S44639 Reesman v. Highfill

SUPREME COURT CASES

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State: Oregon

Docket No: CC94C-11060

Case Date: 10/29/1998

FILED: October 29, 1998

IN THE SUPREME COURT OF THE STATE OF OREGON

WILLIAM R. REESMAN,

Respondent on Review,

RICHARD HIGHFILL and JIM WILSON,

Petitioners on Review,

and

JACK MURRAY, BARNARD CLARK and
PEOPLE AGAINST AURORA AIRPORT
EXPANSION,

Defendants.

(CC 94C-11060; CA A92453; SC S44639)

On review from the Court of Appeals.*

Argued and submitted May 4, 1998.

Keith J. Bauer, of Parks, Bauer, Sime & Winkler LLP, Salem, argued the cause for petitioner on review Richard Highfill. With him on the petition was Billy M. Sime.

William Earle, of Abbott, Davis, Rothwell, Mullin & Earle, PC, Portland, argued the cause for petitioner on review Jim Wilson. With him on the petition was Alan Gladstone.

David D. Park, of Elliot & Park, Portland, argued the cause for respondent on review.

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

LEESON, J.

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

*Appeal from Marion County Circuit Court,

Jamese L. Rhoades, Judge.

149 Or App 374, 942 P2d 891 (1997).

LEESON, J.

Plaintiff William Reesman brought this action for defamation and invasion of privacy by false light after defendants(1) printed and distributed a flyer between March 11 and March 17, 1994, on behalf of the organization People Against Aurora Airport Expansion (PAAAX). The circuit court entered summary judgment for defendants. Plaintiff appealed, and the Court of Appeals reversed. Reesman v. Highfill, 149 Or App 374, 942 P2d 891 (1997). For the reasons that follow, we reverse the decision of the Court of Appeals and affirm the judgment of the circuit court.

FACTS

The facts, as reported by the Court of Appeals, are uncontested:

"Plaintiff is the sole shareholder and chief aerobatics pilot of Mig Magic, Inc., a business engaged in air show performances. Plaintiff's performances are notable in that he flies former Communist bloc aircraft. Plaintiff has received local media attention because of his performances.

"Between 1989 and, at least, March 1994, plaintiff kept and maintained his aircraft at the Aurora State Airport in the Aurora/Charbonneau area. Beginning in 1991, the airport was the object of controversy because of plans for expansion that had provoked the opposition of some local residents. Those residents formed an association, [PAAAX]. Defendants were two of the four members of PAAAX's steering committee and were actively involved in the association's legal efforts to stop the airport's expansion. Between the fall of 1991 and January 1994, PAAAX engaged in extensive litigation and incurred substantial unpaid attorney fees; defendants, as members of the steering committee, were personally obligated for those fees. Plaintiff, although aware of the airport controversy, did not participate in it.

"On March 1, 1994, while plaintiff was testing a new engine in his Chinese MiG-17 in the airspace above the Aurora Airport, a fuel line broke. The jet caught fire, and plaintiff was forced to make an emergency landing at Aurora Airport. The next day, The Oregonian published an article regarding the incident. That article, headlined 'Pilot escapes death in burning jet,' included a picture of the burnt MiG and a caption that stated: 'An explosion and fire rocked Bill Reesman's Chinese MiG-17 fighter Tuesday as he tried a corkscrew climb over the Aurora Airport going 300 mph.' The text of the article stated, in part:

"'Bill Reesman was testing a new jet engine on Tuesday, pushing his Chinese MiG-17 fighter through a corkscrew climb over the Aurora Airport when at 2,000 feet and 300 mph, he knew he was in trouble.

"'With a bang and a shake, the supersonic warplane caught fire.

"'"I felt an explosion in the tail of the aircraft and the flight controls started vibrating pretty badly," Reesman said. ["]I knew I had very serious problems. There were 40-foot flames coming out of the left side of the fuselage."

