SENATE COMMITTEE ON JUDICIARY

 

January 20, 2005                                                                                                 Hearing Room 343

1:00 p.m.                                                                                                                          Tapes  7 - 8

 

MEMBERS PRESENT:         Sen. Ginny Burdick, Chair

Sen. Roger Beyer

Sen. Charlie Ringo

Sen. Doug Whitsett

 

MEMBER EXCUSED:          Sen. Starr, Vice-Chair

                                                Sen. Prozanski

                                                Sen. Walker

                                               

                                   

STAFF PRESENT:                 Joe O'Leary, Counsel

Dale Penn, Committee Assistant

 

 

MEASURES/ISSUES HEARD & WITNESSES:      

                                                SB 26 – Public Hearing and Work Session

                                                            Kate Richardson, Office of the State Treasurer

                                                            Fred Boss, Department of Justice

                                                SB 203 – Public Hearing

                                                            Jonathan Fussner, Department of Justice

                                                            John Hummel, Oregon Criminal Defense Lawyers Association

                                                SB 208 – Public Hearing

                                                            Cheryl Pellegrini, Department of Justice

Paul Cosgrove, United Financed Lobby Jonathan Fussner, Department of Justice

                                                            John Hummel, Oregon Criminal Defense Lawyers Association

Blakely/Sentencing Developments - Informational Meeting

            Joe O’Leary, Committee Counsel

 

 

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 7, A

010

Chair Burdick

Calls the meeting to order at 1:13 p.m.  Opens public hearing on SB 26.

SB 26 PUBLIC HEARING

016

Joe O’Leary

Counsel.  Introduces SB 26 which allows Attorney General to represent the State of Oregon in certain securities fraud cases.

027

Kate Richardson

Chief of Staff, State Treasurer.  Submits written testimony of State Treasurer, Randall Edwards, in support of SB 26 (EXHIBIT A).

065

Fred M. Boss

Assistant Attorney General, Chief Counsel for the Civil Enforcement Division.  Submits testimony in support of SB 26 (EXHIBIT B).  Explains change that occurs due to this bill.

090

Boss

Discusses the benefits, fees, and concerns involved with a class action lawsuit, as well as other factors included in any settlement.

110

Chair Burdick

Closes public hearing on SB 26 and opens a work session.

SB 26 WORK SESSION

120

Sen. Ringo

MOTION:  Moves SB 26 to the floor with a DO PASS recommendation.

 

 

VOTE:  4-0- 3

AYE:            In a roll call vote, all members present vote Aye.

EXCUSED:  3 – Prozanski, Starr, Walker

125

Chair Burdick

The motion CARRIES.

REP. RINGO will lead discussion on the floor.

126

Chair Burdick

Closes the work session on SB 26 and opens public hearing on SB 203.

SB 203 PUBLIC HEARING

128

Joe O’Leary

Counsel.  Describes SB 203, which has to do with the statute of limitations on sex abuse.  Discusses current and possible statutes.

150

Jonathan Fussner

Assistant Attorney General, Department of Justice.  Provides testimony in support of SB 203 (EXHIBIT C).  Discusses child abuse sex abuse cases.

180

Fussner

Describes Walker case and its relationship with SB 203.  Details statute of limitations under certain situations, and how SB 203 seeks to alter it.  The bill clarifies "governmental agency" as law enforcement or an individual from the Department of Human Services.

209

Sen. Beyer

Asks to explain section 2, particularly part concerning ORS 131.

214

Fussner

Responds why section 2 is in there with that particular information.

238

Sen. Beyer

Asks whether it was the Court of Appeals or Supreme Court which made ruling with regards to statute of limitations.

241

Fussner

Replies that he doesn’t know which one, but yes.

247

Sen. Beyer

Asks under current law, what would happen if the perpetrator of the crime reports it to themselves and also happens to work for a governmental agency.

256

Fussner

Replies not entirely sure, hasn’t thought about it, answers as best he can.

260

Chair Burdick

Clarifies law; adds that that criminal has a “mandatory reporter” responsibility to report the crime, even if he was the perpetrator.

282

John Hummel

Oregon Criminal Defense Lawyers Association (OCDLA).  Testifies in opposition to SB 203 detailing the reasoning behind statue of limitations.  Points out it gets difficult for defendants to defend themselves as the statute of limitations increases.

330

Hummel

Discusses statute of limitations regarding sex abuse cases, and problems associated with those cases.

