The USA Patriot Act, Terrorism, and Oregon Legislation

OREGON CIVIL RIGHTS NEWSLETTER

Published by the Oregon State Bar Civil Rights Section March 2003

The USA Patriot Act, Terrorism, and Oregon Legislation

s reported in the December crime forensic laboratories,6 and it 2002 issue of the Oregon authorizes the Secret Service to estab- Civil Rights Newsletter, the John Clinton Geil lish a national network of electronic- A 7 Oregon legislature is considering a crime task forces. The act allows na- package of bills that are in response tionwide terrorism search warrants, to the threat of terrorism in Oregon. eign intelligence purposes. It re- which may be executed in this coun- These bills arose out of work groups inforces federal anti–money laun- try and possibly overseas.8 It allows headed by Senator John Minnis and dering laws and regulations in an senior Justice Department officials to Representative Max Williams, co- effort to deny terrorists the re- seek ex parte court orders for obtain- sources necessary for future at- chairs of the legislature’s Joint Interim ing educational records relevant to 1 tacks. It tightens our immigration 9 Committee on the Judiciary. This ar- laws to close our borders to for- crimes of terrorism. ticle summarizes the status of these eign terrorists and to expel those State and local appropriations legislative proposals. among us. Finally, it creates a few Some of the appropriations are tar- new federal crimes, such as the The USA Patriot Act geted to provide grants and other fi- one outlawing terrorists’ attacks nancing to assist state and local gov- brief review of the federal legis- on mass transit; increases penal- ernments. These include appropria- lation known as the USA Patriot ties for many others; and institutes A tions for wide-ranging antiterrorism Act will put the proposed Oregon leg- several procedural changes, such purposes such as islation in context. On October 24, as a longer statute of limitations 4 ♦ 2001, both the U.S. House of Repre- for crimes of terrorism. state and local terrorism prevention and antiterrorism training grants for sentatives and the U. S. Senate passed Many of the provisions of the USA first responders10 2 Patriot Act, having to do with wiretap- H.R. 3162 in response to the Septem- ♦ grants to state and local governments11 ping and foreign intelligence amend- ber 11, 2001, terrorists’ attacks. The to enhance their capacity to respond ments, sunset on December 31, 2005. president signed it on October 26, to terrorist attacks12 2001. Known as the USA Patriot Act, The 131-page act is complex. It cov- ♦ grants to state and local governments its full title is the “Uniting and ers several areas, including the follow- for integrated information and identi- Strengthening America by Providing ing: criminal investigations; tracking fication systems13 Appropriate Tools Required to Inter- and gathering communications (in- ♦ supplemental grants to state and local cept and Obstruct Terrorism (USA Pa- cluding pen registers and trap-and- governments and nongovernmental triot Act).” trace devices, email, electronic sur- organizations that provide assistance The USA Patriot Act, according to a veillance, and criminal investigators’ for crime victims of terrorism and mass access to foreign intelligence informa- violence14 Congressional Research Service Re- —————————— CONTINUED ON PAGE 4 port, arose out of a consultation draft tion); foreign intelligence investiga- circulated by the federal Department tions; money laundering (regulation, of Justice, with substantial modifica- international cooperation, crimes, and ✦ In This Issue tions and additions by Congress.3 forfeiture); alien terrorists and victims Terrorism and Oregon ...... 1 According to the summary section (border protection, detention, and re- in the front of the CRS Report: moval); the creation of new crimes and Section Seeks Ideas for CLE...... 2 penalties; and related appropriations. The Act grants federal officials Recent Decisions ...... 2 greater powers to trace and inter- It also allows the U. S. attorney gen- cept terrorists’ communications eral to provide rewards to combat ter- Supreme Court Update ...... 3 both for law enforcement and for- rorism5 and to set up regional cyber- OREGON CIVIL RIGHTS NEWSLETTER

