2012 Session to Convene February 1 Coalition
2012 PUBLIC AFFAIRS COMMITTEE January 25, 2012 Steve Larson, Chair, Portland Hunter Emerick, Vice-Chair, Salem Maureen O’Connor, Portland 2012 Session to Convene February 1 Kenneth Mitchell-Phillips, Portland Audrey Matsumonji, Gresham Oregon’s first constitutionally mandated short session convenes on February 1 and Michael Haglund, Portland will adjourn on or before March 6. The session is expected to focus mainly on Tom Kranovich, Lake Oswego balancing the state’s biennial budget, which is already more than $300 million in the hole. The revenue forecast due out on February 8 will likely predict that the hole continues to get deeper. A calendar showing deadlines for legislative action is Legislative Web site available at http://www.leg.state.or.us/bills_laws/February2012Calendar.pdf.
The legislative Web site will be useful during the 2012 session, with the complete The party caucuses in the two chambers have their own agendas, published during text of all measures introduced and the week of January 16. The Democratic caucuses emphasize support for middle amended and agendas for committee class and lower-income Oregonians and investments that will create jobs. The hearings and work sessions: www.leg.state.or.us Republican caucuses also prioritize job creation and emphasize the importance of All of the bills that will be introduced should reducing government regulation. To see the published caucus priorities, go to: be posted on the Web site on Saturday, http://www.oregonlegislature.gov/senatedemocrats/2012_OSD_Agenda.pdf January 28. http://www.leg.state.or.us/press_releases/sro_011812.pdf
http://www.leg.state.or.us/housedemocrats/HouseDemActionPlan_Jan2012.pdf Measure Limitations for 2012 http://www.leg.state.or.us/press_releases/hro_011812.html
The number of measures introduced in the Given the short timelines in the February session, significant substantive legislation 2012 session will be limited as follows: seems a long shot without bipartisan consensus. To some extent the substantive 2 measures per member agendas of the caucuses are best viewed in light of the political effect they may have 5 measures per interim committee 5 measures by the executive branch at on the 2012 election cycle. the request of the governor 5 measures by the judicial branch at the request of the chief justice Coalition Supports Court Funding
New Members in 2012 The bar has organized a coalition of legal groups, businesses, and business associations to join with the judicial branch to oppose any further cut to the judicial When it convenes on February 1, the branch budget for 2011–‘13. The legislature in its February session will be legislature will have two new members to considering ways to balance the state’s biennial budget, which is anticipated to replace Rep. Ben Cannon (D SE Portland) and Sen. Suzanne Bonamici (D require more cuts. Beaverton/NW Portland), both of whom resigned to pursue other opportunities. The The legislature held back 3.5 percent of most executive agency budgets, as well as new legislators are Rep. Alissa Keny-Guyer (D) and Sen. Elizabeth Steiner Hayward the same portion of the judicial branch budget, as a hedge against further (D). deterioration in the state’s fiscal condition. If the revenue forecasts continue to decline, the held-back funds will be applied against the shortfall; if revenues meet or
exceed expectations, the judicial branch and executive department agencies will be
able to spend the amounts held back.
PUBLIC AFFAIRS DEPARTMENT Susan Grabe, The coalition is advocating that the legislature authorize the judicial branch to spend Public Affairs Director its full appropriation, including the held-back 3.5 percent. Further, the coalition
David Nebel, maintains that the branch should not be subject to any other cuts during this Public Affairs Legislative Attorney biennium. Matt Shields, Public Affairs Staff Attorney The coalition argues that the judicial branch is a core function of government that Amanda Roeser, businesses rely on for the prompt resolution of disputes, families rely on to work out Public Affairs Assistant difficult issues, and the public relies on for maintaining safety. The courts are
constitutionally required to resolve cases completely and without delay, but they have
no mechanism by which to regulate the number and complexity of the cases presented for resolution. In addition, under the state constitution and statutes a substantial part of the branch budget including judicial salaries, juror payments and interpreter fees cannot be reduced.
Background information, talking points and sample letters to legislators are available at http://courtfunding.homestead.com/Court-Funding.html.
The legislature will make the ultimate decision on court funding in the February session based on the revenue forecast that will be released on February 8. The courts of course are just one of the government entities attempting to resist further budget cuts.
Justice Balmer Elected Chief Justice
The seven justices of the Oregon Supreme Court have chosen Justice Tom Balmer to succeed Chief Justice Paul De Muniz, effective May 1. Chief Justice De Muniz has decided not to seek re-election to the court and will serve out his term after May 1 as an associate justice through January 7, 2013.
Chief Justice –Elect Balmer has served on the Supreme Court since 2001, when he was appointed by Governor John Kitzhaber. He was in private practice in the Portland Ater-Wynne firm and its predecessors from 1982 through 2001, except for a stint as deputy attorney general at the Oregon Department of Justice under then Attorney General Ted Kulongoski from 1993 to 1997.
Justice Balmer grew up in Portland and attended Portland Public Schools. He graduated from Oberlin College in 1974 and from the University of Chicago Law School in 1977. Between his graduation from law school and his move back to Oregon in 1982, he was in private practice in Boston and Washington, D.C. and spent two years in the anti-trust division of the U.S. Department of Justice. He is 59 years of age.
Justice Balmer has been active in many different community and law related activities, serving on the boards of Multnomah County Legal Aid Service (1989-1993), the Classroom Law Project (!999 to present), and the Oregon Law Institute (2004-2011). For a more complete biography, see http://courts.oregon.gov/Supreme/BioBalmer.page?
The Chief Justice is responsible for the operation of the Supreme Court and for the general budget and management of the judicial branch.
Commission on Public Safety Issues Report
In July 2011 Governor John Kitzhaber created the Commission on Public Safety to take a fresh look at Oregon’s sentencing and public safety system. Appointed to the commission were Chief Justice Paul De Muniz, Chair, former governor Ted Kulongoski, Salem businessman Dick Withnell, and four legislators: Sens. Floyd Prozanski (D Parts of Lane and Douglas Counties) and Jackie Winters (R Salem), and Reps. Chris Garrett (D Lake Oswego) and Andy Olson (R Albany).
The commission met four times and published its report on December 31, 2011. http://www.oregon.gov/CJC/docs/CPS_report_to_Governor_12_30_11.pdf The report makes a number of findings: While property and violent crime is at its lowest rate since the 1960s, the public perception is that crime has leveled off or is increasing. Over half the states have reduced their crime rate while reducing their incarceration rate. The expansion of Oregon’s prison system is a component of the reduction in crime, but the corrections budget is expensive and needs to be reviewed. The state needs to expand services to the 93 percent of the prison population that will be released to communities after serving their sentences.
The commission also established a number of principles to guide future work: Savings from sentencing reform should be used to pay for cost-effective methods to reduce crime. Use a rational cost-benefit analysis to determine the best return on the public’s investment in public safety. Restore some judicial authority to impose appropriate sentences. Provide more complete information about offenders to judges at sentencing to enable the judges to assess the risk of recidivism. Page 2
Examine the juvenile justice system in light of these principles. Dedicate a portion of the savings from sentencing reforms to programs that help crime victims.
The commission recommended that it be continued through June 2013 to allow it to develop and propose to the 2013 legislature “revisions to Oregon’s sentencing guidelines and policies that would optimize the use of Oregon’s most expensive corrections resource—prisons.” In continuing its work, the commission intends to engage all parts of the public safety community as well as the broader community in the project of modernizing sentencing laws.
The commission’s report has generated controversy already. In an Oregonian article dated January 7, Sen. Betsy Johnson (D Scappoose) makes the point that the commission did not include any on-the-ground public safety participants, and raises the suggestion that the commission’s findings were preordained. http://www.oregonlive.com/opinion/index.ssf/2012/01/oregon_public_safety_panel_wer.html Sen. Johnson casts doubt on the commission’s use of statistics and the statistics themselves, and ends with this: “Prison isn’t the only way to waste money. In its pre-ordained rush to embrace more cost-effective alternatives to incarceration, the commission might want to keep that in mind.”
Oregon Law Commission Sets its Agenda
At a meeting on December 12, the Oregon Law Commission adopted a number of proposals for consideration over the next few years.
Of perhaps most broad interest to the legal community was a proposal from Chief Justice Paul De Muniz to study Oregon’s procedure for the selection and retention of appellate judges. Currently appellate judges are elected at large. When a position becomes open during a term, the governor appoints a replacement who must then run in the next election cycle. The Chief Justice pointed out that so far Oregon has not endured a big-money campaign for an appellate court position, but he suggested studying whether a preemptive measure would be appropriate.
More immediately, the commission authorized a work group that has already been formed to submit proposed amendments to Article 9 of the Uniform Commercial Code to the 2012 session. Article 9 deals with secured transactions involving personal property, and is codified at ORS chapter 79. The proposed amendments are brought forward from the Uniform Laws Commission and are targeted to take effect on July 1, 2013. The amendments are largely technical.
The commission authorized formation of a work group to develop legislation for 2013 dealing with a broad array of issues arising in adoption proceedings: informed consent to adoption, revocation of consent, notice of pending adoption to putative fathers, advertising and solicitation of adoptions, the role of the Department of Human Services in independent adoptions, and the enforcement process for postadoption contact agreements. The commission emphasized the need to address adoption records in the context of Oregon eCourt in the 2013 session.
In the area of criminal law, the commission will form a work group to study adoption of the Uniform Laws Commission’s Uniform Collateral Consequences of Conviction Act and to expand it to apply to juvenile proceedings as well. The gist of this act is to provide information to those charged with crimes about the consequences of convictions beyond the direct criminal penalties in sentences. The commission directed the work group to consider proposing legislation in the 2014 or 2015 sessions.
The commission also authorized formation of work groups on two other uniform laws: the Unsworn Foreign Declarations Act and the Revised Law on Notarial Acts.
Proposed Changes to the UTCRs: Request for Public Comment
The Uniform Trial Court Rules committee met on October 14, 2011, to review proposals to amend the UTCRs and to make preliminary recommendations to the chief justice of the Oregon Supreme Court. A description of the proposals and action taken by the committee is posted at: http://courts.oregon.gov/OJD/programs/utcr/utcrrules.page.
Proposals of special note include new and amended rules addressing Oregon eCourt remote electronic access and electronic service; amended rules regarding termination of attorney-client relationship, custody of biological evidence, and certain family law procedures; and revised small claim forms.
Page 3
The committee encourages all interested parties to submit comments on these proposals. Comments can be posted at the web address mentioned above, mailed to the UTCR Reporter at the Office of the State Court Administrator, Supreme Court Building, 1163 State Street, Salem, Oregon 97301-2563, or e-mailed to [email protected].
The committee will make final recommendations on these proposals at the next UTCR meeting on April 20, 2012, 9:00 a.m., Office of the State Court Administrator, Salem, Oregon. Those proposals approved by the chief justice will become effective August 1, 2012.
Page 4
2012 PUBLIC AFFAIRS COMMITTEE February 13, 2012 Steve Larson, Chair, Portland Hunter Emerick, Vice-Chair, Salem Maureen O’Connor, Portland February Revenue Forecast: Down Slightly Kenneth Mitchell-Phillips, Portland Audrey Matsumonji, Gresham The legislature in 2011 passed the 2011-13 biennial budget based on the expectation Michael Haglund, Portland that lottery and general fund revenue would total $15.4 billion. Revenue forecasts in Tom Kranovich, Lake Oswego August and November revised that figure downward by $306 million. One of the most pressing tasks for the legislature in the short 2012 session is to rebalance the budget.
