Oregon State Bar
1999 House of Delegates Meeting

Seaside Civic & Convention Center
415 First Avenue
Seaside, Oregon

Saturday, September 18, 1999, 10:15 a.m.

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Dear OSB Member:

Enclosed is your agenda for the 1999 OSB House of Delegates Meeting , which will be Saturday, September 18, 1999, at the Seaside Civic & Convention Center. It begins at 10:15 a.m. Although only delegates may vote on the resolutions, members are encouraged to participate in the discussion and debate of these items. If you are unable to attend, please contact one of your delegates to express your views on the resolutions. Delegates are listed in the August/September issue of the Bulletin and on the bar’s web page(www.osbar.org).

Matters that will be considered by the HOD include an increase in the annual membership fee for members who do not pay by the due date, amendments to DR 5-106 (Mediation) and DR 8-101 (Actions as a Public Official), support for low-income legal services funding, opposition to certain 'victim’s rights' ballot measures, and recognition of two lawyer-legislators. The full text and explanatory statements for the resolutions are in the enclosed agenda. Also enclosed is a notice of items excluded from the agenda. If you have any questions about the House of Delegates meeting, contact Sandy Hise, Executive Assistant, at 800-452-8260 or (503) 620-0222, ext. 386, or by e-mail at shise@osbar.org.

I also encourage you to attend the Annual Awards Luncheon, which will be from 12 noon to 1:30 p.m. on Thursday, September 16 at the Oceanview Resort in Seaside. Tickets ($22 per person) can be obtained by calling Jennifer Maldonado at ext. 377. Our special award honorees are:

• Award of Merit: Carl M. Brophy, The Honorable George Manley Joseph and Grace K. Williams
• President’s Affirmative Action Award: David F. Bartz, Jr., Barrie Herbold, The Honorable Janice Wilson.
• President’s Membership Service Award: M. Elizabeth Duncan
• President’s Public Service Award: Brian G. Booth, Alex Byler, William D. Cramer, JanMarie Dielschneider, Stacy Hankin, Donald L. Krahmer, Jr., Steven Lippold and Judith H. Uherbelau
• President’s Special Award of Appreciation: Linda Clingan

I look forward to seeing you in Seaside!

Mark A. Johnson, President
Oregon State Bar

OREGON STATE BAR

1999 House of Delegates Meeting
Seaside Civic & Convention Center
415 First Avenue
Seaside, Oregon
Saturday, September 18, 1999, 10:15 a.m.
Presiding Officer: Mark A. Johnson, President, Oregon State Bar

Agenda

1. Call to Order—Mark A. Johnson

2. Overview of Parliamentary Procedure—Mark A. Johnson

3. Report of the President—Mark A. Johnson

4. Adoption of Final Meeting Agenda—Mark A. Johnson

5. Report of the Chair of the BOG Budget and Finance Committee—Lawrence B. Rew

 

Items with Financial Impact

6. 2000 Fee Resolution

7. Proposes membership survey on disability

Other Resolutions

8. In Memoriam

BOG Resolution No. 2

Presenter: Mark A. Johnson

9. Amends HOD Rule of Procedure 10.1

BOG Resolution No. 3

Presenter: Agnes Sowle

10. Amends DR 8-101 and DR 5-105(G)

BOG Resolution No. 4

Presenter: David W. Hittle

11. Amends DR 5-106 and DR 10-101  page

BOG Resolution No. 5

Presenter: Hon. Kristena A. LaMar

12. Supports adequate funding for low-income legal services

BOG Resolution No. 6

Presenter: Edwin A. Harnden

13. Creates HOD listserves

Delegate Resolution No. 1

Presenter: Robert C. Hansen

14. Creates a BOG/HOD Annual Meeting study group

Delegate Resolution No. 2

Presenter: Charles R. Williamson

15. Expresses appreciation to Senator Kate Brown and Representative Lane Shetterly

Delegate Resolution No. 3

Presenter: Charles R. Williamson

16. Directs oversight of PLF lobbying

Delegate Resolution No. 5

Presenter: Stephen V. Piucci

Notice of Excluded Items

 

