72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 364
 
                           C-Engrossed
 
                         House Bill 3329
                  Ordered by the Senate June 20
  Including House Amendments dated May 1 and May 16 and Senate
                    Amendments dated June 20
 
Sponsored by COMMITTEE ON JUDICIARY (at the request of Attorney
  General Hardy Myers)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
 
  Authorizes Department of Justice to initiate and participate in
efforts to prepare for, and to assist in, delivery of services to
individuals traumatized by acts of mass violence.
  Authorizes Attorney General to bring class action involving
claim relating to securities in which some class members are not
agencies or officers of state or political subdivision of state.
  Modifies Attorney General's duties relating to federal do not
call registry.
   { +  Allows businesses to participate in Oregon's do not call
program.
  Prohibits Attorney General from terminating contract with do
not call program administrator except under specified
circumstances. + }
  Declares emergency, effective September 1, 2003.
 
                        A BILL FOR AN ACT
Relating to Department of Justice; creating new provisions;
  amending ORS 180.060, 646.567, 646.569, 646.572 and 646.638;
  and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + Section 2 of this 2003 Act is added to and made
a part of ORS 147.005 to 147.365. + }
  SECTION 2.  { + (1) The Department of Justice may initiate and
participate in planning, training and organizational efforts
intended to prepare to deliver services to individuals
traumatized by an act of war, terrorism or sabotage or a criminal
act that results in the death of, or physical injury to, numerous
individuals or that results in the massive destruction of
property.
  (2) The department may assist in delivering services to
individuals traumatized by an act of war, terrorism or sabotage
or a criminal act that results in the death of, or physical
injury to, numerous individuals or that results in the massive
destruction of property. + }
  SECTION 3. ORS 180.060 is amended to read:
  180.060. (1) The Attorney General shall:
  (a) Appear for the state in the trial of all civil and criminal
causes in the Supreme Court or the Court of Appeals in which the
state may be directly or indirectly interested.
  (b) Appear for the state, when required by the Governor or the
legislature, in any court or tribunal in any cause in which the
state is a party or in which the state is directly interested.
  (c) Appear, commence, prosecute or defend for the state all
causes or proceedings in the Supreme Court or the Court of
Appeals in which the state is a party or interested.
  (d) Appear, commence, prosecute or defend any action, suit,
matter, cause or proceeding in any court when requested by any
state officer, board or commission when, in the discretion of the
Attorney General, the same may be necessary or advisable to
protect the interests of the state.
  (2) The Attorney General shall give opinion in writing, when
requested, upon any question of law in which the State of Oregon
or any public subdivision   { - thereof - }   { + of the
state + } may have an interest, submitted to the Attorney General
by the Governor, any officer, department, agency, board or
commission of the state or any member of the legislature.
  (3)(a) Except as provided in paragraph (b) of this subsection,
the Attorney General   { - shall - }   { + may + } not render
opinions or give legal advice to others than   { - such - }
 { + the + } state officers listed in subsection (2) of this
section.
  (b) The Attorney General may, at the request of a state officer
listed in subsection (2) of this section  { - , - }  { + :
  (A) + } Render an opinion to an officer, agency or
instrumentality of the federal government if the Attorney General
determines that providing the opinion is necessary to meet a
condition for assumption by the state of administrative or
enforcement responsibilities under federal law.
   { +  (B) Represent the state, an agency or officer of state
government as defined in ORS 174.111 or a political subdivision
of the state as a lead plaintiff or representative party in a
class action involving a claim relating to a security as defined
in ORS 59.015 in which the putative class members include persons
that are not agencies or officers of state government as defined
in ORS 174.111 or political subdivisions of the state. + }
  (4) The Attorney General shall consult with, advise and direct
the district attorneys in all criminal causes and matters
relating to state affairs in their respective counties. The
Attorney General may require their aid and assistance in all
matters pertaining to the duties of the Attorney General in their
respective counties and may, in any case brought to the Supreme
Court or the Court of Appeals from their respective counties,
demand and receive assistance of the district attorney from whose
county such case or matter is brought.
