S45877 Willamette Egg Farms, Inc. v. Dept of Rev.

SUPREME COURT CASES

Laws-info.com » Cases » Oregon » 2000 » S45877 Willamette Egg Farms, Inc. v. Dept of Rev.

State: Oregon

Docket No: OTC4134

Case Date: 11/24/2000

FILED: NOVEMBER 24, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

WILLAMETTE EGG FARMS, INC.,
an Oregon corporation,

Appellant,

DEPARTMENT OF REVENUE,
State of Oregon,

Respondent.

(OTC 4134; SC S45877)

On appeal from the Oregon Tax Court.*

Carl N. Byers, Judge.

Argued and submitted November 10, 1999.

Michael E. Farnell, Hagen, Dye, Hirschy & DiLorenzo, P.C., Portland, argued the cause and filed the briefs for appellant. With him on the brief was Joseph T. Hagen.

James C. Wallace, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent. With him on the brief was Hardy Myers, Attorney General.

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

RIGGS, J.

The judgment of the Tax Court is affirmed.

*14 OTR 337 (1998)

**Kulongoski, J., did not participate in the consideration or decision of this case.

RIGGS, J.

This case is before the court on direct appeal from a judgment of the Oregon Tax Court. Willamette Egg Farms, Inc. (taxpayer) appeals the denial of a property tax exemption under ORS 307.400(5)(e) (set out below) for tangible property used in its egg-production facility. The Tax Court concluded that equipment used to raise egg-laying chicks to maturity is not "directly related" to the production of eggs. Willamette Egg Farms, Inc. v. Dept. of Rev., 14 OTR 337, 343 (1998). Consequently, the Tax Court granted summary judgment in favor of the Department of Revenue (department). For the reasons that follow, we affirm the judgment of the Tax Court.

We take the following undisputed facts from the Tax Court's opinion:

"Plaintiff is a large producer, processor, and marketer of fresh shell eggs and maintains approximately 1.3 million laying hens. It is a vertically integrated business, which means that it buys approximately 700,000 to 800,000 day-old chicks per year, raises them in brooder houses until they are mature (about 18 weeks old), and then transfers them to laying houses where they produce eggs until they are approximately two years old. Plaintiff cleans, grades, packages, and markets the eggs.

"The specific equipment in question consists of an extensive cage system with automatic feeding, watering, and ventilation systems. This equipment houses the young chickens or 'pullets,' until they mature and become laying hens. The cages are like those used for laying hens, except for features related to the gathering of eggs such as sloped floors and egg conveyors. One purpose in having similar cages is to reduce stress when the pullets are moved from the brooder house to the laying house."

Id. at 338-39 (footnote omitted).

The Jackson County Department of Assessment denied taxpayer's claim of exemption for the machinery and equipment used in taxpayer's brooder house. Taxpayer appealed that denial to the department, claiming that the property was "directly related and reasonably necessary" to the production of fresh shell eggs and, therefore, was exempt under ORS 307.400(5)(e). The department issued an order upholding the county's denial of the exemption:

"There is no question that the production of young fowl are directly related to the production of eggs. In fact, it is those young fowl which will, after the passage of 17 weeks, become layers and move into the actual production phase of the subject itself, the egg.

"But is this brooder house directly related and reasonably necessary for the production of eggs?

"Even though the health concerns are important to these young fowl, it appears from the evidence presented there are other ways to obtain healthy layer chickens."

(Italicized emphasis in original; underlined emphasis added.)

Taxpayer filed a complaint with the Tax Court requesting relief from the order. Taxpayer then moved for summary judgment, arguing that its brooder house equipment was "reasonably necessary" to the production of eggs. Accordingly, taxpayer argued, that equipment was exempt. In response, the department conceded that raising chickens "is essential to egg production," but argued that the brooder house equipment is not "directly related" to egg production. After oral argument, the Tax Court denied taxpayer's motion, concluding that the subject equipment is not exempt under ORS 307.400(5)(e), because, although the equipment is "reasonably necessary" to producing eggs, it is not "directly related" to that purpose. Willamette Egg Farms, 14 OTR 342-43. The department then moved for summary judgment, which the Tax Court granted.

Taxpayer appealed to this court, ORS 305.445, assigning as errors the Tax Court's denial of its motion for summary judgment and that court's grant of the department's motion for summary judgment. Because taxpayer filed its complaint before the effective date of the 1995 amendments to ORS 305.445, which sets out the appropriate standard of review, we review de novo. See Delta Air Lines, Inc. v. Dept. of Rev., 328 Or 596, 603, 984 P2d 836 (1999) (holding that 1995 amendments to ORS 305.445 affect only cases filed in Tax Court on or after September 1, 1997). (1)

Taxpayer first argues that the department is bound by its administrative finding, contained in its order, that taxpayer's brooder house equipment is "directly related" to the production of eggs. Alternatively, taxpayer argues that the Tax Court erred in concluding that the brooder house equipment is not "directly related" to the production of eggs. According to taxpayer, equipment used by egg producers to raise pullets is "directly related" to the production of eggs, because pullets become layer hens that produce eggs.

