S44061 Lane Transit District v. Lane County

SUPREME COURT CASES

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State: Oregon

Docket No: CC16-95-02904

Case Date: 05/29/1998

Filed: May 29, 1998

IN THE SUPREME COURT OF THE STATE OF OREGON

LANE TRANSIT DISTRICT, a
municipal corporation,

Petitioner on Review,

LANE COUNTY, OREGON, a
municipal corporation, and
ANNETTE NEWINGHAM, Chief Deputy
County Clerk of Lane County,
Oregon,

Defendants,

and

CITIZENS FOR RESPONSIBLE PUBLIC
TRANSIT, a registered political
action committee,

Respondent on Review.

(CC 16-95-02904; CA A89559; SC S44061)

On review from the Court of Appeals.*

Argued and submitted September 9, 1997.

Joel S. DeVore, of Luvaas, Cobb, Richards & Fraser, P.C., Eugene, argued the cause and filed the petition on behalf of petitioner on review.

Susan L. Stoner, Portland, argued the cause and filed the brief on behalf of respondent on review.

Paul Snider, Legal Counsel, Association of Oregon Counties, Salem, filed a brief on behalf of amicus curiae Association of Oregon Counties.

Gerald G. Watson, of Churchill, Leonard, Brown, Lodine & Hendrie, LLP, Salem, filed a brief on behalf of amicus curiae League of Oregon Cities.

Jeffrey M. Batchelor, of Lane Powell Spears Lubersky, LLP, Portland, filed a brief on behalf of amicus curiae Tri-County Metropolitan Transportation District and Eugene Public Schools, District 4J.

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

KULONGOSKI, J.

The decision of the Court of Appeals is reversed in part. The judgment of the circuit court is affirmed in part and reversed in part.

* Appeal from Lane County Circuit Court,

David V. Brewer, Judge.

146 Or App 109, 932 P2d 81 (1997).

** Fadeley, J., retired January 31, 1998, and did not participate in this decision. Graber, J., resigned March 31, 1998, and did not participate in this decision.

KULONGOSKI, J.

This case concerns a proposed initiative measure filed by Citizens for Responsible Public Transit (Citizens) for a vote by the electors of the Lane Transit District (LTD). The measure, if enacted, would reduce the current salary of LTD's general manager and would establish procedures by which that salary could be increased. We are called upon to decide whether the subject matter addressed by the proposed initiative measure is legislative or administrative in nature.(1) For the reasons that follow, we hold that the subject matter of the proposed initiative measure is administrative in nature and therefore not properly the subject of the initiative process.

We take the relevant facts, which are undisputed, from the majority opinion of the Court of Appeals:

"LTD is a mass transit district that serves the Eugene and Springfield areas. It is governed by a board of directors (board), the members of which are appointed by the Governor, subject to confirmation by the state Senate. ORS 267.090. The board, in turn, appoints a general manager, who holds that office indefinitely, subject to removal by the board. ORS 267.135. The general manager is the only LTD employee appointed directly by the board. All others are hired and supervised by the general manager.

"The current general manager was hired 16 years ago. Her current annual salary is approximately $77,000. The general manager negotiates her salary with the board each year. The salary is not determined by reference to any particular schedule of ranges or steps. According to the chair of the board, it is instead based on a comparison of compensation for general managers in comparable transit districts. The board also takes into account general principles expressed in a 'Salary Administration Policy,' which governs salary determinations for other nonbargaining-unit employees by reference to salary grades and ranges within each grade as determined by a salary administration committee that is chaired by the general manager. Those general principles include a commitment to 'fair and equitable compensation based on the relative value of each position within LTD,' with due consideration to 'rates of pay in like positions, for comparable work in the marketplace, and the District's financial position.' However, by its terms, the Salary Administration Policy does not govern the determination of the general manager's salary; it describes policies that the general manager is to implement in setting salaries of employees subject to her authority. Nevertheless, there was uncontradicted testimony that, in the past, the board has taken into account some of the general considerations contained in the policy in setting the general manager's salary.

"Unhappy with the general manager's current salary and the method by which it has been determined, Citizens filed a proposed initiative measure containing the following language:

"'The people of Lane Transit District ordain as follows:

"'Section 1. The qualifications do not justify the salary and benefits provided for and approved by the Lane Transit District Board when compared to other positions with equal or greater authority and responsibility.