That’s why the release of the February revenue forecast on the 8th was of such Legislative Website significance: would the legislature have to fill an even deeper hole to keep the state solvent through June, 2013? The legislative website will be useful during the 2012 session, While the forecast was down again, the news was not as bad as some expected. with the complete text of all Projected revenues were down by an additional $35 million, making the biennial measures introduced and shortfall total $341 million. amended and agendas for committee hearings and work Even before the release of the forecast, budget writers had developed a rebalance sessions: www.leg.state.or.us plan that applies cuts and unexpected sources of revenue, including a $41 million tobacco settlement, to make up the shortfall. After release of the new forecast, Court Funding legislators expressed relief and confidence that the additional shortfall could be addressed by reducing the ending balance – the amount projected to remain in the Information on how you can state’s coffers when the biennium ends. advocate for adequate funding for Oregon’s courts is available at Bills Still in Play in February Session http://courtfunding.homestead.com /Court-Funding.html The first annual session of the Oregon Legislature began on February 1 and is
expected to adjourn on or before February 29. Already a deadline has passed that has eliminated some bills from consideration. Among the bills that are of interest to the profession and still alive are the following:
SB 1552. Requires mediation in foreclosure proceedings at the request of
the borrower. SB 1564. Requires foreclosure modification negotiations to conclude prior to foreclosure sale. SB 1575. Increases penalties for disorderly conduct within 200 feet of funeral services.
HB 4025. Adjusts of amounts of criminal fines payable to justice and
municipal courts.
HB 4026. Expands the Court of Appeals by three judges. PUBLIC AFFAIRS DEPARTMENT HB 4035. Adopts Uniform Laws Commission’s amendments to UCC Article 9 Susan Grabe, (Secured Transactions). Public Affairs Director HB 4039. Amends senior tax deferral program. David Nebel, Public Affairs Legislative Attorney HB 4067. Excludes data centers in enterprise zones from central tax
Matt Shields, assessment. Public Affairs Staff Attorney HB 4084. Adopts work group recommendations on elder abuse.
Amanda Roeser, Public Affairs Assistant All committee consideration of bills in the originating chambers must be concluded by Tuesday, February 14. A number of the bills listed would cost the state money to
implement and been sent to the Joint Ways and Means Committee.
Judge Haselton to Assume Reins in the Court of Appeals
With Court of Appeals Chief Judge David Brewer running for a seat on the Supreme Court, it appears that the Chief Justice will appoint Judge Rick T. Haselton to succeed him. Judge Haselton has the support of his colleagues on the Court of Appeals, and the Chief is likely to follow their suggestion.
Judge Haselton has been on the Court of Appeals since 1994. Before that he clerked for Judge Alfred T. Goodwin of the Ninth Circuit in 1979 to 1980 and practiced in Portland from 1980 to 1994 with Lindsay, Hart, Neil and Weigler and with Haglund and Kirtley. He specialized in complex litigation and appeals.
Judge Haselton has served as a volunteer with the Senior Law Project and has been chair of the OSB Appellate Practice Section, chair of the Multnomah Bar Professionalism Committee, chair of the Board of Bar Examiners, and chair of the Multnomah County Legal Aid Service board. He has served on the board of the Portland Jewish Academy and is a past president of Congregation Kesser Israel. He has also served as a member of the Judicial Conduct Committee of the Appeals Board of the Oregon Judicial Department and has been president of the Oregon Appellate Judges Association.
Judge Haselton grew up in Oregon, graduating from West Albany High School in 1972. He graduated from Stanford in 1976 and from Yale Law School in 1979.
Page 2
2012 PUBLIC AFFAIRS COMMITTEE March 9, 2012 Steve Larson, Chair, Portland Hunter Emerick, Vice-Chair, Salem Maureen O’Connor, Portland Judicial Branch Budget Improves in 2012 Session Kenneth Mitchell-Phillips, Portland Audrey Matsumonji, Gresham In light of its prospects going into the 2012 session, the Oregon Judicial Department Michael Haglund, Portland came out of it better than expected. Legislators seem to have heard the lawyers, Tom Kranovich, Lake Oswego judges, and businesspeople who talked with them about the importance of the judicial branch as a core function of government.
Reminder: Deadline for bar bills The bill that rebalances the state’s budget for 2011–2013, SB 5701-A, appropriates additional general fund dollars to the Judicial Department, partially offsetting the April 2, 2012 is the deadline for $11.5 million reduction made at the end of the 2011 session to create a supplemental sections and committees to submit reserve fund. (The reserve fund could be tapped for state agencies if state revenue legislative proposals to the Public declines.) The additional appropriation covers mandated expenses including judicial Affairs Department for bar salaries, juror payments and court interpreter expenses. In addition, the legislature sponsorship in the 2013 session. included a $1.1 million appropriation to the Emergency Board in the event that the The materials should describe the proposal in detail and include draft department requires additional funding for court operations; the department may bill language. The section executive return to the E-Board as early as May. committee or committee must approve the proposal by majority In addition, the legislature: vote prior to its submission. Public Authorized specialty courts to spend $1.7 million in grants, which will offset affairs staff is available to assist some impact of general fund reductions. groups with proposals. Authorized Multnomah County to use up to $716,000 of its funding for conciliation and mediation services and law library services to buy furniture Next legislative committee and equipment for the new East County Courthouse. meetings are scheduled on May Authorized $13.7 million in bonding authority for Oregon eCourt, in addition 21, 22, and 23. The next economic to the $6 million authorized in the 2011 session, and appropriated forecast is scheduled for May 22. $2.9 million for debt service from the general fund. The Oregon eCourt project thus emerges from the 2012 session very much intact and on track to Court Funding roll out as planned. Yamhill County Circuit Court will be the first to implement
Information on how you can the comprehensive Oregon eCourt system in June, 2012. advocate for adequate funding for Oregon’s courts is available at Legislature Enacts Bills of Interest to Practitioners http://courtfunding.homestead.com/ Court-Funding.html The 2012 session resulted in a few bills that will affect a number of areas of practice. Each of the following bills is available in its entirety at http://www.leg.state.or.us/bills_laws/.
SB 1527 clears up a minor drafting error in a 2011 bill that made
strangulation a felony under certain circumstances. An unrelated amendment PUBLIC AFFAIRS DEPARTMENT limits the fine that can be imposed upon conviction of a violation that was Susan Grabe, originally charged as a misdemeanor. Public Affairs Director SB 1575 increases the penalty for disorderly conduct if committed within 200 David Nebel, feet of a funeral service. Public Affairs Legislative Attorney HB 4023 allows certain child-caring agencies to become community Matt Shields, Public Affairs Staff Attorney guardians for wards in substitute care.
Amanda Roeser, HB 4026 increases the number of judges on the Court of Appeals from 10 to Public Affairs Assistant 13 as of October 1, 2013. HB 4027 expands and enhances immunity for health care providers,
pharmacists, and optometrists who provide free services to homeless people.
HB 4035 enacts various technical changes to Article 9 of the Uniform Commercial recommended by the Uniform Laws Commission. HB 4039 allows limited continued participation in the senior property tax deferral program for some seniors with reverse mortgages. HB 4084, the product of the Elder Abuse Work Group, makes a number of changes designed to prevent elder abuse and remove barriers to prosecution. HB 4146 removes barriers to expungement for persons convicted of prostitution under the age of 18. HB 4167 and 4168 make technical adjustments to the court fee and violation fine bills passed in 2011. HB 4169 establishes fees for diversion and other programs related to alcohol evaluation and treatment.
Foreclosure Mediation and “Dual Track” Bill Passes
Consumer advocates entered the 2012 session with hopes of passing several foreclosure-related bills. Their two priorities were SB 1552, a bill that mandated mediation at the borrower’s request, and SB 1564, a bill that would stop banks from engaging the borrower in mortgage modification discussions while pursuing foreclosure at the same time, a practice referred to as dual track. Both bills passed the Senate easily with bipartisan support.
When the bills reached the House, the industry opponents offered a number of amendments that made the bill unacceptable to consumer advocates. By the end of February negotiations seemed to be at an end, but persistence in this instance paid off. In the last hours of the session the House Rules Committee adopted amendments to SB 1552 that rejected the industry approach, maintained the essential provisions of the original bill, and incorporated the dual-track protections that had been in SB 1564. The committee sent the bill to the floor, where it passed 59-1. See http://www.leg.state.or.us/12reg/measpdf/sb1500.dir/sb1552.b.pdf. The bill becomes operative 91 days after the governor signs it.
Tax-Deferred Homestead Exemptions
The legislature has passed HB 4039, a measure which should enable 1,700 homeowners to resume participation in Oregon’s Senior and Disabled Property Tax Deferral Program.
This program allows many low-income homeowners to defer payment of property taxes until the home is sold. Under the program, the state pays the taxes that are due to local jurisdictions, and then gets paid back when the property ultimately sells. Because of the crash in the housing market, the state began to have difficulty recouping its costs, and the program was in serious financial trouble by 2011.
In an attempt to keep the program solvent, the legislature passed a bill in 2011 that restricted access to the program and reduced the number of eligible participants by about half. One of the consequences of the 2011 change was that many persons who would have otherwise been eligible to participate in the program were deemed ineligible because their homes were being used as security on reverse mortgages.
HB 4039 permits most homeowners who were excluded solely because of a reverse mortgage to again participate in the deferral program. The bill also sets up a mechanism to use proceeds from the reverse mortgage to pay for the deferred taxes. Under the bill, the prohibition on deferral of homestead property taxes for properties under a reverse mortgage will resume on July 1, 2013.
The bill also provides that in the future lenders must notify potential borrowers about the consequences of entering into a reverse mortgage as it relates to eligibility for tax-deferred homesteads.
The bill requires the Department of Revenue to report back to the legislature in May of this year, and again before the beginning of the 2013 session, regarding the status of the deferral program. The legislature is likely to revisit this issue in the coming years.
Legislature Passes Response to Multnomah Court Decision
SB 1527 originally made a minor technical correction to a statute passed in 2011 that made strangulation a felony under certain circumstances. The legislature subsequently amended the bill to address a recent ruling in Multnomah Circuit Court that extended some important procedural protections to 20 defendants whose misdemeanor charges were reduced to violations by the District Attorney. The amended SB 1527 lowers the maximum fine for a misdemeanor which has been reduced to a violation.
Page 2
The original cases involved individuals arrested in the Occupy Portland protests. All of these defendants were initially arrested and booked in the Multnomah County Jail on misdemeanor charges. Some hours later the district attorney elected to treat their charges as violations and the defendants were released.
On February 7 Judge Cheryl Albrecht ruled that in cases that originated as Class A and B misdemeanors, the defendants were entitled to jury trials and to court-appointed counsel, even after the charges were reduced to violations. Further, she ruled that the state’s burden of proof continued to be beyond a reasonable doubt.
Judge Albrecht held that multiple factors gave these cases the character of criminal prosecutions, and thus warranted procedural protections normally afforded only to defendants charged with misdemeanors and felonies. The judge cited the fact that officers used pretrial arrest and detention procedures when they could have instead issued citations in lieu of arrest. The judge also found the amount of the fine significant: when a misdemeanor is reduced to a violation, the maximum allowable fine continues to be the maximum for the misdemeanor, not the maximum for a Class A violation.
In response to this ruling, an amendment to SB 1527 lowers the maximum fine for a violation that the district attorney originally charged as a misdemeanor to the maximum allowable for a Class A violation—currently $2,000. The intent of this amendment seems to be to eliminate the new procedural rights given to defendants in these types of cases, but it is uncertain whether this change will be adequate to achieve that goal.
The bill only affects charges that are reduced after its effective date, so it will have no effect on the 20 defendants at issue in Judge Albrecht’s ruling.
Work Group on Patient Safety and Defensive Medicine
The bill that implements health care delivery through coordinated care organizations (SB 1580) included the establishment of a work group on Patient Safety and Defensive Medicine. See http://www.leg.state.or.us/12reg/measpdf/sb1500.dir/sb1580.en.pdf, Section 17. The workgroup will consist of eight members, including four legislators in advisory roles one from each party party in each chamber. The governor will appoint the four voting members and the chair. Among the four voting members will be a trial lawyer and a physician.
