An entire court calendar of criminal cases was dismissed from City of Wapato court proceedings in March after the city failed to replace a prosecuting attorney.
The attorney resigned because the city owed her $15,000 for her services.
A total of 33 cases were dismissed from the March 4 court calendar. Cases scheduled for the two following Monday court calendars — March 11 and March 18 — were handled by prosecuting attorneys from Yakima County, who worked without compensation after Wapato Municipal Court administration reached out for assistance.
The situation has culminated in the three-month hiring of a Selah-based attorney, who will act as both the city’s prosecuting attorney and city attorney, until a permanent employee can be selected.
Wapato City Manager Juan Orozco, in a phone interview Monday, said the city “really didn’t miss a beat.” But Yakima County Prosecuting Attorney Joseph Brusic called the situation “serious” and “very concerning.”
“Without a city or prosecuting attorney, the cases can’t be prosecuted,” Brusic said. “Continued dismissals for criminal cases for Wapato would be disastrous.”
Orozco said on Tuesday that the dismissed cases from the March 4 court calendar will be refiled.
Criminal cases dismissed
The March 4 court calendar for Wapato held hearings on 33 cases, including criminal cases for driving under the influence, attempted theft, reckless driving and multiple cases of fourth-degree assault — a gross misdemeanor that is punishable by up to 364 days in jail and a $5,000 fine.
But there was no prosecuting attorney in the room when court proceedings began. Under Washington law, the absence of that attorney qualified as “nonfeasance” — a term encompassing governmental misconduct and negligence.
As a result, all the cases were dismissed.
Douglas Garrison, the judge presiding over Wapato Municipal Court proceedings, added to those dismissals the legal term “without prejudice” - meaning that the cases could be re-filed and heard again, at a later date.
“A defendant in any legal system has a constitutional right to be defended, but he or she does not have a constitutional right to be prosecuted,” he said. “It is up to the government, at any level, to see to it that accused persons are prosecuted within the bounds of the law.”
Garrison said that on Friday, March 8, he emailed the city clerk that Wapato still did not have a prosecuting attorney and was, once again, faced with the prospect of dismissing all cases on the March 11 docket.
Calling on Yakima County prosecutors
Enter Yakima County prosecuting attorneys.
Brusic, the lead prosecuting attorney for the Yakima County Prosecuting Attorney's Office, said he received a distraught call from Wapato Court Administrator Nona Jacobs-Cook following the March 4 dismissals. He said Cook was worried about the public safety aspect of dismissing criminal cases without proper hearings and wanted to make sure that the situation didn’t repeat itself March 11, the city of Wapato’s next scheduled court calendar date.
“I absolutely wanted to help her,” Brusic said. “We were talking about cases in the double figures being dismissed. That’s the public safety component, and what we strive to do every day in this office is provide public safety to every city in Yakima County.”
On March 11 and March 18, Brusic sent two deputy prosecutors from Yakima County to help with the city of Wapato’s court dockets. The prosecutors served without compensation of any kind from the city of Wapato.
Brusic then received a call on March 21 from Wapato Police Chief Dominic Rizzi, who asked if Yakima County could enter into a formal contract with the City of Wapato.
Brusic said no. Not under the given circumstances.
“They wanted us to send an attorney every Monday,” he said. “But they can’t contract with us as Yakima County as they would with a private firm.”
Brusic said the Yakima County Prosecuting Attorney Office can cover cases throughout Yakima County, of which Wapato is a part. But any formal agreement would require that the City of Wapato have a city-sponsored city attorney, hired by the municipality and approved by the city council.
Accepting the handling of Wapato’s caseload also would require a ruling of declaratory judgment from a Superior Court Judge, permitting that the cases be moved to district court, Brusic said. Declaratory judgments define the legal relationship between parties and their rights.
“I was willing to help with the emergency cases, but we can’t do it over the long term,” Brusic said. “I provided two deputies on two separate occasions, but we are not the city attorney for Wapato. A city can’t dissolve its municipal court just because it doesn’t want to have court.”
Brusic said he could accomplish the process of having the cases moved to district court “fairly quickly,” should the necessary steps be followed. But carrying additional cases also would come with a cost that would somehow need to be covered, Brusic added.
“If we are taking over prosecuting cases, they (the City of Wapato) would need to talk to us about a stream of revenue, based on their budget constraints,” Brusic said.
Brusic sent a letter to Orozco and Wapato Mayor Dora Alvarez-Roa on March 26 explaining that his decision to send deputy prosecutors to Wapato had been a matter of “absolute necessity.”
“I humbly believe countless more criminal cases would have been dismissed and victims would be without justice had our office not intervened on the 11th and 18th,” he wrote in his letter. “It is now my understanding that the City of Wapato, as of last Thursday, has hired an attorney to handle these cases.”
Brusic added that, while his resolve to assist Wapato residents “will not falter,” his office “cannot, as a matter of law” send any more prosecuting attorneys on behalf of the City of Wapato should the situation arise again.
Brusic also mentioned that the city of Wapato has been looking into moving its court to Sunnyside.
Orozco said the city council has granted permission for the city to begin “looking into that opportunity.” He also mentioned that Toppenish moved its court and said that doing so “made good sense.”
