S44794 Leo v. Myers

SUPREME COURT CASES

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S44794 Leo v. Myers

State: Oregon

Docket No: none

Case Date: 02/12/1998

Filed: February 12, 1998

IN THE SUPREME COURT OF THE STATE OF OREGON

SUSAN LEO,

Petitioner,

HARDY MYERS, Attorney General,
State of Oregon,

Respondent.

(SC S44794, S44798, S44797)

(consolidated for argument and opinion)

On petitions to review ballot titles.

Argued and submitted January 7, 1998.

Scott J. Kaplan, ACLU Foundation of Oregon, Inc., Portland, argued the cause and filed the petitions for petitioner.

Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause for respondent. With him on the responses were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

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

GILLETTE, J.

Ballot titles certified as modified. This decision shall become effective in accordance with ORAP 11.30(10).

Van Hoomissen, J., dissented and filed an opinion.

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

GILLETTE, J.

These three ballot title review proceedings are consolidated for purposes of argument and opinion. The cases involve three different, but closely related, ballot measures. In each, petitioner(1) challenges the legal sufficiency of one or more parts of a ballot title certified by the Attorney General. For the reasons that follow, we modify the ballot title certified by the Attorney General for each measure and, as modified, certify the various ballot titles.

The three proposed measures have been denominated by the Secretary of State as Measure 55, Measure 56, and Measure 57. Each would amend Article VII (amended), section 1, of the Oregon Constitution, by adding the words emphasized in boldface(2) to that section:

"The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law. The judges of the supreme and other courts shall be elected by the legal voters of the state or of their respective districts for a term of six years, and shall receive such compensation as may be provided by law, which compensation shall not be diminished during the term which they are elected. No law or rule shall limit freedom of speech by candidates for any judicial office. Freedom of speech shall include, but shall not be limited to, the right to express views on judicial issues and the performance of judges. No designation of incumbency or reference to current or prior judicial position shall be permitted on the ballot in a contested election. If an incumbent judge has no opposition, voters shall be given a choice as to whether they wish to retain the judge for an additional term. The choice shall be clearly stated on the ballot next to the incumbent judge's name. If a majority of those voting do not vote to retain the incumbent judge, a new election, in which the incumbent judge will not be eligible, shall be held."

The texts of the three proposed measures vary in the following respects:

Measure 56

Measure 56 contains only the wording emphasized above.

Measure 57

Measure 57, in addition to the emphasized wording, would add the following additional sentence to section 1 of Article VII (amended):

"All judicial positions shall be filled by election, including any position that becomes vacant during a term of office."

The apparent purpose of that additional provision is to remove gubernatorial authority to appoint persons to fill judicial vacancies. At present, such authority is provided by Article V, section 16, of the Oregon Constitution.(3)

Measure 55

Measure 55 contains both the wording of Measure 56, emphasized above, and also the additional wording of Measure 57. However, Measure 55 restores to a limited degree the gubernatorial appointment power, but also limits appointed judges' tenure, by adding the following subsection:

"(2) Notwithstanding subsection (1), the governor may, in a manner provided by law, appoint a person to fill a vacant position, provided that no person shall serve more than six months without election."

From the foregoing summary, it may be seen that the three proposed measures represent a basic theme in two parts (Measure 56), which then is augmented in two slightly different ways (Measures 55 and 57):

(1) All judicial positions, whether vacant or having an incumbent, are to be filled by election.(4)

(2) And, in the campaigning for election to a judicial position, judicial candidates shall be free to express themselves as fully as if they were candidates for non-judicial, and even partisan, offices.(5)

With the foregoing general observations in mind, we turn to the specific challenges made by petitioner against each of the proposed measures. For the sake of internal clarity, this opinion shall address each measure in the same order in which we earlier have summarized it, i.e., we deal first with Measure 56 (the "basic measure"); followed by Measure 57 (the "basic measure," plus elimination of gubernatorial appointment); and, finally, discuss Measure 55 (the "basic measure," coupled with provisions that first take away and then, to a limited extent, restore the gubernatorial power of appointment).

Measure 56 (the "basic measure")

The Attorney General's certified caption for this proposed measure states:

"AMENDS CONSTITUTION: EXPANDS JUDICIAL CANDIDATES' SPEECH RIGHTS; CHANGES PROCESS FOR RETAINING JUDGES."

Petitioner asserts that the foregoing caption is inadequate, for the purposes of ORS 250.035(1)(a), because it fails reasonably to identify the "subject" of the measure. We agree with that proposition, but on a more narrow basis than most of petitioner's alternative theories as to why that is so.

