SENATE COMMITTEE ON JUDICIARY

 

 

January 27, 2005                                                                                                 Hearing Room 343

1:00 p.m.                                                                                                                         Tapes 9 - 10

Corrected 10/26/05

MEMBERS PRESENT:         Sen. Ginny Burdick, Chair

Sen. Charles Starr, Vice-Chair

Sen. Roger Beyer

Sen. Floyd Prozanski

Sen. Doug Whitsett

 

MEMBER EXCUSED:          Sen. Charlie Ringo

Sen. Vicki Walker

 

 

STAFF PRESENT:                 Joe O'Leary, Counsel

Dale Penn, Committee Assistant

 

 

MEASURES/ISSUES HEARD & WITNESSES:      

Statutory Interpretation – the rules the courts follow in determining what a statute means.

The Honorable David Brewer, Chief Judge, Oregon Court of Appeals

      The Honorable Jack Landau, Judge, Oregon Court of Appeals

      The Honorable Virginia Linder, Judge, Oregon Court of Appeals

Overview of Oregon’s Tort Law       

      David Heynderickx, Acting Legislative Counsel

Measure Introduction

 

 

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 9, A

005

Chair Burdick

Calls the sub-meeting to order at 1:13 p.m., and will call the full committee to order when a quorum exists.  Makes announcements relating to on the road meeting Friday 28, 2005 at 8:30 a.m.   Discusses the Department of Corrections (DOC) tour on Friday 4, 2005.  Talks about Court of Appeals visit February 10, 2005.  

STATUTORY INTERPRETATION – INFORMATIONAL MEETING

068

Honorable David Brewer

Chief Judge, Oregon Court of Appeals.  Introduces EXHIBITS A & B.  Begins discussion on constructing statutes.

072

Chair Burdick

Calls full committee meeting to order.

078

Judge Brewer

Introduces other speakers today.  Gives their backgrounds and how they can assist the legislature.

101

Honorable Jack Landau

Judge, Oregon Court of Appeals.  Talks about what he will address today.  Discusses the law, the courts, and the rules involved with the decisions they make.

130

Judge Landau

Discusses the Court of Appeals, and what they consist of, and what cases they deal with.  Explains that they follow the law and interpret the decisions of lower courts.  Discusses the federal constitution and recent Supreme Court decisions.

176

Judge Landau

Talks about the differences between state laws and federal laws, and how the courts go about interpreting each.  Discusses how the constitution limits the power of the legislature.

211

Chair Burdick

Asks about the strength of Oregon’s constitution in relation to the federal constitution.

216

Judge Landau

Replies that with Oregon in the late 1970s we recognized the independent significance of the state’s constitution.  Discusses certain examples with Oregon’s constitution.  States that we can never grant less protection than the federal constitution, still the supreme law of the land.

238

Judge Brewer

Discusses that some cases will be brought up against all avenues; federal and state constitutions, as well as statutes.

248

Judge Landau

Explains their tenets of interpreting statutes first, and using the federal constitution only as a last resort.

262

Chair Burdick

Asks about the term, “relief.”

268

Judge Landau

Replies that “relief’ is what the plaintiff wants from the courts or the defendant.

286

Judge Landau

Reiterates the courts purpose is the interpretation of law, while the legislature sets law.  Discusses the Court of Appeals and their case load as being fairly straightforward.

340

Judge Landau

Discusses Exhibit A, the general rules they use to decide cases.  Describes again the checks and balances between the two branches of the courts and the legislature.

377

Judge Virginia Linder

Judge, Oregon Court of Appeals.  Gives modern history of Oregon statutes and the General Rules from Chapter 174 of page 1 of EXHIBIT A.  Explains legislative history and its purpose in forming statutes.

435

Judge Linder

Discusses Portland General Electric template that determined a methodology of interpretation for court decisions. Talks about how this allows for the debate and scrutiny of court opinions and decisions.

474

Judge Landau

Explains the differentiation of the rules into generalized steps, showing how the legislature and courts interact. 

TAPE 10, A

033

Judge Landau

Indicates the steps involved with statute interpretation relating to the PGE template.  Talks about how the legislature and the courts interact in this method.

057

Judge Brewer

Asks if the courts don’t find an answer among these statutes, do the courts then make up the decision?

062

Judge Landau

Replies no, goes on to discuss Exhibit A and its relation to the decisions the courts have to make.

083

Judge Landau

Discusses Exhibit B, concerning an overtime compensation statute.  Talks about how the courts and legislature interacted to alter this ORS law.

123

Sen. Beyer

Asks what would have happened if the statute discussed earlier would have been written without any listing of a political subdivision.

130

Judge Brewer

Responds that broad generalizations force interpretation of the rules in the courts.  Discusses the importance of listing specifics on a bill.

141

Sen. Beyer

Inquires if a statue specifically authorizes or exempts one thing, but doesn’t authorize or exempt something else, by that omission is it not allowed?

148

Judge Landau

Replies that in documents of significance, that when a drafter constructs a list that is included in the statutes, then anything not included in that list is left out for a reason.

160

Judge Brewer

Describes common legislative terms and tactics used in certain bills that allow the courts to analyze these situations better.

166

Sen. Beyer

Asks about a recent bill in committee that relates to public bodies discussing certain things together.

176

Judge Brewer

States that there would be circumstances in each situation that would influence the interpretation.

187

Judge Landau

Discusses the importance of context, and how that aspect of the statute also has a large impact on the decisions of the courts.  Discusses EXHIBIT B, section 2.  Declares they look at Webster’s International Dictionary in order to research the words.  Cites example of section 3 of EXHIBIT B; a case relating to Sen. Beyer’s question.

269

Sen. Prozanski

Asks about legislative intent.

