SENATE COMMITTEE ON JUDICIARY

 

 

March 01, 2005                                                                                                   Hearing Room 343

1:00 P.M.                                                                                                                      Tapes 51 - 52

 

MEMBERS PRESENT:         Sen. Ginny Burdick, Chair

Sen. Charles Starr, Vice-Chair

Sen. Roger Beyer

Sen. Floyd Prozanski

Sen. Charlie Ringo

Sen. Vicki Walker

Sen. Doug Whitsett

 

STAFF PRESENT:                 Joe O'Leary, Counsel

Dale Penn, Committee Assistant

 

MEASURES/ISSUES HEARD:

                                                SB 332 – Public Hearing & Work Session

                                                SB 89 – Public Hearing

                                                SB 333 – 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 51, A

003

Chair Burdick

Calls the meeting to order at 1:13 p.m. and opens a public hearing on SB 332.

SB 332 – PUBLIC HEARING

008

Joe O’Leary

Counsel.  Describes SB 332 relating to confidential communications between patients and dentists.

022

Robert W. Staley

Dentist, Attorney.  Submits testimony and testifies in support of SB 332 (EXHIBITS A & B).  Discusses a patient questionnaire form (Exhibit B).

055

Chair Burdick

Commends Dr. Staley on the submission of the questionnaire form.

065

Tom Gallagher

Newspaper Publishers.  Testifies in support of SB 332.

074

Chair Burdick

Submits written testimony from April Love in support of SB 332 (EXHIBIT P).  Closes the public hearing and opens a work session on SB 332.

SB 332 – WORK SESSION

076

Sen. Starr

MOTION:  Moves SB 332 to the floor with a DO PASS recommendation.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Walker

079

Chair Burdick

Hearing no objection, declares the motion CARRIED.

SEN. RINGO will lead discussion on the floor.

082

Chair Burdick

Closes the work session on SB 332 and opens a public hearing on SB 89.

SB 89 – PUBLIC HEARING

083

Joe O’Leary

Counsel.  Describes SB 89 relating to custodial sexual misconduct in the first and second degree.

100

Stan Czerniak

Assistant Director of Operations, Oregon Department of Corrections (DOC).  Submits testimony and testifies in support of SB 89 (EXHIBITS C & D).

125

Stan Czerniak

Talks about how Oregon and Vermont are the only two states who do not have a felony statute on this issue.  Describes the effects of the passage of SB 89. 

165

Jason Barber

Assistant Director, Crime Victims Assistance Section, Department of Justice.  Testifies in support of SB 89.

169

John Powell

Oregon State Sheriff’s Association.  Testifies in support of SB 89. 

185

Mike Wilkerson

Under-Sheriff, Marion County Sheriff’s Office.  Testifies in support of SB 89.  Explains a recent case involving sexual misconduct in the correctional facility.

205

Sen. Whitsett

Asks if there is any duty to report among the DOC staff.

210

Wilkerson

Replies that there is a mandatory reporting law.

216

Sen. Whitsett

Inquires if there are any cross-departmental methods of reporting such abuses.

220

Greg Olson

Under-Sheriff, Marion County Sheriff’s Office.   Responds that the Department of Public Safety Standards and Training would be notified if such an abuse has occurred and the officer would have their certification revoked.

228

Sen. Whitsett

Wonders if there are any protections from retaliation for employees that report such an action.

233

Olson

States that there are protections, but it would be an expected aspect of their job to report.

236

Chair Burdick

Inquires as to where the duty to report originates.

239

Wilkerson

Explains an ethics oath officers must take before serving.

250

Chair Burdick

Wonders what the repercussions are of breaking that oath.

251

Wilkerson

Replies that termination is a common result.

253

Chair Burdick

Inquires if there is anything in the statutes that relates to a mandatory reporting clause.

254

Wilkerson

Affirms there is not anything he is aware of in the statutes.

260

Olson

Testifies in support of SB 89 and discusses the departmental process taken after an act of sexual abuse occurs.

282

Chair Burdick

Inquires about implementing a mandatory reporting statute.

285

Olson

States that they would support such an action.

290

Sen. Prozanski

Raises the issue of labor contracts conflicting with such a law.

315

Heidi Evans

Volunteer, Amnesty International, USA.  Submits testimony and testifies in support of SB 89 (EXHIBITS E & F).

344

Chair Burdick

Asks if a contract conflicted with the mandatory reporting clause, would Amnesty International support a protection clause for reporting a crime instead.

356

Evans

Replies that she would support such an action.  Cites examples of sexual misconduct within the DOC, including some high-profile cases.

410

Dena Marshall

State Coordinator, Stop Violence Against Women Campaign.  Testifies in support of SB 89.  Advises that same-sex search rules be statutorily enacted.

448

Sen. Walker

Expresses her horror over the cases discussed in the recent testimony (Exhibit F).

466

Mary Botkin

American Federation of State, County, and Municipal Employees (AFSCME).  Testifies in opposition to SB 89.

TAPE 52, A

025

Mary Botkin

Explains the DOC’s stance on sexual conduct between a staff and an inmate.  Testifies in opposition to Amnesty International’s amendment requiring a mandatory reporting clause.

