Courts

Tuesday, March 28, 2017

Ruling Puts Martens Up For Endangered Species Reconsideration

Posted By on Tue, Mar 28, 2017 at 2:06 PM

A young coastal marten. - COURTESY OF EPIC
  • Courtesy of EPIC
  • A young coastal marten.
The U.S. Fish and Wildlife Service will likely need to revisit providing endangered species protections to the coastal marten after a federal court judge today overturned the agency’s decision not to list the small woodland creature.

The Environmental Protection Information Center and the Center for Biological Diversity had sued the service after the latter unsuccessfully petitioned for the protections back in 2010.

Once thought to be extinct, the cat-like animals — also known as the Humboldt or Pacific marten — were rediscovered in 1996 after years of pelt hunting and timber logging decimated the old growth forest denizens' numbers.

“The magic of the Endangered Species Act is that it puts scientific facts over political games,” said Earthjustice attorney Greg Loarie, who represented the groups. “No amount of spin will change the fact that coastal martens are already gone from over 80 percent of their historic range and at serious risk of extinction unless the Fish and Wildlife Service steps up."

Read the full press release from EPIC:
In response to a lawsuit brought by the Center for Biological Diversity and Environmental Protection Information Center, a federal judge today overturned an April 2014 decision by the U.S. Fish and Wildlife Service denying endangered species protection to coastal martens.

Coastal martens were believed extinct until 1996 because of historic fur trapping and loss of their old-growth forest habitats, but are now known to occur in three small, isolated populations in California and Oregon. The groups were represented by the public-interest law firm Earthjustice.

“We’re thrilled the elusive coastal marten is back on track to getting the endangered species protection it so badly needs,” said Noah Greenwald, endangered species director at the Center for Biological Diversity. “The science is clear that these fascinating and beautiful animals have been reduced to small, isolated populations and face a host of threats that place them at risk of extinction.”

Small carnivores related to minks and otters, coastal martens are found only in old-growth forest and dense coastal shrub in Northern California and southern and central coastal Oregon. Once extensively trapped for their fur, the cat-like animals were once common; now fewer than 100 of them survive in California, while an unknown but very small number are still found in Oregon.

“The magic of the Endangered Species Act is that it puts scientific facts over political games,” said Earthjustice attorney Greg Loarie, who represented the groups. “No amount of spin will change the fact that coastal martens are already gone from over 80 percent of their historic range and at serious risk of extinction unless the Fish and Wildlife Service steps up."

The martens’ historic range extends from Sonoma County in coastal California north through the coastal mountains of Oregon. Humboldt martens were rediscovered on the Six Rivers National Forest in 1996. Since then researchers have continued to detect martens using track plates and hair snares. In 2009 a marten was detected in Prairie Creek Redwoods State Park by remote-sensing camera, the first to be photographed in recent times. Martens are typically 2 feet long and have large triangular ears and a long tail; they eat small mammals, berries and birds and are eaten by larger mammals and raptors.

“This decision is a win for science and common sense,” said Rob DiPerna, California forest and wildlife advocate at the Environmental Protection Information Center. “We thought we'd lost the marten due to bad human decision-making once before, and we could not stand by and watch that happen again.”


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Deputy Public Defenders Tell Supes New Boss is 'Unqualified'

Posted By on Tue, Mar 28, 2017 at 9:29 AM

Public Defender staff gathered with now retired Public Defender Kevin Robinson (center).
  • Public Defender staff gathered with now retired Public Defender Kevin Robinson (center).
In an unprecedented move, all nine Humboldt County deputy public defenders sent a letter to the Board of Supervisors on Friday urging it to reconsider the recent hiring of their boss, Public Defender David Marcus.

“We, the undersigned, write this letter to express our belief that David Marcus is not qualified for the position of Humboldt County Public Defender,” the letter states, going on to contend that Marcus’ lack of experience and expertise “not only jeopardizes the rights of our clients to the effective assistance of counsel, but puts staff at risk of unhealthy and unethical work conditions.”

