S47228 Novick v. Myers

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 04/20/2000

FILED: APRIL 20, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

STEVEN NOVICK,

Petitioner,

HARDY MYERS,
Attorney General,
State of Oregon,

Respondent.

(SC S47228)

On petition to review ballot title.

Argued and submitted March 16, 2000.

Steven Novick, Portland, pro se, argued the cause and filed the petition.

Holly A. Vance, Assistant Attorney General, Salem, argued the cause and filed the answering memorandum for respondent. With her on the memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

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

DURHAM, J.

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

*Van Hoomissen and Riggs, JJ., did not participate in the consideration or decision of this case.

DURHAM, J.

This is a ballot title review proceeding under ORS 250.085(2). The Attorney General certified a ballot title, which we quote below, for Initiative Petition 113 (2000). Petitioner is an elector who timely submitted written comments regarding the Attorney General's draft ballot title and who, therefore, is entitled to seek review under ORS 250.085(2). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035 (1997). (1) ORS 250.085(5). For the reasons that follow, we modify the Attorney General's ballot title.

If approved, Initiative Petition 113 would add the following provision to the Oregon Constitution:

"Section ____. Lower and middle class taxpayers shall not be denied a voter approved tax break because the tax break also benefits other taxpayers. A measure which give [sic] a tax break to lower income and/or middle class taxpayers shall not be superceded[ (2)] or invalidated in any way by a measure that limits or prohibits certain tax breaks for a class of taxpayers."

For that proposed constitutional amendment, the Attorney General certified the following ballot title:

"AMENDS CONSTITUTION: PROHIBITS DENYING
CERTAIN VOTER-APPROVED,
LOWER-, MIDDLE-CLASS TAX BREAKS

"RESULT OF 'YES' VOTE: 'Yes' vote prohibits denying lower- and middle-class taxpayers certain voter-approved tax breaks.

"RESULT OF 'NO' VOTE: 'No' vote leaves constitution without provision prohibiting denial of certain lower-, middle-class tax breaks.

"SUMMARY: Amends constitution. The Oregon Constitution currently says nothing about denying to lower- and middle-class taxpayers tax breaks that also benefit other taxpayers. The measure would prohibit denying lower- and middle-class taxpayers a voter-approved tax break because that tax break also benefits other taxpayers. Under this measure, a measure that gives a tax break to lower- and/or middle-class taxpayers shall not be superceded or invalidated by a measure that limits certain tax breaks for a class of taxpayers."

ORS 250.035 (1997) requires that a ballot title for an initiative amendment to the Oregon Constitution satisfy the following criteria, among others. The ballot title caption must contain not more than 10 words, not including the words "Amends Constitution," that "reasonably identif[y] the subject matter" of the proposed constitutional amendment. ORS 250.035(2)(a) (1997). The "yes" vote result statement must contain a "simple and understandable statement of not more than 15 words that describes the result" if the voters approve the proposed constitutional amendment. ORS 250.035(2)(b) (1997). The "no" vote result statement must contain a "simple and understandable statement of not more than 15 words that describes the result" if the voters reject the proposed constitutional amendment. ORS 250.035(2)(c) (1997). Finally, the summary must contain a "concise and impartial statement of not more than 85 words summarizing the measure and its major effect." ORS 250.035(2)(d) (1997).

Petitioner asserts that each segment of the Attorney General's ballot title suffers from a similar defect. He contends that the ballot title is misleading because it suggests, incorrectly, that the measure simply protects undefined voter-approved "tax breaks" for "lower class," "lower income," and "middle class" taxpayers. (3) According to petitioner, the measure in fact protects tax breaks for those groups only if either of two other conditions also exists. First, the tax break measure also must purport to benefit "other" taxpayers, including but not limited to "upper" class taxpayers. Second, and in the alternative, a measure that limits or prohibits a tax break for a "class" of taxpayers, which petitioner defines to include but not be limited to "upper class" or "higher income" taxpayers, also must purport to supersede or invalidate a measure giving a tax break to "lower income and/or middle class taxpayers." Petitioner argues that the Attorney General's failure to disclose the fact that the measure effectively protects tax breaks for upper class taxpayers is a fundamental error. He contends that the Attorney General's ballot title fails to disclose the true subject of the measure because it incorrectly portrays the measure merely as a plebiscite on protecting tax breaks for lower and middle class taxpayers.