058

Botkin

Raises the issue of officers needing to search inmates in order to remove any weapons they might have.  Explains the role of officers in a body search, and the precautions taken in order to observe safety protocols.

091

Chair Burdick

Inquires about collective bargaining agreements that would stop a mandatory reporter clause.

094

Botkin

Replies that there is no writing that would stop a mandatory reporting clause.  Stresses that a peace officer is already a mandatory reporter if they witness a criminal occurrence.  Discusses the occurrence of hearsay.

115

Sen. Prozanski

Explains that his earlier question related to reporting outside of their statutory requirements.  Discloses his hesitance to dictate the requirements of mandatory reporting to an outside agency.

132

Botkin

Expresses the importance of making choices relating to sexual relationships involving parties who supervise each other.

141

Chair Burdick

Inquires about protection from reporting.

146

Botkin

States that the AFSCME would represent anyone who reported a grievance.

150

Botkin

Details that they file several claims when a grievance is brought to their attention so that it will not get ignored.

160

Sen. Walker

Brings up the issue of conflicting drafting in SB 89.

170

Czerniak

Discusses the Code of Conduct that all staff in the DOC must take.  Clarifies the search policy.

201

Sen. Walker

Wonders about the mandatory reporting law relating to inmates.

208

Botkin

Articulates their desire for tighter drafting language relating to SB 89’s relation to mandatory reporting.

212

Sen. Walker

Compares the child abuse mandatory reporting law with the mandatory reporting law in SB 89.

229

Czerniak

Details the actions taken by the DOC relating to the mandatory reporting law.

240

Botkin

Explains that mandatory reporting applies to other classes than just children, and it is part of the DOC’s policy to report abuses.

262

Sen. Beyer

Talks about the criminalization of mandatory reporting for all crimes.

274

Chair Burdick

Wonders about the application of SB 89 towards inmates under custody, not just in a facility (including transport, etc.).

298

Terrie Quinteros

Program Director, Crime Survivors for Community Safety, Western Prison Project.  Submits testimony and testifies in support of SB 89 (EXHIBIT G). 

337

Quinteros

Expresses that this is not an issue of love between two people, but one of dominance and exerting power over an individual.

364

Theresa Huggins

Volunteer, Crime Survivors for Community Safety.  Submits testimony and testifies in support of SB 89 (EXHIBIT H).  Details her personal story of being strip searched by male officers.

398

Chair Burdick

Asks how long ago this occurred.

399

Huggins

Replies that it happened 10 years ago.

441

Brigette Sarabi

Executive Director, Western Prison Project.  Submits testimony and testifies in support of SB 89 (EXHIBIT I).

458

Sen. Walker

Addresses the issue that Oregon is only one of two states with no custodial sexual misconduct legislation (Exhibit I).

474

Andrea Meyer

American Civil Liberties Union.  Raises their concern that the sexual misconduct may occur from a person not in a supervisory role (i.e., janitor, etc.).  Advises that the language be tightened.

TAPE 51, B

033

Meyer

Addresses section 3 of the bill discussing roles within and outside the institutions or agencies.  Brings up the issue of marriage defense in relation to SB 89.

053

Chair Burdick

Inquires as to the DOC’s policy on officers guarding their spouse.

060

Czerniak

Discusses the policy on relationship within the DOC.

066

Sen. Prozanski

Brings up the scenario of marriage between an inmate and an officer.

072

Czerniak

Talks about the DOC’s policy that forbids any relationship between an inmate and the staff.

086

Botkin

Addresses the scenario raised by Sen. Prozanski, relating to relationships between inmates and staff.

098

Sen. Prozanski

Asks about the protocol of staff marrying inmates.

104

Czerniak

Reiterates the DOC’s policy on relationships between staff and inmates.

115

Jeff Van Valkenburg

Department of Justice.  Discusses the drafting decision to keep the section dealing with marriage in the bill.

132

Botkin

Talks about a similar bill two years ago relating to this issue.

140

Chair Burdick

Expresses the desire to structure the wording a little better before passing this bill.

136

Heather Huhtanen

Director, Sexual Abuse Training Institute.  Submits testimony and testifies in support of SB 89 (EXHIBIT J).  Expresses their support of the amendments from Amnesty International with some small reservations.

189

Chair Burdick

Closes the public hearing on SB 89 and opens a public hearing on SB 333.

SB 333 – PUBLIC HEARING

195

Joe O’Leary

Counsel.  Describes SB 333 relating to certain tort actions.

211

Cheryl Albrecht

Hearings Referee, Multnomah County.  Testifies in support of SB 333.  Details how the bill allows for easier access to justice for all citizens.

247

Mark Ginsberg

Oregon Trial Lawyers.  Submits testimony and testifies in support of SB 333 (EXHIBIT K).  Discusses lawyer costs for small cases and how SB 333 would allow more citizens the access to justice.

275

Ginsberg

Discusses the scenarios and court cases in his testimony (Exhibit K).

316

Sen. Whitsett

Asks about attorney fees in these types of cases.

