SENATE COMMITTEE ON JUDICIARY

 

 

March 11, 2003                                                                                             Hearing Room HR 343

8:00 a.m.                                                                                                                      Tapes  53 - 54

 

MEMBERS PRESENT:         Sen. John Minnis, Chair

Sen. Ted Ferrioli

Sen. Charlie Ringo

Sen. Charles Starr

Sen. Vicki Walker

 

MEMBER EXCUSED:          Sen. Ginny Burdick, Vice-Chair

 

STAFF PRESENT:                 Bill Joseph, Counsel

Patricia Nielsen, Committee Assistant

 

MEASURE/ISSUES HEARD:           SB 320 – Public Hearing

SB 356 – Public Hearing

SB 332 - 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.

 

TAPE/#

Speaker

Comments

TAPE 53, A

005

Chair Minnis

Calls meeting to order at 8:17 a.m.  Opens public hearing on SB 320.

SB 320 – PUBLIC HEARING

010

Sen. Richard Devlin

District 19.  Presents overview of SB 320, which provides that a court may not enter or enforce a confidentiality agreement, settlement agreement, stipulated agreement, protective order or judgment that prevents disclosure to the public of a document or other information that is evidence of financial fraud, defective product or environmental hazard, unless the court has entered a protective order for the document or information.  Testifies in support of SB 320.  Discusses confidential settlements and need for disclosure of information contained in such agreements.  Describes five specific cases. 

105

Sen. Walker

Expresses approval of concept and asks about issue of disclosure of intellectual property.

120

Sen. Devlin

Advises some sections protect specific information.  Offers to address additional concerns which might be raised.  Discusses balance between public’s right to know about dangerous products and concerns for privacy.

130

Sen. Walker

Asks about information other than products.

135

Sen. Devlin

Acknowledges services are also covered.

140

Chair Minnis

Asks where cases were tried.

142

Sen. Devlin

Offers to research and return the information to the Committee.

145

Chair Minnis

Inquires about number of states with anti-secrecy statutes.

148

Sen. Devlin

Responds there are about sixteen.

150

Sen. Ringo

Asks why the measure is limited to three areas of financial fraud, defective product or environmental hazard.

155

Sen. Devlin

Responds the language is narrow to improve chances of passage.   Agrees there are certainly other areas which could be addressed.

168

Steve Piucci

Trial lawyer.  Testifies in support of SB 320.  Provides written testimony (EXHIBIT A).  Discusses Enron company collapse, and how secrecy caused damage to many people.  Explains how confidential settlements can contain financial fraud which is sealed away from law enforcement.

270

Chair Minnis

Asks whether states with anti-secrecy statutes have more litigation in their federal courts.

275

Piucci

Explains how some federal courts have developed similar rules:

·         Cases brought in every forum where someone is injured or died.

·         Federal courts honor local state court laws.

300

Chair Minnis

Asks whether information about cases can be retrieved from states which already have anti-secrecy laws.

310

Piucci

Responds and explains that cases must be filed where accidents occur.

330

Chair Minnis

Asks about advantages of filing in federal or state court.

340

Piucci

Describes jurisdiction limitations.

345

Sen. Ringo

Asks if Oregon law would apply to cases tried in federal court.

355

Piucci

Confirms.

360

Chair Minnis

Inquires about applicable law in large class action suits.

365

Piucci

Confirms they are often filed in federal courts, and the law of the state where the suit is filed applies.

385

Bill Joseph

Committee Counsel.  Discusses settlement agreements as contracts, which are governed by the state law where the contract is entered.

400

Sen. Walker

Asks how long the trend has been developing.

405

Piucci

Responds it began in the 1980s.

TAPE 54, A

005

Sen. Walker

Asks about statute of limitation or statute of ultimate repose.

008

Piucci

Discusses.

010

Sen. Walker

Suggests those limitations should be extended.

012

Piucci

Agrees.

