OREGON LAW COMMISSION

 

 

April 24, 2001                                                                                                      Hearing Room 343

3:00 p.m.                                                                                                                           Tapes 8 - 9

 

MEMBERS PRESENT:         Rep. Lane Shetterly, Chair

Sen. Kate Brown, Vice Chair

Steve Blackhurst

Chief Justice Wallace P. Carson,  Jr.

Jeff Carter

Sandra Hansberger

Prof. Hans Linde

Greg Mowe

Attorney General Hardy Myers

Dean Symeon Symeonides

Prof. Bernie Vail

Prof. Dom Vetri

Rep. Max Williams

 

 

 

STAFF PRESENT:                 David Kenagy, Executive Director

                                                Michelle Mhoon, Assistant to the Executive Director

Shirley Gunter, Administrative Assistant

 

MEASURE/ISSUES HEARD:           Approval of Minutes for February 22, 2001 Commission Meeting. Executive Director’s Report

                                                Recommendation of Program Committee/Saving Statute

                                                Recommendation of the Program Committee/Eminent Domain

                                                Oregon Law Commission Bill Status Report

                                                Section by Section Analysis on HB 2611

                                                Conflicts Law Applicable to Contracts Comments

                                                Testimony on SJR 39

                                                Testimony on HB 3165 and HB 3374

                                                Post-Report Procedures Memo

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

 

These minutes are in compliance with Senate and House Rules.  Only text enclosed in quotation marks reports a speaker’s exact words.  For complete contents, please refer to the tapes.

 

TAPE/#

Speaker

Comments

 

TAPE 8-A

 

006

Chair Shetterly

Meeting was called to order at 3:30 p.m.  The Chair asks for approval of the February 22, 2001 Commission Meeting Minutes.   There being no objections or revisions the minutes are approved.  Apologizes for the late start and the change in rooms.  The room assigned to the Commission was still in use by a legislative hearing committee so it became necessary to move this meeting to Hearing Room E.  The chair advises that Commissioner Hardy Myers needs to attend another meeting so will be leaving at 4:00 and asks that his item be first on the agenda after the Executive Director’s report

 

024

David Kenagy

Reports on changes occurring with the Law Commission staff and gives highlights on some legislative requests for Law Commission assistances.   Michelle Mhoon, Assistant Executive Director, is leaving to join the law school staff at Willamette University to teach Legal Research & Writing and to study for the Oregon Bar. 

 

035

Chair Shetterly

Acknowledges the many contributions Michelle has made to the Commission and states she will be sorely missed.  The Chair reviewed Michelle’s experience, her wise and patient advice to the Executive Director and Commissioners, her great communication, organizational and legal support.   Delegates to the Executive Director to present Michelle a token of our esteem and friendship, which we hope, will continue in the years to come.

 

081

David Kenagy

Presents Michelle with a framed picture of the State Capitol Building. Also announces that Shirley Gunter will be retiring at the end of May.  He recognizes all the good work Shirley has contributed over the past ten months to the Commission and itemized many of the minute details with which she served the Commission.  Presents Shirley with a framed picture of the State Capitol building as well.  Introduces Linda Waugh, who will be taking Michelle’s place as the Assistant to the Director.  Linda comes from the office of the Legislative Counsel with the blessing of Greg Chaimov.  Gives a brief overview of Linda’s qualifications.

 

161

Chair Shetterly

Directs Commissioners to jump down to Item #4 on the agenda and asks Hardy Myers to present this item.

 

169

Hardy Myers

States that there are two action items from the Program Committee that need addressing.  The first is behind Tab 7 and is a recommendation that originated from Professor Holland at the University of Oregon Law School in relation to clarifying ORS 12.220, a “Saving Statute”.  (EXHIBIT A) Memorandum written by Extern Student, Alexa Crutchfield, dated April 16, 2001 re Recommendation of Program Committee/Savings Statute.  An analysis is included in the Report so at this time I would make a motion for the formation of the Work Group in accordance with this recommendation.

 

179

Chair Shetterly

Asks for discussion and/or questions.   Acknowledges Justice Carson.

