OREGON CIVIL RIGHTS NEWSLETTER Published by the Oregon State Bar Civil Rights Section March 2003 The USA Patriot Act, Terrorism, and Oregon Legislation s reported in the December crime forensic laboratories,6 and it 2002 issue of the Oregon authorizes the Secret Service to estab- Civil Rights Newsletter, the John Clinton Geil lish a national network of electronic- A 7 Oregon legislature is considering a crime task forces. The act allows na- package of bills that are in response tionwide terrorism search warrants, to the threat of terrorism in Oregon. eign intelligence purposes. It re- which may be executed in this coun- These bills arose out of work groups inforces federal anti–money laun- try and possibly overseas.8 It allows headed by Senator John Minnis and dering laws and regulations in an senior Justice Department officials to Representative Max Williams, co- effort to deny terrorists the re- seek ex parte court orders for obtain- sources necessary for future at- chairs of the legislature’s Joint Interim ing educational records relevant to 1 tacks. It tightens our immigration 9 Committee on the Judiciary. This ar- laws to close our borders to for- crimes of terrorism. ticle summarizes the status of these eign terrorists and to expel those State and local appropriations legislative proposals. among us. Finally, it creates a few Some of the appropriations are tar- new federal crimes, such as the The USA Patriot Act geted to provide grants and other fi- one outlawing terrorists’ attacks nancing to assist state and local gov- brief review of the federal legis- on mass transit; increases penal- ernments. These include appropria- lation known as the USA Patriot ties for many others; and institutes A tions for wide-ranging antiterrorism Act will put the proposed Oregon leg- several procedural changes, such purposes such as islation in context. On October 24, as a longer statute of limitations 4 ♦ 2001, both the U.S. House of Repre- for crimes of terrorism. state and local terrorism prevention and antiterrorism training grants for sentatives and the U. S. Senate passed Many of the provisions of the USA first responders10 2 Patriot Act, having to do with wiretap- H.R. 3162 in response to the Septem- ♦ grants to state and local governments11 ping and foreign intelligence amend- ber 11, 2001, terrorists’ attacks. The to enhance their capacity to respond ments, sunset on December 31, 2005. president signed it on October 26, to terrorist attacks12 2001. Known as the USA Patriot Act, The 131-page act is complex. It cov- ♦ grants to state and local governments its full title is the “Uniting and ers several areas, including the follow- for integrated information and identi- Strengthening America by Providing ing: criminal investigations; tracking fication systems13 Appropriate Tools Required to Inter- and gathering communications (in- ♦ supplemental grants to state and local cept and Obstruct Terrorism (USA Pa- cluding pen registers and trap-and- governments and nongovernmental triot Act).” trace devices, email, electronic sur- organizations that provide assistance The USA Patriot Act, according to a veillance, and criminal investigators’ for crime victims of terrorism and mass access to foreign intelligence informa- violence14 Congressional Research Service Re- —————————— CONTINUED ON PAGE 4 port, arose out of a consultation draft tion); foreign intelligence investiga- circulated by the federal Department tions; money laundering (regulation, of Justice, with substantial modifica- international cooperation, crimes, and ✦ In This Issue tions and additions by Congress.3 forfeiture); alien terrorists and victims Terrorism and Oregon .............. 1 According to the summary section (border protection, detention, and re- in the front of the CRS Report: moval); the creation of new crimes and Section Seeks Ideas for CLE...... 2 penalties; and related appropriations. The Act grants federal officials Recent Decisions ..................... 2 greater powers to trace and inter- It also allows the U. S. attorney gen- cept terrorists’ communications eral to provide rewards to combat ter- Supreme Court Update ............ 3 both for law enforcement and for- rorism5 and to set up regional cyber- OREGON CIVIL RIGHTS NEWSLETTER Recent Decisions OREGON CIVIL RIGHTS NEWSLETTER Ninth Circuit Oregon State Court of Appeals Richard F. Liebman Courts Brenda Baumgart Coszalter v. City Barran Liebman, LLP Potter v. Schlesser E DITORIAL BO ARD of Salem, 2003 Company, Inc., MARC ABRAMS WL 350313 (9th 2003 WL 367864 CLARENCE M. BELNAVIS ANNE E. DENECKE Cir Feb. 18, 2003) (Or Feb. 21, 2003) KYLE B. DUKELOW The Ninth Circuit held that a public The plaintiff, an attorney who had DOUG S. GARD instituted an action on his client’s be- DAN GRINFAS employer’s retaliatory acts against an CORBETT GORDON employee for engaging in protected half, sought to enforce his attorney lien JENIFER JOHNSTON for fees