The work group is to recommend legislation to the 2013 session that improves health care and reduces medical error. The bill directs the group to prioritize legislation that improves patient safety, more effectively compensates people injured by medical errors, and reduces “collateral costs,” including costs associated with insurance administration, litigation, and defensive medicine.
The group will submit its recommendations to the legislature on or before October 1, 2012.
Oregon Elder Abuse Work Group
In 2011 the legislature passed HB 2325, which created the Oregon Elder Abuse Work Group. See http://www.leg.state.or.us/11reg/measpdf/hb2300.dir/hb2325.en.pdf. The bill sunset the work group on February 29, 2012. The 2012 legislature passed HB 4084, which among other things re-created the work group through June 30, 2013. See http://www.leg.state.or.us/12reg/measpdf/hb4000.dir/hb4084.b.pdf, Section 23. The size, membership, and charge of the group was unchanged from the original legislation in 2011.
This original work group caused the introduction of HB 4084, which in addition to re-creating itself made a number of substantive changes to criminal law and procedure. Although the work group’s bill passed overwhelmingly, parts of the bill were controversial with civil liberties groups and the criminal defense bar. These groups will likely be included as unofficial participants during the re-created work group deliberations.
Appellate Court and Attorney General Races Take Shape
The deadline to file for election in the 2012 election cycle passed on March 6, and the May 15 primary will feature three elections of significance to the justice system.
Three candidates are competing for Supreme Court Position 3, currently held by Justice Robert Durham who will retire in January at the end of his term: Page 3
Richard Baldwin is a Multnomah County circuit court judge. Nena Cook is a partner in the Portland firm of Sussman Shank. Timothy Sercombe has been an associate judge on the Court of Appeals since 2007.
Three candidates are also running for Court of Appeals Position 6, which will be vacated by Chief Judge David Brewer. (Judge Brewer is running unopposed to replace Chief Justice Paul De Muniz in Supreme Court Position 2). The candidates are: Tim Volpert, a partner at Davis Wright Tremaine in Portland. James Egan, a circuit court judge in Linn County. Allan Arlow, an administrative law judge at the Public Utility Commission.
If a candidate in either of these non-partisan elections receives over 50 percent of the votes in the primary, that person wins. If no one receives a majority, a run-off election is held in November between the first and second place finishers.
On the other hand, the election for Attorney General will be decided in the May primary. Since no Republican filed for this position, the winner of the Democratic primary wins the election. The two candidates are: Ellen Rosenblum, former assistant US Attorney and judge of the circuit court and Court of Appeals. Dwight Holton, currently counsel at Lane Powell in Portland and former interim U.S. Attorney and assistant U.S. Attorney in Oregon and New York.
No one filed to run against the incumbent appellate judges who are seeking re-election, including Supreme Court Justice Virginia Linder and Court of Appeals Judges Rick Haselton, Lynn Nakamoto, Erica Hadlock and Rex Armstrong
Page 4
2012 PUBLIC AFFAIRS COMMITTEE April 5, 2012 Steve Larson, Chair, Portland Hunter Emerick, Vice-Chair, Salem Maureen O’Connor, Portland Public Affairs Committee Legislative Forum Audrey Matsumonji, Gresham Michael Haglund, Portland The Public Affairs Committee of the OSB Board of Governors will be conducting an Tom Kranovich, Lake Oswego open meeting at the OSB Center on Monday, April 23, from 10:00 a.m. to noon to Patrick Ehlers, Portland allow bar groups that are proposing legislation for the 2013 session to explain their Next legislative committee proposals and to allow interested members to comment. Given the number of meetings are scheduled on May proposals, the time for groups to explain the proposals and for others to comment will 21, 22, and 23. The next economic be limited to three minutes. forecast is scheduled for May 22. The meeting is designed to ensure that bar proposals comply with OSB Bylaw Article Court Funding 12, Legislation and Public Policy. See http://www.osbar.org/rulesregs. In particular, the committee will look to ensure that the bar’s legislative package respects divergent Information on how you can opinions within the profession and avoids committing the bar to one side or another advocate for adequate funding for on divisive issues. Oregon’s courts is available at http://courtfunding.homestead.com/ To view the proposals submitted for bar sponsorship, go to the bar’s Web site at Court-Funding.html http://osblip2013.homestead.com/index.html.
The Council on Court Procedures is in its usual process Many Bills Passed in 2012 Are Effective Immediately of developing amendments to the Oregon Rules of Civil Procedure ORS 171.022 provides “Except as otherwise provided in the Act, an Act of the Legislative which ultimately will become Assembly takes effect on January 1 of the year after passage of the Act.” Article IV, §28, effective on January 1, 2014. For of the Oregon Constitution allows the legislature to declare an emergency and to make information about the Council and its acts with such emergency clauses effective upon the governor’s signature. In other work, go to: words, the legislature can put emergency legislation in effect immediately or prescribe an http://legacy.lclark.edu/~ccp/index.ht effective date; the default is for an act to take effect at the beginning of the next year. m. The Council’s next meeting will be in Eugene on April 14. The New Years Day default date was established to add certainty. It replaced a provision establishing the default effective date 90 days after the adjournment of the legislature. A comprehensive Judicial Voter’s Guide will be posted on the OSB In light of unspecified emergency circumstances unbeknownst to most Oregonians, 33 of Website and available to the public the 44 Senate Bills and 46 of the 68 House Bills that passed in 2012 will take effect upon on Tuesday, April 10. As in the past, the governor’s signature—over 70 percent of the total bills passed contained emergency the guide will feature the responses clauses. To make matters more confusing, a number of bills take effect upon passage, but of judicial candidates to a number of do not become operative until substantially later. questions relevant to their qualifications. An example is HB 4035, a bill the Oregon Law Commission (OLC) brought forward to adopt technical changes in Article 9 of the Uniform Commercial Code suggested by the
Uniform Laws Commission. The OLC had the bill introduced in 2012 because it wanted to PUBLIC AFFAIRS DEPARTMENT be sure the bill would be enacted to become effective on July 1, 2013—the date decreed Susan Grabe, by the Uniform Laws Commission for the bill to take effect in all 50 states. The bill contains Public Affairs Director an emergency clause that made it effective upon the governor’s signature, March 5, 2012. David Nebel, It also contains a section prescribing the operative date for the substantive sections of the Public Affairs Legislative Attorney bill: July 1, 2013. Matt Shields, Public Affairs Staff Attorney Somewhat easier to comprehend is the emergency clause included in SB 1552, the Amanda Roeser, Public Affairs Assistant foreclosure mediation bill. The bill will become effective with the governor’s signature, and contains an operative date of 91 days thereafter. The emergency clause allows the Attorney General to adopt rules for implementation prior to the operative date; the operative date delay allows parties to
understand their rights and obligations before the substantive provisions take effect. Implementation prior to January 1, 2013, was important to the bill’s advocates, who want the remedies in the bill available as soon as possible to people facing foreclosure. On the other hand, the governor is taking his time to sign the bill to give the Attorney General as much time as possible to plan implementation.
An explanation for the proliferation of emergency clauses may lie in the fact that the default effective date for bills enacted in the February session is 10 months later—a relatively long time to wait. January 1 works better as a default effective date for bills enacted in the late spring of the longer session odd-numbered year session than it does for those enacted in a short session in February.
The bottom line is that practitioners need to look at the specific provisions of each bill to ascertain when substantive changes take effect. Practitioners may want to take note of the effective and operative dates of the following bills:
HB 4023, relating to guardianships in juvenile dependency proceedings. Effective March 27, 2012. HB 4026, creating three new judges of the Court of Appeals. Operative October 1, 2013. HB 4027, limiting liability for medical providers that provide free charitable service. Effective March 16, 2012. HB 4039, property tax deferral program changes. Effective June 4, 2012. HB 4082, administrative changes to Court Appointed Special Advocate program. Effective upon the governor’s signature. HB 4084, relating to abuse of vulnerable persons. Effective March 27, 2012. HB 4089, annexation of noncontiguous territory. Effective March 16, 2012. HB 4111, relating to sale of real property to enforce liens for local improvements. Effective March 16, 2012. HB 4146, expungement of convictions for underage prostitution. Effective March 5, 2012. HB 4167, relating to violation fines. Effective March 27, 2012. HB 4168, relating to court fees. Effective March 16, 2012. HB 4169, relating to diversion. Effective March 27, 2012. SB 1505, civil commitment for Native Americans. Effective March 5, 2012. SB 1518, relating to public contracting by state contracting agencies. Effective March 16, 2012. SB 1527, relating to strangulation and fines for violations originally charged as misdemeanors. Effective March 27, 2012. SB 1529, property tax amendments. Effective June 4, 2012. SB 1531, Oregon Tax Code connection to federal law. Effective June 4, 2012. SB 1548, advertisements for job openings. Effective March 27, 2012. SB 1575, disorderly conduct near funerals. Effective March 5, 2012.
To view the history and text of all bills filed in 2012, go to http://www.leg.state.or.us/bills_laws/.
Number of Legally Trained Legislators Will Decrease in the Senate; May Increase in the House
Among the changes in the 2013 legislature will be some turnover in the current contingent of legally trained legislators.
At least three of the lawyer-legislators from the 2011 session will not be coming back in 2013. Last fall Suzanne Bonamici resigned from the Senate where she had represented Northwest Portland and Beaverton. She has since been elected to Congress. Rep. Jefferson Smith likewise declined to run for reelection to his East Portland House seat and is instead running for Portland Mayor. Finally, Sen. David Nelson is retiring, having served four 4-year terms representing Northeast Oregon.
None of the other three legally trained legislators in the Senate (Floyd Prozanski (D-Parts of Lane and Douglas Counties), Betsy Johnson (D-Scappoose), and Senate President Peter Courtney (D-Salem/Gervais/Woodburn)) are up for reelection in 2012, but there are nine lawyer-legislators in the House who are running for reelection: Wally Hicks (R- Grants Pass), Dennis Richardson (R-Central Point), Phil Barnhart (D-Central Lane and Linn Counties), Shawn Lindsay (R-Hillsboro), Chris Garrett (D-Lake Oswego), Matt Wand (R-Troutdale), Jason Conger (R-Bend), Mike McLean (R- Powell Butte), and Cliff Bentz (R-Ontario).
Additionally, several lawyers are challenging for House seats in this year’s election:
Republican Jacob Daniels of Creswell is challenging incumbent Rep. Phil Barnhart. If Mr. Daniels wins his primary race, this appears to be the only race this fall that will pit two OSB members against each other.
Page 2
Willamette University Law Professor Kathy Graham is the only Democrat running against incumbent Rep. Vicki Berger (R-Salem). In northeast Oregon, La Grande attorney Brent Smith is one of three Republicans challenging incumbent Rep. Bob Jenson (R-Pendleton) in the Republican Primary.
In the Portland area, three more attorneys are running for seats in the Oregon House. Jennifer Williamson (D) is one of four candidates (3 Democrats and 1 Republican) running to fill the vacant House seat left by Mary Nolan. Former State Representative Brent Barton (D) is seeking a return to the House in the Oregon City and Gladstone district vacated by former House Majority Leader Dave Hunt. Finally Portland attorney Shemia Fagan (D) is challenging Rep. Patrick Sheehan (R-Clackamas) in a newly configured House District 51, which straddles the Multnomah/Clackamas county line and stretches from southeast Portland to Clackamas and Boring.
