OREGON LAW COMMISSION · 2020-05-08 · OREGON LAW COMMISSION Page 4 Commission and Joel DeVore’s...

OREGON LAW COMMISSION

February 27, 2004 Capitol Building, HR “B” 2:00 p.m. Tapes 4-5 MEMBERS PRESENT: Lane P. Shetterly, Chair Senator Kate Brown, Vice Chair

Chief Justice Wallace P. Carson, Jr. Professor Sandra A. Hansberger Professor Hans Linde Dean Symeon C. Symeonides Attorney General Hardy Myers

Professor Dominick R. Vetri Senator Vicki L. Walker Max Williams, II

MEMBERS EXCUSED: Gregory R. Mowe Professor Bernard F. Vail

Martha L. Walters STAFF PRESENT: David R. Kenagy, Executive Director Wendy J. Johnson, Assistant Executive Director Rosalie M. Schele, Administrative Assistant

MEASURE/ISSUES HEARD:

- Approval of Minutes from December 12, 2003 Commission Meetings - Executive Director’s Report - Program Committee Recommendations - Work Group Updates - Other Business

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 4, A 09 Chair Lane

Shetterly Calls to order the meeting of the Oregon Law Commission at the Capitol Building, Hearing Room B in Salem at 2:10 p.m. Points out the agenda in the materials. Asks if there are any comments before beginning and calls on “Representative” Williams (this was done in error since Max Williams and Lane Shetterly have both stepped down from their positions in the House of Representatives). Apologizes for the error.

18 Max Williams Jests that his per diem paperwork has not been given to him. 19 Chair Lane

Shetterly Laments the same problem (they are no longer getting the per diem that is provided to legislators). Continues by asking for discussion about the December 12, 2003 minutes found in the handout materials.


There is no discussion. 28 Senator Kate Brown

Moves that the Commission approve the December 12, 2003 Commission meeting minutes.

30 Chair Lane Shetterly

States that a motion is on the floor for the Commission to approve the December 12, 2003 Commission meeting minutes as presented and since there are no changes to make or more discussion they stand approved as distributed; the motion is carried. Vote 10-0. So ordered. Calls on David Kenagy for the Executive Director’s Report.

35 David Kenagy Points out the list of projects in Exhibit A, Oregon Law Commission Project List for 2005 (Updated Feb. 27, 2004). There are seven approved Current Work Groups, eight pending projects, and two deferred projects. Most will be discussed, as the agenda proceeds, and there will be some comments about the Judgments Work Group.


Asks if there are questions or comments for Mr. Kenagy and hearing none proceeds with the Program Committee Recommendations (Exhibit B) by calling Julie McFarlane to the witness table. Asks the Chair of the Program Committee, Attorney General Hardy Myers, if he would like to speak first.

58 Attorney General Hardy Myers

Reviews that the Program Committee is recommending the approval of a Juvenile Guardian ad Litem Sub-Work Group of the Juvenile Code Revision Work Group.

65 Julie McFarlane Thanks the Commission and begins by explaining that in Juvenile Court many times the parents are mentally ill and that is the basis for intervention. In some cases the parents are so mentally ill or retarded that they are not competent to direct their own counsel in the proceedings and that is when a guardian ad litem is appointed. Because there is no statutory provision about appointing guardians ad litem a lot of questions on how to proceed arise. The proposal (Exhibit B) has been written for the Sub-Work Group to pursue some statutory framework for this.


Asks for questions and lets everyone know that this comes under recommendations of the Juvenile Code Revision Work Group as well as the Program Committee.

97 Julie Informs the Commission that the Juvenile Code Revision Work Group had a meeting this past week and members have volunteered to serve on this Sub-Work Group.


Says, “In anticipation of favorable action” today.

100 Senator Kate Brown Explains that they were not trying to jump the gun but they were working on determining who was needed in the group and they are still looking for a couple of members including an appellate judge, someone from the Oregon State Bar Juvenile section, and the PLF. (comments that she hopes Ira Zerov will help from the PLF).

108 Chair Lane Asks if there are any questions and hearing none, asks for the motion.

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.


Shetterly 110 Attorney General

Hardy Myers Moves that the Oregon Law Commission accept the recommendation of the Program Committee to authorize the formation of a Juvenile Guardian ad Litem Sub-Work Group within the existing Juvenile Code Revision Work Group (chaired by Sen. Kate Brown) with the scope of the Juvenile Guardian ad Litem project as defined in the proposal.


State that a motion was made that the Oregon Law Commission accept the recommendation of the Program Committee to authorize the formation of a Juvenile Guardian ad Litem Sub-Work Group within the existing Juvenile Code Revision Work Group (chaired by Sen. Kate Brown). The scope of the Juvenile Guardian ad Litem project is defined in the proposal. Asks for discussion or objections and hearing none the motion carries. Vote 10-0. So ordered. Thanks Julie McFarlane and remarks that the smell of goodies - hot out of the oven - are the cookies behind him. Comments, “speaking of hot-out-of-the-oven, let’s go on with the Auto Insurance Study Group.”

129 Wendy Johnson Introduces the Automobile Insurance project by reminding that it started back in September 2003 at the Oregon State Bar and resulted in a proposal from Joel DeVore. The Commission authorized a Study Group with plaintiff and defense lawyers as well as neutral people to discuss the issues in the proposal to make sure all issues were covered. Reads the list of Study Group members: John Bachofner from Bullivant Houser Bailey PC, Joel DeVore at Luvaas Cobb Richards & Fraser, Dean Heiling at Dean Heiling & Associates, Justice Peterson from Willamette University College of Law, Senator Charley Ringo in private practice and the chair of the Group is Commissioner Martha Walters. The Study Group spent quite a bit of time going through the issues and putting them in an order of priority. At the last Oregon Law Commission meeting there was a report of their results (gray colored handout) but there was not enough time for the Commissioners to review the issues so they postponed the discussion until today. The study group tried to focus on the issues that were not too political, the law was ambiguous, or where there was a gap in the law. Often the issues require a policy decisions and the Study Group did not want to leave a gap or holes – in effect, the law broken; the Work Group felt that this area deserved to have answers especially because of evolving litigation. Refers to the Automobile Insurance handouts, Exhibit C, and points out that the first item is a one-page letter from Commissioner Walters, David Kenagy and herself, recommending only the first 16 issues from the proposal. Also, in the Exhibit C handouts, there are letters from Property Casualty Insurers (PCI) and Joel DeVore. PCI expresses which issues are not appropriate for the Oregon Law



Commission and Joel DeVore’s letter explains why the same issues are appropriate, making a point and counterpoint. The final item for Exhibit C is a letter written by Joel Ario from the Department of Consumer and Business Services, telling of intended legislation they plan to work on and how they see the Oregon Law Commission issues as both not overlapping and worthwhile. There are a number of people here today to hear about the direction of this project. There are really two issues for the Commission to address today – whether to form a Work Group and, if so, what the scope of the project should be.


Recognizes David Kenagy who has a comment.

207 David Kenagy Adds that there has been an enormous amount of work already done in the Study Group and there are people ready to speak about the issues and on whether to form a Work Group.

