SENATE BILL 101
A JUST ROAD TO FOLLOW

SB 101 would provide a procedure for the owner of an approach road rendered unusable by a statutory enactment to seek compensation for his loss. The procedure is already in place: the bill merely adds this category of road owner to two others (those who own approach roads for which a permit was issued but which is then closed off, and those whose ownership in such an approach road arises under a grant or reservation of access). This bill would merely add a third class of property owner to the list of those who could utilize a contested case procedure to seek recompense.

We hope the cost of this is not too high, and we think it probably is not - otherwise ODOT might not have joined the Office of Regulatory Streamlining in supporting this bill. Further, the fact that the Regulatory Streamlining Office supports SB 101 suggests that the problem not only does exist but that the solution is to provide a procedure for its resolution. There seems, then, no reason why this bill, and such justice as it may enable, should not be passed.



SENATE BILL 102
A TRICKIER QUESTION

SB 102 is clearly a companion piece to SB 101, but not the kind of virtual no-brainer 101 represents. The case for 102 is that when ODOT takes an action that eliminates all right of access to a parcel to and from a highway, perhaps it should be able to acquire, by eminent domain if need be, another parcel that it could then transfer to the party it cut off from the highway. If the bill were restricted to parcels made unreachable at all by an ODOT action, it would be, like SB 101, something that simple justice demands. But this bill refers to ODOT action that “eliminates all right of access for a parcel of real property to and from any highway,” not “all right of access for a parcel,” period. What if the parcel retains access, only not directly onto the nearby highway? Do we really wish to use eminent domain - a heavy-headed hammer indeed - when the parcel to be benefited by its use is not landlocked, but merely needs to use some local road to achieve access to that nearby highway?

On the other hand, the loss of direct highway access may well doom some kinds of businesses. Perhaps in that more limited type of case, the use of eminent domain to acquire replacement highway access might better be justified. But that is not what this bill does. Eminent domain is already used for any number of purposes, some quite useful and justified, some perhaps not so justified. SB 102 may be in the category of not so justified.



This Petition is to allow your voice to be heard

Edward Johnston

February 19, 2007

Dear Leader and Board of the Oregon District Attorney’s Association:

I am writing you regarding SB 111, which would shift the burden of investigating allegations of improper use of deadly force by local Oregon law enforcement from the Attorney General’s office to the District Attorney. Besides the extra financial costs involved, this bill would grievously harm the District Attorneys and their ability to properly and effectively enforce the law. It would put every DA into a potentially impossible bind This bill sets every D.A. up for serious trouble. . Here is why:

With all due respect to AG Hardy Myers and to Senator Avrel Gordly, SB 111 would put any D.A. who falls under its rule into a very difficult bind. He or she would, when making such an investigation, have to do one of two things. He or she would have to find against the officer who used the deadly force, or not.
If he or she finds the deadly force to have been improper, he or she will impair his or her ability to work with not only that officer, but everyone else in that precinct and perhaps everyone in law enforcement in that city or county. It would totally break apart the trust between law enforcement and the District Attorney that is essential to law and order. If, on the other hand, the D.A. exonerates the officer who used deadly force, he or she might well be tossed out of office by the voters, especially if the district is of a racial minority or is very politically liberal or conservative and the deadly force was used at a political rally or protest. The bill would surly worsen racial antagonism in the state. But it would put any D.A., in any kind of community, in the same type of bind, with or without racial, class or ideological overtones. Most importantly, it would make it impossible for the DA involved to ever be able to really do his or her job in the community again. He or she would always be looking over his or her shoulder at the damage done to his or her office by the investigation he or she was foolishly compelled to do by the bill. Making decisions based on the law and equities involved, but on the politics. Every D.A.
should want to be insulated, as much as possible, from just the kind of situation SB 111 will place at least some D.A.s into.

In addition, the bill would not be good for police.
Yes, it might compel a few DAs to wrongly protect an officer who improperly used deadly force in order to maintain the DA’s good relations with the local police department. One can argue this is good or bad for the police - but it would not help the best police officers. More certainly, just the potential for this kind of situation will further weaken community support for our police departments, and weaken community-based policing. And it would leave under a permanent cloud every officer who ever is charged with and exonerated from a claim of improper use of deadly force that occurred under circumstances deadly force was clearly needed and appropriate. Good officers will be hurt by this bill. How could it be otherwise, when his exoneration would be much less credible and much more susceptible to political manipulation than it is under the current system. Good police officers who use deadly force properly will come under permanent and unwarranted, but with this bill unavoidable, criticism and disbelief.

If you want to change the current arrangement, and make the change effective, it should e through conversion to a community-based community police review board with only citizens holding the positions upon it - no elective officers, and no public employment job holders, at all.

In my opinion this bill would also change the Constitution, as well. Since it does not mention the use of a grand jury in the process it establishes, the grand jury, it appears, would be eliminated from the process of deadly force investigations. Besides being possibly unconstitutional, and certainly against the spirit of the constitution, this would also lead to additional law suits brought under the federal Section
1983 statute.

You know, our system has worked since 1776, or, in this regard, at least since Oregon became a state.
This bill would hurt DAs; it would hurt law enforcement; it would hurt good police caught in desperate situations; it would hurt the constitution.
Can someone explain to me how the changes this bill proposes would benefit Oregonians at large?

Thank You for Your Time

Sincerely

Edward Johnston




     

SENATE BILL 125
SOMETHING TO CHEW UPON

SB 125 rights a mind-numbing, stomach-churning wrong. Apparently, current law does not prohibit the possession nor require a permit for possession of “live fish that are of the genera Pygocentrus, Serrasalmus or Pristobrycon that are carnivorous.” For those who don’t know, the Serrasalmus sub-family of the family Characidae are, the bill tells us “commonly known as caribe or piranha.”

How did this omission ever become law? Did some legislator’s fish eat his homework? Was common sense devoured by the piranha importer lobby? Did some little old lady weep crocodile tears before a committee at the thought of having to permit her favorite fish, Igor?

SB 125, would change all that. It would place, instead of Pygocentrus, Serrasalmus or Pristobrycon as fish for which no permit is needed, “live fish of the genera Colossoma, Metynnis or Myleus that are primarily herbivorous fish in the sub-family Serrasalminae, from the family Characidae, commonly known as pacus or silver dollars.” Presumably, under other law, that would require a permit for Igor.

Well. We’ve chewed this one over we’re glad we’ve got it straightened out. This could be a law with some teeth in it. But we still end up wondering: ORS has had this backwards for some time now, without causing much harm. Piranha owners are unlikely, one suspects, to let little Johnny stick his finger in the fish tank: good neighborly relations, for one thing, the possibility of getting his wallet chewed off in court, for another. Maybe we don’t need to regulate this. If we have a piranha permit, we need a piranha permit writer, and a piranha permit compliance officer. More costs to an overburdened government. Maybe the real piranha is the ever-hungry regulatory mouth, eager for more rules to enforce, more funds to eat.



     

SENATE BILL 126
A GOOD IDEA, BUT NEEDS TWO MORE CLAUSES

This bill provides an appeal process if someone thinks he can successfully create a new commercial fishery in Oregon waters and the Oregon Fish and Wildlife Commission does not agree and does not grant him a developmental fisheries permit. As it stands now, the commission makes a decision on establishment of a new developmental fishery, after study by the Developmental Fisheries Board, and if they are wrong, there is no clear route of appeal - except, perhaps seeking specific legislation creating a developmental fishery.

SB 126 would give the Commercial Fisheries Board review power over decisions by the commission rejecting creation of a new fishery. That board is and would remain part of ODFW, and so, ultimately under jurisdiction of the commission. But it would still offer a separate review - an appeal, in short - of a commission decision against creation of a new developmental fishery. If the fishery proposed is a bad idea - too many harms to other species, the target species is too weak a stock, etc. - then the Commercial Fisheries Board could still reject the applicant’s idea. But it is generally a good idea to offer some sort of independent - or at least, separate - review of administrative decisions.

We have just two concerns. First, as it stands, the bill does not state the basis upon which the Commercial Fisheries Board is to make its determination. One expects it is the same as the rules governing the Fish and Wildlife Commission, whatever precisely those rules are. But this is not stated. A reviewing panel, hearing an appeal, is not supposed to apply different law than the lower court - it is supposed to make sure the lower court applied the law fairly and correctly. We would urge some addition to this bill making clear what rules the Commercial Fisheries Board is to follow in reviewing applications for a developmental fisheries permit denied by the commission.

Second - make it all a public hearing, with notice and comment. The Developmental Fisheries Board hearings are all public hearings, with prior notice and invitations for comment. We should do no less on the appeal.

That said, we congratulate the Department of Fish and Wildlife and the Commission for recognizing a weakness in its structure and moving to repair it.