Items with Financial Impact

Resolved, that the 2000 annual membership fees and Client Security Fund assessment be unchanged from 1999, except for payments of the fees not made by the due date, and shall be as follows:

Presenter: Lawrence B. Rew

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Whereas, the incidence of disability among lawyers and the level of disability access within the legal community and justice system are of great significance to the Oregon State Bar insofar as its missions to regulate and to educate Oregon lawyers;

Whereas, the level of disability access for the public within the legal community and justice system is of great significance to Oregon lawyers and is consistent with the mission of the Oregon State Bar to promote access to justice;

Whereas, the Oregon State Bar, its members, and the public have benefitted from such projects as the Diversity Summit, the Gender Fairness Task Force, and OSB membership surveys;

Whereas, to date there has not been a comprehensive survey on disability incidence, access and concerns within the legal community and justice system in Oregon;

Whereas, the Disability Law Section has determined that a comprehensive survey on disability issues will assist the Oregon State Bar in its missions above-stated, and the Section seeks responsibility to undertake such a survey in order to obtain baseline data on disability issues within the legal community and justice system; now, therefore, be it

Resolved, that the Oregon State Bar, by and through the Disability Law Section, shall sponsor a comprehensive survey of its active Oregon members, to determine the incidence of disability and disability concerns among its members; the level of disability access and disability concerns within the legal community and justice system; and related issues; and the findings will be published for the benefit of the Oregon State Bar, its members, and the public.

Presenter: Kathleen O’Brien

Financial Impact

The sponsor proposes a 40-question survey to all active Oregon State Bar members who have their principal office in Oregon. Estimates were obtained from professional research firms for the proposed survey, which range from $12,000 to $24,000 including the cost of mailing. The cost per member would be $1-$2.

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Other Resolutions

Resolved, that the OSB House of Delegates and members assembled stand for a moment of silence in honor of the members of the Oregon State Bar whose deaths have been reported since the 1998 House of Delegates Meeting.

