S054995 Corey v. DLCD

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 05/08/2008

FILED: May 8, 2008

IN THE SUPREME COURT OF THE STATE OF OREGON

VIRGINIA COREY,
BERGIS ROAD, LLC,
AND BERNITA JOHNSTON,

Respondents on Review,

DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT,

Petitioner on Review.

(DLCD M119478; CA A129905; SC S054995)

On petition for review and motion to vacate and remand.*

Argued and submitted February 27, 2008.

Denise G. Fjordbeck, Senior Assistant Attorney General, Salem, argued the cause and filed the petition and motion to vacate and remand for petitioner on review. With her on the motion were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Gregory A. Chaimov, of Davis Wright Termaine LLP, Portland, argued the cause and filed the reply to the motion for respondents on review. With him on the reply was Donald P. Roach, Portland.

Kristian Roggendorf, of O'Donnell Clark & Crew LLP, Portland, argued the cause and filed the response for amici curiae Gerald and Roberta Curry, husband and wife, George Raymond Smith, individually and as controlling member of The Raymond Smith, LLC, and as trustee for the Raymond Smith Survivor's Trust, Raymond Smith Qualified Marital Trust, and Raymond Smith Family Trust, and Shirlee Lenske, as controlling member of Lenske Properties, LLC. With her on the response were Stephen F. Crew, and D. Dan Chandler, Special Counsel for amici.

James Zupancic, Lake Oswego, filed a brief for amici curiae The Harold V. Olson and Sarajean Olson Revocable Living Trust, James and Virginia Carlson, and George and Earlene Hansen.

Before De Muniz, Chief Justice, and Gillette, Durham, Balmer, Kistler, and Linder, Justices.**

GILLETTE, J.

The petition for review is dismissed as moot. The motion to vacate and remand is denied.

*On review of the decision of the Court of Appeals. 210 Or App 542, 152 P3d 933, adh'd to, 212 Or App 536, 159 P3d 327 (2007).

**Walters, J., did not participate in the consideration or decision of this case.

GILLETTE, J.

This proceeding arises out of a land use case. In that case, the Department of Land Conservation and Development (DLCD) sought review of the Court of Appeals decision in Corey v. DLCD, 210 Or App 542, 152 P3d 933, adh'd to, 212 Or App 536, 159 P3d 327 (2007), a case decided under Ballot Measure 37 (2004) (Measure 37). We allowed DLCD's petition for review. However, DLCD now believes that the recent passage of Ballot Measure 49 (2007) rendered Corey moot. It therefore asks this court to dismiss its petition and to vacate the decision of the Court of Appeals. Plaintiffs, who are landowner parties in Corey, deny that that decision is moot. As we discuss below, we agree with DLCD that Corey is moot, and we dismiss DLCD's petition for review on that ground. However, we deny DLCD's request that we vacate the decision of the Court of Appeals.

Measure 37 was adopted through the initiative process in the 2004 general election and was codified at ORS 197.352 (2005), amended by Ballot Measure 49, Oregon Laws 2007, chapter 424, section 4, and renumbered as ORS 195.305. It requires public entities that enact and enforce land use regulations to pay a landowner whose property is affected by any such regulations "just compensation," which the statute generally defines as an amount equal to the "reduction in the fair market value of the affected property interest" resulting from enforcement of any land use regulation enacted after the date of acquisition of the property by the landowner or a family member of the landowner. ORS 197.352(1) - (3) (2005). The provision authorizes affected landowners to make a "written demand for compensation" to the regulating entity, ORS 197.352(5), and states that the compensation "shall be due" when and if the land use regulations at issue continue to be enforced 180 days after the landowner makes his or her written demand, ORS 197.352(4) (2005).

Plaintiffs in this case are Virginia Corey and Bergis Road, LLC, a limited liability corporation that is wholly owned and controlled by Corey's sister, Bernita Johnston. Plaintiffs own interests in a 23-acre parcel of land in rural Clackamas County. Early in 2005, they filed a written demand under Ballot Measure 37, seeking compensation from DLCD for reduction in the fair market value of that land caused by application of, among other things, Statewide Planning Goals 3 (Agricultural Lands) and 14 (Urbanization). In the demand, plaintiffs asserted that Corey and Johnston had inherited their interests in the land from their mother in 1978. They further asserted that their demand for compensation properly extended to all regulations enacted after 1973 -- the year that Corey's and Johnston's mother first acquired the property. (1)

