SENATE COMMITTEE ON JUDICIARY

 

 

April 04, 2005                                                                                                      Hearing Room 343

1:00 P.M.                                                                                                                      Tapes 92 - 93

 

MEMBERS PRESENT:         Sen. Ginny Burdick, Chair

Sen. Charles Starr, Vice-Chair

Sen. Roger Beyer

Sen. Floyd Prozanski

Sen. Vicki Walker

Sen. Doug Whitsett

 

MEMBER EXCUSED:          Sen. Charlie Ringo

 

 

STAFF PRESENT:                 Joe O'Leary, Counsel

Dale Penn, Committee Assistant

 

 

MEASURES/ISSUES HEARD:        

                                                SB 208 – Work Session

                                                SB 39 – Work Session

                                                SB 216 – Public Hearing

                                                SB 422 – Public Hearing

                                                SB 94 – 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 92, A

003

Chair Burdick

Calls the meeting to order at 1:20 p.m. and opens a work session on SB 208.

SB 208 – WORK SESSION

007

Chair Burdick

Moves SB 208 to April 14, 2005.

SB 39 – WORK SESSION

011

Joe O’Leary

Counsel.  Describes SB 39 relating to requiring the court to determine, on record, the mental disease or defect established as a basis for a guilty except for insanity verdict.  Introduces and details the -1 and -3 amendments (EXHIBITS A & B).

042

Sen. Beyer

Inquires about a fiscal impact.

050

Mary Claire Buckley

Executive Director, Psychiatric Security Review Board.  Testifies on the fiscal impact of SB 39.

060

Sen. Beyer

Inquires about an estimate for the scope of the problem.

062

Buckley

Replies with statistical data from 2003 and 2004 that would fall under this bill. 

090

Sen. Starr

MOTION:  Moves to ADOPT SB 39-1 amendments dated 3/29/05.

 

 

VOTE:  5-0-2

EXCUSED:  2 - Ringo, Whitsett

092

Chair Burdick

Hearing no objection, declares the motion CARRIED.

093

Sen. Starr

MOTION:  Moves to ADOPT SB 39-3 amendments dated 4/4/05.

 

 

VOTE:  5-0-2

EXCUSED:  2 - Ringo, Whitsett

095

Chair Burdick

Hearing no objection, declares the motion CARRIED.

096

Sen. Starr

MOTION:  Moves SB 39 to the floor with a DO PASS AS AMENDED recommendation.

 

 

VOTE:  5-0-2

EXCUSED:  2 - Ringo, Whitsett

100

Chair Burdick

Hearing no objection, declares the motion CARRIED.

SEN. PROZANSKI will lead discussion on the floor.

109

Sen. Beyer

Asks about a conflict with SB 41 and SB 39.

112

O’Leary

Describes the work group meeting for SB 41 and SB 39, and the compromise reached between the parties on this conflict. 

145

Sen. Beyer

Inquires if this has any effect on the actual trial.

149

O’Leary

Replies that there is no foreseeable effect on the actual trial.

153

Sen. Beyer

Wonders about the costs.

156

O’Leary

Points out that the work group addressed this issue on page 1, line 23, on the -3 amendment (Exhibit B).

169

Chair Burdick

Closes the work session on SB 39 and opens a public hearing on SB 216.

SB 216 – PUBLIC HEARING

172

Joe O’Leary

Counsel.  Describes SB 216 relating to allowing the Attorney General to intervene in a class action lawsuit to assert a claim on behalf of the class members who fail to submit statements for award of damages.  Introduces and discusses the -1 and -2 amendments (EXHIBIT C & D).

205

Frederick M. Boss

Assistant Attorney General, Department of Justice.  Submits testimony and testifies in support of SB 216 (EXHIBIT E).  Explains the effects of the bill and talks about the -1 and -3 amendments.

237

Boss

Comments on the methods used by other states.

260

Chair Burdick

Asks for the definition of “cy-pres.”

271

Chair Burdick

Reads the definition of “cy-pres.”  Inquires if only two states follow this method of allocating unresolved monies.  Wonders about the settlements.

281

Boss

Replies yes, and offers information on settlements in class action lawsuits.

302

Chair Burdick

Inquires about unclaimed funds, and if they would be returned to the company that had the action against them.

310

Boss

Responds that it is possible, but it would usually be discussed between both parties.

336

Sen. Prozanski

Asks for the types of suits this bill would apply to.

339

Boss

Explains the different cases that this bill would affect.

350

Sen. Prozanski

Inquires about the -1 and -2 amendments.

357

Boss

Offers information on the funds under the -1 and -2 amendments.

365

Sen. Prozanski

Wonders about the statute of limitations and the lack of locating all members of a class action lawsuit.

375

Boss

Clarifies the possibilities of individuals who were not involved with the class action lawsuit but have a legitimate claim.