218 Joel DeVore Introduces himself and expresses a bit of embarrassment at placing in front of him the namecard that was prepared for him. Thanks the Commission for their time and emphasizes that he joins the recommendation originally made by the Program Committee, then by the Study Group, and most recently by the DCBS Insurance Division, which has recommended that you do go forward. It is NOT about making fundamental policy changes or political changes. That is what needs to be born in mind this afternoon particularly if we get into any controversy here. The political choices, the policies have already been made by our statutes on liability coverage, UM, UIM or PIP (i.e. UM-Uninsured Motorist, UIM-Under Insured Motorist, PIP – Personal Injury Protection); they are already there. The problem with which you are charged is to deal with anachronisms or glitches in the statutes where the policy is established but the language fails. That is certainly what has happened here. The classic example, “the poster child” example, is the case involving government cars, where the language was drafted when it was just an uninsured motorist statute and, of course, there would be a government to pay that. Long after that they tacked on underinsured motorists and nobody thought to go back and rewrite the language. So the language is still written with nobody thinking about what happens when it is a government car that causes your injury. You may be like Patricia Surface (refers to an Oregon Supreme Court case plaintiff) and have a million dollar policy that you bought and paid for with your insurance company to protect you for your catastrophic losses but, the way the statute is written, it says your coverage will pay only the amount the person to blame has to pay you. So, if it is a government car, it will only pay the tort claim limits. You have paid for a premium, yet will be denied all the benefits to which you are entitled. Now, that is just a statutory glitch; there is absolutely no excuse for that. The same thing exists with rental cars. Most rental car companies are self-insured, meaning that they have a big enough fleet that they do not have to buy a policy. There is a case that came down called Snappy Car Rental and it said they do not have to insure their renters.



They did not have to insure permissive drivers like you and I have to do – our policy covers any drivers we let use our car, but not a rental agency. The problem that can fail you in your uninsured motorist coverage is what happens when the guy who rents a car lies about his insurance, doesn’t have any, forgets his policy expired, or it has been cancelled for any a number of reasons. If this guy with the rental car then hits you, you turn to your own UM company for your $500,000 coverage and get nothing because, the way the statute is written, it’s written on the assumption that the self-insured car is going to have coverage for the driver, which it won’t if it’s a rental car. It is just a glitch, and there’s no excuse for any number of these glitches. It’s just the way the statute is written. “There are other glitches in the statutes compounding the issues but I will not take your time because I said I would be brief. I recognize that this is a field of controversy and in my darkest hours looking at some of the submissions that have already become critical, I sometimes fear that insurers would prefer no change at all and the plaintiff bar would prefer no change that they can’t control, because they would rather draft it themselves. But the perspective I ask you to keep today is that we are not making policy decisions, we are only about fixing glitches or problems that have no justification. There may be drafting issues to talk about, but I am here to urge you to go forward with this, remembering that we are not here to make political decisions, and recognizing that there may be controversy, but controversy because it is largely misunderstood. We are no strangers to controversy, and we are leaders in your fields, but we need to recognize that this is not about creating policy but fixing policy language that is broken.”


Thanks Joel and asks for questions, hearing none he thanks Joel for his work in the Study Group as well. Recognizes Teresa Miller from The Tresidder Company as she approaches the witness table and asks who she wants to bring with her.

280 Teresa Miller Responds that she is bringing John Powell. Jests that it is fun sitting next to John up at the witness table as they are generally on opposite sides. Introduces herself and explains that she is representing the Oregon Trial Lawyers Association. With respect to Mr. DeVore, contends that she has seen these proposals in the past legislative sessions and there are reasons why they have not moved forward – they do require very political judgments to be made. They would prefer to see them taken up by the legislative process where they can get in and fight with the insurance companies. They just do not think that the Oregon Law Commission is an appropriate place to take up this these issues.

293 John Powell Explains that he represents other interests, State Farm and North Pacific insurance companies. Indicates that Teresa is correct and these issues have been around for quite a while and they are debated. With all due respect to Joel DeVore, the issues that he outlined are not quite that simple. When you get into state or government liability



limits, there is a whole set of issues around that issue in and of itself. There are solutions to some of these problems; for example self- insurers – I am not sure that people should be able to self-insure automobiles and have any less coverage than someone who buys insurance. So, there is a policy issue that goes in another direction. The point I am trying to make is that these issues have been discussed and at times we feel limited in coming in and hearing the state shouldn’t have a tort liability cap – we feel that’s not our responsibility. If the Oregon Law Commission feels they have resources, time and energy to look at these issues in that breadth, not the way one person in Oregon believes they should go but as a full set of interests who will engage in this issue would like them to go, that’s your decision. But, I am here to tell the Commission that it is not going to be as simple as looking at the issues on this paper, because each one of these issues has a subset of issues within each of the issues. They are very complex and will take a lot of time and a lot of resources. And that means from us as well as from you, which generates some of our concerns.

313 Sen. Vicki Walker Indicates that she has two questions. She thinks that Teresa is representing trial lawyers and, if that is that correct, can they put that on the record? Asks, “Are you taking that position and I missed it?”

316 Teresa Miller Answers yes to both questions. 317 Sen. Vicki Walker Refers to her second question, that both Teresa and John can answer,

is about the proposal that the Study Group was to look at the sixteen points. Asks 1.) If they have seen this list of sixteen items; 2.) Are they the items that have created controversy in the legislature in the past; and 3.) which ones in particular were the controversial issues.

Teresa Miller Says, “I’m not sure I can say exactly one through sixteen.” Indicates that she, her client (Richard Lane), and Wendy Johnson met and went through each of the sixteen items but she cannot say which ones were problems. There were a lot of things from the trial lawyer perspective that they liked but thinks that her concern is that when they get things that they like, they understand that they are going to have to give things up to get it. That is when it becomes political and “we would rather fight it out in the legislative process to decide what we’re willing to give in order to get certain things.”

327 Sen. Vicki Walker Declares that to be a good answer and asks John Powell if he has an answer.

328 John Powell Thinks most of the sixteen items have been presented in the past in some form or other.

329 Sen. Vicki Walker Retorts, “and you would prefer to put your boxing gloves on and do it in the legislative process – so to speak.”

330 John Powell Acknowledges that there are many of these issues to work on in the interim as a group but the question is in terms of dealing with a forum that is not necessarily present everyday in the legislative process and then, when they get to the legislative process, no matter what they agreed to, there are other interests that will come into these issues. So unless they are going to assemble all of those interests for this effort,



get all of that cleared with all of the testimony on the record, and all of the proposed differences of opinions considered – yes, they would rather do this once rather than twice. Because “it wouldn’t matter what product you produced, it’s going to be just as controversial when it gets to the Legislature as if I wrote it singularly or if Teresa wrote it by herself.” The point is that it will take a lot of time and effort and it will be duplicated at some point.


Comments that Sean Miller has come forward to speak.

341 Sean Miller Introduces himself as representing the Property Casualty Insurance Association of America and refers to the letter from his company in their packet (Exhibit C). Concedes that when they evaluated the issues one through sixteen, they stated which issues they would not like the Work Group to consider because of issues that were dealt with in the Legislature in the past and because they are political and policymaking in nature. It is no coincidence that the ones they wanted off the list are the ones the trial lawyers would want on the list. So, what Teresa told you about the give and take and the problem with this entire Work Group looking at these issues is done in a legislative environment where they can fight out some of these issues. It is a huge precedent for the Law Commission to take on this kind of project. “If you do take up this work group, every interest group who does not get their items through the Legislature is going to be proposing these same work products for your Law Commission to be looking at.” These are very complex issues and I want you to know that how they look at the issues are the opposite of the other groups here today.


Asks if there are further questions for this group.