DLCD issued a final order resolving plaintiffs' demand in July 2005. In the order, DLCD chose to waive enforcement of certain of the land use regulations to which plaintiffs objected, rather than to compensate plaintiffs for the effects of those regulations on the value of their property. (2) However, the waiver that DLCD granted did not extend to all of the regulations that plaintiffs had targeted in their claim: For plaintiff Corey, DLCD waived land use regulations and statutes enacted after December 11, 1978, which it found to be the date when Corey inherited her interest in the property from her mother; and for plaintiff Bergis Road LLC, DLCD waived regulations and statutes enacted after August 12, 2004, when that entity acquired its interest in the property from Virginia Johnston. In announcing those waiver dates, DLCD implicitly rejected plaintiffs' contention that, because Bernita Johnston is the sole creator, member, and manager of Bergis Road LLC, her transfer of her interest in the property to that entity should be ignored for purposes of Measure 37. (3)

Plaintiffs sought judicial review of DLCD's final order in the Court of Appeals. However, before the case was briefed or argued, DLCD filed a "Motion to Determine Jurisdiction." In its motion, DLCD explained that plaintiffs had filed a parallel petition for judicial review in the circuit court and that it was necessary to determine which court had jurisdiction to review DLCD's final order. DLCD's position was that, because no statutory or constitutional provision conferred a right to a contested case hearing in Ballot Measure 37 cases, plaintiffs were not seeking judicial review of a final order in a "contested case" under ORS 183.482 and, therefore, they could not proceed in the Court of Appeals. Instead, DLCD argued, review of the DLCD order must proceed under provisions of the Administrative Procedures Act pertaining to review of "orders other than contested cases," ORS 183.484, which would be in "the Circuit Court for Marion County [or] the circuit court for the county in which the petitioner resides or has a principal business office."

The Court of Appeals granted DLCD's motion to determine jurisdiction and then announced that, contrary to DLCD's position, the order at issue should have been an order in a contested case and, therefore, was subject to judicial review in the Court of Appeals. Corey, 210 Or App at 552. The court reasoned that, although Measure 37 did not itself provide for a contested case hearing, once DLCD accepted plaintiffs' claim as valid, the Due Process Clause of the Fourteenth Amendment required it to offer plaintiffs a contested case-type hearing to determine the appropriate extent of the waiver. And, the Court of Appeals concluded, because DLCD should have employed contested case procedures, judicial review was available in the Court of Appeals under the provision of the Administrative Procedures Act pertaining to review of orders in contested cases (ORS 183.482). 210 Or App at 549-52. (4)

DLCD sought review of that decision in this court, challenging the ultimate jurisdictional holding and the underlying proposition that a contested case hearing is required to determine the scope of compensation (or waiver) whenever a public agency accepts a Measure 37 claim as valid. As noted, we allowed DLCD's petition for review in October 2007.

One month later, in the November 2007 general election, the voters adopted Ballot Measure 49 (2007) (Measure 49), which amended Measure 37 and added provisions that altered the claims and remedies available to landowners whose property values are adversely affected by land use regulations. Of particular relevance here, Measure 49 directly addresses Measure 37 claims filed before the end of the 2007 legislative session. Section 5 of Measure 49 provides:

"A claimant that filed a claim under ORS 197.352[, i.e., Measure 37,] on or before the date of adjournment sine die of the 2007 regular session of the Seventy-fourth Legislative Assembly is entitled to just compensation as provided in:

"(1) Sections 6 or 7 of this 2007 Act, at the claimant's election, if the property described in the claim is located entirely outside any urban growth boundary and entirely outside the boundaries of any city;

"(2) Section 9 of this 2007 Act if the property described in the claim is located, in whole or in part, within an urban growth boundary; or

"(3) A waiver issued before the effective date of this 2007 Act to the extent that the claimant's use of the property complies with the waiver and the claimant has a common law vested right on the effective date of this 2007 Act to complete and continue the use described in the waiver."

Sections 6 and 7, referenced in subsection 5(1), generally provide that claimants whose claims relate to land outside any urban growth boundary are limited to three home site approvals, unless their land is not high value farm or forest land, in which case they may be eligible for up to ten home site approvals, if certain requirements are met. Section 9, referenced in subsection 5(2), sets out a different remedy for claims relating to land within an urban growth boundary.