"'* * * * *

"'Even so, his only concern Tuesday afternoon had been keeping the aircraft and its full load of 400 gallons of jet fuel from hitting the surrounding hazelnut orchards and crashing on somebody's house.

"'* * * * *

"'After switching off the single, centrifugal-flow jet engine and opening the cockpit canopy, Reesman scrambled out, he said, and "ran faster than any 53-year old man has ever done before."

"'In less than five minutes, 14 firefighters from Aurora Fire Department * * * started attacking the blaze with fire-suppressing foam. Reesman said he tried to stop them and warn them to get away as fast and as far as they could.

"'"I've seen those things blow up before," he said, "and [it's] pretty bad."'

"On March 18, 1994, defendants published and distributed a flyer to citizens in Aurora and Charbonneau. The flyer's main purpose was to solicit contributions towards PAAAX's outstanding attorney fees of approximately $20,000. Above the flyer's text was a photocopy of The Oregonian's picture of the burnt MiG and its accompanying caption and headline. The text of the flyer read:

"'New developments in negotiations between [PAAAX] and the Oregon Aeronautics Div. are the cumulative result of your loyal financial support. Contributions are still urgently needed to help defray already accrued attorney's fees. They will be gratefully received by,

Jim Wilson, Treas.

* * *

"'All of us are beneficiaries of our neighbor's generosity and a positive indication of our progress is the establishment of an AIRPORT ADVISORY COMMITTEE. Composed of representatives from Charbonneau and Aurora, it will receive complaints concerning noise pollution, flight path violations and act as a forum for airport actions that may impact the surrounding community.

"'The Oregonian quotes the jet pilot as saying, "I've seen these things blow up before and it's pretty bad", adding that upon scrambling out he, "ran faster than any 53 year old man had ever run before." He stated he was executing a "corkscrew climb" which, under certain conditions, is definitely frowned upon by FAA [Federal Aeronautics Administration] authorities. Rather than commend the pilot for his impetuous candor, may we ask why YAK ATTACK, an air show company, is based at Aurora? And, why are aerial acrobatics permitted over heavily residential Charbonneau and Aurora?

"'This sequence of events, not entirely unexpected by homeowners, does much to justify and explain their vigorous opposition to airport expansion and the virtual guarantee of increased jet traffic to follow.

"'Recommended takeoff and landing patterns are routinely ignored by many pilots. The Jet accident indicates a potential for disaster. Had it occurred over Charbonneau or Aurora results could have been catastrophic. That it did not is only attributable to a benign providence. None of us can be too sanguine about the environmental destruction sure to come with airport expansion.

"'With thanks from your Steering Committee:

"'Dick Highfill, Jack Murray, Bernie Clark, Jim Wilson'" Reesman, 149 Or App at 376-79 (footnotes omitted; emphasis added).

Plaintiff's complaint alleged that the emphasized statements in the flyer, taken in the context in which they appear, "imply the existence of the following false and defamatory matters" concerning him:

"a. That the 'corkscrew climb' maneuver in which plaintiff was piloting his jet aircraft was an aerobatic maneuver prohibited by the FAA because of safety concerns, when in truth and in fact flying the plane in a corkscrew pattern, as was being done by plaintiff at the time of the accident, is a safety maneuver designed to insure the plane remains above and in close proximity to the airstrip in the event of an emergency.

"b. That plaintiff was performing aerobatic maneuvers over the populated areas of Aurora and Charbonneau, a violation of Federal Aviation Regulations for which plaintiff's pilot's license could be revoked, when in truth and in fact, plaintiff was piloting the plane in a lawful manner for purposes of testing a newly installed engine.

"c. That plaintiff is among the 'many pilots' who routinely ignore recommended takeoff and landing patterns, thereby unreasonably placing the safety of Aurora and Charbonneau homeowners at risk, when in truth and in fact plaintiff strictly observes all rules and regulations governing the safe operation of aircraft." (Emphasis added.)