Page 3
2012 PUBLIC AFFAIRS COMMITTEE April 26, 2012 Steve Larson, Chair, Portland Hunter Emerick, Vice-Chair, Salem Maureen O’Connor, Portland Court Budget Cuts Come Home to Roost Audrey Matsumonji, Gresham Michael Haglund, Portland The legislature’s budget revisions in the 2012 session have resulted in further cuts to court Tom Kranovich, Lake Oswego operations staff, as the Chief Justice predicted. In February, the courts had asked the Patrick Ehlers, Portland legislature to restore 3.5 percent of its budget that had been held back at the end of the 2011 session as a hedge against further downturns in revenue. The legislature restored some of these funds, but not enough to prevent further staff reductions. Next legislative committee meetings are scheduled on May 21, By May 1, a total of 95 full-time court staff positions will be eliminated statewide. In 22, and 23. The next economic Multnomah County alone, 34 of 302 existing positions will be eliminated. These are not forecast is scheduled for May 22. judicial positions, but clerical and support staff—the people who do the filing, take the Agendas for these meetings should payments, assist the judges, and, in short, make the courts work. The public and be posted during the week prior to members of the bar can expect more inconvenience and delay in seeking access to court the meetings at services. http://www.leg.state.or.us/11reg/age nda/webagendas.htm The legislature held out hope that some of these positions could be restored in the near future, setting aside $1.1 million that the courts may request from the Emergency Board in Court Funding mid-May. Information on how you can advocate for adequate funding for Oregon’s courts is available at 2012 May Be a Slow Year for Ballot Measures http://courtfunding.homestead.com/ With less than three months to go before the July 6 deadline to submit signatures in Court-Funding.html support of citizen initiatives, less than 10 initiatives seem viable, and fewer still seem likely
to make the November ballot. A total of 44 initiative petitions were filed, and of those 14
were approved for circulation. Chief petitioners are required each month to submit all A comprehensive Judicial signatures gathered the previous month by paid circulators, and seven such reports were Candidate Voting Guide is posted submitted in April. To make the ballot, proposed constitutional amendments must have on the OSB Web site at 116,284 signatures, and statutory changes must have 87,213. Petitioners always try to http://www.osbar.org/judicial/Judicial submit substantially more signatures than the number required, since many are VotingGuide12.html . As in the past, disqualified. the guide features the responses of judicial candidates to a number of The constitutional proposals that are active and have reported paid signature gathering questions relevant to their through mid-April include the following: qualifications.
Initiative Petition (IP) 5 would prohibit imposition of real estate transfer taxes, except for those that were in effect at the end of 2009. Chief petitioners on this measure reported a total of 112,156 signatures submitted so far. IP 24 would legalize the adult use of marijuana, and had 80,148 signatures in support. (The Secretary of State has fined the chief petitioner of this campaign
for paying circulators by the signature, rather than by the hour.)
PUBLIC AFFAIRS DEPARTMENT IP 11 would require the ballot to contain the full text of proposed initiatives of 100 Susan Grabe, words or less, and IP 12 would change criteria for counting signatures submitted Public Affairs Director in the initiative process. The former reported 22,190 signatures; the latter 20,606. David Nebel, Initiative 12 has not reported additional signatures since February. Public Affairs Legislative Attorney Finally, IP 36 would allow the establishment of privately owned casinos, with a Matt Shields, percentage of the proceeds placed in a special fund. The chief petitioners Public Affairs Staff Attorney reported a total of 20,261 signatures, all gathered in only one month. Amanda Roeser, Public Affairs Assistant
The statutory proposals that reported on paid signature gathering include:
IP 9, which would establish state-licensed stores for selling marijuana (61,973 signatures submitted). IP 15, which would phase out some inheritance taxes and taxes on intra-family property transfers (11,676 signatures). IP 38, a companion measure to IP 36, which would allow operation of a privately owned casino at the former dog racing facility in Wood Village (20,137 signatures).
Another statutory proposal to watch is IP 21, which would mostly prohibit gill-netting and tangle-netting on inland waters of the state, including the Columbia. While its sponsors have so far reported no signatures gathered using paid circulators, that may change soon. In mid-April the Protect Our Salmon Committee reported receipt of a $250,000 donation from Olympia based businessman Norman Brendan—the largest donation from any individual or group in Oregon this year.
Our Oregon, a coalition of labor unions, recently began gathering signatures for IP 35, repealing the corporate “kicker”—a tax rebate for corporations when tax collections come in higher than expected. This group, too, began its effort late, having gotten approval to circulate the petition on April 17.
Worth noting is that the reports of the signatures collected are only of those collected by paid gatherers; signatures collected voluntarily are not reflected. Conceivably, volunteers could be gathering enough signatures to put any measure on the ballot that has been approved for circulation. In addition, the chief petitioners of two constitutional initiatives to restrict abortions—IPs 22 and 25—indicated that they would not be using paid circulators. Estimating the likelihood that these measures will make the ballot would be speculative at best.
The 2011 legislature referred two constitutional amendments to the November ballot. Initiative 401, which originated as HJR 7, would allow the state to respond better to catastrophes. Initiative 402 (HJR 44) would make a number of clarifying changes to the language in the constitution about separation of powers, without changing the substance of those provisions.
Information about all the initiatives is available at the Secretary of State’s Web site: http://oregonvotes.org/pages/irr/index.html
Appellate Judicial Selection Work Group Convenes
The Oregon Law Commission has convened a work group on Appellate Judicial Selection, which met for the first time on April 23. The commission formed the group in response to a proposal from OLC Commissioner and outgoing Chief Justice Paul De Muniz. The Chief Justice described the problem that the work group will address as follows:
Nationally, the increasing politicization of state judicial elections puts at risk judicial independence and erodes public confidence in the impartiality of judicial decisions. More recent judicial election campaigns in Oregon have exemplified the growing trend for judicial elections to become more and more affected by partisan politics. … Many recent studies and surveys show that special interest funding of judicial campaigns and elections in fact is eroding the public’s confidence in the impartiality of judicial decisions.
The work group will review the literature on the problem and possible solutions. Among alternatives for reform are public financing of judicial elections and creation of systems for public response to misleading and destructive criticism of courts, judges and judicial candidates. Another alternative would simply scrap judicial elections altogether, and replace elections with a merit selection system. Typically, in a merit selection system a commission generates a list of appropriate candidates from which the governor makes an appointment. Judges so chosen must often run in retention elections, in which the judge runs on his or her own record, with no opponent. Merit selection systems often feature a system for judicial evaluations.
Almost any measure to reform the judicial selection process in Oregon would have to be a legislative resolution that refers a proposed constitutional amendment to the voters.
The work group is composed of 16 voting members, including the Chief Justice, a broad array of constitutional and appellate practitioners, representatives of several public interest groups and three legislators: Reps. Chris Garrett (D Lake Oswego) and Shawn Lindsay (R Hillsboro), and Sen. Alan Olsen (R Canby). In addition, the roster lists 11 “work group advisors” and 19 “work group interested persons.”
To see the work group proposal, the complete roster and other relevant materials go to http://www.willamette.edu/wucl/centers/olc/groups/2011-2013/js/index.html.
Page 2
While placing these issues before the public is certainly valuable, it remains to be seen how willing the public may be to give up what control it has over arguably the least understood and most remote branch of government.
Correction: Legally Trained Candidate Sharon Meieran
The article on lawyer candidates for the legislature in the April 5 issue of this newsletter overlooked Sharon Meieran, who is running to replace Mary Nolan in House District 36. Ms. Meieran is both a doctor and a lawyer, and is an inactive member of the California Bar. She is in a three-way Democratic primary, and one of her opponents is another lawyer, Jennifer Williamson.
Page 3
2012 PUBLIC AFFAIRS COMMITTEE June 4, 2012 Steve Larson, Chair, Portland Hunter Emerick, Vice-Chair, Salem Maureen O’Connor, Portland June Revenue Forecast: Flat Audrey Matsumonji, Gresham Michael Haglund, Portland State economist Mark McMullen delivered his quarterly economic and revenue Tom Kranovich, Lake Oswego forecast on May 22, reporting that revenue since the March forecast was Patrick Ehlers, Portland basically flat. Although the state took in $115 million more than had been projected in March, most of the income was from one-time legal settlements; Quiz question: Who are currently the these funds were already budgeted in the 2012 session. Taking those receipts out, longest-serving legislators in the House and the Senate? (Answer below) revenue was down by about $22 million from March, out of a biennial general fund budget of $14.9 billion. Next legislative committee meetings are scheduled on September 12, 13, and The forecast was an occasion for neither gloom nor elation. Clearly the state has 14. The next economic forecast is not yet reached anything like a robust recovery from the recession, but the 0.1 currently scheduled for August 29, 2012. Agendas for these meetings percent decline should not require the legislature to make further cuts to balance should be posted during the week prior the budget through the end of the biennium, which ends on June 30, 2013. The to the meetings at Portland metro area continues to rebound from the recession, but rural Oregon http://www.leg.state.or.us/11reg/agenda/ lags well behind. webagendas.htm
OSB legislative proposals are available The state has about $200 million in reserves. Perhaps the best news in the at forecast was the economist’s statement that the risks of another recession have http://osblip2013.homestead.com/index. decreased: the state seems to be on a stable footing. html
Answer: Rep. Bob Jenson(R Pendleton) E Board Allocates Additional Funds to Multnomah has held a House of Representatives seat since the 1997 session, two terms longer County Circuit Court than five members elected in 2000. In the Senate, Sens. Ginny Burdick (D During the 2012 session, the legislature allocated some additional funds to the Portland), Dave Nelson (R Pendleton), Oregon Judicial Department (OJD) to make up part of an $11.5 million shortfall. and Ted Ferrioli (R John Day) were all The shortfall arose from a legislative decision to hold back 3.5 percent of first elected in 1996. Senate President Peter Courtney (D Salem/Woodburn) previously approved budgets to create a supplemental ending balance, as a hedge served in the House from 1981 to 1984 against future downturns in the economy. OJD was invited to return to the and from 1989 through 1997, and in the Emergency Board in May to request an additional $1.08 million allocation for Senate since 1999, making him the operating expenses if necessary. longest-serving legislator by far.
The judicial branch did indeed return in May, requesting the $1.08 million PUBLIC AFFAIRS DEPARTMENT Susan Grabe, special-purpose appropriation, plus an additional $4.7 million to enable trial Public Affairs Director courts statewide to provide adequate trial court services for the remainder of the
David Nebel, biennium. Public Affairs Legislative Attorney
Matt Shields, Public Affairs Staff Attorney While it approved the $1.08 million special-purpose allocation, the E Board
Amanda Roeser, turned down the balance of the request, raising questions about OJD’s Public Affairs Assistant management of its budget and pointing out the precarious nature of the state’s finances. The E Board agreed with OJD that spreading $1.08 million around 27
judicial districts would make little impact on any of them, and agreed that the best use of the funds would be to allocate them to the state’s busiest circuit court in Multnomah County.
Governor Reconvenes Commission on Public Safety
Governor John Kitzhaber has entered an executive order reconvening the Commission on Public Safety. The original commission held four public meetings in 2011 and issued a report to the governor on December 30. The report contained findings and established principles for examining the state’s sentencing guidelines, and suggested a cost-benefit analysis to identify the best return on investment in public safety services. See http://www.oregon.gov/CJC/docs/CPS_report_to_Governor_12_30_11.pdf
The original commission had seven members, all but one of whom have been reappointed: Then-Chief Justice Paul De Muniz Sens. Jackie Winters (R Salem) and Floyd Prozanski (D Parts of Lane and Douglas Counties) Reps. Andy Olson (R Albany) and Chris Garrett (D Lake Oswego) Dick Withnell, a Salem businessman Former Governor Kulongoski served on the original commission but will not be returning. The makeup of the commission was criticized for excluding law enforcement and prosecutors. See http://www.oregonlive.com/opinion/index.ssf/2012/01/oregon_public_safety_panel_wer.html
In reconvening the commission, the Governor reappointed the original members and expanded the membership to 12. New members will include: Corrections Department Director Colette Peters Clackamas County District Attorney John Foote Criminal defense attorney Larry Matasar. Marion County Sheriff Jason Myers. Multnomah County community corrections director Scott Taylor. Yamhill County Circuit Court Judge John Collins
The first meeting of the newly configured commission will be on June 5.