Soon after Measure 49 was adopted, DLCD filed a "Notice of Potential Mootness" in this court respecting the impending review of Corey. Later, DLCD filed the present motion to "vacate and remand," arguing that Measure 49 has rendered the controversy in Corey moot. In the motion, DLCD relies on the provisions quoted and summarized above and on section 8 of Measure 49, which provides procedures and deadlines for refiling Measure 37 claims under Measure 49. (5) In essence, DLCD argues that Measure 49 extinguishes all claims and orders under Measure 37 and directs Measure 37 claimants -- successful or not -- to proceed instead under section 6 or 7 of Measure 49, if their property lies outside an urban growth boundary, and under section 9, if their property lies inside an urban growth boundary. (6) Consequently (in DLCD's view), any controversy regarding the correctness of an order issued under Measure 37 -- including the proper forum for reviewing the order -- is moot.

If it becomes clear in the course of a judicial proceeding that resolving the merits of a claim will have no practical effect on the rights of the parties, this court will dismiss the claim as moot. Yancy v. Shatzer, 337 Or 345, 349, 97 P3d 1161 (2004). Our task, then, is to determine whether resolution of the jurisdictional question that DLCD brought to us can have any practical effect on the rights of the parties.

We already have summarized DLCD's position -- that Measure 49 has rendered the waiver order at the center of the jurisdictional dispute wholly ineffective and, thus, any further judicial consideration of the order, including the question of the proper forum for review, is inherently meaningless. As we shall explain, we generally agree with DLCD's analysis.

An examination of the text and context of Measure 49 conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners. As noted, section 5 of Measure 49, set out above, provides that claimants who filed "claim[s]" under ORS 197.352 before Measure 49 became effective (i.e., Measure 37 claimants), are entitled to "just compensation" as provided in designated provisions of Measure 49. Subsection 2(2) of Measure 49 defines "claim" to include any "written demand for compensation filed under * * * ORS 197.352," including those filed under the version of the statute that was "in effect immediately before the effective date of [Measure 49]." That definition establishes that Measure 49 pertains to all Measure 37 claims, successful or not, and regardless of where they are in the Measure 37 process. Subsection 2(13) then defines "just compensation" purely in terms of Measure 49 remedies, i.e., "[r]elief under sections 5 to 11 of this 2007 Act for land use regulations enacted on or before January 1, 2007," and "[r]elief under sections 12 to 14 of this 2007 Act for land use regulations enacted after January 1, 2007." At the same time, section 4 of Measure 49 extensively amends ORS 197.352 (2005) (Measure 37) in a way that wholly supercedes the provisions of Measure 37 pertaining to monetary compensation for and waivers from the burdens of certain land use regulations under that earlier measure.

A statement of legislative policy at section 3 of Measure 49 confirms that the legislature intended to create new forms of relief in place of the ones available under Measure 37: "The purpose of sections 4 to 22 of this 2007 Act and the amendments to Ballot Measure 37 (2004) is to modify Ballot Measure 37 (2004) to ensure that Oregon law provides just compensation for unfair burdens while retaining Oregon's protections for farm and forest uses and the state's water resources." (Emphases added.)

Plaintiffs argue that, whatever the theoretical merits of DLCD's arguments, subsection 5(3) of Measure 49 applies to their claim (subsection 5(3) provides that Measure 37 claimants are entitled to "just compensation" as provided in a waiver issued before Measure 49 became effective). Plaintiffs acknowledge that subsection 5(3) of Measure 49 speaks of a "common law vested right" in the waiver. But that is no obstacle, in their view, because, once DLCD concluded that post-acquisition land use regulations had reduced the fair market value of their property and granted relief in the form of a waiver, they had a constitutionally protected "property right" in that waiver that cannot be taken away without just compensation -- i.e., a vested right. In a related vein, plaintiffs argue that the waiver that DLCD granted under Measure 37 is the equivalent of rights obtained under a judgment granting a monetary award, and is vested in the sense that it cannot be diminished by legislative action.

However, in so arguing, plaintiffs fail to confront the entire wording of subsection 5(3). The "vested right" that that subsection requires is a "common law vested right * * * to complete and continue the use described in the waiver." It is clear from text and context alone that that phrase is referring to broadly applicable legal precedents describing a property owner's rights when land use laws are enacted that make a partially finished project unlawful. See, e.g., Clackamas Co. v. Holmes, 265 Or 193, 197, 508 P2d 190 (1973) (describing "vested rights" in those terms). But plaintiffs have made no claims that they have partially completed any "use described in the waiver" that they received.

To the extent that plaintiffs wish to assert that the scope of subsection 5(3) is any broader, then Measure 49 provides plaintiffs with an opportunity to assert that claim, and a forum in which they may assert it. The same is true of any other objections that plaintiffs have to the effects of Measure 49. In short, this is a Measure 37 case, and we confine our substantive discussion to that legislation.

