in the su preme court of the state of oregon...
TRANSCRIPT
IN THE SU PREME COURT OF THE STATE OF OREGON
_______________
STATE OF OREGON,
Plaintiff-Adverse Party,
v.
ZANE STERLING SKEEN,
Defendant-Relator.
Klamath County Circuit
Court No. 1300498CR
SC S064639
MANDAMUS PROCEEDING
_______________
ADVERSE PARTY'S MEMORANDUM IN OPPOSITION TO RELATOR'S
PETITION FOR WRIT OF MANDAMUS
_______________
KAREN A. STEELE # 873529
Attorney at Law
P.O. Box 4307
Salem, OR 97302
Telephone: (503) 508-4668
Email: [email protected]
Attorney for Defendant-Relator
HON. CAMERON F. WOGAN
# 843882
Klamath County Courthouse
316 Main St
Klamath Falls OR 97601
Telephone: (541) 883-5624 x244
Email:
Circuit Court Judge
ELLEN F. ROSENBLUM #753239
Attorney General
BENJAMIN GUTMAN #160599
Solicitor General
PAUL L. SMITH #001870
Deputy Solicitor General
1162 Court St. NE
Salem, Oregon 97301-4096
Telephone: (503) 378-4402
Email: [email protected]
Attorneys for Plaintiff-Adverse Party
2/17
February 21, 2017 01:56 PM
i
TABLE OF CONTENTS
A. Background............................................................................................. 1
B. This court should deny defendant’s petition for a writ of
mandamus because the trial court correctly denied defendant’s
motion, defendant has other remedies, and this matter does not
warrant this court’s exercise of its discretion. ......................................... 5
1. There is no constitutional or statutory requirement to
disqualify a district attorney’s office from prosecutions of
cases where a deputy district attorney formerly represented
the defendant in the same matter. .................................................. 7
a. The Oregon Rules of Professional Conduct do not
impute Martin’s former-client conflict to the district
attorney’s office; therefore, no screening was required
by those rules. ..................................................................... 7
b. Neither the state or federal constitutions nor Oregon
statutes require disqualification of the district
attorney’s office. ............................................................... 11
2. Defendant can raise this issue on direct appeal............................ 17
3. This court should not exercise its discretion to issue a writ in
this case. ..................................................................................... 18
C. This court should deny defendant’s motion for a stay. ...........................19
D. Conclusion.............................................................................................20
Attachment
Affidavit of Robert Patridge.............................................................. Att-1
ii
TABLE OF AUTHORITIES
Cases Cited
Crocker and Crocker,
332 Or 42, 22 P3d 759 (2001)................................................................15
Cuyler v. Sullivan,
446 US 335, 100 S Ct 1708, 64 L Ed 2d 333 (1980) ........................11, 12
In re Fadely,
342 Or 403, 153 P3d 682 (2007)............................................................10
Mickens v. Taylor,
535 US 162, 122 S Ct 1237, 152 L Ed 2d 291 (2002) ......................11, 12
Reisland v. Bailey,
146 Or 574, 31 P2d 183 (1934)............................................................... 5
State ex rel Maizels v. Juba,
254 Or 323, 460 P2d 850 (1969)............................................................. 5
State ex rel N. Pacific Lbr v. Unis,
282 Or 457, 579 P2d 1291 (1978) ..........................................................18
State v. Clark,
291 Or 231, 630 P2d 810 (1981)............................................................13
State v. Gauthier,
113 Or 297, 231 P 141 (1924)................................................................15
State v. Savastano,
354 Or 64, 309 P3d 1083 (2013)............................................................13
State v. Smith,
339 Or 515, 123 P3d 261 (2005)......................................................11, 12
Constitutional and Statutory Provisions
Or Const Art I, § 20 ...................................................................................12, 13
Or Const Art VII (original), § 17 .....................................................................15
ORS 8.710 ...........................................................................................11, 15, 16
ORS 9.490 .................................................................................................11, 16
ORS 34.110 .................................................................................................5, 17
US Const Amend VI ........................................................................................12
iii
Other Authorities
ORAP 7.05(3) ................................................................................................... 1
ORAP 11.10(1) ................................................................................................. 1
ORPC 1.9.......................................................................................................7, 8
ORPC 1.10........................................................................................................ 9
ORPC 1.10(e) ..............................................................................................9, 10
ORPC 1.11...................................................................................................9, 10
OSB Formal Ethics Opinion No 2005-120 (revised 2015) ...............................10
ADVERSE PARTY'S MEMORANDUM IN OPPOSITION TO
RELATOR'S PETITION FOR WRIT OF MANDAMUS
_______________
Pursuant to ORAP 7.05(3) and 11.10(1), and to this court’s January 23,
2017, letter, adverse party the State of Oregon files this memorandum in
opposition to the petition for peremptory or alternative writ of mandamus filed
by defendant-relator, Zane Skeen. The state also opposes defendant’s motion to
stay the circuit court proceedings as unnecessary at this time.