015

Steve Dixon

Consumer Advocate, Oregon State Public Interest Research Group (OSPIRG).  Testifies in support of SB 320.  Submits written testimony (EXHIBIT B).  Discusses need for disclosure to protect consumers.

050

Jim Craven

American Electronics Association (AeA).  Testifies in opposition to SB 320.  Submits written testimony (EXHIBIT C).  Expresses concerns about failure to protect intellectual property.  Suggests the measure would damage Oregon’s high-tech industry.  Asserts the protections in the measure are insufficient.  Recommends a detailed review of similar statutes in other states.  Offers to continue discussing the issue.

150

Chair Minnis

Asks about passage of legislation in Texas.

155

Craven

Offers to research.

160

Chair Minnis

Discusses financial fraud provisions.

165

Craven

Points out the bill covers a broad range of discovery before something is determined fraudulent by courts.

180

Chair Minnis

Asks about application of disclosure provisions in the measure.

185

Craven

Opines the bill applies to discovery process.

200

Sen. Ringer

Asks for assistance in the effort to decrease fraudulent practices.

205

Craven

Reiterates the specific issues of concern to his association.

220

Sen. Ringo

Discusses how protective orders assure secrecy of confidential information.

240

Craven

Addresses specific wording in measure.

260

Sen. Ringo

Asks for additional work to resolve the industry’s concerns.

300

Sen. Ferrioli

Recommends additional development with a work group.

310

Sen. Walker

Asks for specific suggestions to improve wording.  Suggests that with an organization of 3800 members nationwide there are members within the sixteen states with the anti-secrecy laws, and those members could explain how the existing laws have changed the working environment.

340

Craven

Offers to research.

345

Chair Minnis

Closes public hearing on SB 320.  Opens public hearing on SB 356.

SB 356 – PUBLIC HEARING

355

Sen. Tony Corcoran

District 4.  Testifies in support of SB 356, which creates a truth verification examiner licensing process.

390

Matthew Keetle

Criminal Investigations Section, Lane County Sheriff’s Department.  Testifies in support of SB 356.  Submits written material (EXHIBITS  D, E, F).

400

William Endler

National Institute for Truth Verification (NITV).  Testifies in support of SB 356.  Explains how the voice-stress analyzer works.  Discusses how the equipment differs from polygraph equipment.

TAPE 53, B

005

Chair Minnis

Asks whether control questions are used in the examinations.

010

Endler

Confirms.

035

Keetle

Continues and discusses workload of county sheriff offices, and how the equipment will streamline the investigation process.

060

Chair Minnis

Assumes evidence from the analyzer is inadmissible like the polygraph.

065

Keetle

Confirms.

070

Sen. Walker

Asks about using the equipment if witness is using drugs or is pregnant.

080

Endler

Discusses limitations on polygraph because of drug use, or if a woman is pregnant and the equipment picks up two heartbeats.

090

Sen. Walker

Asks about lack of sleep affecting polygraph results.

095

Endler

Explains how different physical stressors affect the examination, compared to the voice-stress analyzer.

105

Sen. Ferrioli

Asks about using the equipment to record conversations and whether the equipment works on recorded voices.

110

Endler

Acknowledges there are some limitations.  Reiterates this is only a tool to assist in investigation.

120

Chair Minnis

Explains limits on using voice recordings as evidence.

125

Sen. Ferrioli

Inquires why a statute is necessary if the equipment is available over-the-counter.  Asks if it is legal to use it for recording.

140

Keetle

Explains broad purpose of truth-verification devices which can be interpreted to require polygraph-type physical responses.  Discusses proposed -1 amendment (3-4-03) clarifying the issue (EXHIBIT G).

160

Sen. Ferrioli

Suggests clarifying existing law to allow use, instead of passing a new law to authorize use.

165

Endler

Explains licensing law, which describes the instrumentation.  Describes number of states which have accepted use of the instrumentation.  Continues this instrument is different from over-the-counter versions and is only sold to law enforcement agencies.

