S46044 Dale v. Myers

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 05/14/1999

Filed: May 14, 1999

IN THE SUPREME COURT OF THE STATE OF OREGON

ALICE DALE, JAMES SAGER,

and JOHN CHASE,

Petitioners,

HARDY MYERS, Attorney General,

State of Oregon,

Respondent,

and

BILL SIZEMORE,

Intervenor.

(SC S46044)

En Banc

On petition to review ballot title.

Argued and submitted March 16, 1999.

Steven Novick, Portland, argued the cause and filed the supplemental memorandum for petitioners. B. Carlton Grew, of the Oregon Public Employees Union, Salem, and Paul B. Gamson, of Smith, Gamson, Diamond & Olney, Portland, filed the petition.

John T. Bagg, Assistant Attorney General, Salem, argued the cause for respondent. With him on the answering and supplemental memoranda were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Gregory W. Byrne, of Byrne & Associates, P.C., Portland, argued the cause and filed the supplemental memorandum for intervenor.

RIGGS, J.

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

Leeson, J., concurred in part, dissented in part, and filed an opinion in which Carson, C.J., and Gillette, J., joined.

DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS

Prevailing party: Petitioners

[X] No costs allowed.

[ ] Costs allowed, payable by:

[ ] Costs allowed, to abide the outcome on remand, payable by:

RIGGS, J.

Petitioners challenge the Attorney General's certified ballot title for a proposed initiative measure. Petitioners are electors who timely submitted written comments addressing the Attorney General's draft ballot title. Accordingly, petitioners are entitled to seek modification of the certified ballot title in this court. ORS 250.085(2). We modify the Attorney General's ballot title and certify it as modified.

The proposed initiative measure would add the following text to Article XV of the Oregon Constitution:

"Section 10(1) No public funds shall be spent to collect or assist in the collection of political funds.

"(2) For purposes of this section, money shall be deemed to be 'political funds' if any portion of the money, including in-kind and pass-through contributions, is contributed to a candidate or political committee or party, or spent lobbying an elected official, or is spent, including independent expenditures, supporting or opposing a candidate for public office or a ballot measure, including efforts to collect signatures to place a measure on the ballot, and any efforts, including but not limited to direct mail and media campaigns, to solicit signatures for initiative petitions or to discourage electors from signing initiative petitions.

"(3) For purposes of this section, public funds shall include public employee time on the job, public buildings, and public equipment and supplies; but shall not include the fee charged by the Secretary of State or a county elections division for placing a paid statement in an official Voters Pamphlet.

"(4) Public entities are prohibited from providing a service prohibited by this section even if reimbursed for the cost of doing so.

"(5) No public entity shall collect or assist in the collection of funds for any purpose for a person or organization, if, after the effective date of this Amendment, the person or organization has: (i) used for political purposes any of the funds collected for it by a public entity after the effective date of this Amendment, or (ii) commingled non-political funds collected by a public entity after the effective date of this Amendment with political funds.

"(6) The state legislative assembly shall establish a financial penalty for persons and organizations which use for a political purpose money collected for them by a public entity. The penalty shall be not less than double the amount of money contributed to or spent for a political purpose.

"(7) If any phrase, clause, or part of this section is found to be unconstitutional by a court of competent jurisdiction, the remaining phrases, clauses, and parts shall remain in full force and effect."

The Attorney General certified the following ballot title for the measure:

"AMENDS CONSTITUTION: PROHIBITS USING PUBLIC RESOURCES FOR POLITICAL PURPOSES

"RESULT OF 'YES' VOTE: 'Yes' vote prohibits using public resources to collect or help collect political funds

"RESULT OF 'NO' VOTE: 'No' vote rejects prohibition on using public resources to collect or help collect political funds

"SUMMARY: Amends Constitution. Prohibits using 'public funds' to collect, assist collecting 'political funds.' 'Public funds' defined to include public buildings, employee time, equipment and supplies; excludes voter pamphlet statement fees. 'Political funds' defined to include expenditures for lobbying, supporting or opposing candidate, ballot measure or initiative petition. Prohibition applies even if public entity reimbursed for using public funds. Would prohibit public employee payroll deduction for union or any other entity using deduction for political purposes or commingling political, non-political funds. Requires monetary penalty for violation."