As explained below, defendant seeks to disqualify the entire Klamath
County District Attorney’s Office from prosecuting him for aggravated murder
because the office employed one of his former defense attorneys and at first did
not formally screen that attorney from the case. But that attorney did not work
on the case, did not discuss it with anyone else in the office, and no longer
works in the office. This court should deny the mandamus petition because
there has been no violation of the rules of professional ethics, the former
defense attorney’s conflict is not imputed to the rest of the office, and in any
event none of these issues are cognizable in mandamus.
A. Background
The state, through the Klamath County District Attorney’s Office,
charged defendant with murder in March 2013. (ER-1). In January 2014,
Alison Martin—an attorney in private practice and a subcontractor with
Klamath Defender Services—was appointed as defendant’s co-counsel. (ER-
2
200-01). Martin was serving in a “second chair” role. (ER-201). On July 23,
2014, defendant was re-indicted on elevated charges, including aggravated
murder. (ER-3). Because the charges were elevated, Martin withdrew as
defendant’s counsel in July 2014. (ER-202, 252). Approximately 18 months
later, Martin was hired as a Deputy District Attorney in the Klamath County
District Attorney’s Office. (ER-178, 206, 225, 249).
After her interview with the district attorney’s office, Martin began the
process of having all of her current criminal cases reassigned, and she requested
Klamath Defender Services to generate a present and former client list. (ER-
206). That list identified 1,087 cases on which Martin had been the defense
attorney, but it failed to include the names of two former clients where Martin
was not the lead attorney. (ER-206, 217, 268, 378, 496). Defendant was one of
those former clients. (ER-206).
After accepting the employment offer from the district attorney’s office,
Martin provided the former-client list to the elected District Attorney, Rob
Patridge, and to the office manager, Melina Johnson. (ER-207, 496). Martin
did so to make sure that she would not be prosecuting any of her former clients.
(ER-207). After receiving that list, the district attorney’s office formally
screened Martin from prosecuting any of the individuals on the list. (ER-219,
241, 355). The screening consisted of locking her out of access to the
electronic files on those cases. (ER-219, 235). The electronic file also was
3
marked with the words “Martin conflict” so that others in the office knew that
Martin was screened on that case. (ER-489, 497-98). Also, District Attorney
Patridge made it “absolutely clear” to everyone in the office that Martin was not
to discuss, participate in, or be involved in any way in any prosecutions against
her former clients. (ER-378). In addition, Martin kept a copy of the list at her
desk so that she could do a manual double-check before beginning work on a
case. (ER-219, 355). Martin also testified that anytime one of her former
client’s names came up around the office, she would “immediately leave the
conversation.” (ER-256-57, 488).
Despite the fact that defendant was inadvertently left off of Martin’s
former-client list, Martin had a good memory of defendant because of the
“incredibly serious charges” he faced and because he “was very pleasant to be
around.” (ER-231). Martin “would always remember his case and that [she]
represented him.” (ER-231). Although defendant’s name was not initially on
Martin’s former-client, she never discussed the facts of his case with anyone in
the district attorney’s office nor did she ever reveal any information that
defendant gave her during the course of her representation of him. (ER-249,
485-86). Martin did not participate in the prosecution of defendant in “any
way, shape, or form.” (ER-490).
Based on Martin’s current employment with the Klamath County District
Attorney’s office, defendant filed a motion to disqualify that office from
4
prosecuting him in the present case. (ER-5). He argued that the office’s
screening of Martin was inadequate and that, consequently, the district
attorney’s office’s continued participation in the prosecution of the case would
violate defendant’s state and federal constitutional rights counsel and to due
process, various state statutes, and the Oregon Rules of Professional Conduct.
(ER-14-46).