195

Chair Minnis

Comments that with polygraph licensure, there is a certain acceptance of certification administering the tests.  Suggests there is a confidence issue with regard to qualifications of the person conducting the test.

210

Endler

Describes the training program required before certification to use the equipment.  Discusses recertification requirements.  Compares polygraph training, which is not subject to continuing certification.

220

Chair Minnis

Asks about admissibility of polygraph evidence.

225

Endler

Explains.

240

Brian Strickland

Polygraph examiner.  Testifies in opposition to SB 356.  Provides written material (EXHIBITS H, I).  Discusses research surrounding the voice-stress analysis equipment.  Questions the accuracy rates of the equipment under certain circumstances.

395

Chair Minnis

Asks about accuracy of the equipment.

400

Strickland

Responds it is about 50 percent, versus polygraph which is 85-98 percent accurate.  Discusses other new technology being developed.

TAPE 54, B

005

Strickland

Points out where and when the polygraph is admissible and useful:

·         Admissible in probation or parole proceedings

·         Not admissible in new crimes

·         Pregnant women not tested to avoid liability for aborted pregnancy

·         The test is conducted later rather than sooner after an incident, to avoid the possibility of false positive results

020

Chair Minnis

Closes public hearing on SB 356.  Opens public hearing on SB 332.

SB 332 – PUBLIC HEARING

025

Bill Perry

Oregon Restaurant Association.  Testifies in support of SB 332, which allows an employer to collect a $1 processing fee for each week or part of a week for which payment is made under a writ of garnishment.  Discusses collection of child support and writs of garnishment by employers.  Describes limitation on employers collecting fees through the payroll process.  Discusses proposed -1 and -2 amendments (EXHIBITS J, K).

055

Chair Minnis

Asks about fiscal impact.

060

Perry

Advises he is not aware of a fiscal impact.

065

David Nebel

Oregon Law Center.  Testifies in opposition to SB 332.  Raises concern over employers beginning to charge for services they already perform, such as payroll. 

090

Sen. Walker

Comments on increasing numbers of garnishments and child support assessments.  Asks if employers should be allowed to keep costs down.

100

Nebel

Agrees but has no details on increasing numbers of garnishments.

105

Sen. Walker

Discusses other costs increasing for employers.

110

Nebel

Reiterates concern over keeping the paycheck as intact as possible.

120

Sen. Walker

Points out there are other avenues for relief.

135

Sen. Ringo

Comments on burden on employers through writs of garnishment, which should be reimbursed.

140

Nebel

Predicts an increase in the fees over time.

155

Chair Minnis

Asks whether employers would simply terminate employees.

160

Nebel

Suggests employees are protected from discharge on basis they are being garnished.

165

Chair Minnis

Asserts there is a cost to the employer for processing a garnishment.

167

Nebel

Agrees but points out there is a cost to the employer for payroll services anyway.

170

Chair Minnis

Suggests if an employer uses a payroll-processing professional and asks for a garnishment to be processed, there is additional cost.

180

Chair Minnis

Closes public hearing in SB 332.  Adjourns meeting at 9:59 a.m.

 

EXHIBIT SUMMARY

 

A – SB 320, written testimony, Steve Piucci, 1 p

B – SB 320, written testimony, Steve Dixon, 6 pp

C – SB 320, written testimony, Jim Craven, 2 pp

D – SB 356, written testimony, Matthew Keetle, 1 p

E – SB 356, written testimony, Matthew Keetle, 15 pp

F – SB 356, written testimony of Jan Clements, Matthew Keetle, 1 p

G – SB 356, -1 amendments (3-4-03), Matthew Keetle, 3 pp

H – SB 356, article “Detection of Deception,” Brian Strickland, 4 pp

I – SB 356, written testimony, Brian Strickland, 2 pp

J – SB 332, -1 amendments (3-10-03), staff, 1 p

K – SB 332, -2 amendments (3-10-03), staff, 1 p