In the end, we hold only that plaintiffs' contention that Measure 49 does not affect the rights of persons who already have obtained Measure 37 waivers is incorrect. In fact, Measure 49 by its terms deprives Measure 37 waivers -- and all orders disposing of Measure 37 claims -- of any continuing viability, with a single exception that does not apply to plaintiffs' claim. Thus, after December 6, 2007 (the effective date of Measure 49), the final order at issue in the present case had no legal effect. It follows that resolution of the issue that the Court of Appeals decided in Corey and as to which we allowed review -- whether the Court of Appeals or the circuit court has jurisdiction to review DLCD's final order respecting plaintiffs' Measure 37 claim -- can have no practical effect upon the parties: If the order at issue has no continuing legal effect, then neither party can gain anything from review in either forum. The case is moot.

Plaintiffs suggest that, in any event, the case is justiciable under ORS 14.175, which provides:

"In any action in which a party alleges that an act, policy or practice of a public body, as defined in ORS 174.109, or of any officer, employee or agent of a public body, as defined in ORS 174.109, is unconstitutional or is otherwise contrary to law, the party may continue to prosecute the action and the court may issue a judgment on the validity of the challenged act, policy or practice even though the specific act, policy or practice giving rise to the action no longer has a practical effect on the party, if the court determines that:

"(1) The party had standing to commence the action;

"(2) The act challenged by the party is capable of repetition, or the policy or practice challenged by the party continues in effect; and

"(3) The challenged policy or practice, or similar acts, are likely to evade judicial review in the future."

(Emphasis added.) Plaintiffs suggest that that provision applies because the "Legislative Assembly's practice of changing constitutionally protected rights will necessarily evade review if a claimant * * * cannot try to protect those rights." However, ORS 14.175 does not present a basis for review in this case, because, as we already have observed, plaintiffs can pursue their claim pursuant to the procedure set out in Measure 49, including any assertion that Measure 49 acts on them in an unconstitutional way.

That leaves the question of vacatur. DLCD asks this court to vacate the Court of Appeals decision if we find that the case is moot. DLCD argues that vacatur is warranted, because the Court of Appeals decision in Corey is wrong and, when similar procedural and jurisdictional disputes arise in the future, the state "will be placed in the position of either violating the law as announced by [the Court of Appeals in Corey] or granting contested cases that are, in its view, legally unnecessary."

In Kerr v. Bradbury, 340 Or 241, 250, 131 P3d 737 (2006), we described vacatur as an "'extraordinary remedy' to which a party must show an 'equitable entitlement'" (citing U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 US 18, 26, 115 S Ct 386, 130 L Ed 2d 233 (1994)). We identified a number of considerations that may inform the court's decision as to whether any party has demonstrated such an equitable entitlement. We noted, first, that courts must consider the public interest, and remain mindful of the fact that judicial precedents are "'presumptively correct and valuable to the legal community.'" Id. (quoting U.S. Bancorp, 513 US at 26). We also observed that it was important to consider when and how the case in question became moot. The case for vacatur may be stronger if the lower court decision at issue was rendered when the case already had become moot and, by contrast, the case for vacatur may be weaker if mootness resulted from voluntary action by the party seeking vacatur. See Kerr, 340 Or at 249 (quoting U.S. Bancorp, 513 US at 24-25, to that effect).

DLCD does not argue, and we do not find, that any of those considerations plays a significant role in the equitable decision before us. DLCD does rely, however, on another consideration that we identified in Kerr -- whether, in the absence of vacatur, the decision at issue will interfere with public officials' execution of their official duties. Kerr, 340 Or at 251. DLCD contends that, if Corey stands, DLCD (and all state agencies) unnecessarily and erroneously will be required to treat an initial decision that a person qualifies for a benefit as a property interest, and to grant such persons contested case hearings to determine the extent of the benefit.

In Kerr, we considered, and rejected, a similar argument by the Secretary of State, viz., that we should vacate a Court of Appeals decision interpreting the "full-text" provision of Article IV, section 1(2)(d), of the Oregon Constitution, because that decision would continue to have a practical effect on the Secretary of State. We stated:

"[T]he unreviewed decision of the Court of Appeals does not preclude the Secretary of State from prospectively executing his official duties in accordance with the views he espoused here regarding the 'full text' provision of Article IV, section 1(2)(d). In the future, the Secretary of State may do so and may elect either to defend that view in response to litigation that other parties might file, as he did here, or he may initiate a proceeding, such as a request for a declaratory judgment under ORS 28.020, seeking clarification of his duties under the constitution. A denial of vacatur in this instance will neither inhibit the Secretary of State from administering his office as he sees fit nor require him to acquiescence in a constitutional interpretation with which he does not agree."

