S44137 Michels v. Hodges

SUPREME COURT CASES

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State: Oregon

Docket No: CC58-93-07683

Case Date: 03/26/1998

Filed: March 26, 1998

IN THE SUPREME COURT OF THE STATE OF OREGON

In the Matter of the Adoption of
Alexander Ferguson Hodges, a Minor Child.

JOHN NORRICK MICHELS and ELIZABETH
ANN MICHELS, Husband and Wife,

Petitioners on Review,

DELBERT LOYD HODGES,

Respondent on Review,

OPEN ADOPTION AND FAMILY SERVICES, INC.

Petitioner on Review,

and

MARY CONSTANCE LIPPITT, nka Mary
Constance Guardino,

Respondent.

(CC 58-93-07683; CA A88794; SC S44137)

On review from the Court of Appeals.*

Argued and submitted November 6, 1997.

John Chally, of Bouneff & Chally, Portland, argued the cause for petitioners on review John and Elizabeth Michels and filed the joint petition for petitioners on review John and Elizabeth Michels and Open Adoption and Family Services, Inc. With him on the petition was Richard D. Cohen, Portland.

Richard D. Cohen, Portland, argued the cause for petitioner on review Open Adoption and Family Services, Inc.

Philip F. Schuster, II, of Dierking & Schuster, Portland, argued the cause and filed the brief for respondent on review.

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

GILLETTE, J.

The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court with instructions to dismiss.

*Appeal from Lane County Circuit Court,
Pierre L. Van Rysselberghe, Judge.
146 Or App 128, 931 P2d 827 (1997).

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

GILLETTE, J.

In this adoption proceeding under ORS chapter 109, the issue before the court is whether adoptive parents may plead and prove, as a substitute for the consent of one of the birth parents, that grounds for termination of the parental rights of that birth parent exist under ORS chapter 419B. The trial court held that proof of grounds for termination under ORS chapter 419B is a lawful alternative to parental consent and, having found grounds for termination under both ORS 419B.504 and 419B.506, the trial court allowed the adoption to proceed without the consent of, and over the objections of, the biological father. On appeal by father, a divided Court of Appeals, sitting in banc, reversed, holding that the existence of grounds for termination under ORS chapter 419B is not among the six alternatives to parental consent expressly set forth in ORS chapter 109 and that the court lacks authority to rewrite that statute. Michels v. Hodges, 146 Or App 128, 931 P2d 827 (1997). We allowed review and now affirm the decision of the Court of Appeals.

The facts of the case are not in dispute. Father and mother were married twice, first in 1965 and again in 1971. They had three children, two daughters who are now grown and a son, Alexander, now 11 years old, who is the subject of this adoption proceeding. Mother has had a long history of mental illness, that had a severely detrimental effect on all three children. Indeed, the trial court found that both of the daughters were "extremely disturbed young adults." Mother and father divorced in 1987, and the parties were awarded joint legal and physical custody of Alexander. After the dissolution, the child lived primarily with mother, but also spent substantial periods of time with father.

By March 1993, mother's condition deteriorated to such a point that she decided to put Alexander up for adoption. She signed a form consenting to his adoption and surrendered him, for the purpose of adoption, to a state-licensed adoption agency, Open Adoption and Family Services, Inc. The agency immediately placed Alexander with the Michels, a couple who desired to adopt him. In May 1993, the Michels filed a petition for adoption, alleging mother's consent. The petition was silent on the subject of father's consent. Although the petition was not served on father, he learned of its existence and moved to dismiss the petition, based on lack of jurisdiction.

The Michels sought and were granted leave to amend the adoption petition and, in May 1994, the Michels filed an amended petition for adoption, alleging that father's consent is not required because, "[p]ursuant to 419B.504, [father] is unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into his home is improbable in the foreseeable future due to conduct or conditions not likely to change" and, "[p]ursuant to ORS 419B.506, [father] has failed and neglected without reasonable and lawful cause to provide for the basic physical and psychological needs of the child for a period of at least six months prior to the filing of the petition for adoption."