 

181

Wallace Carson

Explains that he fully intends to support this and though knowing that Maury Holland is the distinguished Director of the Oregon Council on Court Procedures, wonders if there is a history of why it would fit in court procedures and if that is why it was coming to us.

 

185

Chair Shetterly

Comments that he does not know and asks for clarification.

 

186

David  Kenagy

Comments that the Savings Statute is in ORS 12.220 and not in the ORCP and so technically it is outside of their jurisdiction.  Suggests that’s one way of looking at it.

 

192

Chair Shetterly

Asks for questions or discussion.

 

193

Hans Linde

Asks if it would it be wise to ask the council to recommend something to us even though it happens to be in the statues? 

 

199

David Kenagy

In forming the Work Group, particularly with Maury Holland, the expertise of the Council on Court Procedures will be fully available.  It would be prudent to bring their expertise to bear.

 

202

Hans Linde

Thinks it may be prudent but he was focusing on another point.

 

203

Chair Shetterly

Comments that we have a natural bridge or liaison between the two.  

 

206

Hardy Myers

Moves that we approve the formation of the Savings Statute Work Group and appoint Commissioner Dom Vetri as Chair, Professor Maury Holland as Reporter and delegate the task of selecting Work Group members for the Savings Statue Work Group to the Chair of the Commission, the Chair of the Work Group and the Reporter.  

 

211

Chair Shetterly

States that Commissioner Hardy Myers moves to approve the formation of the Savings Statute Work Group, appoint Commissioner Dom Vetri as the Chair, appoint Professor Maury Holland as Reporter for the Work Group and delegates the task of selecting Work Group members for the Saving Statute Work Group to the Commission Chair, the Chair of the Work Group and the Reporter for the Work Group.  Asks for any objections and hearing none, the Motion carries for the formation of the Saving statute Work Group with Commissioner Dom Vetri as the Chair, Professor Maury Holland as the Reporter and I will work with the Chair and Reporter to round out the membership of the Work Group.

Vote:  13-0

So ordered.

 

227

Hardy Myers

Explains the other half of the Program Committee’s recommendation behind Tab 8,  (EXHIBIT B) Memorandum from Extern Student, Kristin Flickinger dated April 13, 2000 re: Recommendation of Program Committee/Eminent Domain Code, that originated with a proposal from Commissioner Greg Mowe for the formation of a Work Group to address ORS Chapter 35, the Oregon Eminent Domain Code.  Commissioner Mowe reviewed for the Program Committee several provisions of the current code, which are either unclear or might benefit from modification.  Those are inventoried in the report that appears behind Tab 8.  Asks for a motion or discussion.

 

239

Chair Shetterly

Suggests that we take a motion and open it for discussion.

 

240

Hardy Myers

Moves to approve the formation of the Eminent Domain Code Revision Work Group, appoint Greg Mowe as Chair and delegate the task of selecting a Reporter and Work Group Members to the Chair of the Commission and the Chair of the Work Group.

 

244

Chair Shetterly

States that Commissioner Myers moves that we approve the formation of the Eminent Domain Code Revision Work Group, appoint Commissioner Mowe as the Chair of the Work Group, delegate the task of selecting a Reporter and Work Group Members for the Work Group to the Chair of the Commission and the Chair of the Work Group.  Asks for discussion.

 

248

Greg Mowe

There was an amendment in 1997 to the Eminent Domain Code, which fixed some problems but did not address other statutory language leaving ambiguities that are noted in the memo; there was an attempt to fix them in 1999 but the legislation got bogged down and ultimately did not pass.  These discrepancies have been noted in prior legislation.  There is a list of items; the first two items are technical and merely require people to agree on them.   However, four more items could be more substantive so it is my intent to assemble a Work Group that consists of Practitioners and Governmental Representatives on both sides of Eminent Domain issues to see if there is a broader consensus.  If not, I propose a fix of the technical problems and if there is a consensus perhaps we could go further and address some issues such as pre-condemnation surveys that are hanging out there with a lot of inconsistent law. 