  (5) The Attorney General shall, when requested, perform all
legal services for the state or any department or officer of the
state.
  (6) The Attorney General shall have all the power and authority
usually appertaining to such office and shall perform the duties
otherwise required of the Attorney General by law.
  (7) The Attorney General shall assign to each agency,
department, board or commission an assistant who shall be
 { - its - }  { + the + } counsel responsible for
 { - insuring - }   { + ensuring + } the performance of the legal
services requested by   { - such - }   { + the + } agency,
department, board or commission. The counsel shall be a person
trained in the
  { - law concerning such - }   { + laws affecting the + }
agency, department, board or commission and shall be approved by
the chief administrator
  { - thereof, provided, however, such approval shall not be
unreasonably withheld. Such approval may be withdrawn at any time
by - }  { +  of the agency, department, board or commission. + }
The chief administrator   { - and thereupon - }   { + may not
unreasonably withhold approval of the assistant. If the chief
administrator withdraws approval, + } the Attorney General shall
assign replacement counsel to the agency, department, board or
commission.
  (8) The Attorney General   { - shall - }   { + may + } not
appear  { + in an action, suit, matter, cause or proceeding in a
court or before a regulatory body + } on behalf of   { - any - }
 { + an + } officer,   { - department, - } agency,
 { + department, + } board or commission without   { - its
consent in any action, suit, matter, cause or proceeding in any
court or before any other federal or state regulatory body - }
 { +  the consent of the officer, agency, department, board or
commission + }.
  (9) The responsibility of establishing policies for each
agency, department, board or commission shall rest upon the chief
administrator   { - thereof - }  { +  of the agency, department,
board or commission + }.
  SECTION 4. ORS 646.567 is amended to read:
  646.567. As used in ORS 646.567 to 646.578, unless the context
otherwise requires:
  (1) 'Charitable organization' means an organization organized
for charitable purposes as defined in ORS 128.801.
   { +  (2) 'Facsimile machine' has the meaning given that term
in ORS 646.872. + }
    { - (2) - }   { + (3) + } 'Information about a party' means
information specific to a party, including but not limited to the
name and
  { - residence - }  address of the party and the method by which
the party paid the fee required by ORS 646.574.
    { - (3) - }   { + (4) + } 'Party' means a
 { - residential - }  telephone customer of a telecommunications
company.
    { - (4) - }   { + (5) + } 'Qualified trade association' means
an organization with at least the following characteristics:
  (a) Written bylaws or governing documents including a code of
conduct for its members; and
  (b) Criteria and procedures for expelling or suspending members
who violate the association's bylaws or governing documents.
    { - (5) - }   { + (6) + } 'Telephone solicitation' means the
solicitation by telephone  { + or facsimile machine + } by any
person of a party   { - at the residence of the party - }  for
the purpose of encouraging the party to purchase property, goods
or services, or make a donation.  ' Telephone solicitation' does
not include:
  (a) Calls made in response to a request or inquiry by the
called party;
  (b) Calls made by a charitable organization, a public agency or
volunteers on behalf of   { - the - }   { + an + } organization
or agency to members of the organization or agency or to persons
who have donated or expressed an interest in donating goods,
services or real estate;
  (c) Calls limited to polling or soliciting the expression of
ideas, opinions or votes; or
    { - (d) Business to business contacts. - }
   { +  (d) Calls to a business for the purpose of encouraging
the business to purchase the caller's property, goods or
services. + }
  SECTION 5. ORS 646.569 is amended to read:
  646.569. (1) A person may not engage in the telephone
solicitation of a party at a telephone number included on the
then current list { + :
  (a) + } Published by the administrator of the telephone
solicitation program established under ORS 646.572 and
646.574 { + ; or
  (b) If the Attorney General has designated a federal 'do not
call' registry under ORS 646.572, made available by the federal
agency that maintains the registry + }.