Recent Decisions OREGON CIVIL RIGHTS NEWSLETTER Ninth Circuit Oregon State Court of Appeals Richard F. Liebman Courts Brenda Baumgart Coszalter v. City Barran Liebman, LLP Potter v. Schlesser E DITORIAL BO ARD of Salem, 2003 Company, Inc., MARC ABRAMS WL 350313 (9th 2003 WL 367864 CLARENCE M. BELNAVIS ANNE E. DENECKE Cir Feb. 18, 2003) (Or Feb. 21, 2003) KYLE B. DUKELOW The Ninth Circuit held that a public The plaintiff, an attorney who had DOUG S. GARD instituted an action on his client’s be- DAN GRINFAS employer’s retaliatory acts against an CORBETT GORDON employee for engaging in protected half, sought to enforce his attorney lien JENIFER JOHNSTON for fees after his client and his client’s RICHARD LIEBMAN speech violate the First Amendment if HEIDI D. ROBINSON the acts are reasonably likely to deter employer privately settled their dispute KATHRYN A. SHORT the employee from engaging in con- without the plaintiff’s knowledge. The stitutionally protected speech. The Oregon Supreme Court held that ORS court also clarified the meaning of 87.445 provides “notice to the world” E DITOR “adverse employment action,” hold- that an attorney’s lien for fees arises ELISE GAUTIER ing that the retaliation need not be when an action is commenced. Ap- severe or of a certain kind (i.e., the plicable statutes establish that an removal of a benefit or imposition of attorney’s lien survives the parties’ S ECTION OFFICERS settlement, and both the defendant a burden) to qualify as an adverse CARL KISS, CHAIR employment action. and the plaintiff’s client are legally ob- JOHN CLINTON GEIL, CHAIR-ELECT ligated to satisfy the lien. EDWARD JOHNSON, SECRETARY EEOC v. Luce, Forward, Hamilton MICHELLE HOLMAN KERIN, TREASURER & Scripps, 2003 WL 282178 Wash. County Police Officers’ DAVID A. LANDRUM, PAST CHAIR (9th Cir Feb. 7, 2003) Ass’n v. Wash. County, 2003 WL The Ninth Circuit has issued an or- 367876 (Or Feb. 21, 2003) der that this case be reheard by the en The Oregon Supreme Court held E XECUTIVE COMMITTEE banc court. Last fall, a three-judge that reinstatement of a deputy sheriff BARBARA J. DIAMOND KYLE B. DUKELOW Ninth Circuit panel determined that who used marijuana off duty did not RICHARD F. LIEBMAN mandatory arbitration agreements are violate public policy. DAVID D. PARK TRACY POOL REEVE enforceable and employers can re- Dunwoody v. Handskill Corp., 185 DENNIS STEINMAN quire their employees to agree to ar- DANA L. SULLIVAN Or App 605, 60 P3d 1135 (2003) MARGARET J. WILSON bitrate employment-related claims, in- The Oregon Court of Appeals, re- cluding Title VII claims, as a condition emphasizing the broad scope of the of employment. EEOC v. Luce, For- wrongful discharge tort, held that the OSB LIAISON ward, 303 F3d 994 (9th Cir 2002). tort is available to all employees, in- MARY OBERST Pending en banc review, that decision cluding employees covered by an em- may not be cited as precedent. The ployment contract or a collective bar- Ninth Circuit has effectively put a hold gaining agreement. ✦ on the enforceability of mandatory ar- Rick Liebman, a partner at Barran The Oregon Civil Rights Newsletter bitration agreements for Title VII and Liebman LLP, has been representing em- is published by other employment-related claims. ployers for 31 years in labor and employ- the Civil Rights Section ment law. Brenda Baumgart is an asso- of the Oregon State Bar Gradilla v. Ruskin Manufacturing, P. O. Box 1689 2003 WL 329016 ciate at Barran Liebman LLP. Lake Oswego, Oregon 97035. (9th Cir Feb. 14, 2003) Interpreting the California Family The purpose of this publication is to Section Seeks Ideas provide information on current Rights Act (CFRA) and applying fed- developments in civil rights and eral Family and Medical Leave Act What topics would you like to constitutional law. Readers are advised case law, the Ninth Circuit held that see addressed at the next Civil to verify sources and authorities. an employee who left work to travel Rights Section CLE seminar? with and care for his family member Please send your suggested with a serious health condition was not topics to Dennis Steinman at Recycled/Recyclable ✦ entitled to CFRA leave when the travel [email protected]. was not related to medical treatment.