Following a two-day evidentiary hearing, the trial court denied
defendant’s motion. (ER-590). In its letter opinion, the court found that
“Alison Martin was, and is extremely conscientious about the potential conflicts
* * * and [she] diligently complied with applicable rules.” (ER-591). It found
that her testimony at the hearing was “absolutely credible in all respects,” and
that she “has taken great care to have absolutely no part whatsoever in any
cases if she previously represented the defendant.” (ER-591). Specifically with
respect to defendant, the court found that “Martin absolutely would remember
that she represented” defendant on this case because of the serious nature of the
case and because of defendant’s pleasant demeanor. (ER-591). The court also
found that “Martin would always remember [defendant] and that she had a
conflict with his case.” (ER-591).
Based on those findings, the court concluded that Martin and the district
attorney’s office “have complied with Oregon law in all respects with regard to
Martin’s previous representation of defendant, her current employment with the
5
Klamath County District Attorney’s Office and that office’s prosecution of
defendant.” (ER-591). Following two motions by defendant asking the court to
reconsider its conclusions, the court entered an order denying the motion to
disqualify the district attorney’s office. (ER-613, 697, 703). Defendant then
filed the present petition for an alternative writ of mandamus.
B. This court should deny defendant’s petition for a writ of mandamus
because the trial court correctly denied defendant’s motion,
defendant has other remedies, and this matter does not warrant this
court’s exercise of its discretion.
ORS 34.110 authorizes a writ of mandamus “to any inferior court,
corporation, board, officer or person to compel the performance of an act which
the law specially enjoins, as a duty resulting from an office, trust or station[.]”
However, the “writ shall not be issued in any case where there is a plain, speedy
and adequate remedy in the ordinary course of the law.” Id. A writ of
mandamus is not intended as a substitute for direct appeal, nor is it intended to
supersede a legal remedy available through the ordinary course of law. See,
e.g., State ex rel Maizels v. Juba, 254 Or 323, 331, 460 P2d 850 (1969);
Reisland v. Bailey, 146 Or 574, 581, 31 P2d 183 (1934) (object of writ of
mandamus is not to supersede, but to supply want of, legal remedy and defects
of justice).
Before this court should issue an alternative writ of mandamus, defendant
must establish that the trial court was required, as a matter of law, to grant his
6
motion to disqualify the Klamath County District Attorney’s Office from
prosecuting the case. Additionally, defendant must establish that he has no
other plain, speedy, and adequate remedy to address his concerns. Even if
defendant clears those two hurdles, this court must still affirmatively elect to
exercise its discretion to issue a writ.
This court should not issue a writ. First, the trial court was not required,
as a matter of law, to disqualify the district attorney’s office; its decision
denying that motion was well within its discretion. Although Martin previously
represented defendant in the same case, she took no part in the prosecution of
that case and no rule or law required her to be screened from the case once she
joined the district attorney’s office. Second, defendant has a plain, speedy, and
adequate remedy in the ordinary course of the law to challenge the denial of his
motion—specifically, he can assign error to that ruling on direct appeal.
Finally, this court should not exercise its discretion to issue a writ. The trial
court made findings, supported by evidence in the record, that Martin did not
discuss defendant’s case or share any client confidences with anyone in the
district attorney’s office; moreover, Martin no longer works at the Klamath
County District Attorney’s Office, therefore any inadvertent disclosures in the
future are highly unlikely.
7
1. There is no constitutional or statutory requirement to
disqualify a district attorney’s office from prosecutions of cases
where a deputy district attorney formerly represented the
defendant in the same matter.
In order for defendant to ultimately prevail, he must establish that the
trial court was required, as a matter of law, to grant his motion to disqualify the
district attorney’s office from this prosecution. In particular, he must establish
that some constitutional or statutory provision required the disqualification. It
is not enough simply to establish a possible violation of the Oregon Rules of
Professional Conduct—the remedy for which is professional discipline against
the offending attorney. Rather, defendant would need to establish that some
other source of law requires disqualification.
a. The Oregon Rules of Professional Conduct do not
impute Martin’s former-client conflict to the district
attorney’s office; therefore, no screening was required
by those rules.
