SENATE COMMITTEE ON JUDICIARY

 

 

May 12, 2005                                                                                                       Hearing Room 343

1:00 P.M.                                                                                                                  Tapes 135 - 136

Corrected 10/26/05

 

 

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:                 William E. Taylor, Counsel

                                                Joe O'Leary, Counsel

Dale Penn, Committee Assistant

 

MEASURES/ISSUES HEARD:        

SB 301 – Work Session

SB 528 – Work Session

SB 1050 – 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 135, A

003

Chair Burdick

Calls the meeting to order at 1:13 p.m. and opens a work session on SB 301.

SB 301 – WORK SESSION

007

Joe O’Leary

Counsel.  Describes SB 301 relating to specifying the circumstances under which a peace officer and corrections officer may use deadly physical force.  Introduces and describes the -2 amendment (EXHIBIT A).

043

Sen. Whitsett

Asks about the technical changes made in section 12 of the -2 amendment.

050

O’Leary

Offers information on the grand jury proceedings, and the technical changes made to the process in the -2 amendment.

062

Pete Shepherd

Deputy Attorney General.  Submits testimony and agrees with Counsel on their assessment of the changes made with the -2 amendment (EXHIBIT B).  Introduces written testimony from Multnomah County District Attorney Michael D. Schrunk in support of the -2 amendment to SB 301 (EXHIBIT E).

068

Chair Burdick

Inquires about the representatives that formed this work group on the -2 amendment.

071

Shepherd

Replies with information on the makeup of the work group.

088

Chair Burdick

Inquires about the blank area in the bill dealing with the funds available for this project.

090

Shepherd

Talks about the necessity of retaining the state as a financial partner in addressing this problem.  Goes on to talk about the commentary dealing with the effects of the bill (Exhibit B).

120

Chair Burdick

Asks for a summarization of the changes made with the -1 and -2 amendments.

121

Shepherd

Replies with information on the changes between the -1 and -2 amendments.  Discusses the amount and variety of the leave offered to officers after an injury or event resulting from the firing of a weapon or other aggravated occurrence.

161

Shepherd

Stresses a conceptual difference between the -1 and -2 amendments: the effort must be a combined effort between the state and local jurisdictions.

196

Shepherd

Declares that District Attorney John Foote from Clackamas County authorized Mr. Shepherd to offer his support for this bill.

215

Chair Burdick

Closes the work session on SB 301 and opens a work session on SB 528.

SB 528 – WORK SESSION

222

Joe O’Leary

Counsel.  Introduces and describes the -8 and -9 amendments (EXHIBITS C & D).

275

Chair Burdick

Describes the term “retroactive” and how it would not apply to cases that have exhausted all other measures, only to those cases that are currently being challenged.

311

Brad Berry

Yamhill County District Attorney.  Testifies on the amount of jurors needed for an enhanced sentence. 

328

O’Leary

Agrees with the assessment, and stresses that this points out an earlier flaw with the statutes.  States that the same amount of jurors, and the same specific jurors, must agree on an enhancement sentence that earlier convicted the defendant.

368

Berry

Discusses the enhancement factor requirements, from a jury standpoint.

408

Sen. Prozanski

Clarifies that the jurors who originally made the verdict must also be the same jurors who approve an enhancement factor.

425

Sen. Beyer

Inquires if the jurors who might vote not-guilty would be released from jury sentencing.

435

Berry

Replies that they would not, but their vote would not truly count after that.  Describes the scenario resulting from allowing jurors

466

Sen. Prozanski

Asks about a problem with segregating the jury in such a way.

TAPE 136, A

024

Chair Burdick

States that there is a chance that a juror convinced of guilt might not believe in an aggravated verdict.

032

O’Leary

Talks about the situation where 11 of the 12 jurors vote guilty, and then 10 of the 11 must vote for the enhancement factor.

039

Berry

Responds in the affirmative.

043

Chair Burdick

Asks if all trials will have that threshold and if the same jurors must vote for both factors (guilty and enhancement factor).

047

Berry

Stresses that in a six person jury, a unanimous verdict is required.

059

Chair Burdick

Asks about the issue of retroactivity.

061

Berry

Offers his support of the -9 amendment.  Talks about the need for this procedure in allowing for more efficient trials.

105

Berry

Discusses the constitutionality of this bill and the ramifications of its passage.

