City of Springfield Finance & Judiciary Committee Meeting All proceedings are recorded Monday, May 11, 2015
4:15 – 5:15 p.m. City Hall Conference Room 202 (Finance Department)
The meeting location is wheelchair –accessible. For the hearing impaired, an interpreter can be provided with 48 hours notice prior to the meeting. To arrange for these services, call 726-3740. CALL TO ORDER ROLL-CALL – Councilor Pishioneri ____, Councilor Ralston____, and Councilor Wylie ____ 1. City Prosecutors Contract FY2016- FY2018 2. Municipal Court – Judge’s Evaluation Schedule 3. Court Appointed Attorney’s Contract FY2016 ADJOURNMENT Attachments: Attachment 1: Financial/Judiciary Committee Briefing Memo Attachment 2: City Prosecutor Memo – Request for Contact Amendment Attachment A: City Prosecutor Original Contract and Amendment Attachment 3: Court Appointed Attorney’s Contract
MEMORANDUM
Date: To: From: Subject:
5/06, 2015 Financial & Judicial Committee Bob Duey, Finance Director May 11 Agenda Discussion
COUNCIL BRIEFING MEMORANDUM
Agenda Outline Staff has requested to meet with members of the Financial Judicial Committee at this time to cover three topics. City Prosecutor’s Contract The City first contract with Leahy, Van Vactor, Cox and Melendy in January of 2013 for 18 months and amended that contract for an additional 12 months set to expire on June 30, 2015. The annual contract price is $186,220 and has not changed for the 30 months between the origination date and the current expiration date. The staff recently completed (just this week) a business vendor review with firm to discuss performance that can be shared with Committee members at the Committee meeting. The 360 degree review included staff, defense attorneys, police management and SPA members. The firm (included as Attachment 2) is requesting an adjustment in their contract price to be effective 7/01/15. Because the dollar value of this contract will require Council approval and the high profile nature of this contact staff is asking for input from the Financial & Judicial Committee prior to completing negotiations with Leahy, Van Vactor , Cox and Melendy. Judges Evaluations The Finance and Judicial Committee is charged with the task of the Judge’s evaluations and staff would like to discuss with members of the Committee both the timing and the process they would like to utilize for this year’s evaluations. We would like to schedule prior to the Council’s summer recess. The four judges for evaluations are presiding Judge Jim Strickland, our two regularly scheduled Judge’s Pro-Tem Phil Williams and John Kim, and our vacation Judge Pro-Tem Richard Curtis. Currently staff has been collecting response forms from defendants and attorney’s which can be shared for the evaluations. Also as part of this process we would also like to look at the pay scale for these positions. The Judge’s positions have historically been awarded changes in salary comparable to those provided to other non-union positions but since the City has moved to a market based pay program there has not been cost-of-living adjustments nor have they been included in the market surveys. In addition there has been a request from the Pre-Tem Judges for the City to consider including them in some additional form of employee benefits. Currently they received an hourly wage and no additional benefits. Based upon direction from the Committee staff could do additional research and bring back the results as part of the evaluation process. Court Appointed Attorney’s Contract The current contract with McKenzie Defense Consortium, LLC was initiated through an RFP process and has been in place only since July 2014. It’s a 1 year contract that expires on June 30, 2015. This is the City’s first contract for court appointed attorney services as previously we contracted with individual attorney for these services.
Attachment 1
Page 1 of 2
We have just recently received a request from McKenzie Defense Consortium that includes both term changes to the current contract in addition to a request for an increase in the value of the contract. We just received this request last week and are still reviewing these changes for reasonableness. Much like the contract for the City Prosecutor we would like to discuss the term changes with the Committee prior formulating our response. We will finish our review before Monday’s Committee meeting and bring this information that evening. The current contract value is $236,500 and the request is to increase the contract to $288,000.
Attachment 1
Page 2 of 2
MEMORANDUM
OFFICE OF SPRINGFIELD CITY PROSECUTOR
DATE:
April 8, 2015
TO:
Jeff Towery, Assistant City Manager Bob Duey, Finance Director Jayne McMahan, Procurement & Contracts Manager
FROM:
Matt Cox
Patrick Melendy@y Office of Springfield City Prosecutor
RE:
Springfield City Prosecution Request for Increase to Retainer
Thank you for the opportunity to present our thoughts in regards to justification for an increase to the City of Springfield Prosecution retainer. We wanted you to know that we are fully enjoying the work as the Springfield City Prosecutors and are looking forward to continuing the work and achieving mutual goals in regards to public safety in the City of Springfield. CURRENT STATUS OF SPRINGFIELD PROSECUTION CONTRACT
The Springfield City Prosecution budget since January 2013 is an annual amount of $186,220.80. This contractual amount is based off the bid accepted by the City made by the firm of Leahy, Van Vactor, Cox & Melendy, LLP in May of 2012. Prior to January 2013, the Springfield Municipal Court Prosecution budget to the City had annually been $232,776.00. SPRINGFIELD INDIGENT DEFENSE ATTORNEY BUDGET
The current 2015 indigent defense budget for McKenzie Defense services Is $236,500.00 for their handling of cases up to 2,327 cases per year. All cases over that are charged by McKenzie Defense at $95.00 per case. The indigent defense budget as of 2012 was $186,000.00. Our office filed a total of 3,186 misdemeanor cases in 2014 including retained/private attorney cases and pro se litigant cases. We believe these numbers will be up in 2015. Please see attached statements regarding stats for January, February and March of 2015 in comparison with 2014. One reason the City raised the indigent defense budget in 2014 was to ensure compliance with legal requirements concerning how many misdemeanor cases a public defender should represent yearly. We supported this effort. These same standards apply to prosecutors. The National Commission on Criminal Justice Standards and case law suggest a single prosecutor should not handle more than 400 misdemeanor cases per year. The Lane County District Attorneys Office has Its misdemeanor attorneys handle approximately 330 cases per year. The American Bar Association recommends a ATTACHMENT 2
300 case load limit for misdemeanor prosecutors. We request an Increase In the prosecution budget, In part, to Increase our cases per attorney workload capabilities. Currently we have only budgeted for 1 full time attorney but are using 2 attorneys on many days to handle the workload. This Is especially true with retained attorney cases. DUII PROSECUTION A PRIORITY
Our DUII prosecution numbers continue to Increase. We have already filed more DUIIs In January and February of 2015 than In those months In the previous year. The City of Springfield filed 494 DUII cases In Springfield In 2014 representing 15% of the total 3,186 cases filed. These cases are a priority and we put a substantial amount of effort Into prosecution of DUIIs. This Includes handling many cases where retained/private non-court appointed attorneys represent their clients. Retained non-court appointed lawyer cases are often more labor intensive for us. DUII cases can mean substantial work for our attorneys including motions to suppress, hearings, trials, appeals and other legal issues. By comparison, the Eugene City Prosecutor's office filed 534 DUII cases in 2014, 8% of the total 6,621 cases filed by the Eugene Prosecutor's office In 2014. Our office Is handling a substantially higher volume percentage wise In regards to DUIIs In Springfield than the prosecutor's In Eugene. We believe that the trend of Increasing DUII prosecution In Springfield will continue. This Is due to multiple factors but primarily because of the aggressive efforts of the Springfield Police Department's DUII patrol. We have also noticed that controlled substances DUII volume Is Increasing especially concerning marijuana DUIIs. We believe this number will continue to rise with the July 2015 statewide decrlmlnallzatlon of marijuana. Marijuana DUII prosecutions are substantially more complicated, costly and time consuming than alcohol DUIIs due to the required proof standard of the 12 step drug recognition expert (DRE) protocol. DRE cases require continual training for police and prosecutors. We have been completing the yearly training updates at our cost. DUII prosecution Is a priority to SPD and our office. An Increase In the City Prosecution retainer will allow us to focus prosecutor/attorney time on the Increasing DUII case load.
On a positive note, SPD Is being recognized on Friday April 24"" at the annual DUII conference as the number one police agency In the state for DUII enforcement In 2014. COMPLEX CASES NOT PROSECUTED BY THE LANE COUNTY DISTRICT
ATTORNEY'S OFFICE INCREASING OUR WORKLOAD
Our attorneys have prosecuted a number of complex cases that have been no-filed by the Lane County District Attorney's office for what they term lack of financial resources. We can give recent examples of our taking cases that had originated as felony thefts or felony forgeries, etc.. In the City of Springfield. After Springfield Police Department Investigation and submission for review to the Lane County District Attorney's office local citizen victims and Springfield Police Department officers were Informed by the Lane County District Attorney's office that due to financial constraints, the case will not be filed. It Is sometimes a weekly occurrence for us to have SPD or victims bring us these cases. A recent case we took on Included senior citizen victims that had a person forge the title to their motor home and basically steal their motor home from them. We ATTACHMENT 2
are currently working with Springfield Police Department Det. Jeff Murkin on this case after he brought It to us after It was no-filed by the Lane County District Attorney's office. This Is just one example of a case where we have had to put In substantial time and effort In working with detectives/officers and upset victims to obtain justice. Although time consuming and costly to our operation, pursuing such cases on a selected basis is Important to the perception and Integrity of justice In Springfield. An Increase to the prosecution budget will help us to continue prosecution of D.A. no file cases.
ELECTRONIC FILING AND EARLY DISPOSITION OFFERS
When our firm made Its May 2012 bid, we had hoped that our operation would soon be completely electronic using eflling and other computer software and hardware capabilities to streamline operations. After substantial effort by the City and on our part, we have been unable to obtain a computer system to help us achieve these goals. This Is an ongoing process. We have taken our own time to travel to Salem, the Lane County District Attorney's office and have been In touch with Roseburg and Beaverton Municipal prosecutors In regards to their computer systems In an effort to come up with a system that works for Springfield Prosecution at an affordable level. In our 2012 proposal we had also discussed offering plea bargain offers at arraignments Including In-custody arraignments as prosecutors do In Cottage Grove and Junction City. For a number of different reasons, this process was not Implemented which has Increased costs from what we had hoped for. We have Implemented ediscovery and work diligently to get our plea offers out as soon as possible to the McKenzle Defense attorneys as well as attorneys retained by defendants and pro se litigants. We have added a half time staff member (5 hours per day), at our cost, to help us with the discovery and victim communication. This has allowed us to work through the back log and speed up the disposition process at the Municipal Court. We seek the funding to continue the employment of the half time staff member. OFFICER TRAINING AND RISK MANAGEMENT
We have had multiple trainings formal and Informal with Springfield Police Department officers. We have scheduled training to be conducted In the near future with SPD (4
hours of training with SPD Is scheduled for May 4^). See use of force, resist arrest. Interference with police officer, etc., power point training materials attached. We recently prepared these materials which have been approved by SPD Chief Doney for department wide training. We have also made It a focus to work with officers In regards to Individual cases on use of force Issues In an effort to Increase officer safety and lessen risk to the City. Increased funding helps to allow attorney time/expense In conducting trainings. TECHNOLOGY/ INCREASING PROSECUTION COSTS
Both SPD's use of technology Including: In-car video, video at the jail Intoxlllzer room as well as the public's Increased video surveillance capabilities Is costing the prosecutor to expend more resources. We are having to spend money to make video/audio discovery ATTACHMENT 2
available In many more cases than had been necessary In the past. These costs are increasing. Instances of civilian video include store or parking lot surveillance and hand held cell phone video. Obtaining these materials, making copies and discovering the media to the defense is another reason we added a half time staff member.
REQUESTED INCREASE, 2012 LEVEL We respectfully request a 15% increase in the Prosecutor retainer in the amount of $27,933.12 ($2,327.00 monthly) to a total yearly retainer of $214,153.92. CONCLUSION
Our workload continues to increase and our efforts to work cases with complex legal issues as well as our desire to spend more time working with crime victims justifies our proposed increase so that we can pay for a Vi time staff and added attorney costs. The proposed increase is still well below 2012 funding levels and is below what the City currently pays for indigent defense counsel. (Note: we handle all the cases filed not just the 80% or so that the indigent defense attorneys work).
ATTACHMENT 2
MEMORANDUM SPRINGFIELD'CITY PROSECUTOR'S OFFICE
COMMITTED TO EXCELLENCE
DATE:
TO:
February 5,
•
FROM:
2015
Jeff Towery Matthew J
Cox
(dlr)
Springfield City Prosecutor SUBJECT:
•
Stats for January "2015
Total number of cases filed for January 2015: 297 Total number of open cases with CAA:
191
•
Total number of open cases with retained: 11
•
Total number of DUII
cases
filed
2015:
48
Total number of cases filed for Januairy 2014: 263 Total
number of DUII cases
f i l e d 2014:
ATTACHMENT 2
34
MEMORANDUM SPRINGFIELD CITY PROSECUTOR'S OFFICE
COMMITTED TO EXCELLENCE
DATE:
March 5,
2015
TO:
Jeff Towery
FROM:
Matthew J Cox
(dlr)
Springfield City Prosecutor SUBJECT:
Stats for February 2015
•
Total number of cases filed for February 2015: 279
•
Total number of open cases with CAA: 184
•
Total number of open cases with retained: 16
•
Total number of DUII cases filed 2015:
39
Total number of cases filed for February 2014: 236 Total number of DUII cases
filed 2014:
ATTACHMENT 2
42
MEMORANDUM SPRINGFIELD CITY PROSECUTOR'S OFFICE
COMMITTED TO EXCELLENCE
DATE:
April 6, 2015
TO:
Jeff Towery
FROM:
Matthew J
Cox
(dlr)
Springfield City Prosecutor SUBJECT:
S t a t s f o r March 2015
•
Total number of cases
•
Total number of open cases with CAA: 159
•
Total number of open cases with retained: 8
•
Total number of DUII
Total
number of
cases
filed for March 2015:
cases
filed
Total number of DUII cases
filed 2015:
for March 2014:
f i l e d 2014:
ATTACHMENT 2
42
39
265
265
1/30/2015
'c-; c:
AT?lii®SaiSiS , liT
' - "-^CllY FRSSKMBS-iS-
tiEne Common Claims
Interfering With a Peace Officer Disorderly Conduct Resisting Arrest
Response to Subpoenas Home Threshold Issues
Municipal Court Update Recent Topics Mental Health/ADA Search, Seizure, Surround and Call Out
Homefessness/Occupy Fuller/Benoif
ATTACHMENT 2
1/30/2015
[nrerferino: . Interfering with "a Peace Officer - ORS 162.247(1) A person commits the crime of interfering with a peace officer or parole and probation-officer if the person, knowing that another person is a peace officer or a parole and probation'officer as defined in ORS 181.610: (a) Intentionally acts in a manner that prevents, or attempts to prevent, a peace officer or parole and probation officer from performing the lawful duties of the officer with regards to another person; or (b) Refuses to obey a lawful order by the peace officer or parole and probation officer.
erre
Interfering with a Peace Officer
Intentionally acts in a manner that prevents, or attempts to prevent, a peace officer or parole and probation officer from performing the lawful duties of the officer with regards to another person
ATTACHMENT 2
1/30/2015
[rife-rfertnq \
»
: Interfering with a Peace Officer —with regards to another person
Speech alone does not constitute acting in manner that prevents or attempts to prevent peace officer from performing duty. State v. Lam, 176 Or App 149 (2001)
r-TilT/iS.
z Interfering with a Peace Officer
Refuses to obey a lawful order by the peace officer or parole and probation officer.
ATTACHMENT 2
1/30/2015
[.r iY6fTer[nQ What is a lawful order? The term 'lawful order* is not statutorily.defined. Courts look to the natural and ordinary meaning of the term 'lawful' and have
found that 'lawful order' refers to only on order that a duly appointed and authorized police officer issues that also issupported by - and not in violation of - substantive law, including the state and federal constitutions. That is, it does not infringe on a person'sexercise of constitutionally protected rights, such as the rightto free expression or speech and the right to peaceable assembly... State V. Ausmus, 178 Or App 321 (2001) State v. Ulig-Renn, 196 Or App 765 (2004)
Whether a particular order is 'lawful' is frequently a complex question involving some of the most vexing and intractable issues in constitutional law. The inquiry is addressed on a case-by-case basis, there are few if any bright line rules, and there is an almost infinite variety of variables. State v. Ruggles, 238 Or App 86 (2010)
Common A police order such as "Stop!" con be on unlawful seizure under the Oregon Constitution, if the order is accompanied by a sufficient show of authority and the officer who issues the order lacks reasonable suspicion to believe that criminal activity is afoot. State
V. Rodgers/Kirkeby, 347 Or 610 (2010) An order to disperse might unlawfully interfere with a person's right of free expression under the Oregon Constitution. State v. Illig-Renn, quoting State v. Ausmus extensively. PRACTICE TIP: Be sure to articulate how defendant's actions
reasonably posed a legitimate threat to officer safety and /or ability to maintain control of a potentially dangerous situation. State V. Neill (2007)
ATTACHMENT 2
1/30/2015
r ^omiT
Em!
1 Lawful Order or not? Produce identification
Stay put
Sit on the ground Stand up Stand a certain distance away
• Jury tip: Reasonableness
I Interfering with a Peace Officer
ORS 162.247(3) - This section does not apply in situations in which the person is engaging in: (a) Activity that would constitute resisting arrest; or (b) Passive resistance.
ATTACHMENT 2
1/30/2015
[riterferEEiQ I W'
Interfering with a Peace Officer
:: Passive Resistance
Whether the defendant was engaging in specific acts or techniques that are commonly associated with governmental protest or civil disobedience. i.e. refusal to move or to stand after being given an . order to do so.
State V. P'atnesky, 265 Or App 356 (2014)
Disorderly Conduct 11 ORS 166.025(1) A person commits the crime of disorderly conduct in the second degree if, with intent to cause public inconvenience, onnoyonce or alarm, or recklessly creating a risk thereof, the person: (a) Engages in fighting or in violent, tumultuous or threatening behavior; (b) Makes unreasonable noise; (c) Disturbs any lawful assembly of persons without lawful authority; (d) Obstructs vehicular or pedestrian traffic on a public way; (e) Initiates or circulates a report, knowing it to be false, concerning an
alleged or impending fire, explosion, crime, catastrophe or other emergency; or
(f) Creates a hazardous or physically offensive condition by any act which the person is not licensed or privileged to do.
ATTACHMENT 2
1/30/2015
r onirnorL
'iC
u
• Disorderly Conduct : Sfafe v. Afwood, 195 Or App (2004). Fighting, violent, tumultuous and threatening are not defined by statute and have their commonly understood referents to physical force, not speech. Focus is on physical conduct that is immediately likely to produce physical force. Angry gestures do not constitute physical conduct that is immediately likely to produce physical force required under the statute.
i; Sfafe v. Delaura, 75 Or App 655 (1985). Justifiable fighting may not, without more, provide the factual basis for a disorderly conduct conviction. o Sfafe V. Rich, 218 Or App 642 (2008). Unreasonable noise must be based on non-communicative features of speech such as volume, location, time of day, duration, etc.
Resisting Arrest Resisting Arrest —ORS 162.315 A person commits the crime of resisting arrest if the person intentionally resists a person known by the person to be a peace officer or parole and probation officer in making an arrest.
"Resists" means the use or threatened use of violence, physical force or any other means that creates a substantial risk of physical injury to any person and includes, but is not limited to,
behavior clearly intended to prevent being taken into custody by overcoming the actions of the arresting officer. The
behavior does not have to result in actual physical injury to an officer. Passive resistance does not constitute behavior intended
to prevent being taken into custody.
ATTACHMENT 2
1/30/2015
RespoE'tse to SybpbeEias - ORS 136.583(3): "When criminal process is served under *** the process [] described in ORS 136.447 or 136.580(2), [the recipient shall provide] the court, with all of the papers, documents, records or other things described in the criminal process within 20 business days from the date the criminal process is received, unless: [three exceptions are met]."
•U
oenas
Contempt - ORS 33.015 to ORS 33.145 Fines and awards of attorney fees Imprisonment
The City Attorney can help you: Respond
Object Modify Quash
Easier to help before you respond to the subpoena
ATTACHMENT 2
1/30/2015
Home Ihreshold [ssue$ •- "[W]here there is neither 'hot pursuit' nor any other pre existing, exigent circumstances, police officers with probable cause to arrest a suspect may not make a warrantless and
.
nonconsensual entry into a suspect's house in order to make a routine felony arrest of the suspect." State v. Dahl, 323 Or 199, 209, 915 P2d 979 (1996).
:: Where the officers did not have probable cause for an arrest, ordering the defendant by telephone to come out of his residence constituted an unlawful seizure. Dahf, 323 Or 199.
AAuntclpaf ( 3 Miranda Issues — context can be crucial.
D Equivocal invocation:
z Unequivocal invocation: State v. Koch (Or Sup Ct 2014) Unequivocal invocation... or is it?: Oregon v. AvilaNava (Or Sup Ct 2014)
ATTACHMENT 2
1/30/2015
Recent Topics Menfaf Healfh/ADA
I Sheehan v. County of San Francisco (9th Cir, 2014)
• Walden v. City of Eugene (D. Or. 2014)
Mental Kealth/ADA Definition of "mentally ill person": . Dangerous to self or
: Dangerous to others and The dangerousness results from mental illness ORS 426.005(1 )(e)
Police officer may take into custody a person on probable cause to believe that these criteria are met. ORS 426.228(1)
ATTACHMENT 2
10
1/30/2015
Recent Topics C O.XCLl SIO.V
For iese rea-^ni. itfeadau:-' 2io:i:n for i-iaxiiroECF?<
dFLAXTED.
IT IS SO OPJDERHD.
BATED this 7ti day o: I\o\'tuibtr. 2014.
\
c...
Jlichael J. llcShaue
rnir^d Staies Diinict Judge
LfcSfeU'
lOO!
Mental Healfh/ADA I Purpose of the call? ~ Mental health status must be taken into consideration
:: Information available or apparent z Warnings given? z Alternatives available? Take additional time?
Mental health crisis negotiators?
ATTACHMENT 2
11
1/30/2015
Recent' topicsSearch and Seizure Search of electronic devices incident to arrest
Schlossberg v. Cify of Eugene (D. Or. 201 2) Riley v. California, 134 S. Ct. 2473 (2014)
leceoi
:^'Ecs
Animals, warrantless entry and exigent circumstances
State V. Fessenden/Sfaie v. Dicke, 355 Or 759 (2014)
Surround and Call Out
United States v. Nora, 765 F.3d 1049 (9th Or. 2014)
ATTACHMENT 2
12
1/30/2015
R <6cem: lopfcs Homelessness/Occupy Seizure of belongings
Lavan v. Los Angeles, 693 F.3d 1022 (9th Or. 201 2)
Deserfrain v. Los Angeles, 754 F.3d 1147 (9th Or. 2014) Criminal cases
Prohibited camping Plo.za Closures
Occupy Eugene v. Beniamin, (D. Or. Sep. 10, 2014)
Recenf !opscs
Arresting or citing for trespass on publicly controlled property
ATTACHMENT 2
13
1/30/2015
Recent fopks ' u. Citations for: Cons/Poss Unlic Premises, Of^en Container, Violation of Park Rules, Criminal Trespass —letter trespass c Consequences of arrest: State V. Fuller, 354 Or 295 (201 3) State V. Benoit, 354 Or 302 (201 3)
Aggravating circumstances will help our determination
lO'OlS? Matt Cox
w: 541-726-3732
c: 541-510-7569
Email: mcox(§springfield-or.gov
ATTACHMENT 2
14
Electronic Signature
FIRST AMENDMENT TO CITY OF SPRINGFIELD INDEPENDENT CONTRACTOR AGREEMENT BETWEEN THE CITY OF SPRINGFIELD AND
Leahy, Van Vactor, Cox and Melendy Contract# 821
July 1, 2014 Parties:
The
City
of
Springfield
City"
225 Fifth Street Springfield, OR 97477
And
Van Vactor, Cox
Leahy,
and
Independent Contractor"
Melendy
The Parties hereby agree that the Independent Contractor Agreement dated January I, 2013 between the City of Springfield ( City) and Leahy, Van Vactor, Cox and Melendy ( Independent Contractor) included herein as Attachment I, is hereby amended for the first time as follows: 5. Term. This Agreement is effective as of the date first set forth above and shall continue until June 30, 2015 unless earlier terminated in accordance with the provisions of this Agreement or
by mutual consent of the parties. The Agreement may be amended annually, to extend the term stated herein, for not more than one ( 1) successive one- year period, upon mutual agreement of the parties. In negotiating any extension CITY shall consider the requirements or SMC Section
2. 708( 3) and each extension shall not be effective until reviewed and approved by the Springfield Common Council.