386

Sen. Ringo

Asks Mr. Hummel to respond to previous testimony that any government agency member can be told an offense of sex abuse occurred and then the statute of limitations begins.

395

Hummel

Responds that current bill has that problem.  Admits that SB 203 reduces that possibility, and states that OCDLA would agree with an amendment to current SB 203 definitions of governmental agencies, limiting it to members of the Department of Human Services.

420

O’Leary

States that the issue of “other government agency” issue came up with the Court of Appeals.  Counsel discusses the resolution.

456

Chair Burdick

Asks about statue of limitations for mandatory reporters.

462

Fussner

Discusses ORS 419B.010, relating to mandatory reporting of an offense, and the repercussions of such.

496

Chair Burdick

States possible way out of mandatory reporting.

TAPE 8, A

041

Fussner

States the possible way out may work, but reaffirms SB 203’s mission, as well as a possible amendment to deal with problems in mandatory reporting.

054

Chair Burdick

Asks if mandatory reporting would cost time in the case.

058

Fussner

Clarifies the time limit on mandatory reporting, states it might not be a bad idea to put one in.

067

Hummel

States that such a provision would make the OCDLA much more accepting of SB 203.

075

Chair Burdick

Closes the public hearing on SB 203 and opens public hearing on SB 208.

SB 208 PUBLIC HEARING

079

Joe O’Leary

Counsel.  Describes SB 208, relating to Attorney General’s permissions in regards to the No-Call list (NC list).

088

Pellegrini

Assistant Attorney General, Oregon Department of Justice.  Submits testimony for SB 208 (EXHIBIT D).  Discusses history of state and federal NC list.

125

Pellegrini

Discusses laws with relation to a federal and state NC list, and the reasons Oregon currently has no state-based enforcement.

165

Pellegrini

Indicates court proceedings involved with enforcing any federal or state-based NC list.  Discusses lack of funding with Attorney General’s enforcement.

181

Pellegrini

Discusses their support for SB 208, and how it will allow the Attorney General’s office to take action against the main companies Oregonians have problems with.

195

Chair Burdick

Asks about fines under state laws.

198

Pellegrini

Responds with facts on state laws and fines involved with violating the NC list.

213

Chair Burdick

Asks about federal fines and laws.  Responds with figures for violation of federal law.

220

Pellegrini

Begins section by section analysis of the bill.  Discusses section 1 and the inclusion of cell phones under NC list.

220

Chair Burdick

Asks if fax lines apply.

223

Pellegrini

Responds in the negative.

240

Chair Burdick

Asks about federal provisions, and if they apply.

242

Pellegrini

Responds that they do not.

253

Pellegrini

Continues analysis of SB 208 section by section, beginning with section 2.  Raises issue of NC list violating free speech, affirms it does not.

280

Pellegrini

Discusses section 6, with emphasis on Attorney General’s powers under this bill.

307

Pellegrini

Discusses Sections 7, 8, and 9, including an emergency clause to begin bill as soon as it is passed.

319

Chair Burdick

Asks if enforcement would increase if bill passed and Attorney General would have funding.

325

Pellegrini

Replies yes, the federal government is taking on many companies, but it is also expecting states to respond to other companies, and provide protection to its citizens.

342

Chair Burdick

Asks if the state is required to take over the same criteria as the federal government.

349

Pellegrini

Replies the exemptions to the list the federal government and Oregon have are very similar.  Discusses harmonizing of exemptions between states and the federal government.

379

Chair Burdick

Would like to have 18-month time limit amendment added to the bill.

383

Sen. Whitsett

Asks how the civil funds generated by this law are to be allocated.

390

Pellegrini

Replies if the Attorney General successfully sued in court, those funds would go into the General Fund and pay for court costs.

418

Sen. Whitsett

Inquires about fines or anything else to increase funds.  Asks if everything is going into paying court costs.

428

Pellegrini

Responds how the Department of Justice (DOJ) receives funding through the court process.

490

Pellegrini

Reaffirms that DOJ receives no public funding, at this time, for any of their organizational costs; all case settlements go towards internal costs.

TAPE 7, B

040

Paul Cosgrove

United Financial Lobby.  Submits testimony in opposition to SB 208 (EXHIBIT E).  Stresses desire not to have two different NC lists.

066

Chair Burdick

Asks for examples of requirements Oregon would have; also inquires about the option of having an alternative list if the federal NC list disappears.