133

Chair Burdick

Brings up the issue of techniques and methods that might conflict with future legislation.

147

Tim Sylwester

Department of Justice, Criminal Justice Division.  Testifies on the issue of post conviction cases resulting from the passage of these types of bills.  Talks about a recent supreme court case that addresses the issue of individuals citing bad representation from counsel for not anticipating future court decisions.

198

Sylwester

Discusses the people most affected by this legislation would be the most offensive individuals; those who have accrued the longest sentences for the most heinous crimes (aggravated crimes). 

230

Sylwester

Addresses the double jeopardy clause as a possible use for further litigations (Court of Appeals: State of Oregon vs. Sawatzky).

248

Chair Burdick

Inquires if there are any constitutional conflicts resulting from this future decision.

252

Sylwester

Replies that he does not believe there will be.

264

Chuck French

Deputy District Attorney, Multnomah County.  Talks about the offenders who have aggravated sentences: violent offenders, sexually dangerous offenders, etc.

320

French

Discusses the issue of financial impact on the correctional divisions.  Stresses that there would be little to no cost, and possibly less, towards the Department of Corrections.  States that these individuals would only get less sentencing by bringing their cases to the courts: less time in prison and therefore lower costs.

375

French

Declares that the financial impact would be little to none for the court system.  Acknowledges that there might be a few extra cases brought against the department.

403

Chair Burdick

Asks if the expo facto or double jeopardy problems will present a future litigation challenge for the state.

413

Sylwester

Talks about the expo facto and double jeopardy issues facing the Department of Justice; stresses that this issue is not an expo facto or double jeopardy problem.

449

Chair Burdick

Closes the work session on SB 528 and opens a work session on SB 301.

SB 301 – WORK SESSION

463

Sen. Starr

MOTION:  Moves to ADOPT SB 301-2 amendments dated 5/6/05.

464

Sen. Whitsett

States that he hasn’t had the time to address the testimony and alterations made relating to the amendments.

TAPE 135, B

 

Chair Burdick

VOTE:  5-2-0

AYE:               5 - Prozanski, Ringo, Starr C., Walker, Burdick

NAY:               2 - Beyer, Whitsett

027

Chair Burdick

The motion CARRIES.

028

Sen. Starr

MOTION:  Moves SB 301 to the floor with a DO PASS AS AMENDED recommendation and BE REFERRED to the committee on Senate Budget Committee.

034

Sen. Prozanski

Talks about his current support for the bill, but hesitates to fully support the bill until he hears from law enforcement in his district.

 

Chair Burdick

VOTE:  5-2-0

AYE:               5 - Prozanski, Ringo, Starr C., Walker, Burdick

NAY:               2 - Beyer, Whitsett

051

Chair Burdick

The motion CARRIES.

053

Chair Burdick

Closes the work session on SB 301 and opens a work session on SB 528.

SB 528 – WORK SESSION

064

Peter Gartlan

Chief Defender, Legal Services Division, Office of Public Defense Services.  Submits testimony and testifies in opposition to the retroactivity clause in SB 528 (EXHIBIT F).

120

Gartlan

Talks about the two court of appeals cases that have dealt with dangerous offenders (Measure 11 offenders).  States that 120 cases are in their office that deal with the recent Blakely Supreme Court case.

157

Gregory Silver

Chief Attorney, Metropolitan Public Defender Services.  Submits testimony and testifies in support of SB 528, but stresses their opposition to the retroactivity clause (EXHIBIT G).

195

Silver

Discusses the challenges facing the retroactivity clause if it is adopted.  Brings up the issue of the double jeopardy and expo facto clauses being used against the retroactivity clause.

245

Silver

Talks about how anything that increases the sentence beyond what the sentencing guidelines grid allow is part of the actual crime, and they have already been convicted of this.

267

Silver

Comments on the State of Oregon vs. Sawatzky court case where a woman was upward departed from the presumptive sentencing.

296

Chair Burdick

Asks about consecutive sentences in the Sawatzky case.

298

Silver

Responds with information on the consecutive sentencing in the Sawatzky case.

340

Silver

Continues his discussion on the State of Oregon vs. Sawatzky case.

364

Chair Burdick

Inquires about statutory authorization in influencing Supreme Court decisions.

