HOUSE JUDICIARY COMMITTEE

 

January 30, 2003   Hearing Room 357

1:00 P.M. Tapes  21 - 22

 

 

 

MEMBERS PRESENT:            Rep. Max Williams Chair

                                                Rep. Robert Ackerman, Vice-Chair

                                                Rep. Gordon Anderson, Vice-Chair

                                                Rep. Jeff Barker

                                                Rep. Jerry Krummel

                                                Rep. Greg Macpherson

                                                Rep. Floyd Prozanski

                                                Rep. Lane Shetterly           

 

MEMBER EXCUSED:            Rep. Bob Jenson

 

STAFF PRESENT:                  Bill Joseph, Counsel

 Nancy Massee,  Committee Assistant

 

MEASURE/ISSUES HEARD:        

Introduction of LC 1280

HB 2279 Public Hearing

                                                HB 2063 Public Hearing

                                                HB 2269 Public Hearing

 

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.

 

                    

Speaker

Comments

Tape 21, A

006

Chair Williams

Convenes meeting at 1:10 p.m. Explains introduction of LC 1280, which increases motor vehicle liability coverage required for personal injury and property damage, as a committee bill (EXHIBIT A).

INTRODUCTION OF LC 1280

020

Chair Williams

MOTION:  Moves LC 1280 BE INTRODUCED as a committee bill.

022

Chair Williams

Hearing no objections, declares the motion CARRIED.

024

Chair Williams

Opens public hearing on HB 2279.

HB 2279 PUBLIC HEARING

034

Bill Joseph

Committee Counsel. Explains HB 2279 which relates to arbitration; creating new provisions and amending certain ORS’s. 

044

James J. Damis

Oregon State Bar (OSB) Executive Committee on Alternative Dispute Resolution.  Continues explaining purpose of HB 2279. Describes the current Uniform Act and says the statute would broaden provisions (EXHIBIT B).

077

Chair Williams

Asks how many states have adopted the act.

079

Damis

Answers he does not know.

082

Chair Williams

Explains there will be more discussion on this bill.

107

Damis

Expects the realtors to question this bill.  Realtors may think this act will upset their arbitration methods used up to now.

110

Rep. Krummel

Asks if there should be realtor to realtor commission disputes addressed in the statute.

123

Damis

Responds OSB believes there is no need to change the language of the revised Uniform Arbitration Act. 

134

Rep. Krummel

Asks if in an arbitration is it usual that both parties are represented by counsel.

145

Damis

Replies there is no requirement to be an arbitrator. Generally in arbitration representation is by attorneys or retired judges.

164

Harlan Levy

Oregon Association of Realtors.  Explains the purpose of arbitration is to take less time and be less expensive; to create an alternative to litigation. Discusses Hawaii’s arbitration statute changes.  Purpose is to make process move more quickly.

198

Chair Williams

Asks if Hawaii has had any problems with disputes on commissions in the real estate business.

200

Levy

Replies at this time he does not have that information.

217

Joseph

Asks if the realtor’s arbitration process is binding or not.

220

Levy

Believes it is a binding process. 

223

Rep. Macpherson

Asks if the arbitration process is limited to realtor versus realtor disputes.

237

Levy

Answers the process referred to is when two realtors have a dispute over a commission. 

236

Rep. Krummel

Asks about dispute between realtor and seller, what kind of arbitration would result.

255

Levy

Believes it is this kind of arbitration.

263

Chair Williams

Closes public hearing on HB 2279.  Opens a public hearing on HB 2063.

HB 2063 PUBLIC HEARING

069

Bill Joseph

Committee Counsel Explains HB 2063 which relates to Uniform Principal and Income Act; creating new provisions; amending certain ORS’s.

310

Chris Cline

Attorney, Portland, OSB Executive Committee on State Planning and Administration. Explains purpose of  HB 2063 which will update investments in the act.  Describes beneficiaries’ income issues. Describes safeguards in the bill (EXHIBIT C).

355

Cline

Under principal income act there are rights under a trust agreement.  Explains income for tax purposes means one thing but income for a trust agreement means something else under statute.  This is a practice coming from English law.

397

Rep. Macpherson

Reiterates the bill is updating with respect to bringing asset classes not addressed before.  Is there a slant to the way these new provisions work in the Uniform Act in enhancing the flow of income?

470

Cline

Answers in general it is fairly neutral theme, but somewhat arbitrary with the ten percent figure picked.

TAPE 22, A

039

Rep. Macpherson

Asks what the histories of these changes have been.

044

Cline

Replies the changes are fairly recent in response to the Prudent Investor Act.  There are about 20 states now and more states will be adopting this.

055

Chair Williams

Asks if there are particular changes specific to Oregon.

059

Cline

Replies the major change was the Uniform Act.

074

Bradd Swank

Counsel, State Court Administrators Office.  Refers to Section 4, A. Concern focuses on subsection 4, page 4 of the bill.  Cites Brown v OSB.  

113

Chair Williams

Asks if this would be in the form of a declaratory judgment action.