The Attorney General's caption highlights both parts of the measure. If a measure essentially has only two parts and they both may be highlighted within the 10-word limitation on captions, such an approach may be acceptable. See, e.g., Crumpton v. Keisling, 317 Or 322, 325-26, 855 P2d 1107 (1993) (recognizing principle). The Attorney General has attempted to do that with respect to Measure 56. However, use of the rubric, "speech rights," in one part of the caption conceals, rather than reveals, the sweep of the proposed measure. Ambiguous mention of an "expansion" of "speech rights" of judges does nothing to suggest the fundamental alteration that the proposed measure would make in the judicial campaign process. As we have indicated, the measure would free judicial candidates to engage in political activity as fully as if they were candidates for offices outside the judicial branch. That is a subject of the measure that the ballot must portray accurately. The failure of the Attorney General's caption to do so means that the caption is inadequate under ORS 250.035(1)(a). A modification is necessary.

On the other hand, the other half of the Attorney General's caption, viz., "CHANGES PROCESS FOR RETAINING JUDGES," is adequate. The measure would alter the method by which one kind of incumbent judge may be retained. At present, a judge who is unopposed need only receive more votes than any individual write-in candidate in order to retain the judge's position. The proposed measure would turn an election in which a judge was unopposed into a referendum on whether that judge should be retained.(6) We thus conclude that the essential message of that part of the Attorney General's ballot title caption may be sustained. However, in order to accommodate the modification that we earlier have indicated will be required, some modification to this half of the ballot title caption also will be necessary.

The Attorney General's caption is modified to read as follows:

AMENDS CONSTITUTION: EXPANDS JUDICIAL
CANDIDATES' POLITICAL CAMPAIGNING RIGHTS;
CHANGES JUDICIAL RETENTION PROCESS

It follows from the foregoing that we must modify both the Attorney General's "yes" and "no" result statements to reflect the change in the caption. The Attorney General certified the following result statements:

"RESULT OF 'YES' VOTE: 'Yes' vote expands judicial candidates' campaign speech rights, changes process for judicial elections involving incumbents.

"RESULT OF 'NO' VOTE: 'No' vote retains judicial candidates' existing speech rights, existing process for judicial elections involving incumbents."

We modify them respectively as follows:

RESULT OF "YES" VOTE: "Yes" vote changes judicial retention process; allows judicial candidates full political activity in campaigning.

RESULT OF "NO" VOTE: "No" vote retains present judicial retention process, present limitations on judicial candidates' campaigning for office.

The Attorney General's certified summary of the proposed measure states:

"SUMMARY: Amends Oregon Constitution. Measure would allow judicial candidates to express their views on performance of judicial duties, personally solicit campaign contributions. Measure thus would override current limits on judicial candidates' speech. Measure would prohibit ballot from identifying judicial candidate as incumbent in contested election. When incumbent judge is unopposed, voters would have choice, stated on ballot, whether to retain judge for additional term. Incumbent judge must receive majority vote to win election. Otherwise, new election would be held, in which incumbent judge would be ineligible."

With respect to the Attorney General's summary, petitioner argues that it fails to convey the significance of the expansion in campaign rights for judicial candidates. We agree that its description is not precisely the same as that which we have held to be appropriate with respect to the other two parts of the ballot title. However, we believe that the Attorney General's summary, when read as a whole, encompasses all the various effects of the proposed measure while still managing, through example and illustration, to capture the essence of the change to judicial campaigning. We thus cannot say that the summary fails to comply substantially with the requirements of law. ORS 250.035(2)(d).

The Attorney General's ballot title for Measure 56 is modified in the respects heretofore set out in this opinion. Pursuant to ORS 250.085(5), we certify the following ballot title for Measure 56 to the Secretary of State:

AMENDS CONSTITUTION: EXPANDS JUDICIAL
CANDIDATES' POLITICAL CAMPAIGNING RIGHTS;
CHANGES JUDICIAL RETENTION PROCESS

RESULT OF "YES" VOTE: "Yes" vote changes judicial retention process; allows judicial candidates full political activity in campaigning.

RESULT OF "NO" VOTE: "No" vote retains present judicial retention process, present limitations on judicial candidates' campaigning for office.

SUMMARY: Amends Oregon Constitution. Measure would allow judicial candidates to express their views on performance of judicial duties, personally solicit campaign contributions. Measure thus would override current limits on judicial candidates' speech. Measure would prohibit ballot from identifying judicial candidate as incumbent in contested election. When incumbent judge is unopposed, voters would have choice, stated on ballot, whether to retain judge for additional term. Incumbent judge must receive majority vote to win election. Otherwise, new election would be held, in which incumbent judge would be ineligible.

