S46609 State v. Moore

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 07/11/2002

Filed: July 11, 2002

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

ROBERT MOORE, III,

Respondent on Review.

(CC 9612-49561; CA A96947; SC S46609)

On review from the Court of Appeals.*

Argued and submitted November 3, 2000.

Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Robin A. Jones, Deputy Public Defender, Salem, argued the cause for respondent on review. With her on the briefs was David E. Groom, State Public Defender.

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

DURHAM, J.

The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

*Appeal from Multnomah County Circuit Court, Clifford L. Freeman, Judge. 159 Or App 144, 978 P2d 395 (1999).

**Van Hoomissen, J., retired on December 31, 2000, and did not participate in the decision of this case; Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case; De Muniz and Balmer, JJ., did not participate in the consideration or decision of this case.

DURHAM, J.

A Multnomah County jury convicted defendant of assault in the fourth degree, ORS 163.160, (1) and three counts of recklessly endangering another person, ORS 163.195. (2) Defendant appealed, arguing that the trial court's decision to admit hearsay statements made by a witness who did not testify at trial violated defendant's right to "meet the witnesses face to face" under Article I, section 11, of the Oregon Constitution, (3) and his right "to be confronted with the witnesses against him" under the Sixth Amendment to the United States Constitution. (4) Reviewing the case en banc the Court of Appeals reversed, holding that, under this court's case law, the hearsay evidence was inadmissible because the state had failed to produce the declarant or demonstrate that she was unavailable to testify. State v. Moore, 159 Or App 144, 150-51, 978 P2d 395 (1999).

The state petitioned for review. The state concedes that the Court of Appeals correctly applied this court's existing case law under Article I, section 11, but asks this court to reexamine and discard the "unavailability" requirement in that precedent in light of recent United States Supreme Court decisions and other policy arguments. Because the state has not demonstrated that this court's previous decisions incorrectly interpret Oregon constitutional law, we decline to abandon the unavailability rule described in those decisions. Accordingly, we affirm the decision of the Court of Appeals.

The record discloses the following facts. On Christmas Day 1996, defendant, his fiancé, Olea, their daughter, and defendant's daughter from a previous marriage traveled from Tualatin to Gresham to visit defendant's ex-wife. Olea drove the car, and defendant, who had been drinking, rode in the back seat with the children. Defendant and Olea were arguing.

What happened next is the factual issue in the case. Olea did not testify at trial. The only direct testimony from an eyewitness was defendant's testimony. According to defendant, Olea pulled into a convenience store parking lot, and defendant tried to grab the car keys. Defendant testified that he accidentally hit Olea in the face with his elbow. Olea then jumped out of the moving vehicle. Defendant tried to climb into the front seat to stop the vehicle, and the vehicle came to rest in a landscaped island in the parking lot. A man pulled defendant from the vehicle, and two men held defendant to the ground until the police arrived.

The state alleged that defendant had assaulted Olea while she was driving, thus endangering the passengers in the car. Three witnesses testified in court for the prosecution. As noted, Olea was not one of them. Deborah Narro stated that Olea ran into the store, crying, shaking, and shouting, "He's taking my kids, and he's been drinking." Olea had a red mark on her face, Ms. Narro testified. Jose Narro described the same incident and observations. Mr. Narro testified that he approached defendant as defendant stepped out of the car. According to Mr. Narro, defendant tried to hit him, and Mr. Narro and another man pinned defendant to the ground until Officer Hucke of the Gresham Police Department arrived.

Officer Hucke testified that, when he arrived at the scene, defendant was intoxicated. Hucke placed defendant in his patrol car and interviewed Olea inside the store. He noted that Olea was "extremely distraught" and that there was a red mark on her face near her eye. Hucke also testified that Olea told him that she had been driving when she was struck with a Christmas package and that, at some point, she also had been punched.

At the pretrial hearing on his motion in limine, and again at trial, defendant objected to admission of Olea's hearsay statements, arguing that (1) at least some of the statements did not qualify for admission under OEC 803(2) (5) (the excited utterance exception to the hearsay rule); and (2) admission of the hearsay evidence would violate defendant's right to confrontation under the state and federal constitutions because the state had not produced the witness or demonstrated that she was unavailable to testify. The state conceded that it had not attempted to establish that Olea was unavailable, but argued that it did not need to make that showing. The trial court agreed with the state and admitted the statements under OEC 803(2).