Nothing in the Oregon Rules of Professional Conduct requires
government law offices to screen lawyers who have former-client conflicts,
because those conflicts are not imputed other others in the office. Rule 1.9
spells out the duties Oregon attorneys owe to former clients:
(a) A lawyer who has formerly represented a client in a
matter shall not thereafter represent another person in the same or a
substantially related matter in which that person’s interests are
materially adverse to the interests of the former client unless each
affected client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the
same or a substantially related matter in which a firm with which
8
the lawyer formerly was associated had previously represented a
client:
(1) whose interests are materially adverse to that person;
and
(2) about whom the lawyer had acquired information
protected by Rules 1.6 and 1.9(c) that is material to the matter,
unless each affected client gives informed consent, confirmed in
writing.
(c) A lawyer who has formerly represented a client in a
matter or whose present or former firm has formerly represented a
client in a matter shall not thereafter:
(1) use information relating to the representation to the
disadvantage of the former client except as these Rules would
permit or require with respect to a client, or when the information
has become generally known; or
(2) reveal information relating to the representation except
as these Rules would permit or require with respect to a client.
(d) For purposes of this rule, matters are ‘substantially
related’ if (1) the lawyer’s representation of the current client will
injury or damage the former client in connection with the same
transaction or legal dispute in which the lawyer previously
represented the former client; or (2) there is a substantial risk that
confidential factual information as would normally have been
obtained in the prior representation of the former client would
materially advance the current client’s position in the subsequent
matter.
ORPC 1.9. Pursuant to that rule, it is clear that Martin has a former-client
conflict and could not ethically have represented the state in its prosecution of
defendant in this case.
9
That conflict, however, is not imputed to the rest of the district attorney’s
office. “[D]isqualification of lawyers associated in a firm with former or current
government lawyers is governed by Rule 1.11,” and not ORPC 1.10, the
provision that governs imputed conflicts in the private sector. ORPC 1.10(e).
Rule 1.11 provides, in part:
(d) Except as law may otherwise expressly permit, a lawyer
currently serving as a public officer or employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
* * * * *
(v) participate in a matter in which the lawyer participated
personally and substantially while in private practice or
nongovernmental employment, unless the lawyer’s former client
and the appropriate government agency give informed consent,
confirmed in writing[.]
Importantly, that rule contains no provisions that impute conflicts to other
lawyers in the government law office. Whereas rule 1.10 contains specific
imputation and disqualification provisions for lawyers in private law firms, rule
1.11 contains no such provisions for lawyers in government law firms. Thus,
Martin’s former-client conflict is not imputed to the other lawyers in the district
attorney’s office.
And because the other lawyers in the office do not share Martin’s
conflict, nothing required the office to screen her. The Oregon State Bar’s
10
Formal Ethics Opinion No 2005-120 (revised 2015) explains that “the Oregon
RPCs do not impute [a government lawyer’s] conflicts to other members of the
[government law] office, and so screening is not required.”1 The factual basis
for that Ethics Opinion mirrors the facts of this case, precisely. Consequently,
any shortcoming in the screening process that the district attorney’s office
employed was not a violation of the rules of professional conduct.2
Defendant’s argument in support of the mandamus petition is that either
the bar’s ethics opinion is an incorrect interpretation of the ORPCs or,
alternatively, that a no-imputation rule for government law offices would
violate state statute or the state or federal constitution in this case. As explained
above, ORPC 1.10(e) specifically provides that firm disqualification issues for
government law offices are governed by ORPC 1.11, and ORPC 1.11 does not
require disqualification in this circumstance. Therefore, the formal ethics
opinion correctly interprets the interplay between those rules.
1Formal Ethics Opinion 2005-120, while concluding that screening
is not required in this instance, does state that such screening “is prudent.”
2Although Oregon State Bar ethics opinions are not binding on this
court in its interpretation of the rules of professional conduct, Formal Ethics
Opinion No 2005-120 provides a well-reasoned explanation for why the rules of
professional conduct did not require screening in this case. See In re Fadely,
342 Or 403, 410 n 7, 153 P3d 682 (2007) (noting previous opinion’s reliance on
Ethics Opinion not as binding precedent but instead for its “persuasive value”).
11
b. Neither the state or federal constitutions nor Oregon
statutes require disqualification of the district attorney’s
office.
Defendant can prevail, then, only if he establishes that disqualification
was required by another source of law. In his memorandum in support of his
mandamus petition, defendant suggests that the failure to disqualify the district
attorney’s office implicates his state and federal constitutional rights to counsel,
(Mem 14-15), his federal due process rights, (Mem 14-15), and his state and
federal rights to equal protection of the laws, (Mem 39). Additionally, he
suggests that the failure to allow his motion implicates ORS 8.710 and ORS
9.490.