327

Ginsberg

Responds with information on attorney fees.

353

Sen. Charlie Ringo

Senate District 17.  Submits testimony and testifies in support of SB 333 (EXHIBIT L).  Details the plight of an individual being abused by the insurance companies and how SB 333 addresses these occurrences.

397

Sen. Ringo

Discusses examples of insurance cases in his testimony (Exhibit L).

438

Sen. Ringo

Talks about page 3 of his testimony (Exhibit L).

450

Chair Burdick

Asks how long the current penalty limit has been in effect.

452

Sen. Ringo

Replies that he will address that question.  Continues discussing the third example in his testimony (Exhibit L).

490

Sen. Ringo

Comments on the chart on the final page of the testimony (Exhibit L).

TAPE 52, B

034

Sen. Beyer

Inquires about section 2 of SB 333, relating to the date the bill would go into effect.

046

O’Leary

Describes section 2 of SB 333.

051

Sen. Ringo

Replies that he believes this applies to the date after the statute would go into effect.

057

Chair Burdick

Offers clarification on the issue.

060

O’Leary

Addresses the confusion on the effective date of the bill.

067

Sen. Beyer

Raises a scenario dealing with a claimant going back to court to recover extra money due to SB 233.

071

Sen. Prozanski

Replies that it is impossible, and offers an explanation as to why.

078

Sen. Beyer

Raises another scenario dealing with a claimant attempting to retrieve more money from a past adjudicated court decision.

084

Sen. Prozanski

Addresses the issue under discussion.

090

O’Leary

Defines the section of SB 333 which resolves the issue.

095

Sen. Whitsett

Asks about situations dealing with both parties’ attorney fees being charged to a claimant.

109

Sen. Ringo

Replies that the increased fees are important in court cases.  Addresses the scenario that the claimant could be charged the attorney fees for both parties.

151

John Powell

State Farm Insurance Company.  Testifies in opposition to SB 333. 

154

Steve Murrell

State Farm Insurance Company.  Testifies in opposition to SB 333.  Expresses his belief that SB 333 will eventually encourage increased litigation which will raise insurance costs. 

197

Murrell

Addresses the fees that could be levied against the plaintiff.

211

Sen. Prozanski

Inquires about early property payments.

215

Murrell

Discusses early payments, especially those involved with property or vehicular damage.

221

Sen. Prozanski

Asks about a scenario where the legislature would require both personal and property damage be dealt with at one time, and would the insurance companies support such an amendment.

227

Murrell

States that it would not be the best solution, but it would be helpful.

230

Chair Burdick

Wonders about existing statutes dealing with payment on a claim.

233

Murrell

Details the situations facing the insurance companies where two sets of claims will be brought against them for one accident.

240

Sen. Ringo

Raises the issue of non-economic damages.

249

Murrell

Explains their stance on the scenario of non-economic damages and other claims.

255

Sen. Ringo

Cites personal examples of where the insurance companies have denied allocations to individuals he represented.

272

Bill Sime

Oregon Association of Defense Counsel.  Submits testimony and testifies in a neutral stance on SB 333 (EXHIBIT M). 

318

Sime

Talks about the demands letter from the lawyer, and how more often than not there is little to no documentation or proof to support the claim.

363

Sen. Prozanski

Asks about the issues relating to the insurance claim brought up by the witness.

371

Sime

Clarifies his testimony on those issues.

379

Sen. Ringo

Comments on his tentative support for the amendments being discussed, and his willingness to cooperate to resolve claims for the individual.

423

Chair Burdick

Submits testimony on SB 333 from Robert Dorband and Shawn Miller (EXHIBITS N & O).

449

Chair Burdick

Submits Oregon Rules of Appellate Procedure (EXHIBIT Q)

452

Chair Burdick

Closes the public hearing on SB 333 and adjourns the meeting at 3:02 p.m.

 

 

 

 

 

EXHIBIT SUMMARY

 

  1. SB 332, written testimony, Robert Staley, 1 p
  2. SB 332, Patient information form, Robert Staley, 1 p
  3. SB 89, written testimony, Stan Czerniak, 2 pp
  4. SB 89, custodial sexual misconduct, Stan Czerniak, 1 p
  5. SB 89, written testimony, Heidi Evans, 6 pp
  6. SB 89, summary of SB 89, Heidi Evans, 4 pp
  7. SB 89, written testimony, Terrie Quinteros, 2 pp
  8. SB 89, written testimony, Theresa Huggins, 1 p
  9. SB 89, written testimony, Brigette Sarabi, 1 p
  10. SB 89, written testimony, Heather Huhtanen, 2 pp
  11. SB 333, written testimony, Mark Ginsberg, 1 p
  12. SB 333, written testimony, Sen. Charlie Ringo, 5 pp
  13. SB 333, written testimony, Bill M. Sime, 6 pp
  14. SB 333, written testimony, Robert Dorband, 1 p
  15. SB 333, written testimony, Shawn Miller, 1 p
  16. SB 332, written testimony, April Love, 2 pp
  17. SB 333, Oregon Rules of Appellate Procedure, staff, 2 pp