17 ARGUMENT - Defend Judge Day · At common law, the appropriate ... 8 seeking relief where a...

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IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MARION

STATE OF OREGON, Case No. 16CR73159

RESPONSE TO DEFENDANTS MOTION TO DISMISS FOR LACK OF PROSECUTORIAL AUTHORITY

The defense has filed a Motion to Dismiss/Quash Indictment arguing that the Marion

County District Attorney lacks authority to appoint special deputy district attorneys in this

matter, and therefore the attorney general's office had no authority to investigate and indict the

defendant. The state respectfully requests this court deny the defendant's motion.

First, a district attorney has the statutory authority to appoint deputies pursuant to ORS

8.780 and exercised that power in this case by appointing Senior Assistant Attorneys General

Hoffmeyer and Deputy Chief Counsel Tuttle. There is no actual conflict in this matter that

requires the use of ORS 8.710.

Second, the motion filed by the defendant is not the appropriate vehicle to raise the issue

upon which the defendant seeks review and this is not the appropriate forum for hearing on that

issue. The defense is asserting that the Attorney General has no authority to act as District

Attorney in this matter, essentially claiming the Attorney General is usurping, unlawfully

holding or exercising the District Attorney's office. Because the proceeding quo warranto, a

- RESPONSE: MOTION TO DISMISS FOR LACK OF PROSECUTORIAL AUTHORITY

Department of Justice 2250 McGilchrist St., Ste 100

Salem, OR 97302 (503) 378-6347 / Fax: (503) 373-1936

Plaintiff,

v.

VANCE D. DAY,

Defendant.

1 separate civil action provided for by statute, is the exclusive remedy for the defendant's

2 challenge, the defendant's motion to dismiss should be denied.

3

4 FACTS

5 On March 3, 2016, Marion County District Attorney, Walter Beglau, requested that the

6 Attorney General's Office "review and assess any appropriate course of action" with respect to

7 potential criminal conduct on the part of Judge Day as documented in the findings of the Oregon

8 Commission on Judicial Fitness and Disability (Attachment A). Mr. Beglau's letter further

9 stated that he believed it best that his office not be involved "because Judge Day is a sitting judge

10 in our judicial district." The letter does not state that Mr. Beglau believed a conflict existed on

11 the part of his office, but rather recognizes the potential for the appearance of bias on the part of

12 his office. On April 5, 2016, DA Beglau appointed Sr. AAG Kristen Hoffmeyer as a special

13 deputy district attorney for the investigation and/or prosecution of this case; Deputy Chief

14 Counsel Stephanie Tuttle was appointed in November 2016. (Attachment B) This case was

15 presented to a Marion County Grand Jury on November 16, 2016, which returned a true bill.

16

17 ARGUMENT

18 1. The District Attorney is Authorized to Appoint Deputies under ORS 8.780

19 ORS 8.780 provides that "[A] district attorney shall appoint deputies. A deputy district

20 attorney shall have the same qualifications as the district attorney, and subject to the direction of

21 the district attorney, has the same functions as the district attorney." In State v. Coleman, 131

22 Or.App. 386 (1994), the Court of Appeals held that a district attorney is authorized to appoint

23 qualified persons to serve as special deputy district attorneys including assistant attorneys

24 general. In that case, the Marion County District Attorney appointed two (2) assistant attorneys

25 general to conduct an investigation and handle the prosecution of a case involving the corporate

26 manager of a shopping mall who was allegedly stealing money from the Oregon Public



Salem, OR 97302 (503) 378-6347 / Fax: (503) 373-1936

1 Employees Retirement Systems' commercial mortgage program. The defendant argued that the

2 Attorney General could not assume the role of a deputy district attorney unless directed by the

3 Governor. The court rejected this claim, citing ORS 8.780.1 The Court indicated:

4 The office of the state Attorney General possesses "the same powers and

5 prerogatives in each of the several counties of the state as the district attorneys have in

6 their respective counties."7 ORS 180.240. The Attorney General must "[a]ppear, commence, prosecute or defend any action, suit, matter, cause or proceeding in any court

7 when requested by any state officer, board or commission when, in the discretion of the Attorney General, the same may be necessary or advisable to protect the interests of the

8 state." ORS 180.060(1)(d). (Emphasis supplied.) Here, a state officer-the Marion County

9 District Attorney-did request that two assistant attorneys general prosecute this case. The Attorney General "may" also be directed by the Governor to perform the duties of a

10 district attorney, ORS 180.070, and upon such request, the Attorney General "shall" appear. ORS 180.060(1)(b). We have found, and defendant has cited, no statutory or

11 constitutional provision stating that the Governor alone possesses the power to make such requests. A district attorney, too, is authorized to appoint qualified persons to serve as

12 deputy district attorneys. ORS 8.780; ORS 8.630. Accordingly, we hold that the Marion

13 County District Attorney was authorized to appoint the two assistant attorneys general to serve as deputy district attorneys in this case. Id. at 391.

14 In the case at bar, Mr. Beglau exercised his authority pursuant to ORS 8.780 and

15 appointed two (2) assistant attorneys general to investigate and/or prosecute this case.

16 The defense argues that DA Beglau has a conflict in this matter and therefore was

17 required to seek a special appointment from the court under ORS 8.710. That statute applies

18 when there is an actual conflict of interest between the District Attorney and the accused.