"'Section 2. The annual salary for the Lane Transit District general manager (as the highest paid District employee) shall not exceed $49,000. In addition, benefits provided to the general manager shall not exceed the benefits authorized for other Lane Transit District employees. It is the intent of this section to severely limit benefits to the general manager not accorded other employees.

"'Section 3. The $49,000 salary limitation may be increased on an annual basis in an amount not to exceed the annual increase granted to the lowest paid, bona fide, full-time employee of the Lane Transit District.

"'Section 4. Other than as provided in Section 3, the salary limitation may be changed only by a vote of the people at a general election.

"'Section 5. Severability. If a court should hold invalid or unconstitutional any clause or part of this Ordinance, that holding shall not affect the remaining parts of this Ordinance that are not held invalid or unconstitutional.'"

Lane Transit District v. Lane County, 146 Or App 109, 111-13, 932 P2d 81 (1997) (boldface in original). Citizens then filed with Lane County the required number of supporting signatures, and the County certified the measure to the local ballot. Id. at 113.

LTD brought this action against Lane County, seeking a declaration that, among other defects, the proposed initiative measure was administrative in nature and therefore not properly addressed through the initiative process. Additionally, LTD sought an order enjoining Lane County and its elections officer from placing the proposed initiative measure on the local ballot. Id. Citizens intervened as a defendant and moved for dismissal, alleging that LTD had failed to state a claim for which relief could be granted and that the circuit court lacked subject-matter jurisdiction. LTD moved for summary judgment, arguing that the court had subject-matter jurisdiction and that Citizens' proposed initiative measure was administrative in nature. After the circuit court denied Citizens' motion for dismissal, Citizens also moved for summary judgment. The circuit court denied Citizens' motion for summary judgment, granted LTD's motion for summary judgment, and entered an order enjoining Lane County and Lane County's chief deputy clerk from placing the proposed initiative measure on the ballot. Id. at 114. Citizens appealed.

The Court of Appeals reversed the judgment of the circuit court and remanded, concluding that the proposed initiative measure is legislative in nature and that the circuit court therefore erred in granting summary judgment to LTD and in enjoining placement of the proposed initiative measure on the local ballot. Id. at 122. We allowed LTD's petition for review and now reverse in part the decision of the Court of Appeals.(2)

On review of a summary judgment, we must determine whether there is a genuine issue as to any material fact and whether LTD is entitled to judgment as a matter of law. ORCP

47 C; Jones v. General Motors Corp., 325 Or 404, 420, 939 P2d 608 (1997). Here, there is no dispute as to any material fact. Therefore, we review the relevant constitutional and statutory provisions in order to determine whether LTD is entitled to judgment as a matter of law.

Article IV, section 1(1), of the Oregon Constitution reserves to the people the powers of initiative and referendum. Article IV, section 1(5), further provides:

"The initiative and referendum powers reserved to the people * * * are further reserved to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district."

In Foster v. Clark, 309 Or 464, 472, 790 P2d 1 (1990), this court noted that the constitutional reservation of the initiative power in Article IV, section 1(5), applies only to "municipal legislation." Proposed initiative measures addressing administrative matters properly are excluded from the ballot. Id. The operative word is "legislation."(3) This court has defined legislative activity as "making laws of general applicability and permanent nature," id., and administrative activity as that "necessary * * * to carry out legislative policies and purposes already declared." Monahan v. Funk, 137 Or 580, 584, 3 P2d 778 (1931).

In Foster, this court was called upon to answer the same question addressed in this case: whether the subject matter of a local proposed initiative measure, which sought to rename a Portland street, was "legislative" or "administrative" in nature. The Foster court determined that sections 17.93.010 to 17.93.060 of the Portland City Code constituted "a complete scheme for changing Portland city street names, including rules on petition forms, fees, review by various City officials, and final consideration by the City Council," and that the scheme was a "completed legislative plan, requiring no further legislative contribution." Foster, 309 Or at 473. The court then held that the subject matter of the proposed initiative measure, the renaming of Martin Luther King, Jr., Boulevard, was administrative in nature, and not legislative, because the proposed initiative measure was filed after the legal framework governing the renaming of Portland city streets was in place. Id. at 473-74. This court has stated that a particular activity is "administrative," and not "legislative," if it does not set new policy, but merely carries out legislative policies and purposes already declared. Monahan, 137 Or at 584. Because the subject matter of the proposed initiative measure addressed in Foster was administrative in nature, it was not appropriately addressed through the initiative process. Foster, 309 Or at 474.

