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2012-81-Minutes for Meeting February 10,2012 Recorded 2/28/2012DESCHUTES COUNTY OFFICIAL RECORDS NANCY BLANKENSHIP, COUNTY CLERK 1iJ YI COMMISSIONERS' JOURNAL 02/28/2012 08;36;08 AM 111111111111111111111111 III 2012-81 Do not remove this page from original document. Deschutes County Clerk Certificate Page Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF MEETING - JUDGE DAVE BREWER DESCHUTES COUNTY BOARD OF COMMISSIONERS FRIDAY, FEBRUARY 10, 2012 Allen Room, Deschutes Services Building Present were Commissioners Anthony DeBone, Alan Unger and Tammy Baney. Also present were Ernie Mazorol, Court Administrator; Dave Brewer Chief Judge, Oregon Court of Appeals; Judge Alta Brady, Mark Pilliod, Chris Bell, John Laherty and Connie Scorza, County Counsel's office. No other citizens or media were in attendance. Chair DeBone opened the meeting at 12:1Op. m. Judge Brewer explained a bit about his background. He began as a Trial Judge in 1993; was an Appellate Judge for 13 years and Chief Judge for the past seven years. He has gone through the system and has an overall idea of how it works or should work. However, decisions need to be made in a certain way. He feels Deschutes County is a model of how many should be done in the State. This includes collaboration and partnerships, and working together to try to solve a variety of problems. The ten Appellate Judges are elected statewide. They sit in panels of three Judges and have oral arguments three times a month. They deal with 3,000-3,800 appeals each year. They are the busiest Appellate Judges per caseload in the U.S. About 60% are criminal cases where appeals are more of a formality. Budgets are stretched thin, and criminal cases take most of these resources. If most goes to the criminal piece, that leaves little for the rest. The Judges understand the nature of the economy and land use issues; this helps them make decisions and get out of the way. Minutes of Board of Commissioners' Joint Meeting with Judge Brewer & Others Friday, February 10, 2012 Page 1 of 8 Pages Everyone wants reliable finality with decisions. The judicial system in general is stretched so thin, it takes far too long for things to get done. The legislature understands this and passed a bill in 2011 to dedicate funding for this purpose. This is being discussed again. It is critical to the economy to deal with these issues in a timely manner. The problem is finding resources for all to get their work done. The courts will do what they have to do, even if there are cuts, but everyone needs to know what the results could be. He feels the land use process is flawed and needs to be restructured. Often parts of this process have to be rushed through, while other parts will languish. A panel has met to review the process to find the problem areas and figure out how to streamline the process. The land use review process is awkward, and the standards of review may not always be applied in the best way. All parties want and deserve to know the finality of an issue as soon as they can. He asked if the group felt that LUBA should become a court, or if there are other ideas that might help the situation. Commissioner Baney said that the public land use process can be very tedious, in part due to an effort to make sure everyone has been heard. She asked how much of that goes into the decision-making process. Judge Brewer stated that the cases that give them the most difficulty are those where the government entity is not clear about what it wants to convey. He cannot guess and substitute his judgment in these cases. They try to find ways to soften this problem. When it comes to an ambiguous work, if there is something on the record that sheds light on what was meant, they can rely on that. Deference can be given to the local entity if all else has been consistent. Examples of how a decision might be applied are helpful, especially if some of the language is ambiguous. Commissioner Unger said that when he was on the Planning Commission years ago, they struggled to come up with findings. He asked if there is a way to adopt more uniform types of ordinances that have been vetted. Judge Brewer said that there is a wide variety of needs and interests. They have found over the years that laws need to be more consistent, at least statewide; and more often between states. There has been more emphasis on continuity. Minutes of Board of Commissioners' Joint Meeting with Judge Brewer & Others Friday, February 10, 2012 Page 2 of 8 Pages However, the counties do not want to surrender their autonomy and not everything applies in each area. Commissioner Baney stated that the Courts and County are part of one system. They could choose to operate separately, but it is better to work together for the greater good. Judge Brewer stated that the more things can be seamless, without surrendering individuality, the better it will be for everyone. Red tape gets in the way. Commissioner Unger said that there are three types of land in the State: the coast, the valley, and central and eastern. The State does not allow for these obvious differences. Judge Brewer said that local differences do matter. He hears this a lot from people in the central and eastern parts of the State. This might also be a good subject for the counties to consider; why some things should not be the way they are in some areas. He suggested spending some time with Richard Whitman of the Governor's work group. He is interested in these concerns because he knows the system is broken, and compromise is necessary to make progress. It is important to find the things everyone has in common. He feels maybe there should be a super court of well-trained scholars on land use who are not tied in to one side or the other, and have one of them work on settling issues. A broker who is not politically owned by someone could make these types of decisions more timely. There is only one Judge on his court who is a land use specialist, so there is a decided lack of expertise in the Appellate Court regarding land use. It is challenging, and people don't have time to