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Saturday, March 18, 2017

Alleging Public Defender is Already Failing Clients, Attorney Asks to Fast Track Lawsuit

Posted By on Sat, Mar 18, 2017 at 3:40 PM

FILE
  • file
Eureka attorney Patrik Griego is asking a judge to expedite the process of determining whether newly hired Humboldt County Public Defender David Marcus meets minimum state qualifications to hold the post.

Griego, who filed a lawsuit earlier this month challenging the county’s controversial hiring of Marcus, is asking a Humboldt County Superior Court judge to allow him to serve subpoenas immediately, forgoing the 20-day waiting period usually required in similar cases. In a motion filed with the court Friday, Griego argues it’s imperative that the case be resolved quickly, alleging Marcus is already making mistakes that compromise his clients’ rights.

“He has appeared in court unprepared and has failed to secure continuances for clients based on a failure to follow court rules,” Griego writes in the motion, adding that “attorneys working for Mr. Marcus are gravely concerned about the well-being of the office and the indigent clients it serves.”

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Friday, March 10, 2017

Griego Files Suit Challenging Public Defender Hire

Posted By on Fri, Mar 10, 2017 at 1:29 PM

David Marcus - SCREENSHOT FROM THE LASSEN COUNTY TIMES DIGITAL ARCHIVES
  • Screenshot from the Lassen County Times digital archives
  • David Marcus
Local attorney Patrik Griego followed through this morning on his threat to file a petition with the Humboldt County Superior Court asking a judge to step in and block the county’s recent hire of David Marcus as its next public defender.

The petition for a writ of mandate, filed as a public interest lawsuit, alleges that Marcus does not meet the minimum qualifications for the position required by the state as outlined under Government Code Section 27701. The code specifies that a public defender hire must have spent the year preceding his or her appointment as a practicing attorney in all the courts of the state.

Marcus served as Lassen County’s public defender from 2005 to 2011, when he left, reportedly to take a job as CEO of a dental clinic. In his resume submitted to Humboldt County, he indicates he worked for the Walnut Creek law firm Cella, Lange and Cella from 2012 through 2016 as a contract attorney while living in Florida. But it’s unclear exactly what he did for the firm, and Griego alleges he doesn’t meet the minimum qualification of having been a practicing attorney in all the state’s courts for a year prior to his hire.

Specifically, Griego alleges Marcus has not practiced in any criminal, juvenile, family law or conservatorship court — or any other in the state — since his departure from Lassen County.

After meeting in closed session Tuesday to discuss Griego’s threat of litigation, the Humboldt County Board of Supervisors issued a press release touting Marcus’ more than 20 years of experience in criminal law — in Lassen County and as a deputy public defender in San Bernardino — and stating that he “has significant criminal law experience and meets all statutory requirements for the position.”

In his filing, Griego points to a letter of opposition the California Public Defender’s Association submitted to the state Legislature back in 2011, when it was considering a bill that would allow superior court judges to be eligible for public defender appointments.

“While each office of the public defender in California is unique, two things are consistent,” the quoted portion of the opposition states. “Entry level deputy public defenders are not assigned cases for which more senior level public defenders are more adequately qualified and every chief public defender has at a minimum several years of practicing in criminal cases immediately prior to being appointed or elected chief public defender. These consistencies are not coincidental, bur rather necessary to ensure that indigent defendants we are tasked with representing are providing zealous advocacy required by the Constitution.”

Griego’s petition is filed on behalf of John Does 1 through 10, unnamed people currently represented by the public defender’s office. Unless the board of supervisors is “compelled to comply” with the government code, Griego argues, the petitioners will be deprived of their due process rights and right to counsel guaranteed under the 14th and Sixth amendments to the Constitution.

Attempts to reach Marcus for this story were unsuccessful.

If Griego's suit is successful, the county could be deemed liable for his attorney fees.

See past Journal coverage of Marcus’ hire and the controversy surrounding it here. And find a copy of Griego’s court filing here
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Tuesday, March 7, 2017

Supes Support Marcus, Face Lawsuit by Week's End

Posted By on Tue, Mar 7, 2017 at 4:25 PM

FILE
  • file

The Humboldt County Board of Supervisors is standing by its newly hired public defender, even if it’s a stance that will soon land it in court.