360 Sen. Kate Brown Addresses her question to John Powell. It looks like there are some issues to be resolved. Wants to know where would an appropriate fit be for all these issues – the House Judiciary Committee or the Senate Business Committee and let them fight it out during the interim.

367 John Powell Highlights that the interims get shorter and shorter the older he gets particularly after an 8-month session. As a result he is not sure where is the best forum for this. One way might be to have Teresa’s client and my client sit down and talk about this informally. Whether you would do this under the auspices of a structured committee or not, he was not sure, but they could come back and report about the results.


Asks if there is anything else.

378 Professor Hans Linde

Points out that he the witness has been referencing to “these issues” without ever telling us precisely what the difficulties are. Wants to know if he is saying that there are none that are ambiguities or misfits in the existing law.

381 John Powell Concedes that he would not say that none are but some have been described as having no policy purpose and simply are misfits. But indeed there would be another side to that story because “there were



trade-offs made in the development of using two formula and, in fact, in one case the record is clear that it dealt with making the product affordable to consumers.”


Asks, “Do you think that some are misfits or ambiguities?”

388 Teresa Miller Declares that she was just talking to her client this morning and one of the issues has been case law and codifying case law. “He was saying even when you are codifying case law you are still at the end of the day, even though the writing is a technical fix – you are still going to be making a policy decision.” At least right now, the trial lawyers are comfortable with case law and don’t feel as strongly to codify.


Interrupts, “What I hear you saying is that to the extent that there are genuine unresolved difficulties in interpreting a statute, you much prefer adjudication to legislation. You don’t want the Legislature to fix known difficulties, you would rather have the courts codify the best they can.” Explains that he has not had much of anything to do with insurance law but he has heard a lot of cases he has sat on under these statutes. If your position is to just “let us fight it out,” then new ambiguities will be created, you are saying that the Commission really serves no useful purpose unless it only fixes things inside the government that are practical little fixes, but anytime it involves anybody’s money then the Commission ought not touch it. “Is that what your position is?”

401 John Powell States that he would say a “No” to the question but, if everyone would refer to the letter (Exhibit C) that was submitted by the insurance division today calling for review of HB 3668 to address the ambiguities in it. It was a bill passed last session and will probably be litigated before the Legislature meets again. So, it doesn’t matter, they could rewrite all of these statutes and there would still be litigation.

TAPE 4, B Chair Lane

Shetterly Suggests taking a break until the jammed tape problem is resolved.

Professor Hans Linde

Reminds everyone that the Oregon Law Commission exists with the idea that it will do some good law reform. If there are ambiguities to be worked out, they lend themselves to alternative solutions. Someone must choose one policy or the other.

Senator Kate Brown Thinks there are a lot of policies issues that need to be discussed. At the Work Group stage every group should be at the table to represent their interests. At the Sub-Work Group stage I don’t think the list of sixteen that was produced represents a consensus but rather a compromise.

Symeon Symeonides

Speaks to the lobbyist noting, if the Oregon Law Commission chooses to do this project, you should not lose anything in the process and may even gain clarity. That is, the Law Commission forum can be utilized but you will still have another avenue to provide recommended legislation and it is not necessarily a duplication of effort.




Rosalie Schele Interrupts to say that there still is a problem with the tape recorder and she needs to call a technician.

1 Dominick Vetri Contends that it isn’t easy when considering the various policies that underlie the laws that the state has adopted and trying to articulate those concerns in presenting the Legislature with well thought out proposals, backed-up by policy analysis that all can see and react to. So, I am not moved by the fact that there may be some larger questions here. I think it is an appropriate forum for the Work Group and then the Law Commission to look at some of those larger questions so they might be able to provide some assistance and so they might be able to get the kind of changes that you have in mind. I know that Mr. DeVore has had long and excellent experience in this area and will bring a lot of competence to the project and looking over the Work Group members that the chairman has appointed – it’s a well balanced group – and they will bring a lot of talent to the task that they have set for themselves. He’s sure that they will welcome any input into the process. It seems that they should start on it and see how it goes.


Asks if any other members wish to speak.

23 Chief Justice Wally Carson

Wants to point out two things – first, he wants to quiet all fears by saying that this is merely a housecleaning review. [Laughter follows.] Some 30 years ago, the predecessor to this group was the Law Improvement Committee with Jim Faulstich as the Director, which did a rewrite of the full insurance code. They, too, thought it would never come together with all the controversial pieces, but it did. Of course, it probably has been amended many times since then. He feels with the representatives they have here they can again move it along even though some parts will stay controversial for a long time. Recognizes as true what Teresa Miller mentioned about getting into the legislative arena and having to compromise. So it is not as hopeless as you believe it to be. If it is the pure political stuff then maybe we follow Wendy and suggest alternatives to the legislature because the policy will ultimately be set by the Legislature but I think we should go forward.


Asks if there are more comments.

61 Vicki Walker Refers to an article, “Law Commission aims to clarify statutes,” from the Statesman Journal in the 2001-2003 Biennial Report of the Oregon Law Commission (page 12) and there are quotes by Senator Kate Brown who says that what the Commission does are not sexy issues – the goal is to make technical changes to statutes and make the process work better. Our Executive Director, David Kenagy, indicated that he hoped the bills do not become lightning rods for competing interests. Asks for clarification of how many bills the Oregon Law Commission had put before the Legislature last session – she thought it was about ten.


Informs her that it was a bigger list than that, it was 19 filed and 18 passed with the Governor’s signature.


76 Sen. Vicki Walker Explains that they weren’t lightning rods, as Wendy Johnson can attest, but some of them got held up in Senate Judiciary because some things got stuck on them because of the relating clauses. Thinks the Commission is entering into an area of limited resources where they ought not go. Indicates that she was reviewing the minutes from the last meeting. Points out that she was talking about exemptions for judgments and those sorts of things when again our Executive Director Dave Kenagy made a good comment about it being an important distinction between changes in language and changes on an exemption amount. This Commission won’t touch that because it is a lightning rod issue. In conclusion, she can’t support this proposal given what she has heard today.


Says that he appreciates the frank discussion and he knows that it is not easy. Offers his ideas by stating that he wants to take issue with Sean Miller’s comments and other things that he has heard today about what is and is not an appropriate Law Commission project. He does not think they are limited or excluded in any way, nor have they been in the projects they have taken on – in addressing substantial issues of policy and some controversy only perhaps in a smaller arena such as Eminent Domain. To him it is not an issue of whether the Law Commission is taking on a policy issue or controversial policy issues but what he does have concern about – based on what he has seen in his four terms of office – is putting the bills in and controlling amendments. That is an issue that was raised today, having a risk after spending an awful lot of time in our Work Groups and dealing with these discreet issues in our own environment. Refers to the analogy of the last meeting – assembling the craft out in that zero gravity vacuum of outer space and this one has a very steep reentry angle; the real prospect of having to keep control of bills that have the Law Commission’s name on them as they make their way through the process is the problem. Indicates that this is his real concern – not just having to put the Work Group together and the product of the Work Group – but what happens during Session with bills like this that are so prone to amendment and to be used for purposes other than what they intended for them. Even with the Eminent Domain, that was difficult to manage and Wendy Johnson had others to deal with. If these situations are multiplied to a magnitude of a substantial number of degrees and then you are looking at this kind of scenario in the Session when they get into insurance related bills unless we’ve been able to draw the consensus as John mentioned but he does not know if the Commission has the resources to put all those people to the table and take all the time, knowing how these things have gone over the past sessions. Declares that these are his concerns and is curious to know if anyone wants to respond to that.

