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The
2001 legislative session was one marked by a spirit of cooperation and,
compared to recent past sessions, more respectful of the concerns of judges
and attorneys.
That's
the view of a handful of well-placed lawyer-legislators who played prominent
roles in the statehouse.
'Overall,
this session was better disposed to lawyers,' says Rep. Max Williams,
R-Tigard, who chaired the House Judiciary Committee. The hostility toward
lawyers sometimes evident in the past was less a part of this legislature's
mentality. 'For both the bench and bar, it was a better session than
usual.'
Also,
in a broader sense, 'It was a more conducive session to reaching
compromise,' Williams says. 'It had to do with the upfront attempt
by the leadership of both parties to put aside partisanship.'
Another
committee member, Rep. Lane Shetterly, R-Salem, concurs. 'At least
of the three I've served in, this one demonstrated the most success'
in terms of working relationships among the House, Senate and governor,
he says. People were 'wanting to do business as much as possible
in a businesslike way.' The Democratic protest and walkout toward
the session's end 'barely amounts to a speed bump, and didn't dampen
any relationships that had been forged,' Shetterly adds.
'It
was a maintenance-oriented session,' with less emphasis on 'big
ideas,' says Rep. Rob Patridge, R-Medford, a member of the House
Ways and Means Committee. 'I'm glad the tenor was less contentious.
Lawyer-legislators worked well together.' And, he notes, 'We're
just starting to see the effects of terms limits.' The speaker of
the House, for example, was not experienced in 'the legislative process,'
according to Patridge. 'We will continue to see the effects of'
terms limits, Patridge feels.
A
cooperative atmosphere prevailed, agrees Supreme Court Chief Justice Wallace
P. Carson Jr. 'It showed up in committee meetings. I found them to
be interested people, collegial.' Carson said it was 'an absolute
delight' to work with the lawyers in the legislature, three of whom
a Portland weekly newspaper called 'the bright lights of the GOP
caucus.' ' I wish there had been more (lawyers serving) there,'
Carson said, noting that there were more in Salem during his own legislative
years, in the 1960s and '70s. Sen. Peter Courtney, D-Salem, seconds his
sentiment: 'It was the first time I was the only lawyer on the Judiciary
Committee.' When Courtney first served in the House, in 1981, 'of
the 11 members, every person but one was a lawyer,' he recalls.
Being
the only Judiciary Committee member in the Senate with a law degree put
some pressure on Courtney, because, he explains, having a legal background
is very helpful in trying to sift through and understand the hundreds
of bills that come before the committee. He says he had to carry to the
floor the highly legally technical bills. Had there been other lawyer
members on the committee, 'we could have spread some of that out,'
he reflects.
According
to Bob Oleson, the OSB's government relations director, having many more
new legislators along with fewer lawyers in the body meant that most legislative
committees were hard-pressed to maintain a high quality of product or
process. 'This situation also meant that public institutions like
the judiciary will continue to risk losing insider support and become
larger, political lightning rods for disaffected interest groups.'
Sen.
Kate Brown, D-Portland, Senate minority leader with five legislative sessions
under her belt, described the 2001 session as 'very productive and
the most fun session I've had.' She says one of the reasons for 'a
huge commitment on both sides to put aside partisanship' was the
close numbers in Republicans and Democrats. In the Senate, 'there
were not 15 Republican votes for anything. So the Senate president had
to work with us.' The other reason she cited for the session's comity
was the governor's early proposal to fund K-12 education at a high level.
That got a potentially highly contentious issue out of the way in the
first stages of the session, she says.
Brown,
who also is vice chairwoman of the Oregon Law Commission, adds that the
commission was able to get all of the juvenile law bills passed that it
sought. The OSB's Oleson says groups such as special commissions and interim
committees that remain active between sessions are likely to have increasing
influence in developing complicated legislation in the future.
As
for accomplishments, 'from the perspective of lawyer-legislators,'
Williams was most satisfied with the increases in the number of judges
and the increases in salaries of those serving on the bench. Carson also
was pleased. 'This time we asked for 15 (new circuit court judges),'
says Carson. 'We got six. We're pleased with that. They're hard to
come by.' The 6 percent salary increases over the next two years
are welcome, as well, he adds. In addition, says Williams, was the new
funding source for legal aid: He was gratified that the Oregon State Bar's
Board of Governors' proposal to funnel pro hac vice money to legal aid
passed both houses.
