SENATE COMMITTEE ON JUDICIARY

 

 

March 07, 2005                                                                                                   Hearing Room 343

1:00 P.M.                                                                                                                      Tapes 56 - 57

 

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:                    

                                                Oregon Constitutional Issues - Informational Meeting

                                                SB 278 – Work Session

                                                SB 219 – Public Hearing and Work Session

 

 

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 56, A

003

Chair Burdick

Calls the meeting to order at 1:15 p.m. and announces the committee is meeting as a subcommittee.  Opens an informational meeting on Oregon Constitutional Issues.

OREGON CONSTITUTIONAL ISSUES – INFORMATIONAL MEETING

017

Honorable Sue Leeson

Retired, Associate Justice of the Oregon Supreme Court.  Submits the Oregon and United States Constitution, a document on Oregon’s Constitutional background, and an overview of the Oregon Constitution (EXHIBITS A - C). 

033

Leeson

Points to the power of judges and legislators in the Oregon Constitution.  Discusses the sovereign powers of the states, and their comparison to the federal powers.

075

Leeson

Recaps the powers of the legislature and talks about the separation of powers in 1787.  Comments on page 9 of the Oregon Constitution dealing with the Bill of Rights (Exhibit A).

120

Leeson

Acknowledges the Bill of Rights and social contract theory.  Discusses the role of government to protect the rights created in these contracts.

140

Leeson

Addresses the history of the Oregon Constitution (Exhibit B).

170

Leeson

Brings up a recent court case, Smothers, that dealt with a large break between Oregon’s Constitution and the United States Constitution.  Comments on Article 1, section 20.

205

Chair Burdick

States that there were two controversial issues brought up in the last election being challenged by Article 1, Section 20.

218

Leeson

Talks about the freedom of speech in Oregon in comparison to the United States.  Stresses the differences in language relating to the separation of powers in the Oregon Constitution and the United States Constitution.

268

Leeson

Brings up the idea of an independent judiciary.  Explains why the original policy-makers wanted to keep the government small.

304

Leeson

Addresses the addition of the 14th amendment to the United States Constitution during the Civil War (Exhibit A).

340

Dave Heynderickx

Acting Legislative Counsel.  Talks about the Oregon Bill of Rights and Article 3 in the Constitution relating to the separation of powers (Exhibit A). 

381

Heynderickx

Comments on the powers of the Oregon Judicial Department.  Brings up the court case, Marbury vs. Madison relating to statutory interpretation.

420

Heynderickx

Points out that around 90% of what occupies the Court of Appeals at this time is statutory interpretation.

470

Heynderickx

Discusses Oregon court decisions dealing with statutory interpretation.

484

Chair Burdick

Asks the name of one of the cases discussed earlier.

485

Heynderickx

Replies he wasn’t sure of the name, but affirms that the case was Oregon’s Marbury vs. Madison.

491

Leeson

Emphasizes that the Oregon Judicial branch established the authority for statutory interpretation as soon as possible.

TAPE 57, A

010

Heynderickx

Points out that the state and federal Constitutions are meant to be a system of checks and balances.

030

Heynderickx

Addresses the issues between the executive and the legislative branch.  Brings up the possibility of the executive branch using legislative powers.

097

Chair Burdick

Inquires about the standard for throwing out a regulation.

100

Heynderickx

Replies with information as to the decision for throwing out regulations.

115

Chair Burdick

Wonders about the court that has original jurisdictions over a regulatory challenge.

118

Leeson

Responds with information on the court process used to deal with challenges to regulations.

125

Sen. Whitsett

Comments on the morass of legal proceedings being used as a method of protecting past rulings.

133

Leeson

States that such a structure was implemented by the legislature.

136

Heynderickx

Talks about drafting a bill this session that addresses this issue.

144

Chair Burdick

Discusses the land use court of appeals.

152

Sen. Whitsett

Inquires about amendments for the state and federal Constitutions.

171

Heynderickx

Comments on amendments to the state and federal Constitutions.

187

Chair Burdick

Convenes the Senate Judiciary committee as a full committee at 2:00 p.m.

190

Heynderickx

Continues the discussion on amendments to the Constitution.

240

Heynderickx

Talks about the rules in place to deal with initiated amendments.

290

Leeson

Discusses how courts react to problems when brought to their attention while the legislature can take action on issues before a problem exists.  Cites examples of the actions taken by the legislature to address these issues.

351

Chair Burdick

Inquires about the constitutions of conservative states that were used as templates for Oregon’s Constitution.

356

Leeson

Talks about the comparison between the constitutions of Oregon and Indiana.

