HOUSE COMMITTEE ON JUDICIARY

 

May 02, 2003 Hearing Room 357

1:00 p.m. Tapes  171 - 173

 

MEMBERS PRESENT:            Rep. Max Williams, Chair

Rep. Gordon Anderson, Vice-Chair

Rep. Robert Ackerman, Vice-Chair

Rep. Jeff Barker

Rep. Bob Jenson

Rep. Jerry Krummel

Rep. Floyd Prozanski

Rep. Lane Shetterly

 

MEMBER EXCUSED:            Rep. Greg Macpherson

 

STAFF PRESENT:                  Bill Joseph, Counsel

Craig Prins, Counsel

Ann Martin, Committee Assistant

 

MEASURE/ISSUES HEARD:            SB 43A Public Hearing and Work Session

                                                SB 39 Public Hearing and Work Session

                                                SB 101A Public Hearing

                                                SB 42 Public Hearing and Work Session

                                                SB 41 Public Hearing

                                                HB 2118 Work Session

 

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 171, A

004

Chair Williams

Calls the meeting to order at 1:25 p.m. Opens a public hearing on SB 43A.

SB 43A PUBLIC HEARING

010

Scott Morrill

Oregon State Bar. Submits testimony and testifies in support of SB 43A which exempts certain activities of title insurers, title insurance agents and escrow agents from prohibitions on unauthorized practice of law (EXHIBIT A).

057

Cleve Abby

State Counsel, Lawyers Title Insurance Corporation and Chair, Legislative Committee of the Oregon Land Title Association. Testifies in support of SB 43A.

086

Susan Grabe

Oregon State Bar, Government Relations Office. Testifies in support of SB 43A.

090

Vice Chair Anderson

Asks about people in other states writing forms that are being used in Oregon.

091

Abby

Says they are not and explains the forms that title companies use.

128

Rep. Jenson

Asks if we have a problem with the current statute in Oregon.

124

Morrill

Answers that this is a proactive measure from the title and escrow companies to help them not practice law without a license.

149

Rep. Krummel

Wonders about the purpose of the bill.

161

Morrill

Answers that a title and escrow agent should not be explaining provisions of the contract or document.

167

Rep. Krummel

Says that he thought that the title and escrow agents could explain documents. Asks where the line is drawn on this.

177

Abby

Responds that it is a fuzzy line and explains that the escrow agent/realtor is there to provide information, but not legal advice.

204

Rep. Shetterly

Asks what it means to “arrange” on page 1, Section 1, line 12.

210

Abby

Answers that that language is existing law.

230

Chair Williams

Closes the public hearing on SB 43A and opens a work session.

The following prepared testimony is submitted for the record without public testimony for SB 43A:

 

James W. Nass

Submits written testimony (EXHIBIT G).

SB 43A WORK SESSION

236

Rep. Prozanski

MOTION:  Moves SB 43A to the floor with a DO PASS recommendation.

238

Rep. Krummel

Asks about a discussion in the bill regarding disclosure as to what constitutes practicing law.

247

Chair Williams

Believes that is what the bill is doing and that the disclosure in the bill on page 2, lines 22-32, highlights the distinction for a person in the middle of a transaction.

234

 

VOTE:  8-0-1

EXCUSED:  1 - Macpherson

235

Chair Williams

Hearing no objection, declares the motion CARRIED.

REP. ACKERMAN will lead discussion on the floor.

283

Chair Williams

Closes the work session on SB 43A and opens a public hearing on SB 39.

SB 39 PUBLIC HEARING

288

Dan Olsen

Washington County Counsel, Oregon State Bar, Government Law Section. Submits testimony and testifies in support of SB 39 which modifies rule of evidence relating to privileges (EXHIBIT B).

371

Stephanie Smythe

Testifies in support of SB 39.

373

Vice Chair Ackerman

Talks about being at several executive sessions when the discussion has strayed off and the press representatives warn them. Asks if the privilege could be waived in those circumstances.

387

Olsen

Explains that the privilege is separate from the public meetings law.

407

Vice Chair Ackerman

Discusses the difference in privileges.

428

Chair Williams

Closes the public hearing on SB 39 and opens a work session.

SB 39 WORK SESSION

433

Rep. Prozanski

MOTION:  Moves SB 39 to the floor with a DO PASS recommendation.

 

 

VOTE:  8-0-1

EXCUSED:  1 - Macpherson

440

Chair Williams

Hearing no objection, declares the motion CARRIED.

REP. KRUMMEL will lead discussion on the floor.

453

Chair Williams

Closes the work session on SB 39 and opens a public hearing on SB 42.