147 Dominick Vetri Conveys that he feels, after looking over the list of sixteen issues, that it demonstrates a number of situations that give rise to inequitable conclusions and results in arbitrariness, etc. Thinks that they should bear in mind that this affects people’s lives. When they leave the statutes as they are, choosing neither to correct them nor to improve them, this affects people. Perhaps injured victims are being affected



to their great disadvantage. There is nothing to say that if they decide to leave this project that the next Legislature is going to come along and take these 16 and solve them in the appropriate sort of way. He would much prefer that Oregon Law Commission start the project and monitor it carefully and maybe they will withdraw some of them because they do involve controversy. He recommends that they go forward.


Asks if the problem of hijacking bills is caused by the relating clause that is put on them.


Contends that, “that certainly opens it up.”


Asks, if every one of the little amendments had a separate bill with its own relating clause, would that avoid it.


Explains that David Heynderickx of the Legislative Counsel Office where the relating clauses are drafted would best answer that question.


Asks if these relating clauses could not be made narrow enough so they do not lend themselves as a vehicle for some other big fight – there would still be trade-offs because that’s how those people play their game, but it is not our game. As far as losing the Commission’s own work because of all this – certainly that is something that can be solved.


Replies that he doesn’t know if it can be solved but it can be anticipated and addressed. Asks for other comments.

179 Senator Kate Brown Thinks it is more of practical politics and when there is a bill like this that is opposed by two major interest groups that are on opposite sides of a lot of issues, she doesn’t know whether it makes it extremely difficult to get it thru the legislative process or if it is easier. Also, because of the amendment issue and narrowing the relating clause, they end up becoming targets as opposed to being ships to be altered a little to avoid sinking. One of the other issues, which may depend upon who is on the Work Group, is the concerns that the trial lawyers and the insurance companies did not have their voices heard by the Study Group. “So, does it help if Sean Miller, John Powell and Teresa Miller are put on the Work Group or does it complicate it because none of you want this to move forward?”

197 John Powell Gives his opinion but expresses that it is difficult to articulate. By limiting the relating clause to uninsured motorists, is like limiting it to an issue like Eminent Domain. There are so many issues in each issue and so many interests represented in the Legislature that he thinks it would be better to have some technicians (i.e. people who directly litigate in this field and claims attorneys who deal with these issues day-in and day-out) rather than people like him – he kind of took it as a threat. [Group laughter] He believes more progress would be made if there were someone on the Work Group who knows the ins-and-outs(rather than a lobbyist), who has studied the legislative history/records, and who had litigated these cases. They would know much more and speed things up but it will not limit the



debate and he doesn’t think it will bring a consensus. 218 Senator Kate Brown Clarifies her previous statement by saying that she did not mean him

personally but someone from his area.

219 John Powell Thanks her and says, “Okay,” that he understands. 220 Max Williams Expresses his interest in this and in the notion so he wants help to

understand. He recognizes that no matter what the Commission does with a proposal for legislation, when it gets to the Legislature, the gloves come off and whatever is going to get done to it – does. But, to the extent that one of the challenges, he recognizes as a former legislator, is that sometimes these issues are complicated and they come at you and there’s a lot of them. Articulates by asking, how is a process which ultimately results in producing a fairly good detail description of the issues, the thought process the Commission went through, the information that it gathered and a recommendation – how is that ultimately harmful to a legislation panel that may be given turnover, addressing an issue like uninsured motorist for the very first time. Even if they ultimately come down the other direction based on the ability of the various interest groups coming to demonstrate why they think the ultimate outcome of where the Commission and Work Group ended up was a wrong way to do it, there was still a learning process that is relatively helpful to the legislators as they are trying to weigh the issues. He wants to know, “Where in this process do you see that being detrimental to the interests of your clients when ultimately they’ll have all the same options, come January, to make all the same kinds of arguments that they are otherwise going to be entitled to make on any discussion about legislation?”

244 John Powell Answers that he can’t fault anyone for studying anything – it’s like when he goes home and his kids want to do this and this and this. “At some point I have to say that this is all Dad can afford in time, energy and money.” Asserts that all they are saying here is that they have the same resource limitations, too, and he has trouble getting his clients to free up somebody’s time to do this kind of work. He will do that and he will yell and lasso and scream until he gets somebody but it is a resource question. States that “our role here today is to simply tell you what you already know and the Commission in general that both in terms of the deliberation of the Commission will draw a lot of people who have not walked through these doors before the Commission yet – physical therapists to chiropractors to lawyers and insurance people – and when you get into these areas where you are affecting the entire medical establishment (HB 3668 again), there is no end. Soon you get to the people who make the scapulas that the doctors use in surgery. From a research question there is a mountain here of effort and if that is no problem to the Commission, they will try to find the resources to give advice as well. But, from what I have read in the proposals and counter-proposals, these issues are not singular and are not necessarily just quirks in the law. There will be a debate, as he mentioned before, and they will get to the limitation that the government is enjoying in terms of a liability. Asks, “Why should it be? Why should a rental car company enjoy a financial benefit



when they put people on the roads? Why are they given the option not to provide certain types of coverage?” Alleges that these issues are more than a click of a button to solve, there will be debates of the insurers and plaintiffs and other interest groups, as well.

278 Teresa Miller Wants to clarify that she does not like the position of telling a group such as the Commission not to study this. The Commission is “free to study this and they will definitely be involved and would like to be involved when you do that because [the issues] are so political I view this as perhaps a duplication because I feel we will be lobbying you and participating in a process that we may end up redoing during session for a lot of the reasons you talked about.” Says, “The amendments and what bills end up [becoming] scare us.” John Powell is very good at what he does and so she has to stay on her toes; those things worry her during session but if the Commission wants to study this they (the trial lawyers she represents) will be there the whole way through.


Calls on the Attorney General for comments.


Thinks that it needs to be born in mind that there is before the Commission the assessments of a Study Group that we formed and composed. They have made judgments on a number of issues that deserve to be examined. We do not know if the Group was unanimous on all issues, only issue #16 does it note that “while not unanimous the majority of the Study Group agreed.” So, we have that and also the starting consideration before us is “are there problems in Oregon law that after an assessment on our behalf has concluded they deserve to be examined” and under our auspices. And with that we have the position of the Department of Consumer and Business Services – the regulatory portion of the government that says these issues deserve examination. It seems that, if the process of examining these issues is conducted as expected, the various concerns that are being heard here will have the opportunity to be heard during the process. It may very well be that by the end of it that some of these issues may come back to us as ones not to pursue and others possibly might merge into a consensus. With great respect for the individuals before us and in light of the assessment of the Study Group, he thinks they ought to proceed and see where that process takes us in terms of ultimate recommendations that come back to us then, by our own decision, what goes forward or not in the Commission’s name.


Asks if there is a motion.


Moves that the Oregon Law Commission approve the formation of an Automobile Insurance Work Group to be chaired by Commissioner Martha Walters and the scope of the project is defined as issues numbered 1-16 as described in the proposal submitted by the Auto Insurance Study Group.


Asks for discussion on the motion.



315 Symeon Symeonides

Offers that he respects immensely the wisdom and judgment those Commissioners who serve in the political arena. So generally, that would make him vote against the motion but, on the other hand, he hates to see the Commission always limited to only correcting the grammar and syntax of existing statutes. “We owe more to the state.” Also, he agrees with what the Attorney General said. Therefore, he will be voting in favor.