Measure 57

As noted, Measure 57 consists of the "basic measure," coupled with elimination of the gubernatorial power to fill vacant judicial positions by appointment. While presented in a different order than the caption and result statements certified for Measure 56, the Attorney General's certified caption and result statements for Measure 57 do not differ substantially from those relating to the other measure. They state:

"AMENDS CONSTITUTION: CHANGES
PROCESS FOR SELECTING JUDGES; EXPANDS
JUDICIAL CANDIDATES' SPEECH RIGHTS

"RESULT OF 'YES' VOTE: 'Yes' vote changes process for filling judicial vacancies, retaining incumbents; expands judicial candidates' speech rights.

"RESULT OF 'NO' VOTE: 'No' vote keeps existing judicial candidates' speech rights, process for filling judicial vacancies, retaining incumbents."

Petitioner challenges both the caption and the result statements, and we hold that they are inadequate for the same reasons expressed with respect to the caption and result statements for Measure 56. In addition, we note that the Attorney General has chosen in this caption to drop any reference to judicial retention and to substitute, instead, a reference to the proposed measure's abolition of gubernatorial authority to fill a judicial vacancy by appointment. Sometimes, such choices are unavoidable: The stringent word limitation of the caption necessitates picking and choosing among various subjects in a multiple subject measure, highlighting some at the expense of others. However, if the word limitation does not compel choices of that kind, they should not be made. See Crumpton, 317 Or at 326 (discussing principle). Here, in our view, no such sacrifice of one subject for another is necessary. We certify the following caption for Measure 57:

AMENDS CONSTITUTION: CHANGES JUDICIAL SELECTION,
RETENTION; EXPANDS JUDICIAL CANDIDATES'
POLITICAL CAMPAIGNING RIGHTS

The foregoing change in the caption necessitates conforming changes in the result statements for Measure 57. They are modified as follows:

RESULT OF "YES" VOTE: "Yes" vote changes judicial selection, retention processes; allows judicial candidates full political activity in campaigning.

RESULT OF "NO" VOTE: "No" vote retains present judicial selection, retention processes, present limitations on judicial candidates' campaigning activities.

We turn to the summary. The Attorney General certified the following summary for Measure 57:

"SUMMARY: Amends constitution. Currently, judges are elected for 6-year terms, governor fills vacancies by appointment; appointments last until next general election. Measure requires judicial positions that become vacant during term of office to be filled by election. Allows judicial candidates to express views on performance of judicial duties, personally solicit campaign contributions, thus overriding current limits on judicial candidates' speech. Ballot cannot identify judicial candidate as incumbent in contested election. Unopposed judicial candidate must receive majority vote; otherwise, new election held, and incumbent is ineligible."

Petitioner's attack on the summary for Measure 57 is essentially the same as his attack on that for Measure 56. We reject it for similar reasons: Although it might be possible to fashion a better summary, the one certified by the Attorney General satisfies the pertinent statutory criteria.

Pursuant to ORS 250.085(5), we certify the following ballot title for Measure 57 to the Secretary of State:

AMENDS CONSTITUTION: CHANGES JUDICIAL SELECTION,
RETENTION; EXPANDS JUDICIAL CANDIDATES'
POLITICAL CAMPAIGNING RIGHTS

RESULT OF "YES" VOTE: "Yes" vote changes judicial selection, retention processes; allows judicial candidates full political activity in campaigning.

RESULT OF "NO" VOTE: "No" vote retains present judicial selection, retention processes, present limitations on judicial candidates' campaigning activities.

SUMMARY: Amends constitution. Currently, judges are elected for 6-year terms, governor fills vacancies by appointment; appointments last until next general election. Measure requires judicial positions that become vacant during term of office to be filled by election. Allows judicial candidates to express views on performance of judicial duties, personally solicit campaign contributions, thus overriding current limits on judicial candidates' speech. Ballot cannot identify judicial candidate as incumbent in contested election. Unopposed judicial candidate must receive majority vote; otherwise, new election held, and incumbent is ineligible.

Measure 55

As noted, Measure 55 consists of the "basic measure," coupled with provisions that first eliminate and then restore, in a limited way, the gubernatorial power to fill judicial vacancies by appointment. The Attorney General's certified caption uses slightly different words but is, in all material respects, the same as the caption certified for Measure 57. Petitioner challenges that caption and we hold that it is inadequate for the reasons stated with respect to the caption for Measure 57. The issue then becomes one of remedy.

As we read them, Measures 55 and 57 are about precisely the same subjects, even if they deal with those subjects in slightly different ways. (The difference is that Measure 57 would eliminate outright the gubernatorial power to fill certain judicial vacancies by appointment, while Measure 55 would limit the duration of such appointments, rather than eliminate them outright.) The similarities between the two measures are sufficiently pervasive that it would be inappropriate to create different captions for each, solely for the purpose of highlighting the difference. See Rooney v. Kulongoski (Elections Division #13), 322 Or 15, 22-23, 902 P2d 1143 (1995) (ballot titles may resemble each other, or even be identical, if to do so probably will not create confusion). We do not perceive any likelihood in the present case that certifying a caption that is identical to that already certified with respect to Measure 57 would cause confusion. We therefore certify a caption for Measure 55 that is the same as that certified for Measure 57.