368

Silver

Declares that he doesn’t know if that would influence the Supreme Court’s decision on such an issue.

410

Sen. Walker

Wonders what may occur if the Supreme Court refuses to accept the petition of such a case.

421

Silver

Talks about how the judges who face the cases themselves would take it upon themselves to adjudicate the issue.

TAPE 136, B

009

Michael Marcus

Circuit Court Judge, Multnomah County.  Submits testimony and testifies on the issue of the retroactivity clause in the amendments for SB 528 (EXHIBIT H).

063

Marcus

Talks about the financial impact resulting from this decision.  States that the upward departures are not entirely focused on the most dangerous offenders.

104

Chair Burdick

Inquires about an expo facto clause being in conflict with this clause.

110

Marcus

Addresses the issue of expo facto.

117

Sen. Whitsett

Asks about a statute requiring or allowing retroactive sentencing enhancement would influence the Oregon Supreme Court’s decision on the actual constitutionality of such a policy.

122

Marcus

Stresses that the legislation should have no impact on the decisions of the Supreme Court dealing with constitutionality.

138

Nancy Miller

Deputy State Court Administrator.  Testifies in a neutral stance on the issue of retroactivity.  Addresses the fiscal impact resulting from the passage of the bill.  Expresses the uncertainties facing the panel today: how many of the decisions they face are based on “ifs” and “possibilities.”

180

Miller

Explains that with a minimum amount of cases, the court system would exceed their allotted funds.

197

Chair Burdick

Appreciates the work by the panel witnesses on this issue.  Closes the work session on SB 528 and opens a public hearing on SB 1050.

SB 1050 – PUBLIC HEARING

207

William E. Taylor

Counsel.  Describes SB 1050 relating to modifying the requirements for the eligibility of a child 18 years of age or older and under 21 years of age to receive child support while attending school.  Introduces the -2 amendment (EXHIBIT I).

227

Hans Bernard

Legislative Aide, Sen. Brown.  Testifies in support of SB 1050.  Reads a letter from Judge Keith Raines in support of SB 1050 (EXHIBIT J).

276

Ronelle Shankle

Project and Legislative Liaison for the Attorney General.  Submits a testimony packet, a hand-engrossed version of SB 1050 with the -2 amendment, and written testimony from Concetta F. Schwesinger, the Oregon District Attorneys Association Child Support Program Liaison (EXHIBITS K – M).

314

Celia Nunez

Policy Analyst, Senate Majority Office.  Submits testimony and testifies in support of SB 1050 (EXHIBIT N).

355

Nunez

Continues reading testimony in support of SB 1050 (Exhibit N).

387

Shani Fuller

Department of Justice, Oregon Child Support Program.  Submits testimony and testifies in support of SB 1050 and the -2 amendment (EXHIBIT O).  Discusses the proposed -3 amendment.

413

Karen Berkowitz

Oregon Law Center.  Submits testimony and testifies in support of SB 1050 (EXHIBIT P).

477

William E. Taylor

Asks if she is proposing an amendment.

480

Berkowitz

Replies that she is not.

484

Chair Burdick

Closes the work session on SB 1050 and adjourns the meeting at 3:05 p.m.

 

 

 

 

 

EXHIBIT SUMMARY

 

  1. SB 301, -2 amendment, staff, 19 pp
  2. SB 301, written testimony, Pete Shepherd, 18 pp
  3. SB 528, -8 amendment, staff, 19 pp
  4. SB 528, -9 amendment, staff, 20 pp
  5. SB 301, written testimony, Pete Shepherd, 2 pp
  6. SB 528, written testimony, Peter Gartlan, 1 p
  7. SB 528, written testimony, Gregory Silver, 3 pp
  8. SB 528, written testimony, Michael Marcus, 2 pp
  9. SB 1050, -2 amendment, staff, 4 pp
  10. SB 1050, written testimony, Keith Raines, 1 p
  11. SB 1050, written testimony, Ronelle Shankle, 2 pp
  12. SB 1050, Hand-engrossed version, staff, 5 pp
  13. SB 1050, written testimony, Concetta Schwesinger, 2 pp
  14. SB 1050, written testimony, Celia Nunez, 2 pp
  15. SB 1050, written testimony, Shani Fuller, 4 pp
  16. SB 1050, written testimony, Karen Berkowitz, 2 pp