'It
was a solid, workmanlike session,' Williams concludes. 'I don't
think anybody will look back and say we changed the face of Oregon. But
we got things done that needed to be done.'
Less
sanguine about the 2001 legislature is House Minority Leader Kathy Lowe,
D-Milwaukie, who thinks the legislature's work suffers because there are
not enough lawyer members: 'The fundamental lack of understanding
of the role of the constitution, the judiciary system and the balance
of power between the legislative, judicial and executive branches of government
manifests itself on both sides of the aisle. Both parties need more lawyers
to provide guidance and perspective on all of the committees. There are
simply not enough of us to go around.'
Though
its strength is its citizen makeup, Lowe says, the legislature's greatest
weakness is the lack of understanding in the fundamentals of good government.
'This weakness is compounded by term limits, which ensures that the
legislators receive minimal, if any, on the job training in the fundamentals.'
She adds: 'The only way to stabilize the legislature and preserve
a balanced government is to require everyone who serves in the body to
pass a basic civics course.'
In
all, some 3,297 bills came before Oregon's 71st Legislative Assembly.
Ultimately, 1,075 passed both houses and were presented to the governor
for his signature; he had until Aug. 17 (the day this issue went to press)
to determine which bills would become law. Unless there is a prescribed
effective date or an emergency clause, most legislation is effective Jan.
1, 2002.
Here
are the highlights of the 2001 legislative session.
1.
JUDICIAL BUDGET PARTIALLY RESTORED
HB 5014 restored two-thirds of the Judicial Department budget cuts originally
proposed by the governor and legislative leaders. This add-back money
includes family- and drug-court positions (e.g., family court facilitators).
However, each judicial district will determine how to staff its program.
In addition, SB 70 provides for six new circuit court judgeships, one
each for Marion, Yamhill, Jackson, Multnomah, Deschutes and Washington
counties. The positions are to be filled by election and slated to begin
January 2003. And HB 2852 provides all judges with a 6 percent annual
increase in salary in each of the next two-year cycles, effectively a
12 percent increase in pay. Many were uncertain, in light of budget constraints,
that the judiciary would receive any of the 15 judges requested, much
less salary increases and more money for current operations. Yet, despite
an overwhelmingly successful session, there will still need to be cuts
statewide in judicial system operations.
2.
INDEPENDENT PUBLIC DEFENSE PANEL
SB 145 establishes the Public Defense Services Commission independent
of the Judicial Department and makes it responsible for the administration
and oversight of all public defense functions in state courts. The commission
will incorporate the Public Defender Committee and office of Public Defender
effective Oct. 1, 2001. Effective Oct. 1, 2003, the duties of the State
Court Administrator relating to indigent defense will also be transferred
to the commission. At that time, all indigent defense functions will be
consolidated into the commission separate from the Judicial Department.
It is hoped that this restructuring will eliminate potential conflict
of interest concerns that have been raised in the past. The transition
of services to the commission and the availability of continued funding
for indigent defense services will need to be addressed in the future.
3.
PERFECTING SECURITY INTERESTS
SB 171 adopts the updated version of the Uniform Commercial Code, Article
9. The bill expands the scope of Article 9, including the kinds of property
involved and transactions in which a security interest can be taken. The
bill also: clarifies ways to perfect security interests; changes choice
of law provisions governing disputes from the location of the collateral
to the location of the debtor; changes the place for filing financing
statements to the location of the debtor; maintains Oregon's centralized
filing of financing statements with the secretary of state and allows
filing by electronic means; clarifies clearly defined consumer transactions;
requires notice to junior lienholders upon default; and incorporates provisions
to accommodate the transition between the two Acts. The result of a joint
Oregon State Bar/Oregon Bankers Association workgroup, SB 171 received
early consideration in both houses. However, it was held up in conference
committee to address separate amendments dealing with assignability of
structured settlements and regulation of the title-lending industry.
