Does the DOJ have the right to investigate the Missoula County Attorney?

Yes, or Why Missoula County Attorney Fred Van Valkenburg is wrong. 

Eric Hines
Feb 18, 2014 · 4 min read

I am not a lawyer and the finer points of the law can elude me. However, I do not think it takes a sharp legal mind to realize that Missoula County Attorney Fred Van Valkenburg’s conclusion that federal investigators have no authority to investigate his office for its poor handling of sexual assault cases is legally dubious at best. It will also needlessly delay necessary reforms in Missoula Country Prosecuter’s Office (MCPO).

In their letter on their investigation to Van Valkenburg released last Friday, the Department of Justice responds specifically to his complaint (and lawsuit to that affect) that it lacked jurisdiction to investigate his office. The DOJ believes it has the authority “to investigate and to seek injunctive relief to remedy discriminatory conduct” from both the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14141) and the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3789d). A quick reading of the approprite sections of the federal code seems to back up the DOJ.

The Violent Crime Control and Law Enforcement Act of 1994 says:

(a) Unlawful conduct

It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.

(b) Civil action by Attorney General

Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) [1] has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.

Although the law does not address the issue of sexual assault procedures directly, it is clear that the MCPO meets the definition of a governmental authority subject to the law’s requirements and that those requirements are not just restricted to juveniles or to handling of juvenile sexual assault cases.

The language of the Omnibus Crime Control and Safe Streets Act of 1968 is more ambiguous. The first paragraph of the section the DOJ refered to in its letter seems to partially back Van Valkenburg up:

(a) General rule

Nothing in this chapter or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.

However, all this seems to say to me is that the DOJ cannot order Van Valkenburg to cooperate with the investigation or to implement its findings. It does not shield his office from investigation. More importantly, the law later says:

Discrimination prohibited; notice of non-compliance; suspension and restoration of payments; hearing; civil action by Attorney General; private action, attorney fees, intervention by Attorney General

(1) No person in any State shall on the ground of race, color, religion, national origin, or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under or denied employment in connection with any programs or activity funded in whole or in part with funds made available under this chapter …

(3) Whenever the Attorney General has reason to believe that a State government or unit of local government has engaged in or is engaging in a pattern or practice in violation of the provisions of this section, the Attorney General may bring a civil action in an appropriate United States district court. Such court may grant as relief any temporary restraining order, preliminary or permanent injunction, or other order, as necessary or appropriate to insure the full enjoyment of the rights described in this section, including the suspension, termination, or repayment of such funds made available under this chapter as the court may deem appropriate, or placing any further such funds in escrow pending the outcome of the litigation.

The MCPO claims it does not receive any funding from the law in question, but Missoula County, which the MCPO is a part of, does. As does the State of Montana, which Van Valkenburg claims has jurisdiction over his office. I do not see anything in the law that would excempt his office from compliance with the law or shield it from a civil rights suit by the DOJ. All the law says is that the political unit under investigation be given due process, which seems to be more than his office gave many victims of sexual assult in Missoula.

    Eric Hines

    Written by

    Political scientist, father, husband, policy wonk, cat lover, highly distractible