SB 42 PUBLIC HEARING

456

Chair Williams

Recesses the public hearing on SB 42 which provides that statutes of limitation and other procedural statutes governing civil and criminal proceedings are computed in calendar years.

TAPE 172, A

019

Chair Williams

Closes public hearing on SB 42.  Opens a public hearing on SB 101.

SB 101 PUBLIC HEARING

023

Thomas Castle

Assistant Attorney General, Department of Justice. Testifies in support of SB 101A which allows public servant or public servant’s employer to seek injunction against person engaging in conduct constituting specified crimes.

045

Shelley K. McIntyre

Assistant Attorney General, Department of Justice. Testifies in support of SB 101A.

064

Rep. Shetterly

Asks why they limit this to public servants if this is good public policy.

071

McIntyre

Says that they already have laws that protect the general public. Emphasizes that public officials have been targeted and this bill is to protect them.

092

Rep. Krummel

Asks about his constituents that have been fairly “spirited” and tried to do business with an agency and then become angry. Wonders if this bill refers to them.

109

McIntyre

Says that it would depend on the facts because it is already against the law to behave like that.

127

Rep. Krummel

Explains that if a person has had an injunction against them, but has to have future contact with this agency then would they be violating their injunction.

144

Castle

Answers that the injunction can be fashioned for each individual situation.

152

Chair Williams

Discusses example of a Department of Environmental Quality (DEQ) employee testing an underground storage tank on someone’s property.

175

McIntyre

Explains that if a person cannot control himself and is threatening and interfering with an agency employee, then the opportunity there is to seek a contempt citation from the court.

199

Chair Williams

States that if a person is threatening with a firearm then he would hope that the state would send someone to protect them.

211

McIntyre

Agrees and says that these employees are not paid enough to have themselves or their children threatened.

216

Chair Williams

Asks what a person can do if someone is threatening them and there is a court order, but they keep violating them.

251

McIntyre

Explains and says that in this case the agency can seek the injunctive relief on behalf of its employee. Sees this as incremental.

274

Rep. Shetterly

Says that there are circumstances that are equivalent that occur in the private sector. States that it troubles him that we are providing a remedy only for public employees.

286

Castle

Asks Rep. Shetterly if he is talking about a person waiving their 5th amendment rights.

312

Rep. Shetterly

Says, yes, which alleges a crime, but in a civil context.

364

McIntyre

Says that they have not committed a crime, but have engaged in the conduct which meets the definition under these provisions.

375

Rep. Prozanski

Questions intent of bill.

TAPE 171, B

007

Rep. Barker

Says that he sees this as a good thing so that the employer can act for the employee.

012

McIntyre

Responds that this will keep people from coming to meetings and causing problems.

025

Vice Chair Ackerman

Wonders what the fiscal impact might be if a right-to-counsel issue is raised.

030

McIntyre

Says that she has not thought about the fiscal impact.

039

Bill Joseph

Committee Counsel. Discusses changing the language.

050

Chair Williams

Closes the public hearing on SB 101A and re-opens a public hearing on SB 42.

SB 42 PUBLIC HEARING RE-OPENED

064

Mark Morrell

Oregon State Bar, Procedure and Practice Committee Chairman. Submits testimony and testifies in support of SB 42 which provides that statutes of limitation and other procedural statutes governing civil and criminal proceedings are computed in calendar years (EXHIBIT C).

070

Michael Zusman

Oregon State Bar, Procedure and Practice Committee. Testifies in support of SB 42.

110

Rep. Shetterly

Discusses leap years.

200

Chair Williams

Closes the public hearing on SB 42 and opens a work session.

SB 42 WORK SESSION

204

Rep. Prozanski

MOTION:  Moves SB 42 to the floor with a DO PASS recommendation.

 

 

VOTE:  8-0-1

EXCUSED:  1 - Macpherson

213

Chair Williams

Hearing no objection, declares the motion CARRIED.

REP. SHETTERLY will lead discussion on the floor.

233

Chair Williams

Closes the work session on SB 42 and opens a public hearing on SB 41.

SB 41 PUBLIC HEARING

241

Mark Morrell

Oregon State Bar, Procedure and Practice Committee Chairman. Submits testimony and testifies in support of SB 41 which provides that prevailing party in civil action relating to express or implied contract is entitled to award of attorney fees authorized by contract or by statute, even though party prevails by reason of claim or defense asserting that contract is in whole or part void or unenforceable (Exhibit C).

258

Michael Zusman

Oregon State Bar, Procedure and Practice Committee. Testifies in support of SB 41.

