SENATE COMMITTEE ON JUDICIARY

 

 

March 25, 2003                                                                                             Hearing Room HR 343

8:00 a.m.                                                                                                                         Tapes 69-71                                               

 

MEMBERS PRESENT:         Sen. John Minnis, Chair

Sen. Ginny Burdick, Vice-Chair

                                                Sen. Ted Ferrioli

Sen. Charlie Ringo

Sen. Charles Starr

Sen. Vicki Walker

 

STAFF PRESENT:                 Craig Prins, Counsel

Bill Joseph, Counsel

Ann Martin, Committee Assistant

 

MEASURE/ISSUES HEARD:           SB 100 Public Hearing

                                                SB 487 Public Hearing and Work Session

                                                SB 304 Public Hearing and Work Session

                                                SB 617 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

69, A

005

Chair Minnis

Calls the meeting to order at 8:10 a.m. Opens a public hearing on SB 100.

SB 100 PUBLIC HEARING

010

Philip Schradle

Department of Justice. Submits testimony and testifies in support of SB 100 which establishes rules and procedures for transmission of record to court when petition is filed in circuit court challenging order other than contested case issued by state agency. Discusses -3 amendments (EXHIBITS A & B).

101

Sen. Ringo

Asks Mr. Schradle for some examples of the most common types of orders other than in a contested case.

107

Schradle

Explains that it can take a variety of forms.

131

Sen. Ringo

Asks how it would end up in court.

130

Schradle

Responds that the next step would be for that person to file a petition in circuit court for judicial review. Says that is the process that’s in place right now.

157

Sen. Burdick

Asks if there could be a case where the evidence is presented to the agency and the agency decides not to make it part of the record.

160

Schradle

Answers, no. Says that the agency is required to forward the record on to the circuit court.

165

Sen. Burdick

Asks if there is any provision for the agency to say that the evidence is irrelevant and that they are not making it part of the record.

167

Schradle

Concludes that the reviewing court determines if the agency correctly determined if the evidence is relevant or irrelevant.

179

Stephen Bushong

Oregon Department of Justice. Submits testimony and testifies in support of SB 100 (EXHIBIT C).

283

Bushong

Discusses cases.

343

Sen. Burdick

Asks what happens during a contested case hearing and who gets to request that.

348

Bushong

Explains the process of a contested case hearing.

359

Sen. Burdick

Wonders if there is any process that provides an avenue for people to get a contested case hearing.

374

Bushong

Stresses that Oregon Law establishes the right to a contested case hearing in a number of statutes.

391

Sen. Burdick

Comments on contested case hearings for major cases.

400

Bushong

Agrees that it would be a different kind of record. Adds that in the GASP case there was a public process, but it wasn’t a contested case process.

414

Sen. Burdick

Asks if there had been a contested case process involved in the GASP case, could they have saved money.

420

Bushong

Replies that he does not have the figures. Says that you could have an argument either way that it would or would not save money.

70, A

003

Bushong

Continues his testimony in support of SB 100.

021

Sen. Burdick

Expresses her concerns for major cases that do not go through the contested case or circuit court process. Asks if Mr. Bushong has thought about ways to address that.

034

Bushong

Explains that did happen before Norden. Answers that requiring a contested case hearing in every instance is a significant commitment of resources.

058

Sen. Burdick

Asks about PERS case.

065

Bushong

Explains that in the PERS instance, the review would still be before the Circuit Court.

076

Sen. Ringo

Inquires about discovery opportunities before an agency.

081

Bushong

Responds that when a petition for review is filed in circuit court, that triggers the normal discovery rules.

092

Sen. Ringo

Wonders if at the agency level, if there is not the right to issue a subpoena to third parties.

095

Bushong

Says that is right when there is not a contested case process required by law.

102

Sue Oliver

Oregon Department of Environmental Quality. Submits testimony and testifies in support of SB 100 (EXHIBIT D).

158

Milton Jones

Attorney, Associated Oregon Industries. Submits testimony and testifies in support of SB 100 (EXHIBIT E).

256

Sen. Ringo

Says he assumes that the administrative law judge is making factual determinations. Asks if that is correct.

261

Jones

Answers, yes.

263

Sen. Ringo

Wonders if there are circumstances where the public would think that someone in the agency has a certain bias that a circuit court judge would not have.