19 Examples of such conflict are listed in the statute, and include family relationship to the accused,

20 prior representation of the accused, business association with the accused — essentially

21 circumstances that create an ethical conflict of interest. However, this is not a case where an

22 actual conflict of interest existed with respect to DA Beglau. Rather, DA Beglau recognized the

23 potential for the appearance of impropriety if his office were to handle the case. Accordingly, he

24

25 1 The defendant also challenged the appointment of the assistant attorneys general by claiming a violation of the separation of powers. The court dismissed the argument as without merit,

26 recognizing that both district attorneys and assistant attorneys general are members of the executive branch. Coleman at 387.



Salem, OR 97302 (503) 378-6347 / Fax: (503) 373-1936

1 appropriately exercised his authority under ORS 8.780 when he requested the assistance of the

2 Attorney General and appointed two (2) of her assistants as special deputy district attorneys.

3

4 2. An Action Quo Warranto is the Sole Basis to Challenge the Authority of a Public Official

5 A motion to dismiss is not the proper vehicle to raise the defendant's issue or seek the

6 requested relief. The sole and exclusive basis to challenge the authority of a public official is an

7 action quo warranto, a separate civil proceeding. At common law, the appropriate means for

8 seeking relief where a person was unlawfully occupying or exercising the authority of office was

9 a writ quo warranto. The quo warranto writ was abolished by ORS 34.810 in favor of a

10 statutory action for usurpation of office, set forth in ORS 30.510 et seq. The proceeding is a civil

11 action which may be initiated by a private party. ORS 30.510. The Oregon Supreme Court has

12 held that the statute sets forth the exclusive method for determining the legality of a person

13 holding public office or asserting the use or exercise of a public office. Madden v. Crawford,

14 207 Or 76, 295 P2d 174 (1956); Boe v. Straub, 282 Or. 387, 578 P.2d 1247 (1978).

15 Because there is a specific statutory process available for the defendant to challenge the

16 authority of the AG to act in this case, the defendants' more general and ambiguous motion to

17 dismiss must be denied.

18

19 CONCLUSION

20 DA Beglau has no actual conflict in this matter, and acted within his authority under ORS

21 8.780 when he appointed Ms. Hoffmeyer and Ms. Tuttle. Additionally, the motion filed by the

22 defendant is not the appropriate vehicle to raise the issue upon which the defendant seeks review

23 and this is not the appropriate forum for hearing on that issue, that is, that the Attorney General

24 has no authority to act as District Attorney. For these reasons, the defendant's motion to dismiss

25 must be denied.

26



Salem, OR 97302 (503) 378-6347 /Fax: (503) 373-1936

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DATED this4 v day of ---1,12.--Le.427, , 2016.

By: WALTER BEGLAU Marion County Qtstrict Attorney

ist E. Hof ey • SB #085338 Sr. Assistant Atto ey General and Marion County Special Deputy Dist. Atty.



Salem, OR 97302 (503) 378-6347 / Fax: (503) 373-1936

CERTIFICATE OF SERVICE

I hereby certify that I have made service of the foregoing RESPONSE TO DEFENDANT'S

MOTION TO DISMISS FOR LACK OF PROSECUTORIAL AUTHORITY for Marion County

Circuit Court Case No. 16CR73159 on Michael De Muniz, attorney for defendant, by emailing a

true, exact and full copy and by service through Odyssey e-file thereof on December 20, 2016, to

said attorney at his last known email address, as follows.

Michael De Muniz De Muniz Law LLC 121 SW Morrison St. Suite 1100 Portland, OR 97204 [email protected]

Krist offmey ,n--SB #085338 Sr. ssistant Attorney General [email protected],us

Page 1 — CERTIFICATE OF SERVICE KH2/vmp/7915453

Department of Justice 2250 McGilchrist St. SE, Suite 100

Salem, OR 97302 (503)378-6347

EXHIBIT 'A'

PAIGE E. CLARKSON JEAN L. KUNKLE

BRENDAN MURPHY AMY M. QUEEN KATIE A. SUVER ADULT PROSECUTION

TRIAL TEAM SUPERVISORS

VANESSA COGGINS ADMINISTRATIVE MANAGER

WAL lER M. BEGLAU DISTRICT ATTORNEY

MARION COUNTY DISTRICT ATTORNEY P.O. BOX 14500, 555 COURT ST NE

SALEM, OREGON 97309

CONCETTA SCHWESINGER SUPPORT ENFORCEMENT TRIAL TEAM SUPERVISOR

DAVID WILSON JUVENILE DIVISION

TRIAL TEAM SUPERVISOR

KIMBERLY A. LARSON VICTIM ASSISTANCE DIRECTOR

March 3, 2016

Michael Slauson Interim Chief Counsel Criminal Justice Division Oregon Department of Justice 1162 Court St. NE Salem, OR 97301

RE: Commission on Judicial Fitness and Disability inquiry concerning Honorable Vance D. Day opinion filed January 25th, 2016

Dear Chief Counsel Slauson,

I have carefully reviewed the above entitled opinion prepared by the Oregon Commission on Judicial Fitness and Disability. The Commission makes specific reference to criminal conduct by Judge Day.

I respectfully request that the Oregon Department of Justice review and assess any appropriate course of action.

After careful consideration, it is best that the Marion County District Attorney's Office not be involved because Judge Day is a sitting judge in our judicial district.