120

Swank

Responds that the court said there has to be a controversy or the court cannot give an advisory opinion.

130

Cline

Comments there is authority to go into court with a trust matter and get instruction from the court.

134

Chair Williams

Comments that the courts stand as ultimate protector of the beneficiaries of the trust.

154

Tim Martinez

Oregon Bankers Association.  Asks for more time to discuss these issues with the OSB. 

176

Chair Williams

Comments that bankers need to talk on uniform laws.

190

Martinez

Discusses the trust committee is comfortable with the bill. Addresses the question of liability. Twenty states have done this.  Last session the Uniform Commercial Code legislation from Oregon was unlike other states.

213

Chair Williams

Closes the public hearing on HB 2063.  Opens a public hearing on HB 2269.

HB 2269 PUBLIC HEARING

212

Bill Joseph

Committee Counsel. Explains HB 2269 which relates to trusts; creating new provisions; and amending ORS 128.009. 

238

Chris Cline

Attorney, OSB Executive Committee on Estate Planning and Administration. Explains reasons for HB 2269.   Gives examples of irrevocable trusts.  Discusses wills and trusts.  States the committee has worked for five years to make laws for trusts conform to laws of wills (EXHIBIT D).

300

Chair Williams

Discusses language of trusts.

320

Cline

Says these laws will cover the blank spots for trusts just as wills have historically been covered.

325

Rep. Macpherson

Refers to revocable trusts and the role they play in estate planning.

328

Cline

Starting in the early 70s, revocable trusts, instead of wills, have been used more than before.  This bill is to bring uniformity to the trust laws.

356

Rep. Macpherson

Asks if there is a Uniform Act that Oregon has used.

377

Cline

Refers to the uniform probate code. Suggests that in 2005 the uniform trust code will be looked at. Oregon has not adopted them.

398

Rep. Macpherson

Refers to pre-deceasing and disclaiming.

407

Cline

Rep. Shetterly asked if this legislation can become effective right away. 

399

Chair Williams

Indicates Rep. Shetterly wishes to add an emergency clause. Asks Counsel to draft emergency clause. Closes public hearing on HB 2269.  Re-opens public hearing on HB 2279.

HB 2279 PUBLIC HEARING RE-OPENED

440

Steve Murrell

Attorney. State Farm Insurance. Addresses the revised Uniform Arbitration Act.  States they are neutral on the bill; notes concerns with section 21 of the Act.   

483

Shawn Miller

National Association of Independent Insurers. Refers to Page 8, Section 28.  Supports arbitration in resolving disputes expeditiously.  

TAPE 21, B

062

Murrell

Continues discussing concerns with punitive damages.  Discusses how other states have removed punitive damages. Refers to alternative dispute resolutions.  Asks to work with committee further.

070

Rep. Prozanski

Asks if in mandatory arbitration punitive damage should be awarded in order to bypass judicial proceeding.

090

Murrell

Replies there are agreements with a broader picture to be concerned with.

100

Chair Williams

Comments about bargaining power being unequal in relation to arbitration clauses.  Wants to know what other states have done.

115

Rep. Ackerman

Asks if upon conclusion of arbitration, is the award confirmed by the court.

118

Murrell

Answers that is an option to be confirmed by the court and entered as a judgment. In his experience, the court does not get involved.

124

Rep. Ackerman

If the court confirms an award, would it be in the form of an enforceable judgment rather than just an order.

126

Murrell

Replies that is his understanding.

131

Damis

States that a big complaint of arbitration is it takes away punitive damages. Explains how federal law protects arbitration process in states.

170

Bradd Swank

State Court Administrator’s Office. Discusses ways to assist arbitration.  Concern is the costs from double paperwork and double appeals. Also, the bill appears to limit the ability of the court to review. Wants further discussion with OSB.

264

Chair Williams

Asks where the potential increase in cost is.

265

Swank

Responds there is the potential for increased supervision of the arbitration by the courts. 

277

Chair Williams

Comments those are not necessarily new powers granted.  Points out an example of pending arbitration.

303

Swank

Answers that some of those who deal with arbitrations regularly in the court say the reason for this act is to increase the supervision of arbitrations and access to courts.  Discusses doubling of appeals.  States that further study of increase in costs will be discussed.

331

Rep. Ackerman

Comments that there is savings by keeping cases out of court through arbitration.

344

Swank

Agrees that dispute resolution programs through arbitration and mediation programs assist and expedite the courts’ work.  States that they are looking at unintended consequences and costs so that the legislation works in the best possible way.

370

Chair Williams

Closes the public hearing on HB 2279.  Adjourns the meeting at 2:30 p.m.

 


 

EXHIBIT SUMMARY

 

A – LC 1280, dated 11/20/02, Staff, 4 pp

B – HB 2279, Written testimony, James Damis, 1/30/03, 1 p

C – HB 2063, Written testimony, Chris Cline, 1/30/03, 2 pp

D – HB 2269, Written testimony, Chris Cline, 1/30/03, 1 p