 

272

Chair Shetterly

Asks for further discussion.  There is none. 
States that there is a motion before us and asks if there are any objections.  Hearing none the motion is carried.

Vote:  13-0

So ordered.

 

275

Justice Carson

Suggests to the Chair and the Chair of the Work Group that Kathleen Beaufait who is a longtime worker on the Legislative Counsel, did the last revisions about 30 years ago on Eminent Domain be asked to serve, if available and in agreement to serve.

 

284

Chair Shetterly

Comments that the formation of the Eminent Domain Revision Work Group is approved and Commissioner Mowe is appointed as Chair, the selection of Recorder and members of the Work Group will be delegated to Commissioner Mowe and the Commission chair with a notation of Kathleen Beaufait’s name being placed into nomination.

Asks if there is anything else from the Program Committee and hearing that there is nothing at this time, returns to Item 3 to ask Dave Kenagy for a report on the Bill Status.

 

296

David Kenagy

Informs that Michelle Mhoon is to report to the Commission on the Bill Status.  Refers to Tab 4 (EXHIBIT C), Oregon Law Commission Bill Status Report, which includes a brief summary on each of the bills. Although things are changing quickly updates as recent as two hours ago will be included in the report.

 

302

Michelle Mhoon

Gives a brief summary because what happened up to two hours ago can be found in the report.  The short summary is that the Public Body Bill HB 2425 has been signed by the Governor; this Bill is all the way through the system.  The Judicial Review Procedures Act, HB 2246, is deferred until the next legislative session.  The other eight Bills have passed the House and are waiting for Hearings in the Senate Judiciary Committee.  The Conflicts Bill had a Hearing today and was passed out of Senate Judiciary Committee to the floor of the Senate.  Another hearing for one of the Juvenile Bills is scheduled on Thursday, April 26, for HB 2392 – Child Support Obligations Bill.  The other six are waiting for hearings before the Senate Judiciary Committee.   

Refers to the two action items under the Bill Status.  The Juvenile Code Revision Work Group approved a Section by Section Analysis on HB 2611-1 during the March meeting of the Juvenile Work Group and we would like the Commission to adopt that Report as a Commission Report.  Asks if Senator Brown would make a motion on that that Report.

 

337

Chair Shetterly

Asks if Michelle is referring to the Report behind Tab 5 (EXHIBIT D), Section by Section Analysis on HB 2611?

 

348

Michelle Mhoon

Confirms that Tab 5 (EXHIBIT D-described above) is correct.

 

339

Chair Shetterly

Recognizes Senator Brown.

 

340

Sen. Kate Brown

Moves that we adopt the Section-by-Section Analysis of HB 2611, the Oregon Rules of Juvenile Court Procedure, and that the Section-by-Section Analysis is presented to the Legislative Assembly subject to non-subjective corrections.

 

345

Chair Shetterly

States that Commissioner Brown moves that we adopt the Section-by-Section Analysis of HB 2611, as the Oregon Rules of Juvenile Court Procedures, and the Section-by-Section Analysis is presented to the Legislative Assembly subject to non-substantive corrections.  Again, it is the Report behind Tab 5 (EXHIBIT D-described above) in your notebook.    Asks for discussion on the Motion.  (discussion follows). 

Comments that this was not before the House and asks if it will catch-up with the Bill in the Senate.  (It was confirmed that that is correct.) 

 

364

Hans Linde

Explains that at the top of page 4 the word “it” needs to be removed.

 

389

Sen. Kate Brown

Discusses that HB 2611 has been through objections from the bench in a couple of different categories.  One group saying “…. they didn’t think we needed any more procedures  in juvenile court …” to “…. this is really going to complicate matters….”.   The Work Group met and addressed most of the concerns and now the Judges, who had concerns about the Bill, are now supportive (or willing to be quiet) because they do not know a lot about Juvenile Court processes.  Thanks were extended to Judge Darling who was the intermediator between the Judges, Circuit Court Judges and the Work Group.