4.
PRO HAC VICE FEES
HB 2938 authorizes the Oregon Supreme Court to collect an application
fee for pro hac vice appearances. The program will be administered by
the Oregon State Bar with funds dedicated to the provision of low-income
legal services. HB 2938 gave representatives from the bar and the Campaign
for Equal Justice the opportunity to educate legislators about the importance
of legal services and judicial access. Inroads made this session will,
hopefully, help lay the foundation for a general fund appropriation for
legal services in the future.
5.
FIXING GATTI
HB 3857 is a response to the Supreme Court ruling in In re Gatti.
The bill amends ORS 9.527 to exempt advice on undercover law enforcement
activities by assistant district attorneys and federal prosecutors working
for a public body or the federal government from prosecution by the bar
for willful deceit or misconduct under the statute. This solution however,
fails to address the ethical ramifications lawyers will continue to face
in light of the Gatti ruling. The Board of Governors proposed and
the House of Delegates approved submission of a proposed disciplinary
rule change to the Supreme Court which was rejected by the court as too
broad. The court expressed concern that the rule change would nullify
lawyers' responsibility not to engage in dishonest conduct.
At
the same time, the U.S. Department of Justice has sued the Oregon State
Bar seeking to enjoin it from prosecuting lawyers under the DRs. The U.S.
Dept of Justice has argued that enforcing the DRs prevents attorneys from
performing their statutory duties under federal law. It is likely that
a resolution on this issue will be before the House of Delegates at the
bar convention in September.
6.
ELECTRONIC SIGNATURES AND RECORDS
HB 2112 adopts the Uniform Electronic Transactions Act (UETA), a national
model state law governing the use of electronic signatures and electronic
records. UETA allows the use of electronic signatures and records in transactions.
It is a procedural statute and does not mandate the use of electronic
signatures or records. The primary goal is to establish electronic signatures
and records as the legal equivalent to paper writings and manually signed
signatures. HB 2112 was the result of the bar's Computer and Electronic
Information Workgroup formed to deal with legislation related to computer
information and Internet commerce. The bar group assisted Rep. Jim Hill
craft legislation relating to UETA and to meet his goal of keeping Oregon
businesses competitive. One important addition to the bill was the adoption
of the federal E-sign consumer protection provisions that are not found
in the model UETA statute.
7.
NEW OPTIONS FOR MINORITY SHAREHOLDERS IN CLOSELY HELD CORPORATIONS
SB 118, relating to minority shareholders in closely held corporations,
codifies case law relating to additional judicial remedies that shareholders
of corporations have available outside of dissolution of the corporation.
In addition, the bill allows non-unanimous consent opt-in provisions,
clarifies limited liability company duty of loyalty provisions, makes
technical clarifications to entity mergers and conversions and addresses
issues raised by the Department of Consumer and Business Services relating
to fraudulent banking. SB 118 is an omnibus bill which contains all of
the OSB Business Law Section bills. The primary focus of SB 118, addressed
by an interim section task force, was the issue of minority shareholders
in closely held corporations. Working closely with Sen. Peter Courtney,
the task force crafted legislation and ultimately a compromise with the
Association of Oregon Industries to ensure passage of the bill.
8.
GARNISHMENTS CLARIFIED, CONSOLIDATED
HB 2386, relating to garnishments, clarifies the garnishment process and
consolidates the four forms of writ into a single form. It also authorizes
the attorney general to adopt model forms for notices of garnishment issued
by state agencies and county tax collectors. The product of an Oregon
Law Commission workgroup chaired by Rep. Max Williams, HB 2386 was intended
to simplify and clarify the garnishment process and forms used. The law
commission intends to undertake a comprehensive review of the judgment
statutes during this legislative interim.
9.
CLARIFYING THIRD-PARTY VISITATION
HB 2427 was enacted in response to the U.S. Supreme Court case Troxel
v. Granville which limited the extent to which a state can order third-party
visitation rights over the objection of a parent. HB 2427 creates a presumption
in visitation disputes that a legal parent acts in the best interest of
the child. It also creates a presumption in custody disputes that it is
in the best interest of the child to be in the custody of a legal parent
and specifies the showing required of a nonparent to overcome these presumptions.