study and make themselves experts in every field to address the variety of cases they see. It should be not about turf, but what makes sense. Judge Brady stated that land use is a very unique area of the law, and this is one of the reasons the Circuit Court pushed for LUBA. Most people do not want to approach it head-on. There can be a lot of unintended consequences if a decision is not well considered. The stakes are often too high for this risk. Even eliminating one layer of review would help tremendously. Current land use is the product of a lot of political compromises over the past forty years. If there was a core of people that could work together, the shortcomings can be addressed. Minutes of Board of Commissioners' Joint Meeting with Judge Brewer & Others Friday, February 10, 2012 Page 3 of 8 Pages Mark Pilliod said that increasing demand and dwindling resources is a problem. Judge Brewer said the Department is interested in ideas on how to make the system work better. He said this might not have been part of the "Big Look", but was supposed to recognize the differences geographically and demographically. There are varying levels of sophistication, but the complexity at the metro level is different elsewhere. It may be that the "Big Look" process will accomplish little, but he does not know that their charge was to look at it from the standpoint of appellate deficiencies or issues. He appreciates the work Richard Whitman started doing before going to the Governor's office. Years ago they required alternative dispute resolution. It seems that could be imbedded in the land use process also. If someone who is knowledgeable about land use could mediate, the attorneys should be able to summarize their cases quickly. Through that kind of process they might be able to find a resolution much sooner. It is good to settle cases before they go to court, by using experienced mediators working with appellate counsel. Judge Brewer said they hear about 160 cases a year and some settle. They try to put some on the fast track, such as juvenile cases. All land use should be on a fast track. However, it is difficult to provide the resources for that. He was asked five years ago to mediate the establishment of a hospital in Eugene. It was neighbors versus a regional hospital being established in the area, on the river. All kinds of groups fought this. He got a call from the attorney representing the group wanting to settle. He went to the Chief Justice for advice. The case was still tied up in LUBA and not even to his court. They ended up settling by offering enough concessions to both sides to make it work. This shaved about 2.5 years off the appeal process. The standing was the biggest problem. Someone with settlement skills who can control the objections can make a lot of progress. In the cases when it does not settle, it needs a panel behind it to make a quicker decision. Commissioner Unger spoke about the REOA (Regional Economic Opportunity Analysis). The County is taking the lead to make it easier for other counties to follow. 1,000 Friends objected and appealed, but Mr. Whitman wants to work with them, even though it is on the way to LUBA. The County and others do not want to drop the ball or delay. Judge Brewer stated that no one is perfect, but there should be a way to fix the system. Judge Brady said that you can create something at a local level and through a settlement process see if it can be resolved locally. Minutes of Board of Commissioners' Joint Meeting with Judge Brewer & Others Friday, February 10, 2012 Page 4 of 8 Pages Mr. Pilliod stated that developers often need to do outreach prior to moving forward. Sometimes the Board is faced with an opinion of the Hearings Officer with little time to respond due to deadlines. The effect of the timing can take the governing body out of the decision-making process. He likes the idea, provided there would be time to do this. Judge Brewer said that LUBA has heard objections based on a County being half- heartedly involved. Ernie Mazorol stated that LUBA has to send out a letter advising the case can be mediated. Judge Brewer noted that one side might have a stronger position and does not want to have further delays due to mediation. A hammer of a decision right after mediation would help. They don't have this in place yet; there no way to get a final answer that quickly. Mr. Pilliod stated that they need someone with standing or instant credibility. That is half of the battle, deciding who will be the facilitator. Judge Brewer feels that this could be developed. Also, there is a difference between LCDC and LUBA. It is hard to unify these groups. Many decisions are policy and reached through trial. Judge Brewer said he does not have authority to make these decisions, but retired Judges are obligated to help in some fashion. Judges Sullivan, Tiktin and Lipscomb could become land use Judges and have credibility, but there is nothing in place for this right now. Mr. Mazorol emphasized this might be an attractive alternative for the parties involved. Judge Brewer felt they could look at LCDC and LUBA, and bring in a team of experts to settle some of these cases. Chair DeBone was pleased that this problem is being discussed and is considered important. The delays involved are difficult on everyone. Commissioner Unger said that employees of agencies are limited on what they can say. They cannot always speak freely. Judge Brewer responded that he has to be aware of the limits of his jurisdiction and experience. He risks overstepping himself at times, but Judges see some of the problems and often don't reach out to help. They should want to play a broader role. Minutes of Board of Commissioners' Joint Meeting with Judge Brewer & Others Friday, February 10, 2012 Page 5 of 8 Pages Judge Brewer said that Richard Whitman has a work group going at the LCDC level. He would like to see some of these ideas kept alive through this work group that can perhaps solve some problems. Judges are isolated and governed by tradition, and they don't think of things in terms of enterprise and business opportunities. He feels they