 

419

Bernie Vail

Explains that on page 6, subsection 4 at the top, in the third line-the word “most” might be vagrant and could be removed.  These are non-substantive changes.  Some discussion ensued.

 

481

Chair Shetterly

Recognizes that the words, “is” and “most” can be looked at by Dave Kenagy, Commissioner Brown and the Committee that is dealing with this to determine if the words could be removed.  Asks for any other comments.

States that there is already a motion before us.  Are there any objections to the motion?  Hearing none, Motion is carried.

Vote:  13-0

So ordered.

 

Tape 9-A

 

046

Michelle Mhoon

Directs attention to Tab 6, (EXHIBIT E) Conflicts Law Applicable to Contracts Comments, which are comments prepared by Professor Jim Nafziger and points out that they have been circulated among the Conflict of Laws Work GroupAsks the Commission to consider adopting these Comments as Commission Comments and recommends that Professor Vetri make a motion for the Commission to adopt.

 

051

Dom Vetri

Moves to adopt the Conflicts Law Applicable to Contracts Comments.  Advises that the group has been working on these Comments before the Commission approved the Bill, and now requests this final draft be adopted.

 

054

Chair Shetterly

States that Commissioner Vetri moves to adopt the Comments to HB 2414, Conflict of Laws Applicable to Contracts, and that the comments be presented to the Legislative Assembly subject to non-substantive corrections. 

 

059

Chair Shetterly

Thanks Professor Vetri, Dean Symeonides and members of the Work Group for their outstanding work.  Announces that it met with favorable acceptance in the Senate today.  Asks for other discussion on the motion.

 

068

Hans Linde

Wants to include Chair Shetterly in the list of those who facilitated the acceptance.

 

072

Chair Shetterly

Thanks Hans Linde and asks for further discussion on the motion? There being none, the motion is carried with no objection.

Vote:  13-0

So ordered.

 

075

Chair Shetterly

Comments that it is time for Item 5.

 

076

Hardy Myers

Notes that the comments do not identify the Conflicts Bill.

 

079

Chair Shetterly

Acknowledges that the cover sheet of the Comments does not identify the Bill.  This is a non-substantive amendment but suggests that this be amended to include Bill number.  Asks for anything else before progressing to Item number 5.

 

087

Dave Kenagy

Refers to Executive Director’s Report section 2 B and the legislative request before going on to Number 5.

 

090

Chair Shetterly

Thanks Dave for the suggestion.

 

091

Dave Kenagy

Addresses the Chair and members of the Commission and refers to Tab 2 and Tab 3.  Starting with Tab 2 (EXHIBIT F), Memorandum from David Kenagy re: Testimony on SJR 39, dated April 4, 2001 directed to the Senate Health and Human Services Committee.  This covers information regarding something new as far as the Law Commission is concerned.  Recalls that under an authorizing statute the Legislature is permitted to direct, instruct or request the Oregon Law Commission to undertake certain projects on behalf of the Legislature.  Notes that there are two such requests of which we are currently aware working their way through this 2001 Legislative Session.  Alerts the Commissioners to their existence, the first being Senate Joint Resolution 39 (now known as SJR 39-3 because of Amendments that we were invited to make as a Law Commission staff in shaping the requests that come to us).  This Resolution was first brought to our attention by the Department of Human Services and was a request made of the Oregon Law Commission to assist in reviewing the legal infrastructure surrounding the ability of state law to accept Federal Funds and channel them through private non-profits in partnership with the Department of Human Services for the benefit of recipients.  The challenge, of course, is to confront the potential of a conflict arising constitutionally on the separation of church and state as well as a number of other issues that surround any use of public monies when channeled through non-profits including faith based organizations.  Senator Shields in the 1999 session passed a Senate Joint Resolution 25 to establish, as a matter of public policy, the desirability of using Federal Funds in this way to further reach Oregonians in need.   With the support of Bobby Mink, the interim Director of Human Services, Senator Frank Shields is inviting the Commission to undertake (pursuant to the text of the Resolution that is before them) an analysis of current law.  One of the challenges is putting together an appropriate Work Group.  Explains that at a hearing on this Bill, representatives of the Oregon Catholic Conference, the American Jewish Committee, the ACLU and others came and were concerned that the critical balance might be upset.  Professor Steven Green of Willamette’s faculty and myself testified initially as to the availability of the Commission.  Once that was on the table, the Amendments were introduced and at a hearing just last week, the Senate, Health and Human Services Committee passed this to the floor of the Senate.  That is the current status.