C.F. Addison, Salem

Sehar S. Ahmad, Pittsburg, Pennsylvania

Harry T. Allan, Amherst, Massachusetts

John H. Arenz, Portland

Lowell D. Barr, Salem

William L. Beatty, Portland

Metta B. Beeman, Salem

Richard D. Bennett, Lincoln City

Arthur V. Biggs, Portland

Harry D. Boivin, Medford

Robert D. Boivin, Klamath Falls

William H. Boland, Portland

Mervin W. Brink, Hillsboro

Gene L. Brown, Grants Pass

Kevin W. Carey, Denver, Colorado

Robert G. Chidester, Beaverton

Stanley R. Church, Warrenton

B. E. Comerford, Portland

Lorna Gene Dale, Bend

Frank S. Delia, Bellevue, Washington

Fred K. Deuel, Medford

Hon. Patrick E. Dooley, Gearhart

John T. Flaherty, Vancouver, Washington

James O. Goodwin, Sun City West, Arizona

Theodore Heap, Portland

Carl G. Helm, La Grande

Martin J. Hoffman, Philomath

Thomas A. Huffman, Hillsboro

Garland D. Hunter, Eugene

John S. Hutson, Vancouver, Washington

Darrel L. Johnson, Tigard

Hon. Folger Johnson, Portland

Ira W. Jones, Salem

Earl C. Kamsky, Portland

Richard W. Kapranos, Portland

Stephan Z. Katzan, Los Angeles, California

Daniel P. Keohane, Roseburg

Stephen M. King, Missoula, Montana

Keith T. Kramer, Coquille

Dwight Lear, Salem

Gordon L. Macpherson, Newport

Linden R. Martin, The Dalles

Janet S. McCoy, Salem

Harold C. McLean, Bend

Robert W. McMenamin, Beaverton

Raymond F. Mensing, Portland

Eric E. Merk, Portland

Hon. Robert L. Mills, Milwaukie

Sheila Anne Murphy, Keaau, Hawaii

Don A. Olowinski, Boise, Idaho

Beldon E. Owens, San Diego, California

William G. Paulus, Salem

Gerald R. Pullen, Portland

R. A. Rawlinson, Wilsonville

Alexander J. Rering, Ft Lauderdale, Florida

Eugene K. Richardson, Newport

Lorin M. Ricker, Enterprise

Alexander Schneider, Portland

Frances K. Schulte, Beaverton

Mildred A. Schwab, Portland

Harry G. Spencer, Salem

Hon. Frederic H. Starkweather, Gold Beach

Edward D. Stubbs, Gresham

Robert M. Stults, Mazatlan, Mexico

Hon. Alfred T. Sulmonetti, Portland

James E. Yacos, Hanover, New Hampshire

Orval D. Yokom, John Day

Anthony Yturri, Ontario

Presenter: Mark A. Johnson

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Resolved, that the OSB House of Delegates approves the following change to Rule 10.1 of the Rules of Procedure for the House of Delegates:

Background

In 1998, the House of Delegates approved a resolution to amend HOD Rule of Procedure 5.4 to require that delegate resolutions be submitted 45 days in advance of the HOD meeting. This made submission of delegate resolutions consistent with the deadline for member resolutions and allowed sufficient time for distribution and review prior to the meeting. The proposed amendment to House Rule 10.1 is a housekeeping measure to conform it to House Rule 5.4, making all resolutions, including those to amend House Rules, due 45 days prior to the HOD meeting.

Presenter: Agnes Sowle

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Resolved, that the OSB House of Delegates approves the following disciplinary rule changes for submission to the Oregon Supreme Court:

Disciplinary Rule 8
Improper Conduct as a Public Official or Judicial Candidate, Improper Criticism of the Judiciary

DR 8-101 Action as a Public Official

Disciplinary Rule 5
Conflicts of Interest and Mediation

DR 5-105 Conflicts of Interest: Former and Current Clients

Background

Article XV, Section 7 of the Oregon Constitution provides that '[n]o State officers, or members of the Legislative Assembly, shall directly or indirectly receive a fee, or be engaged as counsel, agent, or Attorney in the prosecution of any claim against this State.' Several years ago, the Legal Ethics Committee was asked what effect this disqualification had on the other members of a lawyer-legislator’s firm. The LEC concluded that entering into a constitutionally prohibited representation might violate DR 7-102(A)(8), which prohibits a lawyer from engaging in illegal conduct in the course of representing a client. In that event, vicarious disqualification was compelled by DR 5-105(G), because the lawyer-legislator’s disqualification arose under a disciplinary rule as well as the constitution.

Concluding that such a result was not intended by the drafters of the disciplinary rules and was a disincentive to lawyers serving in the legislature, the BOG submitted a resolution to the House of Delegates in September 1997 amending DR 5-105(G) to exempt law firms from vicarious disqualification in situations where a member of the firm was disqualified under Article XV, Section 7 of the Oregon Constitution. Although approved by the HOD, the Supreme Court declined to approve the rule change, expressing doubts about whether the policy of the proposed amendment was consistent with the constitutional disqualification, and whether the language of the amendment would accomplish the desired result.

Lawyer-legislators continued to request guidance from the bar on how to comply with a complicated, and sometimes conflicting, array of duties and obligations without violating their ethical obligations as attorneys or as legislators. Oregon lawyer-legislators are subject to ethical constraints from several different sources: the Disciplinary Rules, ORS Chapter 244 (The Government Standards and Practices Act), and the rules adopted by each chamber of the legislature.

