Tim Leeds Havre Daily News tleeds@havredailynews.com
While the City of Havre on Aug. 6 hired an attorney to prosecute criminal cases after being without one for five weeks, the city judge said the lack led to the dismissal of 30 or more cases and is still causing scheduling problems for her court. “Every single year the court is at the mercy of the city to have a prosecutor,” Judge Joyce Perszyk said. “The court can’t hire a prosecutor. The court is out of business when we don’t have one.” Tamara Barkus’ contract to act as city attorney to prosecute criminal cases expired June 30. The approval of a new contract for the prosecutor did not appear on the Havre City Council agenda until July 16. At that time the attorney Mayor Bob Rice had selected to appoint to the position, Carl White, withdrew his bid. The city did not appoint a prosecuting attorney until Aug. 6, when Barkus was appointed under a contract good through June 30, 2008. Barkus declined to comment and White did not return calls asking for comment. Comments From Rice were not available by press time. Having to reschedule cases in July and early August led to another problem, Perszyk said: The court schedule is nearly full for another four months. That makes it difficult to schedule new cases or reschedule existing hearings and trials, Perszyk said. Council member Terry Schend said he thinks the issue was handled properly. No one responded in time for the first advertised deadline to bid on the position, and when bids were received by a second deadline, the issue was put on the agenda, he said. Once White withdrew his bid, the issue was handled properly Schend said. He said that because the remaining bids were higher than what the city had paid in the past, renogiation was needed. “The process was back on the table either to renegotiate or rebid,” he said. “ It was efficiently done and we have no regrets with the decision that was made.” The original deadline to bid on the contract was by 3 p.m. June 25. City Clerk Lowell Swenson said Barkus submitted a bid on June 25, but missed the 3 p. m. deadline so her bid couldn’t be considered. The city reopened the bid with a deadline of 5 p.m. June 29, he said. White’s bid listed during the July 16 council meeting was $36,000 and Barkus’ bid, the second lowest of four, was $51,600. The contract with Barkus approved in August was for $46,000. The city contract for Barkus’ services as prosecutor in 2006- 2007 was $36,000, Swenson said. On July 16, the council approved a $40,000 contract with Bosch, Kuhr, Dugdale, Martin and Kaze to perform civil work for the city. Council member Pam Hillery she thinks the City Council was “blindsided” by what happened. She said she hopes that in the future the process to select a prosecutor for the city can start earlier in the year. Having an application deadline of June 25 for a contract that expires June 30 is too late, she added. “As far as I know this happens year after year, it’s just this year it really caught us,” she said. “ We don’t give ourselves enough time to do this and I don’t know why we don’t give ourselves enough time.” Perszyk said that several times in the last six years or so the prosecutor has not been selected before the previous contract expired. This is the first time it has caused cases to be dismissed, she said. State law requires that the court try misdemeanor cases within six months of the defendant making a plea unless the request for a continuance comes from the defendant, Perszyk said. When trials in July and the first week of August were at the six-month deadline, the cases had to be dismissed because of the lack of a prosecutor, she said. “If the court can’t get it into the calendar in six months, it’s gone,” she said. Other cases had to be dismissed because of the lack of a prosecutor during omnibus hearings, in which hearings and trials are scheduled and change of pleas or plea agreements might be worked out, she said. She said that the fact she had scheduled lightly in July to make up for attorneys being out of town for meetings and vacations helped minimize the problem, but some cases could not be continued. Another complication was the death of Perszk’s husband, Joe Perszyk, in an ATV crash on June 27. Following his death, Joyce Perszyk did not hold court until July 17. Perszyk said she can’t say exactly how many cases were dismissed because of a lack of prosecutor her computerized record system is not arranged to retrieve that information or exactly what charges were dismissed. She said she does know at least 30 were dismissed, including charges of driving under the influence of intoxicants and drug charges. Having to dismiss those charges really bothered her, she added. Havre Chief of Police George Tate said that while his department was concerned about the lack of a prosecutor, he hasn’t heard any specific complaints from his officers about how it was handled. “There was concern over what was going to happen with violent offenses, but I believe all those were prosecuted,” he said. “The officers did their job as far as writing the citations and being available to testify.” Perszyk said during a meeting after White withdrew his bid that Montana law requires the city to have one city attorney who prosecutes criminal cases and handles civil matters for the city, along with other duties prescribed by state law. She said the law also requires a two-year contract for the city attorney. Attorney Jim Kaze said that doesn’t apply to the work performed by Barkus or his firm, Bosch, Kuhr, Dugdale, Martin and Kaze, which also contracts with the city. Kaze said that he is the city attorney, while his firm and Barkus are not. They are simply doing work under contracts with the city, he said. Council member Jack Brandon said that what happened this year with appointing the prosecuting city attorney needs to considered in future years to make sure it doesn’t happen again. “We definitely need to take care of it earlier,” he said. “If there’s a problem changes need to be made.” Council member Gerry Veis said that the issue is over and done and is no longer an issue. “Was it properly done? That’s not for me to judge,” he said. In any issue, the city should always try to take appropriate steps and make sure the issues are dealt with in a timely manner, Veis said. He said the issue of the city attorney was better handled by the city than The Havre Daily News’ handling of a lawsuit against the City of Havre. The newspaper pursued a “poorly researched” and unwinnable lawsuit that cost the taxpayers $22,000, he said. He was referring to a lawsuit filed in 2004 in which the Havre Daily, joined by other newspapers in the state and groups including The Associated Press, the Montana Newspaper Association and the Montana Broadcasters Association, asked that The Havre Daily be given a complete copy from the Havre Police Department of a report of an incident in which names had been blacked out. The newspaper also asked that a procedure be put in place governing how the Havre Police Department releases such reports. The city released the complete report after the lawsuit was filed. District Court Judge David Rice ruled that the situation did not warrant requiring the city to establish procedures about releasing information but the news groups should recover their attorney fees paid to the point the report was given to them. After the decision was appealed, the Montana Supreme Court in a 5-2 decision in August 2006 agreed with Judge Rice that point was moot because the report was released to the paper but the news groups would recover part of their attorney fees. The majority also ruled that the situation did not warrant establishing procedures for a hypothetical situation the newspaper did not prove would actually happen. In the dissenting opinion Justices James Nelson and Patricia Cotter said there should be procedures established. “Simply put, the newspaper should not have been forced to sue to exercise the constitutional right to know,” Nelson wrote.