     

SENATE BILL 126
A GOOD IDEA, BUT NEEDS TWO MORE CLAUSES

This bill provides an appeal process if someone thinks he can successfully create a new commercial fishery in Oregon waters and the Oregon Fish and Wildlife Commission does not agree and does not grant him a developmental fisheries permit. As it stands now, the commission makes a decision on establishment of a new developmental fishery, after study by the Developmental Fisheries Board, and if they are wrong, there is no clear route of appeal - except, perhaps seeking specific legislation creating a developmental fishery.

SB 126 would give the Commercial Fisheries Board review power over decisions by the commission rejecting creation of a new fishery. That board is and would remain part of ODFW, and so, ultimately under jurisdiction of the commission. But it would still offer a separate review - an appeal, in short - of a commission decision against creation of a new developmental fishery. If the fishery proposed is a bad idea - too many harms to other species, the target species is too weak a stock, etc. - then the Commercial Fisheries Board could still reject the applicant’s idea. But it is generally a good idea to offer some sort of independent - or at least, separate - review of administrative decisions.

We have just two concerns. First, as it stands, the bill does not state the basis upon which the Commercial Fisheries Board is to make its determination. One expects it is the same as the rules governing the Fish and Wildlife Commission, whatever precisely those rules are. But this is not stated. A reviewing panel, hearing an appeal, is not supposed to apply different law than the lower court - it is supposed to make sure the lower court applied the law fairly and correctly. We would urge some addition to this bill making clear what rules the Commercial Fisheries Board is to follow in reviewing applications for a developmental fisheries permit denied by the commission.

Second - make it all a public hearing, with notice and comment. The Developmental Fisheries Board hearings are all public hearings, with prior notice and invitations for comment. We should do no less on the appeal.

That said, we congratulate the Department of Fish and Wildlife and the Commission for recognizing a weakness in its structure and moving to repair it.




     

SENATE BILL 153

By repealing ORS 810.434, 810.435, 810.436, 810.438 and 810.439, this bill removes the authority of any listed city (or, presumably, any city that may have hoped to get on the list) of those authorized to use photo radar as a traffic law enforcement device. Like the authors of this bill, we do not like photo radar. We do not minimize the havoc that idiot drivers can cause. But we do not think photo radar will stop any drunk, moronic, or incapacitated driver from driving - and we do think photo radar is another step on the road to Big Brother.

The bill’s ritual repetition of the requirement that any city that does use photo radar must study its effects on traffic safety, the degree of public acceptance it receives, and how photo radar is administered seems useless if the bill is to close these sleepless Big Brother eyes anyway. We hope that ritual repetition is there just to make the bill more palatable to those who fear dangerous drivers more than they fear dangerous government. We worry it may be there to provide a database that fans of photo radar may later use to try to undo this bill. However that may be, this bill repeals the laws authorizing photo radar, and we hope it passes and stays passed.

But this still leaves open one big question. Does removal of authority to use such radar make its use by some city illegal? We would prefer to see an affirmative prohibition, rather than just the repeal of authorization. This bill may create a legal limbo. Is that what its sponsors intended? Why not do the right thing and prohibit photo radar now? As it stands, this bill buys time for a bad idea to try to rehabilitate itself. Let’s not give it the time.

 

     

S.B. 158


Inch by inch we further deprive families of their freedoms

This bill includes “community learning centers” in the roster of entities that are part of the Services to Children and Families system. That phrase includes a lot. ORS 329.007 defines the phrase:

"Community learning center" means a school-based or school-linked program providing informal meeting places and coordination for community activities, adult education, child care, information and referral and other services as described in ORS 329.157. "Community learning center" includes, but is not limited to, a community school program as defined in ORS 336.505, family resource centers as described in ORS 417.725, full service schools, lighted schools and 21st century community learning centers.

As many of you know, I find the activities of SCF to be out of bounds and at times even out of control. Even the best of its people, who truly want to help children avoid abuse and other harms, cannot operate in a fair and reasonable fashion because the law that defines when they may take custody away from a parent is so broad as to allow SCF to do so, literally “for any cause” a staff person finds reasonable. That grant of authority brings us ever closer to a totalitarian system, where the state asserts powers it should be able to exercise only to prevent a clear and present danger. SCF under current ORS is under no such restriction. Adding “community learning centers” - literally any place connected in any way to a school, if it provides informal community activities (including but not limited to adult education, child care, and information and referral) - expands what is, to me an unconstitutional or at least often-abused government power. This bill is a big step in the wrong direction. It should be buried.



SENATE BILL 166
GIVING THE HEN HOUSE BACK TO THE FOX FOR RECONSIDERATION

There is no guarantee that a group of parents and teachers, organized into a charter school, will do a better or a worse job managing their children’s education, than would a regular school district and school board. Given that, what should happen if a group of parents and teachers simply feel that the local schools do a lousy job and they can do better by forming a charter school and the local school board disagrees? Who should judge their application to try to do better, and who should review that judgment on appeal?

As the law stands, it is the local school board, which has a vested interest in blocking charter schools (as they are, inevitably, a challenge to at least some extent to the school board’s competence and authority). As it stands now, if the school board says no, the parents and teachers can appeal it to the State Board of Education - which itself, is perhaps not an entirely unbiased reviewer. But as one philosopher said, we must take the world as we find it, and nobody has proposed a better reviewing forum for appeal.

This bill proposes a worse reviewing forum: the local school board.

SB 166 would allow the State Board of Education to drop the hot potato charter application and send it back to the board at the originating school district. Why send the parents and teachers back to be heard again, and their proposal judged again, by the very people they are seeking to get out from under in the first place? The very people who said no to them once, and who will have the same vested reasons for saying no again? Why send the hens back to the fox for reconsideration if the fox wants to let them go free?



SENATE BILL 168 -    
A BILL THAT DESCRIBES EVERYTHING ABOUT ITSELF EXCEPT ITS PURPOSE

Whatever shall we make of this? It’s not a long bill, only two and a half pages. It goes into great detail on who shall appoint which members of the proposed “Task Force on Kindergarten through Grade 16 Integrated Data System.” It describes the criteria such a new  “data system” shall meet. It does not say a thing about what the new integrated data system shall do. Or contain.

We would call this bill a tease if not for the worry that what it hides is not enticing at all. The authors of this veiled totalitarianism cannot hide the intent behind a screen of “who shall appoint who“ and “this operating standard shall meet that functional criteria.” The intent is the further reach of the state into what used to be the private realm of hearth and home, the realm where parents work with, or fail to work with, their children. The nuclear family isn’t perfect - it is a reflection of the loves and hates, strengths and weaknesses of larger society, and of each human being. But it is a realm not to be quickly intruded into by the state. Oregon has gone too far in this direction already, and if this bill has one great virtue it is simply this: despite the lack of description as to what this Task Force is to do, its task is still crystal clear. It is to integrate all the data we have on children - and of course their parents, else how can we understand what drives the wayward youth? - into one gigantic database. Operated, no doubt, by people of worthy intentions, but people no less fallible than all others who arise in the flawed arena of the family. Only now, those fallible data managers (and their agency chiefs and staffs), will know everything there is to know about our children. And their parents. At the press of a button. Click! Watch Out! Big Brother is databasing you.



SENATE  BILL  75
IT’S WHAT IS LEFT OUT, NOT WHAT IS PUT IN, THAT MATTERS

This bill seems, at first blush, to be merely housekeeping - changing the wording but not the meaning of ODOT’s authority to randomly select for review vehicles as to compliance with the state financial responsibility laws (i.e., maintaining insurance coverage). But there is a fairly big change. In fact, a 90 percent change, in a way.

The old law limits ODOT to annually selecting for verification of such compliance “not more than 10 percent of the motor vehicles registered in this state.” The new law omits that limit.

Yes, driving without insurance is a genuinely serious crime; no debate about that. But allowing ODOT to randomly select what? - 20 percent, 30 percent, 90 percent - of the cars registered in the state for compliance verification does seem a bit much. The fact that a person in the past broke the law does not mean he is breaking it now. But under this bill, ODOT could require compliance verification for 100 percent of those drivers who in the past had broken the law on driving with insurance. We are edging away from “innocent till proven guilty” towards “guilty until proven innocent” here. SB 75 does not take us all the way down this road. But it opens the garage door to that journey. Bad idea.



SENATE  BILL  76
MAKING  IT  HARDER  ON  THE  HARDIEST  OF  YOUNG  WORKERS

SB 76 would remove the employer of a minor (under age 18) from the list (father, mother, guardian, employer) of those who, under current law, can sign onto the minor’s application for a driver’s license. We think this bill a mistake.

Admittedly, it will not affect many youngsters. But here and there, scattered across the landscape, there must still be minors who are working, and who, in order to get to work or do their work, need a driver’s license - and who, due to neglect, abandonment, parental violence, state DHS incompetence and/or personal reasons, are on their own. On their own, that is, except for one small blessing. They know a neighboring farmer, rancher, grocer, plumber or other small business owner who has taken a liking to the kid, and given the kid a job. Especially (though not only) in rural areas, the job would likely require some driving.   