The board met in closed session this morning to discuss a local lawyer’s threat that he would ask a Humboldt County Superior Court judge to step in and block the county’s hiring of David Marcus as its new public defender unless the board backed away from the hire or proved Marcus meets the state’s minimum qualifications for the post. Immediately after adjourning from closed session, the board sent out a press release defending Marcus and his qualifications.

“Mr. Marcus has significant criminal law experience and meets all statutory requirements for the position,” the board stated. “We look forward to working with him as our public defender.”

Marcus' hiring has come under a spate of fire from local defense attorneys, who first criticized the hiring process — in which the board sought input from an advisory panel made up primarily of law enforcement officers and the county’s chief prosecutor — and later took aim at Marcus’ resume. Marcus, who served a controversial tenure as Lassen County’s public defender, has not practiced criminal law in five years, during which time he reported working as a contract attorney for a Walnut Creek firm while living in Florida.

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Fart Smell to Linger in Elections Material

Posted By on Tue, Mar 7, 2017 at 3:47 PM

McClure holds a prop as he waits for his case to be heard. - LINDA STANSBERRY
  • Linda Stansberry
  • McClure holds a prop as he waits for his case to be heard.
Judge Timothy Cissna ruled this afternoon that the phrase "insert fart smell here," will remain in special elections material to be distributed to Southern Humboldt voters this spring. The phrase was written by Scotty McClure as a rebuttal to arguments in favor of Measure W, a parcel tax intended to fund the rebuilding of the Jerold Phelps Community Hospital in Garberville.

Representing the county elections office, Deputy County Counsel Joel Ellinwood said the county registrar of voters, Kelly Sanders, found the language inappropriate to be distributed to taxpayers with taxpayer money, and was asking the court to rule on whether or not the phrase could be deleted.

"A ballot pamphlet is not an unobstructed forum for free speech," argued Ellinwood. "It is a limited forum."

Ellinwood cited state elections code section 9380, which says a judge may issue a "peremptory writ of mandate or an injunction ... upon clear and convincing proof that the material in question is false, misleading, or inconsistent."

Ellinwood then attempted to convince Cissna that the phrase "insert fart smell here" met that criteria.

"Mr. McClure's rebuttal ... is a vulgarity that expresses contempt for the whole process," Ellinwood said, explaining that McClure's original statement against Measure W, which cited a history of over-taxation in Southern Humboldt and dismay at the measure's 45-year shelf life, could stand alone. The fart joke, he says, does not add anything to the process, and it was unfair to ask the elections office to distribute pamphlets using taxpayer money that had the word "fart" in them.


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Friday, March 3, 2017

Supes to Discuss Threatened Public Defender Lawsuit Tuesday

Posted By on Fri, Mar 3, 2017 at 4:29 PM

David Marcus - SCREENSHOT FROM THE LASSEN COUNTY TIMES DIGITAL ARCHIVES
  • Screenshot from the Lassen County Times digital archives
  • David Marcus
The Humboldt County Board of Supervisors will convene in closed session Tuesday to discuss its newly hired public defender, whether he is qualified to hold his post and whether it should brave the threat of a lawsuit in order to keep him.

As we reported Wednesday, local attorney Patrik Griego sent the county a letter threatening litigation if it doesn’t prove that David Marcus is qualified to hold the position of public defender or remove him from it.

Marcus, who was appointed to the post Feb. 7 and started work Monday, has come under fire from members of the local defense bar who think the process used to hire him was tainted and are concerned about several aspects of Marcus’ resume. (Read more about this in past Journal coverage here.)

Now, Griego has raised the question of whether Marcus is legally qualified to hold the post. California Government Code Section 27701 holds that a person is not eligible to take the office of public defender unless he or she “has been a practicing attorney in all of the courts of the state for at least the year preceding” his or her appointment. As we’ve reported before, it’s not entirely clear what Marcus has been doing since leaving his position as Lassen County’s public defender in 2011. He has retained his active California bar license but has been living in Florida and apparently not practicing criminal law.

