Astoria DUII Prosecution Controversy Escalates
....Clatsop County District Attorney Josh Marquis
on Wednesday, September 7, 2011, sent notification to Astoria City
Attorney Blair Henningsgaard that the Oregon Attorney
General’s office will file suit against the city
of Astoria if the city does not begin to send driving
under the influence of intoxicants (DUII)
cases to Clatsop County Circuit Court by Wednesday,
Sept. 14.
On July 1, 2011, D.A. Marquis gave the city two months
to comply with his directive that all DUII cases
be submitted to the Circuit Court. The city has not
responded to that letter......
So, can we look forward to certain members of Astoria City Council and its Counsel to continue to attempt to bite off their noses to spite their faces on the issue of DUII prosecution when the Oregon statute 8.660 clearly states that it "IS" the "OBLIGATION" of Clatsop County D.A. Marquis to prosecute or, at least, to oversee all prosectuions of Astoria Municipal Court involving a Defense Attorney.
Other than being just plain old stubborn, as we now see with the staggering bill for the CSO updates forestalled by our own Mayor for some twenty years until threatened by a higher power, why is it City Attorney Henningsgaard would want to subject The City of Astoria to more costly expense in litigation when he knows what he should do in spite of his misguided ego in advising the members of The Astoria City Counsel and City Management?
I ask the citizens of Astoria to stand up and tell these people we have elected to serve in our trust and the doing of our public business to knock it off, honor the law and let's get on with the other issues.
City Attorney Henningsgaard wants to be a hero? How about him using his assumed lawyerly skills to wrest those depressed, debt-ridden Flavel properties downtown into somebody's hands that can make them useful again and complimentary to our status as a National Historic Register Downtown. While he's at it rescue the other Flavel House before it rots to the ground and it's too late to save it.
46 comments:
Rather than damn the Astoria City Council and its attorney for not complying with a request by the DA that may or may not be legal, let's let the process we designed to deal with these issues work. The facts in this situation are that,in the past few years Clatsop County Circuit Court Judges have ruled that Astoria DUII cases must be tried in the Astoria Municipal Court and DA Marquis did not appeal these decisions.
The law the DA claims allows him to prosecute about any case he wants is not clear (read it yourself in Patrick's blog). In particular, it does not explain the process. Marquis has asked for all future DUII cases. But the law does not say he can do that. Instead, the law actually may mean that he must demand each individual case, meaning there must be a case before he can demand it. So, how is he to know which cases exist?
Fortunately or unfortunately it is the responsibility of the courts to clarify poorly written law. It is not the purview of the District Attorney, City Council or Attorney General and it should not be. They were not elected nor are the qualified to do this job.
As far as the money is concerned, Marquis says he will be represented by the Attorney General (we'll see how that goes as the AG has backed off many of his threats so far). The City is represented by its attorney. Both these lawyers are already on the payroll. Besides, if the issue is saving money, Marquis should drop the issue. You may recall that he is the one who brought it up in the first place (using erroneous data to be sure).
8.660
Attending court and prosecuting offenses
(1) The district attorney 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 for such offenses therein.
(2) A district attorney shall not conduct prosecutions under this section when:
(a) A city attorney is prosecuting a violation under ORS chapter 153; or
(b) The district attorney is prohibited from appearing in a violation proceeding under the provisions of ORS 153.076 (Conduct of trial). [Amended by 1975 c.451 §170; 1981 c.626 §1; 1981 c.692 §6a; 1999 c.1051 §116]
Thank you Patrick. I appreciate your help in making my point.
The law on this matter is simply not clear. What does "attend" mean? Can the District Attorney simply appear one day in municipal court and handle prosecutions?
How is the DA to get the cases he wants? The police have no obligation to give cases to the DA and, in fact, bypass him by sending cases to the federal prosecutor in federal cases like bank robbery. Likewise, the police send municipal code violations cases, which are misdemeanors, directly to the city attorney, bypassing the DA. Neither the feds nor the city attorney are required to send cases to the DA.