This species of kindness seems almost to belong to another time - the era of Norman Rockwell paintings, Andrews Sisters songs and uncelebrated small-town acts of kindness. We hope such acts of kindnesses are, if rare, not quite extinct. If this sort of kindness has lived on - and we expect it has - there is no need to kill it off.




SENATE  BILL  77
ODOT  APPRAISAL  WAIVER -
POTENTIAL  MISTREATMENT  FOR  THE  LITTLE  GUY?

When ODOT needs, for some valid public purpose, to take privately-owned property, it is required by federal and state Constitutional law to pay just compensation for the “taking.”  We think this is a right and proper thing. We think it so whether the property owner is rich and powerful or poor and powerless - and we are glad the Founding Fathers felt the same way, too. This bill would change that by creating a separate, distinct procedure for the poor and powerless property owner - and not one to his benefit.

SB 77 would direct ODOT to create an administrative procedure for “appraisal waiver” for properties it wishes to condemn that are worth less than $20,000. The first question is, of course, how ODOT can be certain a property is worth less than $20,000 without an appraisal. But, let us agree for the moment that some small slice of property in a far distant corner of Oregon might be good for raising only dust devils, and that it would visibly seem to be worth less than $20,000. Not that we agree with this premise, mind you, but, for the sake of the argument, we’ll pretend we do.

Isn’t even that poor schmuck of a property owner entitled to an independent appraisal of the worth of his property - just in case ODOT is wrong (or, heaven forbid, deliberately underestimating the property value)? Doesn’t the constitutional mandate for just compensation presume an independent determination of what is “just” and not give the power to make that determination to the very agency doing the taking?

Isn’t the whole idea of this bill a first step on a road we don’t want to travel?



SENATE  BILL  78
LEAVE  WELL  ENOUGH  ALONE

When a driver is in an accident, he is supposed to report it, under today’s law, to ODOT, or the sheriff or the local chief of police. This bill would narrow that list to ODOT alone. We appreciate the efficiency bonus this might offer, but still oppose the bill.

The one thing that keeps us free - besides the Bill of Rights and the Constitution - is the fact that when one government agency may do us wrong, another may help out, even come to the rescue. We’d prefer to allow the motorist his choice of which agency he trusts - the local police, the county sheriff, or ODOT, when filing his accident report. Efficiency is not the only virtue in government; freedom of choice is a virtue, too.


SENATE  BILL  81
CONSERVATION PRICING FOR ELECTRICITY PERMITTED

This is one of those bills where the only question is why it hasn’t been law for decades already. A light clearly went on in somebody’s noggin, and better late than never. SB 81 enables conservation pricing in energy billing as an incentive to the customer’s adoption of energy conservation measures. It would encourage conservation pricing in general and conservation during peak demand times specifically, and it does so in easy-to-understand, easy-to-operate language. If one bill should get a unanimous vote this session, SB 81 is it. Do pass.



     

SENATE BILL 84
CASTING A WIDER NET FOR NET METERING

Someday, this age we live in - the Age of the Petrosaurs (whose range extends from Riyadh to Dallas to our own Enron-entangled state) - will be looked back upon with amazement by historians. We believe they will view bills like SB 84 as genuinely heroic contributions to the hope for a viable human future.

We do not know precisely which clean renewable energy technologies or sources will ultimately replace the fossil fuel sources now giving our poor planet a fever. But we know the illness will one day end, and long-delayed new technologies will replace the old. Decades ago, it seemed that solar photovoltaics would lead the way into the future. In recent years, wind power has become the leading clean energy source. Hydrogen may yet prove viable. Biomass is already used in Brazilian automobiles, as part of a mixed-fuel regime. California captures waste methane gas and uses it, doubly reducing global warming. We are glad to see this bill expand the roster of alternative energy sources that the state encourages, by qualifying them for the benefits of net metering. Who knows which way out of our polluted petroleum pickle will ultimately prove most promising? Better not to prejudge the answer, and open the doors instead to all qualified contenders.

Which is what this bill does. It is a small counterweight to the immense federal tax breaks and subsidies regularly shoveled into the furnace of the coal-oil-and-gas industry, but for whatever good it may do, let us ensure that this good is maximized. This bill would do just that.

A thought: can we include electricity-generating water wheels, installed alongside and into downspouts on buildings, as a qualifying clean energy source? Nobody has yet invented the home- or office-installed downspout water wheel generator yet, but why think small? Why not encourage it? It could make use of Western Oregon’s gravity-driven rains as an (at least local) energy source. Maybe a legislative push would bring out the creativity of our Oregon inventors? (We know - leave well enough alone and hope SB 84 passes. But we had to ask.)




     

SENATE BILL 90
PLANNING TO SAVE SOME MONEY, WE HOPE

This bill would abolish the Capitol Planning Commission, and transfer its duties, powers and functions to the Department of Administrative Services. It was, not surprisingly, proposed by the DAS - but that does not mean it is a bad bill. In fact, we rather like it.

We are limited in our knowledge of Salem and local planning for the capitol mall section of the city, living as we do some ways away from the capitol. However, we think the need for a Capitol Planning Commission probably fairly small. The governor’s residence is not reputed to be badly in need of repair or replacement. The buildings that comprise the capitol are not likely to be soon replaced, redesigned or in another way redone, and its parks are equally unlikely to be changed much. Perhaps the street grid could use a few more or a few less one-way streets, but the issue doesn’t seem to agitate capitol residents much. In short, why have a Capitol Planning Commission at all?

Here is a bill that just might save some taxpayer money without sacrificing anything the state, its citizens - or the residents of Salem - really need.



     

SENATE BILL 95
EXPANDING THE CRIMINAL JUSTICE COMMISSION

This bill would expand the membership of the Oregon Criminal Justice Commission from 9 to 15 members. We will leave aside the question of what this commission does and how useful it is, and assume that what it does do is useful and worthy of doing. Our question is why, in expanding the membership of this commission, we can’t be a bit more creative. As it is, the commission includes only, ahemmmm, the usual suspects.

Why include only representatives of the “agencies, entities and officials involved in the criminal justice system?“ Why not include a former convict who is now serving the public interest by providing “scared straight” or similar education to the public, youth, youth offenders, first offenders and the like? Why not include one jail manager, warden, or other jail worker? Why not include an officer involved expressly in fighting methamphetamine and/or narcotics? Why not include a person who has organized a local citizen patrol? Why not a representative, for that matter, of the criminal defense bar, or someone from the Public Defenders office?

Maybe such folk already are members of this commission. Maybe not, we have to admit, we don’t know. But we see nothing in the existing statute to mandate or even encourage this broader base of ideas, criticism and experience.

The point is not that there is anything wrong with including on such a commission people who serve in the agencies, etc. of the criminal justice system. But they are not the only people with knowledge of, and potentially ideas about, that system and how to improve it.





SENATE  BILL  99
INVASION  OF  THE  BODY  SNATCHERS,  21ST  CENTURY-STYLE

This bill would allow any “health care provider” - from local doctor or dentist to neurosurgeon to jailhouse physician - to “retain genetic information of an individual without obtaining an authorization from the individual or a personal representative of the individual” under certain conditions.  How the doctor would obtain that information is not specified, but as every movie-goer knows, it could be gained from any tissue sample, from blood or urine to a fallen hair. This authorizes its covert retention; the law already, to a certain extent, approves its covert collection. We fear such information could be used for anything from identify theft to identity confirmation, medical research and treatment to covert cloning and genetic manipulation.   

The conditions under which a medical provider could secretly retain genetic information are about as broad as one could imagine.

1.         For “payment.“ A medical provider could retain a patient’s genetic sample if the patient has not paid him. Since the provider can do so without notice or consent, the patient may never know what happened, even if he may wonder why he never got billed for that visit. Can the provider deliberately not bill the patient and, without notice or consent, take a sample at their next meeting?  SB 99 says he can.  

2.         For “his own treatment?” This seems a red herring, inserted into the bill because it feels equitable. But how will a doctor use a patient’s genetic data for his own treatment, when doing so requires specialized, costly equipment only a few biotechnology firms possess? Besides, isn’t secretly taking something because we want it usually called theft?

3.         For “health care operations.” Now we get to the meat of this legalized invasion of the body snatchers. Could a provider, having covertly but legally gotten your genetic data, go into business with it, and be legally shielded from his theft? Would SB 99 allow him to sell it, or use it in a partnership with a technologically equipped biotech company?. Yes, if for “health care operations.” That’s pretty broad.

