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A Mendocino County program that allows marijuana defendants to plead to lesser criminal charges in exchange for restitution payments is the subject of a lawsuit filed this week in Mendocino County Superior Court.

The lawsuit contends the program — which is unique to the Mendocino County District Attorney's Office — is "not simply unlawful, but criminal." It asks that it be halted and that the $3.7 million collected and distributed to law enforcement agencies since 2011 be returned to some 350 defendants who have paid into the program.

"The program constitutes an illegal criminal enterprise," Santa Rosa attorney Mark Clausen wrote in the lawsuit.

The program has been dubbed the "Mendo Shakedown" and described as a "Get Out of Jail Free" card for those who can pay, according to the lawsuit. It is being investigated by a federal grand jury, Clausen noted in the lawsuit<NO1><NO>.

The lawsuit names the program's creator, District Attorney David Eyster, as well as his office; the county of Mendocino; and Sheriff Tom Allman and his office, which has received the lion's share — about $3.3 million — of the restitution monies.

It also names state Attorney General Kamala Harris, because she's responsible for ensuring the sheriff and district attorney are not breaking the law, Clausen said.

"Harris has a clear ministerial duty to take appropriate action to terminate the program," according to the lawsuit. Clausen stated he expects that Harris ultimately will side with his lawsuit.

The Attorney General's Office did not return phone calls Friday seeking comment. Neither the Mendocino County counsel nor administrator could be reached Friday. Those county officials who were contacted declined to comment, citing pending litigation.

"The fact that a lawsuit has been filed prevents me from commenting," Allman said.

"We have no comment on a lawsuit citing the wrong state code, and filed by a twice suspended lawyer," District Attorney spokesman Mike Geniella said in an email.

Clausen, whose suspensions were related to failure to pay his state bar dues on time, currently is in good standing. He is representing part-time Mendocino County resident Mikalek Adams and the Green Bush, a group of Mendocino County property owners who advocate for an overhaul of marijuana laws, according to the lawsuit. Clausen said his clients do not wish to discuss the lawsuit.

None of the plaintiffs has utilized the restitution program, and Clausen said he expects the county to challenge his clients' standing in the case because they haven't been directly affected. But as taxpayers and citizens, they have a right to sue on behalf of the general public, which is affected by the program "because it destroys the appearance of fairness which our justice system demands," he said.

He said his clients are also suing on behalf of those who cannot afford to pay the fees, and as a result have been charged with more serious crimes, according to the lawsuit.

Eyster instituted the restitution program shortly after he took over the District Attorney's Office in 2011. It is aimed at — and by all accounts has been successful at — reducing the backlog of marijuana cases clogging the courts before Eyster took office. Eyster said he has reduced the time it takes for marijuana cases to be resolved to three months from 15, a feat lauded by supporters of the program.

The program is a hybrid he created by applying Welfare law to Health & Safety Code Section 11470.2. Under the program, defendants pay $50 per marijuana plant and $500 per pound of pot, typically in exchange for having their felony charges reduced to misdemeanor counts of possession of more than an ounce of marijuana.

The changes to Section 11470.2, after which the program is named, are many and they render the program invalid, according to the lawsuit.

The changes include collecting the restitution fees before, rather than after, convictions are obtained; eliminating a requirement to calculate actual costs generated by the drug activities; and allowing defendants to plead to lesser crimes if they pay restitution.

"The program completely conflicts with and is therefore invalidated by" the original Health & Safety code sections to which it is related, the lawsuit states.

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