HB 2427 was supported by the OSB Family Law Section and is the result
of an interim work group in which Rep. Lane Shetterly was involved. Although
not a perfect solution, proponents of the bill believe that the clarification
of Troxel in HB 2427 will provide more certainty and less litigation
in this area of the law.
10.
WORKERS' COMP OVERHAULED
The final version of SB 485 was modified in light of the Oregon Supreme
Court decision in Smothers. SB 485 was the result of negotiations
by a committee comprising management and organized labor representatives.
The bill was intended to develop fairer standards and disability benefits,
result in faster decisions and give employers greater certainty with respect
to potential liability. It revises laws regarding the compensability of
preexisting, new and omitted conditions, and it increases partial and
permanent disability benefits. SB 485 stalled as legislators considered
the impact of the Oregon Supreme Court decision in Smothers, in
which the court allowed an injured worker to proceed with an action in
negligence after being denied benefits under the Workers' Compensation
system. Concerns that the ruling would overwhelm the existing system generated
some discussion of legislative action to overturn the court's ruling.
Instead, the original bill was amended in line with the decision to authorize
an injured worker to pursue a negligence action for work-related injuries
under certain conditions.
11.
ATTORNEY FEES IN TORT CASES
Proposed by the Oregon Debt Collector's Association, HB 2381 clarifies
that the language of ORS 20.080 allowing the award of attorney fees applies
only to tort cases. However, it creates new provisions awarding attorney
fees to the prevailing party in a contract action when the amount claimed
is $5,500 or less, the contract is silent as to attorney fees and proper
notice has been served. Certain contracts and types of actions are excluded.
The OSB Litigation Section and Consumer Law Section, as well as Rep. Charlie
Ringo, raised concerns regarding the bill. The full impact this bill will
have on the system is still uncertain.
12.
PRIVACY UNDER HIPAA
SB 104 creates an Advisory Committee on Privacy of Medical Information
and Records to study the relationship between the federal Health Insurance
Portability and Accountability Act of 1996 (HIPAA) and state information
privacy laws. The committee is required to make recommendations to the
72nd Legislative Assembly. The HIPAA rules and how they relate to existing
Oregon laws are important because of their potential impact on consumer
control over health information; boundaries on medical record use and
release; security of information; penalties for misuse; and limitations
on public use including research, public health reporting and judicial
proceedings. The OSB Health Law Section is studying this issue. At the
same time, the bar's Computer & Electronic Information Workgroup is
also considering how to approach privacy issues related to electronic
recordkeeping.
CONCLUSION
The 2001 legislative session, when compared to the partisan nature of previous
sessions, was less contentious and was conducted in a more businesslike
fashion. While nothing earth shattering was accomplished, the legislature
did, by the same token, make substantial gains in improving a variety of
laws that will affect practitioners on a daily basis. + |
HONORABLE
MENTIONS
Here's a
short list of other notable legislation approved by the 2001 legislature.
HB 2206:
Like-kind exchange
HB 2374: Attorney fees
HB 2460: SLAPP suits
HB 3119: Transfer provisions
HB 3260: Bar governance changes
HB 3461: Probation Violations
HB 3642/2924: Forfeiture bills
HB 3677: Judicial construction
SB 104: Privacy of medical information
SB 140: Death penalty
SB 114: Genetic Privacy
SB 166: Pet trusts and more
SB 293: Presumptive sentences
SB 370: Juvenile sex offenders
SB 384: Juvenile offender oversight
SB 437: Intent to commit future crime
SB 446: Real estate licensing
SB 722: Investigator licenses
SB 920/HB 2664: DNA samples
NEAR
MISSES
And here's
a list of bills that did not get traction in 2001 - but could return in
the future:
HB 2246:
Judicial Review of Government Action
HB 2356: Court Facilities
HB 2941: Baseball Bill
HB 3910: UCITA
HB 3998: Measure 7 re Impairment of Land Use Value
HJR 23: Judicial Impeachment
SJR 7: Judicial Selection +
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