As support for his constitutional right-to-counsel argument, defendant
cites State v. Smith, 339 Or 515, 527 n 4, 123 P3d 261 (2005), Cuyler v.
Sullivan, 446 US 335, 100 S Ct 1708, 64 L Ed 2d 333 (1980), and Mickens v.
Taylor, 535 US 162, 122 S Ct 1237, 152 L Ed 2d 291 (2002). (Mem 15 n 5).
However, defendant fails to explain how he was deprived of his constitutional
right to counsel. His current counsel has not been hampered by Martin’s
employment with the district attorney’s office, and the trial court affirmatively
found that Martin has not shared any information acquired as a result of her
representation of defendant. Moreover, none of the cases defendant relies on
establish that disqualification of an entire district attorney’s office is
constitutionally required when that office employs a defendant’s former
12
attorney. Instead, each case addresses general standards for when a defendant’s
current attorney’s conduct or conflicts might undermine the constitutional right
to counsel. See Smith, 339 Or 527 n 4 (suggesting that there might be some
circumstances in which a trial court might be required to intervene when
counsel’s conduct is “so egregious” to raise “serious doubts about whether
counsel is adequate.”); Cuyler, 446 US at 346-50 (concluding that no Sixth
Amendment violation resulted from counsel’s representation of co-defendants
absent something more than a theoretical conflict of interest); Mickens, 535 US
at 175-76 (holding that a criminal defendant had to demonstrate that his
attorney’s conflict of interest adversely effected counsel’s performance before
that conflict rose to the level of a Sixth Amendment violation).
Nor do the different rules for imputing conflicts in public and private law
offices violate the Equal Protection Clause or the state equal privileges and
immunities clause, as defendant argues. “To bring an individual-based claim
under Article I, section 20, a defendant must initially show that the government
‘in fact denied defendant individually * * * [an] equal privilege * * * with other
citizens of the state similarly situated.’ * * * An agency or official’s decision
will comply with Article I, section 20, ‘as long as no discriminatory practice or
illegitimate motive is shown and the use of discretion has a defensible
explanation’ in the individual case. * * * An executive official’s decision will
be ‘defensible’ when there is a rational explanation for the differential treatment
13
that is reasonably related to the official’s task or to the person’s individual
situation.” State v. Savastano, 354 Or 64, 96, 309 P3d 1083 (2013) (quoting
State v. Clark, 291 Or 231, 630 P2d 810 (1981)). Defendant cannot
demonstrate that the ORPCs violate Article I, section 20, for at least three
reasons.
First, even assuming the rules of professional conduct constitute
government conduct, defendant has not identified a “true class” that is burdened
by the alleged disparate treatment. See Clark, 291 Or at 242-43 (holding that
defendants who do not receive a preliminary hearing are not a “true class”
separate and distinct from defendants who do receive a preliminary hearing,
because they “do not exist as categories or as classes with distinguishing
characteristics before and apart from a prosecutor’s decision how to charge one,
or some, or all defendants”). Absent the identification of a “true class” there
can be no Article I, section 20, violation.
Second, the rules do not treat similarly situated individuals differently.
The rules treat all former and current government lawyers the same for
purposes of imputed conflicts, and the rules treat all clients of former and
current government lawyers the same for conflict imputation purposes. Under
the rules, defendant—Martin’s former client—is not treated differently from
any of Martin’s other former clients. Martin’s former-client conflicts are not
14
imputed to the others in the district attorney’s office regardless of the identity of
the former clients.
Third, even if defendant could successfully claim disparate treatment
because government law offices do not have to screen for former-client
conflicts while private law offices do have to do such screenings, there is a
rational basis for such a rule. As defendant’s expert, Professor Strait, testified,
such rules promote career mobility and encourage members of the legal
profession to seek public employment—even if only during part of their
careers. (ER-292-295). Additionally, such a rule recognizes that due to the
sheer volume of cases handled by government law offices formal screenings are
often prohibitively burdensome for the government law office or for any private
law office that employs a former government attorney. Finally, disqualification
of a private law office does not pose the same public harm as disqualification of
a government law office—generally headed by an elected official, accountable
to the public. Disqualifying a government law office from a case has the effect
of making the elected leader of that office not responsible for that case and
unable to fulfil her or his duties to the electorate on that matter. To the extent
there is disparate treatment, then, it is rational.
