SENATE COMMITTEE ON JUDICIARY

 

 

May 25, 2005                                                                                                       Hearing Room 343

1:00 P.M.                                                                                                                  Tapes 146 - 147

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 978 – Public Hearing and Work Session

SB 528 – Work Session

SB 1041 – Public Hearing

SB 392 – Public Hearing

SB 1050 – Work Session

SB 424 – Work Session

SB 1059 – 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 146, A

003

Chair Burdick

Calls the meeting to order at 1:12 p.m. and opens a public hearing on SB 978.

SB 978 – PUBLIC HEARING

010

Rep. Dennis Richardson

House District 4.  Submits testimony and testifies in support of SB 978 (EXHIBIT A).  Introduces written testimony from Mark Huddleston, Jackson County District Attorney (EXHIBIT B).

024

Mary Botkin

American Federation of State, County, and Municipal Employees.  Submits testimony and testifies in support of SB 978 (EXHIBIT C).

074

William E. Taylor

Counsel.  Describes SB 978 relating to prohibiting the disclosure of public records relating to the criminal investigation or prosecution or to confinement of persons convicted of crimes unless personal identifiers that have been deleted.  Introduces and discusses the -2 and -3 amendments (EXHIBITS D & E).

095

Botkin

Suggests the addition of the word “home” in front of the term “address” to protect the houses of agency workers.

111

Dan Norris

Malheur County District Attorney, Oregon District Attorney Association.  Testifies in support of SB 978.

130

Sen. Prozanski

Notes the specific location where the additional term “home” would be added.

138

Taylor

Clarifies the effect of the bill; protecting the home address and information from access.

153

Chair Burdick

Closes the public hearing and opens a work session on SB 978.

SB 978 – WORK SESSION

160

Sen. Starr

MOTION:  Moves to ADOPT SB 978-3 amendments dated 5/25/05.

 

 

VOTE:  5-0-2

EXCUSED:  2 - Ringo, Walker

163

Chair Burdick

Hearing no objection, declares the motion CARRIED.

164

Sen. Starr

MOTION:  Moves SB 978 to the floor with a DO PASS AS AMENDED recommendation.

 

 

VOTE:  5-0-2

EXCUSED:  2 - Ringo, Walker

166

Chair Burdick

Hearing no objection, declares the motion CARRIED.

SEN. PROZANSKI will lead discussion on the floor.

172

Chair Burdick

Closes the work session on SB 978 and opens a work session on SB 528.

SB 528 – WORK SESSION

177

Joe O’Leary

Counsel.  Describes SB 528 relating to decreasing the penalty for a crime of cheating to a maximum of one year’s imprisonment, $6,250 fine, or both.  Introduces and describes the -10 amendment (EXHIBIT F).

219

Chair Burdick

Commends the work from counsel and by Legislative Counsel.

225

O’Leary

States that the Fiscal Impact Statement was not ready at the time of the hearing, but it will be indeterminate.

240

Chair Burdick

Asks if the bill would trigger the local impact provision.

243

O’Leary

Replies that it will not.

247

Chair Burdick

Talks about the discussion over whether the bill should be retroactive to cases in the ‘pipeline.’  Stresses that if a case has exhausted all appeals, then Blakely will not apply.

271

O’Leary

Comments on the retroactivity provision in the -10 amendment.

279

Sen. Beyer

Inquires about the -10 amendment representing the -9 as opposed to the -8 amendment.

290

Chair Burdick

Says that the -10 represents the -9 with fixes.

296

Sen. Starr

States that the -10 amendment replaces the entirety of the bill.

300

O’Leary

Declares that the -8 amendment did not apply retroactively and the -9 and -10 did.

310

Sen. Prozanski

Talks about the jurors required to convict and aggravate the sentence.

321

O’Leary

Replies that there would need to be at least 10 jurors to add an aggravated factor to the judgment.

345

O’Leary

Stresses that there may be further applicability resulting from Blakely and this bill.

372

Sen. Whitsett

Wonders if the Oregon Criminal Defense Lawyers Association supports this -10 amendment.

384

John Hummel

Oregon Criminal Defense Lawyers Association.  Declares their opposition to the retroactivity clause in the -10 amendment.

403

Sen. Starr

MOTION:  Moves to ADOPT SB 528-10 amendments dated 5/18/05.

405

Sen. Ringo

Declares his objection over the -10 amendment.