This matter affects all cities in Oregon. The court with appropriate jurisdiction is the entity we designed to determine what the law says, not an angry newspaper owner or a disgruntled District Attorney or a blog. Let's let the process work as it is supposed to work.
Astoria will be doing a good thing for the principle of law and all Oregon cities by allowing the District Attorney to take this question to court.
ORS 153.076(6)A district attorney or city attorney may aid in preparing evidence and obtaining witnesses but, except upon good cause shown to the court, shall not appear in violation proceedings unless counsel for the defendant appears. The court shall ensure that the district attorney or city attorney is given timely notice if defense counsel is to appear at trial. [1999 c.1051 §21]
Good point, Patrick.
This law was written to allow police officers to act as prosecutors of violations when the defendant does not have a lawyerm and it is supposed to save both parties money.
The cop can ask the city or district attorney for help, but must handle the case him/her self in court. The court room situation in these cases is usually quite different from one where lawyers are present.
Your post goes to show again that the police do not have to send cases to the particular district attorney at all.
You obviously haven't been in court.
The REAL judges have fairly consistently DENIED the efforts to "move" the cases from Circuit where the Astoria Officers cite them in hopes they will actually get handled.
The DA and the AG are the elected law officers of the state. The Municipal Court Judge and City Attorney are neither.
Why is it that none of Clatsop County's other 4 cities and their muni courts want to handle DUIIs?
Why will Astoria burn down relationships, spend money, and divide the community (and refuse to put it on the ballot for voters to decide) just to keep DUIIs?
And why is it that so many DUII cases have simply vanished...dismissed "in the interests of justice" once they get to what is called by many the "kangaroo court?"
The DA was criticized for not exercising his authority and now he is doing what the AG's office has advised.
But maybe all those professional full time prosecutors are wrong and the cabal at City Hall who are "in recovery" know better than anyone else.
If this was such a big deal for other cities why were there only witnesses from ONE place - Astoria - when the bill that was killed in the Senate so no-one could vote on it (can anyone say dirty politics?) passed first the House Judiciary Committee and then the floor of the House?
If this was such a threat to other cities they'd be up in arms.
They're not.....
The record shows that Judge Nelson ordered several DUII cases to the Astoria Municipal Court over the past 10 years. I believe Judge Brownhill and Judge Mathias did the same thing with some cases if the defense counsel so petitioned and using the same principle. The record shows that DA Marquis did not appeal these decisions.
The record also shows that the Oregon League of Cities, which represents all cities in the State spoke to the Legislature in support of Astoria's position and has agreed to file a brief in support if the case ever gets to court. If you know how the League works, you will know that a majority of Oregon cities is concerned about the proposed take over of municipal courts.
The record clearly shows that DA Marquis started this campaign and is therefore clearly the one who is burning down relationships, spending tax payer money and dividing the community (if this is actually the case). Astoria is merely reacting to the badly prepared or fraudlent data the DA has presented.
The fact remains that if there is or was a crime or ethical violation being committed in the municipal court, the DA has an obligation to prosecute or present the problem to the Bar. He has done neither.
The fact also remains that the effort here, like the effort in most Clatsop County issues, is to decide this issue in the news paper and over the internet. That is not the way to decide a legal issue.
We have created a judicial system that requires the courts to decide what the law says. Not an angry newspaper owner nor a disgruntled DA with time and money on his hands nor the followers on either side. Let's let the process we designed work and have the court decide what the law says and how it should be implemented.
Anon,
I don't know where you have been hiding, but the reason the other cities in Clatsop County do not prosecute DUIIs is totally financial. They do not make enough cases to pay the extra cost associated. At the time they made the decision, there was no discussion that their municipal courts and city attorneys were too incompetent and corrupt to handle these cases.
There has also not been any discussion on whether or not DA Marquis is sufficiently competent to handle them.
You are just blowing steam, as usual, Sheriff. Not everyone wants a ditch dug for free.
