S41311 State v. Fleetwood

SUPREME COURT CASES

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State: Oregon

Docket No: CCCR92167

Case Date: 12/29/2000

FILED: DECEMBER 29, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

JERRY LEE FLEETWOOD,

Petitioner on Review.

(CC CR92167; CA A77709; SC S41311)

On review from the Court of Appeals.*

Argued and submitted March 9, 1995. Resubmitted June 11, 1998.

Ingrid A. MacFarlane, Deputy Public Defender, Salem, argued the cause for petitioner on review. With her on the briefs were Sally L. Avera, Public Defender, and Louis R. Miles, Deputy Public Defender.

Rives Kistler, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the briefs were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Janie M. Burcart, Assistant Attorney General.

David E. Groom, Salem, filed a brief for amicus curiae Oregon Criminal Defense Lawyers Association. With him on the brief was David G. Terry, Roseburg.

Thomas M. Christ, Portland, filed a brief for amicus curiae ACLU Foundation of Oregon, Inc.

Before Carson, Chief Justice, and Gillette, Van Hoomissen, and Durham, Justices.**

DURHAM, J.

The decision of the Court of Appeals is reversed. The order of the circuit court is affirmed, and the case is remanded to the circuit court for further proceedings.

*Appeal from Wasco County Circuit Court. John V. Kelly, Judge. 127 Or App 558, 872 P2d 998 (1994).

**Kulongoski, Leeson, and Riggs, JJ., did not participate in the consideration or decision of this case. Unis, J., retired June 30, 1996, and did not participate in the decision of this case. Fadeley, J., retired January 31, 1998, and did not participate in the decision of this case. Graber, J., resigned March 31, 1998, and did not participate in the decision of this case.

DURHAM, J.

Defendant seeks review of a decision of the Court of Appeals that reversed the trial court's order suppressing evidence obtained through police use of an electronic listening device. State v. Fleetwood, 127 Or App 558, 872 P2d 998 (1994). (1) Defendant argues that Oregon law did not authorize the police to intercept and record the communications involved here and that, as a consequence, Oregon statutes required the trial court to suppress the evidence of those communications. We quote below the statutes that pertain to that argument. Defendant also argues that the police conduct here was a search or seizure that required a warrant, and that the trial court correctly suppressed the evidence of the oral communications obtained by the police to protect his rights under Article I, section 9, of the Oregon Constitution. (2) For the reasons discussed below, we reverse the decision of the Court of Appeals.

The relevant facts are undisputed. Reineccius was a police informant who had provided reliable information to the police on several occasions. On May 27, 1992, Reineccius told Eiseland, a detective with the Wasco County Sheriff's Office, that defendant had agreed to sell marijuana to Reineccius. On May 28, 1992, Eiseland equipped Reineccius with a hidden radio transmitter known as a body wire. At no time did the state obtain an ex parte order from a court authorizing the police to intercept communications or obtain conversations by means of the body wire.

Reineccius drove to defendant's home. Eiseland followed in a car with a radio receiver. The radio receiver permitted Eiseland to listen to and tape record any conversations or other sounds that the body wire on Reineccius could detect. Eiseland turned on his radio receiver as Reineccius approached defendant's front door. Defendant admitted Reineccius to the home. Eiseland listened to and recorded conversations inside defendant's home between Reineccius and defendant, and between defendant and his mother. Eiseland also listened to and recorded defendant's side of a telephone call that he placed from his home to another person.

Defendant and Reineccius then left defendant's home in Reineccius's car. Eiseland followed them. Reineccius' car stopped on a public street. A juvenile female approached the car, held a conversation with defendant, and sold marijuana to him. Eiseland listened to and recorded the conversation between defendant and the juvenile female. Defendant then gave the marijuana to Reineccius. Police arrested defendant and charged him with delivery of a controlled substance. ORS 475.992.

Defendant moved to suppress the evidence of all communications obtained through use of the body wire. Defendant contended that the police obtained all the evidence in violation of statutes governing the use of a body wire, particularly ORS 133.721 et seq. and ORS 165.540, and that Article I, section 9, of the Oregon Constitution required them to obtain a warrant before obtaining evidence through use of a body wire. (3) The trial court held that the police obtained the body wire evidence in conformance with ORS 165.540(5)(a)(B). However, the court concluded that the use of the body wire was a search under Article I, section 9, of the Oregon Constitution. Because the police conducted the search without a warrant and no exception to the warrant requirement applied, the court concluded that the search violated Article I, section 9, and, accordingly, granted defendant's motion to suppress.