For the same reasons, defendant has not demonstrated a violation of the
Equal Protection Clause of the United States Constitution. See Crocker and
15
Crocker, 332 Or 42, 55, 22 P3d 759 (2001) (employing same standard of
rationality review under the state and federal constitutions).
Similarly, no state statutes required the trial court to grant defendant’s
motion to disqualify the district attorney’s office. ORS 8.710 provides, in part:
If a district attorney fails to attend any court at which the district
attorney is required to be, * * * or because of any other conflict cannot
ethically serve as district attorney in a particular case, and such facts
appear to the satisfaction of the court by affidavit or otherwise, the court
shall appoint a regularly licensed and practicing attorney of this state who
is not counsel for an interested party to perform the duties of district
attorney during the district attorney’s absence or inability to serve, or the
trial or investigation of such accused.
ORS 8.710. Although it is true that ORS 8.710 authorizes the trial court to
appoint a substitute district attorney on a particular case, that authorization
arises only when the court is satisfied that the district attorney has such a
conflict that he or she cannot ethically serve on a particular case.3 That statute
would authorize the circuit court to grant defendant’s motion in this case only if
the court was satisfied that the entire Klamath County District Attorney’s Office
was so conflicted that it could not ethically serve as the prosecutor.
3This court has also held that a trial court has inherent authority to
appoint a special prosecutor where a conflict exists in the district attorney’s
office. See State v. Gauthier, 113 Or 297, 231 P 141 (1924) (holding that ORS
8.710 to appoint special prosecutor due to incapacitation or conflict of elected
district attorney does not violate Article VII (original), section 17, of the
Oregon Constitution; also holding that a circuit court has “inherent power” “to
appoint a special prosecutor in order that justice may be done”).
16
As explained above, no formal ethics rule would require disqualification.
Although it is clear that Martin could not participate in the prosecution of
defendant’s case, there is no need to disqualify the rest of the district attorney’s
office as a result of Martin’s conflict. The trial court specifically found that
Martin had not participated in the prosecution in any way, and implicitly found
that she had not discussed defendant or this prosecution with anyone in the
district attorney’s office. Therefore, the predicate factual finding required for
ORS 8.710 to be invoked was not made by the trial court.
ORS 9.490 also does not require (or even authorize) the trial court to
disqualify the district attorney’s office in this case. That statute provides:
(1) The board of governors, with the approval of the house
of delegates given at any regular or special meeting, shall
formulate rules of professional conduct, and when such rules are
adopted by the Supreme Court, shall have power to enforce the
same. Such rules shall be binding upon all members of the bar.
(2) A court of this state may not order that evidence be
suppressed or excluded in any criminal trial, grand jury proceeding
or other criminal proceeding, or order that any criminal
prosecution be dismissed, solely as a sanction or remedy for
violation of a rule of professional conduct adopted by the Supreme
Court.
It authorizes the Oregon State Bar and this court to formulate and adopt rules of
professional conduct, and it makes those rules binding on all members of the
bar. It provides no direction on what consequences flow from a violation of
those rules in a particular case. And, although ORS 9.490 is silent on whether a
17
court can disqualify an entire law firm from participating on a case, it does
direct that evidence in criminal cases cannot be suppressed nor prosecutions
dismissed as a sanction for violating any rules of professional conduct.
In short, none of the statutes or constitutional provisions relied upon by
defendant required the trial court to grant the motion to disqualify the district
attorney’s office. Moreover, the Oregon Rules of Professional Conduct do not
require the disqualification of an entire government law office based upon the
former-client conflict of one employee of that office. While it is true that
screening in such situations might be prudent, and it is true that the screening by
the district attorney’s office in this case failed to include defendant’s case,
defendant cannot demonstrate any prejudice from that failed screen. At most,
the disqualification decision in this case appears to be one best left to the sound
discretion of the trial court, and the writ of mandamus “shall not control judicial
discretion.” ORS 34.110. For that reason, mandamus is not warranted, and this
court should dismiss the petition.
2. Defendant can raise this issue on direct appeal.
Mandamus is not an available form of relief when the relator has a plain,
speedy, and adequate remedy in the ordinary course of the law to address his
concerns. ORS 34.110. Here, defendant can assign error on direct appeal to the
denial of his motion. This is not a situation where a party is seeking to prevent
the imminent disclosure of specific confidential or privileged information where
18
such disclosure will vitiate the privilege. See, e.g., State ex rel N. Pacific Lbr v.