According to plaintiff, those implications portray him as an unsafe pilot who "presents an unreasonable risk of harm to the neighboring community." Plaintiff's complaint also alleged that the same implications placed him in a false light that was highly offensive to him and would be highly offensive to a reasonable person.

Defendants responded that plaintiff had failed to state a claim for relief and, as an affirmative defense, alleged that plaintiff was a public figure and that there was no triable issue of fact about whether defendants acted with actual malice. Defendants moved for summary judgment on plaintiff's defamation and invasion of privacy claims; plaintiff filed a cross-motion for partial summary judgment on defendants' public figure affirmative defense. The circuit court granted each of defendants' motions and denied plaintiff's motion, reasoning that "[t]he pleadings and the submissions make it clear that there is no genuine issue of material fact and Defendants are entitled to judgment as a matter of law."

On plaintiff's defamation claim, the Court of Appeals reversed, holding that the three statements were capable of defamatory meaning because, although they could be read as making "merely general observations" that did not pertain specifically to plaintiff, "the statements, taken in context, could reasonably be read otherwise and are capable of defamatory meaning." Reesman, 149 Or App at 381. The court also held that plaintiff was neither a public figure nor a limited public figure. Id. at 384. On plaintiff's invasion of privacy claim, the court held that summary judgment on the entire claim was error, because there were disputed issues of material fact as to whether defendants acted with "actual malice" as to some, but not all, of plaintiff's allegations. Id. at 390-91. The court reversed summary judgment for both defendants on the first statement and reversed as to Highfill on the third statement.

We view the evidence that was before the circuit court on summary judgment, and all reasonable inferences to be drawn from it, in the light most favorable to plaintiff, the nonmoving party. Jones v. General Motors Corp., 325 Or 404, 420, 939 P2d 608 (1997). For the reasons that follow, we reverse the decision of the Court of Appeals and affirm the judgment of the circuit court.

DEFAMATION

A defamatory communication is one that would subject another to

"'* * * hatred, contempt or ridicule * * * [or] tend to diminish the esteem, respect, goodwill or confidence in which [the other] is held or to excite adverse, derogatory or unpleasant feelings or opinions against [the other].'" King v. Menolascino, 276 Or 501, 504, 555 P2d 442 (1976) (quoting Farnsworth v. Hyde, 266 Or 236, 238, 512 P2d 1003 (1973)).

To be actionable, a communication must be both false and defamatory. Harley-Davidson v. Markley, 279 Or 361, 364, 568 P2d 1359 (1977). The court, rather than the jury, determines whether a communication is capable of a defamatory meaning. King, 276 Or at 504. In making that determination, the court looks to the context in which the communication was made. Ibid. A communication can be defamatory on its face. Andreason v. Guard Publishing Co., 260 Or 308, 310-11, 489 P2d 944 (1971). Even a communication that is not defamatory on its face may be defamatory if a reasonable person could draw a defamatory inference from the communication. King, 276 Or at 504.

Defamation by implication is the label commonly given to a claim that requires drawing a defamatory inference from a facially nondefamatory communication. See Rodney A. Smolla, Law of Defamation § G13

4.05 (1986 and 1997 supp) (describing tort). When defamation by implication is alleged, this court has held that the link between the communication and the defamatory inference must not be "too tenuous." King, 276 Or at 504; see also Andreason, 260 Or at 312 (if external circumstances could make it possible to draw a connection between a statement and a defamatory inference, the connection must not be "too tenuous"). In other words, when a claim for defamation requires the drawing of a defamatory inference, the inference that the plaintiff seeks to draw from the facially nondefamatory communication must be reasonable. See King, 276 Or at 504 (not reasonable to infer that the plaintiff was a liar and promoter of unworthy causes from words or context of the defendants' letters to the editor).

As explained above, plaintiff did not allege that any of the statements in the flyer themselves were false and defamatory. Rather, he contended that particular assertions in the flyer, emphasized earlier and discussed below, "imply the existence of * * * false and defamatory matters."

