S46458 State v. Sutherland

SUPREME COURT CASES

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State: Oregon

Docket No: CC983427CR

Case Date: 10/07/1999

Filed: October 7, 1999

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Relator,

MYRON ROBERT SUTHERLAND, JR.,

Defendant-Adverse Party.

(CC 983427CR; SC S46458)

En Banc

Original proceeding in mandamus.*

Argued and submitted September 8, 1999.

Kaye E. McDonald, Assistant Attorney General, Salem, argued the cause for plaintiff-relator. With her on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Peter J. Richard, of Aspell, Della-Rose & Richard, Klamath Falls, argued the cause and filed the brief for defendant-adverse party.

Emily Simon, Portland, argued the cause and filed the brief for amici curiae Oregon Criminal Defense Lawyers Association and State Public Defender. With her on the brief was David Groom, State Public Defender.

GILLETTE, J.

Peremptory writ to issue. Pursuant to ORAP 1.20(4), 11.17, and 14.05(2)(c), and notwithstanding ORAP 9.25, a combined peremptory writ and appellate judgment shall issue on October 11, 1999, unless a petition for reconsideration is both filed and physically received by the Office of the State Court Administrator by October 8, 1999. Any timely petition for reconsideration will stay issuance of the peremptory writ and appellate judgment until the court acts on such petition.

*On petition for a writ of mandamus from an order of the Klamath County Circuit Court.

GILLETTE, J.

This is an original mandamus proceeding brought under ORS 34.250 and Article VII (Amended), section 2, of the Oregon Constitution. Petitioner, the State of Oregon (the state), asks this court to overturn an order of the circuit court entered before trial in the underlying criminal case, which presently is set for trial beginning on October 13, 1999, in the Klamath County Circuit Court. Defendant is charged with assault in the second degree, ORS 163.175. In its order, the trial court released defendant on conditions not relevant here, after refusing to impose a pretrial security release amount of not less than $50,000 under ORS 135.240(5), set out post.

The state sought an alternative writ of mandamus from this court directing the trial court to enter an order requiring that defendant be taken into custody pending his posting a security release deposit in an amount not less than $50,000 or to show cause why it had not done so. This court issued an alternative writ. The trial court declined to issue the order contemplated by the writ, the matter was briefed and argued, and the case now is before this court for decision. For the reasons that follow, a peremptory writ shall issue.

The right to pretrial release of persons who, like defendant, are accused of "Measure 11" offenses(1) is addressed in two subsections of ORS 135.240.(2) Subsection (4) of that statute provides, in part:

"(4) Except as otherwise provided in subsection (5) of this section, when the defendant is charged with a crime listed in ORS 137.700 * * *:

"(a) Release shall be denied unless the court determines by clear and convincing evidence that the defendant will not commit new criminal offenses while on release.

"(b) If the defendant wants to have a hearing on the issue of release, the defendant must request the hearing at the time of arraignment in circuit court. If the defendant requests a release hearing, the court must hold the hearing within five days of the request.

"(c) At the release hearing, unless the state stipulates to the setting of security or release, the court shall determine whether probable cause exists to believe the defendant has committed an offense listed in ORS 137.700 * * * and, if so, whether the defendant would commit new crimes while on release. The state has the burden of producing evidence at the release hearing subject to ORS 40.015(4) [relating to proceedings not subject to the Oregon Evidence Code].

"(d) The defendant may be represented by counsel and may present evidence on any relevant issue

* * *.

"(e) If the court determines that the defendant will not commit new crimes while on release, the court shall set security or other appropriate conditions of release. If the court does not determine that the defendant will not commit new crimes while on release, the court shall deny release."

Subsection (5) of ORS 135.240 provides, in part:

"If the United States Constitution or the Oregon Constitution prohibits application of subsection (4) of this section, then notwithstanding any other provision of law, the court shall set a security amount of not less than $50,000 for a defendant charged with an offense listed in ORS 137.700 * * * and may not release the defendant on any form of release other than a security release. In addition to the security amount, the court may impose any supervisory conditions deemed necessary for the protection of the victim and the community."

Thus, ORS 135.240(4) requires a trial court to deny release to a defendant accused of committing a Measure 11 offense, unless the court determines by clear and convincing evidence that the defendant will not commit any new crime while on release. ORS 135.240(5) then sets out an alternative scheme to be applied if ORS 135.240(4) is found to be unconstitutional. Defendant, the trial court, and the state all agree that subsection (4) of ORS 135.240 is unconstitutional. As explained below, we conclude that that agreement is well founded.

