OV judge dismisses trespass charges against 3 Maranans - Tucson Local Media: Pima Pinal

OV judge dismisses trespass charges against 3 Maranans

'Improper use of criminal process,' he writes

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Posted: Tuesday, October 20, 2009 11:00 pm

Three Marana residents cited for trespassing on a former public easement abandoned by the town of Marana have had criminal trespass charges against them dismissed by Oro Valley Municipal Court.

Judge George A. Dunscomb granted attorney Stephen Weeks' consolidated motion to dismiss the charges against Stephen Blomquist, Sharyl Cummings and Theresa Chamberlain. The judge not only granted the order, but also handwrote onto the order that the dismissal was granted "Pursuant to Rule 16.6D as the interests of justice requires it because the charges were an improper use of criminal process."

Weeks noted the judge granted the motion with prejudice, meaning the charges could not be refiled.

Blomquist and Cummings were first cited for criminal trespass May 27 when they used the abandoned easement, and again on May 29. Their third arrest, along with Chamberlain, came on June 1.

After the Marana Town Council abandoned the easement at its May 21 meeting, town attorney Frank Cassidy had directed that "anyone walking or driving as a member of the public on the portions of the easement located within the town limits of the Town of Marana will be treated as a trespasser, and will be subject to arrest and prosecution at the discretion of the investigating officer."

Marana had the cases transferred to Oro Valley in June because of a potential conflict of interest with a civil lawsuit the three had filed against the town. At the time, Jane Fairall, Marana deputy town attorney, said that while such transfers are not a common occurrence, "if someone is filing a civil lawsuit against us on the same issues, we always try to transfer the case, and vice versa, Oro Valley does the same thing."

Fairall also pointed out there was the potential that town employees could be called as witnesses in the cases.

Chamberlain called the Oro Valley decision "very clear, with no ambiguities to the order. We feel the outcome was just and are pleased with the court's sense of fairness and justice."

"Obviously, we disagree that it was an improper use of the criminal process," Fairall said. She noted that no arrests have been made "since these charges had been filed, although the police have been called out there." Fairall pointed out that if cases will not be prosecuted in either Marana or Oro Valley courts, then there's no reason to make any arrests on the easement for trespassing.

The civil lawsuit against Marana filed by Blomquist, Cummings, Chamberlain and Timothy Blowers is still pending, according to attorney Weeks. The lawsuits seeks a declaratory judgment "determining the easement is still a valid public easement for ingress and egress by members of the public," as well as for a permanent injunction prohibiting the town from citing people using the easement.

The four individuals also are plaintiffs in a lawsuit against Saguaro Ranch owner Stephen Phinny, who they say began blocking access to the easement in early 2008.

The easement, essentially a loop road, has been used since the 1960s by the property owners in the area to get into what is now Tortolita Mountain Park, according to the plaintiffs in the case. Another access to the park is off Como Road on the east side of the Saguaro Ranch development.

The lawsuit against Phinny and Saguaro Ranch is now being heard in US Bankruptcy Court because Phinny and the ranch each filed for Chapter 11 bankruptcy protection.

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