Except as amended herein, all other terms and conditions of the Independent Contractor Agreement between Parties dated January 1, 2013 will remain in full force and effect. CITY OF ;
NGF =
INDEPENDENT CONTRACTOIZ
Name:
Name `% ria,
I,/
Title: C"
Date:
Kl1
/
7
Title:
/
Date:
lug- 6.3. i
by City Contract & u Attorney Review
evie
ed
C821 First Amendment
Cox
and
Melendy
Leahy,
Van Vactor.
cer
Page 1 of 106
ATTACHMENT 2 - A
c-
CoX
r trick 5„ He12m Y
fp
ATTACHMENT
CITY OF SPRINGFIELD
INDEPENDENT CONTRACTOR AGREEMENT Contract# 821
Dated
January 1, 2013
Parties:
City
Springfield
of
CITY")
A municipal corporation of the State of Oregon and
Leahy, Van
Vactor, Cox and
Melendy
("
Independent Contractor ')
Additional Independent Contractor Information: A. Type
of
Entity:
B.
Address:
C.
Telephone,
Sole Proprietorship
0
Partners
Limited
Liability Company
Corporation
188 West B Street, Building N, Springfield, OR 97477 541- 746- 9621
D. Fax NoE. F.
541- 746-4109 SSN or Fed. I. D. No: Professional License(s) No
G. Oregon Agency Issuing License Oregon State Bar Association H.
Foreign Contractor
Yes ®
No
Foreign means not domiciled in or registered to do business in Oregon) See Exhibit B( 11).
CITY Account Number(s) To Be Charged ( Include Percentages): Account Number
Percentage
I
In consideration of the mutual covenants contained herein, the parties agree to the following terms,
provisions and conditions:
1. Payment by CITY. CITY shall pay Independent Contractor according to the sum and schedule described on Attachment 1 attached hereto and incorporated herein by this
referenceof$and15,in518. an 40amount not totoexceed $186, 220.80. Payable, Invoice monthly amount to be sent Crty of annually Springfield, Accounts 225 511
in the
Springfield, OR 97477.
2. Intergovernmental Cooperative Purchasing. The Seller agrees to extend identical pnces and services under the same terms and conditions to all public agencies. Quantities stated
in this bid reflect the City of Springfield usage only. A public agency wishing to purchase items will execute its own contract with the awarded bidder for its requirements. 3. Services to be Performed by Independent Contractor. Contractor will provide Municipal Court Prosecutor services. Independent contractor shall perform the services in Attachment
C820831$Lfeheridavell0Uwh99V* ndj~ Cox
and
Melendy
dy
piii"
Q blot 005
ATTACHMENT 2 - A
ATTACHMENT
2, attached hereto and incorporated herein by this reference. Attachment 2- RFO # 740
response dated May 24, 2011.
4. Municipal Solicitation Process. This contract was awarded pursuant to the City's RFQ # 740 Court Prosecutor Services 5. Term. This Agreement is effective as of the date first set forth above and shall continue until June 30, 2014 unless earlier terminated in accordance with the provisions of this
Agreement or by mutual consent of the parties. The Agreement may be amended annually, to extend the term stated herein, for not more than two ( 2) successive one-year periods,
upon mutual agreement of the parties. In negotiating any extension CITY shall consider the requirements or SMC Section 2 708(3) and each extension shall not be effective until reviewed and approved by the Springfield Common Council.
6. Independent Contractor Status. By its execution of this Agreement, Independent Contractor certifies its status as an " Independent Contractor" as that term is used under the laws of the State of Oregon, and that all performance of any labor or services required to be
performed by Independent Contractor under the terms of this Agreement shall be performed in accordance with the standards set forth in ORS 670 600, and as more specifically set forth on Exhibit "A" attached hereto and incorporated herein by this reference.
7. Conformance with Oregon Public Contracts Law( ORS Chapter 279). Independent Contractor shall comply with all applicable provisions of Oregon law for public contracts, including, but not limited to ORS 2796.220, ORS 279B.225, ORS 279B 230, and ORS 279B 235, and as more fully set forth on Exhibits " A" and " B" attached hereto and
incorporated herein by this reference
8. Work Performed. The work to be performed by Independent Contractor includes services generally performed by Independent Contractor in his/ her/its usual line of business.
9. Tax duties and Liabilities. Independent Contractor shall be responsible for all federal, state and local taxes, if any, applicable to any payments received pursuant to this
Agreement, including but not limited to income tax, payroll tax, social security and self-
employment tax. CITY shall not withhold, pay, or in any other manner be responsible for payment of any taxes on behalf of Independent Contractor
10. Reimbursement Of Expenses. Independent Contractor shall not be entitled to reimbursement by CITY for any expenses incurred by Independent Contractor unless otherwise agreed in writing.
11. Materials and Supplies. Independent Contractor shall supply all materials and supplies
needed to perform the services required unless otherwise agreed in writing.
12. No Authority To Bind CITY. Independent Contractor shall have no authority to enter into
contracts on behalf of CITY, its' officers, agents and employees This Agreement shall not create a partnership or joint venture of any sort between the parties
13. Federal Employment Status. In the event payment made pursuant to this Agreement is to be charged against federal funds, Independent Contractor hereby certifies that it is not
CB Cox
Ir F and
YeK fiN
Melendy
l2fa
b%
M D, iRJI
Y
RNW_4elm
ATTACHMENT 2 - A
ATTACHMENT
currently employed by the Federal Government and the amount charged does not exceed Independent Contractor' s normal charge for the type of services provided 14. Indemnification and Hold Harmless. The Independent Contractor shall assume all
responsibilities for the work, and bear all losses and damages directly or indirectly resulting to the Independent Contractor, the City, or to others on account of the character or performance of the work, unforeseen difficulties, accidents, or any other cause whatsoever. The Independent Contractor shall assume defense of, indemnify and save harmless the City, its officials, agents, and employees from all claims, liability, loss, damage and injury of
every kind, nature and description, directly or indirectly resulting from activities in the performance of the Contract, the ownership, maintenance or use of motor vehicles in connection therewith, or the acts, omissions, operations, or conduct of the Independent
Contractor or any Subcontractor under the Contract or any way arising out of the Contract, Irrespective of whether any act, omission or conduct of the City connected with the Contract is a condition or contributory cause of the claim, liability loss, damage or injury and irrespective or whether act, omission, or conduct of the Independent Contractor or
Subcontractor is merely a condition rather than a cause of a claim, liability, loss damage or injury. The Independent Contractor shall not be liable for nor be required to defend or
indemnify, the City relative to claims for damage or damages resulting solely from acts or
omissions of the City, its officials, agents or employees. The absence of or inadequacy of the liability Insurance required in section 15 below shall not negate Independent Contractor's obligations in this paragraph.
15. Insurance.
15.1.
General Insurance. The Independent Contractor shall maintain in force for the
duration of this agreement a Commercial General Liability insurance policy written on an occurrence basis with limits not less than $ 2, 000, 000 per occurrence and
3, 000,000 in the aggregate for bodily injury or property damage The policy will contain a " per project" aggregate endorsement. Automobile Liability ( owned, nonowned and hired) insurance with limits not less than $ 1, 000, 000 per occurrence shall
be maintained. The City, its employees, officials and agents will be named as an Additional Insured where operations are being conducted related to this contract, on
the General Liability policy as respects to work or services performed under this agreement to the extent that the death or bodily injury to persons or damage to property arises out of the fault of the Independent Contractor or the fault of the Independent Contractor' s agents, representatives or subcontractors. This insurance
will be primary over any insurance the City may carry on its own. 15. 2. Professional Liability. Independent Contractor shall maintain in force during the duration of this Agreement (and, if it is a claims made policy, for a year following completion of the project) a professional liability policy, approved by the City' s Risk Manager as to terms, conditions and limits.
15. 3.
Workers' Compensation. Independent Contractor shall provide and maintain workers'
compensation coverage for its employees, officers, agents, or partners, as required by applicable workers' compensation laws. If Independent Contractor Is exempt from
coverage, a written statement signed by Contractor so stating the reason for the exemption shall be provided to the City 15. 4.
Evidence of Insurance Coverage, Evidence of the required Insurance coverages
issued by an Insurance company satisfactory to the City shalt be provided to the City by way of a City approved certificate of Insurance before any work or services commence. 15. 5.
Notice of Cancellation or Material Change in Coverage. The certificate of
Insurance shall contain a requirement that the Insurance company notify the City 30
1
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ATTACHMENT 2 - A
ATTACHMENT
days prior to any cancellation or material change in coverage If the approved insurance company will not provide this 30 day notice, the Contractor shall provide written notice to the City contract manager within 2 days after the
Contractor becomes aware that their coverage has been canceled or has been materially changed The Contractor shall either fax 541- 726- 3782 said notice or email
it directly to Bob Duey (
[email protected]), Finance Director at the City. Regardless of what circumstances caused Contractors insurance coverage to cease or be modified, it is the contractor's responsibility to notify the City. Failure to maintain proper insurance or provide notice of cancellation or modification shall be
grounds for
immediate termination
of
this contract.
Contractor initials)
15.6. Equipment and Material. The Independent Contractor shall be responsible for any loss, damage, or destruction of its own property, equipment, and materials used in conjunction with the work. 15. 7. Assignment/Subcontract. Independent Contractor shall not assign, sell, transfer, subcontract or sublet rights, or delegate responsibilities under this agreement, in
whole or in part, without the prior written approval of CITY. No such written approval
shall relieve Independent Contractor of any obligations of this Agreement, and any transferee or subcontractor shall be considered the agent of Independent Contractor Independent Contractor shall remain liable as between the original parties to this
Agreement as if no such assignment had occurred
15.8. Exception or Waivers. Any exception or waiver of these requirements shall be subject to review and approval from the City's Risk Manager
16. Termination. The performance of work under this Agreement may be terminated by CITY,
in whole or in part, whenever for any reason CITY shall determine that such termination is in
the best Interest of CITY Any such termination shall be effected by delivery to the Independent Contractor of a Notice of Termination specifying the extent to which
performance of the work under the Agreement is terminated and the date on which such
termination is effective
17. Rights In Data. All original wntten material, including programs, Card decks, tapes, listings,
and other documentation originated and prepared for CITY pursuant to this Agreement, shall
become exclusively the property of CITY. The ideas, concepts, know-how, or techniques
developed during the course of this Agreement by Independent Contractor personnel can by used by either party in any way it may deem appropriate. Material already in Independent
Contractor' s possession, independently developed by Independent Contractor outside the
scope of this Agreement, or rightfully obtained by Independent Contractor from third parties, shall belong to Independent Contractor. This agreement shall not preclude Independent
Contractor from developing materials which are competitive, irrespective of their similarity to
materials which might be delivered to CITY pursuant to this Agreement Independent
Contractor shall not, however, use any written materials developed under this Agreement in developing materials for others, except as provided in this section
18. Confidentiality, During the course of performance hereunder, Independent Contractor or its agent, employees, or contractors, may receive confidential information. Independent
Contractor agrees to use its best efforts to maintain the confidentiality of such information and to Inform each agent and employee perforning services of the confidentiality obligation that pertains to such Information.
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Melendy
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ATTACHMENT 2 - A
ATTACHMENT
19. Assignment/Subcontract. Independent Contractor shall not assign, sell, transfer, subcontract or sublet rights, or delegate responsibilities under this agreement, in whole or in part, without the prior written approval of CITY. No such written approval shall relieve
Independent Contractor of any obligations of this Agreement, and any transferee or subcontractor shall be considered the agent of Independent Contractor. Independent Contractor shall remain liable as between the original parties to this Agreement as if no such assignment had occurred
20. Successors In Interest. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties to this Agreement and their respective successors and assigns
21. Compliance With All Government Regulations. Independent Contractor shall comply
with all Federal, State and local laws, codes, regulations and ordinances applicable to the work performed under this Agreement. Failure to comply with such requirements shall constitute a breach of contract and shall be grounds for termination of this Agreement
Damages or costs resulting from noncompliance shall be the sole responsibility of Independent Contractor
22, Attorney Fees. In the event a lawsuit of any kind is instituted on behalf of CITY to enforce any provision of this Agreement, Independent Contractor shall pay such additional sums as the Court may adjudge reasonable for attorney fees plus all costs and disbursements at trial and on any appeal.
23. Force Majeure. Neither party to this Agreement shall be held responsible for delay or default caused by fire, riot, acts of God and/ or war which is beyond that party' s reasonable control. CITY may terminate this Agreement upon written notice after determining such delay or default will unreasonably prevent successful performance of the Agreement. 24. Assistance Regarding Patent And Copyright Infringement. In the event of any claim or suit against CITY on account of any alleged patent or copyright infringement arising out of the performance of this Agreement or out of the use of any material furnished or work or services performed hereunder, Independent Contractor shall defend CITY against any such suit or claim and hold CITY harmless from any and all expenses, court costs, and attorney's fees in connection with such claim or suit.
25. Severability. If any provision of this Agreement is declared by a court to be Illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected and the rights and obligations of the parties shall be construed and enforced as if the
Agreement did not contain the particular provision held to be invalid.
26. Access To Records. CITY and its duly authorized representatives shall have access to books, documents, papers and records of Independent Contractor which are directly pertinent to this Agreement for the purpose of making audit, examination, excerpts and transcripts.
27. Waiver. Failure of CITY to enforce any provision of this Agreement shall not constitute a waiver or relinquishment by CITY of the right to such performance in the future nor of the right to enforce any other provision of this Agreement
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ATTACHMENT 2 - A
ATTACHMENT
28. Amendments. The terms of this Agreement shall not be waived, altered, modified, supplemented or amended in any manner whatsoever, without prior written approval of
CITY No modification of this Agreement shall bind either party unless reduced to writing
and subscribed by both parties, or ordered by a Court.
29. Nondiscrimination. Independent Contractor shall comply with all applicable requirements of Federal and State civil rights and rehabilitation statutes, rules and regulations.
30. Dual Payment. Independent Contractor shall not be compensated for work performed
under this contract from any CITY agency other than the agency which is a party to this
contract-
31. Remedies. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon, and any litigation arising out of this Agreement shall be conducted in the courts of the State of Oregon, County of Lane
32. Entire Agreement. This Agreement signed by both parties is the parties' final and entire Agreement and supersedes all prior and contemporaneous oral or written communications between the parties, their agents and representatives There are no representations, promises, terms, conditions or obligations other than those contained herein.
IN WITNESS WHEREOF the parties have executed this Agreement to be effective the date first
set forth above.
CITY OF SnfaN
INDEPENDENT CONTRACTOR
By Name:
Name:
Title: Date:
n,, r r
J&
Title.
F is
Date:
6
s ., pcvre, by City Contract Officer lJ. 13• lY
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EXHIBIT " A"
CITY OF SPRINGFIELD INDEPENDENT CONTRACTOR AGREEMENT
Independent Contractor Status
All performance of any labor or services required to be performed by Independent Contractor shall be performed in accordance with the standards set forth in ORS 670. 600 ( 2005), and as follows:
A person is customarily engaged in an independently established business if any three of the following six requirements are met: The person maintains a business location:
1.
That Is separate from the business or work location of the person for whom the
a.
services are provided; or,
b.
That Is In a portion of the person' s residence and that portion is used primarily for the business.
2.
The person bears the risk of loss related to the business or the provision of services as
shown by factors such as:
C.
The person enters into fixed- price contracts; The person is required to correct defective work; The person warrants the services provided; or,
d.
The person negotiates indemnification agreements or purchases liability
a.
b.
insurance, performance bonds or errors and omissions insurance. 4.
The person provides contracted services for two or more different persons within a 12-
month period, or the person routinely engages in business advertising, solicitation or other marketing efforts reasonably calculated to obtain new contracts to provide similar services.
S.
The person makes a significant Investment in the business, through means such as: a.
Purchasing tools or equipment necessary to provide the services;
b.
Paying for the premises or facilities where the services are provided; or
Paying for licenses, certificates or specialized training required to provide the
C.
services.
6.
The person has the authority to hire other persons to provide or to assist in providing the services and has the authority to fire those persons.
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Melendy
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ATTACHMENT 2 - A
ATTACHMENT
EXHIBIT " B"
City of Springfield Public Contracts
Conformance with Oregon Public Contractors Laws Puna. at in Oregon loo, e+ et) public contract shall con lam the following candmonv I 1
Make Payment promptly, m due, to all persons supph1119 to the contractor Inboor material far the performance of the stork Pxm ided ORS 27913 120( 1)
form the contract 21
Pas all comilhuhons m amnunh due the Indu,(, aat Ac., dmt Fund frotn the,. I...%a, or ah.onlmclor meuneJ In the P,, fomnaoce or ORS-' 79B220121
ihetunlrad
Nnl Permit anv hen or claim In be filed or pmte, ared a¢ anl, l the slate or a county.+ choul duns municipality. m)motpal corporation in whdnt+ton thereof on.., count of any labor or material fum- hed ORS_' 7413:^ 2( 1131 41
Pay to the Department of Re, enue all gums x lthheld lmm employee. under ORS a 11167 ORS 219B 2_ 044)
5)
Ifthe agreemem- for lawn and landscape manici tt It ehall emnl. m a condition requiring the contractor to salsage_ rm), le, eompo. l or mulch> ad wall, material at an apl rmed. ife, Sfrasrhle and usbetYcell, c ORS 2790 225
b)
prumpily ac due. malt: payment to. my perem,. op. mnarshtp, a. wI.Wam or corporation fmm, hmg medical. surgical and boyntal
care ce tees or ether needed care and mtrnuun, tne, dent Ni a, knes, or mjury, to the employe¢ of the tonbado.. of ail um, that the contractor agrees to pay for the sin ses and all money, and sun- that the , oalmew, cmlle. led or deducted horn the wage, of anplo) ees under any law, wmrml or aVocluent ho the purpm. e of proytdmg m papng for the+ enaco All canplovers shall comply
wnh ORS65o017 ORS179R230 71
A person may not he employed for more than w Iloun man) ooe day. or 40 hours m an) one neck, eicepi In cases of ne, e, sn},
emergency or efi en the pubhe pnbcy ah+olutdy regmre+ d. and m weh ernes. eecrpt m cases o( emntta. l. Cot prrsemal yen rtes
desgnmcd undo URS: 79d U%, the employee shrill he pall oI least ume anJ a hall pay
For all o, mime m toles of right hours n dat or to hours mans one week when the wort weal 1, lo, r . nsecun,,
al
day,. or III
For alloy rtone m e, cess of 10 hymn m son one day or aU hour, to an, one week soh. the, ar+k„ ceL n four
cnn, cculnc days Ffonda, through Friday, and
roc all work pedonned on Samoll, and on any legal holiday, pec, ied in ORS 2' 9B 0.'0
el
An emplovef must gne nonoc m wrong to employees who work on a public mntra, l. either at the time of hoe of betorc sommeneemcnt of work on the contract, m fi hinging a notice m a location frequrnted by employee,, of the number of hour, per dal
and day, per week that the employee. maybe requned to work ORS 2790 2? 50 ryh S)
It the agreentrm I,( err personal sera mr+ the contras+hall asnmm a pros- son that the employee shall he paid o least ume and o half far all o, cosine rooked rn eacros of 40 hours m am. nc„ cck,« ceps im mdn Idea is under personal smyres eonrrau, oho ate e, duded under ORS 653 Ulu m G5a_' 61 or under 291' S f 2nl- spy from remnog., mime ORS_17YLl 745(})
41
Contracts! mr sin Ira must contem a prm- ton that rcgmre, that Pzrs. ns employe) undtt cont... r„ hall recene at ka, l rime and half pay for woe, performed on the legal holidays specified In a calleclne bargatmng agoneane , or in ORS 279B 02011 XbxT)-( W end( or all brae wmkcJ m excess of 10 hours m any one day or m e, cem of 40 hours m any one wick „ hnhe, cr rs ipeaty Emplayer shall Pp,< soiree m wiring m employ< es x bo, cod on a contras( m+ rn Ices. other at the ume of hire or hefine sommencemrnt of xbd on
the« iamcl, or by pmtmg a.
1, ce in a location fra7uenied by employees. of the number hours per da) and den per reek that the
employcc. maybcrcqutredtnwork
ORS279B21951
If this lar" ment Is for. public impro. ement, the contract, h. 11 contain the following conditions: 101
ASake payment pmnrptly, as Jac, to ell pecan.+ upplpng In the con(m, 1or la6ot m metenal Cu: the pedormantt of the wok pin, IdtJ fonn[ hecomm, i OM279(- 5n5( Ilta)
11)
P.
Y.
Il
contnlamom.....
the ecmtiwl 111
worts due the Indu, tnal Acctderm Fund from the c. mrict., or wbconIntact IncwTeJ in the performance of
ORS 279C 50511 Xb)
Not permit any hen or Oman to he Men or prveccuted agam, t the sale or a county,. chw1 distinct mumspahty municipal cmptaaton or. uldn faun thereof. mI account of am labor at ma. mal fumuhcd ORS 2740 51150 hc)
1?