Father filed a motion pursuant to ORCP 21 to dismiss the amended petition, asserting that, because he had not consented to the adoption, any jurisdiction to proceed must be found -- if at all -- in one of the statutory exceptions to father's consent found in ORS chapter 109. He argued that the grounds for termination under ORS chapter 419B do not constitute jurisdictional substitutes for his consent under chapter 109 and, furthermore, that none of the exceptions that were set forth expressly in chapter 109 was alleged in the petition for adoption. It followed, he argued, that the trial court had no jurisdiction over the matter.

The trial court denied the motion, holding that grounds for termination under ORS chapter 419B can be pleaded and proved as a substitute for the grounds set out in ORS chapter 109, thereby providing a factual basis for jurisdiction to proceed with the adoption. The case went to trial and, at its conclusion, the court found that father was unfit and had neglected the child for a period of six months preceding the filing of the petition for adoption. The court concluded that, under those circumstances, father's consent was not necessary to the adoption. The court terminated father's parental rights and granted the Michels' petition to adopt the child.

As noted, father appealed to the Court of Appeals, which reversed. The adoptive parents then petitioned this court for review, contending that the Court of Appeals erred in failing to follow this court's precedents, viz., Eder v. West, 312 Or 244, 821 P2d 400 (1991); Moody v. Voorhies, 257 Or 105, 475 P2d 579 (1970); and Simons et ux v. Smith, 229 Or 277, 366 P2d 875 (1961), which, they assert, allow the pleading and proving of grounds for termination under ORS chapter 419B to operate as a jurisdictional substitute for the alternatives to a parent's consent permitted under ORS chapter 109. In its decision below, the Court of Appeals acknowledged the existence of wording in those cases that supported the adoptive parents' position, but labeled that wording dictum (and "incorrect dictum at that"), Michels, 146 Or App at 132, and refused to follow it. Michels, 146 Or App at 134.(1) We allowed review to examine ORS chapter 109 and to explore whether, in its previous decisions, this court has interpreted that chapter to include grounds for termination under ORS chapter 419B as an additional alternative to a parent's consent to an adoption.

Adoption is purely a creation of statute; it was unknown at common law. Eder, 312 Or at 260; Zockert v. Fanning, 310 Or 514, 517, 800 P2d 773 (1990). This court long has held that all jurisdictional requirements of the adoption statute must be met. See, e.g., Burrell et ux v. Simpson, 203 Or 472, 474, 280 P2d 368 (1955); Williams et ux v. Capparelli, 180 Or 41, 44, 175 P2d 153 (1946) (both so holding); see also Eder, 312 Or at 260 ("In a contested adoption, the requirement that the court find by clear and convincing evidence an express statutory exception to the consent requirement is a matter of extreme importance").

In PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993), this court set out the statutory interpretation process that Oregon courts follow. The court recognized three levels of judicial inquiry in the search for the object of statutory interpretation, viz., legislative intent. 317 Or at 610-12. At the first level of inquiry, the court examines the text and context of statutory wording. Id. at 610-11. Among the rules applied at this level is the rule that, in interpreting a statute, a court should neither insert in a statute what has been omitted nor omit what has been inserted. Id. at 611 (citing ORS 174.010). We turn to the statutory text.

The adoption statute, ORS 109.312, requires the written consent of both biological parents to the adoption, "[e]xcept as provided in ORS 109.314 to 109.329." ORS 109.314 to 109.329 list six exceptions to the consent requirement. A biological parent's consent is not necessary when (1) that parent does not have legal custody of the child after a dissolution proceeding, ORS 109.314; (2) the parent surrenders the child to the State Office for Services to Children and Families or to an approved child-caring agency of the state for the purpose of adoption or the child is permanently committed to either agency by the court, ORS 109.316; (3) an agency outside the state has authority to consent in loco parentis, ORS 109.318; (4) the parent has been adjudged mentally ill or mentally deficient or has been imprisoned for at least three years, ORS 109.322; (5) the parent has willfully deserted or neglected the child for one year prior to the filing of the petition for adoption, ORS 109.324; or (6) the husband is not the father of the child, ORS 109.326. In summary, the text states that consent of the biological parents, or a statutory substitute for that consent, is the jurisdictional foundation on which the adoption statute is based. See Burrell, 203 Or at 474-75 (announcing principle).

