Item 3A: Approval of City Council Minutes

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right to legal representation. She said the amendment provided due process and pointed out that all of the crimes listed in the ordinance were punishable by law. Councilor Pryor asked if there was a point at which traffic offenses would result in the City providing an attorney. He said there were now cases coming before Municipal Court that were relatively serious, but the City was not requiring that an attorney be provided. He asked if there were problems adjudicating those cases when people did not have representation. Mr. Barkovic said if a person was charged with a crime they were entitled to a court-appointed attorney at the outset; if the matter was a violation and not a crime there was no entitlement to an attorney appointed at public expense, although the person could hire their own attorney. He said that system has worked well and there was no ambiguity about who did and did not qualify for attorney representation at public expense. He said the offenses under the exclusionary zone were both crimes and violations, and if the underlying case was a crime, the person would be entitled to a court- appointed attorney. He noted that as the ordinance was drafted no one, regardless of the offense, would qualify for an attorney at public expenses for the show cause hearing before the court. In response to a question from Councilor Pryor, Mr. Barkovic said that in instances where the underlying offense was elevated to the status of a crime, the constitutional right to a court-appointed attorney would pertain, but that would not apply to the civil exclusion. Councilor Zelenka asked for clarification that legal counsel was not required under the ordinance until the trial, regardless of the seriousness of the offense, and officers were not required to tell the person they could have an attorney with them. Mr. Barkovic said that was correct. He said the officer was not required to tell the person receiving the notice of exclusion that they had the right to have an attorney at the hearing. He said the person could bring their own attorney, but would not qualify for an attorney at public expense. Mayor Piercy clarified that the judge would make the decision to exclude and the officer would only provide notice that an exclusion order could be entered against the person. She asked Mr. Lidz to discuss applicable decisions by the Oregon Supreme Court. Mr. Lidz said the court had considered a case related to exclusion from Portland’s no prostitution zone; the person who had been excluded was also charged with prostitution and argued that double jeopardy applied since they had already been subjected to criminal punishment through the exclusion. He said the court disagreed and found that the exclusion was a civil remedy and not a criminal prosecution. Councilor Clark offered a friendly amendment to allow the officer to give the per- son notice of their right to have an attorney at a civil proceeding, but not one pro- vided by the City. Councilor Zelenka declined to accept the amendment. Judge Wayne Allen stated that people were informed in Municipal Court at the time of a hearing on any type of violation that they had the right to be represented by an attorney. He said providing an attorney at the hearing under the ordinance would be expensive, but it was a difficult issue because a person might say something at the hearing that could present a problem for them at trial. The motion to amend failed, 5:3; councilors Taylor, Bettman and Zelenka voting yes. Councilor Zelenka, seconded by Councilor Pryor, moved to add a new Section F to Section 4.875 requiring that the officer inform the person that they have a right to counsel at the hearing. Chief Lehner said that the written notice could contain that information.