The department disagrees that it is bound by its finding in its order. Second, the department argues that, because taxpayer's brooder house equipment is separated in space -- pullets are housed separately from layer hens -- and time -- pullets take approximately 18 weeks to grow into layer chickens -- from egg production, the equipment is not "directly related" to egg production. The department distinguishes the equipment used to raise pullets from the activity of raising pullets. The department appears to concede that the latter is "directly related" to egg production, but argues that only the former is relevant here, and the former is not "directly related" to egg production. The Tax Court agreed with the department and concluded that "the subject equipment results in chickens, not eggs." Willamette Egg Farms, 14 OTR at 342. For the reasons explained below, we hold that taxpayer's brooder house equipment is not exempt under ORS 307.400(5)(e). (2) Accordingly, we affirm the decision of the Tax Court.

We have considered each of taxpayer's three arguments in support of its position that the department is bound by the administrative finding contained in its order. We conclude that none is well taken or merits discussion.

We turn to the merits. ORS 307.400(5)(e) grants an exemption from ad valorem taxation for:

"Equipment used for the fresh shell egg industry that is directly related and reasonably necessary to produce, prepare, package and ship fresh shell eggs from the place of origin to market, whether bolted to the floor, wired or plumbed to interconnected equipment, including, but not limited to, grain bins, conveyors for transporting grain, grain grinding machinery, feed storage hoppers, cages, egg collection conveyors and equipment for washing, drying, candling, grading, packaging and shipping fresh shell eggs."

(Emphasis added.) We interpret that statute by analyzing its text and context. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). We begin with the text, giving words of common usage their plain, natural, and ordinary meaning. Id.

ORS 307.400 does not define the wording "directly related," but those terms are ones of common usage. The plain, natural, and ordinary meaning of "directly" is "without any intervening space or time." Webster's Third New Int'l Dictionary, 641 (unabridged ed 1993). The plain, natural, and ordinary meaning of "related" is "connected by reason of an established or discoverable relation." Id. at 1916. Based on the plain meanings of the words "directly" and "related," we infer generally that equipment that is "directly related" to the production of fresh shell eggs is equipment that reasonably is connected to the production of fresh shell eggs without any intervening space or time. From text alone, we cannot say with certainty which of the parties' competing readings captures legislative intent.

The context of the statute, however, eliminates doubt. Other subsections of ORS 307.400, which provide tax exemptions for different kinds of farm machinery and equipment, do not contain the phrase "directly related." See, e.g., ORS 307.400(3)(b) (exempting farm machinery and equipment "used primarily for the purpose of feeding, breeding, management and sale of, or the produce of, livestock, poultry, fur-bearing animals or bees or for dairying and the sale of dairy products"). Thus, the legislature's insertion of the phrase "directly related" into ORS 307.400(5)(e), when it clearly could have chosen to omit the phrase, leads us to conclude that the legislature intended to limit the scope of the exemption.

Taxpayer argues that the equipment listed as exempt in ORS 307.400(5)(e) is automatically exempt, as long as the equipment is "used for the fresh shell egg industry." Accordingly, taxpayer argues, its brooder house equipment, some of which is listed in the statute, must be exempt. Taxpayer's argument renders meaningless the qualifying phrase "directly related." Only equipment (1) used for the fresh shell egg industry that is (2) directly related and (3) reasonably necessary to produce eggs is exempt. The types of equipment listed in ORS 307.400(5)(3) are merely examples of equipment that is exempt, as long as the equipment meets the other statutory tests.

We summarize our interpretation of ORS 307.400(5)(e) as it relates to the facts of this case in this way: The process of raising chickens that might, in time, lay eggs is not the same as the process of maintaining chickens that are laying eggs. That is, the maturation process, and the equipment used to facilitate that process, is not the same as the production of eggs. Consequently, we agree with the Tax Court that the equipment in question is subject to taxation. We hold that taxpayer's brooder house equipment is not exempt under ORS 307.400(5)(e).

The judgment of the Tax Court is affirmed.

1. All statutory citations in this opinion are to the statutes in effect before the effective date of the 1995 amendments.

Return to previous location.

2. The department has not challenged the Tax Court's ruling that the brooder house equipment is "reasonably necessary" under ORS 307.400(5)(e). Thus, the only issue before this court is the statutory interpretation of "directly related."

Return to previous location.

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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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