Lane v. Marion Cnty. Dist. Attorney's Office
| Decision Date | 31 March 2021 |
| Docket Number | A171380 |
| Citation | 310 Or.App. 296,486 P.3d 38 |
| Parties | Cody LANE, Petitioner-Appellant, v. MARION COUNTY DISTRICT ATTORNEY'S OFFICE; and Paige Clarkson, in her official capacity as District Attorney for Marion County, Respondents-Respondents. |
| Court | Oregon Court of Appeals |
Daniel Thenell, Emerson Lenon, and Thenell Law Group P.C. filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Philip Thoennes, Assistant Attorney General, filed the brief for respondents.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.
Petitioner in this writ of review proceeding is a public safety officer employed by the Marion County Sheriff's Office (MCSO). The Marion County District Attorney's Office (MCDAO) notified petitioner that it would not call petitioner as a witness in any future proceedings it instituted because it believed that "circumstances surrounding" petitioner and certain conduct petitioner had engaged in triggered the MCDAO's discovery obligations under Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and because petitioner could not "withstand the strict scrutiny required of law enforcement witnesses in criminal prosecutions." Petitioner was put on what petitioner and the MCDAO refer to as it's " Brady list."1
Petitioner sought his removal from the MCDAO's Brady list, and after the MCDAO and the Marion County District Attorney did not remove petitioner from the MCDAO's Brady list, he filed a petition for a writ of review naming the MCDAO and the Marion County District Attorney as respondents. The petition contended, in relevant part, that the "failure to remove Petitioner from the Brady list was in error" and seeking to have "the [Marion County] District Attorney immediately remove Petitioner from the Brady list." The trial court dismissed the petition for a writ of review and quashed the writ after determining, in relevant part, that respondents’ decision not to remove petitioner from the MCDAO's Brady list was not subject to challenge via a writ of review. On appeal, petitioner challenges that ruling.
We conclude that respondents’ decision not to remove petitioner from the MCDAO's Brady list is not subject to challenge via a writ of review. Consequently, we affirm.
For purposes of our analysis, the relevant facts are undisputed. The night of November 24, 2017, petitioner was on patrol working an overnight shift. Sometime in the early morning hours of November 25, 2017, petitioner's girlfriend, who was at a bar celebrating her birthday, contacted him, and she asked him to follow her home. He did so.
Another bar patron saw petitioner arrive and follow petitioner's girlfriend in his patrol vehicle. That patron thought something did not appear right about the situation and contacted the MCSO regarding what he had observed.
The MCSO conducted an internal investigation regarding petitioner's conduct, which ultimately resulted in the MCSO terminating petitioner's employment on April 9, 2018. Petitioner's termination letter reflects that the MCSO had determined that petitioner "engaged in behavior on the early morning hours of November 25, 2017 that brings into question [petitioner's] integrity and honesty." It also states that the internal investigation found that petitioner " ‘purposefully’ meant to deceive or hide the fact that [petitioner was] ‘escorting’ [his] girlfriend home from a bar."2 (Emphasis in original.)
The MCDAO received information concerning petitioner and his termination, and petitioner sent the MCDAO correspondence in which he disputed any allegations of dishonesty. Additionally, petitioner filed a grievance against the MCSO through his union. That grievance resulted in an arbitration proceeding involving the MSCO and petitioner's union. The MCDAO was not a party to that arbitration proceeding.
On August 29, 2018, petitioner's counsel received a letter from the MCDAO, which stated:
On January 7, 2019, the arbitrator in the arbitration between petitioner's union and the MCSO issued a "decision and award" regarding petitioner's grievance. The arbitrator found flaws in the investigation conducted by the MCSO, determined that the MCSO did not have just cause to terminate petitioner, and ordered that the MCSO reinstate petitioner to the position he held prior to his termination.
The decision and award also included the following order and determinations:
On January 10, 2019, the Marion County Sherriff and counsel for Marion County met with the Marion County District Attorney and informed her of the decision and award. The Marion County District Attorney stated that she had conducted a "full review" of petitioner's conduct and she "declined" to remove petitioner from the Brady list.3
On February 26, 2019, petitioner filed a petition seeking a writ of review. The trial court ordered the clerk of the court to issue the writ. The petition named the MCDAO and the District Attorney of Marion County, in her official capacity, as respondents. In the petition, petitioner asserted that respondents’ "failure to remove [p]etitioner from the Brady list was in error." Petitioner sought, among other relief, to have "the District Attorney immediately remove Petitioner from the Brady list."
Petitioner attached to the petition as an exhibit a document titled "Best Practices for Navigating Brady v. Maryland in Oregon," which, according to petitioner, was the product of a "Statewide Protocol Workgroup" convened by the Department of Public Safety Standards and Training to "develop consistent statewide practices for Oregon's public safety communities." The petition alleged that respondents "failed to follow" and "implement" the "Best Practices."
Respondents then filed a motion to dismiss the petition and quash the writ. Respondents argued that, under ORS 34.010, in a writ of review proceeding, the "court can only review decisions of officers exercising judicial or quasi-judicial functions" and that "district attorneys prosecuting cases are not making ‘judicial or quasi-judicial decisions.’ " Petitioner responded that he was "not seeking a review of a case by case evaluation or contesting the duty to disclose under Brady ," but rather "seeking limited review of the [r]espondents’ decision to categorically bar him from testifying." Petitioner explained that, in his view, the "decision to bar [him] from testifying is a judicial or quasi-judicial decision" subject to review via a writ of review.
The trial court granted defendant's motion to dismiss and quash the writ. As relevant here, the trial court noted that the "sum total" of what petitioner sought to have reviewed "is a decision by the district attorney's office not to reverse their August 29th decision" to place petitioner on the Brady list. The trial court determined that "any such re-consideration by the District Attorney was purely discretionary on the District Attorney's part and not a justiciable question." About the "Best Practices" petitioner pointed to in his petition, the trial court noted that there had been nothing presented to the trial court "regarding any rule or policy decisions from the Marion County District Attorney's Office indicating that those [Best Practices] were adopted as some sort of *** review requirement" by the MCDAO.
The court concluded that it had "no jurisdiction to review the decision at issue."4
Whether respondents’ decision not to remove petitioner from the MCDAO's Brady list is "subject to review by writ of review under ORS 34.010 to 34.102 * * * presents a question of law," which we review for legal error. Hicks v. Central Point School Dist. , 270 Or. App. 532, 539-40, 348 P.3d 307, rev. den. , 357 Or. 743, 361 P.3d 608 (2015).
"The writ of review process is a codification of the common-law writ of certiorari ," Dodds v. City of West Linn , 222 Or. App. 129, 132, 193 P.3d 24 (2008) (citing ORS 34.010 ), which was first codified by the Oregon Legislature in 1862, see General Laws of Oregon, Civ. Code, ch. VII, title I, §§ 572-81, pp. 294-96 (Deady 1845-1864). It is a ...
To continue reading
Request your trial