Defendant appealed, raising the same arguments. Because the constitutional issue disposed of all the disputed hearsay statements, the Court of Appeals began with that issue. State v. Moore, 159 Or App at 147-48. The majority concluded that this court's case law -- specifically State v. Campbell, 299 Or 633, 705 P2d 694 (1985), and State v. Kitzman, 323 Or 589, 920 P2d 134 (1996) -- required the state to demonstrate the witness's unavailability. Id. at 150. Because the state had failed to show that Olea was not available to testify at trial, the Court of Appeals held that the trial court had erred in admitting the hearsay statements. Id. at 150-51. Two judges dissented, arguing that the Court of Appeals was not bound by Campbell and its progeny because Campbell was based on an incorrect interpretation of federal law. Id. at 151. We allowed the state's petition for review to address the unavailability requirement discussed in Campbell.

Campbell concerned the admissibility of hearsay statements reported by the mother of a three-year-old declarant who was the alleged victim of sexual abuse. 299 Or at 635. The trial court allowed the mother to repeat statements that her daughter had made regarding the alleged abuse and admitted the statements under OEC 803(24), the residual hearsay exception. The child did not testify, and the state did not demonstrate that the child was unavailable to testify. Although this court held that some of the statements were admissible under OEC 803(18a), the exception for complaints of sexual misconduct, the court reversed, stating:

"[B]efore any out-of-court declaration of any available living witness may be offered against a defendant in a criminal trial, the witness must be produced and declared incompetent by the court to satisfy either Article I, section 11, of the Oregon Constitution, or the Sixth Amendment to the United States Constitution."

Id. at 652 (footnote omitted).

The court reached that result under Article I, section 11, on "independent and separate state grounds." Id. at 648. However, the court applied the two-part test that the United States Supreme Court had enunciated in Ohio v. Roberts, 448 US 56, 100 S Ct 2531, 65 L Ed 2d 597 (1980). 299 Or at 648. In Ohio v. Roberts, the Supreme Court stated:

"The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformity with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case * * *, the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. * * *

"The second aspect operates once a witness is shown to be unavailable. * * * [T]he Clause countenances only hearsay marked with such trustworthiness that 'there is no material departure from the reason of the general rule.' * * *

"The Court has applied this 'indicia of reliability' requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the 'substance of the constitutional protection.' * * *

"In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate 'indicia of reliability.' Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness."

Id. at 65-66 (citations and footnotes omitted). In Campbell, this court "adopt[ed] the reasoning of the Supreme Court of the United States in determining what constitutes unavailability of a hearsay declarant and what constitutes adequate indicia of reliability of hearsay declarations to satisfy our state constitutional confrontation clause." 299 Or at 648. (6) Applying that two-part test in Campbell, the court concluded that the state had violated the defendant's right to meet the witness face to face because the state had not demonstrated that the declarant was unavailable or incompetent to testify. Id. at 651-52.

Since Campbell, this court has continued to apply that two-part test when a defendant alleges that the admission of hearsay violates his or her right to meet a witness face to face under Article I, section 11. See State v. Kitzman, 323 Or at 602-05 (exception for complaints of sexual misconduct; holding that defendant had right to confront witnesses at pretrial availability hearing); State v. Wilson, 323 Or 498, 514, 918 P2d 826 (1996) (penal interest exception; declarant unavailable because declarant asserted constitutional right not to testify against himself); State v. Nielsen, 316 Or 611, 622-24, 853 P2d 256 (1993) (penal interest exception; finding declarant unavailable because state had demonstrated good-faith but unsuccessful effort to obtain declarant's testimony); State v. Barkley, 315 Or 420, 429-31, 846 P2d 390 (1993) (exception for statements made for purposes of medical diagnosis or treatment; "'unavailability' prong" of test was not barrier to admission of evidence, because declarant had testified at trial, under oath, subject to cross-examination); State v. Cornell, 314 Or 673, 682, 842 P2d 394 (1992) (exception for coconspirator statements; coconspirator was unavailable because he had asserted his right not to testify against himself); State v. Stevens, 311 Or 119, 138-42, 806 P2d 92 (1991) (exceptions for complaints of sexual misconduct and statements made for purposes of medical diagnosis or treatment; record supported court's finding that declarants were incompetent to testify and that state had made good faith effort to obtain declarants' testimony); State v. Moen, 309 Or 45, 62, 786 P2d 111 (1990) (exceptions for statements made for purposes of medical treatment and excited utterance; declarant was unavailable because she was murder victim). The evidentiary rules that applied in Barkley, Cornell, Stevens (medical treatment exception), and Moen did not require the declarant to be unavailable to render the hearsay admissible. This court, however, still required the state to demonstrate unavailability, consistent with the two-part test described in Campbell.