The state appealed the order granting the motion to suppress. See ORS 138.060(3) (authorizing state to appeal from pretrial order suppressing evidence). The Court of Appeals reversed and remanded, citing State v. Bass, 126 Or App 303, 868 P2d 761 (1994). Bass held that, under ORS 165.540(5)(a)(B), the police may tape record a conversation intercepted by a body wire, without first obtaining authorization under a court order, if they have probable cause to believe that a party to the conversation with a police informant is about to commit a felony drug crime. The Bass court also rejected the defendant's constitutional arguments. Id. at 307.

Defendant argues that compliance by police with ORS 165.540 relieves them of criminal liability for unlawfully obtaining a conversation, but does not render evidence of the conversation obtained under that statute admissible in court. Defendant contends that the pertinent statutes obligate the police to obtain an ex parte order authorizing interception of the communications at issue here. Defendant concludes that the failure of the police to secure a court order in this case renders evidence derived from the interception subject to suppression.

The trial court's order suppressed evidence of communications obtained through police use of the body wire. That evidence consists of Eiseland's testimony about the conversations and statements that he heard through the radio receiver that he tuned to the body wire and the tape recordings that Eiseland made of those conversations and statements. As we will discuss below, the conversations occurred between defendant and four persons: Reineccius, defendant's mother, the juvenile female, and an unidentified person to whom defendant spoke by telephone. This appeal concerns only the correctness of the order suppressing the body wire evidence described above. (4)

The issues of the authority of the police in this context, and the admissibility of evidence obtained through police use of a body wire, require us to discern the legislature's intention in enacting the pertinent statutes. We approach that task by examining the text and context of those statutes. If those sources unambiguously disclose the legislature's intent, then our inquiry is at an end. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993). More specifically, with respect to the present case, if our statutory construction demonstrates that the conduct of the police exceeded their authority, and that Oregon statutes specify the consequence of the unauthorized conduct, we need not address defendant's constitutional arguments. Logic, not mere editorial taste, compels that approach. This court routinely analyzes the legality of the acts of an official exercising delegated authority by first examining ordinary rules of law, including the scope and limits of an official's legal authority, before addressing any constitutional issue. See State v. Lowry, 295 Or 337, 343, 667 P2d 996 (1983) (stating principle).

We turn to the pertinent statutes. (5) We begin by considering two statutes that authorize the courts to issue ex parte orders authorizing police interception of certain wire, electronic, or oral communications by the police. The first statute is ORS 133.724, which provides in part:

"(1) An ex parte order for the interception of wire, electronic or oral communications may be issued by any circuit court judge upon written application made upon oath or affirmation of the individual who is the district attorney or a deputy district attorney authorized by the district attorney for the county in which the order is sought. The application shall include:

"* * * * *

"(c) A statement demonstrating that there is probable cause to believe that an individual is committing, has committed or is about to commit, a particular felony of murder, kidnapping, arson, robbery, bribery, extortion or other crime dangerous to life and punishable as a felony, or a crime punishable as a felony under ORS 475.992 or 475.995, or any conspiracy to commit any of the foregoing crimes;

"* * * * *

"(3) Upon examination of such application and evidence the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, electronic or oral communications within the state if the judge determines on the basis of the facts submitted by the applicant that:

"(a) There is probable cause for belief that an individual is committing, has committed or is about to commit a particular crime described in subsection (1)(c) of this section * * *." (6)

The second pertinent statute is ORS 133.726, which provides in part:

"(1) An ex parte order for the obtaining of any conversation in any county of this state under ORS 165.540 (5)(a) may be issued by any judge as defined in ORS 133.525 upon written application made upon oath or affirmation of the district attorney or a deputy district attorney authorized by the district attorney for the county in which the order is sought or upon the oath or affirmation of any peace officer. The application shall include:

"* * * * *

"(b) A statement demonstrating that there is reasonable cause to believe that a person whose conversation is to be obtained is engaged in committing or has committed a particular felony and that the obtaining of the conversation will yield evidence thereof; and

"* * * * *

"(3) Upon examination of the application and evidence, the judge may enter an ex parte order, as requested or as modified, authorizing or approving obtaining of conversations within the state if the judge determines on the basis of the facts submitted by the applicant that:

"(a) There is reasonable cause to believe that a person is engaged in committing or has committed a particular felony."