321 Sen. Vicki Walker Expresses that she comes from the political side and the political process. There is a lot she supports in the list of 1-16 issues but frankly she thinks the Auto Insurance issue is controversial and has heard the words “limited resources” said many times today. So, she looks at the practical realities as described with the “re-entry issue” and has to say, “No, unfortunately.” But, that is not to say that she will not vigorously support some of these ideas in the legislature process and possibly sponsor some of these ideas. I’m as skilled in the legislative process as the lobbyists so, you know, we can duke it out in the session.” Indicates that she is the newest member in the Commission and maybe not the wisest one to be speaking about resources and time but those are her comments.


Clarifies on the point of resources that what he is hearing people say is that we cannot afford a good system, cannot afford to fix statutes, because it will cost this staff and the interest groups money to participate. States, “I don’t like us to be taking the position that the state cannot fix real issues when they have been identified as they have been in this [list of 16 issues] memorandum.” He doesn’t think the resources argument works and, if people would think it through, it has some very unfortunate implications.


Maintains that on the question of resources it should be said that what resource is being spent is the time of the members on this Group who are willing to spend their time. It would be very expensive if they were billing us but they are not. Also, through the Oregon Law Commission we are getting a lot of resources; of course, the staff will be busy with this new project but, the major resource is the time of the members of this Group.

352 Sandra Hansberger Expresses that she feels strongly both ways and has a question to ask those who have been involved in the legislative process. Wants to know whether or not the studies that Commission does, the work they do and the Reports are helpful in the legislative process. Welcomes comments that anyone has.

360 Max Williams Offers to take a swing at answering her question. Says, “The real answer is that it all depends – helpful to some people if they’ll take the time to read it and really educate themselves and if they’ve got an interest in it.” Explains more by saying that when it comes to a vote on a bill on the floor the odds that someone actually read the Report from front to back are really small. If you are sitting on the committee that is actually dealing with the bill the odds are a lot higher that they will rely to some degree on the information that has been provided. This is an issue that could potentially be a Law Commission project; potentially be something that the interim



Judiciary Committee could have put on it on their list, too. It is complicated enough in the broader scope of the issues that have been raised – broader than picking it up fresh in January as a committee and working through all the complications by the end of the legislative session. It needs an interim approach – a Work Group with a lot of people dedicated to spend time, unpaid, and working out the details and complications to get something done – if one wants to do it in a holistic fashion as opposed to a piecemeal bill and who can line up the votes that it needs. Contends that the practical reality is that, in a good government way, there is a benefit frankly doing the work even if it is an uphill battle from a political standpoint when it gets to the Legislature. “There’s value in a lot of smart people sitting around on both sides of an issue and talking through what would be the problems with making a particular change in this field of the law.” Asserts that what the Commission has to recognize is if they wade into this kind of political issue and want to make the best advice as possible that our percentage of success ratio, 18 out of 19, is going to drop. Or, the product that the Commission puts in is going to come out looking different when it becomes the Legislature’s product and they have control of the bill or a committee’s product when they have control of the bill. If the Commission wants to go here, they have to understand and have to be able to deal with those consequences because there is no way to get a ‘hands-off our bill’ approach. These issues being addressed are different than just modifications of the law on technical kinds of issues.

385 Rosalie Schele Asks for a moment to change tapes since the recording equipment is not working correctly.


Okays her request and suggests a brief break.

TAPE 5, A 1 Chair Lane

Shetterly Indicates that the meeting of the Oregon Law Commission is returning after an interruption. Expresses his appreciation of the discussion on such a tough issue (Auto Insurance Project) that telegraphs the nature of a more political arena than the Commission’s usual academic arena. Recognizes the Attorney General to speak.


Withdraws his motion for purposes of an alternative discussion.


Points out that since substantial interest has been forthcoming from the Commission today and since Martha Walters, the chair of the Auto Insurance Work Group, is not present, he proposes that they not take action to approve the Work Group to go forward with the 1-16 issues but rather, take one modest step – to convene the Work Group beyond the Study Group status and charge the Work Group to further evaluate and winnow these sixteen points before the next Law Commission meeting. Specifically, are there indeed consensus or other issues that arise out of this that may be worth pursuing for legislation and, if there are, we will go with those and, if there are not,



we will receive that report at the May meeting. Again, he used the example of the Eminent Domain Work Group, which had a similar situation; their result was finding the 3 or 4 issues that had the consensus of the Group and they went forward with those. Perhaps some issues out of this list of 16 can be identified as those with a consensus of the Group. Asks for responses from the Commissioners on his idea, which he restates as “to create a Work Group but not for the purpose of developing legislation at this point on any of these [16 issues] but rather for reporting back with a broadened participation of additional interests that are represented here” as trial lawyers, defense counsel, insurance industry and the folks that are identified on page 8 of the Automobile Insurance Work Group Proposal (report dated Feb.27, 2004) in Exhibit C.

59 Sen. Vicki Walker Likes these ideas because it meets the concerns of some of the Commissioners who want this to go forward and who thinks this is a proper role for the Commission yet it meets the needs of those who are concerned about legislative success. States that she can live with this compromise.


Comments that it also meets the need of dealing with all this without the chair, Martha Walters.


Reminds everyone of a prior discussion that if it is called a real Work Group there should be no members in the Group who are getting paid to represent a private interest. That’s legislative work, sitting around the table and having people reach consensus. In Work Groups we shouldn’t be doing that, but he knows that it has not been consistently observed with respect to some things.


Says, “and Eminent Domain, too, for that matter.”


Shows surprise and says, “They were getting paid?”


Corrects that he does not know and that’s not what he meant.


Emphasizes that he did not mean they should not represent different points of view; he only wanted it understood that no paid counsel sits on the Work Group as a member. That is essential, and the Oregon Law Commission staff knows it, because I gave them a copy of the American Law Institute having a big discussion about this. They do not assume that people are engaged in dispassionate policymaking while they represent a client. They leave the client at the door. They may be there because they have a point of view and represent one kind of client, but not if they are getting paid for being there.


Explains that we certainly allow attendance and participation. Beyond that we can still identify those issues on which …


Agrees with that, “Of course, of course.” A Work Group has to be a Commission Work Group and not a collection of lobbyists who knock heads together while they are getting paid to do that.



102 Dominick Vetri Concurs on that judgment and asserts how it gives our Work Group a credibility and integrity in the process they go through. People need to speak their point of view and when they are voting to recommend something to the Commission, it should be their own personal point of view, not the person they represent. It is not that others can’t be heard and participate; it is just that the members of the Work Group who will vote cannot be getting paid for that work.

114 Max Williams Mentions that he has never participated in this discussion because he must have missed the meeting. But, in his Judgments and Garnishments Work Group there were lots of people around the table representing the title insurance companies, the collection people, the bankers, and even state employees all who were getting their salary paid while they participated in the Work Group. “To the extent that we want this [process] to be practical and resolvable, you have to allow for those folks to participate in these discussions.” If they are always sitting on the outside of the circle, they will never have any hope of taking a product forward in the Legislature because, if they are not involved, they will try to take control of it or try to kill it. He doesn’t agree with that level of restriction

132 Senator Kate Brown Asserts that she has been looking over the list of her Juvenile Code Revision Work Group members, about 45 of them, and “everyone there is paid to be there, even I am because I get a per diem.” But I assume what we are talking about are not having the lobbyists on the Work Groups – people who are paid to be there for a specific purpose and these lobbyists in the room today were clear that they were not interested in sitting on the Work Group. They want people there who are involved in the work on a regular basis. “Is that what you’re trying to get at, Professor Linde?”