Ah, but there is a limit, passed in 2003. The law already limits who the health care provider can give that genetic information to. A provider can disclose genetic information, taken under SB 99 without consent or notice, only if he does so in accordance with ORS 192.520(3). Under that, a health care provider

“(3) May disclose protected health information of an individual without obtaining an authorization from the individual or a personal representative of the individual:

(a) To another covered entity for health care operations activities of the entity that receives the information if:

(A) Each entity has or had a relationship with the individual who is the subject of the protected health information; and

(B) The protected health information pertains to the relationship and the disclosure is for the purpose of:

(i) Health care operations as listed in ORS 192.519 (4)(a) or (b);* or

(ii) Health care fraud and abuse detection or compliance;

(b) To another covered entity or any other health care provider for treatment activities of a health care provider; or

(c) To another covered entity or any other health care provider for the payment activities of the entity that receives that information.”*

* Two points about the above text. One is that the intent of (c ) above is clear enough, even if the language itself is gibberish. The second is what ORS 192.519 (4) (a) and (b) refer to: “(a) Quality assessment, accreditation, auditing and improvement activities; and (b) Case management and care coordination.”

The key to the mess SB 99 makes when combined with this existing statue is in the existing ORS approval of the transfer of medical information “for treatment activities” and for “payment activities,“ in (b) and (c ) however ill-stated the later.

SB 99 combined with 192.520 allows the retention and transfer of genetic information - like, it appears, all other medical information - from virtually any health care provider to any health care provider if there is some sort of treatment proposed or some transaction between the provider with the genetic data and the provider that wants it.

The 2003 legislation was bad law, and now SB 99 would plunge our genes as well as our organs and illnesses through the door the 2003 legislation opened. There are dangers here we cannot yet imagine, yet we all know are present. The legislature should go back to square one, undo this mess and replace it with a coherent structure than respects personal privacy, our property rights in our own genes, and the normal rules about notice and consent. If we get this wrong - and the 2003 bill already has and SB 99 makes it worse - we may face unpredictable, vast and frightening consequences. Must we make Oregon the Wal-mart of stolen somatic samples and pirated personal genetic data, just to encourage biotechnology companies to locate here?



SENATE  BILL  26
IF  IT AIN’T  LAW  ALREADY,  IT  SHOULD  BE

We expect some may oppose this bill on grounds of a philosophic dislike for class-action lawsuits, as this bill makes it easier for the state Attorney General to involve Oregon in such suits. The bill enables the AG to “represent the state, an agency or officer of state government or a political subdivision … as a lead plaintiff or representative party in a class action involving a claim relating to a security in which the putative class members include persons that are not agencies or officers of state government … or political subdivisions.”

There are three possible arguments against this.

One is that the AG should not represent state agencies or subdivisions without their consent. But the bill does require such consent before the AG can take up the case.

The second is that the AG should not be active in class action cases if doing so means  the state defending the interests of private parties. This is bogus, since the whole point of a class action suit is to bring together various kinds of harmed parties in one suit. This argument is really an argument against class action suits, which we do not oppose.

The question properly stated is, actually, does the state have an interest sufficient to warrant joining the class action suit?

And that is the third argument against this bill - that SB 26 allows the use of state power where the state may not have a big enough claim to really warrant joining the lawsuit - after all, it doesn‘t cost ODOT or DEQ anything to have the AG go to court. But this is about “securities” and if the state has bought a few of them, it probably has bought a lot of them. If it has an interest, it will likely be a big interest. Further, the Supreme Court has already dealt with this by tightening the definition of who may join such a class to the point where “strict construction“ has become “stuck constriction.” The notion the AG will somehow get Oregon involved in a class action suit Oregon doesn‘t have much interest in is a very red herring, indeed..

If someone opposes class actions per se, fine, oppose this bill. But let him make his case openly, on grounds of ideology and legal philosophy and not through these obvious, but obviously invalid arguments. If the state has been among the members of a class swindled in a securities matter, the state should be able to join in seeking justice against the swindler.






SENATE  BILL  30
GOING  AGAINST  THE  GRAIN

This bill would lift the tax burden on the people tax relief usually bypasses: the guy, gal or family well below the poverty line, whom Oregon taxes, we have read, more severely than most states. So here is a tax relief that can make a difference in ordinary lives.

SB 30’s proposed tax code changes would not create huge changes for our poorest working families, but then, they don’t have huge incomes or huge taxes in the first place. We’ve crunched some numbers and the bill does appear to cut taxes a bit for the poorest among us. For taxpayers earning less the $5,000, we have not reached any numbers, preferring to let those better versed in tax law deal with the question of what is a person’s “taxable income” at that low level. But we can say that for a taxpayer earning $6,000 this bill would drop his tax from $390 to $314. For one earning $7,000, it would go from $490 to $384. For one earning $10,000, from $760 to $594. And for one earning $15,000, from $1,210 to $980.

These are not big sums, but when you are that poor, every nickel helps. We are already seeing inflation creep up on us, even by Commerce Department standards. (Amazing how that department reports “core inflation” as excluding food and energy costs - the two going up the fastest!) Inflation is here, and our large and growing national deficit ensures it will worsen; and most salaries we know of are not keeping up. A little tax relief for our most vulnerable taxpayers seems warranted.

As long we’re on the subject - how about a minimum alternative tax for corporations so PGE never again can pay $10 income tax, as it did one recent tax year. If such an alternative minimum, at say, $1,000 ends up affecting, say, 1,000 companies with clever accountants, it would raise $1 million. That’s not a lot in terms of Oregon’s budget deficit, but it would help. And (at $1,000 per corporation) it would not be enough to prompt one company to move one factory, office or job from Oregon. But it could balance SB 30 and make it all more-or-less revenue neutral. Such an additional bill or added provisions should include a clause requiring that the alternative minimum be revisited every ten years, to make sure bracket creep due to inflation does not do to this what inflation has done to the federal alternative minimum tax (i.e., make it apply more and more to taxpayers with less and less.)  

We could thereby craft tax relief for the poorest taxpayers, end the outrage of billion-dollar companies paying virtually no income tax, lose no jobs in the process, and avoid the unintended consequences of the federal alternative minimum tax. Is that too much to ask?

The legislature, The Oregonian recently reported, is seeking ways to recover legitimacy for the state. This is how to do it.





SENATE  BILL  36
SAVING ON SUBPOENA SERVICE COSTS

It’s not that we don’t trust the U.S. Post Office - though we wonder why a letter sent from Toledo to Newport has to be routed through Salem - but we do not favor this bill. SB 36 would allow service of a subpoena by certified/registered return receipt mail, instead of by a process server, when the time or date of a court appearance has been changed.

We think the idea of a subpoena served by a process server, with its built-in protections and assurance of actual receipt and actual knowledge by the person served, was one of the great ideas of English common law. Not all things new are worthy. The possibility that a person may move, be ill, or get divorced and have the ex-spouse sign for him or her in spite - not to mention the possibility of plaintiff deceit, prosecutorial misbehavior or court error - were present back in Merry Ole England. They have not disappeared. Kill this bill.

 


SENATE BILL 38
    

SENATE BILL 38
EITHER A VERY GOOD THING, OR A WASTE OF TIME & MONEY

Another commission? To study another problem? With another broad mandate to look at virtually everything in a field - in this case, K - 12 financial costs, non-classroom revenue losses and reform thereof - and no power to mandate anything. Is this worth it. Probably, yes.

Let’s put it this way. If there is even an outside chance something useful might come of this bill, it is worthwhile. And we think there probably is that chance. We like the mission SB 38 gives the study commission it creates:

a.     study the entire K - 12 public school system, including the Department of Education, school districts and education service districts;
b.     identify all barriers within the system that diminish resources available to the classroom;
c.     identify statutes and rules relating to K - 12 that create barriers to providing additional resources to the classroom;
d.     recommend solutions for providing additional resources to the classrooms; and
e.     recommend how any additional resources could be gained from the elimination or amendment or repeal of statutes or rules and how these additional resources could be redirected towards reducing class size, increasing the number of classroom teachers, making available additional classroom support materials, and increasing the number of courses offered to students.

We have numerous mandatory programs - many useful, some redundant, some downright Stalinist (like those abominable student surveys) - that do not advance classroom education. We do not advocate wholesale destruction of all such programs. That would cause new forms of damage; some of them are doubtless worth having. Rather, we would like to see existing programs and policies that cost money which could go to classrooms tested against specific standards. May we propose:

         The use or program or rule must not be likely to provide only little aid or assistance (in learning or generally), or little effective aid or assistance, to its target group of students, even if the target group is a group that is truly in need of some aid;
         The use or program or rule must not, however well-intentioned, be experienced or be likely to be experienced, by its nature or its implementation, as condescending, demeaning or insulting by the student or parent (or groups thereof) who are the intended beneficiaries or participants;
         The use or program or rule must not intrude the school system or broader state government or any agency, department, program or agent of state government into the personal, private lives or constitutionally protected rights of the students or parents.
         The use or program or rule must not require or involve the establishment, maintenance or use of computer databases regarding students or their parents that includes anything beyond what is needed to affirm the students’ actual presence in school and in particular classes, and enable contact with parents in an emergency - i.e., name, date of birth, address, class and grades record, and medical history of the child, and the name and home and work phone numbers of the parents or guardian.
         Make all hearings public hearings. If we really want to get rid of waste and fraud, good intentioned red tape and bad-intentioned bureaucratic babble, make all the hearings public.