Kerr, 340 Or at 251. We think, moreover, that the question before us today is, if anything, easier than that presented in Kerr. The decision of the Court of Appeals in Corey was a decision under Measure 37. The fact that such a decision remains on the books does not require DLCD to treat it as binding precedent in future proceedings, because any such future proceedings will be under Measure 49. Therefore, no inequity will result from denying DLCD's request for vacatur.

The petition for review is dismissed as moot. The motion to vacate and remand is denied.

1. Under ORS 197.352(3)(E) (2005), compensation is not due for any diminution in the value of the property resulting from a land use regulation "[e]nacted prior to the date of acquisition of the property by the owner or a family member of the owner who owned the subject property prior to acquisition or inheritance by the owner, whichever occurred first." (Emphasis added.)

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2. Under ORS 197.352(8) (2005), public entities may choose to waive (i.e. "modify, remove, or not [] apply") a land use regulation "in lieu of payment of just compensation."

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3. DLCD apparently also rejected plaintiffs' contention that the land was not "agricultural land" and, thus, was not subject to Statewide Planning Goal 3 at the time that they acquired their interests in it.

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4. The Court of Appeals relied on this court's analysis in Koskela v. Willamette Industries, Inc., 331 Or 362, 15 P3d 548 (2000), to reach that conclusion. We express no opinion as to the correctness of that reliance.

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5. Subsection 8(1) directs DLCD to send a notice, within 120 days of Measure 49's effective date, to virtually all Measure 37 claimants whose claims (like the present one) pertain to land outside an urban growth boundary. It specifically mentions three classes of claimants who must receive the notice: any "claimant whose claim was denied by the state before the effective date of this 2007 act"; any "claimant whose claim was approved by the state before the effective date of this 2007 act"; and any "claimant whose claim has not been approved or denied by the state before the effective date of this 2007 act."

Subsection 8(2) requires the notice to explain to Measure 37 claimants the options that are available to them, i.e., proceeding under either section 6 or 7 by filing a certain form within 90 days.

Subsection 8(3) sets out the consequences of failing to make the required election:

"A claimant must choose whether to proceed under section 6 or 7 of this 2007 Act by filing the form provided by [DLCD] within 90 days after the date the department mails the notice and form required under subsection (1) of this section. * * * If the claimant fails to file the form within 90 days after the date the department mails the notice, the claimant is not entitled to relief under section 6 or 7 of this 2007 Act."

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6. DLCD acknowledges one exception -- that subsection 5(3) of Measure 49 permits a Measure 37 claimant who has been granted a waiver to complete and continue the particular use permitted by the waiver, to the extent that the claimant has "a common law vested right on the effective date of this 2007 Act." As discussed below, DLCD argues that subsection 5(3) is inapplicable to plaintiffs' claim.

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Filed: June 30, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON In Re: Complaint as to the Conduct of J. MARK LAWRENCE, Accused. (OSB 08-115; SC S058778) En Banc On review of the decision of a trial panel of the Disciplinary Board. Argued and submitted May 2, 2011. Paula Lawrence, McMinnville, argued and cause and filed the briefs for accused. Stacy Hankin, Assistant Disciplinary Counsel, Tigard, argued the cause and filed the brief for the Oregon State Bar. PER CURIAM The complaint is dismissed. PER CURIAM The issue in this lawyer disciplinary proceeding is whether the accused, by releasing a partial transcript of a juvenile hearing to the press, violated Rule of Professional Conduct (RPC) 8.4(a)(4), which prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. A trial panel found the accused guilty of violating RPC 8.4(a)(4) and suspended him for 60 days. We review the decision of the trial panel de novo. ORS 9.536(2); BR 10.6. Because we conclude that