Sincerely,

Walt Beglau Beglau Marion County District Attorney

WB:vjc

ADULT PROSECUTION (503) 588-5222 JUVENILE DIVISION (503) 588-5389 SUPPORT ENFORCEMENT DIVISION (503) 588-5152 MEDICAL EXAMINER PROGRAM (503) 588-5530 VICTIM ASSISTANCE DIVISION (503) 588-5253

EXHIBIT 'B'

OFFICIAL STAMP VELEM M PERRY

NOTARY PUBLIC.OREGON COMMISSION NO, 940066

MY COMMISSION EXPIRES JUNE 17, 2019

APPOINTMENT OF SPECIAL DEPUTY DISTRICT ATTORNEY

I, Walter M. Beglau, District Attorney for Marion County, State of Oregon, pursuant to ORS 8.780, do hereby appoint Senior Assistant Attorney General Kristen Hoffmeyer, as Special Deputy District Attorney (without compensation) for Marion County and the State of Oregon, and she is hereby empowered to perform any and all acts required by law to be performed by me in as full a manner as I could do and perform myself. This Special Power of Appointment is limited to the investigation and/or prosecution of State of Oregon v. Vance Day, DOJ Case # CJDO051-16.

DATED at Salem, Oregon, this 5 day of April, 2016,

Walter M. Beglau, OSB #900407 Marion County District. Attorney

ACCEPTANCE OF APPOINTMENT

STATE OF OREGON ) ss.

County of Marion

I, Kristen Hoffmeyer, Senior Assistant Attorney General for the State of Oregon, pursuant to ORS 180,060(1)(d) and (5), do hereby accept the appointment as Special Deputy District Attorney for Marion County and the State of Oregon, and I do solemnly swear that I will support the Constitution of the United States of America and the Constitution of the State of Oregon and the laws thereof, and will honestly, faithfully, and honorably discharge the duties of the office of Special Deputy District Attorney for Marion County, Oregon, to which I have been appointed as provided by the terms of the foregoing appointment, to the best of my ability.

Kiis of meye SB #085338

SUBSCRIBED AND SWORN to before me this 5 day of April, 2016.

d NOTARY PUB IC FOR O GON

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Page 1 - APPOINTMENT OF SPECIAL DEPUTY DISTRICT ATTORNEY

41 DATED at Salem, Oregon, this / I day of November, 2016.

1 Jait —itt frc

Walter M. Beglau, OSB 49004070 Marion County District Attorney

_ OFFICIAL STAMP VELEDA M PERRY

NOTARY PUBUC-OREGON COMMISSION NO. 940066

MY COMMISSION EXPIRES JUNE 17.2019

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APPOINTMENT OF SPECIAL DEPUTY DISTRICT ATTORNEY

I, Walter M. Beglau, District Attorney for Marion County, State of Oregon, pursuant to ORS 8.780, do hereby appoint Deputy Chief Counsel Stephanie Tuttle, as Special Deputy District Attorney (without compensation) for Marion County and the State of Oregon, and she is hereby empowered to perform any and all acts required by law to be performed by me in as full a manner as I could do and perform myself. This Special Power of Appointment is limited to the investigation and/or prosecution of State of Oregon v. Vance Day, DOJ Case # CJDO051-16.

ACCEPTANCE OF APPOINTMENT

STATE OF OREGON ) ss.

County of Marion

I, Stephanie Tuttle, Deputy Chief Counsel for the State of Oregon, pursuant to ORS 180.060(1)(d) and (5), do hereby accept the appointment as Special Deputy District Attorney for Marion County and the State of Oregon, and I do solemnly swear that I will support the Constitution of the United States of America and the Constitution of the State of Oregon and the laws thereof, and will honestly, faithfully, and honorably discharge the duties of the office of Special Deputy District Attorney for Marion County, Oregon, to which I have been appointed as provided by the terms of the foregoing appointment, to the best of my ability.

-1Steph ie Tuttle, OSB #934468

SUBSCRIBED AND SWORN to before me this day of November, 2016.

OTARY PUBL FOR (A4

Page 1 - APPOINTMENT OF SPECIAL DEPUTY DISTRICT ATTORNEY

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6 STATE OF OREGON, Case No. 16CR73159

7

Plaintiff, STATE'S RESPONSE TO DEFENDANT'S MOTION TO

8 v. DISMISS/QUASH THE INDICTMENT BASED ON TRANSACTIONAL

9 VANCE D. DAY, IMMUNITY

10 Defendant.

11

12 The defendant has filed a Motion to Dismiss/Quash Indictment alleging that the

13 defendant has immunity from criminal prosecution in his matter. The state respectfully requests

14 the Court deny the motion for the following reasons: there is no legal authority for his claim that

15 testifying at the judicial commission proceeding conferred some form of immunity to criminal

16 prosecution and the defendant agreed to an interview with the State's investigator and then

17 voluntarily testified at the grand jury in this matter, thereby waiving any claim to a self-

18 incrimination violation.

19

20 FACTS

In August of 2014, the defendant self-reported potential ethics violations to the

Commission on Judicial Fitness and Disability ("the Commission"). The Commission

subsequently initiated an investigation. During the investigation, the defendant was interviewed

by Karen Saul, an investigator working on behalf of the Commission. The defendant also

testified before the Commission in November 2015 at a hearing relating to his alleged judicial

misconduct. He was called by the Commission's lawyer and testified on his own behalf. At no Page 1 - STATE'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS/QUASH — TRANSACTIONAL

IMMUNITY Department of Justice

'2250 McGilchrist St. SE, Ste. 100 Salem, OR 97302

Phone (503) 378-6347

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1 time during the investigation or at the hearing did the defendant ever assert his right against self-

2 incrimination.

3

4 ARGUMENT

5

6 1. Use, Derivative Use, and Transactional Immunity

7 There are three types of immunity that can be conferred upon an individual who is

8 compelled to give testimony that is self-incriminating: Use, derivative use, and transactional.

