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New Developments in Federal and State Constitutional Law

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New Developments in Federal and State Constitutional Law The State of the Constitutions: New Developments in Federal and State Constitutional Law Cosponsored by the Constitutional Law Section Friday, November 22, 2013 9 a.m.–3:45 p.m. Embassy Suites Portland Downtown Portland, Oregon 5.5 General CLE credits THE STATE OF THE CONSTITUTIONS: NEW DEVELOPMENTS IN FEDERAL AND STATE CONSTITUTIONAL LAW SECTION PLANNERS Planning Cochair: Erin J. Snyder, Lewis & Clark Law School, Portland Planning Cochair: Jennifer Middleton, Johnson Johnson Larson & Schaller PC, Eugene Matthew J. Kalmanson, Hart Wagner LLP, Portland The Honorable Erin C. Lagesen, Oregon Court of Appeals, Salem Alycia N. Sykora, Alycia N. Sykora PC, Bend Edward H. Trompke, Jordan Ramis PC, Lake Oswego OREGON STATE BAR CONSTITUTIONAL LAW SECTION EXECUTIVE COMMITTEE Honorable David Schuman, Chair C. Robert Steringer, Chair-Elect Edward H. Trompke, Past Chair Gregory A. Chaimov, Treasurer Erin J. Snyder, Secretary Honorable Roger J. DeHoog John Paul Toby Graff Matthew J. Kalmanson The Honorable Erin C. Lagesen Honorable Jack L Landau Maureen Leonard Jennifer Middleton Chin See Ming P. K. Runkles-Pearson Alycia N. Sykora The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials. Copyright © 2013 OREGON STATE BAR 16037 SW Upper Boones Ferry Road P.O. Box 231935 Tigard, OR 97281-1935 The State of the Constitutions: New Developments in Federal and State Constitutional Law ii TABLE OF CONTENTS 1A. Recent Developments in Constitutional Law—Presentation Outline . 1A–i — Professor Pamela S. Karlan, Stanford Law School, Stanford, California 1B. Some Thoughts About State Constitutional Interpretation . 1B–i — The Honorable Jack L. Landau, Oregon Supreme Court, Salem, Oregon 1C. Developments in State Constitutionalism—Three Cases . 1C–i — Professor Paul A. Diller, Willamette University College of Law, Salem, Oregon 1D. Should the Oregon Constitution Be Revised, and If So, How Should It Be Accomplished?. 1D–i — Professor Robert F. Williams, Rutgers University School of Law–Camden, Camden, New Jersey 1E. Why State Constitutions Matter. 1E–i — Professor Robert F. Williams, Rutgers University School of Law–Camden, Camden, New Jersey 2. The Oregon Constitution and Cases in 2013 . 2–i — Alycia N. Sykora, Alycia N. Sykora PC, Bend, Oregon 3. Summaries of Recent Constitutional Decisions . 3–i — The Honorable Stephen K. Bushong, Multnomah County Circuit Court, Portland, Oregon The State of the Constitutions: New Developments in Federal and State Constitutional Law iii The State of the Constitutions: New Developments in Federal and State Constitutional Law iv SCHEDULE 8:00 Registration 9:00 U.S. Supreme Court Review and Preview Professor Pamela S. Karlan, Stanford Law School, Stanford, CA 10:30 Break 10:45 Developments in State Constitutionalism Moderator: Professor Pamela S. Karlan, Stanford Law School, Stanford, CA The Honorable Jack L. Landau, Oregon Supreme Court, Salem Professor Paul A. Diller, Willamette University College of Law, Salem Professor Robert F. Williams, Rutgers University School of Law–Camden, Camden, NJ Noon Lunch 1:00 Oregon Constitutional Law: 2013 Update F Seeing is believing: eyewitness testimony after State v. Lawson/James F A right to reject life? Why can the governor override a death row inmate’s death wish? Haugen v. Kitzhaber F Executive discretion unchained? State v. Savastano F Rape survivors’ privacy collides with Open Courts—State v. MacBale The Honorable Jack L. Landau, Oregon Supreme Court, Salem The Honorable David Schuman, Oregon Court of Appeals, Salem Alycia N. Sykora, Alycia N. Sykora PC, Bend 2:15 Break 2:30 Litigating State Constitutional Law Issues F Remedies clause F Right to a civil jury trial F Takings clause F Free speech and assembly Moderator: The Honorable Stephen K. Bushong, Multnomah County Circuit Court, Portland Kathryn H. Clarke, Attorney at Law, Portland Janet M. Schroer, Hart Wagner LLP, Portland Stephanie Striffler,Appellate Division, Oregon Department of Justice, Salem Timothy R. Volpert, Davis Wright Tremaine LLP, Portland 3:45 Adjourn The State of the Constitutions: New Developments in Federal and State Constitutional Law v The State of the Constitutions: New Developments in Federal and State Constitutional Law vi FACULTY The Honorable Stephen K. Bushong, Multnomah County Circuit Court, Portland. Judge Bushong has been a Circuit Court Judge in Multnomah County since February 2008. He was named Chief Civil Judge in 2013. He worked for the Oregon Department of Justice from 1994 until he was appointed to the bench. At DOJ, he served as