SENATE  BILL  47
A  NEEDED  EDUCATIONAL  REFORM,  DONE BADLY

This brief and seemingly simple bill would terminate the application of Oregon’s Administrative Procedures Act to actions taken by the Teacher Standards and Practices Commission. That commission sets standards for the work done by teachers. The standards it sets can be good or bad, tough or lax, encourage or discourage creativity, intelligence, dissent, dullness or cavalier unconcern. Whatever those standards do, however, they should be subject to at least some parts of the APA. Other parts of the APA are paperwork quicksand, a sandbox for bureaucratic turf-fights. Figuring out which parts are which is a large task - and a task this bill does not even try to do.  

Here are excerpts from some of the provisions that currently apply to actions by the Teacher Standards and Practice Commission (all of which, under this bill would no longer apply).

ADMINISTRATIVE PROCEDURES ACT

(2)(a) “Contested case” means a proceeding before an agency:

(A) In which the individual legal rights, duties or privileges of specific parties are required by statute or Constitution to be determined only after an agency hearing at which such specific parties are entitled to appear and be heard;

(B) Where the agency has discretion to suspend or revoke a right or privilege of a person;

(C) For the suspension, revocation or refusal to renew or issue a license where the licensee or applicant for a license demands such hearing; or

(D) Where the agency by rule or order provides for hearings substantially of the character required by ORS 183.415, 183.425, 183.450, 183.460 and 183.470.

Comment: Goodbye the teacher’s right to contest a decision by the commission?  

183.325 Delegation of rulemaking authority to named officer or employee. Unless otherwise provided by law, an agency may delegate its rulemaking authority to an officer or employee within the agency. A delegation of authority under this section must be made in writing and filed with the Secretary of State before the filing of any rule adopted pursuant to the delegation.  

Comment: Maybe, given the proliferation of educational red tape, losing this is good!

183.335. (1) Prior to the adoption, amendment or repeal of any rule, the agency shall give notice of its intended action:

(a) In the manner established by rule adopted by the agency under ORS 183.341 (4), which provides a reasonable opportunity for interested persons to be notified of the agency’s proposed action;

(b) In the bulletin referred to in ORS 183.360 at least 21 days prior to the effective date;

(c) At least 28 days before the effective date, to persons who have requested notice pursuant to subsection (8) of this section; and

Comment: Do we really want to get rid of this?

(15) The notices required under subsections (1) and (3) of this section must be given by the agency to the following persons:

(a) If the proposed adoption, amendment or repeal results from legislation that was passed within two years before notice is given (under subsection 1 hereof) … notice shall be given to the legislator who introduced the bill that subsequently was enacted into law, and to the chair or cochairs of all committees that reported the bill out, except for those committees whose sole action on the bill was referral to another committee.

(b) If the proposed adoption, amendment or repeal does not result from legislation that was passed within two years before notice is given under subsection (1) of this section, notice shall be given to the chair or cochairs of any interim or session committee with authority over the subject matter of the rule.

Comment: Hmmmmm?

CONCLUSION:

It would be great to cut out some of the immense red tape that swamps our schools with the ever-growing non-educational costs of delivering an education. Each ribbon of red tape may have a good reason behind it, but the totality has become a costly disaster. We need some smart policy wonk with big scissors, a vacuum cleaner and a head for cutting red-tape and cleaning bureaucratic sand-boxes and sand-bars. We need someone who respects due process and hates voodoo process, to look at the nexus of the APA and education. But this bill is lazy; it ducks the question, and sticks its head in the sand. Somebody should goose whoever wrote it. This could be a valuable initiative; let’s do it right.




SENATE  BILL  64
TRESPASS  FOR  A  GOOD  CAUSE  IS  STILL  TRESPASS

Once Upon a Time in the Wild West, the government conspired with White folks who didn’t own land to take land away from Red folks - Native Americans - who did. Now this bill would in certain circumstances reverse the takings. The first was a crime against the Native Americans; this bill is, in small scale, not much better, in reverse.

Under existing law, a “person who is conducting an archaeological investigation” had to do so either with a permit on public lands or else on private lands, and if on private lands, “with the owner’s written permission.” SB 64 changes that. It does three things:

1.         It removes the requirement for written permission from the private landowner;

2.         Gives to State Parks the authority to issue a permit for access to - shall we say, trespass on - private property for archaeological purposes; and

3.         Forces the State Parks Department to pay for the consequences only if those consequences include a denial of a permit and consequent inability of the landowner to engage in certain specified conduct on his land.

We understand that the permit process will still be a public process, and one where the landowner may come and make a case against the permit. But this bill still transfers the right to decide who shall trespass on private property, in archaeological matters, from the private sphere to the public domain. This is, surely, for good scientific and tribal purposes. But what about the harm to the landowner from the trespass, and what about other harms or losses that may arise due to the state-sanctioned trespass? The bill would allow the trespass, shield the permitted archaeologist or tribe from the ordinary legal consequence of the trespass, and then restrict the circumstances where the property owner can be compensated for the harm or loss.  

Why shouldn’t the tribe or archaeologist ask the land owner for permission to enter the property and perhaps pay for that right, as the law stands now? What is so wrong with that? Archaeology is a good thing, and respect for tribal rights, heritage and remains is good, too. But currently, the market decides when and where the archaeologist or tribe may enter private property for archaeological or tribal purposes. Yes, we know that the land once upon a time all belonged to the Native Americans. We are now paying them back, in part, for the theft, by allowing tribal casinos to fleece willing gamblers of the contents of their pockets. Surely, some degree of justice is being done through this device - but it is not being done upon unwilling parties who have not volunteered for the fleecing. Current landowners are not the ones who did the crimes against the Native Americans a century or so ago, and it seems unwarranted to authorize, through the state, new crimes against those innocent landowners.




SENATE  BILL  71
A  GOOD  BILL,  ON  TRACK,  BUT  IT  MISSES  A  COUPLE  STOPS

We understand that Governor Kulongoski has made improving our transportation network a priority, and that this year’s focus will be on multi-modal transportation. We support that. This bill will clearly be a centerpiece of that effort. It’s a good bill, on track, but it misses a few stops. The following may be only housekeeping points, but they may not be merely housekeeping.

Section 3 (3) states that the Oregon Transportation Commission shall allocate at least 10 percent of the monies this bill would generate to “aeronautic and airport projects; marine and port projects; rail projects; and public transit projects.” What about projects that are, indeed, multimodal? If a project links, say the Port of Newport to the Port of Toledo and through that, the Port of Newport to railheads in Toledo, is that a port project or a rail project? How are the funds allocated to such a project to be deemed under this provision? And, if it depends on barges to connect Newport and Toledo, as has been suggested, is it a marine project? Not clear. There should be some - brief - statement authorizing the OTC to divide an allocation on a proportionate basis between its constituent elements for this sub-section. We could avoid later problems by clarifying this point in the bill now.

Section 4 (3)(d) notes the possibility that a project’s “applicants and sponsors” might not be able to provide more than 20 percent of the cost of a proposed project, and asks for a determination whether that inability “is due to economic distress in the area that would be helped” by a proposed project. It is left unclear, however, what the results of a finding of such economic distress might be. Since Section 3(2)(b) allows for funding of “more than 80 percent of the total cost“ of a project anyway, the determination of economic distress impairing local financing seems pointless.

We should not let a good bill get delayed or derailed after passage by some nit-picking lawsuit that forces a court to pick its way through these nits. Lets clean-up SB 71 before it passes, so it can remove some red lights on our economic development road, give us full steam ahead, help our state’s economic take-off, and etc. Add what metaphor you like, but lets make sure the semaphore is a clean green.




SENATE  BILL  73
YES - AND A PERSONAL THANK YOU TO ODOT AND THE GOVERNOR

This bill enables ODOT to reinstate driving privileges to an individual who it determines had his license suspended because ODOT determines that the person was actually in compliance with the requirements of a court. Yes, Virginia, even courts and judges - those who sit in judgment of our mistakes - can themselves make mistakes. Since I have been one who has suffered a license suspension in error by ODOT based upon a false and politically-motivated assertion of non-compliance by a local court, this is one bill I totally approve of. This bill gives ODOT legal protection for doing the right thing.



SENATE  BILL  74
HOW  MANY  LICENSES  SHOULD  ONE GUY  HAVE?

Senate Bill 74 would enable ODOT to set rules for when someone can receive a new drivers license with a different number than his or her old one. It seems to us this bill could do more harm than good. The number of legitimate reasons why a person could need a drivers license with a new ODL number seems limited. The mischief this could open up to, in terms of multiple licenses for single individuals, seems less limited.