We also consider a third statute, ORS 165.540, which provides in part:

"(1) Except as otherwise provided in ORS 133.724 or subsections (2) to (7) of this section, no person shall:

"(a) Obtain or attempt to obtain the whole or any part of a telecommunication or a radio communication to which such person is not a participant, by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, unless consent is given by at least one participant.

"* * * * *

"(c) Obtain or attempt to obtain the whole or any part of a conversation by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, if all participants in the conversation are not specifically informed that their conversation is being obtained.

"* * * * *

"(5)(a) The prohibitions in subsection (1)(c) of this section do not apply:

"(A) When a law enforcement officer obtains a conversation between the officer or someone under the officer's direct supervision pursuant to a court order under ORS 133.726, providing the person who obtains or records the conversation does not intentionally fail to record and preserve the conversation in its entirety.

"(B) When a law enforcement officer obtains a conversation between the officer, or someone under the direct supervision of the officer, and a person who the officer has probable cause to believe has committed, is engaged in committing or is about to commit a crime punishable as a felony under ORS 475.992 or 475.995 or the circumstances at the time the conversation is obtained are of such exigency that it would be unreasonable to obtain the court order under ORS 133.726, providing the person who obtains or records the conversation does not intentionally fail to record and preserve the conversation in its entirety.

"* * * * *

"(9) Violation of subsection (1) of this section * * * is a Class A Misdemeanor." (7)

We determine the legislature's intention in enacting the foregoing statutes by construing their words together, taking care not to insert what the legislature has omitted or to omit what the legislature has inserted. State v. Castrejon, 317 Or 202, 206, 856 P2d 616 (1993) (quoting ORS 174.010). ORS 165.540 provides a useful starting point in that endeavor. Any evidence of a wire or oral communication that the state intercepts in violation of ORS 165.540 is inadmissible whether or not the interception might have satisfied other pertinent statutes. ORS 41.910(1). (8) Thus, we begin by examining whether police intercepted any wire or oral communication in violation of ORS 165.540.

1. Defendant's telephone call.

We first consider the body wire evidence of defendant's statements that he uttered into the telephone during the telephone call from his home.

ORS 165.540(1)(a) addresses the obtaining or the attempt to obtain, by means of a device, of the whole or any part of a "telecommunication." ORS 165.540(1)(c) addresses the obtaining or the attempt to obtain, by means of a device, of the whole or any part of a "conversation." We first inquire whether defendant's utterances into the telephone constituted a "conversation" or a "telecommunication."

ORS 165.535(1) provides that a "conversation" consists of an "oral communication which is not a telecommunication." ORS 133.721(7) defines "oral communication" to mean

"any oral communication, other than a wire communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation."

ORS 133.721(10) defines "wire communication" to mean

"any communication made in whole or in part through the use of facilities for the transmission of communications by aid of wire, cable or other like connection between the point of origin and the point of reception * * *."

Defendant's utterance of words into the telephone was a "wire communication" under ORS 133.721(10), because his statements constituted a communication "made in whole or in part through the use of facilities for the transmission of communications by aid of wire, cable or other like connection * * *." Nothing in the record indicates that defendant expected that anyone was intercepting his telephone call through the use of a device. ORS 133.721(7) excludes the kind of wire communication shown here from the statutory definition of "oral communication." Consequently, defendant's telephone call did not constitute a "conversation" under ORS 165.535(1).

ORS 165.535(4) defines "telecommunication" in part to mean the

"transmission of * * * sounds of all kinds by aid of wire, cable or similar connection between the points of origin and reception of such transmission * * *."

A person's utterance of words into a telephone during a telephone call is an instance of transmitting the person's words by wire between the point of origin and the point of reception. Consequently, defendant's act of speaking into the telephone was a "telecommunication" within the meaning of ORS 165.535(4).

ORS 165.540(1)(a) prohibits any person from obtaining or attempting to obtain "the whole or any part of a telecommunication * * * to which such person is not a participant" by means of a device, "unless consent is given by at least one participant." Neither Reineccius nor Eiseland was a participant in defendant's telecommunication, and neither defendant nor the other participant in the telephone call consented to the state's obtaining defendant's statements during the call by the body wire device. We conclude from the foregoing that the state's conduct in obtaining evidence, by means of a device, of defendant's utterances into his telephone did not comply with ORS 165.540(1)(a). (9)

ORS 41.910(1)(a) prohibits admission of evidence of any wire or oral communication "intercepted" in violation of ORS 165.540. ORS 133.721(5) defines "intercept" to mean "the acquisition, by listening or recording, of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device." The state's act of using a body wire to listen to and record the contents of defendant's statements during the telephone call was an "interception" of a wire communication within the definition in ORS 133.721(5). ORS 41.910(1)(a) rendered that evidence inadmissible in this case. The trial court's order suppressing the body wire evidence of defendant's statements intercepted during the telephone call was correct.