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the Bar failed to prove by clear and convincing evidence that the accused's conduct caused prejudice to the administration of justice, we dismiss the complaint. The facts are straightforward and largely undisputed. In 2007, the accused represented a juvenile male who, along with another male friend, allegedly had touched or swatted several female classmates on the buttocks and had danced in front of the females in a lascivious manner. The incident occurred at the students' middle school. After being informed of the youths' behavior, the vice principal and a police officer interviewed the victims. Based on those interviews, the accused's client and his friend were arrested by a McMinnville Police Officer on February 22, 2007. On February 23, the Yamhill County Juvenile Department filed a delinquency petition alleging that the accused's client had committed acts that, if done by an adult, would have constituted five counts of first-degree sexual abuse and five counts of third-degree sexual abuse. At an initial detention hearing that same day, the court ordered the youths to remain in custody. The events giving rise to this disciplinary action arose out of a second detention hearing held on February 27, 2007, before Judge John Collins. The accused called two of the victims to testify on behalf of his client. The female victims testified that the youths were their friends and that they did not find the youths to be threatening in any way. Regarding the alleged sexual abuse, the female victims testified that the touching or swatting was not sexual in nature but rather was mere horseplay. The victims also testified that they felt pressured by the vice principal and the police officer to make the touching sound hurtful and uncomfortable when it was not. By the second detention hearing, the case was receiving substantial media 2

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attention. Judge Collins allowed the press to attend the detention hearing, but prohibited the press from recording the proceedings. The parties dispute whether the judge prohibited only video recordings or also prohibited audio recordings.1 A number of newspaper and television stories reported the events and testimony at the hearing. After the hearing, the accused obtained a copy of the official audio recording of the hearing and had a partial transcript prepared that contained the victims' testimony. In March 2007, a reporter contacted the accused about the February 27 hearing. The reporter, who was not present at the hearing, expressed disbelief that the female victims had felt pressured by the vice principal and the police officer to make the youths' actions seem sexual. The accused offered to give the reporter a copy of the partial transcript when it was available. The accused believed that it would have been improper to give the reporter the official audio recording of the hearing but thought that the transcript could be released. The accused contacted Deborah Markham, the deputy district attorney handling the case, to see if she objected to releasing the transcript. Markham told the accused that she believed that the court would have to consent. The accused then released the transcript to the reporter without obtaining permission from Judge Collins. Deputy District Attorney Deborah Markham testified that Judge Collins prohibited video recording. Judge Collins testified that he might have prohibited the press from recording the detention hearing, but that he did not remember whether he did so or not. He did remember allowing video recording at a later hearing in the proceeding. The accused testified that Judge Collins prohibited video recording but that he could not remember if the judge prohibited audio recording.
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When Judge Collins learned that the transcript had been released -following news reports that cited the transcript -- he called a meeting with Markham and the accused and told them to release no other transcripts. The testimony from the accused, Markham, and Judge Collins differs regarding that meeting. The accused described the meeting as relaxed and said that Judge Collins had stated that the release of the transcript was permissible. Markham testified that Judge Collins was "very concerned" about the release of the transcript and that Judge Collins said that the accused's disclosure violated the law. Judge Collins testified that the accused did not get his consent to release the transcript, but that he was not sure if the accused needed to do so under the circumstances of the case, particularly given the presence of the press at the hearing. In Judge Collins's description, the meeting was not contentious; although he requested that the parties refrain from releasing any additional transcripts, he did not "feel like [he] needed to be firm" and so did not issue an order barring further releases. In April 2008, several months after the juvenile case was resolved, Tim Loewen, director of the Yamhill County Juvenile Department, reported the accused's action of releasing the transcript to the Bar. After investigating the matter, the Bar charged the accused with violating RPC 8.4(a)(4)2 by releasing to the press "information
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RPC 8.4(a) provides, in relevant part: "It is professional misconduct for a lawyer to: "* * * * * "(4) engage in conduct that is prejudicial to the administration of

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appearing in the record" of a juvenile case without court consent, in violation of ORS 419A.255(1) and (3).3 The Bar alleged that the accused had "usurped" Judge Collins's authority to control the proceeding by not seeking the court's consent before releasing the transcript, and thereby had caused prejudice to the administration of justice. In the proceeding before the trial panel, the accused argued that his release of the transcript did not violate ORS 419A.255 for each of three independent reasons: (1) the transcript that he had prepared was not a part of the record of the case and so was not subject to ORS 419A.255; (2) Judge Collins had consented to the release of the information contained in the transcript when he allowed the press to attend and report on

justice[.]"
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ORS 419A.255 provides, in relevant part:

"(1) The clerk of the court shall keep a record of each case, including therein the summons and other process, the petition and all other papers in the nature of pleadings, motions, orders of the court and other papers filed with the court, but excluding reports and other material relating to the child, ward, youth or youth offender's history and prognosis. The record of the case shall be withheld from public inspection but is open to inspection by the child, ward, youth, youth offender, parent, guardian, court appointed special advocate, surrogate or a person allowed to intervene in a proceeding involving the child, ward, youth or youth offender, and their attorneys. The attorneys are entitled to copies of the record of the case. "* * * * * "(3) Except as otherwise provided in subsection (7) of this section, no information appearing in the record of the case or in reports or other material relating to the child, ward, youth or youth offender's history or prognosis may be disclosed to any person not described in subsection (2) of this section without the consent of the court * * * ."