Despite numerous requests from the Journal, County Counsel Jeff Blanck has not returned calls seeking comment about Marcus’ qualifications or Griego’s threat. Griego declined to comment when contacted by the Journal today, but said earlier this week that if the county doesn’t show that Marcus is qualified or let him go, he intends to ask a Humboldt County judge to intercede and block the appointment.

Read more about Marcus and the threat of litigation in past Journal coverage here.

The issue appears on the supes' agenda as a conference with legal counsel regarding threatened litigation.
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Wednesday, March 1, 2017

Attorney to County: If New Public Defender is Qualified, Prove it or Face Lawsuit

Posted By on Wed, Mar 1, 2017 at 1:17 PM

THINKSTOCK
  • Thinkstock
A local attorney is threatening legal action if the county of Humboldt doesn’t remove newly hired Public Defender David Marcus from his post or prove that he’s qualified to hold it.

After a controversial hiring process, the Board of Supervisors appointed Marcus to the post Feb. 7 and his first day on the job was Monday. But on Tuesday, local attorney Patrik Griego, of the firm Janssen and Malloy, hand delivered a letter to county counsel’s office alerting it to the fact that Marcus’ hire may have violated California Government Code Section 27701, which lays out the minimum qualifications for a public defender in the state.

The Journal emailed County Counsel Jeff Blanck about the code section as it relates to Marcus’ hire on Friday afternoon and then followed up with phone calls Friday, Monday and Tuesday but has so far received no response.

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Tuesday, February 28, 2017

Settlement Next Step in Magney End-of-Life Care Case

Posted By on Tue, Feb 28, 2017 at 9:00 AM

Dick and Judy Magney around the time they met in 1992 - PHOTO COURTESY OF JUDY MAGNEY
  • Photo courtesy of Judy Magney
  • Dick and Judy Magney around the time they met in 1992
A scathing appellate ruling that found officials with the county of Humboldt overstepped their bounds and misrepresented evidence to the court when they interfered in a Carlotta couple’s end-of-life medical decisions became final yesterday.

That sets the stage for attorney Allison Jackson, who represented Dick and Judy Magney in the case, to begin settlement talks — a process that she said will start with a letter being sent to the board of supervisors this week “in order for them to understand the gravity and significance of this decision.”

Almost exactly two years have passed since Adult Protective Services began a March 2015 investigation into never pursued or substantiated reports of possible caretaker neglect after Dick Magney — then 73 and in failing health — was admitted to the hospital.

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Tuesday, February 21, 2017

Defense Attorneys Urge Supes to Scrap Public Defender Hire, Start Over

Posted By on Tue, Feb 21, 2017 at 2:03 PM

THINKSTOCK
  • Thinkstock
It’s very hard to say exactly what recently hired Public Defender David Marcus has been doing for the last five years since his controversial tenure leading Lassen County’s defense services for the indigent came to a close.

The resume Marcus submitted to the county indicates that, since leaving Lassen County in 2012, he has worked for the firm Cella Lange and Cella as a contract attorney, doing transactional real estate and property loss consulting. But that seems to raise more questions than it answers.

Google the firm’s name and you’ll find plenty of listings — on directory sites like lawyers.com — indicating the firm has a Walnut Creek address, but you’ll be hard pressed to find anything more. The firm has no website, and doesn’t seem to come up in any news stories or legal filings on the web. Google the firm’s name and Marcus’ together and you’ll get zero hits.

In an effort to find out more about the firm and Marcus, the Journal called it directly, twice, telling a receptionist we were hoping to speak with someone who’s worked with Marcus or supervised him. No one returned the call. We called back saying we simply wanted additional information about the firm — things like how many attorneys it employed, how many offices it has and what areas of law it specializes in — and the receptionist said there was no one there who could answer those questions. Pressed, he said the firm specializes in “civil law” before assuring someone would return the Journal’s call. No one did.

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