9 Use immunity is the right to not have the actual compelled testimony used against the testifying

10 witness in a criminal transaction. State v. Randall, 27 Or. App. 869, 872 (1976). Derivative use

11 immunity broadens that protection and applies it to any information that is derived from the

12 compelled testimony. State v. Soriano, 68 Or App 642, 648, opinion adopted 298 Or 392 (1984)

13 (1984). Transactional immunity confers complete immunity from prosecution relating to the

14 subject matter of the compelled testimony. Id. at 684.

15 In order to receive immunity, the witness must be compelled to give testimony that is

16 incriminating, or otherwise expressly offered immunity by the prosecuting body. Voluntary

17 cooperation and testimony is not compelled and therefore does not give the declarant the right to

18 immunity.

19

20 2. The Defendant was not Compelled to Participate in the Commission Investigation and

21 Hearing

22 Defendant incorrectly asserts that he was compelled to provide testimony to the

23 Commission. Instead, defendant chose to provide testimony voluntarily. Nothing in the statutes

24 governing the Commission on Judicial Fitness and Disability requires the judge being

25 investigated to testify. Instead, ORS 1.420(3) states in pertinent part, "The judge shall have the

26 right to be present at such hearing, to be represented by counsel, to present testimony and

Page 2 - STATE'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS/QUASH — TRANSACTIONAL IMMUNITY

Department of Justice '2250 McGilchrist St. SE, Ste. 100

Salem, OR 97302 Phone (503) 378-6347

1 evidence and to cross-examine witnesses." Defendant had a right to provide testimony, but was

2 not required to do so. He also had the right to assert his privilege against self-incrimination, but

3 he did not.

4 Defendant's argument appears to be that regardless of whether he asserted his right not to

5 incriminate himself, as a judge who is required to participate in the Oregon Code of Judicial

6 Conduct Commission investigation he is conferred transactional immunity in exchange for his

7 testimony. Defendant relies on ORS 1.450 which states

8 Any testimony given by a witness compelled to appear before the Commission on

9 Judicial Fitness and Disability or the masters appointed pursuant to ORS 1.420 or 1.425 shall not be used against the witness in any criminal action or proceeding,

10 nor shall any criminal action or proceeding be brought against such witness on account of any testimony so given by the witness, except for perjury or false

11 swearing committed before the commission or the masters. (emphasis added)

12 Further, defendant relies on Soriano, to illustrate the notion that only transactional

13 immunity is an adequate substitute for a witness's right under Article I, § 12, not to be compelled

14 to testify against himself Soriano, 68 Or App at 659. However, the defendant was not

15 compelled to testify in the Commission hearing, thus ORS 1.450 is not implicated.

16 In Garrity v. State of1V.1, 385 US 493 (1967), the US Supreme Court held that

17 statements made under threat of termination were compelled in violation of the Fifth and

18 Fourteenth Amendments. In that case, police officers were investigated for misconduct, were

19 advised of their rights against self-incrimination, and gave statements to the investigating

20 agency. Of note, when they were advised of their rights against self-incrimination, they were

21 also explicitly warned that failure to answer questions would subject them to removal from

22 office. Id. at 494. The threat to remove them from office for failure to cooperate was based on a

23 statute requiring removal from office when a public official was investigated for misconduct and

24 asserted the privilege against self-incrimination. Id., n.1. Under these circumstances, the court

25 held that if a person has a choice between self-incrimination and mandatory loss of employment,

26 any statements given would be considered involuntary and not available for use against the



Salem, OR 97302 Phone (503) 378-6347

1 declarant in a criminal prosecution. Id. at 500. In other words, the declarant would be entitled to

2 use immunity.

3 Several Oregon cases have expanded on the holding of Garrity v. State of NJ. In State v.

4 Randall, the court determined that "Absent a compulsion to testify by imposition of some

5 sanction upon exercise of the privilege to remain silent a witness has a free choice. If he then

6 testified pursuant to that free choice the testimony is admissible in a subsequent criminal

7 proceeding against him." 27 Or App 869, 873 (1976). In Randall, defendant challenged his

8 conviction for criminal drug activity, claiming that his testimony from a previous parole

9 revocation hearing should not have been admitted at trial. Id. at 871. The court, however, held

10 that the defendant was not compelled to testify at the parole revocation hearing. Id. at 874.

11 Defendant would not be subject to automatic termination of parole if he chose not to testify — the

12 state would still have to prove defendant violated the conditions of his parole. Id. Conclusively,

13 The defendant's compulsion to testify at his parole hearing is a matter of strategy

14 and not a legal compulsion enforced by a sanction if he remains silent. This strategy choice, albeit a difficult one, does not deprive him of the free choice to

15 testify. Since there is no compulsion to testify he is not entitled to the benefits of the 'use immunity' doctrine which would exclude his testimony at the subsequent

16 criminal prosecution.

17 Id at 875.

18 Alternatively, the Court of Appeals held that compulsion did exist for a defendant to

19 testify in a pretermination hearing for his employer, the Department of Transportation. State v.

20 Graf, 114 Or App 275, 278 (1992). Compulsion existed in this situation because if the defendant

21 had refused to testify at the pretermination hearing, he would have been precluded from offering

22 testimony or refuting evidence at the more formal post-termination hearing. Id. at 279. In other

23 words, the defendant in Graf faced a certain sanction, rather than a potential one, and that

24 sanction implicated the defendant's constitutional rights by hindering his ability to defend

25 himself at the formal hearing. Id. at 280. Significantly, the Graf court held that the defendant

26



Salem, OR 97302 Phone (503) 378-6347

1 was only entitled to use and derivative use immunity, not transactional immunity. Id. at 282.

