S055099 Howell v. Willamette Urology, P. C.

SUPREME COURT CASES

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State: Oregon

Docket No: (CC0701-01084;SCS055099)

Case Date: 02/14/2008

FILED: February 14, 2008

IN THE SUPREME COURT OF THE STATE OF OREGON

LAUNA HOWELL,
RODNEY HOWELL, and JACOB L. HOWELL,
Co-Personal Representatives for the Estate of Cody W. Howell,

Plaintiffs-Relators,

WILLAMETTE UROLOGY, P.C.,
and DAVID ELMGREN, M.D.,

Defendants-Adverse Parties.

(CC 0701-01084; SC S055099)

En Banc

Original proceeding in mandamus.*

Argued and submitted January 3, 2008.

Kathryn H. Clarke, Portland, argued the cause and filed the brief for Plaintiffs-Relators. With her on the brief was Tina Stupasky, Eugene.

Lindsey H. Hughes, of Keating Jones Hughes, P.C., Portland, argued the cause and filed the brief for Defendants-Adverse Parties. With her on the brief was Peter O. Tuenge.

GILLETTE, J.

The alternative writ of mandamus is dismissed.

*On petition for a writ of mandamus from an order of Multnomah County Circuit Court, Jean Kerr Maurer, Judge.

GILLETTE, J.

This mandamus proceeding arises out of a dispute over the proper venue for a wrongful death action. Venue for a wrongful death action is governed by ORS 14.080, which provides, in part:

"(1) All other actions [including actions for wrongful death] shall be commenced in the county in which the defendants, or one of them, reside at the commencement of the action or in the county where the cause of action (1) arose. A party resident of more than one county shall be deemed a resident of each such county. If none of the defendants reside in this state the action may be commenced in any county.

"(2) For purposes of this section, a corporation incorporated under the laws of this state, a limited partnership or a foreign corporation authorized to do business in this state shall be deemed to be a resident of any county where the corporation or limited partnership conducts regular, sustained business activity or has an office for the transaction of business * * *."

The parties' dispute in the case arises because the negligence that allegedly caused decedent's death occurred in one county, but decedent died in another county. The resolution of that dispute lies in the proper interpretation of the phrase, "in the county where the cause of action arose," in section (1) of ORS 14.080. The trial court concluded that the relevant county for purposes of that phrase was the county where the negligence that caused decedent's death allegedly occurred. As we shall explain, we also conclude that the "county where the cause of action [for wrongful death] arose" is the county in which the negligence that caused the wrongful death occurred. Accordingly, we dismiss the alternative writ of mandamus issued in this case.

There is no disagreement between the parties as to the pertinent facts. The parties agree that the alleged negligence that caused the death of the decedent occurred in Marion County. The parties also agree that the defendants to the wrongful death action, a physician and the professional corporation that employed him, reside only in Marion County. Finally, the parties agree that the decedent died in Multnomah County.

Plaintiffs initiated their claim by filing their cause of action in Multnomah County. Defendants responded by moving for a change of venue to Marion County on two grounds: (1) Marion County, not Multnomah County, is the proper venue, and (2) Marion County is a more convenient county in which to try the case than is Multnomah County. See ORS 14.110(1)(a) (allowing trial court to change venue when the action has not been commenced in proper county); ORS 14.110(1)(c) (allowing trial court to change venue when another county would be more convenient place for trial for witnesses and the parties). The trial court granted the motion on the former ground (proper venue) and denied it on the latter ground (convenience). Plaintiffs then petitioned this court for an alternative writ of mandamus ordering the trial court either to vacate its order changing venue to Marion County or to show cause for not doing so. See Mack Trucks, Inc. v. Taylor, 227 Or 376, 382, 362 P2d 364 (1961) (mandamus appropriate remedy for venue issues). This court allowed the petition and issued the alternative writ of mandamus; the trial court declined to change its ruling. The matter is now before us for decision.

Because both defendants reside in Marion County, the only way that venue properly can be placed in Multnomah County under ORS 14.080(1) is if plaintiffs' "cause of action arose" in Multnomah County. ORS 30.020 defines the relevant cause of action, wrongful death. It states, in part:

"When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent * * * may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission."

Plaintiffs assert that what makes a wrongful death action unique is the nature of the ultimate harm: death. And, they reason, because ORS 30.020 is inoperative until the decedent's death, that death is the triggering event, and the place where that death occurred therefore is the place where the claim arose. Defendants respond that, properly read, ORS 14.080(1) focuses not on the ultimate outcome of a wrongdoer's acts (here, death) but, instead, on the wrongful conduct itself. Put slightly differently, defendants are arguing that decedent's death, standing alone, is no occasion for judicial relief. Instead, in defendants' view, it is the injurious act or acts with which the statute is concerned, i.e., the injurious act or acts for which "the decedent might have maintained an action, had the decedent lived," that place venue in Marion County. (2)

The case is one of first impression, and involves statutory interpretation. Following our familiar paradigm, we focus first on the wording of the pertinent statutes, considering the statutory text in the context in which it is found. We therefore turn to the text of ORS 14.080(1) and, in particular, to the statute's use of the word "arose" (which is, of course, simply the past tense of the verb "arise").