The amendments to DR 8-101(D) and DR 5-105(G) now before the House of Delegates are intended to address the concerns raised by the Supreme Court. They do not change a lawyer-legislator’s obligation to comply with the constitutional prohibition. They merely allow the other members of the firm to avoid vicarious disqualification by taking certain steps. New DR 8-101(D) requires screening between the lawyer- legislator or lawyer-state officer and the rest of the firm in accordance with DR 5-105(I) when the firm represents a client in a claim against the State. It also requires that the disqualified lawyer not directly or indirectly benefit financially from the representation. If those requirements are met, then the vicarious disqualification of the law firm otherwise required by DR 5-105(G) will not apply.

Presenter: David W. Hittle

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Resolved, that the OSB House of Delegates approves the following disciplinary rule changes for submission to the Oregon Supreme Court:

Disciplinary Rule 5
Conflicts of Interest and Mediation

DR 5-106 Mediation

Disciplinary Rule 10
Definitions

DR 10-101 Definitions

Background

In 1998, the House of Delegates approved, and the Supreme Court subsequently adopted, a revision to DR 5-106 expressly permitting a lawyer-mediator to file settlement documents in court in spite of the rule’s prohibition against representing any party in the matter. Following the 1998 amendments, additional concerns about the application and effect of the rule were raised.

It was suggested that the types of documents the mediator could file were too limited to accomplish the goals of many low- and modest-income parties who were without counsel. There was also concern that the amended rule implied that the lawyer-mediator was representing multiple parties with conflicting interests.

The amendments to DR 5-106 that are now before the House of Delegates are the product of contributions from OSB General Counsel, the ADR Section Executive Committee, the OSB Legal Ethics Committee, and the Board of Governors. If approved, the amended rule will provide that: consent of the parties to the mediator’s role must be in writing, the mediator must expressly inform the parties that the mediator does not represent any party in the matter in mediation, the mediator may draft 'other documents' to implement a settlement in addition to a settlement agreement or stipulated order, the recommendation that the parties seek legal advice before signing must be in writing, and a mediator may not represent a party in the matter except with the consent of all parties after full disclosure. (This latter provision is consistent with DR 5-109, which permits adjudicative officers to represent a party in matters in which they have participated if all parties consent after full disclosure.)

The essence of DR 5-106 since its inception has been that a lawyer serving as a mediator is not engaged in the practice of law because the mediator does not represent any of the parties in the mediation. The 1998 amendments and those now before the HOD are not intended to alter that premise. It is the position of the PLF that lawyers who limit their services to mediation and who present themselves to the public as mediators rather than 'attorneys at law' are ineligible for PLF coverage because they are not engaged in the private practice of law. Nevertheless, mediators who draft legal documents for the parties may have liability for errors and should consider obtaining adequate coverage from their mediation liability carriers.

Presenter: Hon. Kristena A. LaMar

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Whereas, providing equal access to justice and high quality legal representation to all Oregonians are central to the mission of the Oregon State Bar; and

Whereas, programs providing civil legal services to low income Oregonians are a fundamental component of the Bar’s effort to provide such access; and

Whereas, legal services are unavailable for 80% of eligible clients needing help; and

Whereas, federal funding for Oregon’s civil legal services programs is substantially less than it was in 1980 and there have been severe restrictions imposed on the work that programs receiving LSC funding may undertake on behalf of their clients; and

Whereas, Oregon lawyers and the Bar have long supported mechanisms to provide funding for civil legal services programs, including the surcharge on civil filing fees, the fundraising efforts of the Campaign for Equal Justice, and the Interest on Lawyers Trust Accounts program; and

Whereas, assistance from the Oregon State Bar and the legal community is critical to maintaining and developing resources that will provide low-income Oregonians meaningful access to the justice system: now therefore, be it

Resolved, that the Oregon State Bar:

Background

Access to justice is a core value of the Oregon State Bar and a high priority of the Board of Governors. The bar’s mission is 'to serve justice by promoting respect for the rule of law, by improving the quality of legal services, and by increasing access to justice.' For low-income Oregonians, access to justice depends upon the availability of adequately funded programs. Oregon lawyers have responded to the needs of low-income citizens directly, through pro bono service, and indirectly, through fund-raising and other mechanisms to ensure adequate financial support for programs. With this resolution, Oregon lawyers will proclaim publicly their continuing commitment to increasing the availability of legal services to low-income Oregonians.