 

 

141

Chair Shetterly 

Asks for questions or discussion.

 

142

Hardy Myers

Questions if the Bill/Referral was amended to send  it to Ways and Means and asks if that can be discussed.

 

146

Dave Kenagy

The Committee did not.  A Fiscal Impact Statement was proposed on behalf of the Commission (simply as to what it would cost the Commission).   What was said in consultation with Chair Shetterly  is that $15,000 per year ($30,000 for the Biennium) would let the Law Commission continue to pursue this as an issue in addition to the set agenda that comes through the Program Committee.  That is what was submitted.  Concludes that this is the current status of the Legislative Fiscal Report.

 

155

Chair Shetterly

Questions if that is in the Resolution?

 

158

David Kenagy

Answers, no, that it is not in the text.  This is the time to address it.

 

162

Chair Shetterly 

Comments that while discussing matters fiscal why not bring us up to date on the Budget request because it probably ties into that.    

 

166

David Kenagy

Explains that our Law Commission Budget is a line item within the Budget that will be presented by Gregory Chaimov.   Greg’s Bill for Legislative appropriations to run the Commission as well as Legislative Counsel and other legislative services is scheduled for hearing some time in May, after the analysis comes out on the state of available resources.  At this point the Bill is sitting and waiting and has not been scheduled for hearing.

 

175

Hardy Myers

Wants to know what is the requested appropriation presently.

 

176

David Kenagy

 

States that it is $100,000 per year or $200,000 for the Biennium, which is matched by the Willamette University contribution to put the team together, the facilities and all the rest.

 

180

 Kate Brown

Seeks clarification.

 

186

Hardy Myers

Explains that he was referring to the work directed by this resolution.

 

188

Chair Shetterly 

Comments that Dave and he have discussed this as a matter of precedent.  One or two such legislative requests might be accommodated in a biennium.  If the Legislature assigns a specific task to the Commission then consideration in terms of the dollars should be funded for the additional workload of the Commission.  His thinking is to make a modest request for funding to follow any specific assignments from the Legislature.

 

209

Bernie Vail

Notes that the statute that creates the Commission says that the Senate may direct us to do things.  When we ask for the biennial budget, depending upon what we have been directed to do, perhaps we need to raise the budget amount.  The idea of asking the Legislature ad hoc for project money is not ideal.  The idea that we are a body, which can reject a request from the Legislature unless they put money to it, is not within the scope of the Charter of the Commission.

 

223

Chair Shetterly 

Clarifies further that he does not see this as rejecting.  The Legislature has the statutory authority to assign us to do this and in this respect we are like any agency or commission in other parts of the Government; we have a base budget that is sufficient before we consider the foreseeable on-going activities of the Commission.  If in the course of specific legislative activities, the Legislature is going to impose requests or obligations on top of that, I think that it is fair to ask for an appropriation in addition to the base budget which does not contemplate these additional requests.  The Legislature could say that we need to find room in the budget to do this but I do not think it hurts to raise that as an issue when request is being made for additional services.  I do not think we have the authority to say, no, but it is understandable that there is a cost to anything that we are asked to do.

 

243

Hans Linde

Makes a ‘footnote’, clarifying that he would not go so far as to say that this Commission is just like any governmental commission.  This Commission can probably say “no” to things that others cannot because it comes from all three branches.  He just wants to ‘raise a yellow flag’ and have the record show that we cannot be told to do anything.

Comments on this particular project that it is one that is appropriate on its merits but we need the extra resources.

 

264

Chair Shetterly 

Recalls that Dave and he had discussed whether this was something that we wanted immediately to distance ourselves from and we decided in our executive judgement, if we could help fashion it in some way so that it was asking the right questions, if we could frame the questions, then we could see a helpful role for the Commission in answering those questions.