1
Pay to the Depanment of Re, mue all sum, wa lhhcld( rona ernplo) ea, under ORS 716 167 nRC. 79C 505( l)( it)
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if the im umcbr fads. neglects or refuses to make prompt payment of any claim for labor or sm ices fumsshed w the awasuctor m ubeommotar by any pcwm in connection with the public mup, o, emrm sarimi t as the claim becomes due, the prop. office, or officers m1m: ac tag the slate ar a county, school district, mums Pahty, muse pa) eorpormsem or subdoo rsnn thereat as llwe4' c may
be, may pa) such chum to the per.
fum,shumg labor or Ben ices and charge the amount of the payment against the funds, due or to
become due the aonsum t bs reason of the eunuael
Lithe connotes"
or first- no suboantia, im fads. neglects or refuse, to male
payment In a Pinson ferar hug luhur m materials in connection with The pubbc amprosement contract wathm 30 days after racipt of
Payment from the contracting agency or a contractor, the contractor or fin- ti. subcontractor shall owe the person the amount due plus Interest charges, osamenang at the end of the 10- day period that payment is due undo ORS 279C 580( 4) ad is subject to a good faith dispute as defined in ORS_' 79C 580
if the amuactor Ora subrontractor( ads, neglects ar refus,et to make payment Ina person
furnishing labor ar malertals m connection with the pub he rmino, crvmt contract, the parson may file a complaint with the Constmcuon( antmctors Board. unle, s payment is subject to a good faith dispute as defined in ORS 2790 580 16)
ORS 279C 515
The pe) meni of a clam does not rehcwv the cuntactor or the eonraeteri. surety from obligaitan wBh rcepeet to any unpaid claims ORS 2790 515( 41
17)
A pttson may not be employed for more Ihan I0 lsuurs m any one day, or 40 houo m an) one week. eaKpt In cases of neccasny. emergent) or when the public policy absolutely requires it, and in such cases- except in cases of contracts fa personaIsm Kea de• mgnated under ORS 2799 100 the employee shall be paid at least hue mid a half pay
For all., mime an excess of eight hunts a day or 40 hours, in any one wack when the work week is the cons mmne
a)
days, or,
Is I
For all os crane in e>.scis of 10 hours to anyone day or 40 hours in any one, eck when the work m eck is four cons, eutoc days, hlondsy through Friday. and
c)
For all work performed on S3mrday and an any legal holiday spec, fled in ORS 2798 020 ORS 279C 5211( 1)
An employer shall gne mane[ in wntmg to enspbyxes who w' mt on. public commit either at the time of hire or before
commeuconent of wark on the contract. ur by posting a notice in a location frequented by employees of the number of hours per dal and da) s per week that the employees ma) M required to work
ORS 2798 520, 2)
If The agreement is for personal sm, ces, the cs mmi shall contain a prat, stun that the employee shall he paid at leas) lime and a half
113I
for all s cimme 2s,o, ked on excess of 40 hours in any one reek- except for nodn duals made, personal sin uses co mach x h0 are excluded under ORS 653 010 to 651 261 at under 29 U S C 201- 209 from ices mg o, mime ORS 279C 52n( i) 19)
Contracts for
en, ec, must contain a prow ision that requires that persons employed under contracts shall tree, ee at least time and hall
pay lur work i+erfomsed on the legal holiday, spe thed m a coll" tivc bargaining agreement m in ORS 2279( 540( 1111, 8B)-( G) and for
all time, asked on excess of 10 hours in any eve day os in easee. shall gr, c moticc in wrung to employ res,
a1` 40 hours an tins one week, whmhes er is great.
An employer
ho n ask on a contras for sin so, either at the time of hire or befmc cnmmencdnem of
work nn the contact, or by poahvg a notice us a locsnm frequented by employees, of the nond,, of hours per day end dais per wrek that the eniplo, ac, eras he rtqu, md to, 20)
ark
ORS 2790 520( 5)
S, di, amon doeummis for a public, mpraw ement carbact shall make specific reference to federal, state and local agencies that has,,
enacted ordmances. roles or regulations dealing wuh the pm soon ofanr rrnunental pollution and the pte, met asn ofmNral renurees that affect( be prdoratumm of the contract A solaa Malian daenment must also male special reference to known conditions
at the can, rtuelmn site that may require the sua+nsful bidder to comply with the ordmanan,, roles or mgulatuans identified und. ORS 2790 52511) If the successful budder. wOumeR n codmoo oat referred 10 to the.. reflation documents, not caused by the uccc,, fu) bolder cod not d, sce crable by a reasonable prebid wmsual sole inspection, and the condition requires compharice with the ordinances, rules,or regulations referred to under ORS 27K 525( 1), the successful bidder shat] immediately gne notice of The emdns.+n to the.- amuacung sgrnc)
to the ovmdvi n encountered and d.,. I)
The w,. cssPol hrddn may not csweavamae w+wk oar incur any edd, uonal job site inns m regard
I d m ORS 279 525( 3n without mnmen dmccbon from the contacting agency ORS 279(' 5.25
Promptly, as due. make payment to any person, copartnership. association or corporation furnishing medical, suriwal and hospital sere sin ones or other aceded care grid arzamum, m, vdemr to sackmess or mime, to ilae employees of the eonmaemr, of all s,ums that the canua.
or
agrm, to
pay to,
the aca,,
cs
0
and s,
moneys and..
that the cmdraclm colic;n d in deducted must the raga of
cmplo) ees under any tae. nmirael or egieensenl for thepusjpo. e ofpmstdmg orpaymg for the acnucs, All emploversshall comply nh ORS656017 2T
ORS2790530
A canimet for pubhe works shall aantam a pm, rvoa stating the ex,mvg stoic pr , admg rate and wage and, if appluble. the federal prey admg tale of ws,age reyuirtd
Esers contract and subcomme( shall coniam a pmstunn that markers shall be paid not Ic. s than the
Specified Minimum hourly rate of%see in accordance with ORS 279- 81x
URS 279( 870( 1)
If this agreement is for demolition, the comtaaH shall also contain the falloeing conditions 23)
Conttaator must, ahage or mecyde caysut l,.
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end demolition dehns, if feamble ad cost-dfoctne ORS 2279(' 510( 1)
PAMID90V1P
ATTACHMENT 2 - A
ATTACHMENT
ATTACHMENT 1 SCOPE OF SERVICES
Act as the City Prosecutor pursuant to an independent contractor contract or other similar agreement administered by the City Manager, or the City Manager' s designee. More specifically, the City Prosecutor
shall
I
Authorize, File, prepare, and try major misdemeanor criminal cases, major traffic cases, and attorney- represented infraction cases. including those outside the usually criminal offense
categories ( nuisance, zoning, building, licensing, and so forth), in the City of Springfield Municipal Court, and if appealed, in the Lane County Circuit Court first 2.
Negotiate and settle cases prior to trial including yet not limited to pretrial conferences, and or
settlement offers as a first step prior to settings of trial dates. Evaluate cases and provide discovery
to defendants and their attorneys. Establish settlement policies to protect victims, obtain restitution,
and recommend appropriate settlement penalties on defendants 3.
Provide legal counsel and opinions to Police personnel concerning criminal matters potentially or
actually under Springfield Municipal Court jurisdiction. Advise the Police Department of changes in statutory and case law as they affect Policc procedures
4
Provide advice and information to Springfield citizens regarding criminal law generally and the applicability of City ordinances, with referral to other agencies as appropriate
5
Provide legal advice to the City Council and City Manager on criminal matters and draft City
ordinances
G
Be responsible for the City Prosecutor' s budget, including the preparation of proposals and authorized expenditures within appropriations
7.
Maintain office hours in the office space provided by the City Monday through Friday gam— 5 pm and staffed with Prosecutor present from 9 30 a.m. to noon, Monday through Friday and when
attorney trials are scheduled Be available for arraignments and other matters on Mondays and
other hours during the week such that satisfactory service is provided to the public, city staff, and others who interact with the City Prosecutor, The City Prosecutor will provide monthly time
records of the amount of time expended The compensation will be reviewed annually, and may be
adjusted according to time to be expended on the basis of an annual performance evaluation g.
Employ all secretarial and clerical support necessary to effectively carry, out the work of the City
Prosecutor' s Office 9
In order to provide the City Prosecutor access to the Tegtonal Law Enforcement Data System LEDS) and maintain the system' s security and imegriiv. the City will provide office space, hardware, computer records management software and office supplies in the Justice Center for the m
Cih' Prosecutor and support staff at no charge. The City Prosecutor will be required to ensure that all staff members who access or run LEDS records are able to complete and obtain LEDS
certification, re- ecrtify as required LEDS and otherwise comply with all LEDS requirements
Failure to comply with LEDS requirements would result in denial of access to the LEDS system 1?
C8 Cox
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Melendy
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ATTACHMENT 2 - A
ATTACHMENT 1
10.
In the event that back up prosecutor services are required resulting from conflict of Interest, workload, scheduling or other issues the City Prosecutor will secure those services from the City
Attorney' s Office unless conflict of Interest, workload, scheduling or other issues preclude the City Attorney' s Office from providing those services
Performance Standards
Submit quarterly reports which include data and/or narrative related to the following informationAttorney Cases Scheduled in Court, Cases Resolved, Average Number of Days Cases Remain on Docket, and Documents Prepared, and number of cases resolved prior to day of trial
The above information should be provided for the existing quarter and in a format that compares the existing quarter to previous quarter and the same quarter for the previous year. Conclusions regarding trends and actions which need to be taken regarding trends should be provided in a written narrative 1.
Propose and implement where appropriate cost containment measures and process improvement
with regard to prosecution in the City of Springfield Municipal Court As a stakeholder in the criminal justice system, participate in change processes as the Springfield Police Department and
Springfield Municipal Court continues to move towards near-paperless processes. As funding and opportunity arises, this will include participation in changes pertaining to a new City Prosecutor computer records management system.
2
Maintain professional and harmonious working relationships with the Springfield Police
Department, Municipal Court, City Attorney' s Office, City Manager' s Office, and public 3
Arrive at meetings and trials on time and respond to all phone calls in a timely fashion, normally within 24 hours or sooner in the case of emergencies,
4.
Advise the City Attorney' s Office of potential civil liability on the part of the City as it may pertain to the prosecution function.
5
Stay abreast of statutory and case law concerning matters of potential prosecution in the Municipal Court Advise the Police Department and other city offices as appropriate.
6.
Submit a monthly itemized record of the time and services provided under this contract ( City will provide a template for the data.) Additional metncs to evaluate services will be agreed upon by both City and Independent Contractor upon commencement of services.
ca
7
Submit billings under this contract to the City on a monthly basis.
R
Maintain good standing with the state and local bar associations.
9
Meet with the City Manager or his/ her designee monthly.
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LEAI-R', VAN VACTOR COX& MFITNDY,LL1
Attorneip at Law
188 West B Street, B. ading N Springfield, Oregon 97477 541) 746-9621 541) 746- 4109- Fax
RFQ# 740 Municipal Court Prosecutor Services City of Springfield
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Matthew j Cox
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Joseph J. Leahi, Of Counsel Bill Van Vactor, Of Counsel
May 24, 2012
City of Springfield Attn: Jayne McMahan, Sr. Management Analyst Finance Department 225 Fifth Street Springfield, OR 97477 RE:
RFQ# 740 Municipal Court Prosecutor Services
Dear Ms. McMahan:
The law firm of Leahy, Van Vactor, Cox& Melendy, LLP thanks the City for allowing us the opportunity to submit this letter of qualifications.
Leahy, Van Vactor, Cox & Melendy, LLP is an established law firm located in Springfield,
Oregon. Although our firm has seven attorneys, attorneys Matt Cox and Patrick Melendy would be the two primary Springfield Municipal Prosecutors with 2nd year
associate Taylor Murdoch as a backup. Other firm attorneys including Mary Bridget Smith would be available to cover prosecution duties on occasion if necessary. All
attorneys of the law firm are members of the Oregon State Bar in good standing. The firm also has an agreement with the University of Oregon School of Law which provides
2 law student externs each semester including summer term as municipal law clerks. CONTACT INFORMATION: Firm Name:
Mailing
Leahy,
and Physical
Address:
Van Vactor, Cox &
Melendy, LLP
188 West B Street, Building N Springfield, OR 97477 541- 746- 9621 541- 746- 4109 93- 0700427
Telephone No: Fax No: Tax PayorID:
PRIMARY CONTACT: Matthew J, Cox, Partner Cell:
541- 510- 7569
Email:
mjc @emeraldlaw. com
RESIDENT BIDDER/ LICENSING:
Leahy, Van Vactor, Cox & Melendy, LLP is a currently licensed limited liability partnership, licensed to do business through the Oregon Secretary of State' s office, C82q ?
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City of Springfield May 24, 2012 Page 2
Registration No. 825313- 94. Leahy, Van Vactor, Cox& Melendy, LLP is a " resident
bidder" per ORS 279A. 120( 1)( b).
This proposal includes the following: 1.
Response to Application Questions per RFQ Attachment 2;
2.
Documentation in support of proposal;
3.
Signed Attachment 4 - Authorization to Legally Bind Bidder; and
4.
Signed Attachment 5 - Minority Women Emerging Small Business Form MWESB).
Our goal is to provide effective and efficient prosecution services to the City that is
responsive to the City' s needs,
The proposal presented herewith responds to the City's RFQ and outlines our firm' s strengths for providing prosecution services to the City.
The firm's partners have read and understand the RFQ and this proposal is made in accordance with it.
Sincerely, LEAHY, VAN VACTOR, COX & MELENDY, LLP
Matthew I Cox, Partner
Mary
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Patrick S. Melendy, Partner
Smith, Partner
Kay Hyd Pa on, Partner
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Question 1: Describe your experience with criminal law processes.
Our firm has extensive experience in criminal law with particular expertise in municipal
prosecution. Matt Cox began his legal career as an Assistant District Attorney at the Lane County District Attorney's Office and currently contracts with the City of Eugene to handle cases as a prosecutor in Eugene Municipal Court. Our newest partner Patrick
Melendy currently is the City Prosecutor for Junction City and Oakridge in addition to
experience in the Cottage Grove, Sutherlin and Florence Municipal Courts. Mary Bridget Smith has past municipal court experience in her previous position as an Assistant City Attorney with the City of Yakima, Washington and Taylor Murdoch has experience working in the Springfield Municipal Court. Matt
x:
As a Prosecutor:
Twelve years experience with evaluating police reports and fling misdemeanor and felony charges;
Plea bargaining and negotiation with defense attorneys and pro se defendants of misdemeanor and felony cases of all degree, including misdemeanor traffic and assault cases as well as minor infraction cases;
Establishment of settlement policies for instance standards for first, second, third DUII or reckless driving cases;
Communicating and preparing of criminal cases with victims, witnesses and police officers;
Working with victims, court staff, municipal prosecution staff and police officers to obtain and collect restitution on behalf of victims;
As assistant DA for Lane County and Eugene City prosecutor, have provided legal
counsel and opinions to police personnel regarding criminal matters especially pending cases during motion to suppress processes;
Violation, misdemeanor and felony trial practice including hundreds of bench trials and jury trials tried to completion including on appeal from Municipal Court to Circuit Court.
As a Defense attorney:
On behalf of a divorce client, handled a charge of Assault IV which went to jury
trial at Lane County Circuit Court In 2006;
On a behalf of client, negotiated settlement of criminal drug charges in Polk
County Circuit Court in 2006; and
At United States Federal District Court in Eugene, Oregon defended clients charged with environmental Impact crimes concerning unpermitted river bank restoration in 2011.
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Patrick Melendy: As a Prosecutor:
Junction City Municipal Prosecutor ( July, 2007 to present):
Evaluation of police reports and filing misdemeanor charges and select violation
cases including nuisance abatement and code enforcement matters.
Post judgment show cause and probation violation matters including actions for
contempt of court for non- payment of court fine obligations.
Worked with police, court and municipal probation officer to hold offenders
accountable after judgments are entered. of Prosecution News & Update - intended as an
Police trainings and maintenance
online blog with updated information regarding current Case law, DUII corner
information and search and seizure issues.
Oakridge Municipal Prosecutor ( July, 2006 to present):
Evaluation of police reports and prosecution of select actions in Oakridge
Municipal Court to include FTA (" Failure to Appear' on violation proceedings and Contempt of Court actions to hold offenders accountable after the Oakridge
Municipal Court lost services previously provided by the Lane County District
Attorney' s Office and the Justice Court System.
Training with Oakridge P. D. and availability to field calls from officers regarding current and ongoing cases, investigation and prosecution. Cottage Grove Municipal Court Prosecutor (January 1 2000 until June 1 2007):
Evaluation of police reports, consultation with officers and witnesses, negotiate
with defense counsel, work with court staff and municipal judge to successfully
prosecute misdemeanor crimes in the City of Cottage Grove. As a Defense Attorney:
Sutherlin Municipal Court ( indigent defense contract 2001 to present)
Retained defense work in both State and Municipal Courts throughout the State
of Oregon.
As a Civil Attorney:
Extensive experience in the arena of civil litigation including both FAPA and
Stalking Protective Cases where the interplay of civil and criminal law is significant.
Taylor Murdoch:
Attorney Murdoch has substantial experience with criminal law for an attorney who has recently been admitted. During the summer of 2011, attorney Murdoch worked as the
pro tem City of Springfield Prosecutor where he successfully tried DUII cases as a court
certified lawlaw student while still in law school. CB2C 8,
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Prior to law school, attorney Murdoch worked at the Louisiana Capital Assistance
Center, a non- profit law firm dedicated to providing the highest quality of criminal defense work to indigent clients facing the death penalty throughout the deep south. During his time there he worked as an investigator and clerked on several capital
murder cases. Currently, attorney Murdoch practices some criminal defense law with jurisdictions outside of the Eugene/ Springfield area. Mary Bridget Smith:
Before coming to Springfield, attorney Smith started her legal career as an Deputy District Attorney for Yakima County prosecuting cases in the Yakima County District Court. She worked for the.Clty of Yakima where she continued her prosecution practice focusing on DUI, theft, Domestic Violence cases in Yakima Municipal Court which is
similar to Springfield in that both cities have a municipal jail. Currently she fills in for attorney Melendy at Junction City Municipal Court when he is unavailable.
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Question 2: Describe your background, including the number of years in prosecution work and litigation experience. Describe any specific experience
in Municipal prosecution. Include a statement describing why are you qualified to perform the work outlined in this RFQ and detailing the proposed
approach to performing this work. Matt Cox:
Background: Attorney Cox became interested in criminal law with an emphasis on criminal prosecution during law school. After his first year of law school, he worked as a full time law clerk for the US Attorney's office in Eugene, Oregon ( summer 1996). In
the summer of 1997, he worked for the Jackson County District Attorney's office in
Medford, Oregon. His dudes included legal research and writing as well as trial work ( 5 He was hired as a full time Assistant or Deputy District Attorney for Lane
jury trials).
County in September 1998 upon admission to the Oregon State Bar. Attorney Cox worked as a full time Deputy District Attorney at the Lane County District Attorney's
office from September 1998 until April 2004 ( 6 years) in the Criminal Division. He Handled primarily a misdemeanor case load from 1998 until 2002 whereby upon promotion he began doing non- violent felony cases including drug cases, burglary cases, car theft, etc. From April 2004 to current, attorney Cox has been employed full
time at the Leahy firm whereby he has focused his practice on litigation including domestic relations litigation, contract and tort litigation including multiple civil jury trials
on both plaintiff and defense side. He was hired as a Municipal Court Prosecutor for the City of Eugene in January 2007 ( 5 years). That contract continues at present. Specif c Experience in Municpal Prosecution: For attorney Cox, a specific experience that has continued to stand out regarding municipal prosecution concerns an assault case following a road rage incident which attorney Cox prosecuted the case that went to trial in 2006. The victim suffered fairly serious injury and was very concerned about testifying/ facing the accused. After successfully convicting the defendant at Municipal Court C
conducting sentencing, obtaining restitution, etc., the victim has stayed i n
over the following years, It has been an eye opening experience for attorney
Cox to talk to the victim as the years go by and to understand how the road rage and assault incident continues to be a major incident and circumstance of the victim' s life.
Ouaiifications to Perform the Work Outlined in RFQ: During the seven years at the Lane County DA' s office, attorney Cox received extensive training in DUII prosecution
including DRE training at an academy in Salem, domestic violence training specialized
including training in Salem, working with victims and witnesses as well as search and seizure training. The five years spent working for the Eugene City Prosecutor' s office have provided substantial on the job training concerning Municipal Court case load management case load settlement policies and speaking with victims and witnesses
about misdemeanor Municipal Court crimes. One of the transitions that was necessary
to achieve from the DA' s office to working in Municipal Court was the scope of the work
concerning level of crime/ level of offender For Instance, many of the cases fled in Municipal Court would be no- filed or not brought in Circuit Court. The DA' s office focus was on dealin with seriousIoPdY offenders creatin9 criminal records for serious offenders 695
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and putting them in prison where applicable to protect the public, Attorney Cox's experience in Municipal Court with many cases has lead him to understand the importance of what he now calls livability crimes. These can include Criminal Trespass, Consumption, Theft III, etc. These are crimes that have substantial impact on people' s
lives but are often overlooked or given short attention by felony and/ or major crime prosecutors when such crimes are compared to things such as Burglary, Arson, Rape, Robbery, Kidnaping, Murder, etc. Working with victims, witnesses and police officers in
regards to livability crimes and their importance to the community has given attorney Cox a great appreciation of how positive an impact successful prosecution of such
livability crimes can have on a community. Patrick Melendv:
Specifc Experience in Municipal Prosecution/ Litigation:
Junction City Municipal Prosecutor ( July 2007 - Present).
Oakridge City Municipal Prosecutor( July 2006 - Present).
Cottage Grove Office of City Prosecutor ( January 2000 - July 2007) City of Sutherlin Indigent Defense Contract ( 2001 - Present) 15 years experience with criminal defense in State and Municipal courts throughout the State of Oregon.
15 plus years civil litigation experience
Qualifications to Perform the Work Outlined in the RFO: Fifteen ( 15) plus years arguing cases to judges and juries. Nearly twelve ( 12) years experience as a municipal
prosecutor in multiple jurisdictions. Springfield City resident and property owner since 1997.
Proposed Approach to Performing Springfield Prosecution Work: If awarded this
contract, our firm would work with the court, jail and police to implement a system that will result in cases being handled in a consistent and efficient manner. We are passionate about the role a municipal court plays in preserving the quality of life in a
community and believe the Springfield Municipal Jail can play a significant role in keeping defendant's accountable because, in cases where a jail sentence is appropriate, citizens of Springfield will know that there will be consequences for unlawful behavior,
More specifically, our approach will include a prosecutor being present at arraignments.
The purpose of this system is to give the defendants an offer to settle their case before
it is set for trial. This method has proved to reduce indigent defense costs because many cases can be resolved before a court appointed attorney Is appointed. Further, it
is appropriate for many cases in Municipal Court that do not rise to the level of requiring
a substantial penalty such as a long jail sentence. This way, the cases involving repeat offenders, serious safety risks such as a repeat drunk driver can be given more focus
because cases involving less serious situations are already resolved. In addition, we are interested in establishing a trial status review hearing approximately 35 days after C8J18
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arraignment. These kinds of status hearings help keep a case moving forward because it requires the parties to work on their case before the trial date and allows the court to
limit the number of times a case is reset.
Although our firm has several attorneys with prosecution experience, our plan is to have attorneys Cox and Melendy as the lead attorneys for the Prosecutor's Office and attorneys Murdoch and Smith would assist as needed.
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Question 3: Submit an up-to- date resume( s). Also, include proof that you are licensed to practice law in the State of Oregon and are an active member
in good standing with the Oregon State Bar. Resumes of attorneys Cox, Melendy, Murdoch and Smith are attached.
Proof of all firm attorney active membership and good standing in the Oregon State Bar are attached.
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Question 4: What steps will you take as Prosecutor to assure that violators are prosecuted to the full extent of our community' s standards?
Vertical Prosecution: We will ensure that police reports are thoroughly reviewed at the outset by a prosecutor who will be able to determine if it is appropriate to file criminal charges. The same prosecutor will handle the case during the pretrial phase and if appropriate, negotiate a plea bargain. If the case is not resolved, then it is set for trial,
Vertical prosecution has two main benefits. First, it creates accountability for the prosecutor because that same person must see the case through from start to finish,
As a result, there is more incentive to thoroughly evaluate the case in the beginning of the process. The second benefit is efficiency. Once a criminal case is filed, a whole administrative process is put in motion that includes court staff time, police overtime,
issuing subpoenas and preparing for trial. Vertical prosecution saves on the costs associated with this process because of the practice where every case is filed and then the weaker cases are weeded out later, only the stronger cases are filed.
Consistent Sentencing Practices: Our firm would strive to have a consistent sentencing policy that is fair, tough, just and consistent with our community standards. Contempt Filings: When a prosecutor files a contempt filing in a criminal matter, it allows the court to enforce the defendant's fine payment obligations because the
defendant is required to come to court and explain why they have not paid their fines. Our firm has had success with this process in Junction City and Oakridge Municipal Courts and if awarded this contract, would like to implement the same practice. See attached forms for reference. We believe this practice is consistent with the values of,
the community of Springfield where voters have demonstrated that they support law enforcement and believe offenders should be held accountable for their actions. See contempt forms attached.
