiff TC "
a.Other Clatsop County municipalities can not be joined because
their rights and interests are not adverse to plaintiff" \f C \l "3" .
Oregon law limits plaintiff’s jurisdiction to Clatsop
County. The other cities
within Clatsop County already permit the plaintiff to conduct all DUII
prosecutions. While the
requested declaration may affect their rights or legal relations, those cities
could not be joined because their interests are not adverse to
plaintiff. There is no
dispute or controversy between plaintiff and the other Clatsop County
municipalities that would permit them to be joined in this proceeding. The
other Clatsop County cities do not “have or claim any interest which would be affected by the
declaration” ORS
28.110
b.Cities with municipal courts outside of Clatsop County do not
have any interest that would be affected by the declaration sought by
plaintiff TC
"
b.Cities with municipal courts outside of Clatsop County do not
have any interest in that would be affected by the declaration sought by
plaintiff" \f C \l
"3" .
There
is no justiciable controversy between the Clatsop County District Attorney and
other cities with municipal courts that would permit those cities to be joined
in this proceeding. Plaintiff requests a declaration regarding his authority to
prosecute DUIIs that occur within the City of Astoria. An Oregon district
attorney does not have authority to conduct the prosecution of public offenses
outside of the county where he or she is elected. The Complaint asks the Court to declare the
scope of the Clatsop County District Attorney’s authority to conduct the
prosecution of DUIIs in Clatsop County. Cities outside of Clatsop County “do
not have or claim any interest which would be affected by the declaration”
anymore than all the other citizens of Oregon. If cities outside of Clatsop
County were joined as party-defendants, they could successfully argue that 1)
their interests are not adverse to plaintiff, because plaintiff does not have
authority to prosecute cases outside of Clatsop County; and, 2) there is no
controversy involving present facts that other cities and the Clatsop County
District Attorney, or any other district attorney. While other cities may have an opinion
regarding this proceeding, they are not involved in the controversy between the
Clatsop County District Attorney and the City of Astoria.
CONCLUSION TC "
CONCLUSION" \f C \l "1"
This
case presents an ongoing and present dispute between plaintiffs and defendant
over what constitutional and statutory authority plaintiffs have to control and
conduct prosecutions of DUIIs (and crimes that arise out of the same criminal
episode) that occur within the city limits of Astoria. Plaintiffs contend that
the Clatsop County District Attorney has constitutional and statutory authority
to control such prosecutions; defendant contends that the city attorney — acting
at the direction of the city council — has authority that trumps the district
attorney’s authority. This dispute is between the district attorney (and his
office) and the City of Astoria. Consequently, the district attorney and his
office are the proper plaintiffs with standing in this case and the City of
Astoria is the only proper defendant in this case. Defendant’s belief that its
authority trumps that of the district attorney is not a reason to dismiss this
case at this point; rather, it is a reason to deny the motion to dismiss so this
court can resolve this ongoing dispute and declare authority, status, and legal
relations of the parties. Plaintiffs respectfully request this court to deny
defendant’s motion to dismiss.
DATED
this day of December, 2011.
Respectfully submitted,
JOHN
R. KROGER
Attorney General
THOMAS CASTLE #890321
Assistant Attorney General
Trial Attorney
Tel
(503)
947-4700
Friday, Dec. 30, 2011
Thursday, Dec. 15, 2011