Martin Casey, the city manager for Sunnyside, said Monday that he has not received any word from the Wapato about interest in hiring out prosecuting attorneys — though Casey added he has been involved with discussions about moving the city of Wapato’s jail to Sunnyside.
Orozco said Tuesday that the city’s new prosecuting attorney will re-file the cases.
“We’re going to work with the new prosecutor we brought in,” Orozco said. “We really didn’t miss a beat. We’re on top of it.”
Garrison, the Wapato municipal court judge, said that all cases on the March 4 docket that were dismissed, with the exception of one, can be re-filed. The case that cannot be re-filed involved an individual charged with reckless driving and DUI.
“Our system is an adversarial one which requires a minimum of two persons to function,” Garrison said. “Had the city of Wapato been attentive to its most basic functions, this entire incident could have been easily avoided.
A prosecuting attorney fulfills multiple roles: representing the city in criminal cases, reviewing and signing citations and complaints, preparation of documents required by subpoenas, and preparation and maintenance of all files related to prosecution.
The attorney also must be available to a city’s police department for consultation regarding matters affecting criminal prosecutions and for providing feedback to the city’s police chief regarding the performance of city police officers in the discharge of their duties.
Wapato operated without its own prosecuting attorney for almost a month: from Feb. 28 to March 25.
A bit of background:
Former mayor Tony Guzman hired Tony Swartz to serve as the city attorney for a one-year contract, starting April 1, 2016. Swartz served for about two years and was succeeded in the fall of 2018 by Kathleen Hitchcock, who had previously served as a municipal court judge for the city for about four years. Given the potential for conflict of interest — that Hitchcock might have to prosecute cases over which she had formerly presided as judge — the city also brought in attorney Margita Dornay.
Orozco hired Dornay to serve as the city’s prosecuting attorney around August 2018, according to Cook. On Jan. 28, 2019, Dornay submitted an invoice to Wapato stating that the city owed her $15,000: $10,000 in pay for her services in November and December 2018 and a $5,000 flat fee. The letter requested full payment within 30 days.
The invoice was included with Dornay’s official letter of resignation, which Orozco provided to the Herald.
In her note to Orozco and Wapato Mayor Dora Alvarez-Roa, Dornay said she was providing 30 days of written notice of resignation pursuant to the terms of her contract. She said she submitted the invoice "hoping that the City can bring this account current" and noted that the last time she had been paid was in October 2018.
Dornay’s last day as prosecuting attorney for the City of Wapato was Feb. 28.
Dornay did not immediately respond to calls for comment. But Robert Noe, Wapato’s former city attorney, who also is married to Dornay, said Dornay left because “she wasn’t getting paid.”
Noe, who was hired as city attorney in December 2017, resigned in October 2018. Noe said he accepted the position with the understanding that he would be devoting about 20 hours of service a month to handling Wapato cases.
It quickly became clear to Noe that handling city matters, including a number of lawsuits, would require much more time than he was able to provide.
“With their legal issues, it was impossible to do their work in that window,” he said.
Noe said he was aware that Wapato interviewed a candidate interested in the city attorney position in November 2018. But ultimately, the city remained without a city attorney, and Noe said that was a problem.
“A city shouldn’t operate without legal counsel,” he said. “It can have a pretty significant impact for a city.”
In his letter to city administration, Brusic also stressed the importance of having an acting city attorney.
“As I know you agree, the residents of the City of Wapato and Yakima County deserve and have a right to a court system that holds offenders accountable and upholds the rule of law through effective prosecution,” Brusic wrote.
A temporary solution
Wapato went without a city attorney or a city-sponsored prosecuting attorney following Noe’s and Dornay’s resignations until the hiring of Theodore Schott, a Selah-based attorney, to serve both roles for a three-month period while the city “continues the search,” Orozco said.
Schott’s first day was March 25. The terms of his contract include a $50 hourly rate and reimbursement for food, lodging and travel expenses while on business for the city.
His responsibilities will include planning comprehensive legal services for the city, providing counsel to the mayor and city staff, representing the city at various court levels, prosecuting civil actions and violations of the city’s municipal code, and participating in the city’s short- and long-range planning to assure the proper consideration of legal issues, according to the contract.
Orozco said that three individuals have applied for the permanent positions of city attorney and prosecuting attorney. He also said he is considering combining the two roles.
“It’s important to me that we transition, but it also opens a door for us to explore opportunities,” Orozco said. “To save some money by combining those two, that’s the silver lining in this cloud.”
Brusic said that hiring one attorney would mean that person would represent the city in both criminal and civil matters. The city could, at its discretion, also hire an additional assistant city attorney to specifically handle the criminal docket.
“The benefit of one attorney is cost savings and all matters handled by the one attorney,” Brusic said. “The drawback would be the necessity of experience that attorney would have to have for both civil and criminal. They are not the same and both can be very difficult. “
In his letter to Wapato city administrators, Brusic also mentioned that if the city is unable to maintain employment of a city attorney, he will be “compelled” to eventually take appropriate legal action “to ensure criminals are held accountable and victims are protected” within the county he is entrusted to protect.
Editor's note: This story has been updated to add additional details from Margita Dornay's resignation letter in addition to the invoice she sent to Wapato city administration.