070

Cosgrove

Discusses Attorney General’s differences with federal government in relation to this bill.  Talks about differences between Oregon and federal government.  Offers statement they should perhaps adopt federal language on this matter.

134

Cosgrove

Discusses federal penalties, and how they benefit the state. 

145

Chair Burdick

Asks if there has been a case where the federal government has distributed court settlements to the state.

148

Cosgrove

Replies that he isn’t aware of any, and since Oregon hasn’t been able to enforce this law, there has been none here.

158

Sen. Ringo

Asks if Mr. Cosgrove wishes Attorney General to have no enforcement capability.

163

Cosgrove

Raises concerns over current law giving Attorney General only jurisdiction over federal law, not over Oregon’s NC list law.

173

Sen. Ringo

Asks if Oregon’s no-call list is un-enforceable.

178

Cosgrove

Responds, no, it isn’t enforceable, but federal NC list is.

190

Chair Burdick

States that bill needs work, wants findings to be recast, recalls Cheryl Pellegrini.

195

Pellegrini

States the findings are from the Federal Trade Commission, which are based upon the experience of the states.

202

Chair Burdick

Asks about harmonization, but prefers better and more transparent language.

207

Pellegrini

States they are happy to work with Mr. Cosgrove on the language.

215

Chair Burdick

Raises concern about Oregon’s stronger free speech laws than the federal. 

225

Sen. Ringo

Asks if there is any way to benefit Oregon consumers with clearer language.

231

Pellegrini

Discusses Oregon and federal laws, and differences between them, as well as how it would benefit consumers.

255

Chair Burdick

Raises concern of some groups allowing others to use their contact list.

260

Pellegrini

States that under certain areas, they can share lists if they shared common goals (i.e., Tsunami relief, relief for disasters in general, etc.).

293

Sen. Beyer

Asks about section 3, and was Oregon law constitutional prior to the federal NC list.  Asks why it needed alterations.

308

Pellegrini

Discusses concerns raised in 2003 Legislature that Oregon constitution Article 1, section 8 was being challenged by Supreme Court.  States that SB 208 is a shield against future litigation.

367

Chair Burdick

Closes the public hearing on SB 208 and opens an informational meeting.

BLAKELY/SENTENCING DEVELOPMENTS -  INFORMATIONAL MEETING

380

Joe O’Leary

Counsel.  Describes current status of sentencing cases out of Supreme Courts, and a synopsis of guidelines and the effect of the Blakely decision. (EXHIBITS F & G).

435

O’Leary

Discusses Exhibit G, and the sentencing guidelines.

TAPE 8, B

065

O’Leary

Discusses Blakely v. Washington and its effects on sentencing guidelines (Exhibit F).

142

Chair Burdick

Asks about the relationship between Blakely and Measure 11.

150

Sen. Ringo

Asks if Blakely will be retroactive.

153

O’Leary

Doesn’t know because many cases at the moment are pending appeal.

171

Chair Burdick

Raises issue that there is less likelihood of previous cases, already adjudicated, being affected by Blakely.  States that the cases now in the system have a high risk of being affected by Blakely.

187

Sen. Beyer

Asks what happens if a judge makes a downward departure.

180

O’Leary

Responds that there are examples of downward sentencing, and it can happen, but Blakely will not affect this trend.

202

Sen. Beyer

Asks if that downward departure sentencing can cause undue harm to the community.

206

O’Leary

Responds that this issue was raised in federal court.

234

O’Leary

States that Blakely has very limited to no effect on Measure 11.  Discusses offenses under that measure with mandatory minimum sentences.

300

Chair Burdick

Raises issues concerned with juvenile court cases.

324

O’Leary

Discusses plea bargaining under Measure 11, and further relationship between Blakely.  Advises a mechanism to allow upward departures.

368

Chair Burdick

Adjourns the meeting at 2:57 p.m.

 

 

 

 

 

EXHIBIT SUMMARY

 

  1. SB 26, written testimony, Kate Richardson, 2 pp
  2. SB 26, written testimony, Frederick M. Boss, 1 p
  3. SB 203, written testimony, Jonathan H. Fussner, 1 p
  4. SB 208, written testimony, Cheryl A. Pellegrini, 3 pp
  5. SB 208, written testimony, Paul S. Cosgrove, 1 p
  6. Sentencing Law Case Summaries, Joe O’Leary, 2 pp
  7. Sentencing Guidelines Grid, Joe O’Leary, 2 pp