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January 10th, 2007 Ian Demsky | News Stories
 

Loopy Laws

WW presents some screwy laws the state Legislature should fix in 2007.

     
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This week, elected officials from Astoria to Heppner drove to Salem once again to spend our money and make our laws.

Lots and lots of laws. In 2005 Oregon House and Senate passed more than 850 bills—everything from requiring insurers to boost coverage for mental illness to War on Meth measures that turned Claritin-D and NyQuil into prescription drugs.

The vast majority of them work just fine. But there are a few that are, in a word, dopey.

In October, for example, WW reported that legislators accidentally made selling marijuana the only basic drug crime where prison is recommended for first-time offenders.

After that inanity came to our attention, we started asking around. The Legislature's senior deputy counsel, Dexter Johnson, told us only a few patently odd laws remain on the books. One prohibits children from being elevator operators. Another says if the sky is depicted on an Oregon license plate, it must be blue.

"We have more than 14,000 pages of laws in this state," he says. "And our office only came up with three or four examples of things that are a bit peculiar."

But we talked to defense lawyers, prosecutors, judges, government officials and special interests, like Basic Rights Oregon and the Oregon Newspaper Publishers Association.

And we think there are several more loopy laws—some practical, some profane. Many of these laws are so absurd it makes us think the Public Commission on the Oregon Legislature was right when it called for a law banning VWI—voting while intoxicated—after allegations arose that several lawmakers were smashed on the last day of the 2005 session.

Here are a few laws that deserve to be reviewed:

Asking for Her Hand

The next time your wife asks you for some money to buy those Manolo Blahniks she's had her eye on and gives you that special wink, realize you may be about to break the law—Oregon's 1971 prostitution law, to be exact, which defines the crime as engaging in sexual "contact" or "conduct" for a fee.

But, here at WW, we've found a loophole you can exploit and still remain an upstanding citizen.

The oddity comes in the part of the law that defines "sexual conduct" and "sexual contact." Sexual conduct is simply intercourse or oral sex. But sexual contact has an additional stipulation, defining it as touching the sex organs or intimate parts of "a person not married to the actor" for the purpose of arousal or gratification.

So it's a crime, punishable by up to a year in jail, to pay your wife for sex. And it's a crime to pay your girlfriend for sex. It's a crime to pay your wife for a blowjob. And it's a crime to pay your girlfriend for a blowjob.

It's also a crime to pay your girlfriend for a hand job. But if you pay your wife for a hand job, it does not count as prostitution in the state's eyes.

Where did the marriage hand-job exemption come from? We wish we could tell you.

We asked legislative counsel Johnson where the 36-year-old difference in definitions originated. He emailed back: "Interesting question.... Unfortunately, the Office of Legislative Counsel does not give legal advice to anyone other than the Legislative Assembly and its members. I think answering this question would constitute giving legal advice and therefore recommend that you consult private counsel."

Also, because the state doesn't let them marry, the hand job exemption for married people discriminates against gays.

Over My Dead, Gay Body

Another instance of discrimination against gays, according to activists: a quirk in the mire of laws governing the state retirement system.

The state's Public Employees Retirement System lets you specify a beneficiary who would continue to get paid your monthly benefits if you die. But a law dating back to 1997 says you can change that beneficiary only if you get divorced or the person dies.

Gay couples can name their domestic partners as beneficiaries, but they can't change their beneficiaries if they split up. Since they can't marry, they can't get divorced.

The law, which also applies to unmarried couples who are straight (but have the option of marrying), is currently being challenged jointly by two gay couples with nearly identical cases.

One of those cases involves Katharine English, the former chief judge of the Confederated Tribes of the Grand Ronde and longtime Multnomah County juvenile court referee.

In 2002, she split from her partner of 23 years, and since then English has been going through the grueling process of trying to get her now ex-partner removed as her beneficiary.

"When they denied me and I knew married people got it, I was just so angry I decided to sue," says English, 62, who spoke from Salt Lake City, where she's now a substitute teacher and enrolled in a master's program in creative writing.