Prosecutor Involvement at Probation Violation Hearings: Attorneys from our firm would attend probation violation matters and make recommendations when defendants fail to
comply with the requirements of their court mandated probation. Similar to contempt filings, this practice ensures accountability and deters further criminal conduct because
defendants learn that if they fail to comply with probation they are subject to sanctions including jail time.
Springfield Municipal Jail: Unlike many cities, Springfield has a municipal jail that provides an important component to effective law enforcement. Our firm believes that,
where appropriate, a jail sentence can deter further criminal activity and help Springfield in its goal to reinvigorate downtown. We understand the purpose of a
municipal jail as opposed to a county or state facility as a means to enforce misdemeanor crimes and would incorporate jail sentences into our sentence recommendations on a consistent and appropriate basis.
Another function of the municipal jail is its role setting pretrial release conditions for defendants because the courtdycan now impose bail and hold a defendant in custody
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until that person provides the bail set by the court, or in circumstances where the
defendant fails to appear for a subsequent court hearing the court can issue a warrant and once the police find the defendant that person is held in custody. Our firm would have a prosecutor available to make recommendations on bail and warrants using
factors such as whether the person is a flight risk, previous criminal history and the seriousness of the event charged.
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Question 5: Please discuss fully your philosophy pertaining to pretrial settlement processes, plea bargaining and/ or trials and how you would apply it in this position. Municipal court prosecution involves dealing with a high volume of cases and pretrial settlement and plea bargaining can be an effective way of resolving cases and reducing court costs if they are handled correctly. For example, some cases should not go to trial because the factual basis is so strong or the offense is relatively minor and offender is willing to resolve the case early. In this circumstance it makes sense to resolve the case with a plea bargain early in the process without putting a lot of time and effort in trial preparation. By Instituting a practice where a prosecutor is present at arraignment and the status review hearing, we believe we can identify the cases that should settle earlier in the process. Attorneys at Arraignment/ Offers Made: Through his work in Cottage Grove and Junction City, attorney Melendy developed the system where defendants are given an offer to settle their case at arraignment. Our experience in handling arraignments in this manner has been that many cases are resolved at the arraignment for the same level of penalty as would have been achieved after a public defender or retained attorney had been hired by the defendant, discovery has been copied and received, and
subsequent hearings have been held. This process also reduces indigent defense attorney fees and municipal court staff time. Not all cases will or should resolve this
way, but it is an effective method for dealing with the high volume of cases that occur in a municipal court. See packet of forms attached.
It is important to note that in this process both the court and the prosecutor inform the defendant about their right to an attorney and offers are only given after the defendant
has signed an attorney waiver expressly stating they wish to waive their right to an attorney. The offer will be made by the same attorney who filed the charges and is already familiar with the case. Such offers need to be firm but fair and take into account the severity of the crime and the offender's criminal history, If the defendant is interested in taking the plea at that time, they are provided with the appropriate
paperwork and a plea is entered at the same court proceeding.
TSRs135 Day Call: The second phase for cases that do not resolve at arraignment would be a TSR ( trial status review) hearing usually 35 days after arraignment. A firm
attorney would always staff TSR hearings. The firm' s policy with TSRs would be that only attorneys or pro se defendants who absolutely want and were prepared for trial
would file a trial report. If necessary, a second TSR hearing can be requested. Once a
trial report is filed, the defendant's opportunity to plea out the case is waived unless under circumstances where the City Prosecutor's office still wants to settle.
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Question 6: What steps would you take to assure a timely resolution of cases, staff requests and related matters?
Timely Resolution of Cases: We would work with the Municipal Court and Court staff to review the current court calendering system as it relates to arraignments, status reviews, and trial settings to see if Improvements can be made and improve the current DOD" ( days on docket) statistic. In addition, we will make suggestions for the implementation of a paperless discovery system whereby all police reports, photos, stop videos, audio recordings, etc. are transmitted to our office electronically thereby saving staff time and cost. We believe that by going paperless this will save time and money
for all departments involved. We are currently using a partial paperless system in
Junction City and we would work to revise and improve the system for Springfield. Plea Offers Waived with Trial Report Filing: Up-front offers to settle need to be maintained throughout the course of a case whenever possible. To explain, it is not in
the City's best interest to start the bidding on a Criminal Mischief II misdemeanor at 15 days jail up front but as trial approaches with a semi weak case to work with, the offer
gets better for the defendant Including less jail or no jail, etc. We have found this to be an ineffective way of resolving cases early. Defense attorneys pick up on this and will often work to string things out knowing that their offers will get better. Furthermore, providing discovery as quickly as possible to defense counsel and setting deadlines regarding settlement offers would be a process we would use to resolve cases quickly. This cuts down on Indigent defense fees.
TSR 35 Day Call: We would work with the Municipal Court to establish a TSR/ 35- day
call docket. Following arraignment, cases not settled would be set for TSR ( trial status
review) approximately 35 days later. If any pretrial motions were to be filed by the defense, they should be filed by TSR date. Pretrial motions would take place on the
morning of trial so as to prevent SPD officers from having to be available on more than one setting. This also saves on indigent defense costs. Restitution/ Victim Letters: Notices to victims would be handed out at the point of first
contact by SPD. See sample letter attached. Setting a time limit for restitution responses ensures that cases do not need to be set over which is a costly and time inefficient process.
Staff Requests: Staff requests would be handled in as expeditious a fashion as
possible. We would work diligently and corroboratively with the Municipal Court, SPD and City staff to provide effective and efficient services,
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Question 7: Now would you describe the role of City Prosecutor and its
relationship to the Court, Police Department, victims, witnesses and the
community?
Court: The City Prosecutor's relationship with the Municipal Court should be one of
mutual respect and collaboration. The City Prosecutor and the City Prosecutor's office
must have effective and open communication with Court staff concerning scheduling,
discovery, and trial status. If awarded the contract we recommend having monthly
meetings with Court staff as a way to discuss some of the changes such as the status
review hearings and going paperless as a way to ensure the operations involving the Municipal Court and the City Prosecutor are run efficiently.
Police Department: The City Prosecutor works corroboratively with SPD to provide legal
advice that will enable them to do their job correctly and within the bounds of the law.
This includes staying up to date on changes in the law and keeping SPD informed of
those changes. The City Prosecutor is also a gate keeper between SPD and the
Municipal Court in regards to deciding what charges should be filed with each individual case. The City Prosecutor in this role can and often does find itself in a situation where it may be telling SPD officers that charges will not be filed or that more investigation is needed. This can have to do with a wide variety of issues including search and seizure issues, suppression of evidence, and plea bargaining issues, The City Prosecutor must have a strong working relationship with SPD because although the City Prosecutor and SPD are on the same team, there may be times when the City Prosecutor must act independently from SPD when evaluating a case or recommending a change in procedure, Victims and Witnesses: The City Prosecutor's relationship with victims and witnesses can be complicated because while they are integral to the process they are not the Prosecutor' s client. The City Prosecutor has different roles in regards to victims and witnesses on a case by case basis. For instance, if witnesses are hostile to the City's
case, the City Prosecutor' s role is to make sure the witnesses understand their responsibilities and the pitfalls of failing to comply with subpoenas and/ or the
consequences of giving false testimony. Many victims and witnesses that the City Prosecutor's office deals with can be reluctant to be involved. The City Prosecutor's role
is to communicate effectively with all victims and witnesses so that the City's case is
presented in the most effective and successful manner possible.
Community: The City Prosecutor needs to hear and listen to the people of the City it
serves. A large part of our approach is that our prosecutors will be at the courthouse
conducting arraignments and hearings and present during office hours so we can be
available to meet with the public every day. Community members often show up at thesetohearings able answer. and have questions for City staff which sometimes the prosecutor is best
Our approach will be that the community is our client. We will focus on not only
holding offenders accountable but also providing crime victims and witnesses with the
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prosecutor will be treated professionally and respectfully. Defendants being sent to the Springfield Jail and their families will know we were tough adversaries but that we were fair and respectful.
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Question 8: Describe the approach you would use to communicate and coordinate with Prosecution Office staff, defense attorneys, victims, and the
Municipal Court Staff.
Office Hours: Attorneys Cox, Melendy or Murdoch will be available for office hours at the Justice Center location Monday through Friday. It will be an Important part of our approach to communicate face- to-face with Prosecution Office staff, defense attorneys,
victims and Municipal Court staff at the Springfield Justice Center everyday.
Phone: An attorney from the firm will be available during business hours from 8: 00 a. m. till 5: 00 p. m. Monday through Friday to communicate with City Prosecutor staff, defense attorneys, victims and Municipal Court staff. One complaint we have heard about some municipal prosecutor offices is that the defense attorneys struggle to get a
hold of the prosecutor. We would ensure phone calls are returned on the same day or
within 24 hours. A paperless file system would allow for the timely response to a phone inquiry by any of our attorneys.
Email: We have found communicating as prosecutors with defense attorneys can be effectively accomplished with the use of email. Email creates a written record of
discussions including plea negotiations. We use email almost as much as telephone to
communicate regarding prosecution cases.
Municipal Court Staff: We plan on being present every day in the Municipal Court to ensure a high level of contact and communication with Court staff, SPD and the public.
Our current staff does a professional and effective job with communicating with all of our clients and this would continue with the communication with the Municipal Court
staff victims, defense attorneys, etc,
Current City Prosecutor Staff: We are open to retaining one or more of the existing City Prosecutor staff if they are interested and we feel they are a good fit to work with.
Contact and interviews would happen immediately. Whether with our existing firm staff or with current City Prosecutor office staff, we will staff the Justice Center City Prosecutor's office Monday through Friday, 8: 00 a. m. to 5: 00 p. m. Our Reputation: Our firm' s attorneys have an earned reputation of being honest, fair and hard working regarding our cases and the attorneys who work on the other side of
our cases. We enjoy communicating with defense attorneys and negotiating cases. Our objective Is to be a tough adversary and advocate for our clients but pleasant to deal with. Victim :
We will communicate with victims directly by phone and in person at our
offices and at court. If SPD is not able to provide a victim notice form during the
incident call, then one of our staff members will be In charge of sending victim notices out in appropriate cases early on in the criminal process, usually at or near time of
arraignment. See sample victim notice attached. C821 Leahy, Van Vactor, Cox and Melendy C821 First Amendment Leahy, Van Vactor, Cox
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Question 9: As Prosecutor, how will you handle subpoenas, discovery and related public disclosure requests
Subpoenas: To save SPD time, we will attempt to draft and serve subpoenas for
officers at TSR settings. Otherwise, subpoenas in most cases will be served by SPD to the witnesses. In cases where witnesses are out of the area, we can mail or even email
subpoenas, however, a prosecutor will want to verify that the witness is cooperating. See Junction City Subpoena form attached as an example.
Discovery: We will work to establish an e- discovery paperless program for the City Prosecutor' s office as we have done with the ] unction City office. Persons requesting
hard copy discovery will be so provided. Retained attorneys will be charged a reasonable fee for discovery. Public Disclosure Requests: Our office has extensive experience in dealing with public disclosure requests. We already handle many of the public disclosure requests that are received by SPD.
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Question 10: The City strives to continually improve internal processes.
Please discuss what your philosophy is regarding how technology might
improve your processes, Please include your ideas on improvements that can
be made in the criminal justice system ( stakeholders such as Police, Courts, Criminal Defense Attorneys, forensic service providers, etc.) from your personal observations and/ or experiences in dealing with criminal case work.
Paperless Prosecution: One of our firm goals if awarded the Prosecution contract would be to go to a nearly paperless practice within 6 months. We would purchase IPads for our attorneys who would be attending arraignments and TSR hearings. The files,
including file notes, offers, etc., would be placed in drop files for easy retrieval on the
IPads. Attorneys could put notes from these hearings on to these files as the hearings progress. As mentioned earlier, we would work the Municipal Court and SPD to go to a
paperless discovery process. Therefore, hard copy files would only be created upon a case not having been settled at arraignment or TSR and proceeding to trial after the filing of a trial report by a defense attorney.
Cell Phones/ Email: Being able to communicate directly with defense attorneys at all times on cell phones/ IPads via direct phone contact and email or text messages speeds up the process in settling cases. Since our firm provides cell phones to its partners, we
have no problem providing our cell phone numbers to the defense bar.
Opinion Memos Notebook and Computer Files: Our firm would draft opinion memos and/ or legal research memos on criminal matters for SPD. These would be kept in an organized notebook and computer file at our office and be available for our clients.
They would become part of our client's file.
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Question ii: If not using the office space, hardware, computer records management software provided by the City, discuss your plans for providing
a network system that can interface with the City system to provide for the transmission of e- mail, documents, spreadsheets and any necessary billing data.
Use of City Prosecutor' s Office Space at Springfield Justice Center: We would plan on
using the office space provided at the Justice Center, We believe that would be an integral part of our presence for the community, the Municipal Court and SPD. Our needs would likely be less than the current system and it may be unlikely that we would need to interface with the current City system. We would likely need access to LEDS through the City system but that should be accomplished easily. We believe that the close proximity of our current office to the Justice Center will help with our transition plan ( we are only 3 blocks away).
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Question 12: What level of availability would you have to Police department
and other staff during both working and off hours?
Office Hours: Attorneys from the firm will be available to SPD and other staff including
Municipal Court staff during all business hours from 8: 00 a. m. to 5: 00 p. m, and often times until 6: 00 p.m. Monday through Friday. We will have attorney office hours at the Justice Center Prosecutor's office Monday through Friday, 8: 00 a. m. to noon. As mentioned earlier, our proposal is that an attorney from this firm will attend all arraignment and TSR hearings in an effort to resolve cases expediently. Officers would be encouraged to drop by during office hours or arraignment/ TSR times to discuss matters of concern. We would meet with officers after normal business hours for trial preparation whenever necessary.
SPD Training: This firm' s proposal also includes attorney training of police officers on a
quarterly basis or as requested by SPD. Attached find an outline titled SPD Municipal
Prosecution Training which describes the subject matter of proposed training including: DUII training; Controlled substance or DIRE cases;
Search and seizure training; Domestic violence training;
Protective order training including FAPA, stalking orders, etc.;
Evidence collection
Trial preparation ( testifying/ cross examination)
Both attorneys Cox and Melendy have conducted trainings for police officers. We have found this to be beneficial not only to the officers but to the prosecutors as well. The interactive process of discussing specific situations with officers including situations
which happen out on the street and in courtrooms are very helpful to talk through for both the officers and the prosecutors. If we were to obtain the City Prosecution contract, training would be a vital and consistent part of our annual workload.
After Hours Cell Phone Contact: As part of this proposal, attorneys Cox and Melendy
will also offer to carry cell phones which are provided by the law firm to the attorneys
partners. All SPD officers would be encouraged to contact either attorney Cox or Melendy with police legal advisory questions on misdemeanor cases, Calls would be answered whenever possible and if either attorney Cox or Melendy were unavailable,
then a voicemail message would be returned at the next possible opportunity directly to the officer. Email: Officers would have our work email addresses. Therefore, officers could email or text us even late at night ( for instance graveyard patrol) and emalls will be returned
as soon as possible and no later than the next day.
Blog: Please see a sample of our prosecution blog ( copy attached). This blog was started by attorney Melendy in his work with the Cottage Grove Police Department and
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later the Junction City Police Department. We try to put new cases that would be of interest to the police community up on the blog with short summaries. We have found
this to be a helpful tool especially with younger officers who are used to being online and/ or looking at this type of information on their cell phones. The blog is interactive. Officers can post questions which we will respond to. Younger officers often seem more inclined to post a question to our attorneys than to call or come in for an office visit.
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Question 13: Provide three references who can be contacted for confirmation regarding your past experience and quality of services in
Municipal Court Prosecution. Include contact name, current phone number and email address.
Matt Cox: Dan 8arkovic
Eugene City Prosecutor 915 Oak Street, Suite 310 Eugene, OR 97401 541) 682- 8414
See the Letter of Reference attached,
Eugene Municipal Court Judge Marc A. Spence Spence & Sabitt, LLP
975 Oak Street, Suite 700 Eugene, OR 97401 541) 343- 9909
Patrick Melendy:
Honorable Gary Carl 48175 E. 1" Street
Oakridge, OR 97463 541) 782- 4000
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Question 14: Please submit a proposed schedule of fees and costs you would be seeking as compensation. ( Final agreement will be negotiated under an independent contract or other similar agreement.)
Our firm will provide exemplary municipal prosecution services for the City of Springfield at a significant savings, Savings will be realized not only though the budget for the
Office of the City Prosecutor but also savings in your current indigent defense budget. Municipal Prosecutor Budget: The FY12 budget is currently set at $232, 776. 00. We offer a twenty- percent ( 20%) cut or $ 46, 555. 20 right off the top and bid Prosecution Services for $ 186, 220. 80. Out of that amount we would provide for all support staff
needed to effectively assist with the Office of City Prosecutor. Indigent Defense Budget: The FY12 budget for indigent defense is currently 186, 000. 00. We propose the implementation of a system of" front loading" offers to
criminal defendants thereby drastically cutting down on costs for court-appointed
attorneys. Attorney Melendy has used this procedure in both Cottage Grove, Junction City, and Oakridge municipal courts. In many Circuit and municipal courts throughout Oregon, criminal defendants are typically appointed attorneys at the time of arraignment and prosecutors have little or no contact with the defendant during that time. This typically creates a system where
significant money is spent on criminal defense attorneys when, in reality, defendants may be willing to plead guilty to their charged offense if they were simply asked if they thought a certain plea negotiation was fair or not?
Prior to implementing our system, we would meet with the Municipal Court judges to discuss our proposed system, In our system, we would staff an attorney at every criminal arraignment and make offers to settle cases with any criminal defendant who
did not already have an attorney and voluntarily wanted to talk to us. Before attorney
Melendy started using this procedure in 3unction City Municipal Court, the budgeted amount for indigent defense services in 2006 was $ 23, 500. 00.
In 2007 the actual
amount spent on indigent defense services was $ 14, 525. 00, nearly a forty- percent 40%) savings in less than one- year.
As a sampling, we researched the budgeted and actual defense attorney expense in Junction City Municipal Court between 2006- 2010. Those amount are as follows: Year
Budget
Actual
22, 512. 00
2006
23, 500. 00
2007
20, 000. 00
14, 525. 00
2008 2009
25, 000. 00
6, 412. 00
20, 000. 00
6, 185. 00
2010
10, 000. 00
7, 370. 00
Although, we would have no actual control over the budget for indigent defense services in Springfield Municipal Court, we are confident that significant savings would C8
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flow from the Implementation of our system. After the successful implementation of
this system the indigent defense budget should stabilize as it did in Junction City, A
three year average between 2008-2010 of indigent defense services comes to 7, 323. 00 which is nearly
a
sixty- eight ( 68%)
cut in the actual amount spent in 2006,
the year before the system was implemented. See documents provided by Junction
Clty Fnance attached.
We believe we could cut the indigent defense budget in Springfeld Municipal Court by up to fifty-percent within the first two years. Estimated savings from the existing
indigent defense budget are as follows: FY12 budget 200/ c
186, 000
savings
37, 200 65, 100 93, 000
35% savings 50% savings
If our estimates are correct, and we can achieve a 50% savings in indigent defense costs, we believe we can save the City of Springfield annually ( between both budgets), 139, 555. 20 within two years.
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Question 15: Please submit a transition plan that includes - timing, roles and responsibilities.
Leahy, Van Vactor, Cox &
Melendy, LLP Transition Plan:
July 2012: Attorneys Cox, Melendy or Murdoch will attend all arraignments and implement the new arraignment plea offer policy. In addition, we will start working with Municipal Court to institute the 35 day review hearing procedure and a method for transmitting discovery materials such as police reports and citations electronically.
Trials Scheduled July 1st- 15th: Any trials that were previously set for early July 2012 would be immediately evaluated by attorneys Cox or Melendy. If the trial is one whereby little preparation is necessary and neither attorneys Cox or Melendy have a conflict, the trial would stay on schedule; otherwise, we would ask the court to postpone the trial for approximately month so we can properly prepare. Any trials scheduled after July 15 will remain on the docket as scheduled, Filino/ Offers: Attorneys Cox and Melendy will do all of the initial filing intake and
attorney Murdoch will work in to this rotation under supervision by attorneys Cox and Melendy, Note: Attorney Murdoch has already worked at the City Prosecutor' s office as a backup and done case review, filing and one DUII trial. Training: Within the calendar month of July 2012, our office would speak with SPD command in regards to implementing a training schedule. The bldg would be posted and made known and available for all SPD personnel. SPD officers would also receive email and cell phone contact information of attorneys Cox and Melendy to promote open lines of communication and/ or police legal advisory matters on misdemeanor matters.
Current Firm Staff: Our firm has four full time legal assistants who would all be
required to provide some assistance in regards to the City Prosecutor' s office if we were awarded the contract. This would include: answering phones, e- discovery, hard copy discovery, scheduling, trial preparation, running criminal history reports, editing and monitoring of spreadsheets concerning necessary billing and statistical data regarding cases handled, outcomes, etc. Note: our staff already does this type of work for us for other clients concerning billing and reporting monthly workload. Firm staff would help
us prepare monthly reports to submit to the City. Robyn Dougherty would become our City Prosecutor's Office Victim's Assistance contact person. Retention of Current City Prosecutor' s Office Staff: We are open to retaining up to the equivalent of one full time staff member from the current City Prosecutor's office. This will mean we would have direct communication with the current staff members of the
City Prosecutor's office to see who was interested and who we were interested in hiring. We are open to having one or more of the current City Prosecutor' s office staff retained on a long term basis. There will be a smooth transition regarding phone calls, discovery, trial preparation, etc. Ce Cox
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Monthly Reports to City: By the end of July 2012, and continuing each month thereafter, our firm would provide a detailed report to City management including: billing breakdown, hours billed by each attorney and explanation of work performed for each attorney; cases described: fled, settled, trials/ hearings, dismissals, outcome/ results.
Meeting with Municipal Court and City Management: By the end of July 2012 and
continuing at least monthly thereafter, City Prosecutor attorneys would meet with Municipal Court representatives to discuss practice and procedure to allow open communication and efficient operation.
Semi- annual Meetings Between City Prosecutor Attorneys and City Management:
Discussion topics could include: review of monthly reports, efficiency measures, budget, etc.
Transition to Paperless Prosecution Practice: Our goal is for all of our City Prosecutor attorneys to work towards a near paperless system. We would set a goal of 6 months
or by January 1, 2013, for a near paperless Clty Prosecutor attorney practice. IPads: We would purchase 2 or 3 IPads. Our City Prosecutor attorneys would use
these IPads for arraignment and TSR hearings. City Prosecutor staff would create drop box flies for each hearing and the attorney attending the hearing would put any file notes directly into the specific files drop box.
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Melendy
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Question 16: Provide any other information you believe is important or relevant to the RFQ. Civil Forfeiture: Our office would propose to SPD that misdemeanor civil forfeiture
could be utilized on select cases. See attached outline explaining the civil forfeiture process.