The Attorney General acknowledges that the measure protects voter approved tax breaks for lower and middle class taxpayers if they also benefit "other taxpayers." However, the Attorney General contends that the phrase "other taxpayers" in the measure is ambiguous in this context and does not justify singling out "upper class" taxpayers as the benefitted class, as petitioner suggests. The Attorney General also argues that other ambiguities in the measure, such as the meaning of the undefined phrase "tax break," and applicable statutory word limits prevent explaining in a neutral manner the beneficial effect of the measure on wealthier taxpayers.

This court recently observed that the drafter of a measure may not incorporate "politically inflated terms or phrases in the text of the measure in order to advance its passage." Earls v. Myers, 330 Or 171, ___ P2d ___ (2000). We also have stated that the court will not hesitate to look beyond the words of a measure if the words obfuscate the subject, chief purpose, summary, or major effect of the measure. Bernard v. Keisling, 317 Or 591, 596-97, 858 P2d 1309 (1993).

With those principles in mind, we turn first to the question whether the Attorney General's caption adequately identifies the subject matter of the measure. We determine whether a caption states the subject matter of a proposed initiative measure by examining the text of the measure itself. Dirks v. Myers, 329 Or 608, 614, 993 P2d 806 (2000).

The measure contains two sentences. We analyze each sentence separately. The first sentence addresses a particular subject: a "voter approved tax break." The sentence purports to preserve or protect that kind of tax break, for the benefit of lower and middle class taxpayers, "because" the tax break also benefits other taxpayers. The dictionary provides the following pertinent definitions of the word "because"

"SINCE: for the reason that: on account of the cause that -- used to introduce dependent clauses * * * on account of being * * *."

Webster's Third New Int'l Dictionary, 194 (unabridged ed 1993). Those definitions indicate that, in this context, the word "because" means "for the reason that" or "on account of the cause that." The first sentence of the measure protects a tax break for lower and middle class taxpayers for the reason or on account of the cause that the tax break also benefits other taxpayers. The protection of tax breaks for lower and middle class taxpayers that that sentence describes takes effect only if, or on condition that, "the tax break also benefits other taxpayers."

That raises an important question: Who are the "other taxpayers" to whom the first sentence refers? Petitioner contends that that phrase refers to "upper class" taxpayers. The Attorney General acknowledges that that is a plausible reading, but argues that the phrase "other taxpayers" also could include other classes or subgroups of taxpayers that fall outside the "lower" and "middle" classes, such as "upper middle" class taxpayers.

Petitioner also argues that "other taxpayers" refers to higher income or wealthier taxpayers. We need not address that question here because the first sentence of the measure uses no explicit reference to a taxpayer's income or wealth. The second sentence of the measure does refer to an income-related classification, viz., "lower income and/or middle class taxpayers." (Emphasis added.) For purposes of our review of the ballot title, we focus on the references in the measure to a taxpayer's "class," because the measure consistently classifies taxpayers by their class in each of the sentences in the measure.

The phrase "other taxpayers," standing alone, is somewhat imprecise, but we can discern its meaning. The measure uses that phrase to identify, by descriptive contrast, those taxpayers who are not "lower class" or "middle class" taxpayers. In view of the three-part classification of taxpayers that the first sentence creates, the phrase "other taxpayers" refers to taxpayers who, in a comparative sense, fall into a higher class than those to whom the other more definite class labels apply. The foregoing analysis of the first sentence of the measure indicates that that sentence preserves a tax break that benefits lower and middle class taxpayers if the tax break also benefits upper class taxpayers.

The second sentence of the measure has a different function. The second sentence purports to protect the efficacy of one kind of measure, i.e., a measure that gives a tax break to lower income and/or middle class taxpayers, from invalidation by a measure that purports to limit or prohibit "certain tax breaks for a class of taxpayers."

Several features of the second sentence are significant. The term "measure" appears twice in the second sentence. However, no term or phrase qualifies or limits the term "measure" to include only a measure that the voters approve. Therefore, in contrast with the phrasing that appears in the first sentence of the measure, i.e., "voter approved tax break," the references to "measure" in the second sentence might not confine the coverage of the initiative petition to voter-approved laws; it might include laws created by initiative or referendum and by conventional legislative lawmaking. Because the second sentence of the initiative petition might apply to legislative measures as well as to those that voters approve, the Attorney General's caption errs in stating that the subject matter of the initiative petition is tax breaks that are approved by voters.