“We are mixing apples and oranges and all kinds of other fruit together.” The first point is that one cannot treat people who are paid by the government, which is supposed to be a public interest operation paying a salary, the same as people who are charging a fee as a private practitioner from a client for being at a meeting. Secondly, one cannot mix the word, participation, with being a member of the Work Group; he is only taking about someone who was hired and being paid specifically for the time spent at the Work Group where they are to affect the outcome of the Work Group. So they can participate but they cannot vote on the recommendations of the Commission. Obviously people listen to them. He doesn’t think there is a risk because people have listened to them. The Work Group knows what they are doing and will make an effort to accommodate them as best they can, but there will be a point they have to make a choice, or they will have to drop this topic because it is useless. “We cannot have the Law Commission create Work Groups which then come back with recommendations that are nothing more than a roundtable debate among competing self-interested lobbyists who are paid to fight it out or duke it out.”

174 Max Williams Reiterates that his point is based on the last four years of work with the Judgments/Garnishment Work Group. Of the wide array of



people involved, some were being paid by an organization to be in the Work Group – being paid to participate and represent an organization in those discussions. Yet it was a collaborative process, it was run informally and they reached consensus – he doesn’t remember ever having to call for an official vote on issues. Offers that maybe other Work Groups were more formal but ultimately because they had the buy-in of all those different interest groups, they were able to reach consensus. On one hand there might be someone from the bankers’ association sitting at the table and on the other hand someone there who was paid to be there representing folks who are indigent, you know, from the debtors side of the equation or the Lewis and Clark Law Clinic, who represent folks like that – it was a mixed bag and it worked.


Comments, concerning the appointment of the Work Group, they will appoint people with different viewpoints. Restates that the charge that he proposed/suggested was to identify those issues around which there is a consensus; not that this is a good idea or a bad idea but it is how they are to report back to the Commission. Says, “All we are asking this [Auto Insurance] Work Group to do is to identify the consensus issues – not even to solve them just to identify them.”

211 Dominick Vetri Concedes that that is a satisfactory solution for today. Encourages the Commissioners to set aside some time at a future meeting to discuss this ‘larger question’ after research has been done to see how other Law Commissions around the country handle this issue and giving the Executive Director time to think through the issue. Recalls that this was discussed at a prior meeting without an easy resolution so it should be put on the agenda.


Addresses Commissioner Williams to point out that he did miss the meeting when they had this discussion and the Executive Director did write a memorandum about all this, and they need to remember it, but notes there was no formal action taken. Remembers that voting was discussed and, it is true, that people said that they usually do not need to vote. But, when there is a vote, it is pretty late in the game to say let’s take a vote and they cannot vote. When it comes to voting on recommendations to the Commission, only the people who are Work Group members get to vote. “It may not be the ideal solution, but at least it’s maintained some principle that the people who are reporting to us are not counting noses and saying who got the most votes out of the people who are lobbyist or lawyers who are paid to be there.” States that his experience comes from the American Law Institute, and they have not only advisers to the Law Institute work groups and reporters but also, another session on every project that is called a Members Consultative Group and everyone is told that if you are paid to be there, you do not get to participate in any votes that are taken.


Doesn’t necessarily want to re-debate but, the point is that he will appoint the Work Group and it will be a representative Work Group among the members.


Declares that he should have commented on what Chair Lane Shetterly had said, and he knows that this particular Work Group is



only recommending whether it is possible to reach a consensus or not, but he is concerned about the principle – who is listed as an official member of the Work Group.


Affirms that there is a memorandum and the Work Group will be appointed according to criteria identified in the memorandum. Points out that there are strong viewpoints on this [Auto Insurance] and the Work Group will have to be represented by participants with those strong viewpoints. “The issue here is to identify those points, that have been raised by the good work of the Study Group, around which there may be sufficient consensus to justify the further investment of resources at the Commission level and at the legislature to proceed with legislation.” If there is no consensus they will expect to hear that reported at the May meeting of the Oregon Law Commission. In the interest to the Commission to move forward and without the Chair Martha Walters being here, he feels it is a good way to move this Auto Insurance Work Group forward. Asks Mr. Littlehales, who wants to put something on the record, to come forward before he proceeds.

268 Lewis Littlehales Introduces himself as a Senior Policy Analyst with the Department of Consumer and Business Services. Wants to clarify that the point of the letter from Mr. Joel Ario (Exhibit C) is to offer their support and willingness to assist the Commission with whatever choices they make and want to help the Commission move forward with their examination.


Proclaims, “that’s the nicest thing I have heard all day.” [Happy comments and laughter follow.] Moves that the Commission approve the formation of the Auto Insurance Work Group with members to be appointed by the chair in consultation with the Executive Director and to be chaired by Commissioner Martha Walters.

281 David Kenagy (Continues the motion) and the scope of the project is defined as a Work Group to report back to the Law Commission on May 21, 2004 with a statement as to those of the sixteen stated projects as to which a consensus exists.


“That will stand as …”


Asks, “Which is your motion?”


Says, “He said, ‘exists’ [and] I’ll say, ‘consensus can be achieved.” States that a motion that the Commission approve the formation of an Auto Insurance Work Group with members be appointed by the chair Commissioner Martha Walters in consultation with the Executive Director. The scope of the project is defined as a Work Group to report back to the Law Commission on May 21, 2004 with a statement naming in which of the sixteen stated projects a consensus can be



achieved. Asks if there is any further discussion or any objections, hearing none, the motion passes. Vote 10-0. So ordered. Continues on the agenda to the Eminent Domain Work Group update.

295 Wendy Johnson Presents an update on behalf of Greg Mowe, the Eminent Domain chair, who is out of the country. Explains that the Group is focused on two issues and they my take on more at a later date if time allows. The two issues are 1. Appraisal Exchange & Discovery Issues 2. Amending Down and Entitlement to Attorney Fees This issue has come before the legislature before but the Work Group wants to look at it again. She recently prepared a Constitutional Requirements Memo to the Work Group; it’s odd that there is not a lot of consensus on what the state of the law is in Oregon on due process rights in condemnation. The Work Group is doing a lot of research into this before starting on legislation.


Asks if there are any questions on Wendy Johnson’s update of Eminent Domain and, hearing none, continues on to Government Ethics to be presented by Jerry Watson.

309 David Kenagy

Introduces formally Professor Jerry Watson of the Clinical Law Program at Willamette University as he has agreed to serve as staff attorney of the Oregon Law Commission through the offices of the Dean of the College of Law, Symeon Symeonides. As requested at the last Commission meeting in December 2003, Mr. Watson has prepared a preliminary report and recommendations (in response to the Governor’s request) as can seen in your materials (Exhibit D). He has worked diligently in the course of time since the December meeting and the staff will continue to build an agenda of research to be done until it can be formally presented in October of this year with the idea that we are advancing to the 2007 Session.