If somebody has stolen a person’s identify, then maybe this bill would help - although it would be better to apprehend the bad guy and put him behind bars. And to use this bill, the victim would have to go forward with numerous other problematic and time-consuming changes to his paper-life, too.

On the other hand, if somebody wants to create alternative identities for himself or, in return for cash, for somebody else, this could make that easier.  And if somebody has stolen an identity (or otherwise created a false one), this would open up an avenue for the multiplication of fraudulent identities.  

This bill either should be killed, or thought-out and spelled-out much better. It might make more sense if we knew why ODOT might wish to issue a new drivers license with new number to a person. Perhaps the agency should, instead of planning to answer that question through an administrative rule, tell the legislature just what it has in mind before the legislature writes a blank check to ODOT - and who knows who else - with this bill.

SENATE BILL 218
REDUNDANT, PERHAPS WORSE: IS THIS THE ED JOHNSTON PREVENTION ACT?

SB 218 would allow a public servant or his/her employer to get an injunction against a person who criminally obstructs government or judicial administration, or assaults, menaces, trespasses, conducts himself in disorderly manner, harasses or telephone harasses that servant. And it would allow contempt punishment for violating that order.

All of these acts are already illegal. Indeed, the bill refers to “the following crimes.”
-     If a person, say, myself, obstructs judicial administration by asking too many questions or making impolite comments, the court can have the sergeant at arms escort me out or arrest me.
-     If I obstruct governmental administration the same way, the county commissioner or mayor can have me removed or arrested for disorderly conduct;
-     If I assault or menace someone, he or she can have me arrested and charged with assault or menacing;
-     If I trespass on someone’s property, I can be arrested for doing that. (But can I really be arrested for trespassing in a county commissioner’s hearing room or city council chambers when they are public property?)
-     If I engage in disorderly conduct, I have, by definition, as with the assault or menace or trespass, broken the law, and can be arrested.
-     If I harass or telephonically harass somebody, that, too is a crime.

Since all these actions are already illegal, there must be some other point to this bill. And there is: For a crime to be proved, it must be proved “beyond a reasonable doubt.” Here, the proof is by “a preponderance of the evidence.” That means, whose word do you believe, not do they have proof?

Ed:     Mr. King George, you have no clothes on.
King:     I do, too.
Ed:     No you don’t.
King:     I do, and they’re beautiful robes
Ed:     No you don’t and your legs are skinny.
King:     Yes I do and my legs aren’t skinny.
Ed:     No you don’t and your (bleep) is short.
King:     Arrest that man: he is obstructing my administrative functions.

When trial on the matter arrives, who will the judge believe (accept as having the “preponderance of the evidence”) - the King or Ed, when, after all the King’s word is of higher value and more credible, and is therefore “preponderant.”

Perhaps this bill is not aimed at me personally. Perhaps there are other citizen activists who are a pain in the butt and sometimes make life unpleasant for mayors, commissioners and other officials. Perhaps, like me, they are sometimes right and sometimes wrong. If we have ‘em, good. We should thank them, not arrest them and toss them in jail for contempt.



     

SENATE BILL 220
WHY WOULD THE STATE BOARD OF HIGHER EDUCATION
NOT TRUST THE ATTORNEY GENERAL TO REPRESENT IT?

This bill would enable the State Board of Higher Education, the Chancellor of the Oregon University System, and the presidents of state institutions of higher learning to hire their own attorneys for legal services - at taxpayer, or tuition-payer, expense.

Let us not make a Ph.D. thesis out of this. The question is simple. What is the State Board of Higher Education and/or the other institutions mentioned, doing that the Attorney General could not represent them about in a lawsuit? Is there something that would put the AG in a conflict of interest? Something so blatantly illegal not even a top-flight attorney at the state’s highest legal office could find a way to justify defending it?

Well, maybe the AG is just too busy to do a good job of representing all those government agencies. But haven’t we read in the papers that our state higher education system is in financial trouble, struggling to pay salaries and obligations, raise tuition, and not lose students? Where did they get the money for their own legal representation? And why do they need to spend money this way? Something just doesn’t smell right. Quoth the Great Bard: there’s something rotten in Denmark.



     

SENATE BILL 221
A BILL PRETENDING TO BE THE OPPOSITE OF WHAT IT REALLY IS

Purporting to enhance confidentiality and confidentiality-like measures for the protection of individuals, SB 221 would actually further hide government errors and, potentially, worse. It seems like a civil libertarian-sort of thing. It makes “not discoverable and inadmissible in court” and exempt from the state public records laws (ORS 192.410 to 192.505) “all information procured by or furnished to the Department of Human Services, any federal public health agency or any nonprofit health agency exempt from (state) taxation or procured by any agency, organization or person acting jointly with or at the request of the department, in connection with special morbidity and mortality studies.” This actually does nothing for confidentiality - but it would kill accountability of DHS.

Several members of this legislature recently reviewed, as a joint interim committee, allegations of misbehavior by DHS in regard to a young boy named Trenton Aue. Trenton did no damage of bodily injury or financial harm to the state corporation or anyone else; he merely wanted to stay with the surrogate parents he had been with, and not get shipped across the state to ones DHS deemed more worthy than the replacement parents he’d come to love and trust. At key points in the hearing, when the questioning got too tough for the DHS representatives to handle, they called in the DHS lawyer, an articulate blonde lady. She explained to the legislators that her clients could not answer their questions, because doing so would violate laws the legislature had passed regarding confidentiality of information the agency possesses. She was using, in part, former Senate Bill 449, which I warned everybody in the legislature about. I had said it would block access to information for everybody except DHS and other state agencies the bill allowed DHS to share confidential information with. Here it was, at the April 12, 2003 hearing, that 449 came back to haunt the legislators. A law, purportedly created to protect kids like Trenton, was used by this attorney - to the visible surprise of the legislators - to deny legislative access to information needed to fulfill their legislative oversight function.

We mention the fact that the legislature got conned once by DHS not to say “I told you so,” but because SB 221 would take us even further down the road SB 449 pioneered: a purported confidentiality that does not protect the individual because there’s a loophole for DHS and other state agencies, but protects the agency instead, through disclosure restrictions that keep information DHS possesses away from parents seeking redress and legislators performing their oversight function. The “confidentiality” in 449 made redress of the harm to Aue - one of those supposedly to benefit from that confidentiality - impossible. SB 221, like SB 449, is a shield for agency wrongdoing.

Under SB 449, “We can’t tell you,” DHS has said, “even if we wanted to.” With 221, they could add, “And you couldn’t use it, even if we told you.” But DHS can use the information, garnered in many cases from what we believe are unconstitutionally intrusive student surveys (does your mom smoke pot; does your dad own a gun?), to bolster the agency’s claims for yet more money.

Who is hiding what with this bill? Hint: the statute is “in connection with special morbidity and mortality studies.” How many more children will DHS fail to protect from genuine killers and abusers while busy doing other things, before the legislature removes - rather than expands - the agency’s cloak of invisibility? When will the legislature accept responsibility for allowing something to go badly wrong at DHS Child Protective Services? A bill like this screams that something is wrong. Will the legislature fail to hear it, the way DHS failed to hear the screams of Ashley Pond and the other recent child victims who went unprotected by Child Protective Services? This bill will further legalize cover-ups into “child mortality,” and block parents’ redress through the courts as well as legislative oversight. Read it. That’s what it does.



     

SENATE BILL 246
TOO MANY MANDATORY REPORTERS

SB 246 would make each “public or private official” into a mandatory reporter for animal abuse. Now, we love our dog as much as the next guy, and we hate people who abuse animals. We do think it appropriate that a veterinarian who encounters evidence of animal abuse should be required to report it to the authorities.

But not every “public or private official.” The definition is given at ORS 419B.005. That says:

“(3) ‘Public or private official’ means:
(a) Physician, including any intern or resident.
(b) Dentist.
(c) School employee.
(d) Licensed practical nurse or registered nurse.
(e) Employee of the Department of Human Services, State Commission on Children and Families, Child Care Division of the Employment Department, the Oregon Youth Authority, a county health department, a community mental health and developmental disabilities program, a county juvenile department, a licensed child-caring agency or an alcohol and drug treatment program.
(f) Peace officer.
(g) Psychologist.
(h) Member of the clergy.” (We must intrude: Huh? - clergy deal in human souls, not animals.)
“(i) Licensed clinical social worker.
(j) Optometrist.
(k) Chiropractor.
(L) Certified provider of foster care, or an employee thereof.
(m) Attorney.
(n) Naturopathic physician.
(o) Licensed professional counselor.
(p) Licensed marriage and family therapist.
(q) Firefighter or emergency medical technician.
(r) A court appointed special advocate, as defined in ORS 419A.004.
(s) A child care provider registered or certified under ORS 657A.030 and 657A.250 to 657A.450.
(t) Member of the Legislative Assembly.” (We intrude again: hello, that’s you!)