The executive order directs the commission to build on its previous report and to identify “fiscally responsible and sustainable, evidence-based policies and practices that will control corrections growth, hold offenders accountable, and protect public safety.” The commission is to produce a report of recommendations to the Governor before 2013, and the recommendations may include legislative proposals for the 2013 session.
Foreclosure Mediation Program Takes Shape
In the waning hours of the 2012 session, the legislature passed SB 1552, a bill that requires mediation upon demand by homeowners facing nonjudicial foreclosure. The governor signed the bill on April 11, and the operative provisions take effect on July 11.
Since passage, a 16-member work group under the auspices of the Department of Justice has been meeting frequently to work out how the bill will be implemented. An overview of this process was presented to the House Committee on General Government and Consumer Protection on May 21, and is available at http://www.leg.state.or.us/committees/exhib2web/2011interim/HGGCP/Meeting%20Materials/5-21- 2012%20meeting%20materials/All%20Exhibits/4-Foreclosure_Dubanevich5-21-2012.pdf The work group has been reviewing proposed rules, selecting a mediation provider, organizing mediator training programs, and addressing the shortfall in the number of housing counselors available to provide services under the program.
Page 2
In addition, the Departments of Justice and Housing and Community Services presented a proposal to the Emergency Board to fund implementation of the program and foreclosure fraud enforcement. The E Board appropriated $7.6 million of the $9.1 million requested, cutting amounts the Department of Justice requested to replenish its enforcement fund and reducing the amount requested for outreach to distressed homeowners. The E Board granted requested appropriations for training and hiring housing counselors and for direct legal assistance to homeowners in complicated foreclosure cases. It also appropriated $1.8 million to begin the mediation program, which is expected to become self-supporting as it begins to collect fees from the parties.
Lawyer Legislative Candidates Emerge from May Primary
After the dust settled from the May primary, a total of 13 attorneys emerged as candidates for the state House of Representatives, nine of whom are incumbents. This chart shows incumbents in bold.
House Geographic Area Lawyer Candidate Opponent District 3 Grants Pass Wally Hicks (R ) Unopposed 4 Central Point Dennis Richardson (R) Unopposed 11 Lane and Linn County Phil Barnhart (D) Kelly Lovelace (R ) 20 West Salem Kathy Graham (D) Vicki Berger (R ) 30 Hillsboro Shawn Lindsay (R ) Adriana Canas (D) 36 SW Portland Jennifer Williamson (D) Bruce Neal (R ) 38 Lake Oswego Chris Garrett (D) Tom Maginnis (R ) 40 Oregon City Brent Barton (D) Steve Newgard (R ) 49 Troutdale Matt Wand (R ) Chris Gorsek (D) 51 SE Portland Suburbs Shemia Fagan (D) Patrick Sheehan (R ) 54 Bend Jason Conger (R ) Nathan Hovekamp (D) 55 South Central Oregon Mike McLane (R ) John Huddle (D ) 60 SE Oregon Cliff Bentz (R ) Unopposed
Note that no race involves two lawyer candidates running against one another.
No lawyers are running for the 16 open Oregon Senate seats. Returning legally trained Senators include Senate President Peter Courtney (D Salem/Woodburn), Betsy Johnson (D Scappoose), and Floyd Prozanski (D South Lane, North Douglas Counties).
Page 3
2012 PUBLIC AFFAIRS COMMITTEE July 23, 2012 Steve Larson, Chair, Portland Hunter Emerick, Vice-Chair, Salem Maureen O’Connor, Portland Court of Appeals Ruling May Affect Nonjudicial Audrey Matsumonji, Gresham Michael Haglund, Portland Foreclosure Practice Tom Kranovich, Lake Oswego Patrick Ehlers, Portland The Court of Appeals issued an opinion on July 18 that impairs the viability of nonjudicial trust deed foreclosures when the Mortgage Electronic Registration
System (MERS) is designated as the “beneficiary” in the trust deed at issue. Quiz: What are the most common occupations of current legislators? Niday v. GMAC Mortgage, LLC et al, http://www.publications.ojd.state.or.us/Publications/A147430.pdf.
Next legislative committee MERS was created by the mortgage industry in the 1990s to enable the industry meetings are scheduled on to bundle beneficial interests in individual loans and to sell them on the September 12, 13, and 14. The next secondary market without the necessity of recording assignments in county economic forecast is currently records. MERS is often designated as the nominee for the lender and named as scheduled for August 29, 2012. the beneficiary of the trust deed. When a participating lender assigns its interest Agendas for these meetings should to another lender, MERS tracks the assignment, but the assignment is not be posted during the week prior to the meetings at recorded. http://www.leg.state.or.us/11reg/age nda/webagendas.htm The Court of Appeals held that the beneficiary of a trust deed is the person named or otherwise designated in the trust deed as the person to whom the OSB legislative proposals are secured obligation is owed—in the case before the court, the original lender. available at Since there was evidence that the beneficiary had assigned its interest without http://osblip2013.homestead.com/in recording the assignment, summary judgment was inappropriate: ORS 86.735(1) dex.html requires as a predicate to nonjudicial foreclosures that assignments be recorded.
Judge Lynn Nakamoto summarized the import of the holding as follows: Quiz answer: Based on the Oregon Legislative Guide 2011, over 30 are A beneficiary that uses MERS to avoid publicly recording assignments of a small business owners or operators, trust deed cannot avail itself of a non-judicial foreclosure process that 27 describe themselves as requires that very thing—publicly recorded assignments. legislators or are retired. Nine describe themselves as practicing The Court of Appeals decision, however, is far from the last word on the subject. lawyers. The issue before the Court of Appeals has been the subject of much litigation,
and courts have split on the outcome. Chief U.S. District Court Judge Ann Aiken
has formally asked the Oregon Supreme Court to resolve the issue, and the court
has accepted review. A third Oregon case dealing with MERS in the nonjudicial PUBLIC AFFAIRS DEPARTMENT Susan Grabe, foreclosure context is before the Ninth Circuit Court of Appeals. Public Affairs Director
David Nebel, Public Affairs Legislative Attorney And then there’s the legislature. The mortgage industry has asked the legislature
Matt Shields, several times to resolve the MERS issue in its favor, but so far their efforts have Public Affairs Staff Attorney been unsuccessful.
Amanda Roeser, Public Affairs Assistant The Court of Appeals ruling does not affect judicial foreclosures, which will
probably become the foreclosure remedy of choice for the foreseeable future.
New Candidates Chosen in House Races
Republican precinct officials in House District 26 have chosen lawyer John Davis to replace Rep. Matt Wingard (R Wilsonville) as the Republican candidate for the district in the November general election. Rep. Wingard won the primary in May, but dropped his candidacy when a former aide accused him of sexual harassment. Wingard denied the charges.
Mr. Davis lives in Wilsonville and has a business, real estate, and estate planning practice with the McEwen Gisvold firm in Portland. He is a graduate of Willamette Law School and an Oregon State Bar member admitted in 2011. He will face Democrat Wynne Wakkila in the general election.
HD 26 encompasses Wilsonville, Sherwood, and areas of mostly rural and suburban Washington County.
In adjoining House District 30, which encompasses North Plains and parts of Hillsboro, the Democrats have nominated a new candidate to face Republican Rep. Shawn Lindsay in his bid for reelection. Rep. Lindsay is a lawyer with the Portland firm of Lane Powell. His original Democratic opponent, Adrianna Canas, dropped her candidacy due to a bankruptcy.
On July 21, Democrats elected Joseph Gallegos of Hillsboro to replace Canas and run against Rep. Lindsay. Gallegos defeated David Robinson, a Navy reserve commander. Gallegos is an Air Force veteran who owns a consulting firm and taught social policy at the University of Portland for more than 20 years.
Republicans have a four-point registration advantage in HD 26; Democrats have a seven-point advantage in HD 30.
Josephine and Other Timber Dependent Counties Face Severe Public Safety Cuts
The May primary featured a number of consequential local measures. Perhaps most intriguing was a local law enforcement tax levy in Josephine County, which voters rejected 57 to 43 percent.
As a result, Josephine County has been forced to make significant cuts to many parts of the local public safety system. The Sheriff’s Office has been forced to lay off the majority of its deputies, and the county jail has released most nonfederal inmates. Additionally, the District Attorney’s office will likely be forced to lay off several Deputy District Attorneys.
After the levy failure, the county only has 30 jail beds for nonfederal inmates, most of which must be used to hold inmates charged with very serious crimes. The county is unable to sentence misdemeanor defendants to jail time, due to the lack of available bed space. Inmates already released are likely to serve the remainder of their sentences through work release.
The sheriff’s office, which is responsible for all of the county outside of the City of Grants Pass, has only six remaining deputies (out of an original 25)—three of the remaining six are under contract with other government entities for specific purposes.
Josephine is not the only Oregon county to suffer cuts to its local public safety budget. In early July Lane County released nearly 100 inmates, including some charged with very serious crimes. The county also eliminated about 65 positions within the sheriff’s department.
Both counties have received federal money under the Secure Rural Schools Act in recent years to make up for diminished timber revenue that has resulted from an end to much timber harvesting on federal land. This
Page 2
funding has been threatened in the last several federal budgets, and appeared likely to be eliminated from the 2013 federal budget – prompting counties such as Josephine to seek new revenue.
The prospects for an additional year of federal funding have recently improved, but the long term outlook is unchanged. No one has proposed a new local plan to raise additional revenue, and the future of the public safety system in Josephine County is uncertain at best.
While the legislature could consider propping up the system with state resources, legislators may have little inclination to do so, given that Josephine County’s property tax rate is the lowest of Oregon’s 36 counties— 58 cents per $1,000. Another consideration for lawmakers is precedential: If they help Josephine County, what’s to prevent other counties from seeking similar assistance?
The circumstances in Josephine County raise fundamental questions: Is a county required to maintain some minimal level of service regardless of funding constraints? If so, is Josephine County meeting that obligation?
ORS 203.095 permits the governor or a county governing body to declare a “public safety services emergency” if a county’s ability to provide a minimally adequate level of public safety services has been compromised. In such circumstances, the governor may appoint a fiscal control board for the county. However, the fiscal control board is limited by statute to providing recommendations and technical assistance to a county in distress, and is not authorized to impose any solution on the county. Statutes do not specify what would happen if a county was unable to take action to restore adequate services.
Other Oregon counties are considering measures to raise revenue to support public safety services, including Curry County, which may present a sales tax proposal to voters this fall.
Tort Claims Act Damages Adjusted
In 2009, the legislature amended the Oregon Tort Claims Act to increase the amount of damages recoverable against state and local governments. Part of the bill directed the Office of the State Court Administrator (OSCA) to adjust the damage limits upward over the ensuing years.
The OSCA has followed the methodology based on the changes in cost of living identified in ORS 30.273(3) to calculate the annual adjustment to the limitations on liability of public bodies for property damage or destruction. Based on these calculations, the limitations are adjusted to $104,300 for any single claimant and $521,400 for all claimants. These new limitations became effective on July 1, 2012, and apply to all causes of action arising on or after July 1, 2012, and before July 1, 2013.
As a reminder, ORS 30.271 and 30.272 establish the annual adjustments to the limitations on liability of public bodies for personal injury and death. Pursuant to ORS 30.271(2) and (3), the limitations applicable to the state for personal injury and death will be adjusted to $1,800,000 for any single claimant and $3,600,000 for all claimants. Pursuant to ORS 30.272(2) and (3), the limitations applicable to local public bodies for personal injury and death will be adjusted to $600,000 for any single claimant and $1,200,000 for all claimants. These new limitations became effective on July 1, 2012, and apply to all causes of action arising on or after July 1, 2012, and before July 1, 2013.
A list of past and current limitations on liability of public bodies can be found on the Oregon Judicial Department Web site at: http://courts.oregon.gov/OJD/courts/circuit/tort_claims_act.page?