Presenter: Edwin A. Harnden

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Whereas, since the creation of the House of Delegates (HOD) it has become apparent that communication between and amongst Delegates through the Board of Governors (BOG) is cumbersome and inefficient; and

Whereas, it would be to the benefit of the Oregon State Bar (OSB) if a better communication system utilizing modern technology enabled Delegates to communicate with each other in real time; now, therefore, be it

Resolved, that the OSB create, institute and maintain a general HOD listserve and one for each HOD region dedicated exclusively to HOD members and HOD business.

Further resolved, that the OSB shall include the following information on the OSB website, regularly updated:

Further resolved, that this listserve and other information be up and running by December 1, 1999.

Background
(by Board of Governors)

Since it was unveiled in 1997, the OSB website has been a 'work in progress' as a vehicle for providing information to members and to the public. The bar also continues to develop more efficient means for communication between the bar and its members and between members, including making available listserves which are currently used by several section executive committees. The software for HOD listserves is in place and it is anticipated that the general and regional listserves may be operational by the time of the HOD meeting. Adding BOG minutes, budgets, and member information to the website is consistent with what is already planned and budgeted for, so this resolution will not have any additional financial impact on the bar. It may, however, require that priorities be adjusted in order to meet the December 1, 1999 deadline. The inclusion of member disciplinary history may complicate the project if information has to be reformatted or otherwise provided in a manner different from the way it is currently maintained.

Presenter: Robert C. Hansen

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Whereas, the annual meeting of the Oregon State Bar for decades served as a focal point for social, professional, educational and sporting activities between Bar members as well as their families; and

Whereas, the annual convention of the Oregon State Bar served as an opportunity for new lawyers to meet older members of the Bar and become acquainted with the benefits of Bar membership; and

Whereas, the annual convention of the Oregon State Bar brought together lawyers from all the different factions and specialties within the Bar and provided a means for lawyers to communicate with one another as colleagues rather than adversaries; and

Whereas, a large number of members of the Oregon State Bar wish to see the annual meeting reinstated; now, therefore, be it

Resolved by the House of Delegates that:

Presenter: Charles R. Williamson

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Whereas, State Senator Kate Brown has served in the Oregon Legislature as a Representative from 1991 until 1996 and in the Oregon State Senate from 1997 to date; and

Whereas, Kate Brown is minority leader of the State Senate; and

Whereas, Kate Brown has served on the judiciary committees of the House and Senate during her tenure as a legislator; and

Whereas, Kate Brown has been a member of the Oregon State Bar since 1985; and

Whereas, Kate Brown has worked constructively and tirelessly to improve Oregon’s justice system, to protect the rights of Oregon citizens and to assist the Oregon State Bar in improving the laws of the State of Oregon; and

Whereas, Lane Shetterly has served for two terms in the Oregon State House of Representatives and chaired the Judiciary Committee in 1997 and the Civil Law Judiciary Committee in 1999; and

Whereas, Lane Shetterly has been a skillful and effective moderating force bringing about consensus between opposing factions in the furtherance of improving Oregon’s justice system and assisting the Oregon State Bar in improving the laws of the State of Oregon; and

Whereas, Lane Shetterly has been a member of the Oregon State Bar since 1981, now, therefore, be it

Resolved, the House of Delegates of the Oregon State Bar hereby expresses its sincere appreciation to Senator Kate Brown and Representative Lane Shetterly for their hard work and dedication to the improvement of the laws and the administration of justice in Oregon. The House of Delegates is especially grateful to members of the Bar such as Senator Brown and Representative Shetterly who have sacrificed and will continue to sacrifice professional and financial gain in order to serve the public in the Oregon Legislature.