When everybody has been made a mandatory reporter for all bad things, the result will not be an end to crime or bad acts. It will be an end to social activity. When everybody has to report everybody for doing anything bad, as the roster of reportable bad things multiplies in an ever-expanding effort to protect us from each other, eventually everybody becomes an informer. Everybody becomes an agent of the state. Everybody becomes someone to be feared. Someone not to be invited into one’s home, not to chat with on the street, not to go fishing with. Is this the society we want?



     

SENATE BILL 254
TO ESTABLISH STANDARDS FOR STATE COURT RECORDING
YES, BUT CAN WE TAKE IT FURTHER?

This bill would direct the State Court Administrator to establish uniform standards for recording proceedings in circuit court. That is no doubt good, so long as the standards thus set are good.

We well recall the financial difficulties that recently led Oregon courts to close their doors one day per week to save money. Still, if the money can somehow be found, we would prefer this bill to mandate the uniform recording - in fact, audio and videotaping - of all state, and for that matter, local, court proceedings, rather than just compel the setting of standards for what is clearly audio recording only, in state courts only. We think automatic videotaping would have a salutary effect on all concerned - criminals and police officers, plaintiffs and defendants, judges and bailiffs, etc. - knowing that any misbehavior they might make is recorded for posterity, and review by a higher court, if necessary. The cost of automatic recording and tape storage might be made up for by the decrease in cases brought to appeal, as the prospective appellants, reviewing what they and the others in court had said and done, realize that the videotape (unlike their emotions) shows no basis for an appeal.

And, like uniform videotaping of police arrests on highways, which is becoming ever more common across the country, such videotaping would also ensure good behavior by those whose good behavior we generally assume - but whose bad behavior can be most devastating to society - our police, lawyers and judges.



SB 259

 Lets Make Goliath Stronger

SB 259 would require a person who is suing a public body, when he seeks to inspect a public record for information, to notify the attorney for that public body of his request for the information. The law already requires such notice by a person who is suing the state. This would expand that mandated notice to a person who is suing any public body. We think this a dubious idea. The opposing attorney will receive in discovery all the information the plaintiff has found of relevance to the case, so this bill would not prevent surprises in the court. But that government attorney may be able to pressure the custodian of the record to withhold, in whole or part, with or without good cause, the requested public records. In short, the bill does no good, but invites abuse. And it is abuse against David in a David and Goliath type situation.

The bill invites abuses of power, could weaken our open records laws, and arms Goliath with another weapon against David. Do we need this?



SENATE BILL 260
A TIMELY AND VALUABLE BILL, WITH ONE BIG FLAW

We, like the authors of SB 260, have seen the stories in the media about police officers killing someone whom they stop or try to arrest. We know these situations are often complex, unclear and fast-moving, and we do not pre-judge whether the use of deadly force in any given case was justified or not. We were not there. But we can review bills like this and, in a spirit of supportive assistance, say we think the bill is a timely and valuable one, but still has one big flaw.

SB 260 sets out a detailed and well-thought out structure for handling investigations into the use of deadly force by law enforcement officers. The structure it creates is precise, clear and, we think, wise. However, the bill gives the job of conducting the investigation under its precise, clear and otherwise wise terms to the local District Attorney. We do not think this wise at all.

It is true that D.A.s will, at times, tell police officers that they erred. District Attorneys must be able to convince a judge and jury that a crime was committed, that the defendant did it, that the defendant was lawfully apprehended, and that the evidence against him was lawfully obtained. Sometimes one or more of these conditions is not met, and the D.A. has to tell the police to go back and try again - or drop the case. Nonetheless, the D.A. is a person who, by office, ideology and physical proximity, usually is very close to law enforcement. There is - and should be - a close working relationship between the D.A.’s office and sheriff, county and police officers. But when the problem is that a law enforcement officer may himself have committed a mistake or crime - a deadly mistake or crime - it should not be the local D.A. who looks into it. Even he is human, too, and subject to the pressure of local ties, local friendships and long-standing relations. This bill asks too much of our D.A.s. It asks them to stop being coach to one side and become, for one crucial play, an impartial umpire. For all the good provisions in this bill, that won’t work. Deadly force investigations will, under SB 260, remain political footballs, with cries of foul from all sides This bill won’t get us past the goal posts, despite its good intentions and good drafting.

Why can’t we give it to the Attorney General’s office to investigate these cases? If we truly want fairness and independence of judgment - and all the rest of this bill evidences that goal - then giving the investigation to an office and a person who, by his place in the structure of things can be fair and independent, would make sense.



SB 284: Disguised Attack on Unemployment Compensation

I guess we can’t really blame Associated Oregon Industries for sponsoring this bill. What better way to cut the costs their members face in paying for unemployment compensation in a time when jobs are being lost due to a severe recession? Why not take away unemployment benefits from a person who has been caught drunk driving, or possessing marijuana or cocaine, or refusing a drug test? After all, all those things are illegal, and some, at least, are downright dangerous, not just to the offender but to others, too.

Why not indeed? The answer is this: because unemployment compensation is intended to help people who lost a job, through no fault of their own, to make it through the rough period while job hunting - especially in a difficult recession. The person’s virtues or vices are irrelevant: the purpose of unemployment comp is to help individuals and their families at the time when they most need it. If you want to punish people who do bad things, fine, punish them. If you think Measure 11 was too severe, fine, repeal it. If you want the death penalty for importing narcotics, pass such a law. I have my views on those things, doubtless you do, too. None of them are relevant to whether somebody needs or should get unemployment compensation. This bill mixes apples and Johnny Walker Red. Find some other way to punish law-breakers, some way that isn’t an attack on poor working stiffs who lose their job (which just might be why they had too much to drink or retreated to some drug for solace). This is Prohibition dressed up in modern moral frills and financed by businesses looking to avoid paying unemployment compensation. Unemployment comp is a good idea, and its time has not yet gone. Lets not put on our Sunday best and subvert it.



     

SB 314: A bill for decency and fairness

SB 314 prohibits insurers from using a person’s credit history or a score reached in whole or in part through mathematical formulas applied to that credit history, when deciding if the person is eligible for insurance.

I recognize that there may be some remote connection between a person’s credit history and his insurance risk - although I think that connection unlikely in most cases. Perhaps, if someone is down on his luck, he is more likely to go crazy and kill himself. Perhaps, perhaps, if someone is in financial distress, he is more likely to not notice a stop sign while driving - but so, too is the guy who just won a raise (or the lottery). There is really very little connection between a person’s credit rating and his or her need for car, home, life or other insurance. If he can’t pay for it, he probably won’t go and buy it (except for car insurance; one hopes he’ll get that at any cost in foregone other expenditures).

The insurance industry practice of deciding on, and declining, insurance based upon irrelevant factors serves more to harm the individual and society than it can ever help the insurer. Pass this bill.



SENATE BILL 315
TAX LAW IS SO TAXING

Okay, so the taxation of citizens of one state, buying something in another, is a fairly complex little gnarl on the great tree of American tax law. Perhaps there is a need for this bill. Perhaps there is a Streamlining Sales and Use Tax Agreement that has been written or is being written, or is going to be written if enough states pass legislation like SB 315. So long as, by adopting this bill, Oregon is not assuming an obligation to institute a sales tax - rejected several times by the voters - we can live with it.

But some passages make us wonder.

“The department (of Revenue) is further authorized to take other actions reasonably required to implement the provisions (of this bill).” The text specifies examples thereof, but such actions are “not limited to” those specified. What else might be reasonably required to implement SB 315? A state sales tax? Naw, probably not. That’s a stretch. But one wonders…

“Adoption of the agreement by this state does not amend or modify any law of this state.” - which presumably also means it does not create new law, either, though that is not said.

“The agreement must require signatory states to develop and adopt uniform definitions of sales and use tax sales. The definitions must enable a signatory state to preserve its ability to make policy choices not inconsistent with the uniform definitions.” Again, ….. Hmmmm. Can we define into existence an Oregon sales tax?

Maybe - probably - we’re just over-worrying. But why doesn’t this bill simply state that nothing in it or in any agreement this state may sign onto under this bill, shall be construed to create or require creation of an Oregon sales tax?

Hey - that would be a piece of tax law not so difficult, not so (dare we say it) …. taxing to understand. Or live with. But do we really need this at all, if we don’t have a sales tax?




SB 332 Piling On, on top of the little guy

SB 332 would allow an employer to collect a $1.00 processing fee for each week when payment is made under writ of garnishment, with the fee taken from the wages of the unfortunate employee.

When I was a kid, I remember there was a violation in football that we called “piling on.” It said that once the guy was down, all the other fellows could not just go and jump on top of him. Why does this remind me of that violation?

Once the withholding process is set in place, there is no added expense to the employer of any calculable amount. It takes a bit to set the garnishment withdrawal process in place, but after that, it rolls forward on its own. The actual cost to the employer, under a garnishment that might last for years, is minimal. The cost to the garnished employee, is $104 per every two years; and for a poor guy, that is not insignificant.