Portland lawyer Mark Johnson, one of the attorneys working on the case, says he expects a decision from the PERS board this spring, which is the last hoop before a court challenge.

"But [the Legislature] could fix these problems anytime they wanted," he says. "They could just wake up and smell the coffee."

The PERS lawsuit is one of several challenging aspects of state law that treat gay couples differently than straight couples.

"We're filing the lawsuits partly to educate the public on the ways in which the law discriminates against us," Johnson says. "We're going to go after them piece by piece. Eventually, they'll get tired of paying their lawyers."

Screw-You Turn

Every driver knows you're supposed to use your signal when making a turn or changing lanes. But did you know that you have to have your turn signal on for at least 100 feet before making your move?

Sound OK to you? Think back to your high-school physics class. Distance = rate x time, remember?

It takes a car traveling 60 miles per hour a little more than one second to travel 100 feet, while a car going 10 miles per hour during a rush-hour logjam or putt-putting down a quiet, residential street would take nearly seven seconds to cover the same distance.

So, under this 1983 law, the more dangerous the speed, the shorter the signal. Wait, what?

"We don't write the laws, we just enforce them," says Portland Police Lt. Mark Kruger. "It's been that way for many, many years, and I don't know what the legislative intent was."

But isn't changing lanes at 60 miles per hour a situation where you'd want a driver to signal for longer than just a second?

"I would think so, and that's how I personally try to do it when I'm driving down the road," Kruger says. "But we have what we have."

Kruger says his officers usually apply this law to those making dangerous lane changes on the highway. But Alejandro Queral, director of the Northwest Constitutional Rights Center, says, "We have seen examples of these laws being used as pretext to pull over African Americans and Latinos."

Almost as boil-brained is the fact that you could come to a complete halt at a stop sign on a totally empty road, then turn on your signal, but no matter how long you sat there, you'd still violate the 100-foot requirement.

Meddle-urgy

Consider this: Your friend across town just invested in some fancy-shmancy copper gutters and offers to give you his old aluminum ones. You've got them in the back of your pickup along with a metal ladder he lets you borrow. A cop pulls you over and says you have to show her a receipt. You didn't get one. You go to jail for six months.

We doubt there are a slew of innocent gutter-owners rotting away in Oregon's jails, but a 1971 law says that if you buy new, used or secondhand metals or metal objects, you have to keep a receipt for a year and be able to show it to a cop "on demand" or face up to six months in jail. (The law exempts iron-based and precious metals. It also exempts purchases made from a manufacturer or distributor.)

The law was intended to stop tweakers from climbing under your house while you are at work and stealing your copper pipes or grabbing your aluminum gutters or breaking into a construction site and taking whatever they can get their hands on for scrap.

But this law makes criminals of all of us. We'd be willing to bet more Portlanders are guilty of breaking this law than of committing some traffic violations.

Did you buy a washtub at a garage sale? How about a pair of Leki hiking poles from WW's classifieds? Got a titanium wedding ring?

The law says you don't need a receipt for your metal goods after a year—but without one, how can you prove to the cops how long you've owned something?

Multnomah County prosecutor James Hayden acknowledges the law's silliness on paper. But changing it or getting rid of it, he says, would hurt public safety by hampering law-enforcement efforts to crack down on the rampant problem of drug-fueled property thefts.

"Just because a law may apply [to benign conduct] doesn't mean it's unlawful or unconstitutional," Hayden says. "I'm not aware of any abuse. Don't fix what's not broken."

It's difficult to charge a person with theft for carrying around a collection of pipes and wire in his truck because it's hard to prove where the materials came from, Hayden says. So, instead, police nail the thieves for a paperwork violation.

Hayden's part of an effort to get the Legislature to beef up laws and penalties for metal theft, not repeal them.

Give Us a Brake

Think back to your first Big Wheel. You zipped around your neighborhood, so low to the ground that 4 miles per hour felt like flying. But when you were about to crash into a car or a house or your neighbor's kid sister, what did you do?

You locked your feet on the pedals or pedaled backwards.