2. Defendant's conversations with his mother and the juvenile female.

As already noted, the state obtained evidence, by body wire, of defendant's face-to-face conversations with his mother and the juvenile female. Each of those communications was a "conversation" under the definition stated in ORS 165.535(1). We turn to the question whether obtaining those conversations violated ORS 165.540(1)(c).

The state acknowledges that no one informed all participants in those conversations that the state would be obtaining the conversations. See ORS 165.540(1)(c) (providing that all participants must be informed specifically that their conversation is being obtained). However, the state, relying on ORS 165.540(5)(a)(B), argues that the prohibition in ORS 165.540(1)(c) does not apply "[w]hen a law enforcement officer obtains a conversation between the officer, or someone under the direct supervision of the officer, and a person who the officer has probable cause to believe" is engaged in a drug felony.

ORS 165.540(5)(a)(B) requires that the conversations occur "between" two identified persons, specifically, between Reineccius and a person whom Eiseland had probable cause to believe was involved in a drug felony. Webster's Third New Int'l Dictionary, 209 (unabridged ed 1993), defining the word "between" as "involving the reciprocal action of : involving as participants : jointly engaging * * * : shared by * * *." The term "between," in this context, connotes a communication shared reciprocally by the two identified persons as participants jointly engaged in conversation. See also ORS 165.535(1) (defining "conversation" as oral communication "between" two or more persons).

In obtaining defendant's conversations with his mother and the juvenile female by means of a device, the state did not satisfy ORS 165.540(5)(a)(B). (10) Defendant's conversations did not amount to the transmission of an oral communication, ORS 165.535(1), shared reciprocally with Reineccius as a participant jointly engaged in conversation. ORS 165.540(5)(a)(B) does not apply to a conversation between a suspected drug felon (here, defendant) and another person that the law enforcement officer or the officer's agent can overhear, by means of a listening device, unless the officer or the agent shares reciprocally in the communication as a participant jointly engaged in conversation. Because the state's action here did not satisfy ORS 165.540(5)(a)(B), the prohibition in ORS 165.540(1)(c) remains applicable to the obtaining of defendant's conversations with his mother and with the juvenile female.

The only remaining question is whether the state's violation of ORS 165.540(1)(c) in the foregoing instances amounts to the interception of oral communications within the meaning of ORS 41.910(1)(a). The definitions of "intercept" and "oral communication" provided in ORS 133.721(5) and (7) apply to ORS 41.910(1). Those definitions demonstrate that the state's conduct in obtaining defendant's conversations with his mother and the juvenile female constituted interceptions of oral communications under ORS 41.910(1)(a). Because those interceptions violated ORS 165.540(1)(c), ORS 41.910(1)(a) renders the body wire evidence of those oral communications inadmissible. The trial court's order suppressing that evidence was correct.

3. Defendant's conversations with Reineccius.

We next address the admissibility of the state's body wire evidence of defendant's conversations with Reineccius. The state argues that it complied with ORS 165.540(5)(a)(B) in obtaining those conversations and that no statute obligates the state to secure a court order authorizing use of a body wire if it complies with that statute. Defendant argues that the state must obtain a court order under ORS 133.724 under these circumstances.

The parties' arguments require us to construe ORS 133.724, 133.726, and 165.540(5)(a)(B) together. ORS 133.724(1) authorizes a circuit court judge, upon a proper application, to issue an ex parte order that authorizes "the interception of wire, electronic or oral communications * * *." In State v. Pottle, 296 Or 274, 284, 677 P2d 1 (1984), this court addressed the lawfulness of an ex parte order under ORS 133.724 that authorized police to wiretap telephone calls. The court gave the following explanation of the function of the ex parte order under that statute:

"'The order serves the same function as a conventional search warrant by indicating judicial authority for the search, acting as the formal record of judicial action, establishing the limits of the search, instructing the officers on the scope of their authority and discretion, and providing the basis for determining the legality of the execution of the search.' J. Carr, The Law of Electronic Surveillance,

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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
2

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[.]"
3

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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