We do not require the assistance of a dictionary here. "Arise," as lawyers understand, means to come into being so that a legal consequence -- here, an action at law -- may commence. It is, in that sense, the equivalent of an equally familiar concept, "accrue." Unfortunately, that understanding does not complete our inquiry. The true struggle in this case is over what it is that must arise. That is, plaintiffs assert that what "arose" was decedent's death. Defendants, on the other hand, assert that what must have arisen, in order for a wrongful death action to be maintained, was injurious conduct for which the decedent, had he lived, could have maintained an action. Both readings of the statute are defensible when the words in question are read in isolation; nothing in the ordinary understanding of "arise" helps us select the correct one.

Context, however, does help. First, the description of a wrongful death action in ORS 30.020(1) describes that claim as one that "the decedent might have maintained * * *, had the decedent lived, against the wrongdoer for an injury done by the same act or omission [that is, the alleged negligence or other wrong that is the basis of the wrongful death action]." In other words, the action is one that might have been maintained by the decedent at a date earlier than the date of decedent's death. Indeed, the purpose of a wrongful death action is to remove death as a bar to bringing the claim, not to make death the central event of the action. That reading of the statutory wording is confirmed by a later sentence in the same section, which provides that such an action "shall be commenced within three years after the injury causing the death of the decedent is discovered or reasonably should have been discovered by the decedent, by the personal representative or by a person for whose benefit the [wrongful death] action may be brought under this section * * *." (Emphasis added.) The section goes on to provide that, with respect to claims like the present one that are grounded in professional negligence, "[i]n no case" shall the wrongful death action be commenced later than "[t]hree years after the death of the decedent." ORS 30.020(1)(a). (Emphasis added.)

Those contextual clues all point in the same direction. First, they recognize that the claim may come into existence (i.e., may "arise") while the decedent is still alive, as long as the decedent discovers or in the exercise of reasonable care should discover the fact of the wrongful conduct and resulting harm to the decedent. See also ORS 30.075 (recognizing that action may have been instituted by decedent before he or she died, and providing that death does not abate the action, which in such circumstances may be "continued by the personal representative." And, if an action for harm caused to the decedent could have been commenced before the decedent died -- as the statute recognizes that it could -- then the place where the decedent ultimately might die would be irrelevant: The decedent would not be dead yet, and no wrongful death action concerning the wrongs that the decedent had suffered would even be possible. It follows that "the county where the cause of action arose" (emphasis added) necessarily would be determined in wrongful death cases by reference to the place where the decedent might have brought the action while still alive, not by reference to the place where the decedent died. And, because the authorization to bring the wrongful death action places venue in the county where the claim arose, it also follows that that county has to be the place where the harm was done. That means that, in this case, venue could not have been in Multnomah County, because that county's only arguable relationship to the case did not come into existence until decedent died there. (3) Plaintiff's arguments to the contrary are not well taken.

We note, in passing, that cases discussing issues analogous to the present one, although not on point, support the foregoing conclusion. See, e.g., State ex rel Kleinsorge et al v. Reid, 221 Or 558, 560, 352 P2d 466 (1960) (action against public officers for personal injury sustained in swimming pool at Oregon State College; action therefore "arose" under ORS 14.050 in Benton County, where college was located); State ex rel Ind. Sup. Co. v. Goldstein et al, 221 Or 309, 311, 351 P2d 39 (1960) (action against domestic corporation buyer for price of goods sold and delivered; buyer could be sued under ORS 15.080 in county in which claim "arose," as well as in county in which buyer had its principal place of business).

We hold that, based on the wording of the statute in question, venue for the purposes of a wrongful death action lies either in the county where at least one of the defendants resides or in the county in which the wrongful act or acts that ultimately resulted in decedent's death occurred. In the present case, that means that the proper venue for plaintiffs' cause of action was in Marion County, as the trial court ruled.

The alternative writ of mandamus is dismissed.

1. Or, as we presently call it, the "claim."

Return to previous location.

2. The place where a claim arises may vary, depending on the specific claim at issue. As our rephrasing of the defendants' argument demonstrates, our focus here is on where a wrongful death action arises.

Return to previous location.

3. Logic points in the same direction. The county where the injurious acts occurred ordinarily will also be one in which many witnesses may be expected to reside, and where at least one defendant may reside. On the other hand, the place where the decedent died may be the result of happenstance. The legislature thus would have little reason to place venue in the county where the decedent happened to die.

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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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