Presenter: Charles R. Williamson

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Whereas, the Chief Executive Officer of the Professional Liability Fund consulted with legislators as early as November, 1998, regarding proposed amendments to ORS 419B.010, the mandatory child abuse reporting statute, advocating certain changes which were designed to diminish the protection afforded children by that statute;

Whereas, the Chief Executive Officer of the Professional Liability Fund presented written testimony in support of House Bill 2226 and specifically in support of that portion of HB 2226 which abolished private causes of action for violation of the mandatory child abuse reporting statute (ORS 419B.010);

Whereas, the Chief Executive Officer of the Professional Liability Fund, during a meeting of a work group of the Senate Judiciary Committee and in support of HB 2226, denigrated the family members who would seek to impose civil liability on non-reporters and obtain compensation on behalf of child abuse victims;

Whereas, the Chief Executive Officer of the Professional Liability Fund did not clearly have and should not have had authorization from the Board of Governors to advocate such changes and to present such testimony or make such comments;

Whereas, the Oregonian published an article by columnist Steve Duin highly critical of the activities of the Oregon State Bar and the Professional Liability Fund in seeking to immunize lawyers from civil liability for violations of the mandatory child abuse reporting statute, a type of publicity which was both foreseeable and inconsistent with the Bar’s public education efforts;

Whereas, none of the activities of the Chief Executive Officer of the Professional Liability Fund was within any policy adopted by the Board of Governors or the House of Delegates and each of these activities was in violation of the mission of the Oregon State Bar and its duty to protect the most vulnerable members of society; now, therefore, be it

Resolved, that the Board of Governors is directed to take whatever steps are necessary to ensure that the Professional Liability Fund, whether acting through its Board of Directors or its Chief Executive Officer

Further resolved, that the Board of Governors is directed to amend Chapter 11 of the Board’s Policies, applying to Legislation and Public Policy, to specify clearly that these policies apply to the Professional Liability Fund and its Chief Executive Officer.

Further resolved, that all lobbying activities by anyone representing the Oregon State Bar or any of its committees, sections or other entities subject to its oversight (including the Professional Liability Fund, its Board and its Chief Executive Officer) comply with the requirements of Keller v. State Bar of California, 496 US 1, 110 S Ct 2228, 110 L Ed 2d 1 (1990) and Board of Governors policies regarding legislation and public policy.

Further resolved, that the Board of Governors report back to the House of Delegates by publication in the February, 2000 issue of the Oregon State Bar Bulletin, with a full presentation at the next House of Delegates meeting, regarding the actions taken in response to this resolution, and specifically what procedures have been put in place to monitor the legislative testimony, including written submissions, of anyone representing the Oregon State Bar, its committees, sections and other entities subject to its oversight including the Professional Liability Fund.

Presenter: Stephen V. Piucci

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Notice of Excluded Items

Items Excluded from 1999 HOD Meeting Preliminary Agenda

Pursuant to statute, BOG policy, and House of Delegates Rules of Procedure, the OSB Board of Governors develops the preliminary agenda for the House of Delegates meeting from resolutions submitted by the Board, delegates and members. BOG Policy 3.506 authorizes the BOG to exclude from the agenda a resolution that is inconsistent with the Oregon or US Constitutions or is outside the scope of the bar’s mission as expressed in ORS 9.080(1) and Article 2 of the OSB Bylaws. House Rule 5.6 requires that notice of resolutions not placed on the agenda be distributed to the OSB membership along with the preliminary agenda approved by the BOG. House Rule 5.7 provides that the House may, upon motion of a delegate, add to the agenda prior to its final adoption by the House, any excluded resolution.