Don’t let this ugly bill make it to the finish line, please. Somebody intercept this pass. It’s a foul ball.



SB 333: A Little Fiscal Restraint

SB 333 prohibits state government and school districts from signing collective bargaining agreements before funds have been appropriated to the Department of Education for the State School Fund for the biennium relevant to the agreement.

Somehow, this doesn’t seem very radical or threatening to us, although it is possible that some school districts, or school teachers unions, might disagree. To us, it seems simply a minor imposition of sanity and responsibility - fiscal restraint - on a process that has gotten out of hand over the years. Happily, several powerful legislators are sponsors for this bill, and we hope that they will bring along a majority of others with them. To allow local districts to enter binding contracts to pay wages and benefits before they know what level their chief source of funds is going to be at puts the cart before the horse. SB 333 puts the horse before the cart. What’s wrong with that?



     

SB 334: … and then there were none

This bill shrinks the number of members on the Workers Compensation Board that oversees the W.C. program. Perhaps it may save some money by doing so, perhaps not. But it sets us on a slippery slope, going from the present five-person board to a three-person board. Who knows what’s next? Two people could easily deadlock in voting, so if we want to streamline the board further, lets just make it a one-person post. Of course, if that person were less than an angel, possessed of human bias, his word would be gospel. What view might his bias tend to? Well, the future is hard to predict, as Mark Twain said, but a guess might be had from the party that requested the bill. It is Liberty Northwest Companies, parent, I believe, of Liberty Mutual Insurance. And if Liberty’s client companies have to pay less in workers compensation expenditures, then we at the insurance carrier can have a bigger margin of profit without anyone knowing or suffering the loss for it. Except, perhaps, the injured worker. But what does he matter?



SENATE  BILL  424

STRENGTHENING  LEGAL GENDER  BIAS

 

 

For centuries, women were discriminated against: up into the 19th century they could not vote; even further back, they could not own property; up till the 1980s, if a female was the victim of a "family dispute"--legalese for a husband kicking the stuffing out of his wife--the law would not protect the female. In the past couple decades, though, the shoe has been on the other foot, and now it is men who complain of receiving the short end of the legal stick.

 

Oregon family law statutes include a small "gender neutral" section that states that the husband in a divorce proceeding is not presumed to be the worse parent, nor the wife inherently more capable of raising the child or children, by virtue of gender. Men across the state, if they knew about this section of ORS would doubtless be thankful for it, for men love their children as much as women, and as more and more women take jobs and pursue careers, there is less and less basis for automatically assuming the female to be the spouse with the greater time and ability to handle the demands of a child's custody.

 

This bill, we think, would reverse the effect of that "gender neutral" statute--to the extent it has been effective, which many men would say is but slight. Courts already have discretion in awarding custody when the court issues a restraining order under the Family Abuse Prevention Act. Obviously, the exercise of that discretion will usually give custody to the parent alleged to have been the victim, not the abuser, and hence, not to the husband, who is usually alleged to be, and in fact usually is, the physically abusive parent (the question of emotional abuse may be another thing entirely).  Thus, the child is already  ordinarily already given into the custody of the "petitioner"--the mom--in most cases.

 

This bill would not just write that into stone. It would write the father out--also in the stone tablets of the law. It allows the court to exercise its discretion to award the custody to the petitioner, "or, at the request of the petitioner, to the respondent." It does not give the respondent any statutory basis for requesting  custody of the child or children. We recognize that whoever the alleged abuser is, he (or she) will seldom be awarded custody now, and that is not unreasonable.  Yet there may be circumstances where the respondent  (i.e.,  the husband)--for reasons of closer ties to the children, for instance, or the lack of a drug or alcohol problem the petitioner may have in her record--can be and should be the custodial parent. This bill would make that virtually impossible. In disguise of giving a discretion to the court, it actually reduces the court's discretion. In the guise of granting a new (but actually long-established) power to the petitioner (mom) it would destroy a weak, but still extant, power of the respondent (dad).

 

With or without this bill the courts will likely, in most cases, customarily award custody in the manner in which custody is already ordinarily awarded, i.e., to the mom. But SB 424 would, by its silence as to any right of the respondent to seek custody, eliminate the ability of the father to request that custody. It might even eliminate the power of the court to give him that custody on its own. To the extent the court already has such authority, if it is independent from statute, that power might remain; or it might die. That death would be consistent with the intent of the bill. At the very least, SB 424 would give an argument for those who would disempower men entirely in family court.

 

If this passes, where do we go from here? Do we next take away the father's right to vote? His right to hold property?  How far must the pendulum swing into the realm of injustice against men, before we admit that the goal should not be statutory gender revenge, but equal justice for both genders--men and women?



SENATE BILL 844
BILL BITES MAN

In SB 844, so far as we can see--and at 6 1/2 pages the bill is not so long as to cross our eyes--the only reference to new criminal punishments for the owner of a dog that bites a person comes in Section 8 of the bill. It adds subsections 5 and 6 to existing law, and 5 and 6 deal with class A and class C misdemeanors. Presumably--we are not criminal law lawyers--these misdemeanors impose the possible "30 days imprisonment, $1,250 fine, or both" that the bill Summary refers to. Assuming that summary is correct, we think this legislation is a case of bill bites man.

We do not dispute that a dog that bites a person is a dangerous thing. As those of you who have seen my right hand recently know, I just tangled with a dog and my hand lost. It was my fault; I behaved stupidly with the animal. Even so, the animal is now clearly a danger, and I do not oppose some form of restraint or restriction placed on it, and on its owner, to keep other people safe--including, potentially, even being put to death. (The dog, that is.) What I do oppose is the possibility of disrupting the owner's life. Thirty days in jail for most people means the loss of their job. That can mean the loss of the home or rental space, especially if the person takes more than a few weeks to find a new job--and since the person is now somebody who just left jail, he is not going to find work easily. At the worst, the bill could add to the roster of people who re hungry, on welfare, or even homeless, in Oregon. According to the existing law, the owner can already be fined $500; that, plus the death of the guy's dog, is probably enough punishment for the guy who owned, and failed to restrain, the animal.

Section 8 of this bill takes a harm to one person (the person bit by the dog) and multiplies it to harm another person, his wife and his kids. Is this bright? Make the owner put the dog to death if we must--he can buy another dog, say a poodle or schnauzer, or something equally innocuous. But do not, simply because one dog somewhere wrecked one person's leg or hand, go and legislatively wreck the lives of others. Lets take a bite out of this legislation and put section 8 to sleep.

 


HOUSE BILL 2101
A CONSOLIDATION OF GOVERNMENT POWER

HB 2101 would merge several existing departments or parts of departments into a new Oregon Homeland Security Department .It’s goal is to streamline and improve Oregon’s ability to respond to the ongoing threat of terrorism, or an actual attack. It may or may not do that. What it will do is further empower government, creating a new agency that centralizes various government powers and authorities within itself.

America was constructed upon a great debate about the central powers of the government. It is a debate that the centralizers - the Federalists - won, yet the Federalist victory was built upon a perhaps even more profound victory for those who feared government power. It is this mix that has defined American national government, and has defined the governments of the states, as well. The Founding Fathers created a separate Executive, Legislature and Judiciary, and set them against each other; they retained great power and authority in the states; and they allowed the states to devolve power further back, closer to the people, by the chartering of cities and counties. They separated church from state. They built a system of checks and balances, precisely to reign in governmental power. They wrote a Bill of Rights that limited the powers of the federal government, and the states, against the individual citizen. The states, following the same practical and philosophical imperatives, did the same. This created a structure that has survived 200 years, a structure that sacrifices some amount of probable efficiency to better insure liberty. HB 2101 will not end that structure. But the entirety of that structure warns against HB 2101.

HB 2101 ends the Oregon Office of Emergency Management and transfers its powers to the new Oregon Homeland Security Department, including the power to bring proceedings against any local emergency agency. It abolishes the Interagency Hazard Communication Council and transfers its powers, including those over the non-emergency management and clean-up of such wastes, to the new Department. It makes the Fire Marshall’s office a branch of the new Department. It takes the search and rescue functions from both the Emergency Management Department and the Oregon Department of Aviation, and brings them, too, into this new Department.

And it takes the State Police office that administers federal grants for fighting drug use and violent crime and puts that power in this new Department, too, making the new Department the arbiter of the financial survival of every police, fire and emergency services agency of every county and city in Oregon. Every city and county should fear this bill.

So, too, should all who understand that liberty is threatened from within as often as from without, and that this bill, by consolidating so many powers under one hand, is a threat more immediate and more likely, even if less explosive, than that of the terrorists. We in Oregon probably will not suffer an attack by the Jihadists; but we will suffer an erosion of our liberty if we create this new department through our fear of the terrorists.