So Astoria has so much more money than other cities it WANTS to prosecute DUII cases?
Let's be honest.
Willis and his pals don't their friends being prosecuted by real prosecutors and judges, just the ones that report to THEM.
And RiverGod, who apparently thinks HE is the God of Astoria, bloviates about all the money spent. The DA hasn't spent one dime thus far. The City has changed their story at least three times;
1) They made money
2) It was a wash financially
3) They did a better job
The fact is the City made fools of themselves at the Legislature and the League of Oregon Cities sent their lobbyist for 60 seconds to say they oppose. Listen on line at the Oregon legislative website for the House Judiciary Committee on 3/31/11. You can the incredulous comments of committee members before they voted 8 to 1 AGAINST the testimony of the entire city council, Mayor, City Attorney, and City Manager.
Please, O' God of Astoria, tell us how much money the City of Astoria has wasted trying so desperately to prevent the elected DA from handling cases like he does for all the other cities in Clatsop County?
And what about the DA's suggestion to just put it on the ballot last fall and let Astoria voters decide? Why did the City refuse to do that?
Please God of Astoria, tell us lowly peasants.
So, DA Marquis has been given so much money by the County Commission that he can initiate changes that force cities to give up revenues and change procedures?
Let's be honest, Marquis' office has screwed up cases in the past. This is just another way to divert attention and show that Josh and his pals can push their weight around to make sure Josh is not bored with his little job, the newspaper gets headlines and elected officials, like mayors and county commissioners have to bow to his will.
The fact is that Marquis forced city officials to take a day off, from their occupations, drive to Salem and defend the municipal court operation that have been going on for years and years and are conducted by most cities. The fact is that Astoria officials, did a good job explaining the situation and the Legislature obviously agreed with the Astoria explanation because it dumped the Marquis/Boone Bill.
Please, Not a Diety, tell us how much taxpayer money Marquis has spent initiating his fight with Astoria over this thing. Is it true that his office is so underworked that he has so much idle time he can work on taking over municipal courts full time?
And, non Diety, do you really want Astorians to vote on every issue Marquis and the newspaper bring up? How about voting on how many parking spaced there should be? How about on the color of the carpet in city hall? How about whether to fully reopen Bond street? If we are to vote on administrative matters like what cases the municipal court handles, should we not vote on everything else?
Please Marquis follower, tell us lowly peasants.
It is interesting that someone calling herself Not a Diety believes that the work of a little kiss ass legislative committee is more important that the end result of the legislature. As I recall, the focused legislative SUBcommittee, that was probably set up by Marquis and Representative Debby Boone, voted for Marquis's proposal that allows District Attorneys to take over municipal courts. But, the committee that actually recommends things like this to the whole legislature considered the Marquis/Boone proposal to absurd for the whole legislature to consider and the thing died in committee.
Just goes to show what lengths single minded people will go to in venting.
Now, just how ineffective and red necked was the Astoria contingent?
No matter all the noise, the fact still remains that ORS 8.660 is still on the books, active and still mandates that Clatsop D.A. Marquis control prosecution and oversight of Municipal Court Cases in his jurisdiction.
HB3025 would have simply adjusted the wording on ORS 8.660 to make it perfectly clear as to who stood where but time was not on the side of the Bill's sponsors.
The question now is...is the City of Astoria going to comply with that law?
No Patrick, that is obviously not the case. It it were, Marquis would simply take over the municipal court prosecutions (or at least cherry pick the ones he wants). He has not done so. Her has merely lay in the wings sent letters and whined.
The law is not clear and does not mandidate that the DA controls the prosecution and oversight of municipal courts. If your presumption were correct, the DAs would have power over the city attorneys, help determine who prosecutes cases and determine what cases are prosecuted where. That simply does not happen anywhere in Oregon.
The questions really is: what does the current law mean.
Why are you so abject to letting the courts decide what the law says?
ORS 8.660.....It's The Law!!!
Attending court and prosecuting offenses
(1) The district attorney 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 for such offenses therein.