We would meet with SPD command to see what their level of interest would be in this
practice. The practice would be used selectively on targeted individuals. CONCLUSION:
In conclusion, we want it to be clear that this is not an outpost assignment for us. The
Springfield City Prosecutor' s contract will not be used as a training ground for our firm' s
young lawyers to be cycled through to obtain experience before being promoted. Attorneys Cox and Melendy are veteran prosecutors who want to conduct the Springfield Prosecution work out of a commitment to the City of Springfield and pride in
SPD and because they truly enjoy the work of a criminal prosecutor. We have the experience as prosecutors, the energy and desire to put in the hard work to ensure the
Springfield City Prosecutor' s office is an exceptional department. We believe our cost containment measures as described in the RFQ can speed up the criminal action
process in the City of Springfield and save the City significant dollars while obtaining justice and prosecuting offenders to the full extent of the law. We plan to live, own property and work in Springfield for the long term.
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RESUMES
OSB ACTIVE STATUS/ GOOD STANDING
Cl
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Cox and
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Amendment
Melency
Co
Leahy,
and
Molendy
Van Vactor,
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MATTHEW J. COX 188 West B Street, Building N Springfield, OR 97477 541)
746- 9621
EMPLOYMENT HISTORY
Leahy, Van Vactor, Cox & Melendy, LLP, Springfield, Oregon Associate Attorney from 4/ 04 to 6/ 30/ 07. Partner from 7101107 to current. City Attorney for
the City of Springfield, In- house counsel for the Springfield Utility Board, general civil practice with emphasis on litigation including domestic relations and criminal prosecution. Contract Prosecutor for the City of Eugene, Eugene, Oregon
Contract Municipal Court Prosecutor for the City of Eugene since January 2007 prosecuting misdemeanor cases. Duties include courtroom trial days of one per month plus plea
bargaining, probation violations and criminal motion practice, 2 - 3 hours per week. Lane County District Attorney, Criminal Division, Eugene, Oregon Employed as Assistant District Attorney from 9/ 98 - 4/ 04, duty included: start to finish handling of several hundred misdemeanor and felony cases per year, responsible for; filing or
non filing of charges, plea bargaining, victim and witness management, legal motion practice, trial, sentencing and probation violation matters.
Jackson County District Attorney, Criminal Division, Medford, Oregon Summer of 1997, law clerk in criminal division ( 5 jury trials completed). United States Attorney, Eugene, Oregon
Summer of 1996, legal research and writing, assisted with trial preparation and prosecuted violation matters,
Marketing Director - Retail Sales Department, Parsons Pine Products, Inc., Ashland, Oregon. Employed full time from 9/ 93 - 3/ 95, marketing and retail sales department. EDUCATION
University of Oregon, School of Law, Eugene, Oregon, 1995 - 1998 J. D. May 1996, Oregon State Bar, member in good standing since 9/ 98 University of Oregon, Eugene, Oregon, 1989 - 1993 B. A.; Major - Political Science, 2 + years of University Spanish Flagstaff High School, Flagstaff, Arizona - graduated 6/ 88
LANGUAGE/ EXPERIENCE AND HOBBIES
High School and University Spanish Ice Hockey River Rafting
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Patrick S. Melendy 188 West B Street, Building N Springfield, OR 97477 541)
746- 96u
psm@emeraldlaw, com
EMPLOYMENT HISTORY Leahy, Van Vactor, Cox & Melendy, LLP, Springfield, Oregon.
Of Counsel with the firm from 10/ 11 to 12/ 11. Partner from 01112 to present. Civil practice
focusing on litigation including family law, real estate and estate planning. Currently serves as
Junction City Municipal Prosecutor ( since 2007) and Oakridge Municipal Prosecutor ( since 2006). Current contract with the City of Sutherlin to provide indigent defense services. Ackley, Melendy & Kelly, LLP, Cottage Grove, Oregon.
Partner with the firm from January 1, 2001 to October, 2011. Civil litigation practice and municipal prosecution/ defense.
Melendy & Genna &
Kelly, LLP, Cottage Grove, Oregon. January 1, 2000 to December 31, 2000,
Associates, Cottage Grove, Oregon. Associate Attorney, February, 1997 to
December, 1999. EDUCATION
University of Oregon, School of Law, Eugene, Oregon, J. D., 1996.
Western Oregon University, Monmouth, Oregon, B. S., History, Magna Cum Laude, 1993. Gonzaga University, Spokane, Washington, Summer law fellowship, Summer 1992. Central High School, 1989. INTERESTS
Music ( drums, piano, guitar)
Hiking ( South Sister, Mt. Shasta, Mt. Thielsen, Diamond Peak, Broken Top, Mt. Whitney)
Reading
NETWORKS
Oregon State Bar
Lane County Bar Association Springfield Chamber of Commerce
South Valley Business Networking International Cottage Grove Hospital Foundation Board of Directors
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Taylor Layne Metteer Murdoch 797 ]
anus Street,
Springfield, OR 97477 • ( 541) 746- 9621 • tlm @emeraldlaw.com
PRESENT WORT(
Leahy,
Van Vactor, Cox &
Melendy LLP, Springfield, OR
2011- present
Associate Attorney
Law practice focused on litigation, including family law, real property disputes, land use, & administrative law. Assistant City Attorney for City of Springfield Springfield City Prosecutor pro teem, Springfield, OR August 2011 Filed complaints, reviewed police reports, signed warrants WORK EXPERIENCE
Leahy, Van Vactor & Cox LLP, Springfield, OR
2008- 2011
Law Clerk Drafted
memoranda, motions, &
pleadings; researched legal issues for
Springfield City Attorney's Office, Springfield Utility Board, City of Eugene Prosecutors Office & numerous private clients
City Prosecutor' s Office, Springfield, OR Court-Certified LawStudent
Springfield
December 2009- May 2010
Successfully prosecuted DUII trial in Springfield Municipal Court Oregon Department of Justice, Salem, OR
2009
Legislative Session Law Clerk& Special Assistant, Office of the Attomey General Provided legal research & drafted legislation for the Attorney General Louisiana Capital Assistance Center, New Orleans, LA Law Clerk& Capital Caseworker Investigated &
2006- 2007
clerked for cases involving indigent capital defendants & Indigent
defendants facing charges related to the aftermath of Hurricane Katrina Portland State University, Portland, OR 2003- 2005
University Studies Mentor; Research and Academic Support City
of
Springfield, Springfield, OR
Summers 2001, 2002
Public Works Summer Intern EDUCATION
University
of
Oregon School of Law, Juris Doctorate
2010
Volunteer Income Tax Assistance ( VITA) Program Director Portland State
University,
Bachelor
of
Arts, English
2006
Oregon Laurels Scholar University
per
Stranieri di Siena, Siena,
Italy
Winter 2006
SERVICE & COMMUNITY INVOLVEMENT Springfield Bicycle & Pedestrian Advisory Committee Springfield Chamber of Commerce
2011- present 2011- present
Springfield
2011- present 2011- present
olunteer
City Club Attorney, Lane County
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MARY BRIDGET SMITH 1441 Ranchwood •
Eugene, Oregon 97401 • ( 541) 525- 1981 •
stuartmary@)msn. com
EDUCATION
Seattle University School of Law Juris Doctor, May 2002
California Maritime Academy Bachelor of Science, Business Administration, May 1994 PROFESSIONAL EXPERIENCE
Leahy,
Van Vactor, Cox &
Melendy, LLP, Springfield, Oregon
Partner, 2012 - present
Local Government Law, Real Estate, Land Use, Employment Law
Leahy,
Van Vactor &
Cox, LLP Springfield, Oregon, 2007 - 2011
Associate Attorney, 2007 to present Local Government Law, Real Estate, Land Use, Employment, Law City of Yakima Legal Department, Yakima, Washington
Attorney tI, Criminal Division, November 2004 to June 2006
In addition to prosecutorial duties, advised other city departments and police officers in the filed on legal issues, trained police officers on search and seizure procedure, researched
public disclosure requests, served on public safety committees, assisted judges and city prosecutor in developing new structure for public defender system in municipal court. Attorney I,Criminal Division, July 2003 to November 2004
Prosecuted misdemeanor crimes in municipal court involving theft, driving under the influence, illegal drug use and domestic violence. Responsibilities included conducting witness Interviews, case preparation, arguing pretrial motions, managing congested court
dockets, writing and arguing appeals in superior court and jury trials. Yakima County Prosecuting Attorney' s Office, Yakima, Washington Deputy Prosecutor, August 2002 to July 2003 Prosecuted misdemeanor crimes in District Court division
SeaRiver Maritime Incorporated, Houston, Texas
Third Mate, October 1994 to July 2003
Responsible for bridge and cargo watches, supervised docking and undocking operations,
trained other ship personnel on safety matters, piloted ship through highly congested ship
traffic areas in Europe and Asia. BAR MEMBERSHIPS
Oregon State Bar Association, January 2007 Washington State Bar Association, October 2002 C821 Leahy, Van Vactor, Cox and Melendy C821 First Amendment Leahy, Van Vactor,
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ATTACHMENT Welcome 10 the Oregon Slate Bar Online
i19l12
ATTACHMENT2
Oregon
05B
Bar
N.
Membership Directory
biimh
Refine Uiirch
Matthew Joseph Cox Dar Humber 982000
Staty
Pcbw ember
Adm It Date
10211999
Company Leahy Van Vector Cox B W Andy LLP
Mailing Address Matthew Joseph Cox Leahy Van Vector Cox& lAetendy 188 W B St Bldg N Springfield OR 97477
County Lane Phone
541746- 9621
Fax
5417464109
Email
mlc@emeraidlaw cum
Website
www emeraldlaw.com
Disciplinary History Date
Sanctions
Source
Details
rib Disciplinary Sanctions for the Mermer
Sanction Definitions
Reprimand: Aform of disciplinary action that declares a lawyers conduct to be Improper, buldoes not resmctor limit Vie
lawyers ability U practice law. usually because Vie misconduct is not particularly aggravated or serious.
Suspension: Atorm of dlsciplmary action that prohibits a lawyer from pracbang law fora penod of bme The Iengn of suspension may range from 30 days to five years, depending on the nature oflhe lawyer's misconduct. Probation: In some cases, a lawyer whose conduct warrants a
disciplinary suspension may nevertheless continue to piactice law, provided the lawyer complies with terms of probation for a period cfbme.
Disbarment: The permanent removal of a lawyer from the pracke of law in Oregon, due to the extreme nature of the lawyer' s misconduct
Resigned- Alawyerwho resigns from the Oregon State Sarwhlle a
Disciplinary- disciplinary investigation orproceeding is pending forfeits his or her right to ever practice law in Oregon again
This is a summary of Information from 1991 to date Contact tree Public Records Coordinator for additional mfemiation: disciolmeonw
biZboslxar. om
503. 431 6394, toil- free in Oregon 800. 4 52. 8260 x 394 c6W14tei@hih4flACLIbb my osba r orgrrrR%
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ATTACHMENT 2 - A
11
ATTACHMENT r!
9/ 12
Welcome to the Oregon State Bar Online ATTACHMENT
Oregon
OSB
.
Bar
Membership Directory
N.
56arch
Win, Srarelr
Patrick S Melendy Bar Number
970807
tatue Active Member
Admit Date 4/ 1511997
Company Leahy Van Vector CoxS Melendy LLP
Mailing Address Patrick S Melendy Leahy Van Vactor CexB Wendy 188 W B St Bldg N Springfield OR 97477
County Lane Phone
541746- 9621
Fax
541746- 4109
Enlall
Website
Psm @emeraldlaw_com
www emeraldlaw com
Disciplinary History Date
Sanctions
Details
Source
W Dsciplinary Sanctions for this Wnber
Sanction Definitions
Reprimand Aform of drsciplinaryaction that declares a lawyer's conduct lobe Improper, but does not restrict or limit the
lawyers ability to practice law, us ually beca use( he misconduct is not particularly aggravated or serious
Suspension: Aform of disciplinary ection( hat prohibits a lawyer from pracacmg law for a penod oftime. The length of suspension mayrenge from 30 days to Eva years,
depending on the nature of the lawyer' s miseonducL
Probation. In some cases, a lawyerwhose cenductwarrants a dibciptinarysuspensron niaynewrtheless continue to practice law, provided the lawyer compbes with( arms of probaton for a period orbme
Disbarment: The permanent removal of a lawyer from the practice of taw in Oregon, due to the extreme nature of the lawyer's misconduct
Resigned- A lawyer who resigns from the Oregon Slate Bar while a
Disciplinary: discrphnaryinvestigaton orproceedmg is pending forfeits his or her right In ever practice law In Oregon again
This Is a summaryof information from 1991 to date Contact the Public Records Coordinator for additional information iti c' olineonweb(cfos bar arq
503 431 6394, toll- free in Oregon 800 452 8260 x 394 rr;;
22
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ATTACHMENT 2 - A 1/
ATTACHMENT welcome to the Oregon State Bar Online
tl9l12
ATTACHMENT2
Bar
Oregon
OSB
New 5.
Member6hip Directory
vnh
Roane E"
rah
Taylor L M Murdoch Bar Number
111307
StatuE PcOw Member Admit Date
51612011
Company Leahy Van Vector Cox& Melendy LLP Mailing Address Taylor L M Wfdoch
Leahy Van Vector Cox& Melendy 188 W B SI Bldg N Springfield OR 97477
County Lane Phone
541746- 9621
Fax
541746-0109
Email
Um @emeraldtaw com
Webslte
www.emereldlaw. com
Disciplinary History Date
Details
Sanctions
Source
W Disciplinary Sancbons for Ih6 Wnber
Sanction Definitions
Reprimand: Aform of disciphnaryection that declares a lawyer's conduct to be improper, but does not restrict or limit the
lawyer's ability to practice law, usually beta us a the misconduct is not particuladyaggrevated or serious.
Suspension: Aform of disciplinary action that prohibits a lawyer from practicing law for a penod of bme The length of suspension mayrange from 30 days to fiw years,
depending on the nature of the lawyers misconduct Probation' In some cases, a lawyerwhose conductwarrants a
disciplinary suspension maynewrtheless continue to practice law, proeded the lawyer complies with terms of probation for a penod of time Disbarment, The permanent removal ota lawyer tom the pracbceol law In Oregon due to the sAte me nature of the lawyer' s misconduct
Resigned• Alawyerwho resigns from no Oregon State Bar while a
Disciplinary: dlsciplinaryinwstlgation or proceeding is pending forfeits his or herdght to ever practice law in Oregon again.
This is a summaryef hnlormehon horn 1991 ID date Contact the Public Records Coordinabr for additional Information discloline
nwebftosbaroro
503. 431. 6394, loll- tree In Oregon 800 452. 8260 x 394
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Melendy
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PaRl oP1065 peg ATTACHMENT 2 - A
1!
ATTACHMENT 19112
welcome to the Oregon State Bar Online ATTACHMENT2
Oregon
OSB
Bar
Membership Directory
lwv axarN
Refinx Srxren
Mary Bridget Smith Bar Number 070299 Statu6
Admit Date
Acltve Wmher
11312007
Company Leahy Van Vactor Cox& Melendy LLP Mailing Address Mary Bridget Smith Leahy Van Vactor Cox& Melon ly 188 IN 8 St Bldg N Springfield OR 97477
County Lane Phone
Fax Email
Webslte
541746- 9621
541746- 4109 robs @emeraldlaw com
www.emeraldlaw,com
Disciplinary History Date
Sanctions
Details
Source
No Dsciplinary SancOons for] his Weber
Sanction Definitions;
Reprimand: Aform ofdisciplinary action ihatdeclares a lawyer's conduct to be improper, but does not restrict or limit the
lawyers abihly to practice law, usually becaus a the misconduct is not particufadyaggravated or serious
Suspension: Aform ofdisapllnaryaclion Nat prohibits a lawyer from practicing law for a period of time The length of suspension may range from 30 days to five years.
depending on the nature of the lawyer's misconduct
Probation- In Some cases. a lawyer whose conduct warrants a disciplinary s us pension may nevertheless continue to practice law, provided the lawyercomplles with terms Of probation for a period of time
Disbarment: The permanent removal of a lawyer from the practice of law in Oregon, due to the extreme nature oflhe lawyer's misconduct
Resigned- A lawyer who resigns from the Oregon State Bar while a
Disciplinary: disciplinary investigation or proceeding is pending forfeits his or her right to ever practice law in Oregon Again.
This is a Summary of information from 1991 to Bete Contact the Public Records Coordinator for additional information
Msctplineonweb(alos bar org 503 431 6394, toll- free in Oregon S00 452 8260 x 394 C821
Leahy.
Van Vactor Cox
and
Melendy
C821 First Amendment Leahy, Van Vactor, xw osbar
crgljpxrabdrWdleploy
asp? b= 070299& s= 1&
air-
pa Pa
m 0VIM,
ATTACHMENT 2 - A
I/
ATTACHMENT I . Welcome to the Oregon Stale Bar Online
J9112
ATTACHMENT2
Oregon
l
o
Bar
Membership Directory
N. rsi
re. nri. s.. ru
Joseph J Leahy Bar Number
700835
Status Acme Member Admit Date
1011211970
Company Leahy Van Vacter Cox B Melendy LLP Meiling Address Joseph J Leahy Leahy Van Vector Cox& Melendy 1 BB W B St Bldg N Springfield OR 97477
County Lane Phone
541 746- 9621
Fax
541746-0109
Ernst( 111 @em eraldlaw_cum Website
www.emeraldlaw corn
Disciplinary History Date
Sanctions
Details
Source
Pb Disciplinary Sanctions for the Member
Sanction Definitions
Reprimand: Aform of disciplinary action that declares a lawyer' s conduct to be improper, but does not restrict or limit the
lawyers ability to practice law, usually because the misconduct is not particularly aggravated or serious Suspension: Aform of discipimaryaction that prohibits a lawyer from
practicing law for a penetl of time The length of suspension may range from 30 dii to five years, depending on the nature oftie lawyer' s misconduct. Probation: In some rases, a lawyer whose conduct warrants a
disciplinary suspension maynevertheless continue to practice law, provided the lawyer complies with terms of Probation fora period oftme
Disbarment: The permanentremoval of a lawyer from the practice of law in Oregon. due to the wdrame nature of the lawyer's misconduct
Resigned- A lawyer who resigns from the Oregon State Bar while a
Disciplinary: disciplinary investigaton or proceeding is pending forfeits his or her nght to ever practice law in Oregon again
This is a summaryof information from 1991 to date Contactthe Public Records Coordinator for additional information
discmlineonweb( a)esbef om 503 t
C82C1 vw osbar orgtnfllr
irstf
6394, loll- lree in Oregon 800 452 8260 x 394
n men eeehy, an Vacjondy
rtfy(4LMH1USyesp b= 7006358s= 18ah+—
ATTACHMENT 2 - A
1/
ATTACHMENT J9112
Welcome to the Oregon Slate Bar Online ATTACHMENT2
Oregon
OSB
Bar
Membership Directory
N-
w
3nrah
Stvr
William AVan Vactor Bar Number 753751 Statue Acute Member Admit Dale
9/ 19( 1975
Company Leahy Van Valor Cox& Melendy LLP Mailing Address William A Van Vactor
Leahy Van Vactor Cox& Melendy 188 W B St Bldg N Springfield OR 97477
County Lane Phone
541 746- 9621
Fax
541746- 4109
Email
bw@emeraidlaw cam
Wehsite
www.emeraldlaw cam
Disciplinary History Date
Sanctions
Details
Source
lib Dsc:plmary Sanctions id thei Member
Sanction Definitions
Reprimand Aform of disciplinary action that declares a lawyers conduct to be improper, but does not restrict or limit the lawyers ability b practice law, usually because the misconduct is not particuladyaggrav ted or serious
Suspension: Aform of disaplinaryacuon that prohibits a lawyer from practicing law for a period of time The length of
suspension may range from 30 days to fire years,
depending on the nature of the lawyer's misconduct
Probation. In some cases, a lawyer whose conductwarrents a disciplinary suspension may nevenhetess continue to Practice law, prodded the Jawyercomplies with terms of probation for a period of time
Disbarment: The permanent removal of alawyer from the practice of law in Oregon, due to the extreme nature of the lawyer's misconduct
Resigned- Alawyerwho resigns from the Oregon State Bar while a
Disciplinary: disciplinary investigation or proceeding is pending forfeits his or her aghl to ever practice law in Oregon again
This is a s um mery of information from 1991 to date Contact the Public Reoord3 Coordinator for additional information
dis ciolineonwaboos bar org 503 431 6394, loll- free in Oregon 800 452 8260 x 394 C821 Leahy, Van Vactor, Cox and Melendy C821 First Amendment Leahy, Van Vactor,
ne osbai org/@WlS
1 i"
Mg[d7y25p7b= 753751& s= 1& aw=
Pa e551 o1 QfI t0.5 Fag ATTACHMENT 2 - A
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ATTACHMENT Welcome to the Oregon State Bar Online
79112
ATTACHMENT
Bar
Oregon
OSB
Nar search
Membership Directory
ii search
Kay Hyde- Patton Bar Number
033467
StatU¢
Active Member
Admit Date
9262003
Company Leahy Van Vector Cox& Melendy LLP
Mailing Address Kay Hyde- Patron Leahy Van Vector Cox& Melendy 188 W B St Bldg N Springfield OR 97477
County Lane Phone
541 746- 9621
Fax
54174E- 4109
Email Website
krip@emeraldlaw com www.emeraldlawcom
Disciplinary History Dale
Sanctions
_
Details
Source
Na Disciplinary Sanctions for the: Member
Sanction Definitions
Reprimand: Aform of disciphnaryacllon that declares a lawyer' s conduct to be improper, but does not restrict or limit the
lawyer's ability tu practice law, usually because the misconduct is not pareculadyaggrar led or serious
Suspension: A form of disciplinary action that prohibits a lawyer from
practicing law for a period of time. The length of suspension may range from 30 days to file} ears, depending on the nature ofthe lawyers misconduct Probation: in same cases. a lawyer whose conduct warrants a
disciplinary suspension may nevertheless continue to practice law, provided the lawyer complies with terms of probation for a period oftime-
Disbarmenb The permanent removal of a lawyer from the previce of law In Oregon, due to the extreme nature of the lawyers misconduct
Resigned- A lawyer who rah xgns from the Oregon State Bar while a
Disclpllnary7 disaphnarymvesligation or proceeding is pending forfeits his or her right to ever practice law in Oregon again
This is a summaryof information from 1991 to dale Contact the Public Records Coordinator for additional information.
dis ciollnsonwebOosbar om
503 431 6394, toll- free in Oregon 800. 452. 8260 x 394 C6116F1'rS4eRlffd vw osbar orgAhKrtmt5Ntuphi
Ilril 4ieanY°
M(
hasp? b= 033467& s= 1&
ontly
aw=
P$ 9W10P3bg5
ATTACHMENT 2 - A
it
ATTACHMENT
9 J
ATTACHMENT
Yi
j
11 s+
J
CONTEMPT FORMS
q
A1 4
C621 Leahy, Van Vactor. Co> and me! enoy C821 First Amendment Leahy, Van Vector, Cox
and
Melendy
Pal,52 3 of of 106 105
Page
ATTACHMENT 2 - A
ATTACHMENT
ATTACHMENT2
2
3
IN THE MUNICIPAL COURT OF THE CITY OF SPRINGFIELD FOR THE COUNTY OF LANE, STATE OF OREGON
4
s
CITY OF SPRINGFIELD,
6
Docket No. Plaintiff,
7
COMPLAINT OF CONTEMPT SEEKING PUNITIVE SANCTIONS
vs.
8
9
Defendant. 10
The City of Springfield, by the undersigned City Prosecutor, hereby charges the
11
above- named defendant with willfully disobeying an Order or Judgment entered on
12
on the above- entitled Court in case number
13
which required
14
the defendant to pay fines
a
16
balance owing
fees in the
amount of$
for which contemptuous acts or omissions the City
of $
seeks imposition of the following punitive sanctions:
17
18
Confinement for a period not to exceed 30 days, or confinement not to
19
exceed one day in jail for every $ 25. 00 of fine owed, whichever Is less.