The same principle applies to fixed-gear bikes, or "fixies," which don't have separate hand or coaster brakes.

Jonathan Maus, who runs the BikePortland.org blog, says fixies, once the purview of the bike-messenger set, are slowly gaining wider popularity.

"Some people see it as a beautiful, pure experience," he says. "The bike is a true extension of their body. From your legs to the bike to the ground is just a pure thing."

Under Oregon law, bicycles "must be equipped with a brake that enables the operator to make the braked wheels skid on dry, level, clean pavement."

But last year, conflicting Multnomah County court decisions left the status of fixies in limbo. Judge Pro Tem Gregg Lowe ruled that a cyclist must have a braking device separate from her musculature. Several fixie riders were convicted and ordered to pay $73 fines.

Another judge ruled fixies did meet the letter of the law. So, with their status undecided, countless bikers remain in a legal jam, risking a fine every time they leave the house.

Father Knows Best

There are few bonds as sacred as the one between parent and child. As we grow older, we think back wistfully on those golden summer evenings playing catch with Dad, the glorious fishing trips even when we didn't catch anything, the ghost stories he told around the campfire, the time he bought us a table dance to celebrate that ribbon in the middle-school spelling bee.

Uh, what was that last one?

In Oregon, statutes dating back to 1971 say it's not a crime to expose minors to "obscenity"—nude revues, magazines and movies—if you're their parent or legal guardian. (Children are still prohibited from places that serve alcohol.)

So, if you're having trouble figuring out what to get little Timmy for his 12th birthday....

On second thought, maybe there's not a problem.

"Let me just check with our attorney."

Admittedly, this law is something that journalists might be more passionate about than your Average Joe. But it's important for anyone who believes that our local governments should be transparent and open as they go about the public's business—as they pave our roads, enforce our laws, keep our air clean and spend our money.

A recent court decision has much of Oregon's Fourth Estate worried that government agencies are going to be able to keep unflattering information secret just by funneling it through their attorneys.

So, for example, if you asked the City of Portland whether funds for Mayor Tom Potter's Visioning project were spent properly, the city could ask its attorney to look into it and then claim it didn't have to reveal its findings because of attorney-client privilege.

The state's public-records laws, which date back to 1973, say the vast majority of the records produced by governments belong to the public and should be available to anyone who wants to see them. But, reasonably, the law does allow legal advice from a government's lawyers to remain confidential.

The troubling case, which was decided by the state Court of Appeals last year, goes back to a March 2002 request by a Klamath County resident for two reports the local school board commissioned after allegations arose accusing district employees of financial mismanagement.

The board asked its attorney to look into the allegation, and he, in turn, hired a private investigator and an auditor. When the investigation was complete, the school district issued a press release stating, "We believe there is clear evidence of no wrongdoing!" But when resident Bert Teamey requested copies of the reports several months later, his request was denied by the district, which invoked attorney-client privilege as the reason it would not release them.

In a brief urging the Supreme Court to reverse the Appeals Court decision, the Oregon Newspaper Publishers Association, which is made up of many of the state's newspapers, argued: "Without the access provided by the Public Records Laws, the ability of citizens to educate and inform themselves about the bases for governmental actions and decisions will be significantly impaired."

ONPA executive director J. LeRoy Yorgason says he hasn't seen a pattern of public agencies purposefully hiding information by routing reports through their attorney and then claiming privilege, but he wants to nip such a trend in the bud before it starts.

"We agree legal advice should be confidential," he says. "But written records of facts should be public records."


Oregon Revised Statutes citations for the laws in this story:

Prostitution (ORS 167.007)

PERS beneficiaries (ORS 238.305)

Unlawful turns and lane changes

(ORS 811.335 and 811.375)

Failing to maintain a metal purchase record

(ORS 165.107)

Bicycle brakes (ORS 815.280)

Obscenity and minors (ORS 167.065 to 167.085)

Public records law and attorney-client privilege (ORS 192.501, 192.502 and 40.225)

You can look them up at leg.state.or.us:8765.

 
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