(2) A district attorney shall not conduct prosecutions under this section when:
(a) A city attorney is prosecuting a violation under ORS chapter 153; or
(b) The district attorney is prohibited from appearing in a violation proceeding under the provisions of ORS 153.076 (Conduct of trial). [Amended by 1975 c.451 §170; 1981 c.626 §1; 1981 c.692 §6a; 1999 c.1051 §116]
It was the House Judiciary Committee, not some little "sub-committee" and they voted 8 to 1, Dems and Republicans. Then the entire House voted for it 34 to 26 with Brad Witt voting YES
LISTEN online.
The city made fools of themselves.
They made it personal and sounded like scalded teenagers.
And please do tell WHY it is so incredibly important that the one person who got almost 7000 votes to be the county's chief prosecutor should NOT handle DUIIs like all the other cities do.
What is so special about Astoria
except personal relationships and massive conflicts of interest.
Yes the Bar should be investigating and maybe the AG and maybe that will be what happens next.
The City are the ones who have embarrassed us.
So far the DA, AG, and the majority of legislators think the City of Astoria is wrong so please tell us why we should allow case after case to be dismissed in Muni court.
Look at the DA's record in court - in trial - how many convictions, guilty pleas. A helluva lot better percentage than the city.
There is going to be a very expensive civil lawsuit because the City won;t answer the letters of the 5-time elected DA. Who's being childish?
Where can a person get the District Attorney's record of convictions, dismissals and plea bargains?
OK Patrick. I agree that ORS 8.660is the law. I would be very interested in your explanation of how it works, with legal references please.
Does the District Attorney "attend" municipal courts and prosecute cases there? After all, "attend" can mean to visit professionally, or to wait for, or to be present at (Webster's. Blacks Law does not define attend).
If the DA takes cases from the municipal courts and deals with them in state court, is that "attending the terms of all courts..." or is it "illegal process"?
My point is and always has been that this is a poorly written law. It does not address many questions that must be answered before the District Attorney can legitimately take municipal court cases and before a municipal court can legitimately transfer cases to state court. A fact of American justice is that if the proper procedures are not followed in the criminal justice system the defendant, on appeal, will go free.
Responding to a poorly written law with a knee jerk reaction that supports one or the other side of what has become a political issue is not a good idea. It is certainly not a way to find justice.
Let's let the courts decide what the law says. The legislature has refused to rewrite the law making the courts the only way to go.
Well, Anon, you offer a loud and angry statement in support of DA Marquis.
Unfortunately, there are always two sides to an arguement.
The fact remains that the Oregon Legislature had the opportunity to change the law if it thought it was needed. The Legislature did not do so.
Another fact is that perhaps the elected members of the Astoria City Council did not meet your standards for eloquence, but their argument was pursuasive: the Legislature did not change the law.
And, as for your last slam, don't you think that if DA Marquis had a criminal or ethical case against the municipal court he should have used it by now? Especially considering that if he knows of a violation of the Code of Professional Conduct and fails to report it, he is also in violation of the Code (to say nothing about the idea that a District Attorney would know of a crime and sit on it).
I'm sure Marquis is fond of your support. He certainly needs it. Perhaps sometime you will actually add some facts to your outrage.
So, did Lars Larsen really call Tom Freel a liar on national radio?
In other words, did the international star of stage, screen and radio, who is also a legend in his own mind, and daily gives advice to heavy hitting politicians and businessmen really call the almost only employee of a struggleing low power radio station in the hinterland of Oregon a lier on the public airways over the efforts of a country lawyer in a rinkydink little county to take over a few drunk driving cases from a rinkydink city court?
I bet the sides will really line up now. This is amazing.
Doesn't the District Attorney get to use the Sheriff to enforce his authority? Has the Sheriff closed the municipal court room or ordered the court closed?
So your argument is the DA should
escalate this to having him ordering the Sheriff to seize files or that he should start filing Bar complaints?
That sounds like a very vindictive
way of doing business.
