Wasco Co. DA race raises questions about eligibility

As per ORS 8.630, to be qualified to serve as DA, “A person elected district attorney must, at the time of election, have been admitted to practice in the Supreme Court of Oregon. District attorneys shall possess the qualifications, have the powers, perform the duties and be subject to the restrictions provided by the Constitution for prosecuting attorneys, and by the laws of this state.”

Marston is licensed in New Mexico, and practices at Marston Law Office, LCC, based in Ruidoso and Alburquerque (marstonlawoffice.com). He resides in Jefferson County, Ore.

On the day he filed for office, March 7, Marston also had a pending application to the Oregon State Bar for comity (reciprocity); this means he would be admitted due to his designation in another jurisdiction (admissions.osbar.org).

But comity requires an applicant’s name be published on the Oregon Secretary of State’s website 45 days prior to referral to the Oregon Supreme Court for admission for members to comment on the applicant’s suitability; Martson’s name had yet to be published as of April 7, meaning he missed the required 45-day window before election day.

Even if he had cleared the 45-day comment period, he would remain in the investigation stage with the bar, said Oregon Attorney Lissa Casey in a statement to Columbia Gorge News. “He has no indication from the bar when that will happen — that’s the main issue here," she said. "He cannot serve without an active license. He has no idea, nor do any of us, if he will have an active license on election day.”

Casey filed an Elections Division investigation with the Secretary of State April 7 regarding Marston’s run for DA, writing, “I believe that Travis Marston is holding himself out as an attorney to voters … I have not been able to obtain an answer to my satisfaction that Travis Marston will have an active bar license on election day, and I do not believe the voters understand the consequences of Mr. Marston having filed as late as he did to run as a candidate for DA.”

While Marston also applied for and received a temporary Oregon Bar license under the supervision of Oregon State Bar Member James Habberstad on the same day he filed for office, that alone does not make him eligible to be sworn in May 21.

Oregon Bar Association’s Temporary Practice Program FAQ sheet, question 12, reads, “Are temporary licensees members of the Oregon State Bar? Answer: No. Temporary licensees have a pending membership pursuant to an application for admission. They are authorized by the Oregon Supreme Court to practice law in Oregon, under the supervision of an active Oregon State Bar member, while that membership is pending. Licensees do not have access to any of the benefits available to members during this time …”

“To be district attorney, Oregon law requires you to 1) be an Oregon resident and 2) have an active bar license on election day,” Casey said. “The law is clear. This is not a ‘gray area’ of Oregon law that the Secretary of State needs to clarify, as Mr. Marston recently told the public. It would not be ‘better’ if Marston had an active license on election day. A temporary license is not an active license. An active license is a requirement to be district attorney, not an option.   

“A temporary license on election day means that Marston could not take the oath of office,” Casey said. “At this point, he’s holding himself out to voters as an Oregon attorney, being able to serve on election day, which is why I filed the request with the Secretary of State. Wasco County voters do not understand that right now Marston is asking them to take a chance that he will be able to serve as their elected district attorney, while pretending that it’s a certainty he can.”

Because Marston has until May 21 to be registered as an active member of the Oregon Bar Association, it is possible he will be eligible, which is why he was able to file. Laura Kerns, communications director, Oregon Secretary of State, clarified for Columbia Gorge News that if a candidate has an active license to practice in the Oregon Supreme Court of Oregon by election day, that candidate is eligible for office.

But if not, they “would not have the statutory qualification for election and would be unable to accept the office,” she said.

If Marston is elected but unable to serve, the seat becomes vacant when current Wasco County DA Matthew Ellis’ term ends Jan. 1, allowing Gov. Tina Kotek to appoint any lawyer licensed in the state to fill the position.

As for Davis, Marston’s challenger, the question into whether or not he will be able to take office detracts from conversations about the issues facing Wasco County residents.

“I wish Mr. Marston had chosen to apply for his membership into the Oregon Bar when he announced he was running in August 2023,” Davis said. “Or when he moved back to Oregon years ago. I would much rather be having discussions on the issues than the fact that Mr. Marston is not a member of the Oregon State Bar.”

Columbia Gorge News reached out to Marston four times by phone and email, but he did not respond to requests for comment. The Save Wasco County PAC chair likewise did not respond.