After Roberts, the United States Supreme Court modified its Confrontation Clause analysis. In United States v. Inadi, 475 US 387, 106 S Ct 1121, 89 L Ed 2d 390 (1986), the Court held that the Sixth Amendment did not require the government to show that a nontestifying coconspirator was unavailable before the court could admit the coconspirator's out-of-court statements. The Court stated that Roberts had not established a general Confrontation Clause test and limited the unavailability rule described in Roberts to the hearsay exception applicable in that case -- the exception for admission of prior testimony. Id. at 392-94.

Six years later, in White v. Illinois, 502 US 346, 112 S Ct 736, 116 L Ed 2d 848 (1992), the United States Supreme Court held that the prosecution need not produce or demonstrate the unavailability of a declarant whose statements are admissible under the spontaneous declaration and medical examination exceptions to the hearsay rule. The Court explained that:

"[In Roberts], we used language that might suggest that the Confrontation Clause generally requires that a declarant either be produced at trial or be found unavailable before his out-of-court statement may be admitted into evidence. However, we think such an expansive reading of the Clause is negated by our subsequent decision in Inadi * * *."

Id. at 353. "[W]here proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule," the Court concluded, "the Confrontation Clause is satisfied." Id. at 356.

This court has noted the United States Supreme Court's departure from Roberts, but has continued to apply the two-part test from Roberts to its analysis of confrontation issues under Article I, section 11. See e.g., Barkley, 315 Or at 429-31 (examining availability of declarant in course of Article I, section 11, analysis, but noting that, under White, Sixth Amendment does not require unavailability); Cornell, 314 Or at 682, 682 n 15 (noting that, under Sixth Amendment, state need not demonstrate unavailability before introducing coconspirator statements, but examining unavailability under Article I, section 11).

This court ordinarily determines whether it can resolve a case on a subconstitutional basis before undertaking any constitutional analysis. See Leo v. Keisling, 327 Or 556, 560, 964 P2d 1023 (1998) (stating that court considers subconstitutional bases for decision before addressing constitutional issues). In this case, however, defendant concedes that some of the hearsay testimony would be admissible under OEC 803(2), if not for the confrontation problem. We agree and, therefore, proceed to consider the state constitutional issue. See State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983) (stating that court analyzes state constitutional claims before considering federal constitutional claims). (7)

In Campbell, this court held that Article I, section 11, requires the state to produce available witnesses before the state may use the witnesses' out-of-court statements in a criminal proceeding. This court adopted the United States Supreme Court's reasoning regarding the purposes and values protected by the confrontation right, as reflected in the United States Supreme Court's Confrontation Clause case law up to that point. "[O]n independent and separate state grounds," this court implicitly concluded that Article I, section 11, reflected those same purposes and values. Campbell, 299 Or at 648. Consequently, this court applied the same two-part test including the unavailability requirement that the United States Supreme Court applied in Roberts.

The state acknowledges that this court's interpretation of Article I, section 11, does not change simply because the United States Supreme Court has modified its interpretation of a corresponding provision of the federal constitution. See State v. Caraher, 293 Or 741, 749, 653 P2d 942 (1982) ("When this court gives Oregon law an interpretation corresponding to a federal opinion, our decision remains the Oregon law even when federal doctrine later changes."). Instead, the state argues that the court should align the Oregon rule with the federal rule because there are no reasons unique to Oregon for departing from the federal interpretation, and the federal rule, in the state's view, is preferable from a policy standpoint because it focuses on the reliability of trial evidence.