 

 

VOTE:  4-2-1

AYE:               4 - Beyer, Prozanski, Starr C., Burdick

NAY:               2 - Ringo, Whitsett

EXCUSED:     1 - Walker

418

Chair Burdick

The motion CARRIES.

420

Sen. Starr

MOTION:  Moves SB 528 to the floor with a DO PASS AS AMENDED recommendation.

424

Sen. Beyer

Offers his hesitance to fully support a bill with no fiscal impact statement yet.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Walker

441

Chair Burdick

Hearing no objection, declares the motion CARRIED.

SEN. BURDICK will lead discussion on the floor.

TAPE 147, A

010

Chair Burdick

Closes the work session on SB 978 and opens a public hearing on SB 1041.

SB 1041 – PUBLIC HEARING

013

William E. Taylor

Counsel.  Describes SB 1041 relating to creating a civil action for custodial interference in any degree.

028

Sean Cruz

Legislative Aide, Sen. Avel Gordly.  Submits testimony and testifies in support of SB 1041 but states that there are amendments pending (EXHIBIT G).

071

Bealisa Sydlik

Family Law Senior Policy Analyst. Office of the State Court Administrator.  Submits testimony and testifies in a neutral stance on SB 1041 (EXHIBIT H).  Encourages amendments that would decrease the statute of limitations and eliminate the retroactivity in the bill.

118

Taylor

Asks about if she means conviction when she states “prosecution.”  Inquires about the filing by either a District Attorney or a private citizen.

113

Sydlik

Replies that the filing of a case might constitute prosecution, and the District Attorney needs to accept the case. 

129

Sen. Ringo

Inquires about if the crime of custodial interference requires intent.

132

Taylor

Responds that it does require intent.  Addresses the legality of the issue.

143

Sen. Ringo

Comments on the term “protracted period” of time.

185

Sen. Ringo

Asks about the typical custodial interference case.

188

Sydlik

Replies with information on custodial interference cases.

200

Sen. Prozanski

Discusses the concerns raised by Sen. Ringo.

215

Sybil Hebb

Oregon Law Center.  Testifies on the issue of custodial interference.

239

Sen. Starr

Agrees that work needs to be done on this issue. 

261

Chair Burdick

Closes the public hearing on SB 1041.  Asks for a suspension of the rules to allow Sen. Walker to vote on SB 528.  Opens a work session on SB 528.

SB 528 – WORK SESSION

270

Sen. Starr

MOTION:  Moves to SUSPEND the rules for the purpose of allowing Sen. Walker to vote on SB 528.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Prozanski

272

Chair Burdick

Hearing no objection, declares the motion CARRIED.

275

Sen. Walker

Votes Aye.

280

Chair Burdick

Closes the work session on SB 528 and opens a public hearing on SB 392.

SB 392 – PUBLIC HEARING

283

Sen. Westlund

Senate District 27.  Testifies in support of SB 392.  Tells a story involving family murder that would be addressed by SB 392.

348

Chair Burdick

Commends Sen. Westlund for bringing this issue to light.  Asks about the exception in the bill relating to individuals pressuring another to get around the bill.

364

Sen. Westlund

Details the rational process that needs to be followed before any exemptions would be allowed or assets signed over.

385

William E. Taylor

Addresses current slayer laws.

416

Chair Burdick

Inquires if an exemption exists for people under the age of 18.

425

Sen. Westlund

Talks about the proceeds resulting from the death of a person; what would occur if a trust would be setup for underage individuals in these situations.

444

Taylor

States that, if the younger person would die, then the property would go to other family members: with this bill, the assets would not go to the family member convicted of the slaying.

TAPE 146, B

011

Taylor

Comments on the guardian status in relation to blood relatives.

033

Chair Burdick

Closes the public hearing on SB 392 and moves SB 1025 to Tuesday, May 31, 2005.  Opens a work session on SB 1050.

SB 1050 – WORK SESSION

048

William E. Taylor

Counsel.  Describes SB 1050 relating to modifying the requirements for eligibility of a child 18 years of age or older and under 21 years of age to receive child support while attending school.  Introduces and describes the -3 amendment (EXHIBIT I).

067

Ronelle Shankle

Attorney General’s Office, Department of Justice.  Testifies in support of the SB 1050 with the -3 amendment.