20
This Complaint is based upon ORS 33. 105 to 33. 155, ORS 137. 126, ORS 161. 685, LJTC Chapter 19, and the Affidavit attached hereto and incorporated herein.
21
22
Endorsed for prosecution by the City Attorney.
23
DATED this
20_
day of
24 25
City Prosecutor 26
PW NGFIELO CITY
PROSECUTORS OFFICE 1
6Frm
P Svee:
e1E Oregon
Sall]&
plus
added, payable in monthly payments until paid in full, with
a show cause fee $
15
and
9d] I
1Pa C8 Cox
1rs4 and
e
1 - COMPLAInN., OF CONTEMPT SEEKING PUNITIVE SANCTIONS
nom""en°
Melendy
8
j
h
lgi,dy
anVaE°
papa lf 695 ATTACHMENT 2 - A
ATTACHMENT
ATTACHMENT2
I
2 3
4
IN THE MUNICIPAL COURT OF THE CITY OF SPRINGFIELD FOR THE COUNTY OF LANE, STATE OF OREGON
5
CITY OF SPRINGFIELD,
6
Docket No. Plaintiff,
7
AFFIDAVIT IN SUPPORT OF vs.
9
COMPLAINT OF CONTEMPT-
SEEKING PUNITIVE SANCTIONS 9
Defendant.
iu
11
STAT E OF OREGON )
12
County of Lane
13
I,
14
I am a duly appointed clerk with the above- entitled court. I have reviewed the court
ss.
having been duly sworn, depose as follows:
file in Case No.
is
charging the above- named defendant with the crime of
16
As part of the sentence imposed in that case on which required the defendant to pay fines and fees in the
to
amount of$
19
of$
20
plus a $
show cause fee added for a total balance still owing
A copy of the Oregon Uniform Citation and Complaint with Judgment of Conviction in that case is attached hereto as Exhibit 1 and incorporated herein.
21
On _
22
a show cause citation was mailed to the defendant to the last
23
known address. The show cause citation was mailed by first class mail, and mail was not
24
returned, a copy of which is attached hereto as Exhibit 2 and incorporated herein.
2s
//
26
/
PRINGFIELO t7
PAOSECl1TOR' S OFFICE D a" ypeN P„
rw
naodalo is
m/ w, o3 C
C81 Cox
2
Page 1 - AFFIDAVIT INS SUPPORT OF COMPLAINT OF CONTEMPT - SEEKING
PL NJFT E SANC 11rifVA Menat eahy°,'fan
and
Melendy
a
o7dy
FaJ@%§ 4c fjW ATTACHMENT 2 - A
ATTACHMENT
ATTACHMENT
Based upon my review of the court file in that case, I have determined that the
1
2
defendant has failed to comply with the sentence of the court by not paying the fine as
3
agreed.
Based upon my review of the court file mentioned above, I therefore believe that the
4
5
defendant has willfully disobeyed the sentence of the Court and is therefore in Contempt of
6
Court.
DATED this
7
day
20_
of
1
e
9
Court Clerk to
SUBSCRIBED AND SWORN to before me this _
day of May, 2012.
11 12
Notary Public for Oregon
13
14
is
16
17
18
19
20
21
22
23
24
25
26
PRMGFIELDC"PROSECUTOR' S OFFICE 230 P 340vI
Sirngfi. b
Page 2 - AFFIDAVIT IN SUPPORT OF COMPLAINT OF CONTEMPT - SEEKING
541) 746- X21X21
C82 Cox
is and
PUNIvTIVE SANCTIdO,N. m h enl+ ahya n aLPtlo ndy
Melendy
Pf
16r'; P{ dg5
ATTACHMENT 2 - A
ATTACHMENT
ATTACHM ENT 2
2 3 4
IN THE MUNICIPAL COURT OF THE CITY OF SPRINGFIELD FOR THE COUNTY OF LANE, STATE OF OREGON
s
CITY OF SPRINGFIELD,
6
Docket No, Plaintiff,
9
CITY ATTORNEY' S INFORMATION ORS 153, 992
vs-
e —
Defendant.
10
THE ABOVE- NAMED DEFENDANT IS ACCUSED BY THE CITY PROSECUTOR FOR THE
11
12
13
CITY OF SPRINGFIELD, LANE COUNTY, OREGON BY THIS INFORMATION OF THE CRIME OF:
FAILURE TO APPEAR ON A VIOLATION PROCEEDING
14
COMMITTED AS FOLLOWS:
15
The Defendant,
16
on or about
the
day
of
of
1a
a violation, unlawfully and knowingly failed to make
19
a first appearance within the time allowed,
20
CONTRARY TO THE ORDINANCESf STATUTES IN SUCH CASES MADE AND PROVIDED, AND
21
AGAINST THE PEACE AND DIGNITY OF THE CITY OF SPRINGFIELD.
22
ENDORSED FOR PROSECUTION BY THE CITY PROSECUTOR.
23
DATED this
day of
20^
24
City Prosecutor
25
CLASS A MISDEMEANOR
26 SPRINGFIELD CFFV PROSECUTOR' S OFFICE
730 4' SINL
spn' grwC Ompcn
u
in the City of
Springfield, Lane County, having been served with a citation to appear in court on a charge
17
F
20.
Page I -
109 C
C82 Cox
2_ rhi and
An[ men`
Melendy
CITY ATTORNEY'S INFORMATION ORS 1p153. a V'a E 6,
eBhFj°,
y
92
PaEj@%? fb?i1bV
ATTACHMENT 2 - A
ATTACHMENT ATTACHMENT 2
1 2
3
IN THE MUNICIPAL COURT OF THE CITY OF SPRINGFIELD
4
FOR THE COUNTY OF LANE, STATE OF OREGON s
CITY OF SPRINGFIELD,
6
Docket No.
Plaintiff, 7
CITY' S EX PARTE MOTION AND ORDER FOR ARREST WARRANT PUNITIVE SANCTIONS FOR
vs. 8
CONTEMPT 9
Defendant. 10
The City Prosecutor for the City of Springfield, Lane County, Oregon, respectfully
11
12
moves the Court to issue a warrant of arrest for the defendant based upon the Complaint of
13
Contempt Seeking Punitive Sanctions and Affidavit filed herewith. DATED this
14
day
20
of
Is
City Prosecutor
It appearing to the Court that the City Prosecutor has filed a Complaint of Contempt 17
Seeking Punitive Sanctions, pursuant to ORS 33. 015 to 33. 155, 137. 128, ORS 161. 685, and 18
UTC Chapter 17, duly supported by a sworn Affidavit showing probable cause to believe that 19
the defendant is in contempt of Court; thus 20
IT IS HEREBY ORDERED THAT: 21
A warrant shall be issued for the arrest of defendant for the Complaint of Contempt 22
Seeking Punitive Sanctions, Any peace officer of this State is commanded to arrest the 23
defendant and bring said person before the Court issuing the warrant. 24
Issued this
day
20.
of
at City of Springfield, Lane
25
County, Oregon. 26
Security $ Municipal Court Judge
1PKMGFIELDCITf
PROSECMOffs OFFICE 2N
Sv
t
Smwf
Page 1 - CITY' S EX PARTE MOTION AND ORDER FOR ARREST WARRANT PUNITIVE
1&% 2l ab
U1) 74
jW
CB
i}
Cox and
SANCTIONS FOR CONTEMPT nL @ rf1?' E R dElSP° y S t4n Rfle Melendy
P g
bPtb@`'
ATTACHMENT 2 - A
ATTACHMENT
ATrACHMENT2
1 2
3 4
IN THE MUNICIPAL COURT OF THE CITY OF SPRINGFIELD FOR THE COUNTY OF LANE, STATE OF OREGON
5
CITY OF SPRINGFIELD,
6
Docket No. Plaintiff,
7
AFFIDAVIT IN SUPPORT OF vs,
8
ARREST WARRANT FOR FAILURE TO APPEAR IN A VIOLATION PROCEEDING
9
Defendant.
10
11
STATE OF OREGON )
12
County of Lane
55.
1, -
13
Court Clerk for the above- entitled Court, being first
duly Sworn, do depose and say:
14
I have reviewed the Court file on this matter and am familiar with its contents. That
15
file shows the following:
16
Defendant was issued a citation for violations, and an Oregon Uniform Citation and
17
Is
Complaint was duly filed with the Court, a copy of which is attached hereto as Exhibit 1.
19
Defendant did not appear at the time listed in the citation or has not made any attempt to
20
contact the Court.
DATED this
21
day
of
20
22
Court Oerk
23
SUBSCRIBED AND SWORN to before
24
me this
day of May, 2012.
25
26
Notary Public for Oregon
YR0SECUIo CRY
AROOFFICL A'S O4. SUM 1 h. ld '.'
s,
e
fYp1a& X2,962 , Un 7 Y"
Page 1 - AFFIDAVIT IN SUPPORT OF ARREST WARRANT FOR FAILURE TO APPEAR
7610
IN A VIOLATION PROCEEDING Cali
Cox
i}
and
s4n
Melendy
f?Heyii'
@atfy°
iNAA6!!dy
P gIBgS P 6A5
ATTACHMENT 2 - A
ATTACHMENT ATTACHMENT
SPRINGFIELD MUNICIPAL COURT 230 40 Street, Springfield, OR 97477 541) 726- 3748
CM OF SPRINGFIELD,
Docket No( s).
Plaintiff, VS.
Plea
ODL
Defendant.
INSTALLMENT PAYMENT APPLICATION/ AGREEMENT The
above named
defendant has been
assessed
fine( s)
and
fee( s)
in regards to the above-
of$
entitled matter, plus a payment agreement fee of$ 15 if fines total$ 300 or less; $ 25 for over$ 300 for a total of$ to the above entitled court and the defendant agrees to pay that amount as follows:
owing
IN FULL
1)_
If fine is paid by this date, the court shall waive the above
by
mentioned payment fee, 2)_ By making PAID IN FULL.
minimum
beginning
payments of$
and continuing each month until
Payment consecutive to any previous case( s) defendant is presently making current monthly payments
3)_
on, except for any case( s) that have either been suspended and/ or sent to collections. Monthly payment of and continuing each month until PAID IN FULL.
payable on
Case( s) is being referred to collection agency for non- payment of fine( s) and/ or failure to appear in the plus a collection
amount of$
fee
25% of find balance) for a total owing of$
of$
Other:
DEFAULT( FAILURE TO PAY ANY INSTALLMENT WHEN DUE) SHALL RESULT IN THE ENTIRE DEBT BECOMING DUE AND PAYABLE EFFECTIVE THE DATE OF DEFAULT.
Defendant hereby requests and agrees to make the Installment payments according to the schedule above. Defendant agrees to immediately inform the Court of any change of address. Defendant hereby consents to the release of all information on this document and all information that is part of the record fo this proceeding
to a credit reporting agency or collection agency for the purpose of collecting this debt. Defendant hereby acknowledges that In the event of a default( failure to make any payment when due), one or more the following
sanctions may be imposed plus imposition of additional fees and costs: 25. 00
1.
Show Cause/ Delinquent Letter:
2.
Suspension/
3.
Commencement
4,
NSF Check fee;
5.
REFERRAL OF THE DEBT TO A COLLECTION AGENCY
Reinstatement of
driving
25. 00
privileges:
of contempt proceedings and
issuance
of warrant of arrest:
$
100. 00 25. 00
plus a collection fee of 25% of fine balance),
Social
DOB
Signature
Date
Security #
Phone/ MSG #
Mailing Address City Physical Address ( if different) Place of Employment C821 Leahy, Van Vector, Cox and Melendy C821 First Amendment Leahy, Van Vactor, Cox
and
Melendy
Pape Page 6
9 of 105 of 106
ATTACHMENT 2 - A
Zip
ATTACHMENT ATTACHMENT
1 2
3
IN THE MUNICIPAL COURT OF THE CITY OF SPRINGFIELD FOR THE COUNTY OF LANE, STATE OF OREGON
5
CITY OF SPRINGFIELD,
6
Docket No. Plaintiff,
7
CITY' S EX PARTE MOTION AND ORDER FOR ARREST WARRANT
vs•
e
9
Defendant.
10
The City Prosecutor for the City of Springfield, Lane County, Oregon , respectfully
11
12
moves the Court to issue a Warrant of Arrest in the above case, based on the reasons set
13
forth in the attached Affidavit. DATED this
14
day
20,
of_
15
City Prosecutor
16
POINTS AND AUTHORITIES:
t7
ORS 133. 060 18
19
ORDER 20
ALLOWED 21
DENIED zz
SECURITY/ SAIL $ 23
DATED this
day
of
20_
24
25
Municipal Court Judge 26 iPRINOFIELD CT'
PROSECUTORS OFFICE 230 4" St.
S,,
L
vWd trap.. 5G])]
ap- oa2t
C
P
Qp
I
Cox
CITY' S E( PARTE MOT10
21 Lealigban VaCIOr, Cox entl Melendy Leahy, Van Vactor,
C821 First Amendment and
Melendy
4B
r
kt
Pag eG 0g''10
ORDER FOR ARREST WARRANT
ATTACHMENT 2 - A
w: c-.iT:.f.``i.a.+:
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1...._ .. .-
6..,__ .-:. ....:'
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'
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ATTACHMENT AT7ACHMENT 2
PLEA FORMS
A
Y
1 1
h
Y
ienetiedh y,/
Cox
and
Melendy
actor,
cfy
g
Pa
o
ela?5
ATTACHMENT 2 - A
r..:.
i+.
3' " i'«:..:C,...
iNSS'«za.
c-.
z`amR', N'.¢ au•rs c
u
ATTACHMENT 1
ATTACHMENT
In the Municipal Court of the City of Springfield County of Lane, State of Oregon
CITY OF SPRINGFIELD;
DOCKET#
Plaintiff,
CASE # 12- 0201
Vs
WAIVER OF RIGHT TO ATTORNEY FOR PLEA NEGOTIATIONS ONLY
John Doe,
Defendant.
I waive my right to counsel voluntarily and enter into plea negotiations with the City Prosecutor, without threat
or promise. I am not under the influence of any intoxicants and I am of sound mind. I understand if 1 am not a
citizen of the United Stales; conviction of a crime may result in deportation or exclusion from citizenship. initial I am voluntarily waiving my right to counsel. I understand there may be advantages to being counseled by an
attorney and disadvantages by representing myself. I understand there may be defenses available to me of
which an attorney could advise me, and that an attorney has skills, knowledge and resources that I do not have.
I further understand that an attorney might provide advantages such as investigation of the case, interviewing witnesses, plea- bargaining, understanding law and courtroom procedure and also assist me in other ways not
mentioned here. I hereby waive my right to an attorney for the purposes of plea negotiations in the above entitled proceeding and wish to represent myself in plea negotiations. I understand that if I am indigent the Court would appoint an attorney to represent me throughout the proceedings. ( initial I have
read and understand all of
the
above
language in
this
document. ( initial
I wish to enter into plea
negotiations with the City Prosecutor and waive my right to be represented by any attorney in those plea
negotiations Further I have been advised of my rights by the court prior to my entering into plea negotiations
with the City Prosecutor or signing this form My waiver of right to counsel prior to plea negotiations was knowingly, voluntarily and intelligently given. (initial
Date: John Doe, Defendant
C821 Leahy, Van Vaetor, Cox and Melendy C821 First Amendment Leahy, Van Vactor,
Cox
and
Melendy
Pa a 62, 71105 Page 63 106
ATTACHMENT 2 - A
ATTACHMENT ATTACHMENT
CITY OF SPRINGFIELD MUNICIPAL COURT PLEA OFFER DEFENDANT: John Doe DEF. ATTY: PROSECUTING ATTY:[ X] Matthew J. Cox
DATE: 6- 15- 2012 CASE NO: 12- 0201 OFFER EXPIRES: 6. 15. 12
DOCKET NO: 12- 0201 If the defendant:
pleads guilty or no contest to:
admits violating probation in case# and accepts that probation should be revoked. agrees to pay restitution: Amount$
Amount$
Victim
Victim
agrees to pay a fine to be determined by the court or $ agrees to pay court- appointed attorney fees. agrees to write a letter of apology to OTHER
Then the City: will move to dismiss
will not prosecute defendant for will not ask the Court to revoke defendant' s probation in case# will not ask the Court to impose a longerjail term than OTHER:
This is the City' s entire proposal. It may be changed only in writing or on the record in open court. Defendant may accept this proposal only by actually entering the pleas listed here today. Please Note: The court is not bound by the City' s recommendation; the court is
merely informed by the City' s recommendation, The actual sentence imposed by Court may be higher C821? Cox
Wr eArhi 8n menjnL, 6hy°,Van
and
Melendy
or
lower than the
s recommendation. S
VacllondI
A@e6 o411Uti ATTACHMENT 2 - A
ATTACHMENT
ATTACHMENT
IN THE MUNICIPAL COURT OF THE CITY OF SPRINGFIELD. COUNTY OF LANE. STATE OF OREGON
CITY OF SPRINGFIELD, OREGON
PETITION TO ENTER Plaintiff
PLEA OF[ IGUILTY/ 1 I NO CONTEST TO
vs
J MISDEMEANOR VIOLATION
John Doe,
DOCKET p Defendant
CASE t; 12- 0201
The Defendant represents to the Court:
My full and true name is and I am also known as.
I here been charged with the offense of which
been
is
a
Class
f ]
promised
Misdemeanor [ ]
anything
and
I
Violation I understand the charge; I have not been threatened by anyone; nor have I
wish to enter a plea of[ ]
GUILTY/[ ] NO CONTEST to the charge.
I understand that by pleading guilty 1 give up the following rightsa)
My Right to a trial by the Court,
b)
My Right to be represented by an attorney, including the right to have an attorney appointed to represent me at public expense if I cannot afford one;
C)
My Right to confront and question all witnesses;
d)
My Right to call witnesses in my own behalf; My Right against self incrimination, and,
e)
D
[ ]
My Right to the presumption of innocence until proven guilty beyond a reasonable doubt. My Right to the presumption of innocence by a preponderance of the evidence,
I know that if I
plead
guilty
to this
charge
the
maximum
penalty is
days in jail
and a
fine
of S
if 1 am on parole
or probation this guilty plea may have a serious impact upon that parole or probation.
When sentenced, I understand that 1 have the right to appeal that sentence by filing a written notice of appeal as required by law within
thirty( 30) days I
hereby
enter
my
plea of[ ]
GUILTY/[ ]
forth in the complaint and this petition
NO CONTEST freely and voluntarily and with full understanding of all the matters set
Defendant' s Signature. Address— Street&
Mad
City, State& Zip Phone— Home&
Work.
ACCEPTED this
day
of
2012
Municipal Court Judge
1rLetBnyo
C8211' Cox
irsteA4dn me^
and
Melendy
an
Vacjor,
Pa18%
l`fig
ATTACHMENT 2 - A
ATTACHMENT
ATTACHMENT
IN THE MUNICIPAL COURT OF THE CITY OF SPRINGFIELD, COUNTY OF LANE, STATE OF OREGON
CITY OF SPRINGFIELD, OREGON WAIVER OF RIGHT TO LEGAL
Plaintiff
COUNSEL vs
DOCKET#
CASE# 12. 02D1
John Doe, Defendant
i understand that I have a right to be represented by an attorney in the above case. I understand that if I cannot afford an attorney that
I may request that the Court appoint one for me at public expense 1 have been advised of the charges filed against me, the elements, and have received copies of the complaints I understand what the charges allege and have been advised of the maximum penalty that can be imposed if I am convicted.
I further understand that an attorney could help me with many things, including. I.
2
Investigating my case, calling witnesses, and obtaining evidence;
Researching the law and raising constitutional issues such as possible defenses and motions to exclude results of illegal searches or confessions;
3.
Knowing and explaining courtroom procedure and arguing my case;
4
Plea bargaining for a reduced charge or sentence with the city prosecutor;
I understand that if I waive( give up) my right to an attorney I must be prepared to do those things for myself I HEREBY FREELY AND VOLUNTARILY WAIVE THE RIGHT TO BE REPRESENTED BY AN ATTORNEY IN THE ABOVE CASE( S).
John Doe, Defendant
Dated this
day
2012.
of
Municipal Court Judge
C8 1aF'} sll4 Cox
and
n
Melendy
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VICTIM NOTICE LETTER
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ATTACHMENT 2 - A
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ATTACHMENT ATTACHMENT
City of Springfield Municipal Court Victim's Rights Notice
You have been identified as a victim in a case being prosecuted in Springfield Municipal Court. As a victim, under Oregon Law, you have the following rights as a victim to a crime: 1.
The right to be informed of these rights as soon as practicable,
2.
The right to be present at and, upon specific request, to be informed in
advance of any critical stage of the proceedings held in open court when the defendant will be present, and to be heard at the pretrial release
hearing and the sentencing or juvenile court delinquency proceeding. 3.
The right, upon request, to obtain information about the conviction,
sentence, imprisonment, criminal history and future release from physical
custody of the criminal defendant or convicted criminal and equivalent information regarding the alleged youth offender or youth offender. The right to receive prompt restitution from the convicted criminal who
4.
caused the victim' s loss or injury; see reverse for restitution procedure, S.
The right to refuse an interview, deposition, or other discovery request by the criminal defendant or other person acting on behalf of the criminal defendant provided, however, that nothing in this paragraph shall restrict any other constitutional right of the defendant to discovery against the City.
6.
The right to have a copy of the transcript of any court proceeding in open court, if one is otherwise prepared,
7.
The right to be consulted, upon request, regarding plea negotiations involving any violent felony.
If you want information regarding the proceedings being prosecuted by the City of Springfield in which you are involved as a victim, you can contact the following individuals for court scheduling regarding your particular case: Office
the
Sphngf+eld Municipal Court
City Prosecutor Dougherty, Assistant West B Street, Building N of
Robyn 186
Court Clerk 240 4" Street
Springfield, OR 97477
Springfield, OR 97477
541) 745- 9621
C821 Leahy, Van Vector, Co C821 First Amendment Leahy, Cox
and
Melendy
541) 726-3748
Melendy Un vactor, and
a
Pa9
8
oP1
ATTACHMENT 2 - A
ATTACHMENT 1
AT7ACHMENT2
RESTITUTION PROCEDURE
The person convicted of the crime, for which you are a victim, may be ordered to pay for the property that was either destroyed, stolen, damaged, or converted. If you have had an injury which resulted in your need to seek medical attention, which was
not compensated by your insurance company, or for which you had to pay a copayment, you may be able to recover restitution for those costs as well. Further, your
insurance company, should they provide the Information as outlined below, may be entitled to seek restitution for their costs. This is the only notice you or your insurance company will receive.
In order for you to recover restitution, you need to deliver to the Springfield Police Department, within the next 10 days, the slip from the bottom of this form indicating you wish to recover restitution as the victim of a crime. Attached to the request you will need copies of all receipts or estimates for which you seek restitution.
If we do not have receipts of estimates, we will not be able to recover restitution for you. If you need additional time to provide this information, you need to deliver the notice on the bottom of this form, along with your request for additional time, to the Springfield City Prosecutor' s office within 10 days. If this form and the r uired information is not delivered to the Sprinofield City Prosecutor' s office within the next 10 days you may be barred from recovering any restitution for your out-of-pocket expenses.