2 Specifically, the Court explained:

3 We adhere to our reasoning in White. Defendant's constitutional right is the right

4 not to be compelled to testify against himself, not a right to immunity. Immunity is not,

5 as defendant contends, an automatic consequence of having been compelled to testify; in Oregon, at least, it must be conferred by statute. Although Soriano holds that a statute

6 that confers only use and derivative use immunity in exchange for the compelling of testimony violates Article I, section 12, we did not rewrite the statute to confer

7 transactional immunity on the witness. Rather, we held that the witness could not be

8 convicted of contempt for refusing to testify.

9 Here, there is no statute authorizing DOT to grant immunity to defendant. His decision to testify, even under compulsion, does not automatically confer transactional

10 immunity on him. Only the legislature can do that. If defendant had chosen not to testify, he could have tested the constitutionality of any adverse consequences, as did Soriano.

11 However, having testified under compulsion without a grant of immunity, he is left with

12 the usual remedy against unconstitutionally compelling testimony: suppression of his testimony before DOT, and any evidence derived therefrom, in the criminal proceeding

13 See Garrity v. New Jersey, supra. Accordingly, defendant was not entitled to have the 2 indictments dismissed, and the trial court erred in dismissing them. Id.

14

15 The current case is more like Randall because the defendant chose to testify at the

16 Commission hearing based on strategy choice, as the defendant in Randall did at his parole

17 hearing. Defendant would not automatically be in violation of the Oregon Code of Judicial

18 conduct merely from his refusal to testify, the Commission would still have to independently

19 prove defendant's conduct. Furthermore, the current case is unlike Graf because there was no

20 overt or inherent compulsion requiring defendant to testify. Because the defendant had a

21 strategic choice to make, rather than a certain negative consequence for failure to testify, his

22 statements to the Commission were not compelled and are not subject to immunity protection.

23

24 3. ORS 1.450 Grants Use and Derivative Use Immunity Only

25 To the extent that this court finds the defendant is entitled to immunity, he is only

26 entitled to the immunity conferred by statute. The defendant was in a strategic position with



Salem, OR 97302 Phone (503) 378-6347

1 regard to whether to invoke his right against self-incrimination during the Commission

2 proceedings. Asserting that right would not give rise to an automatic result that would violate

3 his constitutional rights. Therefore, Soriano is not implicated and the defendant would not

4 receive constitutional transactional immunity. Because his testimony was not compelled in a

5 way that required him to forfeit a constitutionally protected right, any potential immunity is

6 limited to that conferred by statute. See Randall, 27 Or App at 282.

7 ORS 1.450 is the applicable statute in this circumstance. As noted above, it provides

8 certain protections to witnesses compelled to testify before the Commission. The state argues

9 that the defendant's testimony was not compelled at the Commission hearing. However, should

10 this Court find that it was compelled, he is limited to the immunity provided by the statute: the

11 defendant's compelled testimony cannot be used against him in a criminal proceeding, and he

12 cannot be prosecuted based solely on his testimony. This is most accurately described as use and

13 derivative use immunity. The statute does not grant transactional immunity.

14

15 4. Basis for Prosecution is Not "On Account of Defendant's Commission Hearing Testimony

16 The defendant further argues that his prosecution for the crimes alleged in this indictment

17 stem solely from his testimony at the commission hearing in November of 2015, thus violating

18 ORS 1.450. However, this is incorrect. The Department of Justice conducted an investigation

19 that included interviews of several witnesses. These witnesses also gave statements during the

20 Commission investigation and/or gave testimony at the Commission hearing. The investigation

21 is based on the testimony of those witnesses and supporting evidence. ORS 1.440(2) states that

22 testimony given before the commission is privileged but can be expressly or impliedly waived by

23 the person testifying. In this case, many of the witnesses who appeared and testified before the

24 commission also consented to interviews with the state's investigator and appeared and testified

25 before the grand jury. Additionally, the defendant was asked and agreed to an interview in this

26 investigation (Attachment A). He and his attorney, Mr. DeMuniz, met with the State's



Salem, OR 97302 Phone (503) 378-6347

1 investigator, Mike Bethers, on June 29, 2016, and he voluntarily answered questions related to

2 the subject matter of the Commission hearing. Finally, the defendant requested to appear and

3 testify at the grand jury proceeding for this case (Attachment A). The State agreed and the

4 defendant did in fact appear and testified under oath before the grand jury concerning the subject

5 matter to which he testified in the Commission hearing. The criminal action against the

6 defendant is not "on account of the testimony he gave to the Commission; it is based on

7 evidence obtained from other witnesses and sources. Among other things, this is evidenced by

8 the fact that the defendant did not incriminate himself in his statements — he denies the criminal

9 conduct.

10

11 5. Defendant Waived his Fifth Amendment Privilege by Voluntarily Participating in an

12 Interview with the State's Investigator and Voluntarily Testifying at Grand Jury

13 As previously stated, the defendant agreed to speak with the State's investigator, in the

14 presence of his attorney, about the subject matter of this prosecution. He also requested and

15 voluntarily appeared before the grand jury where he reiterated much, if not all, of his testimony

16 before the commission. Not surprisingly, the defendant did not assert his privilege against self-

17 incrimination at either the interview or before the grand jury.