The first statement concerns the corkscrew climb that plaintiff was executing while testing the new engine in his MiG jet on the day of the accident. The flyer refers to the "'corkscrew climb' which, under certain conditions, is definitely frowned upon by FAA authorities." According to plaintiff, that statement implies that a corkscrew climb is "prohibited by the FAA because of safety concerns," (emphasis added), and portrays plaintiff as an unsafe pilot. The question is whether the context in which the statement appears creates a reasonable implication that the corkscrew climb is prohibited and that plaintiff was flying in violation of FAA regulations on the day of the accident.

The statement that the FAA frowns on the use of the corkscrew climb under certain conditions is the second sentence of the paragraph in which it appears. The first sentence of that paragraph quotes what plaintiff said to a reporter for The Oregonian after the accident, namely, that when jet airplanes blow up, "it's pretty bad." The statement that plaintiff claims supports a defamatory inference does not declare under what conditions the FAA frowns on the use of the corkscrew climb, and nothing in the flyer indicates what such conditions might be. To the contrary, the last sentence of the paragraph in which the statement appears declares that aerial acrobatic maneuvers are permitted over the area in which the accident occurred. Even assuming that the corkscrew climb that plaintiff was executing when the accident occurred was an aerial acrobatic maneuver, the flyer makes it clear that such a maneuver is permitted, not prohibited. And, even if the statement to which plaintiff objects could be read to imply that the FAA frowns on the use of the corkscrew climb when a pilot is testing a new engine, such an assertion does not support the implication that the FAA prohibits pilots from making corkscrew climbs. The context in which the statement appears thus does not create a reasonable link between the statement that the FAA frowns on the corkscrew climb under certain conditions and the implication that the FAA prohibits the corkscrew climb.

Plaintiff's complaint next alleged that the third and fourth sentences of the same paragraph also contain defamatory implications. The statements to which he objects are the reference to plaintiff's "impetuous candor" when talking to the newspaper reporter and the question, "[W]hy are aerial acrobatics permitted over heavily residential Charbonneau and Aurora?" According to plaintiff, the reference to his "impetuous candor" and the question about why aerial acrobatics are permitted imply that, on the day of the accident, he was flying his airplane in "violation of Federal Aviation Regulations for which [his] pilot's license could be revoked." Nothing in those statements supports the implication that plaintiff suggests. More significantly, those statements are expressions of opinion. Such statements, which cannot be interpreted reasonably as stating actual facts, are not actionable because they are constitutionally protected. See Milkovich v. Lorain Journal Co., 497 US 1, 20, 110 S Ct 2695, 111 L Ed 2d 1 (1990) (statement of opinion relating to matters of public concern that do not contain a provably false factual connotation will receive full constitutional protection).

We turn to the final statements in the flyer that plaintiff contends contain a defamatory inference. Those statements appear in the last paragraph of the flyer: "Recommended takeoff and landing patterns are routinely ignored by many pilots," and only a "benign providence" prevented plaintiff's accident from occurring over the heavily populated areas of Charbonneau and Aurora. According to plaintiff, those statements imply that he is one of the many pilots who routinely ignore recommended takeoff and landing patterns, thereby unreasonably placing at risk the safety of homes in Charbonneau and Aurora.

The statement that "many pilots" routinely ignore recommended takeoff and landing patterns does not declare that plaintiff is one of those pilots. Neither does the statement declare that plaintiff did anything on the day of the accident to place the Charbonneau or Aurora areas at risk. The flyer refers to plaintiff's accident as a recent example of the potentially disastrous consequences of an airplane accident and states that such a disaster was averted on the day of plaintiff's accident only by "a benign providence." Those assertions reflect the authors' concern that, if the Aurora Airport expands, the potential for accidents will increase because many pilots ignore recommended takeoff and landing patterns. Nothing in the flyer supports the implication that plaintiff is among the "many pilots" who routinely ignore recommended takeoff and landing patterns.