Restitution Slip Today's Date: Name: Address: Phone #:
Defendant's Name ( if known) Date of Incident:
Amount of Restitution Sought: $ Do
you wish
to be notified
I need o 1 more
C821 Leahy. Van Vactor Cox and Melendy C821 First Amendment Leahy, Van Vactor,
Cox
and
Melendy
week
of
future Court dates?
Yes 0 No
2 more weeks to provide information.
pag BS Page y ogtofiad(I ATTACHMENT 2 - A
ATTACHMENT 1 A T T ACHMENTI
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C821 Cox
ATTACHMENT I
ATTACHMENT 2
fA
TRAINING OUTLINE
BLOG
fi
Rj
rq
C8 Cox
ilth A and
niKey Keh
Melency
p? gWt7jbfj6g5
ATTACHMENT 2 - A
ATTACHMENT
ATTACHMENT,'.
LEAHY, VAN VACTOR, COX & MELENDY, LLP ATTORNEYS AT LAw 188 WEST B STREET, BUILDING N SPRFNGFIELn, OREGON 97477 mKrmEW J. Cox
TELEPHONE: ( 541) 746- 9621
PATRICK S. MELENDY
FAx:
MARY BnmcEr Swra
541) 746- 4109
KAY HYDE•PATTON JOSEPH J. LEAHY, OF COUNSEL BILL VAN VAc7oR, OF COUNSEL
TAYLOR L M. MuROom, ASSOCIATE
June 15, 2013
Springfield Police Department
Municipal Prosecution Training Notes DUII Cases: 1
Stop—" a.
reasonable suspicion of a traffic infraction'
Subjective Standard - NOT Objective
b. Example: " I thought his license plate light was out` 2.
FST's ( you must have consent)
a. Burden on State/City to prove that there is consent to get around warrant requirement
b. Will you " CONSENT" to perform field sobriety tests? c. Answer must be audible response— not just nodding head. d.
If NO— then give FST admonishment
3 RHORS admonishment— will you perform tests of a purely physical nature
that will not require you to reveal your thoughts or beliefs such as the " HGN
4
test, walk and turn test, one-leg stand?" If RHORS not given OR if specific tests not listed then all FST' s can be suppressed.
5
Lay Observations— more of these observations a.
Holding onto side of car for balance
c
Observations back at police station Very powerful with Jury— ( i. e., we've all been in line at the store and know the person ahead of us was drunk)
d.
6
Staggering
b
Breath Test a. 15 minute observation period
b. Must be " Certain" that there was no vomiting, burping, belching, etc
7.
c. Be able to testify that you were paying attention d. Dennett has won many DMV hearings on this issue.
FST notes:
a.
HGN — 12 to 15 inches
b. Heel to Toe ( should be instructed as touching heel to toe) c d. e.
Don' t isolate one FST to make your determination Should be a totality of the circumstances Each test shows an indication of impairment
f. Your expert opinion is drawn from all of your observations
CO FirsleRhridn Cox and
Melendy
dI meii o,' 9hy°,k?anVaclgr'
PaP$ P/ 7S7oy11
ATTACHMENT 2 - A
ATTACHMENT
AT7ACHMENT2
June 15, 2013 Page 2
6.
Diversion:
9
DRE:
a.
NOT eligible if you have a commercial drivers license
a.
State vs. Sampson
b. 12 step protocol ( only partial list below) I.
FST' s
ii.
Eye tests (dark room exam with pupilometer)
iii.
Look for injection sites
iv.
Ask what drugs have you taken?
c.
The UA is the 12°i Step
d.
Question: Are first 11 steps admissible 6 D refuses UA?
e f.
Take UA even if no DIRE available Marijuana cases can be difficult
g h.
Carboxy vs. Hydroxy THC In system for up to 4 weeks (or longer)
License Suspensions: 1.
DUII a.
1"
b.
conviction ( 1 year suspension)
2" d conviction within 5 years ( 3 year suspension)
c. 3`d conviction ( revocation of license) d. However, plea without an attorney cannot count. 2, Reckless Driving ( 90 days wl immediate hardship) 3. Hit& Run ( 90 days wl immediate hardship) 4.
PCS less 1 oz. ( 6 months)
Search & Seizure Issues.
1
Community Caretaking:
a.
Driving Example: I.
Driver asleep?
li.
Not responding? ( probably not enough by itself)
b.
iii. Slumped over wheel? Not breathing? Enter but the evidence may not be admissible
c
To be used you must be able to articulate a" specific victim" or a
specific perpetrator when exercising community caretaking function. d. Example: Gunshot— or explosion coming from house. e. Example: " I saw peril, enter house with a gun.° 2. Whose backpack is this anyway? a
Backpack in backseat can' t be opened if Driver doesn' t claim
ownership and does not consent. Only Owner can consent to opening backpack.
3. Recent case law: Can' t open lust because it' s in inventory. one opaque
bottle
with unknown
Must inventory
liquid' — unless container" announces it' s
contents to the world"
Domestic Violence Cases:
1.
Crawford case: confrontation clause of U. S. Constitution
2. VictimsANitness must testify: a Let victimstwitnesses know that they may have to testify
Ce
C CH7t 4e Firs
Cox
and
h
V
n
Victor. Co
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e)
n men eahy, fan" c endy or,
Melendy
pEeg5 off a65 ATTACHMENT 2 - A
ATTACHMENT
ATTACHMENT
June 15, 2013
Page 3 3.
Children victims/witnesses:
a
Use Kids First (formerly Child Advocacy Center)
b
Videos are a great tool to resolve cases
c. Example: 4 year old boy on video " He didn't.come down to help" Protective Orders:
1.
FAPA (family abuse prevention act) a. Eligibility: b.
Parties related by blood, marriage or adoption
c. Parties currently cohabit or have cohabitated d. Parties involved in a sexually intimate relationship in the last 2 years. e.
Parties who share a minor child
f.
Physical injury; threatened abuse; or forced to engage in sexual relations within the previous six months.
g. Valid for one year and is renewable h. Affects rights to possess firearms
2.
Stalking Protective Orders ( SPO): a. Eligibility-
b. No relationship between parties is required
c. Repeated, unwanted contact that is alarming or coercing d. Initial order is temporary
e. Permanent is of" unlimited duration"— however, may be modified or changed later by the court.
f
Prohibits all contact including third party
g h.
Affects rights to possess firearms Communicative versus Non- communicative Contact ( It makes a
difference) Elder Abuse:
3.
a. Petitioner must be 65 years or older or have a disability b. Doesn't specify relationship between parties c. Abuse may be verbal, coercive, neglectful, physical or financial In nature.
d
Removes respondent from residence
e. Valid for one year, may be removed, may be modified 4.
Mandatory arrest if violation:
a. " A peace officer shall arrest and take into custody a person when the officer has PC to believe that an order has been served that restrains
the person in some way, and that order has been violated." ( ORS 133. 310). Restitution:
1. 2.
Prosecutor' s office needs accurate figures Officer estimate is ok if that is all you have
3. Get follow up statement on damages ( supplemental report, copy to City Prosecutor)
Misc Matters,
1
Contempt/ FTA Procedures ( see packet)
8Fir$teAniontlment ea4ounVac or,tlY
C82, Cox
and
Melendy
Pagp
IPilb65
ATTACHMENT 2 - A
ATTACHMENT
ATTACHMENT
June 15, 2013 Page 4
2
3.
MJ cases. a PCS less than 1 oz. b. 1000 feet of a school
c.
D doesn' t have to be on notice of location of school
de.
NIK test( admissible in court now) Endanger the welfare of a minor ( evenly applied policy)
MIP:
a.
Consumption vs. possession
Questions from Officers:
1.
Charlie Diaz. " Is an Emancipated Minor treated as an adult or a minor for non- criminal/ criminal offenses?
2. Answer ORS 4198. 558(3), " An emancipated minor shall be subject to the jurisdiction of the adult courts for all criminal offenses." 3. 4.
Same for Non- criminal offenses Minors and Parents:
a.
Parents are liable for up to $ 7. 500.00 for the intentional torts of their minor children.
b.
Negligence is another issue i. Negligent Entrustment (with cars or motorcycles)
Contact Me
1
C8, 1IRJ, Cox
and
After hours consultation wk: ( 541) 746- 9621; cell: ( 541) 510-7569
2
Call me with questions!!
3
e- mail:
[email protected]; psm @emeraldlaw. com
nVCff
Melendy
ieXf4%
nl°
fr R Ma6I8F'
y
P$
g
oPti B@5
ATTACHMENT 2 - A
ATTACHMENT
Prosecution News&
Update
Page 1 of 5 ATTACHM ENT 2
Prosecution News & Update a bLA Wg for the clients. colleagues and friends of Leahy, Van Vactor. Cox d Melend). LLP Home Ahout
Case Law Update
DU'll Cornet
Type text to
search
here
Submit Query
Case Law Review: Establishin Venue March 11. 2012 omelends Leave a comment
The Court of Appeals recent]), upheld the dental of D' s MJOA because the State had failed to precisely establish Jackson County as the venue in a DUII prosecution. In Stare vs Stephanie Faye
Davis. ( CTA. Februan- 23. 2012); the Court explained that in the instant case the State had established
that the offense took place in Medford. Oregon with specific references to street names and other references. In such a case. ajuiy Nas not required to " stack inferences" to establish venue. This type
of et idence is the difference between speculation of venue( not pennissible) versus being able make
inferences from circumstantial evidence ( permissible). Categoies: Uncateeorized
Case Law Review: Understanding Implied Consent March 1 ].
2-012 omclends Leap e a cominent
The Oregon Supreme Court recently held that the suspension for refusing a breath test cannot be
suppressed simply because a defendant cannot understand what is being read to them under the Implied Consent laws. In Stare vs Jose Nunez Cahanilla ( March 1, 2012)_ the Defendant( a non-
English speaker) was arrested for DUlf and read the implied consent provisions. After refusing, the Defendant tomoved to suppress the refusal The court held that under the law_ -`a driver has already the test. The driver
consented
cannot
legally
refuse.
when a driver is asked to take a breath test.
his or her only decision is whether to physically refuse." Categories. Uncateeodzed
Case Law Review: Interfering with a .Peace Officer July 24. 2011 omelends Lense a comment
Interfering v, ith a Peace Officer( ORS 162 247). prohibits conduct when someone " intentionally acts in a manner that prevents. of attempts to present, a peace officer from performing the laAfol duties of the peace officer Aith reeards
CeR
htt ° x
r
Qi
F{ iYe
d4Aev1
lends.
ee4f
to
E
another person."
a4,°
y
sioidpress corn.
ORS 162 247( l )(
a)
,
ks applied. the quesno» dts,".
PRjFe V1iW
ATTACHMENT 2 - A 5/ 21/^ 012
ATTACHMENT
Page 2 of 5
Prosecution Nets R Update ATTACHMENT
whether or not this conduct is extended to speech? In Slate vs Brent Wai Lam, 176 Or App. 149
2001). the Court of.Appeals held that " the statute was not intended to reach speech alone:' In support of its decision the Court relied heavily on the legislative history of the bili" s sponsor.
Representative Floyd Prozanski. who' s testimony provided, 1 want to make clear that the intent, my intent. is not to limit speech. It' s to deal %ith the physical contact or I should say, conduct of an individual " ! d. at 155
Categories: Lncateeorized
Court of Appeals clarifies DUII " statutory counterpart" language July 10. 2011 pntelend\ Leave a comment In Stare r% Abdul Nuleem Riaherfor d( Court of.Appeals. June 29. 2011), the court of appeals affirmed
the trial courts ruling that the Defendants two prior Nevada convictions for DUII were equal to or statutory counterparts'" to Oregon' s DUII late. ORS 81'. 010. At issue in Rudrerford was whether- or not the Defendant \ could be subject to Oregon' s enhanced provisions for a lifetime license suspension on his third DUII conviction Rutherford argued that his two prior convictions in Nevada were not
statutory counterpartss" based largely on the argument that his first Nevada conviction was more akin
to Oregon' s own diversion program. and therefore should not be considered as a -- conviction— In refuting Defendant' s argument, the Court again clarified it' s position that " A statutory counterpart to ORS 813. 010 is one that is either remarkably similar to or that has the same use. role. or characteristics as ORS 813. 010." Stale vs Rau leigh, 222 Or. App. 121. ( 2008). Additionally, " a
statute may be a statutoq counterpart to ORS 813. 010 even if it does not have the same elements as ORS 813. 010." Categories Uncalcgori>_ ed
I nition Interlock proposed for all DUII Diversion Cases June 17, 2011 pmelendt Lcate a comment
HB 1075 passed the Oregon House on Thursday which would require those entering Oregon' s DUII diversion program to install iginition interlock devices on their vehicles so the) " blow before
the) go" as they say. Currently. only those who are convicted of DUII in Oregon typically face installation of the interlock device. The bill now goes to the Senate for consideration. For full teat of the bill go to. htto ' tv%v lee state or usrl I rectrnt ensures/ iib3000.dirAib3075. 1ha. lttn7l. The cost of
administering the program would allegedly be funded out of an additional $ 25.00 diversion fee.
Categories. Uncategorized
Case Law Update: Lidar finallv scientifically reliable? tune 15. 2011 pirtelendt I. eat e a comment
C821 First Vfthdmenfe,& y,, anVacjor dy Cox
hUp:
Pd
Mel
pa in:
nd
n elend). ttordpress coin/
ATTACHMENT 2 - A
I/'' 01n
ATTACHMENT
Prosecution News & Update
Page 3 of 5 ATTACHMENT
The Oregon Court of Appeals recently held that LIDAR was scientifically reliable as to not require the state to present foundational evidence as to its admissibility— at least as that evidence pertains to measuring distances. In State r. Brmich, ( A 140218. June 1. 2011). the court did not go so far as to
hold that LIDAR was scientifically" reliable for determining the speed of an automobile. However, this is clearly the first step in determining that evidence such as LIDAR should be admissible and considered scientifically reliable given it' s overwhelming use throughout the country. ( LIDAR has
been used by the Portland Police Department for over thirteen years). In Branch, the defendant had
been arrested and corn icted on two counts of unlawful delivery of cocaine within 1. 000 feet of a school ( ORS 475. 882). The officer used LIDAR to measure the distance fiom where the defendant sold to an undercoxer officer and the adjacent school. In rejecting the defendant' s argument, the court
held. " We conclude that the scientific principles and the means of applying those principles to the
problem involved are so clearly apt for the end of measuring distances that thnse principles and their use for that purpose are indisputably valid. Accordingly" the admission of the evidence in this case
derived from
the
LIDAR device
present'
a"
clear case"'...
and the state was not required to present
foundational evidence. in order to establish the admissibility ofthe evidence." Categories: I incate, oriz. d
DUII Corner: Use of Rohrs Admonishment June 12. '_ 011 nnielends Leave a comment
If a Defendant imtialiv refuses to do SFST' s remember that to give a propel Rohrs admonishment that y ou must actually recite which specific STST' s you aie going to ask them to do( that are non-
testimonial). It is important that you recite what those tests actually are ( i. e . maalk and turn. modified
Romberg. and one leg stand). If you only giN e a partial admonishment and do not specifically list in yuui report the non- testimonial SFST' s that you want them to do then evidence of their reftisal will
more than likely be suppressed. As the Court in Rohrs held. " In the absence of evidence of what tests
mere actually intended. the use of the term " physical tests." even when accompanied by the caveat that defendant will not be required to speak, is not sufficient to render the request constitutionally
permissible."
Categories- Uncateenrized
DU11 Corner: ineligible for diversion? June 12. 2011 pmelendm Leah e a comment
A Defendant may not be eligible for a DUII diversion program when they have participated in a priori
alcohol or drug rehabilitation program. In State v. Warrington. ( Oregon Court of Appeals. May 7.
2008). the court examined ORS 811220( 8) which provides that one is ineligible for a DUII diversion program where one has previously participated in any similar alcohol or drug rehabilitation program. What is similar under the statute really means when a defendant participates in such a program " to avoid substantial. judicially imposed adverse consequence." Accordingl)" at) N41P ( or other crime)
diversion where one participates in alcohol classes for a benefit ( i. e - deferred prosecution). would potentialty male on meliRible for the DUII diversion program. Categories: Uncmeeou[ ed
ill
C
irstte
Yenpm"e
LeanY,,(/'
an
aclor' y
lint p° ,,ffMneeflqlendy. msoidpresscomi
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ATTACHMENT 2 - A
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ATTACHMENT
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Prosecution News & Update June 11, 2011 pnxlend\ I comment
Prosecution News and Update returns after a short absence but in an updated format thanks to WordPress.com
Prosecution News and Update is a biog intended for the clients. coileaaues and friends of Leahy, Van Vactor_ Cox & Melend\, LLP, Attorneys in Springfield. Oregon focusing on the needs of our municipal clients and their police departments. Please subscribe to our blog for timely updates on Oregon Court of Appeals and Supreme Court cases. review of legal issues on suppression, search and seizure and the DUII comer' More to come soon!
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Pages About
Case La\ i Update DLII Corner
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ATTACHMENT 2 - A
51211201
ATTACHMENT 1 ATTACHMENT 2
REFERENCE LETTER
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Cox
and
Melency
ATTACHMENT 2 - A
ATTACHMENT ATTACHMENT
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i
Central Services
City Prosecutors Office City of Eugene 915 Oak Street Suite 310 Eugene, Oregon 97401 541) 682- 8401 541) 682- 8430 Fax
May 15, 2012 Reference Letter for Matt Cox
To Whom it May Concern,
I am the City Prosecutor for the City of E ugene, For the last five years Matt Cox has worked for our
Office as one of our part time Assistant City Prosecutors. I have supervised his work In our Office during his tenure here Mr Cox has handled his assignments in our Office with distinction. During that time he has tried numerous jury and non- jury teals, partiapated in hundreds Of settlement conferences, and represented the City of Eugene in various motions, demurrers and other pre- trial matters. Mr. Cox has
always been well prepared for the matters assigned to him, and has been willing to take on assignments with little advance notice when other attorneys in our Office have had conflicts that required them to shift case assignments.
I have also appreciated Mr. Cox' s cheerful and professional attitude toward our staff members and
other prosecutors in the Office. Many of our staff members have expressed to me how much they enjoy working with Matt, and appreciate his helpfulness when they have questions on some of our cases For all of these reasons I would highly recommend Matt Cox for other prosecution positions, and feel that any agency would be well served by his efforts.
Sincerely,
O. Daniel J. Ba rkovic
C821 Leahy, Van Vector, Cox and MefendyC821 First Amendment Leahy, Van Vactor, Cox
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ATTACHMENT 2 - A
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Amend t Melndy
First and
C821 Cox
ATTACHMENT 1 ATTACHMENT 2
CIVIL FORFEITURE OUTLINE '
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ATTACHMENT 2 - A
ATTACHMENT ATTACHMENT
Civil Forfeiture Guidelines I,
Particular definitions. ( ORS 131A. 005( 12)). a.
P
Prohibited CDnducV' means any felony or misdemeanor. i. There is no requirement that the prohibited conduct that gives rise to forfeiture be the same prohibited conduct that gave rise to the initial police contact. ii. Ultimately, unless ex- parte or with consent, forfeiture requires conviction for
"
the prohibited conduct that resulted in the seizure.
II
Property subject to forfeiture. (ORS 131A. 020). a.
Controlled substances.
b.
Production materials.
c.
Container for a controlled substance or production materials.
d.
Conveyances of any kind.
e.
Computers, books, data, etc.
f. Money, negotiable instruments, deposit or other accounts, securities or" other things of value."
g.
Real property, including equitable interests in land- sale contracts.
h.
Weapons
i.
Any property used to attempt, solicit, or conspire.
III. Particular requirements for certain kinds of property. a.
Controlled substances, ( ORS 131A. 020( 1)).
i. ii.
Must have been manufactured, distributed, dispensed, possessed or acquired, In the course of prohibited conduct.
iii.
Destruction requires written consent of DA.( ORS 131A.350(4)).
IV.
Note In most cases, the possession itself will constitute the prohibited conduct.
However, narrow exceptions may exist. For example, possession of a legally prescribed controlled substance discovered in the course of a non- criminal
traffic stop would not be subject to forfeiture. b.
Production materials.( ORS 131A. 020( 2)).
I.
Includes raw materials, products, or equipment of any kind,
if. Used In providing, manufacturing, compounding, processing, delivering, importing or exporting, iii.
Any service or substance,
iv.
in the course of prohibited conduct.
v. Note This provision is actually fairly broad, and may likely encompass any tangible thing not otherwise provided for. Some are obvious— scales, drug components, etc. Others are not so obvious- cellular phones, PDAs, computer equipment( other than computers— Le monitors, printers, etc), postage meters, credit card processing equipment, copiers, scanners, USB drives and other external computer storage devices.
Civil FdorfeitudreMGuidelines 22 '
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C8218Fir$ Cox
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ATTACHMENT 2 - A
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ATTACHMENT
c.
Conveyances. ( ORS 131A. 020( 4)).
Yw i
Used to transport, or Facilitate the transportation, sale, receipt, possession or concealment of controlled substances or production materials.
iii.
Used in prohibited conduct, or
iv.
Used to facilitate prohibited conduct In any manner
v
Note: There must be some evidence that the conveyance was actually used in the manner or for the purpose described above. For example, although it can
be fairly presumed that a drug dealer uses his car to make deliveries, the mere fact that a car is in the driveway of the drug dealer' s residence would likely be insufficient, in and of itself.
vi.
d.
See below for additional discussion regarding motor vehicles.
Money, etc. ( ORS 131A.020( 6)). i.
Furnished in the course of prohibited conduct.
ii.
Proceeds of prohibited conduct.
Iii.
Used to facilitate prohibited conduct.
iv. Must be deposited into an interest-bearing trust account.( ORS 131A.090( 1)). 1.
Account must be solely for seized property.
2.
Cash must be deposited only when no longer needed for evidence in criminal prosecution.
3.
Also deposit money from sale, lease, rent or operation of seized property.
e.
Real property. (ORS 131A. 020( 7)). i
Includes appurtenances and improvements,
ii.
Used in any manner,
iii.
In whole or in part,
iv.
To commit or facilitate prohibited conduct.
v. Note for example, a grow room in a shed on a 100-acre tract of land would subject the entire 100- acres to forfeiture. f.
Weapons.( ORS 131A. 020( 8)).
i. Any instrument of offensive or defensive combat, or
ii. Anything used, or designed to be used in destroying, defeating or injuring a person, that was
iii.
Possessed,
iv.
Used, or
v.
Available for use in any manner
vi
To facilitate prohibited conduct.
vii. Destruction requires written consent of DA.( ORS 131A.350( 4)). viii. Note: Unlike other elements, this does not include the requirement to " commit"
prohibited conduct. Presumably" commit" necessarily encompasses" facilitate."
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and
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IV.
Special requirements regarding search of motor vehicles. ( ORS 131A. 025).
a.
If property seized solely on the basis of a consensual search of a motor vehicle, then not subject to forfeiture unless, I.
Before consent,
U. "
iii.
A person"
Is provided written, multilingual( English/ Spanish) notice, that includes,
1.
Advising the person has a right to refuse to consent to a search,
2
Advising that refusal to consent cannot be used against that person for any purpose,
3.
Advising that anything found in the search can be seized as evidence of a crime or can be seized for forfeiture.
b.
Note: Although statute allows for providing notice to " a person," adequate notice
probably requires that person be the owner or someone with a possessory interest. For example, the consent of one of three passengers in a car would not permit the search of other passengers' or their items.
c.
Note: There is no requirement that the person acknowledge receipt or understanding of the notice.
V.