PAGE 2 MARCH 2003 Supreme Court Update

Cases Decided held that Title VII imposes no special Fisher & Phillips LLP or heightened evidentiary burden on Eldred v. Ashcroft, a plaintiff in a mixed-motive case. No. 01-618 (Jan. 15, 2003) Busse & Hunt The United States Supreme Court Nike, Inc. v. Kasky, upheld by a 7–2 vote the Copyright No. 02-575 (Jan. 10, 2003) In a case arising from the Supreme Term Extension Act of 1998, which ex- protests outside abortion clinics. The Court of California, the Court will de- tended the life of most existing and Court found that even when the acts cide whether Nike’s statements refut- future copyrights—including early of interference and disruption shut ing claims concerning its labor poli- Mickey Mouse cartoons—from life- down clinics, the acts did not consti- cies, practices, and conditions with time plus 50 years to lifetime plus 70 tute extortion because the protestors respect to its overseas workers are years. Ruling in favor of artists, writ- did not “obtain” any of the clinics’ “commercial speech” subject to ers, and entertainers, the Court held property. that Congress has the power to extend California’s strict truth-in-advertising U.S. v. Jimenez Recio, the length of copyrights as long as it laws, or public statements protected No. 01-1184 (Jan. 21, 2003) specifies a period of time. by the First Amendment. The case has The Supreme Court ruled that de- widespread implications for corporate Meyer v. Holley, fendants could be charged with crimi- speech. Harvard Law Professor No. 01-1120 (Jan. 22, 2003) nal conspiracy even when government Laurence Tribe represents Nike before The Court voted unanimously to infiltration has made it impossible for the Supreme Court. vacate a Ninth Circuit decision, hold- the conspiracy to come to fruition, Raytheon v. Hernandez, ing that in claims based on the actions noting that the agreement to commit No. 02-749 (Feb. 24, 2003) of company employees, the Fair Hous- an unlawful act is “a distinct evil.” The Supreme Court will review a ing Act imposes liability on corpora- With the assent of all nine justices, the decision by the Ninth Circuit that held tions under traditional agency prin- Court overruled a Ninth Circuit deci- that a company’s policy against rehir- ciples, but not on individual officers sion that had stood alone among fed- ing employees who left for violating and owners. eral circuit courts. personal conduct rules violated the Miller-El v. Cockrell, Certiorari Granted Americans with Disabilities Act, as No. 01-7662 (Feb. 25, 2003) applied to rehabilitated employees The Supreme Court reversed the Breuer v. Jim’s Concrete of with a drug addiction disability whose Fifth Circuit, holding that to obtain a Brevard, No. 02-337 (Jan. 10, 2003) only work-related offense was testing certificate of appealability, which is In a case originating in the Eleventh positive for drug use. required before a federal court may Circuit, the Supreme Court will decide consider granting a writ of habeas whether a Fair Labor Standards Act Virginia v. Hicks, corpus, a petitioner need only dem- (FLSA) claim can be removed to fed- No. 02-371 (Jan. 24, 2003) onstrate that reasonable judges would eral district court. The FLSA states ex- The Supreme Court will decide find the district court’s assessment of pressly that actions “may be main- whether an antidrug policy banning the constitutional claims debatable. tained” in state court, and the Court unauthorized visitors from the streets Prosecutors had used preemptory will determine whether this language and sidewalks of Richmond’s public challenges to exclude ten of the eleven precludes removal. Oral argument will housing developments violates the African-Americans eligible for the jury. take place on April 2. U.S. Constitution. The jury that was empaneled con- Desert Palace, Inc. v. Costa, Certiorari Denied victed the defendant of capital mur- No. 02-679 (Jan. 10, 2003) Hain v. Mullin, der, and the trial court sentenced him The Supreme Court will examine No. 02-6438 (Jan. 27, 2003) to death. what evidence is necessary for the jury The Supreme Court declined to re- Scheidler v. National to receive a Price Waterhouse “mixed- view a challenge to capital punish- Organization for Women, Inc., motive” instruction rather than a ment for juvenile offenders, continu- No. 01-1119 (Feb. 26, 2003) McDonnell Douglas “pretext” instruc- ing the trend most recently noted In reversing the Seventh Circuit, the tion in a Title VII case. Although a when the Court rejected a similar case, Supreme Court held that antiabortion panel of Ninth Circuit judges ruled In re Stanford, reported in our Dec. activists did not violate the Hobbs Act that the plaintiff failed to provide suf- 2002 Supreme Court Update. or the Racketeer Influenced and Cor- ficient evidence to justify a mixed- rupt Organizations Act (RICO) in their motive instruction, an en banc court —————————— CONTINUED ON PAGE 8