This court has stated that it remains "willing to reconsider a previous ruling under the Oregon Constitution whenever a party presents to us a principled argument suggesting that, in an earlier decision, this court wrongly considered or wrongly decided the issue in question." Stranahan v. Fred Meyer, Inc., 331 Or 38, 54, 11 P3d 228 (2000). More specifically, the court will entertain arguments "that either present new information as to the meaning of the constitutional provision at issue or that demonstrate some failure on the part of this court at the time of the earlier decision to follow its usual paradigm for considering and construing the meaning of the provision in question." Id. In this case, the state asserts that the court wrongly considered the issue because the court did not independently examine the text, context, or history of the Oregon provision when it adopted the unavailability rule and that the court wrongly decided the issue because the current federal rule is the "better" rule.

We are not persuaded that this court's analysis and conclusion in Campbell is flawed for the reasons that the state asserts. In considering the state's claims, we bear in mind this court's methodology for constitutional interpretation. See Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992) (explaining that interpretation of original constitutional provision requires examination of wording of provision, historical circumstances that led to its creation, and case law concerning provision).

First, the court in Campbell, in discussing Roberts, noted that courts do not read the wording of the federal Confrontation Clause literally. Campbell, 299 Or at 648. Such a reading would exclude all out-of-court statements made by declarants who are not available at trial, and courts historically have concluded that the framers did not intend that result. Campbell, 299 Or at 648. This court applied the same non-literal interpretation of the text of Article I, section 11, in Campbell and in the court's previous Article I, section 11, cases, which we discuss below.

Second, as noted above, the court in Campbell implicitly agreed with the United States Supreme Court's evaluation of the historical purposes and values embodied in the confrontation right, which the Roberts two-part test protected. In Roberts, the United States Supreme Court stated that the confrontation right reflects "the Framers' preference for face-to-face accusation." 448 US at 65. That historical preference undergirds the unavailability requirement that Campbell discussed.

This court's cases that preceded Campbell demonstrate the same understanding of the purposes of the confrontation right and, particularly, the historical preference for face-to-face confrontation that the United States Supreme Court discussed in Roberts. A number of early Oregon cases established that Article I, section 11, did not preclude the state from using all hearsay against a criminal defendant, even though the hearsay declarant did not testify at trial. In each of those cases the declarant was unavailable to testify. See, e.g., State v. Casey, 108 Or 386, 213 P 771 (1923) (declarant deceased); State v. Von Klein, 71 Or 159, 142 P 549 (1914) (declarants absent from state); State v. Meyers, 59 Or 537, 117 P 818 (1911) (declarant absent from state); State v. Walton, 53 Or 557, 99 P 431 (1909) (one declarant deceased, one beyond jurisdiction of court); State v. Bowker, 26 Or 309, 38 P 124 (1894) (declarant seriously ill and physically unable to attend trial); State v. Saunders, 14 Or 300, 12 P 441 (1886) (declarant deceased), overruled on other grounds by State v. Marsh, 260 Or 416, 490 P2d 491 (1971). Given the choice between excluding sufficiently reliable evidence or admitting that evidence despite the defendant's inability to confront the witness, the court chose the latter. Necessity, practicality, and public policy concerns motivated the court's decisions.

In later Oregon cases, this court continued to consider the reliability of proffered hearsay only when confrontation, in the classic sense, was impossible. The case law continued to focus on necessity as the justification for admitting hearsay against a criminal defendant, once confrontation became impossible. In State ex rel Gladden v. Lonergan, 201 Or 163, 269 P2d 491 (1954), for example, the court stated that the

"essential purpose of confrontation * * * is to secure for the accused the opportunity of cross-examination. However, it is recognized that there is a secondary advantage to be gained by the personal appearance of the witness before the court and jury where his testimony is orally given. This advantage is stated by Professor Wigmore as follows: 'the judge and the jury are enabled to obtain the elusive and incommunicable evidence of a witness' deportment while testifying, and a certain subjective, moral effect is produced upon the witness.' 5 Wigmore, Evidence 3d ed 125,

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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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