303

Rep. Krummel

Asks about page 1, line 9 of the bill, and if this applies to any contract that has ever been entered into.

310

Zusman

Says yes, and that they are not extending the 6-year statute of limitations.

315

Rep. Shetterly

Discusses examples of contracts.

328

Zusman

Mentions there is a 3rd contract situation.

333

Vice Chair Ackerman

Asks about a successful defense based upon a jurisdictional issue.

339

Zusman

Says he does not believe jurisdictional would affect the contract at all.

345

Chair Williams

Asks for his thoughts on the -2 amendments (EXHIBIT D).

346

Zusman

Discusses the -2 amendments.

374

Morrell

Says that the Procedure and Practice Committee would like to see this apply across the board, but understands the realities of commerce.

395

Rep. Shetterly

Says that this bill seems to disadvantage the purchaser.

TAPE 172, B

019

Chair Williams

Asks if a shareholder suit would fit into one of the categories.

031

Zusman

Answers that he would have to have the statute in front of him to answer that.

087

Harlan Levy

Staff attorney, Oregon Association of Realtors. Submits testimony and testifies in opposition to SB 41 (EXHIBIT E). Says he would like all real estate contracts to be exempt from this bill.

127

J.L. Wilson

National Federation of Independent Business (NFIB). Testifies in opposition to SB 41.

139

Darrell Fuller

Oregon Auto Dealers Association. Testifies in opposition to SB 41.

193

Chair Williams

Discusses example of a contract to buy a car in relation to the bill.

225

Fuller

Says a contract would be voided if someone was not 18 years old and the parents should be responsible.

239

Chair Williams

Discusses other examples of contracts that can be void.

264

Rep. Shetterly

Talks about a real estate contract.

319

Julie Brandis

Associated Oregon Industries. Testifies in opposition to SB 41.

358

Vice Chair Ackerman

Discusses possible compromise.

372

Levy

Believes that there are statutes out there that provide attorneys fees provisions.

401

Rep. Shetterly

Says that he doesn’t see this bill as a great incentive for someone to file a lawsuit.

424

Chair Williams

Closes the public hearing on SB 41 and opens a work session on HB 2118.

HB 2118 WORK SESSION

427

Pete Shepherd

Deputy Attorney General. Testifies in support of HB 2118 which expands circumstances under which order authorizing use of pen register or trap and trace device may be entered.

TAPE 173, A

003

Shepherd

Continues his testimony in support of HB 2118. Discusses the -1 amendments (EXHIBIT F).

077

Matt McCauley

Assistant Attorney General. Testifies in support of HB 2118.

129

Rep. Shetterly

Asks what the -1 amendments do. Wonders if misdemeanor crimes are covered by the bill in the first place.

137

Shepherd

Explains the -1 amendments and the original bill have covered misdemeanors.

148

Chair Williams

Discusses bill and the committee’s concerns.

166

David Fidanque

Executive Director, American Civil Liberties Union (ACLU) of Oregon. Testifies in opposition to HB 2118 and the -1 amendments.

196

Susan Russell

Oregon Criminal Defense Lawyers Association. Testifies in opposition to HB 2118.

242

Rep. Jenson

MOTION:  Moves to ADOPT HB 2118-1 amendments dated 04/18/03.

 

 

VOTE:  6-0-3

EXCUSED:  3 - Krummel, Macpherson, Prozanski

243

Chair Williams

Hearing no objection, declares the motion CARRIED.

244

Rep. Jenson

MOTION:  Moves HB 2118 to the floor with a DO PASS AS AMENDED recommendation.

 

 

VOTE:  6-0-3

EXCUSED:  3 - Krummel, Macpherson, Prozanski

253

Chair Williams

Hearing no objection, declares the motion CARRIED.

REP. WILLIAMS will lead discussion on the floor.

255

Chair Williams

Closes the work session on HB 2118 and adjourns the meeting at 3:30 p.m.

 

 

EXHIBIT SUMMARY

 

A – SB 43A, written testimony, submitted by Scott Morrill, 2 pgs.

B – SB 39, written testimony, submitted by Dan Olsen, 1 pg.

C – SB 42, written testimony, submitted by Mark Morrell, 2 pgs.

D – SB 41, -2 amendments, submitted by staff, dated 4/15/03, 1 pg.

E – SB 41, written testimony of Matt Farmer, submitted by Harlan Levy, 1 pg.

F – HB 2118, -1 amendments, submitted by staff, dated 4/18/03, 2 pgs.

 

The following exhibit is listed out of order in the body of the tape log:

G – SB 43A, written testimony of James W. Nass, 1 pg.