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TERRORISM AND OREGON LEGISLATION CONTINUED FROM PAGE 1

The Attorney General’s during emergencies. The Western Oregon law prohibits surreptitious Analysis of Oregon Law Governors’ Association and 43 other searches)29 states had already endorsed EMAC. ♦ Section 806 (cybersecurity provi- fter the September 11 terrorist sions—U.S. attorney general to estab- attacks, then-Oregon Governor This legislation was passed by the A Oregon legislature in special session, lish regional computer forensic labs; John Kitzhaber asked Oregon Attorney 2002 SB 921 created Oregon Legisla- and on May 1, 2002, Oregon became General Hardy Myers “to conduct an tive Computer Crimes Task Force)30 the 46th state to join EMAC.18 analysis of Oregon law to determine ♦ Section 1005 (federal grants to states what changes might be considered in There were 68 second-priority items to respond to and prevent terrorism; 19 light of those attacks.”15 The analysis recommended for interim study. state and local capacity to obtain evi- included a review of existing Oregon There were 138 third-priority items, for dence of terrorism from computers)31 20 ♦ laws, laws passed by other state legis- which action was not recommended. Section 201 (adds crimes, including latures, and the October 31, 2001, Patriot Act Sections new crime of terrorism, to the list of federal offenses for which federal of- Joint Federal/State Assessment of Recommended for Interim Study ficers may seek an order allowing in- Oregon’s Terrorism Preparedness. Of the 68 second-priority items— terception)32 Attorney General Myers responded legislative concepts recommended for ♦ Section 202 (relating to voice wiretaps to Governor Kitzhaber’s request with interim study by the Oregon legisla- in computer-hacking investigations)33 a detailed 47-page list that briefly ana- ture—29 were related to specific sec- ♦ Section 203(b) (examine Oregon law lyzed 207 separate items (each of tions of the USA Patriot Act (USAPA). restrictions on sharing fruits of wire- which was given a DOJ reference These sections and the topics ad- taps with USAPA persons who can number) and ranked the recommen- dressed included the following: share wiretap information)34 ♦ dations according to three levels of ♦ Section 507 (ex parte orders to obtain Section 203(d) (examine absence of priority: (1) proposals for immediate educational records related to inves- specific comprehensive Oregon stat- consideration by the legislature at a tigations of grave felonies or domestic ute allowing law enforcement to share 35 special session, (2) proposed statutory or international terrorism)21 information with federal officials) ♦ Section 209 (regarding USAPA lower changes recommended for further in- ♦ Section 318 (review of state-law defi- nitions of the term “financial institu- standard for ordinary search warrants terim study and development, and (3) for obtaining voice mail stored with matters not requiring immediate action” in regard to interdiction of funds used by terrorists)22 third party, as opposed to stringent tion or interim study.16 The legislative ♦ Section 351 (reporting to law enforce- wiretap orders for intercepting live concepts recommended for further 36 ment of funds in which a terrorist has telephonic communications) interim study and development were ♦ an interest)23 Section 210 (USAPA broadens types broken down into several categories: of records that can be subpoenaed ♦ Section 373 (transfer of funds by from communications providers)37 Aviation; Bioterrorism Prevention, “money transmitters”—review Oregon ♦ Section 211 (USAPA clarifies federal Detection, and Response; Consumer law on solvency only)24 Protection and Charitable Activities; ♦ law to be applied to interception of Sections 314(a)(1) and 351 (relating to 38 Education; Emergency Management; cable electronic communications) cooperation among financial institu- ♦ Section 212 (USAPA allows computer- Financial Information and Institutions; tions, regulators, and law enforce- service providers to disclose commu- Immigration; Law Enforcement— ment; allowing financial institutions to nications and records to protect life Crimes and Criminal Procedure, Fund- share information regarding persons and limb; allows victims of computer ing and Resources; Law Enforcement— suspected of terrorism-related money 25 hacking to disclose records; Oregon Investigations; National Guard and laundering) laws based on old telephonic model)39 ♦ Military Personnel; Public Contracting Section 361 (does existing Oregon law ♦ Section 216 (USAPA applies pen reg- and Public Liability; Public Health; contain authority to provide data to ister and trap-and-trace statutes to and Public Records and Meetings. the Treasury Department’s Financial Internet communications; allows Crimes Enforcement Network?)26 Governor Kitzhaber adopted Attor- single order nationwide; comparable ♦ Section 806 (forfeiture of real estate ney General Myers’s recommenda- Oregon law pertains to only tele- and personal property used by terror- 40 tions and forwarded them to the leg- phonic model) ists to facilitate their aims)27 ♦ islature.17 Section 217 (USAPA computer-hack- ♦ Sections 808–813 and 817 (making ing victims may request that law en- There was only one first-priority rec- terrorism a separate crime; aiding and forcement monitor trespassers)41 ommendation for immediate action by abetting terrorists; hoax crimes)28 ♦ Section 501 (U.S. attorney general the special session—for legislation al- ♦ Section 213 (federal law permits de- may pay rewards in connection with lowing Oregon to join the Emergency layed notice of search warrants; Or- terrorism)42 Management Assistance Compact egon law requires officers executing ♦ Section 815 (USAPA creates defense (EMAC), an agreement among states a state search warrant to leave a copy for persons who disclose wire or elec- that enables them to assist one another of the search warrant at the search site; —————————— CONTINUED ON PAGE 5