Unis, 282 Or 457, 579 P2d 1291 (1978) (holding that mandamus is appropriate
to challenge discovery order that erroneously required disclosure of privileged
communications). If defendant is correct that the district attorney’s office
should be disqualified for the sake of appearances or as a prophylactic measure,
that is something that an appellate court can review on direct appeal.4
3. This court should not exercise its discretion to issue a writ in
this case.
Even if this court concludes that mandamus is an available remedy, it
should not exercise its discretion to issue an alternative writ in this case. First,
as noted above, the trial court made significant factual findings establishing that
Martin was extremely diligent in fulfilling her ethical obligations and that she
was always very careful not to participate in any way on prosecutions of former
clients—even if on a new case. This is not a situation where defendant has
suffered any actual prejudice as a result of his former attorney moving into the
district attorney’s office. Even if the question of whether the rules of
professional conduct should require screening in this situation is an important
one, this court should not delay the criminal trial in this case to answer that
question where there is no demonstrable prejudice to defendant.
4As explained above, the trial court did not err in denying the
motion. However, even if it did, that is an error that could be corrected on
appeal, making mandamus an improper vehicle for relief.
19
Second, since the hearing on defendant’s motion to disqualify in August
2016, Martin is no longer employed at the Klamath County District Attorney’s
Office. Her reason for leaving the district attorney’s office was so she could
join her husband out of state, where he recently accepted a new job. Martin left
on good terms and not for any disciplinary reason or for any reason related to
this case. (Att 1-2). Therefore, to the extent this court might be concerned
about addressing future contact between Martin and the rest of the district
attorney’s office as a reason to exercise its discretion to issue a writ in this case,
that concern should be significantly minimized due to Martin’s resignation.
C. This court should deny defendant’s motion for a stay.
As explained above, there are numerous reasons for this court to deny
defendant’s petition for an alternative writ of mandamus; consequently, it
should also deny his motion for a stay. Regardless, this court should deny the
motion for a stay, because it is unnecessary at this point. Trial in this case is not
scheduled to begin until June 6, 2017. Ordering a stay now would necessarily
delay that trial date even if this court ultimately denied the mandamus petition.
Instead, this court should allow the parties to continue to prepare for trial and
revisit the stay issue only if it has not denied the petition or issued a peremptory
writ by the time trial is scheduled to begin.
20
D. Conclusion
This court should deny defendant’s petition for an alternative writ of
mandamus, and it should deny defendant’s motion to stay the trial court
proceedings underlying this petition. No provisions of law compelled the trial
court to grant defendant’s motion to disqualify the district attorney’s office;
even if it did, defendant could always raise that claim on direct appeal. Finally,
this case does not warrant this court’s exercise of discretion, where the trial
court specifically found that Martin did not violate her ethical obligations to
defendant and where Martin is no longer employed at the district attorney’s
office.
Respectfully submitted,
ELLEN F. ROSENBLUM
Attorney General
BENJAMIN GUTMAN
Solicitor General
/s/ Paul L. Smith_________________________________
PAUL L. SMITH #001870
Deputy Solicitor General
Attorneys for Plaintiff-Adverse Party
State of Oregon
Att - 1
Att - 2
NOTICE OF FILING AND PROOF OF SERVICE
I certify that on February 21, 2017, I directed the original Adverse Party's
Memorandum in Opposition to Relator's Petition for Writ of Mandamus to be
electronically filed with the Appellate Court Administrator, Appellate Records
Section, and electronically served upon Karen A. Steele, attorney for relator, by
using the court's electronic filing system.
I further certify that on February 21, 2017, I directed the Adverse Party's
Memorandum in Opposition to Relator's Petition for Writ of Mandamus to be
served upon the Honorable Cameron F. Wogan, circuit court judge, by mailing
a copy, with postage prepaid, in an envelope addressed to:
Hon. Cameron F. WoganCircuit Court JudgeKlamath County Courthouse316 Main StKlamath Falls OR 97601
/s/ Paul L. Smith_________________________________
PAUL L. SMITH #001870
Deputy Solicitor General
Attorney for Plaintiff-Adverse Party
State of Oregon
PLS:aft/8058435