can get bipartisan support for this concept in the legislature. Mr. Mazorol and Judge Brady left the meeting at this point. Commissioner Unger asked for the Judge's opinion regarding specialty courts. Judge Brewer said he was involved in family law for a long time. He and others determined that it takes so little to provide these services in a community. Parents are the most motivated to change their lives if they think they may lose their children. A small amount of money for treatment and other services for these multi-faceted issues can make a big difference in lives. This model has been replicated and works well. He supported taking these cases of potential removal of children from the family out of the mainstream and handling them differently. Specialty courts give the best bang for the buck. This applies to veteran courts as well; Klamath and Jackson counties are starting those. Commissioner Baney said looking at funding streams versus systems is important. If they can't have uniform courts, it was felt they should not have specialty courts. She wants the counties to have the option to continue these efforts. She feels there will be a strong conversation at the County's budget meetings to be more proactive and invest more in these programs. If there is no investment, the question is, what it means to the other services. Judge Brewer stated that re-entry services are a challenge. Some come out of prison more hardened than when they went in. Reoffending is common in these cases; they just can't make it on the outside. There historically has been no funding to address this situation. A lot of specialty courts are great if they can be funded, but more multiple funding streams are needed. Commissioner Baney said they started a reach-in program for the initial release process. For instance, some are reoffending because they can't afford medical treatment otherwise. Minutes of Board of Commissioners' Joint Meeting with Judge Brewer & Others Friday, February 10, 2012 Page 6 of 8 Pages Judge Brewer stated there are two different kinds of courts designed to make civil cases move through more quickly. One is for cases where the parties agree to a limited amount of discovery. Another is complex litigation court when venue comes into play. This court creates a team of Judges who can take over the case. This is what business does to be more efficient. Commissioner Baney noted that the impact courts helped a lot to help process cases. Judge Brewer complimented Deschutes County on how well the County and Courts work together. The consensus is that they have good leadership at the Courts. Both agencies have been receptive and cooperative, and often consider together where money can be invested now to help keep things moving. Commissioner Baney added that the Board and Judges get together for dinner on a regular basis to informally discuss issues and to build a relationship that can be called upon when needed. They can't let money and other situations separate them. Judge Brewer asked if there are other problems besides land use where judicial review comes in. Commissioner Baney stated that land use is the biggest issue, but the framework and system affects all. If the Courts are separately funded, sometimes what they have to do affects them all. Commissioner Unger said that who to talk to is sometimes a problem. An example is the current District Attorney's issues when no one seems responsive. Judge Brewer stated that there historically have not been enough conversations and working together. It really shows when the economy is bad. There are some real opportunities for change and the stakes are high, and there is a huge incentive now to look at this. Commissioner Unger feels that land use should change with the times. Forty-year- old laws may no longer apply. Judge Brewer said that one of the biggest challenges is dealing with urban reserves and the urban growth boundaries set up years ago, that are now expiring in a lot of areas. They hit their capacity and it is all converging. Any one of those cases could take months for review. Minutes of Board of Commissioners' Joint Meeting with Judge Brewer & Others Friday, February 10, 2012 Page 7 of 8 Pages Judge Brewer noted that Judge Paul De Muniz, who is retiring this year, wants to establish a Center for Judicial Excellence, an institute that would study how to make the system work better. There may be better ways to do things, and this would be the goal. A lot of agencies and individuals are open to change, but it has to start somewhere. Civil and criminal issues are both huge; but by volume it is family issues and land use that take the most time. Commissioner Unger said that Deschutes County has more flexibility than most counties. Commissioner Baney added that they have the ability to disagree but do what is best overall. Being no further discussion, the meeting ended at 1:45 p.m. h-e DATED this A` Day of 2012 for the Deschutes County Board of Commissioners. Anthony DeBone, Chair eve ~4~ ATTEST: r Recording Secretary Alan Unger, Vice Chair Tammy Ba y, Commi ioner Minutes of Board of Commissioners' Joint Meeting with Judge Brewer & Others Friday, February 10, 2012 Page 8 of 8 Pages Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.ora MEETING AGENDA - JUDGE DAVE BREWER DESCHUTES COUNTY BOARD OF COMMISSIONERS 12 NOON, FRIDAY, FEBRUARY 10, 2012 Allen Room, Deschutes Services Building I. Open Meeting and Introductions 2. Court of Appeals Overview 3. Organization 4. Caseload 5. Time to Disposition 6. Hearing Priorities 7. Future Issues 8. New Judge Panel 9. Impact of Complex Land Use Matters 10. Other Items PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues relating to ORS 192.660(2) (e), real property negotiations; ORS 192.660(2) (h), litigation; ORS 192.660(2)(d), labor negotiations; or ORS 192.660(2) (b), personnel issues. Meeting dates, times and discussion items are subject to change. All meetings are conducted in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. Ifyou have questions regarding a meeting, please call 388-6572. Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information.