 

272

Hans Linde

Requests one other question to ask: it is important not to let the church and state issues swamp everything else.  There are genuine and interesting state constitutional issues about money flows and such.  Asks if Commissioner  Myers tell us what knowledgeable person, if someone is available, could explain about using public funding.  We really ought to have legal advice since very few of the people here are really thoroughly knowledgeable about the law governing appropriations to be spent through private entities.

 

288

Dave Kenagy

Responds to Commissioner Linde’s observation.  During the process of thinking about people to consider for Work Group participation, we gave to Senator Shields’ Legislative Aide, Matt Shields, the name of a contact person who was well known to us within the Department of Justice, the name of Phil Schradle, so at least they could understand that any Work Group that is connected to these issues simply must be connected to the Attorney General’s Office without question. The point of involving the Department of Justice was made early in this discussion.

 

304

Chair Shetterly 

Asks about continuing on with HB 3374 and HB 3165.

 

306

Hardy Myers

Asks what is the status of the Senate Joint Resolution?

 

307

Dave Kenagy

Replies that it is out of the Senate Committee and onto the floor of the Senate as of two days ago.

 

310

Hardy Myers

Asks if there is a Fiscal Impact Statement that was generated and was it presented to the Senate Committee.

 

312

Dave Kenagy

Affirms that he prepared and presented it to Legislative Fiscal in advance of the hearing, so it was in the Bill packet but there was no discussion at the work session that passed the Bill to the floor.  So, what is interesting is what does that tell us and what should we be doing? 

 

321

Hardy Myers

Comments that maybe we should resolve it as a Commission how we might want that issue addressed in the House.  If picked up by a House Committee he thinks that we need to engage in some very specific discussion with that Committee about the fiscal impact.

 

329

Chair Shetterly 

Suggests that that would be an appropriate bill to request for the Judiciary Committee on the House side and there is some confusion whether that $50,000 de minimis limit applies this session as it has in the past or bills under $50,000 just do not go to Ways and Means.  At $30,000 it is in a gray zone and we would have some conversation at least in the hall with Representative Westland to get a lead on the sense of the Ways and Means interest.  It may be that this Bill is insignificant enough in its fiscal impact that it may not have to go to Ways and Means.

 

343

Dave Kenagy

States that on  the basis of some research that was done on the funding question that a joint resolution may, by its content, authorize expenditures out of legislative expense appropriations.  We should consider amending the resolution expressly to make that statement.  Asks if that is the direction that is being suggested as a possible alternative.

 

351

Kate Brown

Comments that this issue, as opposed to tying down the resolution itself, is that it be a specific item in the Law Commission’s budget when the budget is heard and that we have been directed by the Legislature to take on this particular project, we anticipate that the project will cost us $x and let the Ways and Means committee make a determination whether they want to fund 50 plus 30 or whatever it is. This would just be another way.

 

362

Chair Shetterly 

Explains that timing may play into this; it depends when the budget comes up and when this gets assigned and heard in committee.  Surmises that if the Commission is comfortable he needs to work with Dave as it goes through and we will work the fiscal piece of this, whichever way is most appropriate depending on timing and other considerations but we will try and keep the appropriation attached to the resolution.  Clarifies that the first step in getting it to the Judiciary Committee on the House side is the most important and the rest will be worked out.

 

379

Chair Shetterly

States that in terms of subject matter, it raises Judiciary issues.

 

380

Hans Linde

Affirms the statement.

 

387

Dave Kenagy

The second is HB 3374 – 3165 (EXHIBIT G), Memorandum from David Kenagy re: Testimony Regarding HB 3165 and HB 3374 (combined) directed to Senate Health and Human Services Committee, which at one point were to be combined but are presently separate Bills, each have now enjoyed a hearing before the House Advancing E Government Committee; neither has, at this point, enjoyed a work session nor made it to the floor of the House.  Comments that they are both ‘alive’ and informs as to what they do.