The first clause of the second sentence describes the kind of measure that the initiative petition would protect as one that gives "a tax break to lower income and/or middle class taxpayers * * *." The last clause of the second sentence describes the kind of measure against which the initiative petition's protection would operate: "[A] measure that limits or prohibits certain tax breaks for a class of taxpayers." In contrast with the first sentence of the measure, the second sentence does not use the phrase "a class of taxpayers" to establish a descriptive comparison with the other more explicit categorizations of taxpayers by class and income that appear in the sentence. Instead, "a class of taxpayers" means any class of taxpayers. The second sentence focuses its protection against measures that limit or prohibit certain tax breaks for any class of taxpayers, including lower, middle, and upper class taxpayers.

The foregoing discussion of the subject matter of the measure exposes deficiencies in the Attorney General's caption. The Attorney General's caption indicates that the measure protects "lower" and "middle class" tax breaks. However, the Attorney General's caption stops at that point and fails to refer in any way to the practical protection that the measure affords for tax breaks that benefit upper class taxpayers. The Attorney General's caption also errs in stating that the measure only protects "voter-approved" tax breaks. The second sentence of the initiative petition might not limit its protection to voter approved tax break measures. Because the Attorney General's caption does not identify the subject matter of the measure accurately, it does not comply substantially with ORS 250.035(2)(a) (1997) and requires modification. To remedy the deficiencies noted above, we modify the caption as follows:

AMENDS CONSTITUTION: PRESERVES CERTAIN
TAX BREAKS IF UPPER CLASS,
OTHER TAXPAYERS BENEFIT

Petitioner contends that the Attorney General's "yes" and "no" vote result statements convey the same misleading message that we have discussed above in connection with the caption. We agree. The Attorney General's result statements fail to disclose that enacting or rejecting the measure will affect the tax breaks of classes of taxpayers other than those in the lower and middle classes. Because the Attorney General's result statements are misleading and likely will confuse voters, we modify those statements as follows:

RESULT OF "YES" VOTE: "Yes" vote preserves certain tax breaks if upper class, other taxpayer classes benefit.

RESULT OF "NO" VOTE: "No" vote leaves Constitution without provision preserving tax breaks if upper class, other taxpayers benefit.

Finally, petitioner contends that the summary suffers from the same defect that we have discussed above. He asserts that a major effect of the measure "will be to protect tax breaks benefitting upper-class taxpayers" and that the summary must disclose that major effect. The Attorney General responds that he prefers to avoid the debate about what the phrase "other taxpayers" means. As a result, the Attorney General's summary quotes the indefinite classifications set forth in the measure.

The summary of a ballot title must contain a concise and impartial statement that summarizes the measure and its major effect. ORS 250.035(2)(d) (1997). Repeating a measure's terms in the summary may be appropriate as long as the resulting summary satisfies ORS 250.035(2)(d) (1997). We recognize, however, that merely repeating the terms of a measure -- particularly ambiguous terms -- might fail to summarize either the measure or its major effect.

Applying the principles of Bernard and Earls here, we conclude that the Attorney General's summary does not comply substantially with ORS 250.035(2)(d) (1997), because the repetition in the first and second sentences of the summary of the indefinite label, "other taxpayers," from the first sentence of the measure fails to disclose the protection that that sentence would create for tax breaks benefitting upper class taxpayers. Additionally, we must modify the last sentence of the summary to indicate that the second sentence of the measure concerns measures that purport to limit certain tax breaks for any class of taxpayers. Accordingly we modify the summary as follows:

SUMMARY: Amends Constitution. The Oregon Constitution currently says nothing about preserving tax breaks if upper class, other classes of taxpayers would benefit. The measure would preserve voter-approved tax breaks, for lower and middle class taxpayers, if upper class taxpayers also would benefit. Additionally, a measure that gives a tax break to lower and/or middle class taxpayers shall not be superseded or invalidated by a measure that limits certain tax breaks for any class of taxpayers.

We certify to the Secretary of State the following ballot title for Initiative Petition 113:

AMENDS CONSTITUTION: PRESERVES CERTAIN
TAX BREAKS IF UPPER CLASS,
OTHER TAXPAYERS BENEFIT

RESULT OF "YES" VOTE: "Yes" vote preserves certain tax breaks if upper class, other taxpayer classes benefit.

RESULT OF "NO" VOTE: "No" vote leaves Constitution without provision preserving tax breaks if upper class, other taxpayers benefit.

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

1. The 1999 Legislature amended ORS 250.035 (1997) in several respects. Or Laws 1999, ch 793,

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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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