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tronic communications records in re- five have been introduced as bills in incident in which imitation anthrax sponse to government request)43 the current session, and two more are was sent to the legislature. The Oregon ♦ Section 817 (USAPA broadens prohi- being drafted by Legislative Counsel. attorney general determined that bitions on possessing biological agents Only two of the final concepts on criminal legislation was needed to or toxins, including possession by the list of legislative items are based address this type of hoax. There is no aliens and felons)44 on the USA Patriot Act. specific Oregon crime that addresses ♦ Section 1010 (USAPA allows federal Department of Defense to contract The first is DOJ Reference No. 68, the manufacture, delivery, possession, with state or local government law en- having to do with expanding Oregon or use of harmful or toxic substances, forcement agencies to provide secu- Victim Assistance Programs to cover let alone a crime that addresses hoax rity at military installations during terrorist and mass violence acts, mak- toxic substances. Therefore, SB 24 was Operation Enduring Freedom, the U.S. ing Oregon eligible for supplemental drafted to fill in these gaps. SB 24 campaign against the Al Queda net- federal grants. This relates to section would (1) create the crime of unlaw- work and the Taliban in Afghanistan)45 624 of the USAPA and is discussed ful development, manufacture, deliv- ♦ Section 1012 (USAPA restricts states’ below. ery, possession, or use of a harmful ability to issue licenses to transport The second is DOJ Reference No. substance, toxin, or delivery system, hazardous materials; federal Depart- 45, allowing state and local authori- (2) expand the crime of disorderly con- ment of Transportation must first issue ties to contract with the Department duct involving false reports, and (3) a “no risk” security determination; gap of Defense to provide back-up law en- create the crime of menacing in the between implementation of federal background checks)46 forcement security at federal military first degree. All of these crimes are ♦ Sections 621–624 (USAPA expands installations during Operation Endur- classified as Class B felonies. This bill Victim Assistance Programs to include ing Freedom. This legislative concept, was not derived from any particular terrorist and mass violence circum- related to section 1010 of the USAPA, section of the USA Patriot Act, but was stances and provides supplemental was introduced as House Bill 2052. It drafted to deal with the anthrax ter- grants to state and local govern- has been passed by both the House rorist acts and related hoax acts fol- ments)47 and Senate, as discussed below. lowing the September 11, 2001, ter- Other Concepts Currently Pending rorist attacks. Recommended for Interim Study Oregon Legislation SB 24 was introduced and referred The remaining 39 items recom- In contrast to the complex and far- to the Senate Judiciary Committee; a mended for further study from the sec- reaching recent federal legislation, hearing was held on January 27. ond-priority list of legislative items, Oregon’s current proposed legislation House Bill 2052 which were not based on the USA is simple and straightforward. Most of Law Enforcement Security Functions Patriot Act, included these legislative concepts involve at Military Installations ♦ health care and medical-related leg- planning for and responding after a Originally this was DOJ Reference islative concepts based on the Model terrorist or mass violence attack. One No. 45, which was derived from Sec- State Emergency Powers Act, involves helping prevent terrorist at- tion 1010 of the USA Patriot Act. Sec- ♦ legislation based on Oregon statutory tacks by exempting security plans filed and case law, and tion 1010 provides that the federal ♦ antiterrorism legislation from other with the government from disclosure government, during Operation Endur- states (Florida, Idaho, Michigan, New under the Oregon Public Records Act. ing Freedom and for 180 days there- Jersey, North Carolina, South Carolina, Another involves making toxin-type after, may contract with state or local Virginia, and Washington). hoaxes, like the recent mailings of fake government law enforcement person- The concepts that survived this in- anthrax, state criminal violations. nel to perform security functions at terim study are addressed below. The bills that have been introduced United States military installations. this year are ORS 190.110 authorizes interagency Legislation Proposed ♦ Senate Bill 2448 agreements, but only as long as they ♦ 49 After Interim Study House Bill 2052 are to carry out duties imposed or con- ♦ 50 sing the list of 68 legislative- House Bill 2410 ferred by the state legislature. HB 2052 ♦ 51 study recommendations devel- House Bill 2425 simply allows public bodies to enter U ♦ House Bill 225152 oped by the governor and the attor- into agreements with the United States In summary these bills, as currently ney general, the legislative work group to perform security functions at mili- drafted, provide as follows. analyzed Oregon’s role in responding tary installations. HB 2052 has easily to anticipated terrorism, and came up Senate Bill 24 passed the House and the Senate. with a short list of specific ideas for Anthrax and Toxin Crimes state legislation to be considered in In the past year, Oregon has experi- the current legislative session. So far, enced anthrax hoaxes, including an —————————— CONTINUED ON PAGE 6