Work Group on Patient Safety and Defensive Medicine
Included in the comprehensive health care bill passed in the legislative session 2012 (SB 1580) was the creation of a work group on Patient Safety and Defensive Medicine. The group has eight members, four of Page 3
whom are bipartisan nonvoting legislators appointed by the presiding officers of both chambers. The four voting members are gubernatorial appointments, and must include a trial lawyer and a physician. The governor also selects the chair and vice-chair.
The work group is to submit recommended legislation to the legislature by October 1, and the legislation is to address patient safety, effective compensation of injured patients, and reduction of collateral costs associated with the medical liability system, including insurance administration, litigation, and defensive medicine.
The work group has been appointed and meetings scheduled. The chair is Eugene trial lawyer Derek Johnson and the vice-chair is Dr. William “Bud” Pierce. The two additional voting members are Larry Mullins, a health care system executive, and public member Vicki Nakashima. Nonvoting legislative members are Sen. Floyd Prozanski (D Parts of Lane and Douglas Counties), Sen. Jeff Kruse (R Roseburg), Rep. Jason Conger (R Bend), and Rep. Chris Garrett (D Lake Oswego).
Meetings are scheduled for August 2 in Portland, and for August 15 and September 5 at locations to be determined. For more specific information, go to: http://www.primarycarehome.oregon.gov/oha/OHPR/Pages/PSDM/index.aspx.
Page 4
August 29, 2012 OSB Public Affairs Newsletter for Bar Leaders
2012 PUBLIC AFFAIRS COMMITTEE
Steve Larson, Chair, Portland Hunter Emerick, Vice-Chair, Salem Maureen O’Connor, Portland Audrey Matsumonji, Gresham Michael Haglund, Portland Tom Kranovich, Lake Oswego Patrick Ehlers, Portland Capitol Insider
The OSB House of Dele- gates meets at the OSB Work Group on Appellate Judicial Selection Considers Center on Friday, Novem- ber 2 at 10:00 a.m. The Appointment System deadline for submitting HOD Resolutions is Sep- tember 18. For more infor- lative confirmation, and gubernatorial appoint- mation, see http:// ment from a slate developed by an appellate www.osbar.org/leadership/ The Oregon Law Commission Work Group judicial commission. In some states, sitting hod/ on Appellate Judicial Selection has met four judges run in retention elections in which voters rd times since April 23 , and continues to consider are asked to vote whether to retain the judge for changes in the method by which appellate judges another term. Next legislative committee are appointed. During his tenure as chief justice, meetings are scheduled on The Oregon system has resulted in the appoint- Justice Paul De Muniz suggested the formation September 12, 13 and 14. ment and election of competent, impartial appel- of the work group, and he acts as its chair. Jus- Agendas for these meetings late judges. Elections have been characterized by tice De Muniz was motivated to form the group, should be posted during the low-key campaigns and high undervotes: many anticipating that at some time in the future Ore- week prior to the meetings Oregon voters simply do not participate, likely at http:// gon judicial elections are likely to change, with because of their lack of familiarity with the of- www.leg.state.or.us/11reg/ big money contributions and independent expen- agenda/webagendas.htm fice and the candidates. This could change with ditures from special-interest groups. In Justice one hotly contested appellate judicial election, De Muniz’s view, nothing less than the fairness featuring big money, negative ads, independent and impartiality of the state’s highest courts are expenditures, and other electioneering activities The deadline to register to at stake. vote in the 2012 general associated more with executive and legislative election is October 16. See Under current Oregon law, most appellate positions than seats on the bench. https:// judges come to the bench through a gubernato- Justice De Muniz and Supreme Court staff attor- secure.sos.state.or.us/ rial appointment process precipitated by the mid ney Phil Schradle have proposed a judicial- orestar/vr/register.do? -term resignation of a sitting judge. The gover- selection system with the following features: lang=eng&source=SOS nor appoints a person to fill the position until the next general election, when the appointee may The governor appoints judges for 10-year run for election as the incumbent. Most such OSB legislative proposals terms from a slate provided by a judicial nomi- are available at elections are uncontested. nating and retention commission modeled along the lines of the Oregon Law Commission. http:// When a judge indicates that he or she will not run again at the end of a term, a nonpartisan osblip2013.homestead.com/ A judge wishing to serve another 10-year term index.html election is held at the primary election and, if no would apply to the commission for reappoint- candidate receives a majority, a run-off between ment. the top two occurs at the November general PUBLIC AFFAIRS DEPARTMENT election. Such is the case with the election to The commission would operate a judicial per-
Susan Grabe, replace Justice De Muniz, who is retiring at the formance-evaluation system, and would use the Public Affairs Director end of 2012. system to determine whether reappointment is David Nebel, In Oregon, a judicial term in both appellate appropriate. Public Affairs Legislative Attorney courts and trial courts is six years. No state has adopted such a system. Generally, Matt Shields, state systems using judicial commissions feature Public Affairs Staff Attorney A number of different systems are used in other Amanda Roeser, states, including both nonpartisan and partisan (Continued on page 2) Public Affairs Assistant elections, gubernatorial appointment with legis-
August 29, 2012 Capitol Insider
(Continued from page 1) requiring the recusal of a judge who either accepts more than retention elections. Justice De specified thresholds from special- Muniz and Mr. Schradle have re- interest groups or makes state- jected such a system in light of ments suggesting a predisposition high-profile retention elections in to adopt a rule of law in favor of Iowa in 2010, in which opponents any particular party in a case be- of gay marriage spent heavily and fore the judge. were successful in unseating three The work group will search for a Supreme Court justices. consensus proposal to forward to The work group is also discussing the Law Commission and then to the related matter of recusal rules. the 2013 legislative session. Commissioner John DiLorezo, Jr., suggested that the Commission consider proposing a set of rules
Patient Safety and Defensive Medicine Workgroup Proposes Disclosure and Offer Program Formed under SB 1580, §17 (2012), the patient of the proposed resolution. If both replace the defensiveness and secrecy of Patient Safety and Defensive Medicine parties are not satisfied with the proposed the current environment with openness and Workgroup has had its first two of three resolution, the parties move on to the next frank discussion. scheduled meetings. According to its char- step—mediation. At the workgroup meeting on August 15, ter, the workgroup is guided by the follow- 2. Mediation. The mediation process representatives of the Oregon Liability ing principles: would begin either when the patient de- Reform Coalition testified that true reform Improve the practice environment to clines the provider’s offer of compensation would need to include various changes to allow physicians to learn from medical or when the provider determines that no the litigation phase of the process as well, errors and improve patient safety; offer of compensation is required. The including broader discovery and the reduc- patient and the provider may agree to tion of damages through consideration of More effectively compensate individuals waive mediation. Participants in the me- compensation from collateral sources. who are injured as a result of medical er- diation process may include the patient, the The workgroup is scheduled to meet once patient’s family and legal representative, rors; and more, on September 5, to draft a final rec- the health care provider and its insurer, and ommendation to submit to the legislature Reduce collateral costs associated with any lien holder claiming an interest in the for consideration in 2013. To view the the medical liability system, including dispute. costs associated with insurance administra- materials and work product of the work- tion, litigation, and defensive medicine. 3. Litigation. If the patient and the provider group, go to
1. Early Discussion and Resolution. The The proposal is based on a number of patient or provider begins the early discus- “disclosure and offer” programs voluntar- sion by filing a notice of a “serious event.” ily in effect in various health systems The heart of this process is for the parties around the country. No state has attempted to engage confidentially in open discus- to apply the model to all health care deliv- sions about the circumstances that led to ery systems within its borders, and the the event. In appropriate circumstances, proposal would require many providers to the provider may offer an apology. The adopt a new culture in dealing with medi- provider determines whether to offer com- cal malpractice. For it to be effective, par- pensation to the patient and notifies the ticipants in the new system would need to
2
August 29, 2012 Capitol Insider
Oregonians to Vote on Seven Citizen Initiatives in November
The Secretary of State’s office has determined that the sponsors The approved citizen initiatives are as follows: of seven citizen initiatives submitted enough signatures to place the measures on the November 2012 general election ballot. Al- A constitutional amendment backed by the Oregon Association though several have fiscal consequences, none of them directly of Realtors to ban new real state taxes and fees (Measure 79). affects the operation of the justice system. A measure allowing the commercial cultivation and sale of marijuana; the chief petitioner, Paul Stanford, owns medical marijuana clinics (Measure 80).
A measure banning commercial gill-net fishing on the lower Columbia River, backed by the Coastal Conservation Associa- tion, a sport fishing advocacy group (Measure 81).
A constitutional amendment allowing nontribal casinos (Measure 82) and another measure allowing a casino at the for- mer greyhound track in Wood Village (Measure 83), brought forward by two Lake Oswego entrepreneurs, Bruce Studer and Matthew Rossman.
A measure that phases out Oregon’s inheritance tax over the next four years; Common Sense for Oregon, a group formed by long-time activist Kevin Mannix, brought forward this measure The seven citizen initiatives join two legislative referrals on the (Measure 84). ballot, one authorizing the government to take emergency meas- ures in a catastrophic disaster (Measure 77), and another making A measure abolishing the corporate kicker and dedicating the technical changes in the Constitution (Measure 78). money to schools, backed by the public employee unions (Measure 85).