Article I, section 14, of the Oregon Constitution, provides:

"Offences (sic), except murder, and treason, shall be bailable by sufficient sureties. Murder or treason, shall not be bailable, when the proof is evident, or the presumption strong."

The question is whether ORS 135.240(4) is valid in light of that constitutional provision. To answer that question, we examine the text, case law, and history surrounding Article I, section 14. See Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992) (setting out that methodology).

We observe, at the outset, that, by using the mandatory "shall," the text of Article I, section 14, requires courts to set bail for defendants accused of crimes other than murder or treason. As this court has explained, under that provision, "with certain exceptions the defendant in a criminal case * * * is entitled to be admitted to bail." Hanson v. Gladden, 246 Or 494, 495, 426 P2d 465 (1967); see also Priest, 314 Or at 417 (implying that Article I, section 14, grants most defendants accused of crimes a constitutional right to bail). The exceptions to that requirement are those set out in Article I, section 14, viz., murder or treason. Hanson, 246 Or at 495-96.

ORS 135.240(4), by contrast, requires a court to deny release and, it follows, to deny bail, if the court concludes that the defendant might commit crimes while on release. See generally Armatta v. Kitzhaber, 327 Or 250, 279-80, 959 P2d 49 (1998) (stating that a voter-approved constitutional amendment setting out the same requirements for release contained in ORS 135.240(4) would change the standard for bail set out in Article I, section 14). Nothing of which we are aware permits a conclusion different from the one mandated by the text of Article I, section 14, and this court's interpretations of that text. See Priest, 314 Or at 418 (noting the lack of history surrounding the Oregon framers' intent with regard to Article I, section 14). Accordingly, we conclude that ORS 135.240(4) is unconstitutional under Article I, section 14, of the Oregon Constitution. We turn to the issue that the parties have joined here, viz., the constitutionality of ORS 135.240(5).

At the pretrial hearing in this case, defendant asserted that ORS 135.240(5) is unconstitutional on various grounds. After a brief colloquy, the trial court adhered to its ruling in previous cases that the statute is facially unconstitutional under Article I, section 16, of the Oregon Constitution,(3) as well as under various provisions of the United States Constitution.(4) As noted, the court then ordered defendant's release under conditions not at issue here.

For a statute to be facially unconstitutional, it must be unconstitutional in all circumstances, i.e., there can be no reasonably likely circumstances in which application of the statute would pass constitutional muster. See, e.g., State v. Chakerian, 325 Or 370, 381, 938 P2d 756 (1997) (for a statute to be deemed to be impermissibly vague, it must be shown to be "vague in all of its possible applications" (quoting State v. Robertson, 293 Or 402, 411 n 8, 649 P2d 569 (1982)); United States v. Salerno, 481 US 739, 745, 107 S Ct 2095, 2100, 95 L Ed 2d 697 (1987) (so holding under the United States Constitution in connection with an examination of the constitutionality of the federal Bail Reform Act). Defendant and amici do not argue that the $50,000 amount itself makes the statute facially unconstitutional. Both acknowledge (and we agree) that there will be circumstances in which imposing a security release requirement in that amount would be reasonable.

Defendant and amici do advance three other arguments as to why ORS 135.240(5) is unconstitutional, however. First, they argue that the effect of the statute is to set bail for all Measure 11 defendants without a hearing, contrary to due process. Second, they argue that the statute sets a mandatory minimum security amount of $50,000 for all Measure 11 defendants, which violates due process and deprives defendants of the presumption of innocence. Third, they argue that a $50,000 security amount is excessive for indigent defendants and arbitrarily divides Measure 11 defendants into two classes, those who can pay the security amount and those who cannot.

The premise underlying defendant's and amici's arguments is that, under ORS 135.240(5), a Measure 11 defendant is not entitled to a hearing or individualized consideration of his or her circumstances before the trial court imposes and enforces the minimum $50,000 security release requirement. That premise itself raises at least two questions of statutory construction. The first is whether a right to a hearing exists under the statute. The second is whether, absent a provision granting such a right in the statute, the right nonetheless exists because of a separate source of law, either statutory or constitutional. We begin by examining the text and context of ORS 135.240(5). See PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993) (setting out methodology for interpreting statutes).