The DA asked first - very politely. That didn't work.
Then a list of mistakes were pointed out - which have detailed over the past 10 years by the Astorian, and the City just circled the wagons.
The City never responds to any of
the DA's letters, just issues proclamations and now says they want to have a "dialogue"
There hasn't been much of a dialogue going on and when one side says "hell no" there isn't much to mediate.
This is a waste of taxpayer money.
The question that needs to be answered is what does either side have to gain or lose.
Will the DA get more money or staff? Why is the City fighting so hard to keep DUIIs when so many keep falling through the cracks. The DA must have screwed up some cases but where are the details of those?
Not vendictive at all. If the DA has the power he says, it is likely the legal way.
The city has no legal obligation to respond to the DA on this matter. Obviously, the city thinks the DA is simply being rude and overbearing and so it has no moral obligation either. There is plenty of history from Josh to make the city think this way. Josh is almost always rude and over bearing.
Considering for a moment the way the city feels, the nicest way for the city to respond to Josh is to say nothing. That is what it is doing.
The DA has or does not have the power to do what HE wants to do. How he decides to exercise that power is up to him, not the city. If he cannot figure out a legal way to take over the muncipal court, he should just back off rather than relying only on politics and rumor. If he conducts himself illegally, he should be prosecuted and disbarred.
ORS 8.660.....It's "Still"The Law!!!
Attending court and prosecuting offenses
(1) The district attorney 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 for such offenses therein.
(2) A district attorney shall not conduct prosecutions under this section when:
(a) A city attorney is prosecuting a violation under ORS chapter 153; or
(b) The district attorney is prohibited from appearing in a violation proceeding under the provisions of ORS 153.076( ORS 153.076(6)A district attorney or city attorney may aid in preparing evidence and obtaining witnesses but, except upon good cause shown to the court, shall not appear in violation proceedings unless counsel for the defendant appears. The court shall ensure that the district attorney or city attorney is given timely notice if defense counsel is to appear at trial. [1999 c.1051 §21])(Conduct of trial). [Amended by 1975 c.451 §170; 1981 c.626 §1; 1981 c.692 §6a; 1999 c.1051 §116
As of the moment it's still the law and Marquis has it behind him and the City of Astoria is violating it and we are now wasting rhetoric by beginning to repeat ourselves over and over when, in my view, Astoria City Council needs to overide Van Dusen and Henningsgaard and rule in the interests of the Citizens of Astoria, to assure fair and equal and unimpaired justice be served to all.
Why not put it up for a vote?
Oh, the city already refused to do that.
So Marquis is "rude" and so the City is ignoring letters from the elected DA. That sounds childish.
If you get a ticket and ignore it bad things happen.
This is not one of those things you they can just have a couple extra drinks, close the blinds and hope it goes away. There have far too many cases of people getting special treatment in Muni Court and enough conflict of interest to last several lifetimes.
The city could have actually engaged in a dialogue rather than using their mouthpiece - KAST - instead they'll likely run up a staggering legal bill.
What principle exactly are they defending and if it was so sacred why were they the ONLY ones objecting to the fix bill in the legislature?
'What principle exactly are they defending and if it was so sacred why were they the ONLY ones objecting to the fix bill in the legislature?'
Heredity breeds entitlement is what it is and I been watching this spawn of our ancestors use this court for years to tidy-up there little mistakes and it is time to stop it now!
If Marquis has the law behind him, then he must have commensurate power to enforce it. That is the way the law works.
He does not seem to believe he has the power, thus he may know this law does not allow what he wants. But, if he has the courage, he can direct the Sheriff to take all the cases from the municipal court and bring them to his office, or he can appear in the municipal court and start prosecuting or he can get a court order directing the city to do what he wants or he can actually do his job and prosecute and cause the disbarment of those evil people in the municipal court.
He has done none of these. Instead he has written a letter to the police chief, asked the city council to give him the cases he wants, complained to the newspaper owner and asked Lars Larsen to ridicule Astoria over the air. That's it.