Petitioners challenge the caption and the "yes" vote and "no" vote result statements of the Attorney General's certified ballot title. Under ORS 250.085(5), we review for substantial compliance with the requirements for ballot titles set out in ORS 250.035.

CAPTION

ORS 250.035(2)(a) requires a ballot title caption "of not more than 10 words that reasonably identifies the subject matter of the state measure." Petitioners submitted comments challenging the Attorney General's draft caption and argue here that the certified caption does not comply with the statutory standard. They suggest alternate wording that, they assert, identifies the actual "subject matter" of the proposed measure.

Our task is to determine whether the Attorney General's certified caption satisfies the statutory standard.(1) If it does, our analysis is at an end; "[w]e are not empowered to change a proposed ballot title solely because we are of the opinion that we can write a 'better' title." Deras v. Roberts, 309 Or 410, 414, 788 P2d 987 (1990).

We conclude that the Attorney General's certified caption fails to comply substantially with the statutory requirement "reasonably [to] identif[y] the subject matter" of the measure. ORS 250.035(2)(a). As petitioners argue, the caption sweeps too broadly, giving the incorrect impression that the subject matter of the proposed initiative measure is the use of any public resource for any political purpose. In fact, the primary subject of the measure is the use of public resources for the collection of political contributions from public employees, particularly through payroll deductions. The Attorney General's certified caption is not sufficiently specific to inform the reader of the measure's principal subject and, thus, is inadequate to satisfy the statutory standard. To address that shortcoming, we modify the caption to read: "AMENDS CONSTITUTION: PROHIBITS USING PUBLIC RESOURCES FOR POLITICAL PURPOSES; LIMITS PAYROLL DEDUCTIONS."

Petitioners also argue that the caption is defective in other respects. We have considered those arguments and conclude that they are answered by this court's decision in Peppers v. Myers, 325 Or 611, 942 P2d 273 (1997). We decline petitioners' invitation to reexamine Peppers.

RESULT STATEMENTS ORS 250.035(2)(b) and (c) require a "simple and understandable statement of not more than 15 words that describes the result if the state measure is approved" and a "simple and understandable statement of not more than 15 words that describes the result if the state measure is rejected."

Petitioners argue that the Attorney General's certified result statements are inadequate, because they "merely parrot" the ballot title caption. That is improper, petitioners assert, because ORS 250.035(2)(b) and (c) require statements of "results." Had the legislature intended the Attorney General to use similar wording in ballot title captions and result statements, petitioners reason, those statutes would not have different requirements. Petitioners suggest that their argument is bolstered by the fact that result statements may be five words longer than captions. See ORS 250.035(a)-(c).

Petitioners may be correct that simply "parroting" the ballot title caption will not satisfy the requirements of ORS 250.035(2)(b) and (c) in certain cases. Nevertheless, we do not agree that a result statement necessarily is defective merely because it is worded similarly to the ballot title caption. Here, the result statements adequately describe the results of those votes by informing voters that a "yes" vote on the measure would prohibit the use of public resources to collect or help collect political funds, and a "no" vote would reject such a prohibition. Thus, regardless of their similarity to the caption, those statements satisfy the statutory standard.

Petitioners also argue that the "no" statement is inadequate, because it does not explain that existing restrictions on the use of public resources for political purposes would remain in effect, even if the proposed measure failed. They argue that the "no" statement should be modified to reflect those existing restrictions.

"Yes" and "no" statements "shall be written so that, to the extent practical, the language of the two statements is parallel." ORS 250.035(3). Here, the statements are parallel. However, "the statutory preference for parallelism is secondary to the statutory direction that the Result Statements actually describe for the voters what the 'result' of their vote will be." Carson v. Myers, 326 Or 248, 257, 951 P2d 700 (1998).