18 A witness may refuse to answer any question that would tend to incriminate him, "[B]ut

19 it is necessary that he claim the privilege. It is a personal privilege that may be waived, and, if

20 not claimed, is deemed waived. Also, by testifying on his own behalf, an accused waives the

21 benefit of the constitutional guaranty." State v. Tenbusch, 131 Or App 634, 641 (1994)

22 (referencing Garner v. United States, 424 US 648, 654 n. 9 (1976); State v. Hennessey, 195 Or

23 355, 366 (1952)). The defendant admits in his motion that he was aware in 2014, prior to the

24 commission hearing, that one of the allegations involved possible criminal liability with respect

25 to his conduct with a veteran's court probationer and the possession of a firearm. Despite this

26 knowledge, the defendant chose to be interviewed and then to appear before the grand jury in



Salem, OR 97302 Phone (503) 378-6347

1 November of 2016 and testify about that conduct which was also the subject of an allegation

2 before the commission. There is no legitimate claim that the State somehow violated his right

3 against self-incrimination given these facts. In fact, the defendant waived his right against self-

4 incrimination by voluntarily giving statements and testimony.

5

6 CONCLUSION

7 The defendant's testimony at the Commission hearing was not compelled — it was a

8 voluntary strategic choice the defendant made with benefit of counsel. Because it was not

9 compelled, there is no immunity that attaches to his statements. Even if the defendant were able

10 to establish that the testimony was compelled, he would only receive the immunity conferred by

11 statute: the state would not be able to use his testimony against him, and would not be able to

12 prosecute him solely on the basis of his statement. The defendant would not receive

13 transactional immunity, and the state could prosecute him based on evidence independent from

14 his testimony. Regardless of the circumstances of the defendant's participation in the

15 Commission proceedings, the defendant voluntarily gave statements to the state's investigator

16 and testimony to the grand jury in the criminal proceeding. He thereby waived his right against

17 self-incrimination. Based on the foregoing, the state respectfully requests the Court deny the

18 defendant's Motion to Dismiss/Quash the Indictment.

19

20 DATED this 2 0 day of December, 2016.

21

22 --,,

23

24 Kri n E. Hoffmey , OSB #085338

25 Senor Assistant A orney General and Marion County Special Deputy District Attorney

26



Salem, OR 97302 Phone (503) 378-6347

EXHIBIT 'A'

Michael P. De Muniz, Attorney

De Muniz Law, LLC 121 SW Morrison Street, Suite 1100 Portland, OR 97204

October 27, 2016

Via Email Only

Kristen Hoffmeyer

Oregon Department of Justice

1 162 Court Street N.E.

Salem, OR 97301-4096

[email protected]

RE: Grand Jury Investigation

Dear Ms. Hoffmeyer:

I recently spoke with Judge Day about the status of the wide-ranging DOJ investigation into his

service as a judge during the past three years. You asked if Judge Day would answer your

investigator's questions and he willingly complied. During our encounter with Agent Bethers

both Judge Day and I were surprised by the various subjects explored, including, but not limited

to the allegation that he committed theft of property from the courthouse. Our recent phone

conversation also gave me pause as you mentioned that you had completed your investigation,

but still had to "run it up the chain" before advising us of the outcome.

Judge Day has concerns that the DOJ investigation is politically motivated and not simply a

result of a referral from the Marion County DA's office.

If your office is considering taking any of these matters before a grand jury, Judge Day

respectfully requests the following to insure fairness throughout the process:

1) Notice of the charges to be pursued before a grand jury;

2) An opportunity to appear and testify personally before the grand jury;

3) An opportunity to bring witnesses to testify;

4) That all witnesses appear personally to testify; and

5) That the grand jury proceeding be recorded.

If the Attorney General is interested in justice and fairness in this matter, then we would expect

her to agree to the requests above.

///

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503-507-1269 • [email protected] • www.demuniz.com

of 2

Please contact me if you would like to discuss this matter.

Sincerely,

DE MUNIZ LAW, LLC

Is/ Mike De Muniz

MICHAEL P. DE MUNIZ

CC: Client


I hereby certify that I have made service of the foregoing STATE'S RESPONSE TO

DEFENDANT'S MOTION TO DISMISS/QUASH THE INDICTMENT BASED ON

TRANSACTIONAL IMMUNITY for Marion County Circuit Court Case No. 16CR73159 on

Michael De Muniz, attorney for defendant, by emailing a true, exact and full copy and by service

through Odyssey e-file thereof on December 20, 2016, to said attorney at his last known email

address, as follows.


Kris offmeye B #085338 Sr. Assistant Attorney General [email protected]



Salem, OR 97302 (503)378-6347

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STATE OF OREGON, Case No. 16CR73159

Plaintiff, RESPONSE TO DEFENDANT'S DEMURRER

v.

VANCE DAY,

Defendant.

INTRODUCTION

COMES NOW the State of Oregon, by and through undersigned counsel, and

respectfully requests this Court deny the defendant's demurrer. Defendant makes two arguments

in his demurrer. First, that ORS 162.415 is unconstitutionally vague. Second, that Counts 2 and

4 of the indictment are not definite and certain. However, the State argues that 1) ORS 162.415

is not unconstitutionally vague and 2) that counts 2 and 4 of the indictment are definite and

certain.

ARGUMENT I. ORS 162.415 is not unconstitutionally vague because it meets the requirements of

Article I, §§ 20 and 21 of the Oregon Constitution and the Fourteenth Amendment to the United States Constitution.