Doesn't sound like he thinks he has any power to enforce the law, or he is afraid of using it because, if he is wrong, he and the county get sued.
I guess we'll see what happens in court.
That's where the DA said he'd seek to
enforce his position, and that is where it belongs if the political process is unresponsive.
I'd still like to hear WHY the City
wants to keep DUIIs so badly....
Hopefully this unfortunate situation will get to court. But, the other question is, why does the DA want to take over the municipal court?
How about because he is tired of watching lawyers and friends of important people get away with perfectly valid DUII cases.
And he only knows about it because the Astoria cops tell him.
The DA is elected to make sure justice
is fairly administered, unlike the role of the mayor or the unelected city judge or city attorney.
The same reason any DA does it...
Prosecute the guilty, protect the innocent.
If that is true, he really needs to begin in his own office.
"Anonymous said...
If that is true, he really needs to begin in his own office.
10:39 AM"
Why would the be "Anonym"?
Patrick,
I don't understand "why would the be 'Anonym'".
If you mean why should Josh begin in his own office I suggest you visit this website. The information about problems in the DA's office are legion and many have been reported here. Why would you want all that information repeated, in some cases, rerepeated, especially since nothing was done when it was first reported?
Bottom line, how about we investigate the workings of the office of our elected DA before we move cases from the Astoria municipal court to his office? We know nothing about DA Marquis record of prosecuting DUII cases, to say nothing about such things as drug cases. Does the data show our elected DA is actually doing the job he is supposed to do?
Sorry, I don't understand "why would the be "Anonym"?
If you mean that you believe Josh's office has made neither errors nor questionable decisions and you want facts, I suggest you read past posts on this website. The lists are legion.
Do you actually want all this stuff repeated again and again? Frankly, that seems fruitless since no one did anything about it when it was first disclosed.
Sorry "Anonym", didn't mean to stress your comprehension gene.
I meant to say "Why is 'That' "Anonym"?..... and you have nothing of fact do you, other than inanely vague rhetoric?
Actually, Patrick, a list of some of the failures of the DA's office have been made right here on your website. Dead babies, favored treatment to politicians, favored treatment to relatives or allies, lost cases and allowing violations of the Code of Professional Conduct to name just a few. Interestingly, there were no comments and nothing was accomplished.
If you are merely trying to divert attention away from the past history of DA Marquis in order to attract attention to his fight with the Astoria City Council, as well as also attempting to run down the City Council, I guess it's good for you. It is your website and your town after all. Just, please, if this is your intention, don't try to mislead us into believing you are objective.
Then Humor us with citing the specifics, "Anonym", of your allegations and accusations against the Clatsop County D.A.'s Office.
Dead babies?
Lists of favored politicians.
Please give us names.
We KNOW the names in Muni Court
And Marquis is subject to elected and the Bar, unlike the City.
If you are going to make an allegation like that anonymously at least give us specifics or don't post.
I would really like ot honor your request, Patrick, but you really must allow my posts to do that.
Patrick McGee said...
Then Humor us with citing the specifics, "Anonym", of your allegations and accusations against the Clatsop County D.A.'s Office.
11:30 AM
Partick,
Sorry you don't attend your website to get answers to your questions. I will regather the list of errors, but I think I will sent it to a place where it will do some good.
So, you have nothing whatsoever to back your allegations and accusations against the D.A.'s office Huh "Anonym"?
Blair went on KATU and said it was "all about money" and how much money they made off DUIIs.
If that is so
1) Why did they tell the legislature the opposite in March?
2) Why don't more Muni Courts handle DUII cases?(none of the 4 others in Clatsop County do.
Then why does he keep winning elections and why do the locals running for office he supports keep winning?
Because everyone LOVES Josh Marquis. He is the smartest, hamsomest, most debonaire and most capable person in the country, let alone the state and county. Anyone he touches thrives because he is so loved. Why don't we elect him President. He would sure turn the country around in an instant.
he keeps "winning elections" because nobody else wants the job.
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