Also considered at the first level of analysis under PGE is the statutory context. We have found no contextual statute that creates any question whether ORS 109.312 to 109.326 presents a complete summary of the prerequisites to the adoption process.

The Michels concede that none of those statutory alternatives to father's consent has been satisfied in this case to date. It also is plain that the adoption statute does not provide that a parent's consent is unnecessary when there are grounds for terminating that parent's parental rights under ORS chapter 419B, but termination has not yet occurred.

Finally, and also at the first level of analysis, this court looks to its previous case law, when that case law has construed authoritatively the relevant statutory wording. See Redman Industries, Inc. v. Lang, 326 Or 32, 35, 943 P2d 208 (1997) (stating principle). The Court of Appeals' opinions focused on whether this court's earlier statements concerning ORS 109.312 were authoritative, a question to which we now turn.

As noted, both opinions in the Court of Appeals focused on statements that this court had made in Eder, Moody, and Simons. We have examined each of those opinions, but conclude that nothing said in any of them would alter the result reached by the Court of Appeals' majority in this case. The reason is a key factual distinction that went unnoticed in the Court of Appeals: In each of those cited cases, the trial court had jurisdiction over the adoption because one of the express exceptions to parental consent, viz., ORS 109.314, was satisfied.(2) That is, in each case, the non-consenting parent did not have legal custody of the child.(3) As this court stated in Eder, in an "adoption controlled by ORS 109.314, such as this case, a court has subject-matter jurisdiction notwithstanding the lack of consent by an objecting parent." 312 Or at 260 (emphasis added). See also Moody, 257 Or at 108-09; Simons, 229 Or at 278-79 (both demonstrating the factual distinction). Such subject-matter jurisdiction is lacking in the present case, because the non-consenting parent also had custody. Our previous decisions thus provide no legal justification for reading another basis for jurisdiction into the adoption statute.

It is clear from a careful reading of Eder, Moody, and Simons that this court never has held that the existence of grounds for termination of a person's parental rights under ORS chapter 419B, in itself, confers subject-matter jurisdiction over an adoption on a trial court. Rather, those cases stand for the proposition that the ORS chapter 419B termination criteria may be used to establish "conduct grave enough to justify forfeiture of parenthood," thereby allowing an adoption to proceed over the objections of a non-custodial parent, when the court already has subject-matter jurisdiction under ORS 109.314. The Court of Appeals' contrary interpretation of this court's prior case law in this regard is incorrect.

From the foregoing, it follows that the meaning of the relevant statutory text is "clear" at the first level of the PGE analysis. A court has subject-matter jurisdiction to entertain a petition for adoption only if one of the criteria in ORS 109.312 to 109.329 is present. The petition for adoption in this case failed to allege grounds that conferred jurisdiction on the trial court. The petition for adoption should have been dismissed.

The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court with instructions to dismiss.

1. Judges Deits, Richardson, Riggs, and Haselton dissented on the grounds that this court, in Eder, Moody, and Simons, either held or strongly suggested that grounds for termination can be pleaded and proved as a substitute for parental consent in an adoption case. Michels, 146 Or App at 135-38.

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2. ORS 109.314 provides:

"If the legal custody of the child has been awarded in divorce proceedings, the written consent of the person to whom custody of the child has been awarded may be held sufficient by the court; but, unless the parent not having custody consents to the adoption, a citation to show cause why the proposed adoption shall not be made shall be served in accordance with ORS 109.330 upon the parent not having the custody, and the objections of such parent shall be heard if appearance is made. This section does not apply where consent is given in loco parentis under ORS 109.316 or 109.318."

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3. The Court of Appeals simply was incorrect when it stated, below, that "[i]n Eder, the court held that the petitioners had failed to establish any of the exceptions to consent set out in ORS chapter 109." Michels, 146 Or App at 133.

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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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