ORS 162.415 is not unconstitutionally vague because it meets the requirements of Article

I, §§ 20 and 21 of the Oregon Constitution and the Fourteenth Amendment of the United States

Constitution. Article I, § 20 of the Oregon Constitution states that "No law shall be passed

granting to any citizen or class of citizens privileges, or immunities, which upon the same terms,

shall not equally belong to all citizens." Article I, § 21 explains that ex post facto laws and

unlawful delegations of legislative authority are prohibited. Taken together, Article I, §§ 20 and

Page 1 - RESPONSE TO DEFENDANT'S DEMURRER


Salem, Oregon 97302 (503) 378-6347

1 21 require a statute to provide with a "reasonable degree of certainty" that a person can

2 determine the conduct the statute covers. State v. Cornell, 304 Or 27, 29-30 (1987). The

3 Fourteenth Amendment explains in the Due Process Clause that "No State shall make or enforce

4 any law which shall abridge the privileges or immunities of citizens of the United States."

5 In order to determine if a statute violates the Oregon and United States Constitutions, we

6 must conduct a void for vagueness analysis.

7 A "void for vagueness" analysis under the federal constitution is much like the Oregon analysis. State v. Robertson, 293 Or 402, 409 (1982). In order to

8 withstand a vagueness challenge, a statute that defines a criminal offense must give a person of ordinary intelligence a reasonable opportunity to know what

9 conduct is prohibited. United States v. Murphy, 809 F2d 1427, 1431 (9th. Cir.

10 1987) citing Kolender v. Lawson, 461 US 352, 357 (1983). Moreover, the law must provide explicit standards so that those who enforce and apply the law do

11 not do so in an arbitrary or discriminatory fashion. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 Us 489, 503 (1982).

12 State v. Plowman, 314 Or 157, 162-63 (1992). Thus, a statute is void for vagueness if 1) it does

13 not provide a reasonable person with notice that the conduct is prohibited, and 2) it does not

14 provide explicit standards for application, such that the statute is enforced arbitrarily and

15 discriminatorily. Id.

16 Official Misconduct in the First Degree is described as

17 (1) A public servant commits the crime of official misconduct in the first degree if

18 with intent to obtain a benefit or to harm another:

19 (a) The public servant knowingly fails to perform a duty imposed upon the public servant by law or one clearly inherent in the nature of office; or

20

21 (b) The public servant knowingly performs an act constituting an unauthorized exercise in official duties.

22 ORS 162.415. Defendant argues that ORS 162.415 is void for vagueness because the terms

23 "official duty" and "benefit" used in the statute are not expressly defined by the statute or

24 elsewhere. However, the State counters that "official duty" is defined in case law and "benefit"

25 is defined both statutorily and in case law.

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Salem, Oregon 97302 (503) 378-6347

1

a. "Official duty" is adequately defined in case law.

2

When discussing the elements of Official Misconduct, the Oregon Supreme Court

3 explained,

4

The act must be performed "in" his or her official duties; that is to say, in the defendant's official capacity, exercising the powers or opportunities available by

5 virtue of his or her official position...The act must be an unauthorized exercise of

6 this official capacity, power, or opportunity.

State v. Florea, 296 Or 500, 503-04 (1984). The court elaborated that 7

8 Neither a public servant nor a judge or jury should have a conceptual problem with the requirement that the act be performed in one's official capacity or in

9 exercising the power of one's official capacity or in exercising the power of one's official position.

10 Id. at 504. Oregon courts have deemed a multitude of actions by public officials as "official

11 duties". For instance, in State v. Gortmaker, the Court of Appeals of Oregon upheld an Official

12 Misconduct conviction for a district attorney who had a deputy district attorney and a law clerk

13 prepare a personal document the defendant was to present at a seminar, which was completely

14 unrelated to his position as district attorney. 60 Or App 723, 746-47 (1982) aff'd 295 Or 505

15 (1983), cent. den. 465 US 1066 (1984). Further, in State v. Gove, the court held 16

...there is a permissible inference that a law officer who seeks sexual gratification 17 from a citizen in the course of performing his duties has knowledge that that act is

18 not an authorized exercise of his official position.

19 128 Or App 239, 242 (1994). While the term "official duties" may encompass a wide range of

20 activities depending on the defendant being prosecuted, it is clearly defined in Oregon case law.

21 This issue has been deemed summarily moot by the Supreme Court statement explaining "We

22 doubt the references to 'official duties' poses a genuine problem," taken in conjunction the wide

23 range of case law describing "official duties". Florea, 296 Or at 503.

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Salem, Oregon 97302 (503) 378-6347

1 b. "Benefit" is adequately defined by statute and case law.

2 While the legislature did not define the term "benefit," it did define the term "pecuniary

3 benefit". ORS 162.005 serves as the definition section for statutes 162.005 to 162.425, including

4 ORS 162.415. ORS 162.005(1) defines "pecuniary benefit" as a

5 ...gain or advantage to the beneficiary or to a third person pursuant to the desire

6 or consent of the beneficiary, in the form of money, property, commercial

7 interests or economic gain, but does not include a political campaign contribution reported in accordance with ORS chapter 260.

8 Defendant contends that because "non-pecuniary benefit" is not defined, the term is void for

9 vagueness. However, the State suggests that the term "pecuniary benefit" is adequate to serve as

10 the definition for "benefit". This point was illustrated in State v. Rodda, where the court applied

11 the definition of "pecuniary benefit" to apply as the definition of "benefit" as used in ORS

12 162.415. 56 Or App 580, 582 (1982). Further, Rodda provides the commentary from the

13 Oregon Criminal Code Committee that states

14 'Benefit' is defined to include any gain or advantage accruing to the actor or to a

15 third person pursuant to his desire or consent. The words 'gain' and 'advantage' are to be given their ordinary dictionary meaning." Oregon Criminal Code of

16 1971, 83 s 182 (1975 ed). (Emphasis supplied).