In this case, a completed legislative plan for the appointment, compensation, and removal of a transit district general manager is declared in ORS 267.135 and ORS 267.200(5). ORS 267.135(1) specifies that the transit district board has the power and is required to appoint a general manager:

"The board shall appoint a general manager on the basis of the qualifications of the general manager with special reference to the actual experience in or knowledge of accepted practices in respect to the duties of the office of the general manager. A general manager shall hold office for an indefinite term and may be removed by the board only by an affirmative vote of a majority of the members."

The express power to appoint the general manager is coupled with the express power to set the compensation for that position. ORS 267.200(5) provides that a transit district "shall have full power to carry out the objects of its formation," including the power to "employ * * * persons and fix their compensation."(4) ORS 267.135(2) provides that the transit district board has the power to remove a general manager, and provides the procedures for doing so:

"Before a general manager is removed, the general manager shall upon demand be given a written statement of the reasons for removal. If requested, the general manager shall be given an open hearing at a meeting of the board before the final vote for removal. However, the board may by resolution suspend the general manager from office pending a hearing. The action of the board in suspending or removing a general manager, if approved by a majority of the members of the board, may be reconsidered by the board but is otherwise final and not subject to appeal."

Together, ORS 267.135 and ORS 267.200(5) thus declare as legislative policy of the state that the board of a transit district shall have the power to appoint a general manager for the district, to fix the terms of employment for that position, including compensation (i.e., salary and benefits), and to remove the general manager. This legal structure, like the City of Portland's street-naming policy at issue in Foster, constitutes "a completed legislative plan" for LTD's appointment, compensation, and removal of a general manager. Foster, 309 Or at 473. This completed legislative plan "requir[es] no further legislative contribution." Id.

The proposed initiative measure purports to set the salary and benefits for the general manager of LTD. That is an administrative task under the existing legal framework we have set out above. Foster, 309 Or at 474-75. Because Citizens' proposed initiative measure is administrative in nature, and not legislative, we hold that the trial court properly removed the proposed initiative measure from the ballot and granted summary judgment to LTD. The Court of Appeals improperly reversed the trial court's grant of summary judgment on that issue.

The fact that the proposed initiative measure contains a severability clause does not alter our conclusion. By its terms, the severability clause is (and would have to be) aimed at judicial construction of the measure after (and if) it becomes an "Ordinance," i.e., after it is adopted. Here, however, the proposed initiative measure suffers from a defect that makes the very act of submitting it to a vote legally inappropriate. The severability clause thus is inapplicable.

The decision of the Court of Appeals is reversed in part. The judgment of the circuit court is affirmed in part and reversed in part.(5)

1. The constitutional reservation of the initiative power in Article IV, section 1(5), applies only to "municipal legislation." Foster v. Clark, 309 Or 464, 471-72, 790 P2d 1 (1990). For that reason, proposed initiative measures addressing administrative matters properly are excluded from the ballot. Id. at 472.

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2. In addition to granting summary judgment to LTD because the subject matter of the proposed initiative measure was administrative in nature, the trial court also ordered Citizens to pay LTD's labor costs related to the production of documents. The Court of Appeals reversed on that issue. Lane Transit District v. Lane County, 146 Or App at 123-24, 932 P2d 81 (1997). Because the petition for review did not address that issue, we do not discuss it here.

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3. ORS 267.170(1), part of the statutory framework created by the legislature to govern the operation of mass transit districts, also specifies that the initiative process, as it relates to matters associated with transit districts, is limited to legislative matters:

"The electors of a district may exercise the powers of the initiative and referendum with reference to legislation of the district, in accordance with ORS 255.135 to 255.205." (Emphasis added.)

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4. The express power to appoint the general manager carries with it an implied power to fix the terms of the general manager's employment, including salary and benefits: "[W]here a power is conferred by an act, everything necessary to carry out that power and make it effectual and complete will be implied." Pioneer Real Estate Co. v. City of Portland, 119 Or 1, 10, 247 P 319 (1926). See also Fales v. Multnomah Co. et al., 119 Or 127, 133, 248 P 151 (1926) ("When a power is given by statute everything necessary to make it effectual is given by implication.").

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5. The Court of Appeals reversed the judgment of the circuit court on the discovery costs issue. See ante, note 2, ___ Or at ___ (slip op at 5).

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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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