Motor vehicles with hidden compartments. ( ORS 131A. 030) a. "
Hidden compartment" means vehicle' s original design modified by somebody other than the manufacturer,
i.
li
To create a container, space or enclosure,
For the purpose of concealing, hiding or otherwise preventing discovery of its contents,
iii.
And that is used or intended to be used to facilitate the commission of a criminal offense.
b.
if car retained by law enforcement, i
C.
No need to disable compartment.( ORS 131A. 030( 1)).
If car not retained by law enforcement, or upon later sale, then i
ii.
If cost of disabling compartment exceeds value of car,
1.
Car must be sold for scrap or salvage, and
2.
Buyer must disable compartment or the vehicle.
Otherwise, compartment must be disabled prior to sale.
1.
Cost of disabling compartment is deducted from proceeds of sale prior to distribution.( ORS 131A. 030( 3)).
VI.
How seizure is made.
a.
Without warrant. (ORS 131A. 065).
I.
Probable cause to believe property is subject to forfeiture, and 1.
Ii.
Warrantless seizure is otherwise constitutional;
Seized in course and scope of a constitutionally valid criminal investigative stop, arrest or search, and
1.
iii
Probable cause to believe property Is subject to forfeiture;
Directly or indirectly dangerous to the health or safety of any person; or
Civil Forfeiture Guidelines cs Z Cox
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ATTACHMENT 2 - A
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iv.
An owner consents to a search.
1.
Note It is because of this language that the notice given to" a person"
during the search of a motor vehicle likely requires that person to be the owner of the property to be searched( i. e. bag). v. Note: Probable cause exists when cash, weapons or negotiable instruments are in close proximity to controlled substances or" instrumentalities of prohibited conduct."
Instrumentality" means property used or intended to be used in
1. "
prohibited conduct or that facilitates prohibited conduct.
vi. Note: It is unlikely that intangible objects can be seized without a warrant. b
with warrant ( ORS 131A. 060).
I.
Provide affidavit to judge establishing probable cause that property is subject to forfeiture.
1.
ii
Affidavit may come from forfeiture counselor police officer.
Order may be made as part of a search warrant. 1 "
Judge" includes municipal judge who has powers of a justice of the peace ( ORS 131A.060( 2), 133. 525).
c.
2
Order may specify manner in which intangible property may be seized.
3
Order shall direct person with custody or control to turn over to officer
Deadlines.
i. Once property is seized for any purpose, the seizing agency must determine whether the property is subject to forfeiture.
1.
Such determination MUST be made within 30 days of seizure. ( ORS
2.
NOTE: Statute appears to require" consultation" with the district
131A. 105( 1)).
attorney prior to decision on seizure for forfeiture The purpose of the consultation is unclear.
a. Question: Is this intended to apply when criminal proceeding is In municipal court? Even if it is, who wilt care? Does the DA really want to be " consulted" on this every single time?
h. Once property is determined subject to forfeiture, Notice of Seizure for Forfeiture and Receipt must be completed and served. ( ORS 131A. 150). 1. Service must be on person or persons who were in possession or control or apparent possession or control) of the property at the time it was seized.
2.
Service must comply with requirements of ORCP 7D. ( ORS 131A.150(4)). a.
3.
Appropriate methods of service are noted on the Notice.
Service must take place within 15 days of seizure for forfeiture. (ORS 131A. 150( 3)).
4 C82r
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VII.
Interim happenings.
a
Liens ( ORS 131A. 075).
1.
Liens and security interests remain in force and subject to foreclosure or other enforcement action as if no seizure had taken place. ( ORS 133A. 075).
ii. An action by a financial institution may be consolidated for trial with the forfeiture action.
iii.
If sold prior to conclusion of forfeiture action, proceeds distributed as follows: 1.
Expenses of sale.
2.
Cost of disabling hidden compartment in motor vehicle.
3.
Payment of foreclosed security interests.
4.
Seizing agency or court in which forfeiture action is pending.
a.
a.
Order of payment to be determined by court.
Note- Presumably payment to court would only be required where a claim had been filed but not resolved.
b.
Storage ( ORS 131A 080).
I.
Property must be maintained " in a manner that is reasonably appropriate" to preserve the propertys value. ( ORS 131A. 080( 1)).
ii.
Property in control of financial institution may remain there. ( ORS 131A 080( 3)). 1. Transactions involving the account are prohibited without a court order. a. 2
Exception for deposits, reinvestment of dividends or other
normally recurring payments on the property. Accrued interest and/ or principal disbursed as follows: ( ORS 131A. 090).
a.
if forfeiture fails, then to person from whom property was seized.
b.
If forfeiture entered, but some third- party rights established that, rn the aggregate, are equal to or larger than the
accumulated interest, then to those parties in order of priority of their claims.
c.
If forfeiture succeeds, and if funds remain after paying lienholders, remainder distributed pursuant to ORS 131A. 360 and 131A. 365.
c.
Sale, lease, rental and operation. ( ORS 131A 085).
i. Can apply to court for order authorizing sale, lease, rental or operation of seized property.
1.
Subject to need to retain for evidence In criminal prosecution.
2.
Court may set terms of sale, lease, rent or operation.
ii. Must be in commercially reasonable manner. iii. May not materially reduce the property' s value w.
Prerequisites to order:
1.
Notice and opportunity to be heard to all known interested persons, or who claim to have an Interest.
2.
Consent of all holders all recorded security interests.
5 I Civif Forfeiture Guidelines Ce Cox
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v.
Proceeds paid into Interest bearing trust account
1
Rights of recorded security Interest holders attach to proceeds in account in order of priority of their claims
d.
Probable cause hearing. (ORS 131A. 100).
i. Person with an interest may file show cause to determine probable cause for seizure for forfeiture.
ii.
1. 2.
Must be filed with 15 days of service of Forfeiture Notice, or Within 15 days person has actual knowledge, whichever is later.
3.
Copy must be served on forfeiture counsel.
Court must hold hearing to determine probable cause.
1.
Probable cause must exist on date of hearing. a.
Note: This appears to allow property seized without probable
cause to remain subject to seizure If probable cause is
developed between date of seizure and date of hearing. 2.
If no probable cause, property must be released. a. Note. This provision, unlike that following a substantive trial,
does not appear to provide for recovery of costs, disbursements or attorney fees. Nor does it appear to require payment of costs of seizure, including satisfaction of chattel liens. Claims processing.
Vltl.
a. Claim must be filed within 21 days after service of forfeiture notice. ( ORS 131A. 165). i. If notice served by publication, then 21 days from last publication. 1 Extensions to file claims are prohibited.( ORS 131A. 165( 2)). b.
Claim requirements.
i.
Signed under penalty of perjury.
1. it.
Note: Does this mean notarized, or does a simple statement suffice?
True name of claimant.
1.
Note This may end the deal right there for those claimants who have issues about" true" names, etc.
iii.
Mallingaddress.
Iv.
Statement that the claimant has an interest in the seized property.
1. c.
Note: No requirement to state nature, degree or basis of interest.
Expedited hearing. ( ORS 131A 170).
i. Claimant may petition for an expedited hearing. 1. Petition must be filed 15 days after service of forfeiture notice. 2.
Time may be extended by court for good cause.
it. Petition may contain the claim if none has been previously filed. 1. iii.
Same claim requirements apply as stated above.
Petition requirements. 1
Must state one or more.
a.
Determination of any affirmative defense provided in ORS 131A. 260.
Civil Forfeiture Guidelines C821
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Van Vactor, Cox
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and
Melendy
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Leahy, Van Vactw,
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2.
b.
Restoring custody during pendency of forfeiture proceedings.
c.
Appointment of a receiver.
Must be served on " all persons known to have an interest in the property"
a.
Note: There is no explicit requirement that it be served on
forfeiture counsel. Does the sei2ing agency automatically acquire an " interest" for purposes of the forfeiture process? iv.
Hearing must be held within 15 days after service.
1.
v.
Hearing limited to relief sought in Petition.
Court may return custody of property to claimant. 1.
Only if court finds property will remain available for forfeiture.
2.
Court must also find a " reasonable probability' that petitioner will ultimately prevail.
3.
vi
Findings must be by a preponderance of the evidence.
Petitioner may refiie if" subsequently discovers evidence relevant to the claimed relief."
1.
New petition must be served according to ORS 131A. 23O. a.
Basically pursuant to ORCP 7D. Not clear how this is different than service of first petition.
vu.
Parties may stipulate to return of custody if order complies with ORS 131A. 18O( 1).
d.
Expedited hearing on affirmative defenses.( ORS 131A. 175). i.
Evidentiary hearing relating to those affirmative defenses set forth in ORS 131A. 26O.
ii.
If successful, property returned pending forfeiture proceeding
1.
Unless forfeiting agency shows return will" prejudice" ability to seek forfeiture of other claimants' interest in the property.
iii.
Failure to prove affirmative defense at expedited hearing, case is continued as a regular forfeiture proceeding.
1
Note Presumably, this means the request for an expedited hearing on an affirmative defense constitutes a response that otherwise triggers a full- blown trial, even if that request is denied.
e.
Restoring custody.( ORS 131A. 18O).
i.
If custody of seized property is ordered restored pending the outcome of the forfeiture action, then the order shall
1.
Prohibit use or allowing use of property for unlawful conduct.
2.
Require petition to service or maintain property in a" reasonably appropriate" manner to preserve its value.
3.
Require petition to inform court of property' s exact location at time of trial and to deliver property immediately upon issuance of judgment of forfeiture.
s
Civil Forfeiture Guidelines
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ii.
Court may include any other provision it deems appropriate.
1. Seizing agency not liable for diminution of value as a result of disabling a hidden compartment in a motor vehicle.
in. Order restoring property is enforceable by a contempt action that is: 1. "
Brought on the relation of forfeiture counsel."
a.
Note: What does that mean? Does failure of the seizing agency
to return the property to the custody of the petition result in forfeiture counsel being held in contempt?
2. By an order directing petition to deliver property to custody of forfeiting agency.
3. By an order awarding the forfeiting agency its reasonably incurred attorney fees, costs and investigative expenses.
a.
Note: This is the only place where " investigative expenses" are
specifically mentioned. Presumably this contemplates the cost of re- locating the property to be for-felted afterjudgment?
4. By an order providing other remedies as the court deems appropriate. Ex- pane process. ( ORS 131A. 200).
Ix.
a.
Requirements.
i.
Personal property.
ii. No third- party interest known iii.
b.
No claim filed.
File Petition for Forfeiture
i
Must state that the above requirements are met.
ii
Must include affidavit of service on all persons claiming an interest 1. 2.
c.
Or, setting forth FACTS showing efforts to accomplish service. Attach proof of publication if relevant
Submit Petition, Affidavit and Judgment at ex- parte.
Forfeiture lawsuit( other than ex- parte). ( ORS 131A. 225).
X.
a.
Mandatory when
i.
Real property
ii.
Manufactured home
iii.
Floating home
iv.
Claim filed, or
v. Third party has an interest( i e. lien). b.
Timing.
i.
Suit must be filed within 15 days of receipt of a claim.( ORS 131A. 225( 2)).
ii.
Otherwise, within 30 days of seizure.
1.
Note: Statute is unclear whether" seizure" means initial seizure, or seizure for forfeiture. Because notice is required to be submitted not later than 15 days after notice of seizure for forfeiture, then it would seem that' s the " seizure" contemplated.
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iennment
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c.
Venue
i.
Real property—county in which property is located
ii. All other—county in which property was seized orcounty in which any part of prohibited conduct took place.
d.
Filing. i.
Complaint for forfeiture. (ORS 131A. 225( 4)).
1.
Must attach inventory.
2.
Must allege that there is probable cause for seizure a.
Alternatively, can allege that there was a court order under ORS 131A 060 for seizure
3.
Do NOT need to allege that any claimant has been convicted of a crime a
4.
Complaint may be amended at any time to allege conviction.
Not subject to any motion to strike, MSJ or any other motion based solely on lack of conviction. a
Complaint IS subject to such motions when they allege acquittal or dismissal of the charges on which the forfeiture is based.
e.
Service. ( ORS 131A. 230). L ii.
Service and summons pursuant to ORCP. Must also publish notice of action in addition to service.
1.
iii.
Exception if notice was previously published.
If forfeiting a vehicle, service per ORCP 71)( 4) is permitted IF personal service
cannot otherwise be" reasonably accomplished."
iv.
1.
DMV service grants jurisdiction over registered owner or operator.
2.
Would still need to serve a lien holder separately
If a manufactured or floating home, forfeiting agency most record notice " In all public offices maintaining records that impart constructive notice of matters relating to manufactured dwellings or floating homes" 1.
f.
Note: Need to identify those agencies and prepare a list
Response.
i.
Person claiming an interest must file a response. ( OR5 131A.235).
1.
If respondent has not previously filed a claim, such claim must be attached to the response.
ii.
Response or affidavit must be filed within 30 days of service of summons and complaint.
1.
Note: Publication of notice of action is not contemplated when
calculating deadline for response. ( ORS 131A. 240( 3)). g
Response by certain third parties( including successors in interest).( ORS 131A. 240). i.
Note: This is basically an out-0f-the- blocks MSJ, prior to filing a response.
ii. Financial institution may respond by affidavit establishing its interest.
iii. Contract buyer/ seller may respond by affidavit stating that: 1
Did not acquire property with intent to defeat forfeiture.
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2.
Did not know, and did not have reason to know, that property constituted proceeds or an instrumentality of prohibited conduct
a.
Acquiescence requires claimant to have known of the prohibited conduct, AND
3.
Did not acquiesce in the criminal conduct.
a.
Failed to take" reasonable action under the circumstances" to either terminate the conduct or prevent the use of the property to facilitate the conduct.
iv. Mandatory objections.( ORS 131A. 240( 5)).
1
Forfeiting agency must file objections to any assertions in the above affidavits within 20 days of filing. (ORS 131A. 240(4)).
a.
Claimant may file supplemental affidavit in response to objections. (ORS 131A. 240(4)).
2
i.
Must be limited to issues raised In objection.
ii.
Must be filed within five days after filing of objections.
Failure to file objections conclusively establishes facts in claimant' s affidavit for all purposes.
v. Hearing on objections. (ORS 131A.245). 1.
Court shall make determination from affidavits whether there is a genuine issue of material fact with respect to the assertions of the
financial institution, buyer/ seller or successor in interest. a.
If none, then:
L
Third party wins.
Ii.
Transferor, conveyor or successor in interest shall be deemed a" financial institution" for purposes of cha pter.
iii. b
Forfeiting agency must pay costs, disbursements and attorney fees.
If questions of fact, then:
i
Third party must file a full responsive pleading within 15 days of order.
ii. Court may order third party to pay attorney fees incurred in contesting third party affidavit IF affidavit is deemed " frivolous." ( Whatever that means).
h.
Mandatory foreclosure.( ORS 131A,250).
i.
Upon filing of a responsive pleading or affidavit, the court shall foreclose 1.
All security interests,
2.
Liens
3.
Vendor' s interests
a.
Including contracts for transfer or conveyance,
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4.
If court determines legal or equitable basis for foreclosure
a.
Presumably this requires a proper party to request foreclosure of its interest.
if. iii.
Claimant may obtain a deficiency judgment if law otherwise allows. Note: Have no idea what this means. As written, It would appear that the act of
responding ( in any fashion) to the forfeiture suit triggers an automatic foreclosure of all interests. Alternatively, it may simply provide a mechanism
whereby lien- holders or other interested parties( claimants) can ensure their place in the chow line. I.
Our burden in forfeiture action. ( ORS 131A. 255). i.
li.
NOTE: This elements should be pleaded in the complaint.
Must prove the following: (ORS 131A. 255( 1)). 1. "
A person has been convicted of a crime"
2. "
That constitutes prohibited conduct"
3.
Property to be forfeited is: a.
Proceeds of the crime for which the person has been convicted, or of one or more other, similar crimes
b
An instrumentality of the crime for which the person has been convicted, or of one or more other, simdor crimes
Iii.
Alternatively, if claimant not convicted, then (ORS 131A 255( 2)). 1.
Another person has been convicted of a crime that constitutes prohibited conduct.
2.
The above requirements are met.
3.
Claimant either
a.
Took property with the intent to defeat forfeiture,
b.
Knew or should have known that property was proceeds of
c.
Acquiesced in the prohibited conduct.
prohibited conduct, or
iv.
Standard of proof.( ORS 131A 255( 3)).
1.
Personal property a.
2.
Real property a,
v.
Preponderance of the evidence
Clear and convincing.
Burden shift. (ORS 131A. 255( 5)).
1.
If cash, weapons or negotiable instruments found in close proximity to controlled substances or instrumentalities of prohibited conduct,
a.
Burden shifts to claimant to prove by a preponderance of the evidence that the cash, weapons or negotiable instruments are
neither proceeds nor instrumentalities of prohibited conduct. vi.
Affirmative defenses.( ORS 131A, 260).
1
Property seized in violation of ORS 131A.025( consensual search of motor vehicle).
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2.
Controlled substance was for personal use if forfeiture action is against real property used as an instrumentality of prohibited conduct relating to controlled substances.
a.
Note: Probably negates areal property forfeiture for a marijuana grow If the amount grown is limited to personal use
3.
Affirmative defenses must be proven by a preponderance of the evidence.
a.
4.
If so proven, claimant wins.
Above defenses appear to be the exclusive affirmative defenses that are available to a claimant.
I.
Stay of action. (ORS 131A. 265). I.
Bymotion, and
li
For good cause, including but not limited to: 1.
By claimant.
a
A reasonable fear that claimant could be prosecuted for
conduct arising out of same factual situation. 2.
By forfeiture counsel. a.
iii.
Buy time for conviction.
Upon filing of criminal charges. ( ORS 131A.265( 2)) 1. Stay remains in effect until final resolution of criminal proceeding. 2.
Motion for stay by defendant in the related criminal proceeding
constitutes a waiver of double jeopardy as to both the forfeiture action and any related criminal proceeding
iv.
Stayed action can be consolidated with any related criminal proceeding.
1.
Note: Because forfeiture action must be filed in circuit court, it is unlikely this would ever occur.
v. Stay can be lifted upon motion showing good cause for stay no longer exists. Judgment ( ex- parte and contested).( CRS 131A.3O0).
XI.
a
Must recite basis for judgment.
b.
Copy of judgment must be sent to the Asset Forfeiture Oversight Advisory Committee
c.
If court rinds against ALL claimants who have appeared in the action: ( ORS 131A.3O5( i)). I.
Judgment should note transfer of title to forfeiting agency.
1.
Free of any interest or encumbrance in favor of any person who has been given notice of the proceedings.
d.
If any party' s interest is NOT foreclosed:( ORS 131A.3056( 2)). i.
Judgment should note transfer of title to forfeiting agency, subject to nonforeclosed interests.
1.
Note: See below regarding distribution of proceeds to holders of nonforeclosed interests.
ii. Seizing agency shall pay costs of all storage, towing, and ensure discharge of any chattel liens created as a result of the seizure.
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1.
Note: This appears intended to ensure that the non-foreclosed claimants do not lose their interests to superior chattel liens.
XII.
Post judgment.
a. XIII.
Complete and mail AFOAC Seizure Information Form ( Form- 1).( ORS 131A. 450( 2)).
Disposition of property. a.
Options.( OR5 131A 350).
i. Sell, lease, lend or transfer to any government agency. ii. Sell to public " or other commercially reasonable sale" and pay expenses of keeping and selling the property. Iii.
Retain property.
iv.
Destroy firearms or controlled substances. 1.
b.
Requires written authorization of DA.
Distribution upon sale.
i,
ii.
Use AFOAC Asset Distribution( Form- 2).
Orug- related forfeitures. (ORS 131A. 360).
1.
Costs, disbursements and attorney fees. a.
Includes special expenses such as provision of currency for undercover use.
2.
b
Includes costs of disabling a hidden compartment in a vehicle.
c.
Includes expense of maintaining the seized property.
Illegal Drug Cleanup Fund. a.
b.
5- percent.
Department of Environmental Quality, Business Office, 811 SE Sixth Ave., Portland, OR 97204.
3.
Asset Forfeiture Oversight Account. a.
2. 5- percent
b.
AFOAC, c/ o Oregon Criminal Justice Commission, 885 Summer St. NE, Salem, OR 97301.
4.
Oregon Criminal Justice Commission a.
20- percent
b.
Oregon Criminal Justice Commission, 885 Summer St NE, Salem, OR 97301.
5
State Commission on Children and Families ( for Relief Nurseries). a
10- percent
b.
State Commission on Children & Families, 530 Center Street NE, Suite 405, Salem, OR 97301.
6.
County. a.
7.
Pursuant to IGA
Remainder( mandatory and exclusive list). ( ORS 131A.360( 6)).
a.
Purchase of equipment necessary for the enforcement of drug laws.
b.
Currency for undercover law enforcement operations.
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c. Drug awareness& education programs in middle and high schools.
d.
Expenses for operating joint narcotics operations with other forfeiting agencies.
e.
S.
DA expenses for drug prosecutions.
Grow and lab equipment seized maybe donated to any public school,
community college or institution of higher education. ( ORS 131A. 360( 7)).
9.
a.
This distribution is in lieu of those Identified above.
b.
Note: Last one likely includes private universities
Timing. ( ORS 131A360(g)). a. Must sell enough property to make distributions. b Must make distributions within 20 days of the end of each quarter.
1
Civil Forfeiture Guidelines
Cat Leahy, Van Vactor, Cox
C821
Cox
first Amentlment
and
Melendy
Leahy,
and
Melendy
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ATTACHMENT
SPRINGFIELD
OREGON
Attachment 4
Authorization to Legally Bind Bidder
The person executing this Bid and the instruments referred to herein on behalf of the Bidder has the legal power, right, and actual
authority to submit this Bid, and to bind the Bidder to the terms and conditions of this Bid.
Signature
of
Matthew J.
6efson
authorized
to bind Bidder)
Dated
Cox
Print Name of Person signing as authorized to bind Bidder Partner
Title of Person signing as authorized to bind Bidder inahy,
Van Vactor,
Cox &
Melendy,
Firm Name
Building
541)
N
Springfield,
mjc @emeraldlaw. com
Oregon 97477
Zip
email address
RFQ# 740 Municipal Court Prosecutor Services Leahy, Van Vactor, Cox and Melendy C821 First Amendment Leahy, Van Vector, C821
Cox
and
Melendy
746- 4109
Fax
Address
State,
746- 9621
Phone
188 West B Street,
City,
541)
TI. P
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ATTACfJJTJq"
t_ a_
SPRINGFIELD t e^ z
A OREGON
MWESB/
DBEVoluntary Self- Declaration for City
Procurement k
RFQ# 740
or Project No. P N/ A
The City of Springfield is seeking information on the various business entities that submit bids and proposals
for working with the City. We request that you provide the following Information to assist us with evaluating our efforts at reaching the underrepresented sectors of the business and construction communities. The City does not intend to use this data as criteria for selecting the successful bidders or proposers for city-funded procurements For procurements with state or federal DBE requirements, the City will use the forms and criteria established by the state or federal agency for selecting the successful bidders or proposers Please include this form with your bidlproposai submittal to the City. I-ealaY
Busmess Name
Van
Vactor,
Cox &
Melendy, UP
Contact Person
Business Address IBB West B Street, Building N Springfield, Oregon 97477 541) Business Phone
746- 9621
(
Please check each box indicating the business certification type that your firm has with the State of Oregon or the federal government, if any
Oregon Minority- owned Business Oregon Woman- owned Business
Oregon Emerging Small Business
Federal Disadvantaged Business Enterprise( DBE)
QNone of the above
RFG# 740 Municipal Court Prosecutor Services Page 25 of 25 0827 Lean
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