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House Bill 2410 making such information confidential, This bill was introduced on Janu- Credentialing Volunteer under public records laws as well as ary 14 at the request of Governor Health Care Professionals public meetings laws, i.e., ORS Kulongoski. It was referred to the During State of Emergency 192.501(18) and 192.501(23). Infor- House Health and Human Services In preparation for dealing with the mation so protected includes portions Committee, and a hearing was held aftermath of a terrorist attack in Or- of meetings concerning security re- on February 14. egon, this bill allows the Office of lated to nuclear plants and installa- Bills Soon to Be Introduced Emergency Management (OEM) to tions, other utilities, and communica- Two more legislative concepts have establish a program for credentialing tions transmissions. The bill expands been submitted to Legislative Coun- volunteer health care professional existing laws relating to maintaining sel and will soon be introduced as workers in an emergency, without the confidentiality of operational plans for bills: need to go through the normal licens- public safety responses by law en- ♦ DOJ Reference No. A-6761 53 ing procedures. The OEM is to con- forcement agencies, by applying such ♦ DOJ Reference No. A-6862 sult with the relevant health care li- laws to other public bodies dealing In summary, these are expected to censing boards to establish standards with critical infrastructures such as provide as follows. and qualifications for such cre- utilities and communications. HB dentialing. Health care professionals 2425 has been assigned to the House DOJ Reference No. A-67 are defined to include physicians, Judiciary Committee, and a public Identification of nurses, nurse practitioners, dentists, hearing and possible work session is Victims of Mass Attacks psychologists, occupational therapists, scheduled for March 3. This legislative concept is based on a similar bill from the New Jersey Leg- licensed clinical social workers, emer- House Bill 2251 islative Assembly.63 After the terrorist gency medical technicians, and podia- Proclamation of attacks on the World Trade Center, trists. The OEM will issue identifica- Impending Public Health Crisis New Jersey enacted legislation to aid tion cards to credentialed health care 59 This bill allows the governor to the missing victims’ families by per- professionals, with any relevant limi- proclaim a state of impending public tations. The program will allow such mitting a presumption of death to arise health crisis after determining that a immediately upon a proclamation by health care professionals to be sent to threat to the public health is imminent emergency sites, hospitals, or disaster the governor that a catastrophic event and likely to be widespread. This in has occurred. The present proposal sites to provide volunteer services, at turn allows the governor to seek as- such time as the governor declares a would modify existing Oregon law, sistance under EMAC. It also allows which establishes a presumption of state of emergency under ORS the state public health officer to 54 death based on the lapse of five to 401.055. The health care profession- ♦ mobilize volunteer health care profes- seven years in civil cases.64 als are to be considered agents of the sionals to serve as agents of the state Department of Administrative Services to provide services DOJ Reference No. A-68 of the State of Oregon, or a local pub- ♦ access medical records for the sole Expanded Victims lic body, and covered under the pro- purpose of addressing the impending Assistance Programs visions of the Oregon Tort Claims Act. health crisis This legislative concept is to expand ♦ As of late February, this measure was order the isolation of people while as- the existing provisions of Oregon’s still in the legislative process.55 sessing their health status Crime Victims Law65 to provide that ♦ create diagnostic and treatment stan- the Oregon Department of Justice may House Bill 2425 dards that address the impending pub- deliver services to victims, and initiate Security Plans Under lic health crisis Public Records and Meetings Laws ♦ adopt reporting requirements for and participate in planning, training, This bill56 seeks to address the prob- health care providers, institutions, and and organizational efforts to prepare lem of maintaining the confidential- facilities relevant to the public health to deliver services to victims and vic- ity of security plans generated by pub- crisis tims’ families due to acts of war, ter- ♦ lic bodies, including information take other administrative actions nec- rorism, crime, or sabotage resulting in about the review or approval of pro- essary to address the impending pub- mass casualties or massive destruction lic health crisis 66 grams relating to the security of the of property. ♦ impose civil penalties of up to $500 generation, storage, or conveyance of Other Legislative Concepts per incident for failure to comply with electricity, gas (liquefied or gaseous), these directives As of late February, five of the rec- 57 ommended legislative concepts had liquid hazardous substances, petro- Importantly, this law would allow either not been introduced as bills or leum products, sewage, and water. It rapid access to medical records in the not been sent to Legislative Counsel also covers security plans for transmis- event of infections caused by terrorist 58 for drafting. These relate to the sion of communications. It addresses attacks.60 —————————— CONTINUED ON PAGE 7 PAGE 6 MARCH 2003