272

Judge Landau

States that they very much care about legislative intent, and will use that primarily to interpret the law, and case history will play into the decision if the intent is ambiguous.

275

Sen. Prozanski

Wonders about the ambiguity of some instances.

282

Judge Brewer

States that in recent legislature, a bill was passed giving the courts access to legislative history.

315

Judge Landau

Explains that legislative history always plays into a decision.  Discusses the crafting of opinions based upon that and other factors.  Emphasizes the responsibility of a legislator not to rely on legislative history to influence the courts decision, and to focus on good drafting of a bill to cover all relevant data.

326

Judge Landau

Discusses Section 3 of EXHIBIT B, relating to the interpretation of State vs. Stearns and its relation to legislative history and intent.

362

Chair Burdick

Inquires about a tiered process before looking at legislative history.

365

Judge Landau

Replies yes and no.  Discusses the steps a court takes before accessing legislative history, and gives tips on how a legislator can get the court’s attention for interpretation.  Describes the importance of floor statements by legislators.

419

Sen. Whitsett

Asks about expansion of statutory authority by administrative rule.

430

Judge Landau

Responds that the legislature can create administrative agencies and promulgate rules, but the important fact is that agencies cannot act beyond what the legislature permits them.  States that the role of the courts is to make sure that doesn’t occur.

482

Judge Landau

Gives examples of how courts can limit the authority of a state agency, as well as how a floor statement can influence a courts decision.

TAPE 9, B

043

Sen. Beyer

Asks the importance of repeat statements.

056

Judge Landau

Expresses how the repeated statements from both houses is a great suggestion to get a court’s attention concerning legislative history.

070

Sen. Prozanski

Inquires if the statements the carrier gives on the floor can be interpreted as intent.

085

Judge Landau

States that a carrier is given a little leeway, and the interpretation can be hedged because of that.  Expresses that if there is a debate, then the nature of the debate will be taken into consideration heavily.

100

Judge Brewer

Wonders how often the court sees truly conflicting legislative history.

105

Judge Landau

States that there are very few cases of conflicts in the legislative history, and that more often the case is that the issue is something nobody ever thought of at the time.  Discusses the final step in interpretation; the assumptions the courts make.  Goes on to cite examples.

141

Chair Burdick

Questions if that applies to Supreme Court decisions as well.

142

Judge Brewer

Replies that the Court of Appeals follows the Supreme Court’s decisions.

144

Chair Burdick

Asks how the Court of Appeals deals with unclear writing.

150

Judge Landau

Indicates the different materials they use to come to their decision.

164

Chair Burdick

Wonders if campaign materials are used in the interpretation.

166

Judge Landau

Replies usually not.

170

Chair Burdick

Asks if the legislature is the people, not the chief petitioners.

173

Judge Landau

Responds affirmatively.  Gives a recap of the steps used by the courts to come to their interpretation.

200

Judge Brewer

Reiterates that the courts realize they are not the legislature, and cannot make law.

TORT LAW – INFORMATIONAL MEETING

231

David Heynderickx

Acting Legislative Counsel.  Introduces material on torts (EXHIBITS C – E).  Discusses the idea of a tort, intentional and unintentional.

304

Chair Burdick

Asks if criminal and tort are different cases.

307

Heynderickx

Responds that they are two different proceedings; cites O.J. Simpson case as an example of restitution for victims in a civil case as opposed to the criminal case.

330

Heynderickx

Discusses professional negligence against doctors.  Notes 1987 tort reform bill with over 125 amendments.

372

Heynderickx

Talks about amendments in tort reform as well as statutory limitations.

399

Heynderickx

Gives an explanation of economic and non-economic damages, including the criteria of “pain and suffering.”

423

Heynderickx

Summarizes issue of negligence and the decisions of the courts.

470

Heynderickx

Explains that much of the punitive damages go to victim assistance.

505

Heynderickx

Talks about attorneys fees in Oregon, and court decisions relating to this.

TAPE 10, B

059

Heynderickx

Describes statute of limitations.  Talks about comparative negligence, where there are two or more defendants.

112

Heynderickx

Highlights the Torts Claim Act, and its history in the idea of sovereign immunity.

141

Chair Burdick

Asks if the Torts Claim Act allows physicians to have liability caps at OHSU.

134

Heynderickx

Replies yes, because they have their own insurance agency.

196

Heynderickx

Describes confusion in limiting liability under recent court decisions.  Talks about alternative remedies under Torts Claim Act.

INTRODUCTION OF COMMITTEE MEASURES – WORK SESSION

240

Joe O’Leary

Committee Counsel.  Reads LC drafts for introduction (EXHIBITS F - I).

250

Vice-Chair Starr

MOTION:  Moves LC's 940, 1621, 1622, and 1623:  BE INTRODUCED as committee bills.

 

 

VOTE:  5-0- 2

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

EXCUSED:  2 – Ringo, Walker

255

Chair Burdick

Hearing no objection, declares the motion CARRIED.

296

Chair Burdick

Adjourns the meeting at 2:55 p.m.

 

 

 

 

 

EXHIBIT SUMMARY

 

  1. Statutory Construction, Selected Legislative Principles of, Honorable David Brewer, 3 pp
  2. Oregon Court Cases, Honorable David Brewer, 3 pp        
  3. Cases on the Constitutionality of Liability Limitations, David Heynderickx, 2 pp
  4. Chapter 31, 2003 Edition, Tort Actions, David Heynderickx, 14 pp
  5. Torts 101, David Heynderickx, 2 pp
  6. Introduction, LC 940, staff, 8 pp
  7. Introduction, LC 1621, staff, 1 p
  8. Introduction, LC 1622, staff, 15 pp
  9. Introduction, LC 1623, staff, 16 pp