Oregon State Bar Bulletin — OCTOBER 2005

Making a Difference
Recent legislation that could affect your practice
By Gerry Gaydos

It is doubtful that anyone in Oregon is sad that the legislature has adjourned its 2005 session – a long session marked by partisan conflicts and by few notable achievements. When it adjourned on August 6, the 73rd Legislative Assembly had: passed a balanced budget; enacted a bill to require health insurers to cover more mental health services; adopted a number of bills designed to help veterans, military personnel and their families and passed a comprehensive package of bills to deal with the perceived methamphetamine epidemic. Overall, the legislature did a workmanlike job passing bills that will make the state in general and the legal system in particular work as well or better than in times past.

Highest priorities for the bar in 2005 were adequate funding for the judicial department and for indigent defense services. The judicial department had been especially hard hit by cuts in 2003, and had to close the courts to the public on Fridays for three months ending on June 30, 2003. The governor’s budget, released in December 2004, proposed cuts of 9 percent to the Judicial Department and to the Public Defense Services Commission.

A coalition of public safety and justice system agencies and interest groups devised a strategy based on the premise that all parts of the criminal justice system are interdependent. All parts of the system must be the right size to work together effectively and in such a way that increases in one part of the system do not produce stresses in another. To illustrate: If the legislature creates a new crime, it must provide increased funds not only for police, prosecutors and prison beds, but also for courts, indigent defense, community corrections and rehabilitation services.

While the premise seems obvious, it is not particularly intuitive. A strategy of introducing the concept at the outset and re-enforcing it as the session wore on was ultimately effective.

The bar was a full partner in this effort, and in addition employed a number of grass roots tactics to support the judicial department and indigent defense budgets. The bar held a day-long event at the capitol designed to put bar leaders in contact with their legislators to talk about the importance of adequately funded courts and indigent defense services. In addition, OSB President Nena Cook was the introductory witness at the public hearing on the judicial department budget.

Partially as a result of these efforts, the legislature restored all but two percent of the cuts included in the governor’s original budget. In addition, they created four new circuit judgeships in Clatsop, Clackamas, Jackson and Morrow/Umatilla counties.

Among the bills that the legislature passed that will have the greatest effect on day to day practice are the following. Please note that these descriptions are intended only to describe the bills generally. Each of these bills contains provisions not reflected in the description.

HB 2359-B: Judgments clean-up
This bill corrects and clarifies issues arising from the substantial revision of judgment laws in HB 2646, enacted in 2003. Highlights of HB 2359 include:

HB 2359 contains many other significant provisions dealing with the scope of judgments, support awards, contempt proceedings and probate and protective proceedings.

SB 920-B: Judicial sales
SB 920 is another comprehensive bill growing out of the Oregon Law Commission’s judgments revision project, and is designed to update and clarify the procedure for judicial sales under writs of execution. The bill deals with the following issues:

SB 275-B: the Oregon Uniform Trust Code
With passage of the Oregon Uniform Trust Code, Oregon for the first time will have a comprehensive body of trust law to which practitioners can refer. Although for the most part it codifies existing Oregon law, the trust code does make some changes that will be important to those advising clients on trust matters. Most of the trust code is default law: rules that apply when the trust instrument does not provide specific guidelines. The trust code:

SB 323-A: Independent Contractor
The result of legislation that orginated with bar’s Taxation Section, this bill simplifies the test to determine whether a person is an independent contractor for purposes of ORS Chapters 316 (revenue), 657 (unemployment insurance), 671 (architects, landscape architects and landscape contractors) and 701 (construction contractors).

The essence of the bill is a new test, which requires an independent contractor to be:

In determining whether a person has an independently established business, the person must meet three of the following five criteria:

SB 234-A: Disestablishment of Paternity
Section 9 of SB 234 allows a legal parent to re-open the issue of paternity if blood tests show a zero percent probability that the legal father is the biological father of a child. These provisions are repealed in January 2008, and while the bill remains in effect a workgroup will be established to consider adoption of all or portions of the Uniform Parentage Act and to examine unintended consequences of this bill.

SB 5563-A: Budget for Council on Court Procedures
The Council on Court Procedures reviews the Oregon Rules of Civil Procedure, suggests amendments and submits a report to the legislature at the beginning of each session. The council is composed of lawyers and judges who serve as volunteers, and will be staffed by a director from Lewis & Clark Law School. The legislature appropriated $10,000 to keep the CCP going for this biennium; the bar will contribute $8,000 for members’ travel expenses. The legislature will appoint an interim work group to evaluate the role, function and composition of the CCP and report to the Interim Judiciary Committee by September 2006.