420

Chair Burdick

States that she believed there was no statute of limitations on the class action lawsuits.

430

Boss

Discusses the problems in these scenarios with individuals who have yet to make a claim.

440

Sen. Prozanski

Desires clarification on this issue.

448

Boss

Clarifies the information relating to class action lawsuits.

452

Kevin Neely

Executive Assistant for Attorney General Hardy Myers, Department of Justice.  Testifies in support of SB 216.  Talks about the amount of unclaimed money from lawsuits in 2003.

472

Sen. Beyer

Wonders about how the courts determine the size of the reward.

497

Boss

Discloses the regular process in arriving at a figure for class action lawsuit settlements.

TAPE 93, A

040

Sen. Beyer

Brings up the issue of an overestimation of settlement payments.

049

Chair Burdick

Clarifies the issue concerning overestimation of settlement payments.

055

Neely

Talks about the adjudication of class action lawsuits.

074

Sen. Beyer

States that instead of placing money in other funds, why they don’t just give the remaining money to the claimants who sought the class action lawsuit.

085

Chair Burdick

Declares that the fund is there for individuals who might discover they have a claim many years later, to be able to access the money.

095

Sen. Whitsett

Explains his confusion over the issue of unclaimed money for someone who has never made a claim.  Talks about his hesitation to create such a windfall for the state or other funds by overestimating the members in the class action lawsuit.

112

Jim Gardner

PhRMA, Microsoft Corporation, Philip Morris USA, etc.  Testifies in opposition to SB 216.  Mentions the Council on Court Proceedings that was created in 1977 to undertake a non-partisan and systematic forum to address issues relating to the rules of civil procedure.

150

Gardner

Discusses the possibility of cooperation to address both sides of this issue.  Explains that the bill, as well as the -1 and -2 amendments, is far beyond what the panel suggested.

192

Gardner

Reads testimonial from the Attorney General in 1981 that was in opposition to the concept behind this bill.

222

Gardner

Discusses a possible provision remaining in the statute that might see the defendant pay twice.

225

Chair Burdick

Talks about the unclaimed property fund.

232

Gardner

Comments on what occurs with the money in these unclaimed funds.

243

Chair Burdick

Declares that only two states return the money to the company from the unclaimed fund. 

249

Gardner

Acknowledges that other states do things differently, and explains the methods used in Oregon.

267

Chair Burdick

Asks what he expects to come out of the council for court proceedings.

268

Gardner

Replies with information on what he expected.

271

Chair Burdick

States that this would be a court decision.

272

Gardner

Stresses that it is not a court decision, but is instead decided post-judgment.

286

Chair Burdick

Reiterates the concern raised by Sen. Beyer relating to overestimating the size of the class in the lawsuit.

290

Gardner

Explains that the definition of the class occurs at the outset of a class certification proceeding.

306

Chair Burdick

Asserts the problem still exists concerning overestimating a class in a lawsuit.

313

Gardner

Replies with information on the class action lawsuit process.

324

Chair Burdick

Illustrates the award scenario in the class action lawsuits.

330

Gardner

Responds that the above estimation is not entirely accurate.  Talks about the final settlement in these cases.

366

Chair Burdick

Discusses the workings of the unclaimed property act.

375

Gardner

Indicates that the precaution that will be needed for this issue.

384

Chair Burdick

States that the organization was created in 1977 and has had 28 years to address this issue.

387

Gardner

Talks about the council on court proceedings and the topics they discuss.

423

Sen. Prozanski

Inquires about class action lawsuits under this bill.

429

Gardner

Details the process for class action lawsuits.

473

Sen. Prozanski

Brings up the issue of settlements, and the payments to the class action claimants.

490

Gardner

Addresses the payment process.

502

Sen. Prozanski

Asks about the statute of limitations on this issue.

TAPE 92, B

032

Gardner

Replies with information on the statute of limitations for class action lawsuits.

035

Sen. Prozanski

Talks about the issue of statute of limitations, and where the money goes once that time is up.

050

Gardner

States that if the statute is missed, then the claimant can no longer bring the issue to court.

055

Chair Burdick

Asks about the issue of higher amounts of claimants than originally expected.

062

Gardner

Replies that he does not know the answer to that question, but guesses that the claims would have to be paid.

068

Julie Brandis

Associate Oregon Industries.  Testifies in opposition to SB 216.  Talks about the unclaimed property issue.  Explains their hesitance to support the Attorney General in their interpretation on the rightful use of such funds.

105

Chair Burdick

Brings up the issue of an individual not receiving their due compensation and the funds being returned to the defender.

112

Brandis

Addresses the above scenario.  Stresses that she wants to unite claimants with their compensations, but states that this bill does not accomplish this.

143

Sen. Prozanski

Asks about the council for court procedures.