271

Jones

Says that’s possible and that is why a person would withhold information from the agency.

286

Sen. Ringo

Asks what’s the standard for reviewing factual errors at the appellate level.

290

Jones

Explains standard review.

297

Sen. Ringo

Mentions that he wants to understand the process a little better. Asks if the findings of fact by an agency have to be supported by the record.

306

Jones

Answers, that is correct.

316

Sen. Burdick

Asks what Oregon standard is for overturning agency decision.

322

Jones

Says that he believes that the Oregon standard is whether or not the decision by the agency is supported by the record.

333

Sen. Burdick

Thinks that it would be easier to overturn an agency decision by the Oregon standard than by federal standard.

340

Jones

Concludes his testimony in support of SB 100.

363

Janice Krem

Oregon Administrative Law Section, Oregon State Bar. Submits testimony and testifies in opposition to SB 100 (EXHIBIT F). Expresses her concerns about the -3 amendments (Exhibit A).

69, B

002

Krem

Continues her testimony in opposition to SB 100.

031

Sen. Burdick

Asks where administrative law judges come from.

033

Krem

Answers that they are generally employed by the hearing officer panel. Provides example.

071

Chair Minnis

Asks for clarification on why a contested case would be sent to the circuit court.

077

Krem

Says that there are a variety of reasons why they would do that.

078

Chair Minnis

Asks why an agency would hold a contested case hearing.

094

Krem

Says that an agency does not have to hold a contested case hearing.

101

Sen. Ringo

Asks if Ms. Krem wants everyone to be able to have a right to a contested case hearing.

104

Krem

Responds that she thinks it should be an option, but this bill does not offer enough due process.

111

Sen. Ringo

Asks if there are other sets of disputes resolved in other ways than by a contested case hearing.

114

Krem

Says that she doesn’t think that’s an accurate description because an agency does not have to give a contested case hearing.

119

Sen. Ringo

Feels she is not satisfied with the current situation.

123

Krem

Responds that is correct because this bill does not address a proceeding that is enough like a contested case proceeding.

142

Sen. Ringo

Says that they are not envisioning a whole new process. Asks where the Administrative Law Section was on this issue prior to the Norden case.

147

Krem

Explains that the Norden case was expressed in an opinion and that was the status quo.

154

Chair Minnis

States that he is not happy with the Oregon State Bar this session. Closes the public hearing on SB 100 and opens a public hearing on SB 487.

SB 487 PUBLIC HEARING

176

Sen. Rick Metsger

Senate District 26. Submits testimony and testifies in support of SB 487 (EXHIBIT G).

200

Craig Prins

Committee Counsel. Introduces SB 487 which adds animal control officer to crime of assaulting public safety officer.

210

Becky Hoffman

Deputy, Hood River County Animal Control. Submits testimony and testifies in support of SB 487 (EXHIBIT H).

331

Sen. Burdick

Asks what happened to the woman that assaulted her.

342

Hoffman

Answers that a jury let her off and explains.

359

Susan Russell

Oregon Criminal Defense Lawyers Association. Testifies in opposition to SB 487.

368

Sen. Ringo

Asks if expanding the definition of “animal control officer” may have any other ramifications other than what has been discussed.

383

Sen. Ferrioli

Recalls that past legislation increased the penalty for assaulting an official in a sporting event. Wonders why Ms. Russell would not want to protect a safety officer.

394

Russell

Explains that their concern is that at some point a line needs to be drawn between categories.

384

Jim Dohr

Code Enforcement Specialist, Albany Police Department. Submits testimony and testifies in support of SB 487 (EXHIBIT I).

70, B

003

Dohr

Continues his testimony in support of SB 487.

034

Chair Minnis

Closes a public hearing on SB 487 and opens a work session on SB 487.

SB 487 WORK SESSION

037

Sen. Ferrioli

MOTION:  Moves SB 487 to the floor with a DO PASS recommendation.

 

 

VOTE:  5-0-1

EXCUSED:  1 - Ringo

038

Chair Minnis

Hearing no objection, declares the motion CARRIED.

SEN. BURDICK will lead discussion on the floor.

041

Chair Minnis

Closes the work session on SB 487 and opens a public hearing on SB 304.