an Assistant Attorney General, Attorney-in-Charge of the Special Litigation Unit, and Chief Trial Counsel of the Department’s Trial Division. Judge Bushong serves on the Oregon Law Commission and has served on the Oregon State Bar’s Uniform Civil Jury Instruction committee, on the executive committees of the OSB’s Litigation and Government Law sections, and as chair of Multnomah Bar Association’s Professionalism Committee. He authored chapters in the Oregon State Bar’s Civil Pleading and Practice manual and constitutional law CLE seminars and articles on “Recent Significant Oregon Cases” featured in the OSB Litigation Journal. Kathryn H. Clarke, Attorney at Law, Portland. Ms. Clarke has practiced law for 30 years, focusing primarily on appellate practice and consultation on legal issues in complex tort litigation. She specializes in civil procedure and evidentiary issues; tort law generally and in particular product liability, medical negligence, and fraud; insurance law; and constitutional law. She is a member of the Oregon Trial Lawyers Association Board of Governors. She is one of Oregon’s two representatives to the American Association for Justice Board of Governors and a member and occasional cochair of that organization’s Amicus Curiae and Legal Affairs committees. Ms. Clarke is a trustee and immediate past president of the Roscoe Pound Foundation. She taught a seminar in Advanced Torts for several years as an adjunct faculty member at Lewis and Clark Law School. In 2008 she served as a member of a work group on Tort Conflicts of Law for the Oregon Law Commission, which resulted in a bill passed by the 2009 legislature. She has served as member and chair of the Council on Court Procedures and as a member of the Oregon State Bar’s Uniform Civil Jury Instructions Committee. In 2006, Ms. Clarke was honored as Distinguished Trial Lawyer by the Oregon Trial Lawyers Association. Professor Paul A. Diller, Willamette University College of Law, Salem. Professor Diller’s research focuses on local government, policy innovation, and related issues of state and federal constitutional law. He has also written on national security law, particularly the rights of detained individuals. His scholarly work has appeared in, among other journals, the Stanford Law Review, The University of Chicago Law Review, the Michigan Law Review, and the Georgetown Law Journal. In 2010 and 2013, Professor Diller received Willamette Law’s Robert L. Misner Award for Excellence in Faculty Scholarship. Professor Diller teaches State and Local Government, State Constitutional Law, and Property. He is admitted to practice in New York and New Jersey and before the United States Supreme Court. Professor Pamela S. Karlan, Stanford Law School, Stanford, CA. A productive scholar and award- winning teacher, Professor Karlan is also codirector of the school’s Supreme Court Litigation Clinic, where students litigate live cases before the Court. One of the nation’s leading experts on voting and the political process, she has served as a commissioner on the California Fair Political Practices Commission and an assistant counsel and cooperating attorney for the NAACP Legal Defense Fund. Professor Karlan is the coauthor of leading case books on constitutional law, constitutional litigation, and the law of democracy, as well as numerous scholarly articles. She also writes a column on the Supreme Court and legal issues for the Boston Review. Professor Karlan is a member of the American Academy of Arts and Sciences, the American Academy of Appellate Lawyers, and the American Law Institute and serves as a member of the Board of Directors for the American Constitution Society. The State of the Constitutions: New Developments in Federal and State Constitutional Law vii FACULTY (Continued) The Honorable Jack L. Landau, Oregon Supreme Court, Salem. In 1989, Justice Landau left private practice to work at the Oregon Department of Justice, first as the Attorney-in-Charge of the Trial Division’s Special Litigation Unit and later as Oregon’s Deputy Attorney General. He represented state agencies in state and federal court at trial and on appeal, including before the United States Supreme Court. In December 1992, Governor Barbara Roberts appointed Justice Landau to the Oregon Court of Appeals, and he served on that court for the next 18 years. In May 2010, Justice Landau was elected to the Oregon Supreme Court, where he has been serving since January 2011. Justice Landau has been a member of the adjunct faculty at Willamette University College of Law for 21 years, where he teaches Legislation. He is a member of the Oregon Council on Court Procedures, the Oregon State Bar Professionalism Commission,
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