after his client and his client’s RICHARD LIEBMAN speech violate the First Amendment if HEIDI D. ROBINSON the acts are reasonably likely to deter employer privately settled their dispute KATHRYN A. SHORT the employee from engaging in con- without the plaintiff’s knowledge. The stitutionally protected speech. The Oregon Supreme Court held that ORS court also clarified the meaning of 87.445 provides “notice to the world” E DITOR “adverse employment action,” hold- that an attorney’s lien for fees arises ELISE GAUTIER ing that the retaliation need not be when an action is commenced. Ap- severe or of a certain kind (i.e., the plicable statutes establish that an removal of a benefit or imposition of attorney’s lien survives the parties’ S ECTION OFFICERS settlement, and both the defendant a burden) to qualify as an adverse CARL KISS, CHAIR employment action. and the plaintiff’s client are legally ob- JOHN CLINTON GEIL, CHAIR-ELECT ligated to satisfy the lien. EDWARD JOHNSON, SECRETARY EEOC v. Luce, Forward, Hamilton MICHELLE HOLMAN KERIN, TREASURER & Scripps, 2003 WL 282178 Wash. County Police Officers’ DAVID A. LANDRUM, PAST CHAIR (9th Cir Feb. 7, 2003) Ass’n v. Wash. County, 2003 WL The Ninth Circuit has issued an or- 367876 (Or Feb. 21, 2003) der that this case be reheard by the en The Oregon Supreme Court held E XECUTIVE COMMITTEE banc court. Last fall, a three-judge that reinstatement of a deputy sheriff BARBARA J. DIAMOND KYLE B. DUKELOW Ninth Circuit panel determined that who used marijuana off duty did not RICHARD F. LIEBMAN mandatory arbitration agreements are violate public policy. DAVID D. PARK TRACY POOL REEVE enforceable and employers can re- Dunwoody v. Handskill Corp., 185 DENNIS STEINMAN quire their employees to agree to ar- DANA L. SULLIVAN Or App 605, 60 P3d 1135 (2003) MARGARET J. WILSON bitrate employment-related claims, in- The Oregon Court of Appeals, re- cluding Title VII claims, as a condition emphasizing the broad scope of the of employment. EEOC v. Luce, For- wrongful discharge tort, held that the OSB LIAISON ward, 303 F3d 994 (9th Cir 2002). tort is available to all employees, in- MARY OBERST Pending en banc review, that decision cluding employees covered by an em- may not be cited as precedent. The ployment contract or a collective bar- Ninth Circuit has effectively put a hold gaining agreement. ✦ on the enforceability of mandatory ar- Rick Liebman, a partner at Barran The Oregon Civil Rights Newsletter bitration agreements for Title VII and Liebman LLP, has been representing em- is published by other employment-related claims. ployers for 31 years in labor and employ- the Civil Rights Section ment law. Brenda Baumgart is an asso- of the Oregon State Bar Gradilla v. Ruskin Manufacturing, P. O. Box 1689 2003 WL 329016 ciate at Barran Liebman LLP. Lake Oswego, Oregon 97035. (9th Cir Feb. 14, 2003) Interpreting the California Family The purpose of this publication is to Section Seeks Ideas provide information on current Rights Act (CFRA) and applying fed- developments in civil rights and eral Family and Medical Leave Act What topics would you like to constitutional law. Readers are advised case law, the Ninth Circuit held that see addressed at the next Civil to verify sources and authorities. an employee who left work to travel Rights Section CLE seminar? with and care for his family member Please send your suggested with a serious health condition was not topics to Dennis Steinman at Recycled/Recyclable ✦ entitled to CFRA leave when the travel [email protected]. was not related to medical treatment. PAGE 2 MARCH 2003 Supreme Court Update Cases Decided held that Title VII imposes no special Fisher & Phillips LLP or heightened evidentiary burden on Eldred v. Ashcroft, a plaintiff in a mixed-motive case. No. 01-618 (Jan. 15, 2003) Busse & Hunt The United States Supreme Court Nike, Inc. v. Kasky, upheld by a 7–2 vote the Copyright No. 02-575 (Jan. 10, 2003) In a case arising from the Supreme Term Extension Act of 1998, which ex- protests outside abortion clinics. The Court of California, the Court will de- tended the life of most existing and Court found that even when the acts cide whether Nike’s statements refut- future copyrights—including early of interference and disruption shut ing claims concerning its labor poli- Mickey Mouse cartoons—from life- down clinics, the acts did not consti- cies, practices, and conditions with time plus 50 years to lifetime plus 70 tute extortion because the protestors respect to its overseas workers are years. Ruling in favor of artists, writ- did not “obtain” any of the clinics’ “commercial speech” subject to ers, and entertainers, the Court held property. that Congress has the power to extend California’s strict truth-in-advertising U.S. v. Jimenez Recio, the length of copyrights as long as it laws, or public statements protected No. 01-1184 (Jan. 21, 2003) specifies a period of time. by the First Amendment.