CLATSOP COUNTY DISTRICT ATTORNEY and JOSHUA MARQUIS, Plaintiffs-Respondents Cross-Appellants,
CITY OF ASTORIA, Defendant-Appellant Cross-Respondent
Argued and Submitted January 3, 2014
Clatsop County Circuit Court 112430. . Albin W. Norblad, Judge.
Reversed in part and remanded with instructions to
enter judgment omitting the declarations in paragraphs 4 and 5 and declaring the
rights of the parties in accordance with this opinion; otherwise affirmed.
Blair J. Henningsgaard argued the cause and filed the briefs for appellant-cross-respondent.
Paul L. Smith, Senior Assistant Attorney General, argued the cause for respondents-cross-appellants. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[266 Or.App. 771] ARMSTRONG, P. J.
This case involves a dispute between defendant, the City of Astoria (the city) and the Clatsop County District Attorney (the district attorney), over the control of the prosecution of misdemeanor driving under the influence of intoxicants (DUII) offenses committed within the city. The trial court denied the city's motion to dismiss the district attorney's complaint for declaratory and injunctive relief and entered a judgment declaring the rights of the parties. Both parties appeal. The city assigns error to the trial court's denial of the city's motion to dismiss the complaint for lack of jurisdiction because the district attorney had failed to join all necessary parties, as required by ORS 28.110. The city also contends that the trial court erred in ruling that " the district attorney is mandated to appear and prosecute criminal cases in the Astoria Municipal Court" and " has exclusive authority to control and direct the prosecution of DUIIs filed in the Astoria Municipal Court with authority to allow the city attorney to conduct those prosecutions." The district attorney cross-appeals, agreeing with the city that the trial court erred in declaring that the district attorney is required to " attend and prosecute" cases in the municipal court. We conclude that the trial court correctly denied the city's motion to dismiss; however, we agree with the city on the merits. Accordingly, we reverse the judgment in part and remand with instructions to enter judgment omitting those parts of the judgment challenged by the city and declaring the parties' rights in accordance with this opinion.
The pertinent facts are undisputed. Plaintiff Joshua Marquis is the elected District Attorney of Clatsop County, Oregon; he has served in that position since 1994. Defendant City of Astoria is a home-rule city within Clatsop County; it was created in 1856 by a legislative charter from the territorial government
and presently operates under a home-rule charter adopted in 1997. Among other things, the city charter authorizes the appointment of a municipal judge, Astoria City Charter § 3.6; provides that the municipal court " has [266 Or.App. 772] original jurisdiction over every offense that an ordinance of the City makes punishable," id. § 5.3(5); and allows the city council to transfer functions of the municipal court to an appropriate state court, id. § 5.3(8). Astoria City Code section 6.005 adopts the provisions of the Oregon Vehicle Code, ORS chapters 801 to 826, and provides that " a violation of a provision of those chapters is an offense against the city."
Astoria Police Department Policy 323 directs Astoria police officers to cite most misdemeanor DUII offenses to Astoria Municipal Court for prosecution by the Astoria City Attorney. Specifically, the policy requires officers to cite to the municipal court " all violations of the Astoria Code, including violations of the Oregon Revised Statutes as adopted by the City, [a]ll traffic infractions, all misdemeanor traffic crimes and all misdemeanor crimes with the exceptions noted below." 
The district attorney first offered, and then directed, that all citations for state-law-based DUII offenses made by the Astoria Police Department be filed in Clatsop County Circuit Court for prosecution by the district attorney. The city did not yield to the district attorney's demand, and the district attorney filed a complaint for declaratory and injunctive relief. The complaint alleged facts surrounding the city's refusal to relinquish control of the prosecution of DUII cases arising within the city and requested a declaration that,
" as the public prosecutor of Clatsop County, [the district attorney] has the exclusive authority to direct and control [266 Or.App. 773] the prosecution of all driving under the influence of intoxicants charges that arise within the [district attorney's] jurisdiction, including those driving under the influence of intoxicants charges, or any state-law criminal charges arising out of the same criminal episode, that originate within the City of Astoria." 
The city moved to dismiss the complaint, contending that (1) the district attorney is not the real party in interest, (2) the complaint failed to allege a justiciable controversy, and (3) the complaint failed to join necessary parties under ORS 28.110--namely " other cities that would be affected by the declarations requested in the complaint." The court denied the city's motion to dismiss the case.
The parties proceeded to trial, after which the court issued a letter opinion concluding, in part:
" It is this court's opinion [that] the district attorney controls and directs prosecutions of DUIIs in all the courts in his county, and in this case, the City of Astoria. This would include all DUIIs filed under state statute or city ordinance. Further it is this court's opinion that the district attorney under ORS 221.339(5) can allow the prosecutions [to] be handled by the city attorney."
After skirmishes between the parties over the proposed form of judgment, the trial
court ultimately entered a judgment declaring, as relevant to this appeal:
" 2. That under ORS 221.339, the Astoria Municipal Court has concurrent jurisdiction with Clatsop County Circuit Court over misdemeanors triable in the municipal court, including misdemeanor charges of driving under the influence of intoxicants (DUII);
" 3. That ORS 8.650 authorizes the District Attorney to attend and prosecute offenses of state statute and city ordinance if the circuit [court] could have had jurisdiction of the crimes chargeable under the city ordinance;
" 4. That ORS 8.660 mandates that the District Attorney attend all courts in Clatsop County, including Astoria Municipal Court, and requires the District Attorney to [266 Or.App. 774] conduct on behalf of the state all prosecutions of criminal cases;
" 5. That the District Attorney controls and directs prosecutions of DUIIs in all courts in Clatsop County, and, in this case the Astoria Municipal Court. This includes all DUIIs filed under state statute or city ordinance. Further the District Attorney may allow the prosecutions [to] be handled by the city attorney[.]"
(Some formatting altered.) This appeal ensued.
Because it is jurisdictional, we first must address the city's contention--in its second assignment of error--that the trial court erred in denying the city's motion to dismiss the complaint for lack of jurisdiction because the district attorney had failed to join all necessary parties under ORS 28.110. See, e.g., Vance v. Ford, 187 Or.App. 412, 425, 67 P.3d 412 (2003) (" Failure to join a necessary party in a declaratory judgment action deprives the court of authority to render a judgment that binds that party; it is considered a jurisdictional defect." (Citing Wright v. Hazen Investments, Inc., 293 Or. 259, 264, 648 P.2d 360 (1982).)). There is no dispute as to the relevant facts. We review for legal error the trial court's conclusion under ORS 28.110 on the joinder of necessary parties. Sergeant's Towing, Inc. v. City ...