SB 304 PUBLIC HEARING

049

Craig Prins

Committee Counsel. Introduces SB 304 which expands basis for waiving youth to be prosecuted as adult.

054

Karen Brazeau

Director, Oregon Youth Authority. Testifies on SB 304. Discusses her concerns.

087

Doug Harcleroad

Lane County District Attorney. Testifies in support of SB 304.

088

Scott Heiser

Benton County District Attorney. Testifies in support of SB 304.

089

John Fisher

Polk County District Attorney. Testifies in support of SB 304.

090

Amy Holmes Hehn

Multnomah County District Attorney. Testifies in support of SB 304.

091

Brad Berry

Yamhill County District Attorney. Testifies in support of SB 304.

147

Sen. Walker

Asks what happens if they go over their cap (beds).

150

Berry

Answers that if they are at their cap then they will have to find alternatives.

203

Susan Russell

Oregon Criminal Defense Lawyers Association. Testifies in support of SB 304.

212

Chair Minnis

Closes the public hearing on SB 304 and opens a work session on SB 304.

SB 304 WORK SESSION

211

Sen. Burdick

MOTION:  Moves SB 304 to the floor with a DO PASS recommendation.

 

 

VOTE:  6-0

215

Chair Minnis

Hearing no objection, declares the motion CARRIED.

SEN. FERRIOLI will lead discussion on the floor.

222

Chair Minnis

Closes the work session on SB 304 and opens a public hearing on SB 617.

SB 617  PUBLIC HEARING

225

Hardy Myers

Attorney General. Restitution Task Force. Testifies in support of SB 617 which requires restitution in all cases in which victim suffers injury, loss or damage (EXHIBIT K ).

235

Connie Gallagher

Department of Justice. Testifies in support of SB 617

335

Senator Kate Brown

Senate District 21. Testifies in support of SB 617.

364

Arwen Bird

Executive Director, Survivors Advocating For an Effective System (SAFES). Submits testimony and testifies in support of SB 617 (EXHIBIT L).

428

Sen. Ringo

Asks if the person that injured her has the ability to pay restitution.

433

Bird

Answers that her case is unusual. Says that he has had the means to pay, but the state has not pursued him and that he has currently filed for bankruptcy.

71, A

011

Steve Doell

Crime Victims United. Testifies in support of SB 617.

050

Helen Smith

Chief Deputy District Attorney, Multnomah County District Attorney’s Office. Testifies in support of SB 617 (EXHIBIT M).

074

Diane Rea

Board of Parole. Says that she will come back later to testify in support of SB 617.

076

Myers

Explains proposed amendments to SB 617 that they are working on.

088

Sen. Ferrioli

Says that he thinks the policy issue is persuasive.

096

Sen. Ringo

States that he wants to study some issues of this bill later.

108

Susan Russell

Oregon Criminal Defense Lawyers Association. Testifies in opposition to SB 617. Says they oppose it as it is currently drafted.

162

Chair Minnis

Closes the public hearing on SB 617 and adjourns the meeting at 10:10 a.m.

 

 

EXHIBIT SUMMARY

 

A – SB 100, -3 amendments, dated 3/11/03, submitted by staff, 5 pgs.

B – SB 100, written testimony, submitted by Phillip Schradle, 2 pgs.

C – SB 100, written testimony, submitted by Stephen Bushong, 1 pg.

D – SB 100, written testimony, submitted by Sue Oliver, 1 pg.

E – SB 100, written testimony, submitted by Milton Jones, 2 pgs.

F – SB 100, written testimony, submitted by Janice Krem, 4 pgs.

G – SB 487, written testimony, submitted by Senator Rick Metsger, 1 pg.

H – SB 487, written testimony, submitted by Becky Hoffman, 3 pgs.

I – SB 487, written testimony, submitted by Jim Dohr, 2 pgs.

J – SB 487, written testimony of Jim Tomson, submitted by staff, 1 pg.

K – SB 617, written testimony, submitted by Connie Gallagher, 2 pgs.

L – SB 617, written testimony, submitted by Arwen Bird, 2 pgs.

M – SB 617, written testimony of Michael Schrunk, submitted by staff, 1 pg.

N – SB 617, written testimony of Vic Falgout, submitted by staff, 2 pgs.