As to the question whether there is a right to a hearing under ORS 135.240(5), defendant and amici correctly note that the statute does not expressly provide for a hearing. That much is clear. It is equally clear, however, that the statute does not expressly deny a Measure 11 defendant the right to a hearing to challenge the constitutionality of the statute on an as-applied basis, if the defendant requests such a hearing. From text (and context) it is clear that the statute does not grant defendant a hearing.

We turn to the question whether some other source of law aids defendant. We know of no statute that would do so. However, the state acknowledged at oral argument that, if ORS 135.240(5) withstands a facial challenge based on the amount of security specified in the subsection (and we agree with all the parties that it does), then Measure 11 defendants still may challenge the imposition of the statutory amount on an as-applied basis. The ability to do so, the state asserted, presupposes a right to a hearing at which the trial court may consider the individual circumstances of a particular defendant.

In making that concession, the state did not identify any particular source of law for its view, but we think that the source of law is (as the trial court held) Article I, section 16, of the Oregon Constitution. The injunction that "excessive bail shall not be required" necessarily presupposes a factual inquiry into the issue of "excessiveness." Only a hearing could provide that factual inquiry. We hold that any defendant who wishes to make an "as applied" challenge to the propriety of imposing the specified security release amount of $50,000 or higher under ORS 135.240(5) has a constitutional right to a hearing to address that question. See Delaney v. Shobe, 218 Or 626, 628, 346 P2d 126 (1959) (holding, under "excessive bail" provision of Article I, section 16, of Oregon Constitution, criminal defendant bears burden of establishing at hearing that amount of bail imposed is excessive).

It follows from the foregoing that, as the state suggested at oral argument, there is a source of law outside ORS 135.240(5) that entitles a Measure 11 defendant to a hearing or individualized consideration on the amount, if any, that must be posted as security. Because that source of law is a constitutional one, ORS 135.240(5) is subordinate. Therefore, the $50,000 specified by that statute as the minimum amount that "shall" be imposed must be read as the minimum amount that is to be imposed initially, on arrest. Thereafter, defendant may request a hearing for the purposes of establishing that, as to him or her, requiring that or a higher amount as security is constitutionally impermissible. If defendant requests such a hearing, he or she must be given the opportunity to demonstrate that, as to that defendant, the statutory amount is "excessive" and, if that demonstration is made, to have the court set some lesser amount that is not excessive. See Delaney, 218 Or at 628 (illustrating process).

The foregoing discussion disposes of defendant's and amici's arguments that ORS 135.240(5) allows no hearing with respect to security release and that the statute imposes a mandatory minimum security release amount in all cases. Defendant and amici's final argument, that the statutory amount divides defendants into two classes based on wealth, is not well taken. Any amount set for security release classifies defendants in that manner. Thus, unless the whole concept of bail is constitutionally impermissible -- and defendant and amici do not argue that it is -- that argument does not assist them.

We hold that ORS 135.240(4) violates Article I, section 14, of the Oregon Constitution. We also hold that ORS 135.240(5) is not facially unconstitutional under either the Oregon or United States Constitutions, because circumstances exist in which applying that statute would not violate either constitution. The trial court's ruling to the contrary was error. However, we hold that Measure 11 defendants may challenge the constitutionality of the minimum security release amount of $50,000 in ORS 135.240(5) on an as-applied basis and may request a hearing before the trial court for the purpose of challenging the propriety of imposing that or a higher amount.

1. Assault in the second degree, ORS 163.175, is one of a group of offenses that are listed in ORS 137.700(2)(a) and that often are referred to as "Measure 11" offenses after a ballot measure adopted by the people as a constitutional amendment that contained the same list. See ORS 137.700(2)(a)(G) (listing second degree assault). Thus, assault in the second degree is an offense to which ORS 135.240 is applicable. Pretrial release of persons accused of offenses other than Measure 11 offenses is governed by ORS 135.245.

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2. The legislature enacted the statutory provisions at issue as part of more comprehensive legislation, Senate Bill 936, dealing with the Oregon criminal justice system. 1997 Or Laws, ch 313. The parties have not asked us to address the constitutionality of that enactment as a whole, a question that the Court of Appeals addressed in State v. Fugate, 154 Or App 643, 963 P2d 686, on recons 156 Or App 609, 969 P2d 395 (1998), rev allowed 328 Or 275, 928 P2d 1173 (1999). We limit our analysis accordingly.

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3. Article I, section 16, of the Oregon Constitution, provides that "[e]xcessive bail shall not be required."

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4. We read the trial court transcript as establishing that the trial court's ruling was that the statute is facially unconstitutional.

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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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