September Revenue Forecast: Revenue Projections Up a Bit for the Remainder of the Biennium
The quarterly Oregon Economic and Revenue Forecast presented addressed in the 2012 session. Lottery income increased slightly on August 29, 2012 (the “September forecast”) delivered rela- to $1.1 billion. If the forecast proves accurate, the state should tively positive news to Oregonians, at least in the short run. Gen- have a $193 million ending balance, $137 million on which eral fund revenues were projected to be $13.9 billion for the 2011 would be transferred to the rainy day fund. All this was good -13 biennium, an increase of $98 million from the June forecast. news to legislators and policy makers inured to forecasts of de- The revenue forecast is still $92 million below the forecast on clining revenues. which the biennial budget was based, but this shortfall has been
3
October 3, 2012 OSB Public Affairs Newsletter for Bar Leaders
2012 PUBLIC AFFAIRS COMMITTEE
Steve Larson, Chair, Portland Hunter Emerick, Vice-Chair, Salem Maureen O’Connor, Portland Audrey Matsumonji, Gresham Michael Haglund, Portland Tom Kranovich, Lake Oswego Patrick Ehlers, Portland Capitol Insider
Free Full Day CLE: Budget Austerity: Get Used to It Dismantling the Silos…. Mental Health Care and the Criminal Justice System he September Economic and Revenue Caution in spending state reserves was evident will be held on Wednesday, Forecast contained some relatively good in the actions of the legislative Emergency October 17 in the Multnomah T news about the projected state revenue Board, which met during legislative committee County Board Room, 501 for the biennium that ends on June 30, 2013: meeting days on September 12-14. The E-Board S.E. Hawthorne, Portland, general fund revenue was projected to be $98 is the legislative body empowered to appropriate beginning at 9 a.m. Space is million more than what was forecast in June. funds while the legislature in not in session. The limited. To register, e-mail your name and phone number The $14.99 billion general fund and lottery fore- 2012 legislature set aside $27 million in a fund to [email protected] cast was still $92 million less than the figure on that the E-Board can tap for unforeseen needs, which the biennial budget was based, but this and $82 million the E-Board can authorize to be Next legislative committee shortfall was addressed during the 2012 session. spent for specific purposes. After the E-Board’s meetings are scheduled on May and September appropriations, the emer- December 10-12, 2012. The next economic forecast is The forecast was not, however, unalloyed good gency fund still contained $25.6 million and the currently scheduled for No- news. Projected general fund and lottery reve- special purpose funds had been reduced to $68.8 vember 20, 2012. nues for the next biennium (July 1, 2013- June million. The E-Board meets once more in De- 30, 2015) have plunged from $17.37 billion cember, and any funds remaining after that Judicial Candidate Voting forecast in May, 2011 to $16.56 billion forecast meeting revert to the general fund for the 2013 Guide is available at http:// in September 2012. Although this 10.5 percent legislature to use to balance the 2011-’13 budget www.osbar.org/judicial/ JudicialVotingGuide12.html. increase over the projections for the current bi- or rollover to 2013-’15. ennium seems substantial, the extra funds will The deadline to register to likely be consumed to maintain current pro- Oregonians can look forward to continued aus- vote in the 2012 general elec- grams and obligations in expenditures like terity and hard-nosed legislative budget over- tion is October 16. See higher state contributions to employee health sight for the next biennium and beyond. Signifi- https://secure.sos.state.or.us/ orestar/vr/register.do? insurance and pensions, and higher fuel and util- cant expansions in general fund revenues are not lang=eng&source=SOS ity costs. The state economists attribute the slow in the offing, and the severely reduced budgets projected growth rates over the next ten years to for state services unfortunately appear to be the OSB legislative proposals the impact of demographic changes. “new normal”. are available at http:// osblip2013.homestead.com/ index.html Oregon Increasingly Looks to Evidence Based Practices in Public Safety The Interim House and Senate Judiciary Com- Families, and the parts of the Oregon Health PUBLIC AFFAIRS DEPARTMENT mittees devoted most of their joint meeting on Authority that deal with mental health and ad- Susan Grabe, September 12 to reports on “evidence-based diction issues to spend at least 75 percent of Public Affairs Director practices” – cost effective programs that incor- state moneys that they receive for evidence- David Nebel, porate significant and relevant practices based based programs. The legislature passed the bill Public Affairs Legislative Attorney on scientifically based research. The 2003 legis- in 2003 after receiving evidence that certain Matt Shields, lature passed a bill, now codified as ORS corrections programs – boot camps, for example Public Affairs Staff Attorney 182.515 and 182.525, that mandated the Depart- – simply did not work. Amanda Roeser, Public Affairs Assistant ment of Corrections, the Oregon Youth Author- ity, the State Commission on Children and (Continued on page 2)
October 3, 2012 Capitol Insider
(Continued from page 1) Evidence-based practice has also arisen in the context of sentenc- ing reform and corrections. The Governor appointed the Com- The evidence-based practice model has proven effective in the mission on Public Safety to “identify fiscally responsible and agencies that use it, and the Judiciary Committees heard testi- sustainable, evidence-based policies and practices that will con- mony from several witnesses who pointed out the relevance of trol corrections growth, hold offenders accountable, and protect the approach to basic local police practices. To a great extent, the public safety”. The Commission has received voluminous infor- public safety system is becoming more evidence-based all the mation from the Pew Center on the States about Oregon’s crimi- time, with parole and probation decisions based in part on risk nal justice system, and will be proposing evidence-based reforms ratings for recidivism. to the 2013 legislature.
Commission on Public Safety Begins Policy Debate
The Commission on Public Safety has moved into a new phase. percentage of prison inmates incarcerated for violent crimes, and Having collected information about Oregon’s sentencing and is in the bottom half of states in percentages of inmates incarcer- corrections policies, the Commission is considering policy op- ated for property crimes. He also has pointed out a pattern in the tions on which to base forecasts of future prison populations: the forecasts have consis- legislative proposals it tently overstated prison population growth. may make to the 2013 legislature. While Mr. Foote has been an effective advocate, other commis- sion members appear to agree with the Governor’s overarching Governor John Kitzhaber point: Oregon needs to put its public safety system on a more appeared before the sustainable path. With respect to risk assessment, most commis- Commission Chaired by sioners agree that the tool is a useful if limited resource. Commis- Justice Paul De Muniz at sion Chair Justice Paul De Muniz summarized the commission’s its meeting on Septem- overall direction in a recent guest column: ber 24 and emphasized Commission Chair Justice Paul De Muniz the state’s need for a Oregon has always prided itself on running a balanced sustainable criminal jus- system. This means focusing prison space on the most tice system that holds offenders accountable. The Governor said violent, chronic and high-risk offenders, while ensuring that without a change to the system, the state will have to invest that law enforcement and agencies that supervise of- an additional $600 million in prison construction to accommodate fenders in the community have the resources they need 2,000 more prisoners anticipated over the next 10 years. He urged to prevent crime in the first place. But as the facts dem- adoption of evidence based practices in sentencing, and said that onstrate, our prison population is growing, primarily he does not support early release of violent offenders, “period”. with lower-risk drug and property offenders, and this growth is threatening our balanced portfolio at the ex- The Governor’s statement about early release refers to issues that pense of prevention, supervision and rehabilitation. have arisen in the Commission’s meetings, brought forward by commission member John Foote, the Clackamas County District We can and must do better. If we use research, sound Attorney. Mr. Foote has expressed skepticism about data indicat- data and good judgment to put us back on track, we can ing that 26 percent of offenders admitted to prison in 2011 were achieve more public safety at less taxpayer expense. “low risk”, and backed up his skepticism with a survey of his http://www.oregonlive.com/opinion/index.ssf/2012/09/ district attorney colleagues showing that a substantial number of oregon_commission_on_public_sa.html the offenders deemed “low risk” were dangerous offenders like the Bruce Turnidge, who was convicted of bombing a bank in The basic point of disagreement, then, is the extent to which the Woodburn in 2010. The risk level was determined using an as- state’s public safety system is currently off track. sessment tool to gauge the likelihood of recidivism (defined as conviction of an additional felony within three years). Mr. Foote The Commission will meet next in Bend on October 11. The full and other district attorneys are concerned that this assessment commission will break out into two subcommittees, one dealing tool will be misused as justification for the release of dangerous with sentencing and the other with corrections. offenders and more broadly as a basis for sentencing and correc- tions policy.
Mr. Foote has questioned whether changes from current practices are warranted. He points out that Oregon leads the country in the
2
October 3, 2012 Capitol Insider
Four Lawyers Seek House Seats
Four attorneys who are not currently in the legislature are running for the Oregon House of Representatives in this election cycle. Shemia Fagan (D) is running in House District 51 (East Portland, North Clackamas County). Admitted to the bar in 2009, Ms. Fa- John Davis (R) was nominated to run in House District 26 gan graduated from Lewis & Clark Law School and is an associ- (Wilsonville, Sherwood) when Rep. Matt Wingard withdrew his ate in the Ater Wynne firm in Portland. Her practice focuses on candidacy in July. He attended Willamette Law School and has business litigation ranging from commercial and insurance issues been an OSB member since 2011. An associate in the McEwen to employment defense. She grew up in Eastern Oregon, and has Gisvold firm in Portland, Mr. Davis describes his practice as as- served on the David Douglas School Board. Her opponent is in- sisting “entrepreneurs, nonprofits, farmers, and businesses in cumbent Rep. Patrick Sheehan (R). complex and multi-state transactions involving business law, finance, real estate, and estate planning”. He faces Democrat All of these lawyer candidates enjoy voter registration advantages Wynne Wakkila in the general election. within their districts. Given both electoral history and favorable registration, Mr. Davis and Ms. Williamson appear to be headed Jennifer Williamson (D) is seeking to replace Rep. Mary Nolan for election. The contests in which Ms. Fagan and Mr. Barton are (D) in House District 36, which encompasses SW Portland and involved promise to be close. some of its suburbs. Ms. Williamson joined the bar in 2001 after graduating from Willamette Law School, and practiced in Port- land at Davis Wright Tremaine. She has served as assistant to the President of Portland State University, worked in the executive team at the Oregon Department of Education, and lobbied on behalf of various clients in the Oregon legislature. She currently works for an international education research nonprofit. Her op- ponent is Bruce Neal (R).
Former Rep. Brent Barton (D) seeks to return to the legislature representing House District 40 (Oregon City, Gladstone), the seat currently held by Dave Hunt (D), who elected not to run again. Mr. Barton represented House District 51 in the 2009 session, but was unsuccessful in his bid for election to Senate District 26 in 2010. Mr. Barton graduated from Harvard Law School and has been an OSB member since 2006. He currently practices with the Barton Law Firm in Newport. He faces Republican Steve New- gard in the general election. Oregon eCourt Implementation Moving Ahead
Representatives of the Oregon Judicial there were no major problems with the ond quarter of 2014. Department (OJD) testified before a legis- Yamhill County installation, and that les- lative committee in September that imple- sons learned in Yamhill county would be From the lawyer’s perspective, the main mentation of Oregon eCourt is still on applied in future installations. While the change will be the ability to file most court schedule with relatively few changes. OJD has had to spend time and money documents online. Once fully implemented training judges and staff on the new sys- the system will permit lawyers and mem- In June the Yamhill County Circuit Court tem, this change will ultimately generate bers of the public to access case files elec- became the first in the state to implement savings by eliminating the processing of tronically, eliminating the need to go to the the Odyssey system, which will replace most paper documents. courthouse to retrieve documents. Any courts’ paper case files with electronic information that a lawyer would currently ones for most cases. With limited excep- Oregon’s other 26 judicial districts will be access through OJIN will ultimately be tions, the Odyssey system is being used for implementing the system at scheduled retrievable through the Oregon eCourt all case types in Yamhill County, and will times between now and June 2016. Next system once all counties are up and run- be used for all case types as it is rolled out up are Crook, Jefferson, and Linn Coun- ning. in each new county. This is a minor change ties, which are scheduled to go live with from previous implementation plans. the new system in December of this year. One important part of the Oregon eCourt The current schedule anticipates Mult- system that is currently running statewide The OJD reported to the legislature that nomah County coming online in the sec- is the new ePay system. For the first time,
3
October 3, 2012 Capitol Insider
Oregonians who owe money to the OJD can make payments online. This applies to any debts owed from criminal or civil cases. Previously, individuals seeking to make payments either had to do so in person, by mail, or over the phone – all of which require more staff time than online payments. OJD reports that so far over 40,000 individual payments have been made with the new system.
Council on Court Procedures Posts Proposed Changes to ORCP for Comment
The Council on Court Procedures has posted for comment pro- ney fees. To look at the proposed language and to comment on posed changes to the Oregon Rules of Civil Procedure. The the changes, go to http://counciloncourtprocedures.org. The changes reflect the work of the Council since September, 2011. Council welcomes comments by the bench, bar, and public. For Proposed changes include amendments to the rules governing full consideration, comments to the proposed drafts should be signing pleadings, affirmative defenses, appointments of guardi- received by the Council by November 15, 2012. The promulga- ans ad litem, depositions of organizations, discovery sanctions, tion meeting is open to the public and will take place on Decem- subpoenas for personally identifiable health information, alterna- ber 1, 2012, at 9:30 a.m. at the Oregon State Bar offices. tive jurors, exceptions to jury instructions, and claims for attor-
4
November 1, 2012 OSB Public Affairs Newsletter for Bar Leaders
2012 PUBLIC AFFAIRS COMMITTEE
Steve Larson, Chair, Portland Hunter Emerick, Vice-Chair, Salem Maureen O’Connor, Portland Audrey Matsumonji, Gresham Michael Haglund, Portland Tom Kranovich, Lake Oswego Patrick Ehlers, Portland Capitol Insider
Next legislative committee Court Revenue Structure Committee Reviews Results of 2011 meetings are scheduled on Violation Fine Legislation December 10-12, 2012. The next economic forecast is currently scheduled for No- The 2011 Legislature passed two comprehensive they impose are relatively modest, and the vember 20, 2012. bills dealing with court fees, fines, and revenues. amounts of the fines that are actually collected HB 2710 addressed civil litigation fees and HB are often only a portion of the amounts owing. OSB legislative proposals are available at 2712 revamped criminal fines. Both bills altered The $60 priority payment is often all that is col- http:// the way that the resulting revenues would be lected. Collections are down from previous lev- osblip2013.homestead.com/ distributed. A provision in the civil fee bill es- els since HB 2712 took effect on January 1, index.html tablished the Joint Committee on State Courts 2012, also because the fine amounts have been Revenue Structure, which is to conduct a review reduced and the number of citations has not in- Snapshot: of state court fees and fines and to report back to creased as expected—in part due to reductions in Oregon’s Population in 2010: the 2013 Legislature. The joint committee met local law enforcement staffing. 3.838 million for the third time on October 18th, and consid- Registered voters: ered, among other things, the effects of the 2.069 million changes to the criminal fine statutes, which
Voted in 2010: mainly affect fines for traffic offenses. 1.487 million (71.9%)
18 or over in 2010: The goals of HB 2712 were to simplify the fine 2.976 million structure, to improve transparency by setting
Percent of those 18 and over forth the structure in the statute, to maintain the who voted: level of revenue from violation fines, and to 49.9% eliminate fines dedicated to specific purposes.