TERRORISM AND OREGON LEGISLATION CONTINUED FROM PAGE 6 governor’s emergency authority to with the after-effects of future poten- ate President Gene Derfler dated Febru- purchase and allocate electrical power tial terrorist acts. ✦ ary 4, 2002. supplies during an emergency,67 a re- 16. Ibid. John Clinton Geil is an assistant attor- quirement that owners and operators ney general in the Trial Division of the 17. Ibid. of energy facilities establish and main- Oregon Department of Justice. He is 18. Senate Bill 1001, 71st Legislative As- tain security plans for state and local chair-elect of the OSB Civil Rights Sec- sembly—2002 Special Session. For more emergency planners,68 possible regu- tion. Mr. Geil wishes to acknowledge and information, see the EMAC website at lation of gasoline price-gouging fol- thank Assistant Attorneys General Keith www.nemaweb.org/EMAC/About_EMAC. lowing a terrorist attack,69 enhanced Kutler and David Landrum for their com- 19. DOJ Reference Nos. 2–69 criminal penalties for terrorist attacks ments and assistance. 20. DOJ Reference Nos. 70–207 70 This article was written in an individual on public water systems, and finally, 21. DOJ Reference No. 7 a review of existing Oregon law that capacity and is not intended to, and does not, reflect any position of the Oregon 22. DOJ Reference No. 16 prohibits state and local law enforce- Department of Justice. 23. DOJ Reference No. 17 ment agencies from using resources 24. DOJ Reference No. 18 “for the purpose of detecting or ap- Endnotes 25. DOJ Reference No. 19 prehending persons whose only vio- 1. The work groups included representa- tives from the Oregon Department of Jus- lation of law is that they are persons 26. DOJ Reference No. 20 tice, the Department of Human Services 27. DOJ Reference No. 22 of foreign citizenship residing in the Office of the State Health Officer, the Joint United States in violation of federal Interim Judiciary Committee, the Oregon 28. DOJ Reference Nos. 23–25 immigration laws.”71 Medical Association, Oregon Nurses As- 29. DOJ Reference No. 26 sociation, Oregon Public Utility Districts 30. DOJ Reference No. 27 Conclusion Association, Oregon Municipal Electric 31. DOJ Reference No. 28 he roles of the federal and state Utilities, Northwest Natural Gas, Oregon 32. DOJ Reference No. 29 T governments in combating ter- State Police, ACLU, PG&E, Oregon State rorism differ, given their respective re- Fire Marshall, Oregon Newspaper Publish- 33. DOJ Reference No. 30 ers Association, and others. Not all orga- 34. DOJ Reference No. 31 sponsibilities. In contrast to the fed- nizations participated in each work group. eral government’s adoption of com- 35. DOJ Reference No. 32 2. H.R. 3162 is a “clean bill” that resolved plex and far-reaching antiterrorism differences between earlier versions of the 36. DOJ Reference No. 33 laws following the September 11 at- bill, namely H.R. 2975 (the Patriot Act) and 37. DOJ Reference No. 34 tacks, the State of Oregon has taken a S. 1510 (the USA Act). Other earlier bills 38. DOJ Reference No. 35 were incorporated into the final bill. path of careful review, deliberation, 39. DOJ Reference No. 36 and finally, submission of a few dis- 3. THE USA PATRIOT ACT: A LEGAL ANALYSIS, 40. DOJ Reference No. 37 crete state legislative actions intended CRS Report for Congress, Order Code 41. DOJ Reference No. 38 to refine the existing laws dealing with RL31377, April 15, 2002, Congressional preparation for, and response to, fu- Research Service, The Library of Congress, 42. DOJ Reference No. 39 Charles Doyle, Senior Specialist, Ameri- 43. DOJ Reference No. 39 ture acts of mass violence and terror- can Law Division. ism. As currently envisioned, the state 44. DOJ Reference No. 44 4. Ibid. legislative proposals deal with reason- 45. DOJ Reference No. 45; see discussion able and prudent actions to be ex- 5. Section 501 of the USA Patriot Act (here- infra of Oregon House Bill 2052, which after cited only by section numbers) pected of responsible state and local has been passed by the House and the governments. If adopted, these legis- 6. Section 817 Senate. lative concepts will allow the Oregon 7. Section 105 46. DOJ Reference No. 59 state and local governments to work 8. Section 219 47. DOJ Reference No. 68; see discussion in a reasonable and coordinated man- 9. Section 507 of this legislative concept infra. ner with the federal government and 10. Section 1005 (28 USC 509 note—FY 48. DOJ Reference No. 25; see discussion other state governments if acts of ter- 2003–2007) of Oregon Senate Bill 24 infra. rorism occur. 11. Office of Justice Programs (OJP) grants 49. DOJ Reference No. 45, LC 362 Although the ongoing national de- 12. Section 1014 (42 USC 3711—FY 50. DOJ Reference No. 53, LC 1187 bate regarding the reach of recently 2002–2007) 51. DOJ Reference No. 57, LC 363 adopted federal legislation is conten- 13. Section 1015 (42 USC 14601—OJP 52. DOJ Reference No. 56; see Model State tious, from a civil liberties perspective, grants FY 2002–2007); Section 701 (42 Emergency Powers Health Act (MSEHPA) the pending Oregon state legislation USC 3796h—Bureau of Justice Assistance Section 607. grants FY 2002–2003) is not expected to be as controversial, 53. Originally DOJ Reference No. 53. This as it is mostly in the nature of house- 14. Section 624 was not based on a particular section of keeping and preparation for dealing 15. Letter from Governor Kitzhaber to Sen- the USA Patriot Act. It modifies existing —————————— CONTINUED ON PAGE 8 PAGE 7 OREGON CIVIL RIGHTS NEWSLETTER