In the case of HB 3374 - it invites Legislative Counsel to take a look at obstacles to E-Government that agencies would report to Legislative Counsel so that Legislative Counsel could make appropriate recommendations for law changes that may be needed to facilitate e.g. e-mail communication within agencies and agencies to those they serve.  That’s a fairly modest suggestion and a good one, which we think will advance. 

The other, HB 3165, is much larger in its scope; it is a bill that was fashioned after the recommendations of the Governor’s Internet Commission, one of which recommendations included a pervasive, all-encompassing study of Oregon law to determine whether there are problems with E-Commerce that could be resolved through changes to our legal infrastructure (a very broad charge).  The Internet Commission suggested that Legislation authorizing funding and further study and research be created and this bill embodies that notion.  It is drafted to invite the Oregon Law Commission to organize, supervise and process that look at Oregon law for purposes of advancing Electronic Commerce within the state; it is a potentially enormous project but, of course, depends on funding.  We have been invited through the work of the Internet Commission to provide that service. In consultation with our Chair we approach the funding question in the same way as SJR 39 with the same amount, asking for an additional $15,000; the essence was to retain where necessary, appropriate expertise to look at some of the challenging issues that will be before us.

 

446

Chair Shetterly 

Asks for questions on those bills.  Comments that this is why we have an Executive Director who can track these things on a daily basis because ‘things’ move quickly in this process.

 

452

Kate Brown

Notes her concern about HB 3165 in that the fiscal impact of it is underestimated.  Her gut reaction is that when experts are involved then it will double the your fiscal on that particular project..  Explains that she is concerned to limiting it to $30,000. 

 

468

Chair Shetterly 

Concludes that we will keep working on that.  Moves on to Item 5A. Commission Standard Operating Procedures, which is Tab 9 (EXHIBIT H), Agenda Items for Oregon Law Commission: Post-Report Procedures.  Asks Dave Kenagy if he wants to introduce this.

 

Tape 8-B

 

029

Dave Kenagy

Introduces by reference to the author of the contents behind Tab 9, that being Commissioner Linde, but he does say that during the course of this 2001 Legislative Session a number of issues have arisen as to how we as Commission Staff on your behalf appropriately shepard these bills, the comments and the reports through the legislative process, particularly under those circumstances in which the bills inevitably face amendment.  It ultimately has to do with the philosophy of how we view the work of the Law Commission.  One view would be that anytime an amendment to a Law Commission recommended bill is proposed, we should immediately reconvene the Law Commission, bring that tiny amendment back, vote and re-recommend or not so that we are current with the legislative process.  In effect, walking in parallel tandem with the legislative process itself.   The critique of that view is, first of all, we are not set up as a matter of staffing and convenience to do that because we are not a legislative committee; we are a Law Commission.  But, secondly and possibly more important, is the observation that to behave in that fashion during legislative session is to undermine the very nature of the Law Commission as a deliberative, thoughtful body taking time to do what is right.  Therefore, we are advised to take another approach that says that the Law Commission makes it recommendations, winds the clock and sets it loose into the legislative process and really has no further input on the subject.  The legislative process takes its own directions and makes amendment as necessary.  We have confronted along the way and Professor Linde has guided our thinking about these issues and related issues.  What you have before you are some thoughts about operating procedures that we might want to discuss as a Commission, to guide staff in advancing those kinds of interests.

 

054

Chair Shetterly 

Invites discussion on this matter – does not plan to take any action today. Notes that we have two legislative sessions to look at.  Much the same thing happened at the last legislative session – however, we did not have an Executive Director – you just didn’t know about it.  Described how the Commissioners handled business without an Executive Director.  Asks Professor Linde to introduce his memo on post-report procedures.

 

064

Hans Linde

Stated that Mr. Kenagy covered the content of his memo.  Did not intend to have any action taken on his agenda item.   Explains the purpose of the report – what procedures should be followed when preparing a proposed bill, etc.   He stresses that it is very important that proper procedures are always adhered to by the Commission.  Asks that this be part of the minutes and of record.