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the hearing; and (3) the information in the transcript could be released under ORS 419A.255(5)(b) and (d), which list certain exceptions to the confidentiality of juvenile records. Even assuming that he did violate ORS 419A.255, the accused asserted, he did not violate RPC 8.4(a)(4), because his conduct was not prejudicial to the administration of justice. That was so, according to the accused, because the defendant and the victims supported releasing the transcript and because the information contained in the transcript had already been made public as a result of the press attending and reporting on the hearing. Thus, in the accused's view, no harm -- actual or potential -- resulted from his conduct. The trial panel found by clear and convincing evidence that the accused had violated RPC 8.4(a)(4) and suspended the accused from the practice of law for 60 days. The trial panel first determined that ORS 419A.255(3) prohibited the accused from releasing the partial transcript to the press without the consent of the trial court and that the accused had violated the statute in doing so. With little discussion, the trial panel then found that the evidence that the accused had violated the statute also was sufficient to show prejudice to the administration of justice and thus that the accused had violated RPC 8.4(a)(4). The accused sought review in this court. To prove a violation of RPC 8.4(a)(4), the Bar must prove (1) that the accused lawyer's action or inaction was improper; (2) that the accused lawyer's conduct occurred during the course of a judicial proceeding; and (3) that the accused lawyer's conduct had or could have had a prejudicial effect upon the administration of justice. See In re Kluge, 335 Or 326, 345, 66 P3d 492 (2003) (citing In re Haws, 310 Or 741, 746-48, 6

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801 P2d 818 (1990)) (so stating for identically worded former DR 1-102(A)(4)). Because we find the issue to be dispositive, we begin by examining the third element -- whether the accused's conduct had or could have had a prejudicial effect on the administration of justice -- and assume, without deciding, that the accused's conduct violated ORS 419A.255(3) and otherwise satisfied the test set out in Kluge and Haws. Prejudice to the administration of justice "may arise from several acts that cause some harm or a single act that causes substantial harm to the administration of justice." Kluge, 335 Or at 345. This court has identified two components to the "administration" of justice: "1) The procedural functioning of the proceeding; and 2) the substantive interest of a party in the proceeding." Haws, 310 Or at 747. "A lawyer's conduct could have a prejudicial effect on either component or both." Id. The Bar argues that the accused's conduct, a single act, resulted in prejudice to the administration of justice because it had the potential to cause substantial harm to the procedural functioning of the court. The Bar asserts, "Substantial potential harm to the administration of justice occurs whenever a lawyer interferes in or usurps the court's ability to do its job in a proceeding pending before it." The Bar states that the accused "usurped" the court's authority by not seeking Judge Collins's consent prior to releasing the transcript. The Bar cites three disciplinary cases to support its position that the accused's conduct resulted in substantial potential harm to the administration of justice. First, in In re Eadie, 333 Or 42, 36 P3d 468 (2001), this court found a violation of former DR 1-102(A)(4) where the accused lawyer submitted a proposed order containing a 7

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misrepresentation that was intended to influence the judge in changing the trial date. Id. at 58. That conduct substantially harmed the procedural functioning of the court because it resulted in the judge acquiescing to a trial date preferred by the accused and made it necessary for the judge to resolve a dispute resulting from the accused's misrepresentation and to redraft an order. Id. Second, in In re Morris, 326 Or 493, 953 P2d 387 (1998), this court concluded that the accused lawyer had engaged in a single act of conduct that had the potential to cause substantial harm, either to the procedural functioning of the court or to the substantive interests of the parties, when she knowingly filed a notarized document that she had altered. Id. at 502-03. Third, in In re Thompson, 325 Or 467, 940 P2d 512 (1997), this court found a violation of former DR 1-102(A)(4) where the accused lawyer physically confronted a judge after receiving an adverse decision. That conduct caused substantial harm to the administration of justice because the accused's ex parte communication with the judge "unfairly attack[ed] the independence, integrity, and respect due a member of the judiciary." Id. at 475. The conduct also had the potential to cause substantial harm, because it could have influenced the judge to change her decision or to recuse herself from the case. Id. In each of the preceding cases, the accused lawyer engaged in conduct that had the potential to disrupt or to improperly influence the court's decision-making process, Thompson, 325 Or at 475; that created unnecessary work for the court, Eadie, 333 Or at 58; or that had the potential to mislead the court, Morris, 326 Or at 503. Moreover, in Eadie and Morris, the accused lawyers made knowing misrepresentations to the court. Similarly, in Kluge, the accused lawyer's conduct in knowingly filing an 8

