State ex rel. Anderson v. Haas
Decision Date | 08 November 1979 |
Docket Number | No. A,A |
Citation | 43 Or.App. 169,602 P.2d 346 |
Parties | STATE of Oregon ex rel. Ronald ANDERSON, Respondent, v. Harl HAAS, District Attorney for Multnomah County, Appellant. 7908-03914; CA 15914. |
Court | Oregon Court of Appeals |
David L. Hattrick, Deputy Dist. Atty., Portland, argued the cause and filed the brief for appellant.
Janet L. Hoffman, Metropolitan Public Defender, Portland, argued the cause and filed the brief for respondent.
Before SCHWAB, C. J., and LEE and RICHARDSON, JJ.
Plaintiff, who has been indicted and is awaiting trial for a Class A felony, brought this mandamus proceeding to compel defendant, the Multnomah County District Attorney, to consider plaintiff for diversion pursuant to ORS 135.881 Et seq., as an alternative to prosecution at the present time. 1 The alternative writ of mandamus alleges, in essence, that defendant declined to consider plaintiff for diversion because it is defendant's policy or practice not to divert persons who are charged with Class A felonies. Defendant demurred to the alternative writ on the grounds it did not state sufficient facts to constitute a cause of action. The trial court overruled the demurrer, defendant refused to plead further, and the court ordered the issuance of a peremptory writ of mandamus commanding defendant to consider plaintiff for diversion. We reverse.
The parties' principal disagreement is over the meaning of ORS 135.886, which provides:
The parties agree that the statute gives the district attorney discretion over whether to offer diversion to a criminal defendant. 2 Plaintiff argues that, although that final diversion decision is discretionary, the district attorney has a mandatory duty to consider All of the factors enumerated in ORS 135.886(2) with respect to Every criminal defendant before exercising his discretion to offer or not to offer diversion. Defendant district attorney argues that the factors set forth in ORS 135.886(2) have no bearing on his decision Unless he decides to consider diversion. In sum, plaintiff interprets ORS 135.886 as establishing a right for all persons charged with crimes to be considered for diversion in light of the specific factors listed in subsection (2), while defendant contends that a district attorney has discretion over whether to consider a criminal defendant for diversion, and that his decision to consider diversion is a condition precedent to any requirement that he consider the factors enumerated in ORS 135.886(2).
In our view, plaintiff's interpretation of the statute is not consistent with the language or the practical operation of ORS 135.886(2). As noted, plaintiff agrees that the statute confers discretion on a district attorney to decide whether or not a particular criminal defendant will be offered diversion. If a district attorney's decision is discretionary, he necessarily must have authority to regard any Particular factor or combination of factors including but not necessarily limited to those specified in ORS 135.886(2) as being dispositive for or Against diversion. Nothing in ORS 135.886(2) suggests that the district attorney must weigh the factors listed in that subsection in a particular way, or that he cannot give decisive weight to any one or...
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