377

Heynderickx

Points out that many states adopted their constitutions based on which copies of other states’ constitutions they had readily available.

401

Sen. Prozanski

Comments on the historical influences on the drafting of the Oregon Constitution.

415

Heynderickx

Discusses the history of interpreting the Oregon Constitution.

423

Leeson

States that because Oregon used Indiana’s Constitution as a template, the Oregon courts often look to Indiana’s court system for decisions on statutory interpretation.

428

Chair Burdick

Asks about the federal requirements being a floor for protection limitations.

460

Leeson

Agrees with the assessment, and talks about interpretative methodology.  Brings up the issue of what the voters intended during the drafting; drafting sometimes not being exactly equal to the conceptual intent.

TAPE 56, B

043

Heynderickx

Discusses the initiatives process.

065

Chair Burdick

Closes the informational meeting on Constitutional Issues and opens a work session on SB 278.

SB 278 – WORK SESSION

062

Joe O’Leary

Counsel.  Describes SB 278 relating to the personal representative of a deceased individual for purposes of access to protected health information records.  Introduces and describes the -1 amendment (EXHIBIT D).

085

Sen. Starr

MOTION:  Moves to ADOPT SB 278-1 amendments dated 2/25/05.

 

 

VOTE:  5-0-2

EXCUSED:  2 - Ringo, Walker

087

Chair Burdick

Hearing no objection, declares the motion CARRIED.

090

Sen. Starr

MOTION:  Moves SB 278 to the floor with a DO PASS AS AMENDED recommendation.

 

 

VOTE:  5-0-2

EXCUSED:  2 - Ringo, Walker

092

Chair Burdick

Hearing no objection, declares the motion CARRIED.

SEN. BURDICK will lead discussion on the floor.

095

Chair Burdick

Closes the work session on SB 278 and opens a public hearing on SB 219.

SB 219 – PUBLIC HEARING

096

Joe O’Leary

Counsel.  Describes SB 219 relating to the authority of the Attorney General to exempt interstate and certain other intergovernmental agreements by state agencies from legal review.

108

Stephanie Smythe

Attorney, Business Transaction Section, Oregon Department of Justice.  Submits testimony and testifies in support of SB 219 (EXHIBIT E).

138

Chair Burdick

Asks if this bill is different from the international agreements.

140

Smythe

Responds that the language is almost entirely the same, and goes on to cite the specific differences.

148

Chair Burdick

Inquires about what would occur if the Attorney General (AG) did not review a compact.

151

Smythe

Replies that if the Attorney General did not review the compact within 30 days, it would be equal to agreement, and would therefore be enacted.

158

Chair Burdick

Wonders about the review process.

166

Smythe

Responds with information on the review process.

169

Chair Burdick

Asks if this in no way limits the AG’s ability to review any agreements.

172

Smythe

Replies that it does not interfere with any interstate or international agreements.

175

Sen. Whitsett

Asks if the Attorney General can still review a compact after it has been enacted.

180

Smythe

States that the exemption may be revoked or modified at any time.

185

Sen. Whitsett

Raises his concern with removing important checks and balances.

190

Smythe

Discusses the reasoning behind leaving certain information unstated in the drafting.

198

Sen. Prozanski

Attempts to remove confusion over SB 219.

209

Sen. Whitsett

Inquires about examples of statutes that provide such exemption.

195

Smythe

Cites the ORS sections requiring state agencies to submit agreements to the Attorney General for review.  Informs the committee that authority is given to the Attorney General to exempt form agreements or classes of agreements of review within those statutes.

224

Sen. Prozanski

Goes over the effects of SB 219 in order to clear confusion.

233

Smythe

Responds that the summarization is correct.

244

Chair Burdick

Closes the public hearing and opens a work session on SB 219.

SB 219 – WORK SESSION

247

Sen. Starr

MOTION:  Moves SB 219 to the floor with a DO PASS recommendation.

 

 

VOTE:  5-0-2

EXCUSED:  2 - Ringo, Walker

250

Chair Burdick

Hearing no objection, declares the motion CARRIED.

SEN. PROZANSKI will lead discussion on the floor.

255

Chair Burdick

Closes the work session on SB 219 and adjourns the meeting at 2:30 p.m.

 

 

 

 

 

EXHIBIT SUMMARY

 

  1. Constitution, Oregon and United States, Sue Leeson, 116 pp
  2. Constitutional History, Oregon, Sue Leeson, 4 pp
  3. Constitutional Issues, Overview of Oregon, Sue Leeson, 1 p
  4. SB 278, -1 amendment, staff, 1 p
  5. SB 219, written testimony, Stephanie Smythe, 1 p