086

Shani Fuller

Department of Justice, Oregon Child Support Program.  Submits testimony and testifies in support of SB 1050 (EXHIBIT J).  Talks about the -3 amendment.

130

Fuller

Addresses the emergency clause in the bill.

133

Sen. Starr

Inquires if this bill applies to intact families.

135

Fuller

Replies that it does not.

145

Sen. Starr

Declares that he does not believe these opportunities should be offered to families that have been broken up if they are not offered to intact families.

164

Shankle

Stresses that this bill does not affect the support entitlement for these children.  Talks about the effects of the bill.

174

Taylor

Asks how long this law has been on the books.

177

Shankle

Replies that it has been on the books for many years, but she is not sure about the exact date it was created.

181

Chair Burdick

Inquires if the obligation to pay for a child’s college education is determined by the divorce decree.

186

Shankle

Reports that this is not a dollar-for-dollar reimbursement of educational expenses; requires a dissolution or administrative order (support order).

192

Chair Burdick

Wonders if this bill only applies to supporting the child; not obligating individuals to pay for college tuition, etc.

196

Shankle

Replies that it does not obligate others to pay for tuition.

224

Chair Burdick

Closes the work session on SB 1050 and opens a work session on SB 424.

SB 424 – WORK SESSION

227

Joe O’Leary

Counsel.  Describes SB 424 relating to giving the court discretion in awarding temporary custody of parties’ children when the court issues restraining orders under the Family Abuse Prevention Act.  Introduces and describes the -1 and -2 amendments (EXHIBITS K & L).

268

Bealisa Sydlik

Family Law Senior Policy Analyst. Office of the State Court Administrator.  Submits testimony and testifies in support of SB 424 (EXHIBIT M).

300

Chair Burdick

Asks how many of these types of cases are brought before judges in Oregon.

307

Sydlik

Replies that these cases do not occur often (5% of the cases brought before judges, roughly), and reports with information on the statistics for these cases.

314

Chair Burdick

Wonders about the tight requirements in the -2 amendment.

319

Sydlik

States that the judge would need additional information before seeking this method.

330

Sybil Hebb

Oregon Law Center.  Submits testimony and FAPA Custody Changes and testifies in a neutral stance on SB 424 and support the -2 amendment (EXHIBITS N & O).

380

Hebb

Talks about the -2 amendments and the support for the bill.

400

Hebb

Declares their support of the current state of the law, but if the bill would move, to include the -2 amendment with their support.

425

Hebb

Strongly urges the committee provides direction for the department when this clause would be used.

TAPE 147, B

022

Sen. Walker

States that taking a child away from a parent is something that needs to be heavily discussed before it is done; declares that the problem needs to be fixed.

039

Sen. Walker

Stresses that a -3 is needed.

049

Sydlik

Talks about the commitment to increase department training on this issue. 

080

Sen. Prozanski

Talks about the lack of an emergency clause, discloses his hesitance to support a bill that clearly has issues.

102

Sen. Whitsett

Comments on the judicial power to make an informed decision.

111

Chair Burdick

Closes the work session on SB 424 and moves SB 1047 to another day.  Opens a public hearing on SB 1059.

SB 1059 – PUBLIC HEARING

124

Joe O’Leary

Counsel.  Describes SB 1059 relating to providing that a person under 18 years of age who is found guilty except for insanity of a crime may be committed to a secure intensive community impatient facility.  Introduces and discusses the -1 and -2 amendments (EXHIBITS P & Q).

164

Sen. Beyer

Asks if this bill has a similar effect as another they had heard earlier in the session.

165

O’Leary

Talks about the different bills relating to this subject that the Senate Judiciary Committee has heard this session.

187

Bill Bouska

Office of Mental Health and Addiction Services.  Submits testimony and testifies in support of SB 1059 with the -1 and -2 amendments (EXHIBIT R).

214

Sen. Walker

Asks if this bill is a result of closing Ward 40.  Asks when the new program started, and if all the adolescents from Ward 40 are in the Corvallis secure adolescent program.

215

Bouska

Replies yes.  States that the new program began in early March and that all adolescents are in the Corvallis program.

244

Sen. Beyer

Inquires as to where they received the statutory authority to move these adolescents.

247

Bouska

Responds with information on where in Oregon statutes (161.370) they received the authority to accomplish this relocation of adolescents.  Talks about the different options available to the court to deal with these younger offenders.