324 Professor Jerry Watson

Thanks the Commissioners, wants to summarize briefly and then answer any questions. The Commission directed that we look at the expected scope of the project, its duration, the project’s process, including a Work Group membership recommendation list and that we also describe nationally available substantive law and best practices resources. The first three of those items are contained in the recommendations at the back of the Code of Ethics Project: Preliminary Staff Report (Exhibit D). Focuses his remarks on what he had labeled as analysis (page 3) that is broken into three sections: 1. Consideration of Oregon’s statutory background (page 3) - Oregon was among the early states to get involved and it was an outgrowth of the Watergate era. Shortly after the law was passed in the early 1970s, it has been a source of continuing minor controversy, session after session. The point is not that the specific issues that were raised in the last legislative session are the only issues but they are indicative of the range of concerns about the need for clarification. Referring to



Chief Justice Wally Carson’s comment about housekeeping functions – we are at not the level of mere housekeeping functions but instead they have the potential to have significant policy implications and to generate some degree of controversy. 2. Description of Nationally Available Substantive Law and “Best Practices” Resources (page 7) – just a flavor of what is out there is in the report. He considered that the study of ethics is like a rose that opens in the morning and as it unfolds, one begins to see the complexity, all the facets, and how complicated the issue is. So, as we have asked for extra time to study all this, it was done – not to delay – but for legitimate background information that was needed to put this together. 3. Preliminary Review and comparative analysis of Government Ethic Laws in the 50 states (page 10) – this part has ethics in general, and then it goes into governmental ethics. It is helpful when scholars in the field put some framework or structure to the history. There is a great deal of diversity in the states; he gives some flavor of that on pages 11-12. The jurisdictions of the committees differ significantly and the utilization of the ethics committees from state to state differs as well.

TAPE 5, B 53 Professor Jerry

Watson The scope of activities among the governmental agencies is so diverse and perspectives on ethics issues are widespread. There is a need to deal with them and the expressed issues that were raised in the last legislative session are indicative of the range of concerns so there is the need for further clarification. The recommendation is to prepare draft legislation for the 2007 Legislative Session. Ultimately they will prepare draft legislation and a final report. From now until October they will look specifically at the issues on page 1 of the report (Exhibit D), such as honorariums, financial gain, etc. and flush out how they have been handled. The second stage would be for the Commission to appoint a Work Group to carry forward, assess the material, revise and hold meetings.


Calls on Max Williams.

101 Max Williams Articulates his concerns about an issue that came up repeatedly during the last session – the impact of the volunteers, the people who volunteer their services to the state. Wants to get on the record that this project would look at this problem. Gives a “classic example” of the volunteer firefighters that could not take a spouse or family member to their annual dinner but they could take a girlfriend so the firefighters traded wives to get their spouse to the dinner. This is just one situation to demonstrate the problems that the current law causes.

121 Jerry Watson Thinks they are looking at that, though the particular detail of that example he was not aware of. Refers to page 14 on the last sentence in paragraph one and reads, “… the appropriate scope of coverage of state ethics laws (in terms if the level(s) of government affected)” and it may not be on the same level on every issue but there is a recognition there about whether uniform laws that apply across the



board and whether it should be different for volunteers or local government, etc. That is something to be addressed.


Thanks him for an excellent report. Refers to the prior conversation they had and this is an example of a controversial issue for a Work Group but it shows that it depends on what you pick to cover.


Inquires of Commissioner Williams about the firefighter example, “Do the existing laws govern people who have no decision responsibilities whatever?”

144 Max Williams Believes that they do to the extent that that person is classified as an official…


States, that was his point, that “anybody who has absolutely no decision responsibility either for making policy or for making ad hoc decisions on private disputes, is an official?”

150 Max Williams Maintains, “Yes, I believe that is how that statute operates.” 151 Professor Hans

Linde “Thank you.”

152 Sen. Vicki Walker Compliments Professor Watson on the Ethics Report. She could not sleep, she got up to do work then went to read the report and it was an awesome report. She was impressed; it was fascinating report however it kept me awake because it really is a good report. She wants to a part of the Work Group.


Thanks Jerry Watson. In the interest of time, since they are beyond the scheduled end-time for the meeting, he refers to the written motion and asks everyone to read it. Moves that the Oregon Law Commission receive the Preliminary Staff Report prepared by Gerald Watson and approve the recommendations in the report. The staff recommendations are as follows (see pp. 13-14 of report): 1.a. Staff will conduct additional comparative analysis of substantive issues concerning government ethics and “best practices,” including some evaluation of the Model Code developed by COGEL (Council on Governmental Ethics Laws). b. Staff will prepare a detailed report of its findings to the Commission for its meeting on October 22, 2004. (The report shall specifically include, but shall not be limited to, financial gain, honoraria, subsequent employment, reporting economic interest, actual and potential conflicts, structure and responsibilities of an ethics governing body, the appropriate scope of coverage of state ethics laws (in terms of the level(s) of government affected), and regulation of lobbying.) 2. The staff shall provide updates to the Commission on the status of it activities concerning this matter at its May and August 2004 meetings. 3. Appointment of a Work Group or Study Group is



deferred to October 22, 2004. Asks if there is any discussion.

174 Sen. Vicki Walker States that she totally agrees that this is a controversial issue and, if possible, she would like it to be introduced for the 2005 Legislative Session because she has strong feelings on this issue. Emphasizes that knowing that it is extremely controversial she still supports it.


Asks if there is any objection to the motion and hearing none, the motion carries. Vote 10-0. So ordered. Continues on to the Judgments Work Group update, which has something here that is new and different.

188 Wendy Johnson Reports that the Judgments Work Group does continue this session, focusing on the execution and judicial sales provisions. Points out that Dave Heynderickx, who is here today, is leading the charge and wants to bring to their attention a memo she wrote this morning (Exhibit E). Last session the Judgments Work Group recommended HB 2646 under Rep. Max William’s leadership for the last 4 years and it was the largest bill of the session. It is a complicated bill and she understands from Appellate Counsel that the Court of Appeals Motions Department has some questions regarding the interpretation of the bill. The Appellate Counsel is seeking a list of potential parties to solicit an amicus brief (i.e., briefing material or a memorandum on the case that is pending). This is a new issue for the Commission to take on (i.e. what role should the Commission take with one of its bills after the fact – when the bill has passed and been signed into law).


Restates that she has identified an invitation from the court and a possible response is to either decline …


Thinks she meant something else.

210 Wendy Johnson Clarifies that the court has not really given an invitation; it generally tries to find out who would be interested before it issues the order to invite parties. So, at the moment we have heard of the need from Appellate Legal Counsel…


States the name, “Jim Nass.”

213 Wendy Johnson Confirms, “Yes, Jim Nass.” Continues: “of the need to solicit an amicus participation.”


Requests for Wendy to walk through the options.

216 Chief Justice Wally Carson

Informs that he will abstain.


Replies that the request of the Chief Justice will be noted.

219 Wendy Johnson Explains that the timing was good because the Commission will not 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.


be meeting again until May 2004 and by then the issues might be resolved or close to resolution. The Commission can do one of the following: 1. decline to participate at all, 2. accept the invitation and work on a memorandum or 3. work with the Work Group members and see if there is an interested party to participate along the way and whom we think would really assist the court. She talked with a number of folks and there seems to be some interest from at least a couple of people to perhaps handle this briefing material but “it begs the question of whether the Commission should actually play any role in this issue.”


Requests some discussion on this since it’s the first time the Commission has been asked or given an invitation to defend or speak for a bill of the Commission that was just passed.