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ORS 301.800, having to do with existing “Good Samaritan” laws. 54. HB 2410 Section 4 55. HB 2410 was referred to the House General Government Com- mittee, and a public hearing was held on February 20. 56. This bill is not based on any particular section of the USA

ermit #341

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Presorted Standard 57. As defined in ORS 453.005 PAID US POSTAGE 58. As defined in ORS 308.505 59. Or in the absence of the governor, the secretary of state, and then the state treasurer. 60. See Model State Emergency Powers Health Act (MSEHPA) Sec- tion 607; DOJ Reference No. 56, which states: “To identify and contain an infection caused by a terrorist attack, public health authorities may need rapid and unrestricted access to records per- taining to the treatment of individual patients. The Model Act does grant such authority. Oregon law does not. The issue is whether federal law and proper concern for the privacy of individual’s medical records would allow Oregon to more closely reflect the Model Act.”; see also DOJ Reference No. 54, which states: “Un- der current Oregon law, a declaration of emergency cloaks the Governor with far-reaching powers. Managing public fears in a threatening situation may become critical to efficient responses. Declaration of an emergency would not necessarily be appropriate, and might unnecessarily alarm the public, if the circumstances merely call for collection of information and mobilization of resources to meet an imminent but not yet executed threat. The concept would allow the declaration of a ‘Public Health Alert.’ Upon such declaration, the Governor would acquire enumerated yet Box 1689

Lake Oswego, OR 97035 Lake Oswego,

Oregon State Bar Civil Rights Section Civil temporary powers. For example, this authority could be used in P. Oregon after an anthrax attack in another state. Under the authority of a declared Public Health Alert, the governor could direct that plans be prepared to plan for cases in Oregon. The adequacy of existing Oregon law should be tested against tabletop exercises SUPREME COURT UPDATE CONTINUED FROM PAGE 3 simulating various forms of public health emergencies.” 61. This has not yet been assigned a LC number. Other Developments 62. Ibid. Grutter v. Bollinger, No. 02-241, 63. New Jersey Legislative Assembly Bill No. 21; New Jersey Per- and Gratz v. Bollinger, No. 02-516 manent Statutes 3B:27-1 and 27-2. The Bush administration has filed a brief opposing the 64. See ORS 112.582; ORE 311; ORE 308; ORE 309. use of affirmative action in a university’s admissions pro- 65. ORS 147.005 to 147.365 cess. Several dozen Fortune 500 companies, colleges, and 66. This legislative concept was based in part on sections 621– universities, the AFL-CIO, and the American Bar Associa- 624 of the USA Patriot Act. tion will submit amicus briefs supporting the University of 67. DOJ Reference No. 66; see ORS 401.065(3). Michigan’s practice. Oral argument will be on April 1. 68. See the Joint Federal/State Assessment of Oregon’s Terrorism Nev. Dept. of Human Resources v. Hibbs, No. 01-1368 Preparedness dated October 31, 2001. During oral argument on January 15, Bush administra- 69. DOJ Reference No. 5; see also Oregon House Bill 3965 (2001). tion officials urged the Supreme Court to uphold the right 70. This concept was not numbered in the originally published of state employees to bring Family and Medical Leave Act list and thus has no DOJ Reference Number. The concept is based claims against state employers, arguing that the Eleventh on a proposed Washington legislative package. Amendment does not preclude such suits. ✦ 71. This is the Oregon statute that resulted in the national contro- versy following the September 11, 2001, attacks when the City of Fisher & Phillips LLP is one of the oldest and largest national Portland refused to cooperate with the federal authorities based law firms in the country representing employers in labor and on ORS 181.850(1). No opinion is given here regarding the inter- employment law matters. Portland-based law firm Gordon & pretation of this statute by the City of Portland. This law was the Meneghello, P.C., merged with Fisher & Phillips in September subject of extensive media coverage and is not addressed in this 2002, and now serves as the firm’s Pacific Northwest office. article, as it has not resulted in the introduction of any legislation, Busse & Hunt represents employees in employment cases, federal or state, as of the time this article was written. This alone including civil rights, discrimination, sexual harassment, wrong- could be the subject of a separate article. ful discharge, and fraud.

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