The following delegate resolution was excluded from the preliminary agenda on the Board’s determination that it may not comply with the bar’s authority under Keller v. State Bar of California, 496 US 1, 111 US 2228 (1990), where the court held that mandatory dues can be used only for purposes that are within the core mission of the organization and not for political or ideological purposes. ORS 9.080(1) authorizes the BOG to direct its power 'to the advancement of the science of jurisprudence and the improvement of the administration of justice.' OSB Bylaw 2.1 identifies other purposes of the bar, including promoting 'respect for the law among the general public' and 'the application of professional knowledge and experience to the public good.' The BOG was not convinced that the resolution was sufficiently consistent with those purposes. The BOG was also concerned that the specific actions the resolution directs the bar to take may result in a violation of ORS 294.100, which subjects public officials to personal liability for using public funds to support or oppose a measure before the voters.

The Board of Governors also excluded the following member resolution from the agenda because it was not submitted with the requisite signatures of two percent of active members. Moreover, the BOG concluded that support or opposition to the death penalty is not within the mission of the bar and inclusion of the resolution would violate Keller v. State Bar of California, supra.

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Delegate Resolution - Opposes Certain Victim’s Rights Ballot Measures

Whereas, the 1996 Oregon State Bar House of Delegates unanimously resolved to oppose Measure 40 and to take all reasonable steps to make its position known to the people; and

Whereas, in 1997 the Oregon Legislature passed into law implementing legislation for Measure 40, known as SB 936, which enacted laws that largely remain in effect today; and

Whereas, the 1999 Legislature passed a number of joint resolutions referring certain measures to the voters that are represented to be nothing more than the previously approved 'victim’s rights' contained in Measure 40 to be voted on separately by the people; and

Whereas, many of the joint resolutions are different, and/or additional to those that were in Measure 40, which presents a high likelihood that they will be promoted by an untrue claim; and

Whereas, the Oregon State Bar views the constitution as a framework for government, and believes that it should not be casually or repeatedly amended each election cycle to include matters that are more properly the subject of legislation; and

Whereas, many of the joint resolutions are properly the subject of legislation rather than constitutional amendment, and seek to place matters in the constitution that already exist in current laws or the constitution; and

Whereas, certain 'victim’s rights' set forth in HJR 87 already exist, and are adequately addressed in statutes such as ORS 147.417, 147.419, 147.421 (Victim’s Rights), 147.005 et seq (Victim Compensation), 135.230-255 (Release Criteria to protect victim), 135.970 (Miscellaneous Victim Rights), and because HJR 87 expands the meaning of 'victim' to include the state in cases of 'victimless crime', and because the HJR makes 'victim’s rights' unenforceable against the State even if ignored or violated, and because some of the provisions of HJR 87 were never in Measure 40; and

Whereas, the right to trial by jury has historically been in the Bill of Rights for individuals accused of a crime as protection against the overwhelming power of the state, and because HJR 88 would subvert the right of the accused person to a fair trial by jury or judge by conferring the right to a jury trial on the state over the objection of the accused, and because this provision is not a protection for victims of crime; and

Whereas, HJR 89 unfairly presumes that certain citizens are unqualified to be jurors in criminal matters merely because of a past felony or misdemeanor conviction, and because such citizens are qualified to be civil jurors, and because there is no evident or obvious reason why such citizens should be excluded from criminal juries, and because such exclusion unfairly skews the criminal trial process to the advantage of the state by prescreening the jury pool for jurors who might be subject to peremptory challenge by the state, and because the exclusion unfairly skews the composition of civil juries, and because this provision is not a protection for victims of crime; and

Whereas, HJR 90 alters the constitutional right to bail under Article I, Section 14 by making the accusation of unspecified violent felonies nonbailable under certain conditions, and because the rights of people to be protected from persons accused of violent crimes is already provided for in ORS 135.230-255 (Release Criteria), and because it is not shown that those persons accused of violent crimes who are released on conditional bail have so frequently victimized others while on release that the right to bail should be suspended; and

Whereas, HJR 92 would undermine the presumption of innocence and upset a delicate balance in our system of justice by permitting a conviction of murder on less than a unanimous verdict, and because this would greatly increase the danger of convicting the innocent, and because this provision is not a protection for victims of crime; and