17 Id. at 584. Based on the court in Rodda applying the definition of "pecuniary benefit" as found

18 in ORS 162.005 to the term "benefit" in ORS 162.415, and the same court providing the Oregon

19 Criminal Code Committee's intended definition of the term "benefit," it is clear that the term has

20 been adequately defined as it not void for vagueness.

21 II. Counts 2 and 4 of the indictment do not violate any statutes, the Oregon

22 Constitution, or the United States Constitution.

23 Counts 2 and 4 of the indictment do not violate any statutes, the Oregon Constitution, or

24 the United States Constitution. Relevant to this case, a defendant may only demur to the

25 accusatory instrument when it appears the indictment "does not substantially conform to the

26 requirements of [ORS 132.550,]" ORS 135.630(2), or when "the accusatory instrument in not



Salem, Oregon 97302 (503) 378-6347

1 definite and certain." ORS 135.630(6). ORS 132.550(7) explains in pertinent part that an

2 indictment must contain

3

A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common

4 understanding to know what is intended.

5

Article I, § 11 of the Oregon Constitution affords criminal defendants several rights,

6 including the right "to demand the nature and cause of the accusation against him " Similarly,

7 the Sixth Amendment to the United States Constitution provides that criminal defendants have

8 the right "to be informed of the nature and cause of the accusation."

9 In sum,

An indictment must contain a "statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended[.]" ORS 132.550(7). Indictments that charge offenses using the words of the statute are generally sufficient. State v. Hale, 335 Or 612, 621 (2003) cert. den., 541 US 942 (2004).

State v. Magana, 212 Or App 553, 558 (2007). Specific to the Official Misconduct statute, the

Oregon Court of Appeals held that allegations of an indictment that mirrored the language of

ORS 162.415 were sufficient to state an offense. State v. Reed, 116 Or App 58, 59 (1992).

Defendant's basis for his argument regarding Counts 2 and 4 is found in State v. Molver.

Molver holds that if "discovery is unlikely to inform the defendant of the specific criminal

conduct that the state intends to prove[,]" then an indictment that "tracks the pertinent wording of

the statute defining the crime" is subject to demur. 233 Or App 239, 244 (2010). Defendant

argues that discovery will not illustrate what "benefit" defendant obtained from aiding and

abetting Mr. Shehan in possessing a firearm. However, the State contends that discovery will

adequately inform defendant of the specific criminal conduct the state intends to prove.

Defendant argues that the current case is like that of State v. Sanders, 280 Or 685 (1977).

In Sanders, the Supreme Court ruled that an indictment charging defendant with burglary must

allege the crime defendant intended to commit inside the building. Id. at 690. The court



Salem, Oregon 97302 (503) 378-6347

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1 continued to explain that pretrial discovery in this case would not enable defendant to know what

2 criminal intent the state was going to prove. Id. The court ultimately held that "an indictment

3 failing to specify such intent is subject to demurrer upon the ground that it is not definite and

4 certain." Id. at 691. However, the State argues that the current case is unlike Sanders because

5 the "benefit" the defendant takes concern with in the indictment is not as problematic as the lack

6 of specified intent in Sanders. Any lack of definiteness or certainty the defendant has about the

7 benefit obtained from aiding and abetting Mr. Shehan with a firearm will be made clear through

8 pretrial discovery. Indeed, Sanders explained "in some instances the availability of discovery

9 can remedy a deficiency in the specificity of the indictment." Id. at 690. Such is the case with

10 the current issue defendant raises regarding the "benefit" obtained.

11 Furthermore, in State v. Barker, the state challenged the court sustaining defendant's

12 demurrer to indictments charging him with Official Misconduct. 140 Or App 82, 84 (1996).

13 Defendant argued that "the facts on which he expects the state to rely at trail are insufficient to

14 prove the crime charged." Id. The court, however, held that the defendant's arguments about

15 what he expected the state to rely on at trail were premature and did not provide the basis for

16 sustaining a demurrer. Id. As such, the court reversed and remanded. Id. The State contends

17 that the same is true in the current case. Defendant's argument that discovery will not illustrate

18 what "benefit" he obtained is premature and thus does not support the basis for demurrer.

19

20 CONCLUSION

21 The defendant's demurrer should be denied because neither issue the defendant raised has

22 merit. ORS 162.415 is not unconstitutionally vague. Counts 2 and 4 of the indictment are

23 definite and certain, and any potential uncertainty can be remedied by pretrial discovery. As

24 such, the State requests that the defendant's demurrer BE DENIED.

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DATED this day of December, 2016.

By: Walter M. Beglau Marion County District Attorney

Kr' en . Hoffm , OSB #085338 Se or Assistant Attorney General and Special Deputy District Attorney for Marion County


Salem, Oregon 97302 (503) 378-6347


I hereby certify that I have made service of the foregoing RESPONSE TO DEFENDANT'S

DEMURRER for Marion County Circuit Court Case No. 16CR73159 on Michael De Muniz,

attorney for defendant, by emailing a true, exact and full copy and by service through Odyssey e-file

thereof on December 20, 2016, to said attorney at his last known email address, as follows.


Kr s = Ho fmey:, OSB #085338 Sr. Assistant Attorney General [email protected]



Salem, OR 97302 (503)378-6347

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