In sum, we conclude that the circuit court did not err in granting defendants' motion for summary judgment on plaintiff's claim for defamation.(2)

INVASION OF PRIVACY BY FALSE LIGHT

Plaintiff's complaint for invasion of privacy by false light also alleged that the statements discussed above imply that the corkscrew climb is prohibited by the FAA because of safety concerns, that plaintiff was performing aerobatic maneuvers over Aurora and Charbonneau on the day of the accident in violation of FAA regulations, and that plaintiff is among the "many pilots" who routinely ignore recommended takeoff and landing patterns. According to plaintiff, those implied statements placed his "conduct, skill, safety and responsibility as a pilot before the public in a false light" that was highly offensive to him and would be to a reasonable person.

This court previously has not recognized the tort of invasion of privacy by false light.(3) As we explain below, we need not decide in this case whether to do so because, even if that tort is available in Oregon, plaintiff has failed to allege it here.

The Restatement (Second) of Torts § 652A (1977) identifies four types of invasion of privacy claims, including "false light." See also Time, Inc. v. Hill, 385 US 374, 87 S Ct 534, 17 L Ed 2d 456 (1967) (describing framework for tort now labeled "invasion of privacy by false light"). Section 652E of the Restatement (Second) of Torts provides:

"One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

"(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

"(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed."

The tort of invasion of privacy by false light is like the tort of defamation, in that it leads others to believe something about a person that is not true. However, the primary injury in a defamation claim is damage to a person's reputation, while the primary injury in a false-light claim is the mental distress or anguish that a person suffers because the "false light" that is cast by a communication is highly offensive. See Lerman v. Flynt Distributing Co., Inc., 745 F2d 123, 135 (2d Cir 1984) (describing tort).

As explained above, plaintiff's complaint alleged only that the statements to which he objects imply statements that would lead others to believe something about him that is not true. Even assuming that there could be circumstances in which implied statements could form the basis for a claim of invasion of privacy by false light,(4) we have explained above that, in this case, there are no reasonable links between the statements in the flyer and the implied statements that plaintiff contends place him in a false light. See Partington v. Bugliosi, 56 F3d 1147, 1160 (9th Cir 1995) (reasons for rejecting defamation claim provide basis for also rejecting false-light claim). Therefore, the circuit court did not err in granting defendants' motion for summary judgment on plaintiff's invasion of privacy claim.

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

1. The defendants originally were Richard Highfill, Jim Wilson, Jack Murray, Barnard Clark, and People Against Aurora Airport Expansion (PAAAX). Plaintiff settled his claims against Murray, Clark, and PAAAX, and those claims were dismissed with prejudice. In this opinion, "defendants" refers to Highfill and Wilson.

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2. In light of our disposition, we need not address defendants' argument that plaintiff is a public figure because he actively seeks publicity for his air shows. See Wheeler v. Green, 286 Or 99, 116, 593 P2d 777 (1979) (a person does not become a public figure merely because "one's job happens to be one in which widespread publicity is given to outstanding performers"). Neither need we consider defendants' argument that plaintiff failed to demonstrate, by clear and convincing evidence, that defendants acted with actual malice.

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3. For over a decade, however, the Court of Appeals has held that a person who places another in a false light may be liable for resulting damages. Dean v. Guard Publishing Co., 73 Or App 656, 659, 699 P2d 1158 (1985).

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4. Courts are divided about whether a plaintiff can state a claim for invasion of privacy by false light when doing so requires the drawing of inferences. Compare Machleder v. Diaz, 801 F2d 46, 54-55 (2d Cir 1986) (in order not to interfere with editorial discretion, only literal falsity should be actionable) with Godbehere v. Phoenix Newspapers, Inc., 162 Ariz 335, 341, 783 P2d 781, 787 (Ariz 1989) (a plaintiff may bring invasion of privacy by false-light claims even though publication is not defamatory and even though actual facts stated are true).

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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.
1

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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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