The Attorney General's certified result statements actually describe the results of "yes" and "no" votes on the proposed measure and, thus, substantially comply with the requirements of ORS 250.035(b) and (c). The "yes" statement explains that approval of the proposed measure would prohibit the use of public resources for certain political purposes; the "no" statement explains that rejection of the measure means rejecting that prohibition. Here, given the constraints of ORS 250.035(b) and (c), that explanation is sufficient. The phrase "rejects prohibition" in the "no" statement logically refers to the prohibition contained in the measure and described in the "yes" statement. Contrary to petitioners' assertions, the "no" statement does not suggest that rejection of the measure rejects all limitations on the use of public resources for political purposes. Rather, it makes clear that a "no" vote rejects this limitation.

We hold that the certified result statements substantially comply with ORS 250.035(2)(b) and (c).

We modify the Attorney General's ballot title and certify the following ballot title to the Secretary of State:

AMENDS CONSTITUTION: PROHIBITS USING PUBLIC RESOURCES FOR POLITICAL PURPOSES; LIMITS PAYROLL DEDUCTIONS

RESULT OF "YES" VOTE: "Yes" vote prohibits using public resources to collect or help collect political funds

RESULT OF "NO" VOTE: "No" vote rejects prohibition on using public resources to collect or help collect political funds

SUMMARY: Amends Constitution. Prohibits using "public funds" to collect, assist collecting "political funds." "Public funds" defined to include public buildings, employee time, equipment and supplies; excludes voter pamphlet statement fees. "Political funds" defined to include expenditures for lobbying, supporting or opposing candidate, ballot measure or initiative petition. Prohibition applies even if public entity reimbursed for using public funds. Would prohibit public employee payroll deduction for union or any other entity using deduction for political purposes or commingling political, non-political funds. Requires monetary penalty for violation.

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

LEESON, J., concurring in part and dissenting in part.

I agree with the majority's holding that the result statements substantially comply with ORS 250.035(2)(b) and (c). However, I disagree with the majority's holding that the caption that the Attorney General certified must be modified in the way that the majority does.

The majority asserts that the caption fails to comply substantially with ORS 250.035(2)(a) because it does not identify reasonably the subject matter of the proposed initiative measure. According to the majority, the "primary subject" of the measure is "the use of public resources for the collection of political contributions from public employees, particularly through payroll deductions." __ Or __ (slip op at 4.) Although that may be one result of the measure, the conclusion that limiting the use of the payroll deduction is the subject matter of the proposed measure does not follow from the text of the measure. The measure makes no reference to payroll deductions. Its prohibition is much broader: "No public funds shall be spent to collect or assist in the collection of political funds."

The majority fails to explain the basis for its conclusion that, notwithstanding the wording of the proposed measure, its subject matter is eliminating the use of political contributions through payroll deductions. Lacking the majority's unarticulated insight, I am unpersuaded. I believe that the following caption would comply substantially with the requirements of ORS 250.035(2)(a): "PROHIBITS USING PUBLIC RESOURCES TO COLLECT POLITICAL FUNDS."(2)

Carson, C.J., and Gillette, J., joins in this opinion.

1. At oral argument, the Attorney General conceded that the caption failed to comply substantially with the requirements of ORS 250.035(2)(a) for a different reason than those petitioners assert. The Attorney General argued that the caption would comply with the statutory standard if it was modified to read: "AMENDS CONSTITUTION: PROHIBITS USING PUBLIC RESOURCES TO COLLECT MONEY FOR POLITICAL PURPOSES." (Emphasis added.) As discussed below, we conclude that the certified caption must be modified to satisfy the statutory requirements, although not in the manner the Attorney General suggests.

Return to previous location.

2. The Attorney General conceded at oral argument that the caption he certified does not comply substantially with the requirements of ORS 250.035(2)(a). I agree and would accept that concession. My proposed caption simply would not import into the caption, as the majority's does, a concept that is not mentioned in the proposed measure itself.

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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