  (2) For purposes of this section:
  (a) 'Predecessor of a business enterprise' means a financial
institution as defined in 15 U.S.C. 6827 that has:
  (A) Merged with or been acquired by the business enterprise for
which the person is calling; or
  (B) Sold or assigned an account of a party who has previously
purchased from the business enterprise, to the business
enterprise for which the person is calling.
  (b) 'Telephone solicitation' does not include a person
soliciting business from prospective purchasers who have
previously purchased from:
  (A) The person making the solicitation;
  (B) The business enterprise for which the person is calling; or
  (C) A predecessor of the business enterprise for which the
person is calling.
  SECTION 6. ORS 646.572 is amended to read:
  646.572.  { + (1) + } The Attorney General   { - shall - }
 { + may:
  (a) + } Advertise for bids and enter into a contract with a
person to act as the administrator of the telephone solicitation
program described in ORS 646.574 { + ; or
  (b) Designate a federal 'do not call' registry, including but
not limited to the registry maintained by the Federal Trade
Commission under 16 C.F.R. 310 + }.
   { +  (2) + } The  { + Attorney General may include in the + }
contract   { - may include - }   { + with the administrator + }
any provision that the Attorney General determines is in the
public interest.
   { +  (3) If the Attorney General receives a request from a
party to register the party's telephone number on the federal 'do
not call' registry, the Attorney General shall forward the
request to the federal agency that maintains the registry. + }
  SECTION 7.  { + If, on the effective date of this 2003 Act,
there exists a contract entered into under ORS 646.572,
notwithstanding any provision of the contract and absent
stipulation of the parties to the contract, the Attorney General
may not terminate the contract before January 14, 2004, except
upon the occurrence of an event that is specified in the contract
and grants the Attorney General the right to terminate the
contract. + }
  SECTION 8.  { + Section 7 of this 2003 Act is repealed on
January 2, 2004. + }
  SECTION 9. ORS 646.638 is amended to read:
  646.638. (1) Except as provided in subsection (8) of this
section,   { - any - }   { + a + } person who suffers
 { - any - }   { + an + } ascertainable loss of money or
property, real or personal, as a result of willful use or
employment by another person of a method, act or practice
declared unlawful by ORS 646.608 or 646.648, may bring an
individual action in an appropriate court to recover actual
damages or $200, whichever is greater. The court or the jury, as
the case may be, may award punitive damages and the court may
provide the equitable relief the court considers necessary or
proper.
  (2) Upon commencement of   { - any - }   { + an + } action
brought under subsection (1) of this section the party bringing
the action shall mail a copy of the complaint or other initial
pleading to the Attorney General and, upon entry of any judgment
in the action, shall mail a copy of the judgment to the Attorney
General. Failure to mail a copy of the complaint shall not be a
jurisdictional defect, but a court may not enter judgment for the
plaintiff until proof of mailing is filed with the court. Proof
of mailing may be by affidavit or by return receipt of mailing.
  (3) Except as provided in subsection (4) of this section, the
court may award reasonable attorney fees to the prevailing party
in an action under this section.
  (4)  { + If the plaintiff maintained the action under this
section as a class action under ORCP 32, + } the court may not
award attorney fees to a prevailing defendant under   { - the
provisions of - } subsection (3) of this section   { - if the
action under this section is maintained as a class action
pursuant to ORCP 32 - } .
  (5) Any permanent injunction or final judgment or order of the
court made under ORS 646.632 or 646.636 is prima facie evidence
in an action brought under this section that the respondent used
or employed a method, act or practice declared unlawful by ORS
646.608 or 646.648, but an assurance of voluntary compliance,
whether or not approved by the court, shall not be evidence of
the violation.
  (6) Actions brought under this section shall be commenced
within one year from the discovery of the unlawful method, act or
practice. However, whenever any complaint is filed by a
prosecuting attorney to prevent, restrain or punish violations of
ORS 646.608 or 646.648, running of the statute of limitations
with respect to every private right of action under this section
and based in whole or in part on any matter complained of in
 { - said - }  { +  the + } proceeding shall be suspended during
the pendency   { - thereof - }  { +  of the proceeding + }.