Voter turnout percentage in 2008: HB 2712 eliminated various state and county 85.7% assessments that had been added to the fine structure over the years to fund various services. Ballot drop-off locations, are The bill replaced those assessments with a $60 available here: www.sos.state.or.us/dropbox/ priority payment to the Criminal Fine Account. The criminal fine system is important to counties # $42 goes to support state programs previously and justice courts as well as to cities and munici- funded by state assessments and the remaining pal courts as a significant locally generated $18 is sent back to the counties to support the source of revenue. Representatives of these local programs that had been supported by the county governments and courts testified at the hearing assessment. The violation fine structure was that the reduction in income from violation fines designed to reduce individual fines. The fine threatens the continued viability of local courts PUBLIC AFFAIRS DEPARTMENT reductions were based on the premise that police and law enforcement agencies. They also
Susan Grabe, were more likely to write more tickets if the pointed out the important role these courts play Public Affairs Director fines on each ticket were less onerous to the in Oregon’s justice system. David Nebel, violator. Public Affairs Legislative Attorney How the legislature will address the declining Matt Shields, Although the bill was designed to be revenue revenues in local courts in 2013 is anyone’s Public Affairs Staff Attorney neutral to counties, both municipal and justice guess, but some action seems likely. Amanda Roeser, court representatives testified that their revenues Public Affairs Assistant have fallen sharply. They point out that the fines
November 1, 2012 Capitol Insider
Sequestration Looms over Justice System
In August 2011, Congress passed the Budget Control Act (BCA) severely cut into the budgets for U.S. Attorneys, U.S. Defenders, to resolve issues arising from a difficult debate about increasing and the FBI. the nation’s debt ceiling. Included in the BCA was the creation of a bipartisan bicameral “super committee” to develop a plan to cut The grantee of the national Legal Services Corporation (LSC), spending by $1.2 trillion over the next 10 years. If the super com- Legal Aid Services of Oregon (LASO), can expect a sequestra- mittee somehow failed in this task, then automatic spending cuts tion cut on the order of $330,000—roughly the budget of a small of $109 billion for 2013 would take effect on January 2, 2013. rural office. This cut follows two years of funding cuts that have This “sequestration” balances cuts to the military and discretion- already caused a 25 percent reduction of statewide funding for ary domestic programs, and exempts most spending on entitle- legal aid and a 20 percent reduction in staff. The program has ments like Social Security. been planning for the possibility of sequestration for some time, as part of a statewide planning process involving the three other The super committee, to the surprise of very few, failed to agree legal aid programs in the state, the bar, and the Campaign for on a plan, and unless an agreement is reached after the election, Equal Justice. The planning committee recommended closure of sequestration will go into effect at the beginning of 2013. Com- LASO’s small office in Eugene in the event of sequestration. pounding the uncertainties of the lame-duck period between the (Lane County Legal Aid and Advocacy Center, a separate pro- election and the beginning of the year are the expirations of the gram from LASO, also provides legal services to low-income Bush-era tax cuts, the payroll tax cut, and many other tax breaks Oregonians in Lane County, but is not subject to sequestration on December 31. The combination of all of these events is known since it receives no LSC funds. It is, however, facing reductions as “the fiscal cliff.” in other sources of funds in 2013.) As it has happened, staff in the LASO Eugene office have declined through attrition and those How would sequestration affect Oregon’s justice system? positions have been left vacant. Although services will therefore not be eliminated precipitously, low-income people in Lane The exact effects on Oregon’s federal courts are unknown, but County will have less access to legal services. Even if sequestra- the cut to the deferral courts nationally would be roughly 8.2 per- tion does not come to pass, LASO’s federal funding level for cent of the budget. This would necessitate the furlough of all 2013 remains uncertain. court staff for more than four weeks, or layoffs of more than 4,400, or some combination of the two. Court security would be Sequestration can be avoided only if Congress passes another reduced, and without money to pay jurors, civil jury trials would budget deal that achieves $1.2 trillion in deficit reduction over be suspended for at least six weeks. Sequestration would also the next 10 years.
OSB Bestows Award of Merit on Dave Barrows
Long time lobbyist Dave Barrows has been awarded the 2012 Oregon State Bar Award of Merit, the bar’s highest award. Mr. Barrows has been a member of the bar since 1961 when he graduated from Willamette Law School. He began his legislative activities before that. He has had personal relationships with most, if not all, the political leadership of the state since then, and has mentored legislators and lobbyists alike. No one has been more influen- tial in the creation of a professional lobby in Salem: he literally wrote the “book” — actu- ally a pamphlet—about how to lobby effectively and appropriately in Salem. (The “Oregon Lobbyist’s Briefcase Companion” is available for free at
The bar’s annual Awards Luncheon at which Mr. Barrows and other honorees will receive their awards will be held on November 29. To see all OSB award recipients and to register for the luncheon, go to
Dave Barrows recipient of the 2012 Oregon State Bar Award of Merit.
2
November 26, 2012 OSB Public Affairs Newsletter for Bar Leaders
2012 PUBLIC AFFAIRS COMMITTEE
Steve Larson, Chair, Portland Hunter Emerick, Vice-Chair, Salem Maureen O’Connor, Portland Audrey Matsumonji, Gresham Michael Haglund, Portland Tom Kranovich, Lake Oswego Patrick Ehlers, Portland Capitol Insider
December Revenue Forecast: Continued Slow Growth
The December Economic and Revenue Forecast sion. Total lottery and general fund revenues for Next legislative commit- released on November 20 begins with this: “As the current biennium are projected to be $15.023 tee meetings are sched- 2012 winds down, Oregon’s economic expan- billion. uled on December 10-12, sion persists, but remains stuck in a low gear.” 2012. The forecast predicts slow but steady growth, The state economist also increased the revenue but raises concerns over the potential effects of projection for the 2013–’15 biennium by a mod- The 2013 legislature will the international slowdown in economic activity est $54.9 million, out of total general fund and meet to organize from and the potential failure to deal with the combi- lottery proceeds of $16.528 billion. While this January 14 - January 16, nation of large federal budget cuts and tax in- 10 percent increase in projected revenue from 2013, and the session will creases known as the “fiscal cliff.” the current biennium is welcome, it is $700 mil- begin in earnest on Mon- lion below the amount required to fund state day, February 4. The general fund revenue forecast for the current services at current levels. This forecast is par-
2011–’13 biennium was revised upward by ticularly significant, because it is the figure on OSB legislative proposals are available at $30.4 million, which is a relatively minor adjust- which the Governor’s Budget will be based. The http:// ment in a budget of $13.945 billion. The adjust- Governor will be releasing his budget in early os- ment to the lottery forecast was an increase of a December. blip2013.homestead.com/ minuscule $0.1 million, for a total of $1.078 index.html billion. Between the general fund and the lottery, All in all the forecast is positive, although not revenues are $82.1 million below the forecast on positive enough to dispel the long-term budget Capitol Master Plan Ex- which the 2011–’13 budget was based, but the problems the state has had to address since the ecutive Summary out- legislature addressed projected shortfalls in ex- onset of the Great Recession in 2008. lines changes to the Capi- cess of this amount in the February 2012 ses- tol the legislature may consider in 2013 and is available at http:// 2013 Lawyer Legislators: www.leg.state.os.us/mp/ Three Senators and Eleven Representatives exec_summary.pdf. The 2013–’14 legislative assembly will have one in mid-term in 2012; none had to face re- fewer member with legal training than did the election. 2011–’12 legislature. Ten lawyers served in the 2011–’12 House of In the 2011 session, five senators were lawyers. Representatives. Suzanne Bonamici resigned after the 2011 Jefferson Smith (D East Portland) ran for session to run successfully for an open seat mayor of Portland and did not seek reelec- PUBLIC AFFAIRS DEPARTMENT in Congress, and Sen. Dave Nelson (R Pen- tion to the legislature. Susan Grabe, dleton) decided not to run against in 2012. First term representatives Matt Wand (R Public Affairs Director No other lawyers ran for the Oregon Senate Troutdale) and Shawn Lindsay (R Hills- David Nebel, in 2012, which leaves veteran Senators Pe- boro) both lost in their bids for reelection. Public Affairs Legislative Attorney ter Courtney (D Salem/Gervais/Woodburn), The other seven sitting lawyer- Matt Shields, Floyd Prozanski (D portions of Lane and representatives were successful in their re- Public Affairs Staff Attorney Douglas Counties) and Betsy Johnson (D elections: Wally Hicks (R Grants Pass), Amanda Roeser, Scappoose) as the only remaining lawyer- Public Affairs Assistant senators in the 2013 session. All three were (Continued on page 2)
November 26, 2012 Capitol Insider
(Continued from page 1)
Dennis Richardson (R Central Point), Phil Barnhart (D central Lane and Linn Counties), Chris Garrett (D Lake Oswego), Jason Conger (R Bend), Mike McLane (R Pow- ell Butte), and Cliff Bentz (R Ontario). Rep. McLane will serve as House Republican leader. Joining this group will be four newly elected representa- tives: John Davis (R Wilsonville), Jennifer Williamson (D SW Portland), Brent Barton (D Oregon City), and Shemia Fagan (D North Clackamas, East Multnomah Counties), brining the number of lawyers in the House to 11.
Representatives-elect Williamson and Barton are not strangers to the legislative process: Williamson has been a lobbyist, and Barton served as a representative in the 2009 session. Wikipedia—75th Oregon Legislative Assembly
Elections in Five States Uphold Judicial Independence
General-election ballots in at least five states dealt with politi- cally sensitive issues implicating judicial independence. The retention elections in Iowa in 2010 highlighted to the legal In Iowa, voters retained Supreme Court Justice David Wig- community the importance of gins by a vote of 54 to 46 percent. Justice Wiggins had been active involvement in the process. on the court when it ruled unanimously in 2009 in favor of This year, in both Iowa and Flor- same-sex marriage. Three of the other members of the court ida, the justices subject to reten- at the time had been defeated in retention elections in 2010 tion elections made appearances after a withering campaign. The remaining three justices around their states, and in Florida from 2009 are scheduled for retention votes in 2016. the justices raised campaign In Florida, three Supreme Court justices won their retention funds. The bars in both states ac- elections overwhelmingly in the face of opposition from con- tively educated the public about servative groups. A group called Restore Justice 2012 had the merit retention system. given the three justices failing grades based on a ruling blocking a ballot initiative on the Affordable Care Act and Each of these five states uses a merit selection process—often their decision in the 2000 presidential election case, among referred to generically as the “Missouri Plan” — in which a bi- others. partisan commission recommends a list of candidates from which Voters in Missouri, Arizona and Florida rejected by large the governor makes a selection. Typically, after some years of margins ballot measures that would have changed merit- service, judges must run on their records in retention elections. based judicial selection systems. In each state, the rejected measures would have extended the reach of the political An Oregon Law Commission work group is currently considering branches of government over the judicial selection process. proposing changes to Oregon’s elective appellate judicial selec- The legal communities in each state expect more efforts in tion system. the future to change their appellate judicial selection proc- esses.
2