Turning to the result statements, the Attorney General certified the following:

"RESULT OF 'YES' VOTE: 'Yes' vote changes judicial election process, expands judicial candidates' speech rights, limits appointed judges' terms.

"RESULT OF 'NO' VOTE: 'No' vote retains existing judicial election process, judicial candidates' speech rights, terms for appointed judges."

As already noted, it ordinarily is the practice of this court, when it has modified a caption, "to make conforming changes to the Result Statements." Phillips v. Myers, 325 Or 221, 227, 936 P2d 964 (1997). Petitioner urges us to do that here, and we shall. In doing so, we retain the Attorney General's choice to mention the additional focus of Measure 55, viz., the tenure of appointed judges.

The Attorney General certified the following summary with respect to Measure 55:

"SUMMARY: Amends constitution. Currently, judges are elected for 6-year terms, governor fills vacancies by appointment; appointment lasts until next general election, and appointee may run for full term. Measure allows appointed judges to serve only six months without election. Allows judicial candidates to express views on performance of judicial duties, personally solicit campaign contributions, thus overriding current limits on judicial candidates' speech. Ballot cannot identify opposed judicial candidate as incumbent. Unopposed judicial candidate must receive majority vote; otherwise, new election held, and incumbent is ineligible."

Petitioner's attack on the summary is essentially the same as that which she advanced with respect to the summary for Measure 57, and we reject it for the same reason: Although it might be possible to fashion a better summary, the one certified by the Attorney General satisfies the pertinent statutory criteria.

Pursuant to ORS 250.085(5), we certify the following ballot title for Measure 55 to the Secretary of State:

AMENDS CONSTITUTION: CHANGES JUDICIAL SELECTION,
RETENTION; EXPANDS JUDICIAL CANDIDATES'
POLITICAL CAMPAIGNING RIGHTS

RESULT OF "YES" VOTE: "Yes" vote changes judicial selection, retention processes; expands judicial candidates' campaigning; limits appointed judges' terms.

RESULT OF "NO" VOTE: "No" vote retains judicial selection, retention processes, limits on judicial campaigning, terms for appointed judges.

SUMMARY: Amends constitution. Currently, judges are elected for 6-year terms, governor fills vacancies by appointment; appointment lasts until next general election, and appointee may run for full term. Measure allows appointed judges to serve only six months without election. Allows judicial candidates to express views on performance of judicial duties, personally solicit campaign contributions, thus overriding current limits on judicial candidates' speech. Ballot cannot identify opposed judicial candidate as incumbent. Unopposed judicial candidate must receive majority vote; otherwise, new election held, and incumbent is ineligible.

Ballot titles certified as modified. This decision shall become effective in accordance with ORAP 11.30(10).

Leo v. Myers

VAN HOOMISSEN, J., dissenting

I respectfully dissent. In my view, the Attorney General's certified ballot titles substantially comply with the requirements of ORS 250.035. ORS 250.085(5).

1. Petitioner is an elector who, pursuant to the provisions of ORS 250.067(1), timely submitted written comments respecting the Attorney General's proposed ballot titles for each of the proposed measures. She therefore is entitled to maintain the present proceedings.

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2. For the convenience of the reader, we here reproduce the entire section 1 of Article VII (amended), in order to provide a proper context within which to consider the various proposed measures.

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3. Article V, section 16, of the Oregon Constitution, provides:

"When * * * at any time a vacancy occurs in any * * * state office, or in the office of judge of any court, the governor shall fill such vacancy by appointment, which shall expire when a successor has been elected and qualified. When any vacancy occurs in any elective office of the state or of any district or county thereof, the vacancy shall be filled at the next general election, provided such vacancy occurs more than sixty-one (61) days prior to such general election."

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4. Of course, it presently is true that all judicial offices are filled -- either immediately or after a hiatus due to an interim gubernatorial appointment -- by election. But each of the proposed measures works significant alterations in that process.

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5. If there were any doubt about the foregoing proposition, it disappears when one considers the statement in the "Preamble" to each of the proposed measures that the measure "is designed to ensure that judicial elections are truly democratic contests where voters actually have a choice."

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6. The method by which some other sitting judges who are opposed may be retained would remain unchanged in terms of the way in which the votes were counted, but the proposed measure's alteration in the scope of permissible activity in connection with any such contested election justifies the use of the word "CHANGE" with respect to those retention elections, as well.

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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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