SB 284-A: Extension of statute of limitation upon lawyer’s death
This bill applies where a client hires an attorney to file a case and the attorney dies before filing. In such circumstances, SB 284 provides that the action must be commenced within six months of the attorney’s death or within the time established in the applicable statute of limitation, whichever is longer.

HB 2285-B: Discovery in administrative medical license discipline proceedings
In license suspension or revocation proceedings, health licensing boards under current law must provide licensees with only those materials that the board will rely upon at a hearing. HB 2285 will allow licensees access to broader information the board obtains in the course of its investigation, including exculpatory information, subject to a number of significant exceptions. This highly contentious bill provided an opportunity for lawyers, doctors and other licensed health care professionals to work together toward a common goal. We hope that this joint project will help improve relationships and benefit both professions.

SB 311-B: Regulation of workers’ compensation medical exams
At the insurer’s request, an injured worker must submit to a medical examination by a doctor hired by the insurer. SB 311 addresses the perception of bias toward insurers in such insurer medical examinations (IMEs). The Department of Consumer and Business Services will regulate these exams and maintain a list of providers authorized to perform IMEs. The agency will set standards for certification, develop and approve training, develop a complaint investigation process and set criteria for sanctions. It will also create an expedited process for a worker to appeal the insurer’s choice of an examiner based on location.

A number of issues, for good or for bad depending on your viewpoint, fell by the wayside. Only one bill passed that dealt with litigation reform – a measure (HB 3159-B) that limits the liability of installers of products containing asbestos. Bills addressing social issues like abortion and civil unions, important to the bases of both parties, got nowhere after passing the chamber in which they originated. The legislature took no action to address the probjem of ungrading courthouse facilities or to enact a badly needed increase in judicial salaries.

Conclusion
Since the legislature passed over 800 bills, it is likely that something they did will affect your area of practice in some way. A more detailed discussion of the bills I’ve described and many others, organized by areas of practice, is available in the OSB publication 2005 Legislative Highlights. The text of all the bills that passed — and much more interesting information — is available at the legislature’s website, www.leg.state.or.us.

Bar members, sections and committees reviewed hundreds of bills and wrought positive changes in many. Individual lawyers can make a difference, both in providing technical information to improve the legislature’s product and in involvement in grass roots advocacy for and against measures that come before the body. The bar strives for continuous improvement in the law and in its law improvement activities. For bar groups that want to introduce legislation, the deadline for submission of legislative concepts to the Public Affairs Committee of the Board of Governors for pre-session filing is April 1, 2006, for the 2007 legislative session.

The 2007 session itself is just around the corner — in just 16 months the process starts all over.

Recognition

The Oregon State Bar would like to thank the following legislators with legal training and expertise who have dedicated countless hours of service in the legislative assembly to the benefit of the judicial system, the legal profession and the citizens of Oregon.

Oregon Senate:
Peter Courtney (D), Marion County

Kate Brown (D), Multnomah and Clackamas counties

Betsy Johnson (D), Columbia, Clatsop and Tillamook counties

David Nelson (R), Umatilla, Wallowa, Morrow and Union counties

Charlie Ringo (D), Washington County

Floyd Prozanski (D), Lane and Douglas counties

Oregon House of Representatives:
Dennis Richardson (R), Jackson and Josephine counties

Phil Barnhart (D), Linn and Lane counties

Robert Ackerman (D), Lane County

Brad Avakian (D), Washington County

Greg Macpherson (D), Clackamas and Multnomah counties

Jury Appreciation Week

Lawyer legislators worked together to raise the awareness of their colleagues and the general public about the important role juries play in the justice system. The legislature honored the contributions of jurors to Oregon’s justice system in House Concurrent Resolution 7, designating the week of May 2- 8, 2005, as Juror Appreciation Week. Bar members Rep. Brad Avakian (D. Beaverton), Rep. Dennis Richardson (R. Central Point) and Sen. Kate Brown (D. SE Portland) were chief co-sponsors of the resolution, which recognizes that juries are an integral part of the judicial branch and a fundamental right of those coming before the court. Thirty other legislators also sponsored the measure.

The Multnomah Bar Association’s Young Lawyers Section worked closely with Rep. Avakian to pass the measure to coincide with Law Day. The bar and its Judicial Administration Committee organized local events throughout the state to emphasize the importance of jury duty and to thank jurors for their service.

—Susan Grabe

ABOUT THE AUTHOR
Gerry Gaydos is a partner in the Eugene firm of Gaydos, Churnside & Balthrop and is chair of the OSB Board of Governors’ public affairs committee. Public affairs director Susan Grabe and public affairs attorney David Nebel contributed to this article.

 

© 2005 Gerry Gaydos

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