274

O’Leary

Addresses Sen. Beyer’s concern on statutory authority and the example the witness discussed.  Discusses the lack of flexibility of the Psychiatric Security Review Board to manage these issues.

314

Mary Claire Buckley

Director, Psychiatric Security Review Board.  Testifies on the legal options for conditionally releasing these adolescents into the new programs. 

338

Sen. Beyer

Asks if any of the patients who were recently moved considered dangerous.

346

Buckley

Replies that there were dangerous offenders moved to the new program, but there are very secure methods used by the program to eliminate any threat these individuals may pose.

359

Sen. Beyer

Stresses that he does not like adapting law to fit the methods already used by different agencies that are bending the current statute.

369

Sen. Prozanski

Clarifies the effects of SB 1059.  Declares that they have not broken the law, violated the statutes, or are outside their statutory authority.

393

Chair Burdick

Closes the public hearing and opens a work session on SB 1059.

SB 1059 – WORK SESSION

399

Sen. Walker

MOTION:  Moves to ADOPT SB 1059-1 amendments dated 5/18/05.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Starr

404

Chair Burdick

Hearing no objection, declares the motion CARRIED.

405

Sen. Walker

MOTION:  Moves to ADOPT SB 1059-2 amendments dated 5/18/05.

409

Sen. Prozanski

Declares his support for the emergency clause for the bill.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Starr

416

Chair Burdick

Hearing no objection, declares the motion CARRIED.

418

Sen. Walker

MOTION:  Moves SB 1059 to the floor with a DO PASS AS AMENDED recommendation.

424

Chair Burdick

Declares a potential conflict of interest.

427

Sen. Beyer

States that there has yet to be a fiscal for the bill.

429

Joe O’Leary

Counsel.  Stresses that there will need a -3 amendment which will then receive a fiscal.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Starr

450

Chair Burdick

Hearing no objection, declares the motion CARRIED.

SEN. WALKER will lead discussion on the floor.

453

Chair Burdick

Closes the work session on SB 1059 and re-opens a work session on SB 1050.

SB 1050 – WORK SESSION

457

Sen. Walker

MOTION:  Moves to ADOPT SB 1050-3 amendments dated 5/19/05.

 

 

VOTE:  5-1-1

AYE:               5 - Prozanski, Ringo, Walker, Whitsett, Burdick

NAY:               1 - Beyer

EXCUSED:     1 - Starr C.

461

Chair Burdick

The motion CARRIES.

466

Sen. Walker

MOTION:  Moves SB 1050 to the floor with a DO PASS AS AMENDED recommendation.

472

Sen. Beyer

Talks about how this is bad law and will not support the bill.

489

Sen. Whitsett

Declares a potential conflict of interest.

 

Chair Burdick

VOTE:  5-1-1

AYE:               5 - Prozanski, Ringo, Walker, Whitsett, Burdick

NAY:               1 - Beyer

EXCUSED:     1 - Starr C.

494

Chair Burdick

The motion CARRIES.

SEN. BURDICK will lead discussion on the floor.

502

Chair Burdick

Closes the work session on SB 1050 and adjourns the meeting at 3:03 p.m.

 

 

 

 

 

EXHIBIT SUMMARY

 

  1. SB 978, written testimony, Rep. Richardson, 1 p
  2. SB 978, written testimony, Rep. Richardson, 1 p
  3. SB 978, written testimony, Mary Botkin, 1 p
  4. SB 978, -2 amendment, staff, 3 pp
  5. SB 978, -3 amendment, Rep. Richardson, 3 pp
  6. SB 528, -10 amendment, staff, 20 pp
  7. SB 1041, written testimony, Sean Cruz, 5 pp
  8. SB 1041, written testimony, Bealisa Sydlik, 2 pp
  9. SB 1050, -3 amendment, staff, 6 pp
  10. SB 1050, written testimony, Shani Fuller, 5 pp
  11. SB 424, -1 amendment, staff, 3 pp
  12. SB 424, -2 amendment, staff, 38 pp
  13. SB 424, written testimony, Bealisa Sydlik, 9 pp
  14. SB 424, written testimony, Sybil Hebb, 3 pp
  15. SB 424, written testimony, Sybil Hebb, 1 p
  16. SB 1059, -1 amendment, staff, 1 p
  17. SB 1059, -2 amendment, staff, 1 p
  18. SB 1059, written testimony, Bill Bouska, 2 pp