  (7) Notwithstanding subsection (6) of this section, in
 { - any - }  { + an + } action brought by a seller or lessor
against a purchaser or lessee of real estate, goods or services,
the purchaser or lessee may assert any counterclaim the purchaser
or lessee has arising out of a violation of ORS 646.605 to
646.652.
  (8) This section does not apply to { + :
  (a) + }   { - Any - }   { + A + } method, act or practice
described in ORS 646.608 (1)(z)  { - . Actions for violation of
laws relating to odometers are provided under ORS 815.410 and
815.415. - }  { + ; or
  (b) A violation of ORS 646.608 (1)(ff) that is a business to
business contact. + }
  SECTION 10. ORS 646.638, as amended by section 18, chapter 924,
Oregon Laws 2001, is amended to read:
  646.638. (1) Except as provided in subsection (8) of this
section,   { - any - }   { + a + } person who suffers
 { - any - }   { + an + } ascertainable loss of money or
property, real or personal, as a result of willful use or
employment by another person of a method, act or practice
declared unlawful by ORS 646.608 or 646.648, may bring an
individual action in an appropriate court to recover actual
damages or $200, whichever is greater. The court or the jury, as
the case may be, may award punitive damages and the court may
provide the equitable relief the court considers necessary or
proper.
  (2) Upon commencement of   { - any - }   { + an + } action
brought under subsection (1) of this section the party bringing
the action shall mail a copy of the complaint or other initial
pleading to the Attorney General and, upon entry of any judgment
in the action, shall mail a copy of the judgment to the Attorney
General. Failure to mail a copy of the complaint shall not be a
jurisdictional defect, but a court may not enter judgment for the
plaintiff until proof of mailing is filed with the court. Proof
of mailing may be by affidavit or by return receipt of mailing.
  (3) Except as provided in subsection (4) of this section, the
court may award reasonable attorney fees to the prevailing party
in an action under this section.
  (4)  { + If the plaintiff maintained the action under this
section as a class action under ORCP 32, + } the court may not
award attorney fees to a prevailing defendant under   { - the
provisions of - } subsection (3) of this section   { - if the
action under this section is maintained as a class action
pursuant to ORCP 32 - } .
  (5) Any permanent injunction or final judgment or order of the
court made under ORS 646.632 or 646.636 is prima facie evidence
in an action brought under this section that the respondent used
or employed a method, act or practice declared unlawful by ORS
646.608 or 646.648, but an assurance of voluntary compliance,
whether or not approved by the court, shall not be evidence of
the violation.
  (6) Actions brought under this section shall be commenced
within one year from the discovery of the unlawful method, act or
practice. However, whenever any complaint is filed by a
prosecuting attorney to prevent, restrain or punish violations of
ORS 646.608 or 646.648, running of the statute of limitations
with respect to every private right of action under this section
and based in whole or in part on any matter complained of in
 { - said - }  { +  the + } proceeding shall be suspended during
the pendency   { - thereof - }  { +  of the proceeding + }.
  (7) Notwithstanding subsection (6) of this section, in
 { - any - }  { +  an + } action brought by a seller or lessor
against a purchaser or lessee of real estate, goods or services,
the purchaser or lessee may assert any counterclaim the purchaser
or lessee has arising out of a violation of ORS 646.605 to
646.652.
  (8) This section does not apply to { + :
  (a) + }   { - Any - }   { + A + } method, act or practice
described in ORS 646.608 (1)(aa)  { - . Actions for violation of
laws relating to odometers are provided under ORS 815.410 and
815.415. - }  { + ; or
  (b) A violation of ORS 646.608 (1)(gg) that is a business to
business contact. + }
  SECTION 11.  { + The amendments to ORS 180.060 by section 3 of
this 2003 Act apply to actions commenced before, on or after the
effective date of this 2003 Act. + }
  SECTION 12.  { + This 2003 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2003 Act takes effect
September 1, 2003. + }
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