Whereas, the right against self-incrimination has historically been regarded as one of the essentials of a free society, and because HJR 93 would erode the essential constitutional protection against self-incrimination by granting unusual power to the state to compel an accused person to testify against himself or herself, and because this provision was not part of Measure 40, and because this provision is not a protection for crime victims; and

Whereas, HJR 94 would prohibit a judge from later modifying or setting aside a sentence, and because such a constitutional limitation would have a chilling effect on future legislatures to change certain punishments, and because this was not part of Measure 40, and because this is not a protection for victims nor necessary as a constitutional matter; now therefore, be it

Resolved, that the Oregon State Bar urges that the above-mentioned HJRs be defeated at the polls because they are unnecessary as constitutional measures and degrade the State Constitution, they needlessly erode Oregon’s Bill of Rights, and they unjustifiably alter the balance of the criminal justice system by granting greater power to the State and increasing the danger of convicting innocent individuals accused of crime. The Oregon State Bar shall take reasonable steps to make its position known to the people of the State of Oregon by taking the following action:

Background

In 1996, State Initiative Measure 40 qualified for the ballot, and was promoted as a 'Victim’s Rights' measure. It was a lengthy constitutional amendment that sought to grant constitutional stature to certain 'victim’s rights' in criminal proceedings while removing certain guarantees for the criminally accused from Oregon’s Bill of Rights. Most of the so-called 'victim’s rights' were already provided for in Oregon statutes.

The reach of Measure 40 was broader than it was promoted to be. It amended the Oregon Evidence Code in criminal cases, eliminated the exclusionary rule, eliminated independent interpretation of the Oregon Constitution’s expression of search and seizure and self-incrimination rights, repealed portions of the constitutional right to bail, and instituted harsh bail criteria, among other things. The OSB House of Delegates unanimously opposed Measure 40, with a provision that the Bar publicize the action.

The voters approved Measure 40 despite serious constitutional questions about its validity, although the election was closer than many thought it would be.

The central constitutional problems with Measure 40 caused its proponents to descent on the 1997 Legislature, seeking to implement its provisions immediately through statutes. The legislature enacted most of Measure 40 into law despite the expression of constitutional concerns, and the caution that implementing legislation ought to await resolution by the courts. Known as SB 936, this package effectively repealed a large body of appellate decisions that had held the police accountable for violating people’s rights. It also included sections on victim’s rights, release criteria, relevant evidence, jury composition, and others.

In June, 1998 the Oregon Supreme Court decided Armatta v. Kitzhaber, 326 Or250 (1998) holding that Measure 40 was unconstitutional because it amended more than one section of the constitution without a separate vote on each such amendment. Therefore, SB 936 remains in force even though its constitutional underpinnings have been removed.

However, the legislative process did not merely refer out the former components of Measure 40. Many of the resolutions changed language in order to meet perceived or anticipated constitutional challenges. Some have new clauses to fill gaps that have been discovered in litigation, and that strengthen the hand of the prosecuting officials. For these reasons, some of the measures referred to the votes differ from those previously proposed in Measure 40. Other provisions are completely new.

In spite of these clear changes, the proponents of these joint resolutions continue to represent them as a package of measures already passed by the voters, only offering the voters an opportunity to re-approve what they have previously voted on.

Presenter: Ken Lerner

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Whereas, the Oregon State Bar opposes the death penalty under current Oregon law for one or more of the following reasons:

(1) Historically, innocent persons have been executed. Errors in the criminal justice system are inevitable. The risk of executing the innocent is unacceptable;

(2) The death penalty is costly. It diverts resources from other law enforcement and important human service needs; and

(3) There is no substantial evidence that the death penalty deters murder any more than life imprisonment without the possibility of parole; now, therefore, be it

Resolved, that the Oregon State Bar supports the replacement of Oregon’s death penalty for aggravated murder with the sanction of life imprisonment without the possibility of parole.

Presenter: Mark Kramer

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