 

102

Dom Vetri

Agrees that Professor Linde has done a fine job and given useful information.  Also suggests that Mr. Kenagy obtain information from other state Law Commissions to look at their procedures and operating techniques.  Elaborates on how he feels about the process and what should or should not happen during the process.  Suggests various proposals on how the bill process should continue through legislation once it leaves the hands of the work group.

 

130

Chair Shetterly

Interjects that when there are drastic changes made to the proposed bill the Commission can offer a disclaimer that at that point the bill does not represent the views of the Commission.  Asks Bob Oleson of the Oregon State Bar to come forward and give his opinion on this matter.  What is the Bar’s process when this happens?  Questions what happens when bill proposals are presented by the sections and they get amended to death later?  How does the Bar handle it when this happens?

 

141

Bob Oleson

Explains that the procedures are printed in the Bar Bulletin directory.  They work reasonably well.  It is the same kind of process that the Professor is talking about.  The Bar has a Board Committee that oversees that process.  Some discussion follows.

 

158

Symeon Symeonides

States that the formula that Commissioner Vetri states is a very sensible and practical formula.  As an example, in Louisiana the Reporter is authorized to make certain concessions up to a point and use his or her judgment on when to involve others.  It is a good idea to have two actively involved people there and then the involvement of the Chair of the Commission to provide some additional safe guards

 

185

Chair Shetterly

Advises that Dave should take a look at other Commissions and how they handle this type of situation.  Also should look at the Bar’s procedures.  We should have some established protocols in the future.  We have done fine so far but we need to think about this in the future working with the Legislature. 

 

193

Symeon Symeonides

Advises that in the future when we have a lot of bills we might not be able to depend exclusively on Legislators who are members of the Commission so we would be seeking sponsors from the two houses.  We should be very careful to seek sponsors who are not only knowledgeable on the subject but who are also willing to be there and support the product.  As a practical matter it would be helpful to have members of the work group there so they can see how the process works and be there to answer questions of the Committee and some times questions from the floor.

 

207

Hans Linde

Seconds Dom’s and Symeon’s suggestions.

 

223

Chair Shetterly

Advises that Dave and Linda will be looking into this and report back to us at the July meeting.  Look at other models from other states.

 

229

Dave Kenagy

States that Michelle has been busy looking at two other states on this very point.  They were Connecticut and New Jersey.  Hopefully by July we can adopt something or at least before the next legislative session.

 

249

Chair Shetterly

Asks for questions.  Advises that there will be another Commission meeting on July 13 and hopefully the building will be quiet and we can have our pick of rooms.  Asks if there is a preference on having the meeting in the morning or afternoon?  It was decided that the next meeting would be held in the afternoon.  Gives a heartfelt thanks to both Michelle and Shirley.  Welcome to Linda.  Meeting is adjourned at 4:30 p.m.

 

 

Submitted By,                                                                           Reviewed By,

 

 

 

Rosalie M. Schele,                                                                    David R. Kenagy,

Administrative Assistant                                                            Executive Director

 

 

 

EXHIBIT SUMMARY

 

 

A --  Memorandum dated April 16, 2001, from Alexa Crutchfield, re: Recommendation of                       Program Committee on the issue of  the “Saving Statute”, 3 pages.

B  --  Memorandum dated April 13, 2001, from Kristin Flickinger, re: Recommendation of     the Program Committee on the issue of “Eminent Domain”, 2 pages.

C  --  Oregon Law Commission Bill Status Report, 3 pages.

D --   Section by Section Analysis on HB 2611, 13 pages.

E  --  Conflicts Law Applicable to Contracts Comments, 8 pages.

F  --  Memorandum from David Kenagy re: Testimony on SJR 39, dated April 4, 2001, directed to the Senate Health and Human Services Committee, 7 pages.

G  --  Memorandum from David Kenagy re: Testimony Regarding HB 3165 and HB 3374 (combined) directed to Senate Health & Human Services Committee,  2 pages.

H --  Agenda Item for Oregon Law Commission – Post-Report Procedures, 2 pages.