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untimely motion to disqualify the trial judge and then failing to serve the motion on opposing counsel caused prejudice to "the procedural functioning of the judicial system by imposing a substantial burden upon both opposing counsel and [the trial judge] to undo the accused's actions." 335 Or at 346. In this case, the Bar has made no showing, as required by Kluge and Haws, that the accused's conduct harmed the procedural functioning of the judicial system, either by disrupting or improperly influencing the court's decision-making process or by creating unnecessary work or imposing a substantial burden on the court or the opposing party. Nor has the Bar shown that his conduct had the potential to result in any of the above. Certainly, Judge Collins did not testify that the accused's actions interfered with Judge Collins's conduct of the juvenile proceeding. Although the Bar correctly asserts that ORS 419A.255 gives the trial court control over the release of protected information in a juvenile record -- and, as noted, we assume without deciding that the accused acted improperly in not seeking the trial court's consent -- the Bar's theory fails to take into account the fact that the information contained in the partial transcript that the accused released was presented in open court and had already been reported by the press.4 It is difficult to see how the accused's release of the same information, in the context of this case, had the potential to cause any harm to the proceeding, much less substantial harm.

Article I, section 10, of the Oregon Constitution grants members of the public, including the press, the right to attend juvenile hearings. State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 284-85, 613 P2d 23 (1980).

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See Kluge, 335 Or at 345 (prejudice to the administration of justice may arise from "several acts that cause some harm or a single act that causes substantial harm"). Indeed, the Bar makes no effort to show that the accused's conduct could have resulted in new information being made public or that the release of the partial transcript itself had any potential impact on the proceeding. In fact, after the press attended the hearing and the accused released the transcript, Judge Collins allowed members of the press to listen to the official audio recording of the hearing. Nevertheless, the Bar asserts that Judge Collins was sufficiently "concerned" about the release of the information to call the accused and Markham to his chambers to discuss the incident. The fact that Judge Collins was "concerned" and met with the accused and Markham does not, by itself, demonstrate the potential for substantial harm to the procedural functioning of the court. Judge Collins himself stated that, although "in a perfect world," he probably would not have wanted the transcript released, in the context of this case and the open court provision of Article I, section 10, of the Oregon Constitution, the release of the partial transcript was likely permissible without his consent because "if [the press is] * * * going to know the information and report the information, at least get it right." Judge Collins's testimony, then, does not demonstrate that the accused's conduct impacted the procedural functioning of the court, even if the accused's conduct was cause for "concern." Nor does the Bar offer any evidence to prove that the release of the partial transcript harmed the substantive interests of the accused's client, the victims, or the state. The accused released the transcript, with the support of his client, in response to an 10

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inquiry from the media and in order to respond to inaccuracies appearing in some media reports. The accused maintained the confidentiality of the victims' names in the transcript, referring to them by their initials, consistent with an earlier order by Judge Collins. In this proceeding, the accused also submitted letters from the two victims who testified (and their parents) that stated their support for the release of the partial transcript. Finally, there was no testimony from the Yamhill County Juvenile Department that the release of the partial transcript had any effect on its substantive interests or its ability to prosecute the case. The Bar appears, instead, to take the position that virtually any violation of a statute, rule, or court order that occurs during the course of a court proceeding and relates to the conduct or any procedural aspect of that proceeding necessarily is prejudicial to the administration of justice. The Bar asserts, in effect, that "substantial potential" harm is implicit in the accused's conduct. Our cases, however, require proof by clear and convincing evidence that an accused's conduct in a specific judicial proceeding caused actual or potential harm to the administration of justice and, when only one wrongful act is charged, that actual or potential harm must be "substantial." Kluge, 335 Or at 345; Haws, 310 Or at 748. Here, the Bar's evidence did not prove that substantial harm resulted or could have resulted from the accused's conduct. We conclude that the Bar has not proved by clear and convincing evidence that the accused violated RPC 8.4(a)(4). The accused's conduct did not result in such prejudice, because there is no evidence that the release of the partial transcript, which contained solely information already presented in open court and reported by the press, 11

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harmed the procedural functioning of the judicial system. Nor is there any evidence that the substantive rights of the accused's client, the other juvenile defendant, the victims, or the state were harmed. "Prejudice to the administration of justice" requires such a showing. Haws, 310 Or at 747-48. The complaint is dismissed.

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