Wants to share his own understanding of how the relationship between the courts and lawyers might work especially since the Chief Justice has made a recusal. Offers that he (Chief Justice Wally Carson) can kick him under the table if he doesn’t agree. Thinks that it makes a difference if somebody is supposed to come forward and has been asked to be an amicus. Mr. Nass is not doing that and can’t. If the court wants to ask someone to write an amicus plea, they have done that before and they can do that. It should be a named individual and should not come onto the Law Commission’s agenda to discuss what the plea does or doesn’t say; we are not a corporate body and probably could not sue in the name of the Commission, however, he supposes, “we could respond under the name of the Commission.” The other alternative that he sees as the kind of thing the Department of Justice could handle the amicus plea because that is their normal modus operandi but he doesn’t know what the Attorney General would think about that. He thinks the staff of the Oregon Law Commission could do it – like the Executive Director. Or, ask the Attorney General if he thinks it is an appropriate thing for them to do. Then we would know who it is and it would only be some lawyer’s judgment as to what we think the answer is rather than putting it up for a vote because he doesn’t think that is a good idea.


Informs the Commission that the idea was brought to him by Phil Schradle, they had some initial discussion and he would be prepared to approve it.


Asks, “As the DOJ?”


Responds, “Yes.”


Thinks it is a very bad idea for the Commission to appear in any litigation even if it is a very formal invitation from the court. It is a very surprising invitation and in a state where we should not even look at legislative history… [Talking and laughter interrupts his



comments.] 272 Max Williams Jests, “We fixed that. The Chief Justice is going to do it for us.” 274 Symeon

Symeonides Continues with his discussion by saying that he has information about another state and problems existed even there in reference to appearing in a court, telling them how to interpret a law that they drafted. He is sure the courts can address confidently. Our Commission is a hybrid; it cuts across the branches of government and that is one reason to be careful. There are other possible problems in the future and he advises against the Executive Director or Deputy Director from appearing in any capacity. Thinks the only person who might appear and assist the court is the Reporter of a Work Group and that would be okay only if that person were there at the court’s invitation. He thinks we would be treading in dangerous waters, he would hate to see the Commission establish this precedence, and his advice is to stay away from this.

292 Dominick Vetri Concurs with Dean Symeon Symeonides. He doesn’t think the Commission is in a position to say what the bill means, the courts have to apply their rules of statutory interpretation. This would put us in an awkward position and what it does demonstrate is the importance of the documentation that is provided with each bill. It is very important that we have thorough commentary to become a part of the legislative history to advise the courts.


Emphasizes, “and we do.”

302 Sen. Vicki Walker Asks, “Isn’t there an offer on the table for the DOJ to take it?” 303 Chair Lane

Shetterly Clarifies that this is not an invitation that we would either seek or accept. Also, since the invitation has been sent to the Department of Justice, it is a happy coincidence that the Attorney General is a member of the Commission but it sounds from the discussion that this is satisfactory. Asks if he is right. [Someone answers an affirmation.]


Jests, “May we send our bill to the Commission?”

311 Max Williams Informs the Commissioners that this will be his last meeting of the Law Commission because the Governor has appointed him Director of the Department of Corrections and although he has enjoyed being a member, his real pleasure was to work with all of them and they will always have with him someone who supports the importance of the work of the Oregon Law Commission. He will watch with interest how all this progresses because the Judgments Work Group stands as the biggest thing he ever did while on the Commission. Thanks everyone for the pleasure to serve with the Commissioners. [Applause]


Informs Max that it takes a vote of the Commissioners to accept his resignation [laughter] and there might be some descent. [More laughter] Stresses that Max did agree to come back to the May 2004 meeting to receive proper recognition of his services so he will reserve his speech until that time.



327 Max Williams Acknowledges that to the extent that he is invited he will be glad to return for another meeting of the Oregon Law Commission.


Repeats that he will save the speech until the May 21, 2004 meeting but wants to say that he accepts the resignation with deep regret. Goes to the last item on the agenda, Juvenile Code Revision Work Group update.

334 Senator Kate Brown Explains that she will be brief in her update since the hour is late. 1. Juvenile Expunction Statutes Sub-Work Group is thinking about restructuring but are waiting to see what the interim judiciary committee is doing. 2. Delinquency Procedure Statutes Sub-Work Group is focusing on fixing specific issues rather than doing a rewrite of the delinquency code and they invite Professor Linde to come have a conversation with them yet again. 3. Juvenile Code Revision PSRB members are working on the fiscal impact information; they are going to try the SB 267 approach again this time because it did not make it through last time because of the fiscal impact. Please if anyone does not like the bill let us know now. 4. Juvenile Code Split Cleanup is from the 1993 statutory changes where the juvenile area was separated into three different codes – A, B and C. Timothy Travis has been working on this. 5. Putative Father is a new Sub-Work Group with KayT Garrett doing an admiral job leading the group; however she is leaving on maternity leave soon. 6. Juvenile Unable to Aid and Assist-listed as Juvenile Fitness to Proceed is a potential group in the initial stages. 7. The Indian Child Welfare Act is still being examined. LeaAnn Easton who works with NAPLES is meeting with the tribes to see where they stand on April 22. We have an extensive list of the Sub-Work Groups (she showed the list of members on the Sub-Work Groups) if anyone would like to see it.


Asks if there are any questions for the Senator. [Roger Weidner from audience addresses the chair and comes forward.]

365 Roger Weidner Explains that he has prepared a report on the court system. He has copies for all the Commissioners.


Accepts the reports. Closes with a reminder of the next Oregon Law Commission meeting on Friday, May 21, 2004 from 2:00 to 5:00p.m. Explains that the meeting was just like Mom said – not everything is easy. Thanks everyone for their input on a couple of tough issues today. Sends a regretful but another fond farewell to Max Williams.

377 Max Williams Jests that he hopes that he will not spend any professional time with them in the future (at the Department of Corrections).

378 Chair Lane Relates about the zoning problem that Max has with the prison down



Shetterly there. [Laughter] Adjourns at 4:27 p.m.

Submitted By, Reviewed By, Rosalie M. Schele, David R. Kenagy, Administrative Assistant Executive Director EXHIBIT SUMMARY A – Executive Director’s Project List for 2005, 4 pages. B – Juvenile: Proposal for Sub-Work Group on Guardians ad Litem for Parents, 2 pages;

State ex rel Juvenile Dept. of Multnomah Co. v. Cooper, 8 pages; and Formal Opinion No. 2000-159, 5 pages.

C – Auto Ins: Memo-Auto Insurance project recommendation, 1 page; Automobile Insurance Study Group Report dated Dec. 11, 2003, 1 page; Automobile Insurance Work Group Proposal dated Feb. 27, 2004, 8 pages; Letter from Property Casualty Insurers Association of America dated Feb. 5, 2004, 2 pages; Luvass Cobb Memo from Joel DeVore, dated Feb. 27, 2004, 3 pages; and Letter from Oregon Dept. of Consumer and Business Services (with attachment), written by Joel Ario, dated Feb. 25, 2004, 3 pages.

D – Code of Ethics Project Report by Gerald G. Watson, Ph.D., J.D., 33 pages. E – Memo from Wendy Johnson dated Feb. 27, 2004, 1 page.


OREGON LAW COMMISSION · 2020-05-08 · OREGON LAW COMMISSION Page 4 Commission and Joel DeVore’s...

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Transcript of OREGON LAW COMMISSION · 2020-05-08 · OREGON LAW COMMISSION Page 4 Commission and Joel DeVore’s...