147

Gardner

Replies with information on the statutory makeup of the council.

156

Sen. Prozanski

Inquires how long the council has dealt with this problem.

159

Gardner

States that the question was before the committee during the last interim.

173

Sen. Prozanski

Wonders when they will reach a conclusion to their hearing.

175

Gardner

Responds that they will conclude the issue later, but he does not know exactly when.

183

Chair Burdick

Closes the public hearing on SB 216 and opens a public hearing on SB 422.

SB 422 – PUBLIC HEARING

185

Joe O’Leary

Counsel.  Describes SB 422 relating to allowing a person subject to a stalking protective order to seek dismissal of that order.   

210

Mark Kramer

Attorney, Kramer & Associates.  Submits testimony and proposed amendments and testified in support of SB 422 (EXHIBITS F & G).

245

Kramer

Continues reading testimony relating to the revocation of stalking orders (Exhibit F).

285

Kramer

Continues reading testimony relating to dismissal of stalking orders. (Exhibit F).

320

Laura Graser

Attorney.  Testifies in support of SB 422 and cites an example of the problems with current law.

370

Graser

Stresses the importance to separate the socially inept with the truly dangerous. 

406

Sen. Whitsett

Asks who has the burden of proof in these cases.

409

Graser

States that current statute requires the victim to initially establish proof, but then the defendant has the burden to disprove.

426

Andrea Meyer

Legislative Director, American Civil Liberties Union (ACLU).  Testifies in support of SB 422 for the ACLU and the Oregon Criminal Defense Lawyers Association.

457

Nancy Glass

Oregon Health Sciences University.  Submits a paper on stalking as a risk factor for attempted and actual intimate partner femicide and testifies in opposition to SB 422 (EXHIBIT H).

TAPE 93, B

033

Glass

Continues testimony about the dangers facing women concerning stalkers.

051

Sen. Prozanski

Desires clarification on the testimony and its relation to SB 422.

056

Chair Burdick

Asks about the areas of consensus that Mr. Kramer identified.

061

Glass

Advocates caution to amending current law.

071

Sybil Hebb

Oregon Law Center.  Submits testimony and testifies in opposition to SB 422 (EXHIBIT I).  Agrees with the concept of the bill, but is concerned with the proposal in the bill and Mr. Kramer’s proposed amendments.

118

Hebb

Addresses 1995 testimony that helped create the current statute.

131

Sen. Whitsett

Inquires about the scope of the reports dealing with increased duration of separation’s relation to stalking cases.

137

Glass

Directs the committee to the reference for that information.

144

Gina Skinner

Deputy District Attorney, Washington County, Oregon District Attorneys Association.  Testifies in opposition to SB 422 in its current form.  Discusses the hearing and restraining order that is possible to address these cases.

180

Skinner

Talks about the seriousness of stalking orders.  Comments on the concerns over the duration of these orders.  Acknowledges that there should be some mechanism in place to petition their removal.

208

Chair Burdick

Closes the public hearing on SB 422 and opens a work session on SB 94.

SB 94 – WORK SESSION

214

Joe O’Leary

Counsel.  Describes SB 94 relating to mandatory cross reporting of child abuse reports between law enforcement agencies and the Department of Human Services.  Introduces and describes the -4 amendment (EXHIBIT J).

246

Sen. Starr

MOTION:  Moves to ADOPT SB 94-4 amendments dated 4/4/05.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Ringo

250

Chair Burdick

Hearing no objection, declares the motion CARRIED.

253

Sen. Starr

MOTION:  Moves SB 94 to the floor with a DO PASS AS AMENDED recommendation.

254

Sen. Whitsett

Declares his hesitance to support the bill, but agrees to pass it out of committee.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Ringo

267

Chair Burdick

Hearing no objection, declares the motion CARRIED.

SEN. BURDICK will lead discussion on the floor.

277

Chair Burdick

Closes the work session on SB 94 and moves SB 1012 and SB 273 to Wednesday, April 6, 2005. Adjourns the meeting at 3:00 p.m.

 

 

 

 

 

EXHIBIT SUMMARY

 

  1. SB 39, -1 amendment, staff, 1 p
  2. SB 39, -3 amendment, staff, 3 pp
  3. SB 216, -1 amendment, staff, 1 p
  4. SB 216, -2 amendment, staff, 1 p
  5. SB 216, written testimony, Frederick M. Boss, 1 p
  6. SB 422, written testimony, Mark Kramer, 6 pp
  7. SB 422, proposed amendments, Mark Kramer, 2 pp
  8. SB 422, stalking as a risk factor for attempted and actual intimate partner femicide, Nancy Glass, 4 pp
  9. SB 422, written testimony, Sybil Hebb, 2 pp
  10. SB 94, -4 amendment, staff, 2 pp