S48149 Higgins v. DMV

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 07/03/2003

FILED: JULY 3, 2003

IN THE SUPREME COURT OF THE STATE OF OREGON

In the Matter of
the Denial of the Application for the Custom Plates
"WINE" "INVINO" "VINO" of
MICHAEL PAUL HIGGINS,

Petitioner on Review,

DRIVER AND MOTOR VEHICLE
SERVICES BRANCH (DMV),

Respondent on Review.

(60486; CA A96871; SC S48149)

On review from the Court of Appeals.*

Argued and submitted March 14, 2002.

Edmund J. Spinney, American Civil Liberties Union Foundation of Oregon, Springfield, argued the cause and filed the briefs for petitioner on review.

Mary H. Williams, Assistant Solicitor General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

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

DURHAM, J.

The decision of the Court of Appeals and the order of the Driver and Motor Vehicle Services Branch are affirmed.

*Judicial Review from Driver and Motor Vehicle Services Branch. 170 Or App 542, 13 P3d 531 (2000).

**Leeson, J., resigned January 31, 2003, and did not participate in the decision of this case. De Muniz, J., did not participate in the consideration or decision of this case.

DURHAM, J.

Petitioner seeks review of a final order issued by an administrative law judge on behalf of the Oregon Department of Transportation, Driver and Motor Vehicle Services Branch (DMV). (1) The order affirmed the decision of DMV to deny issuance of customized vehicle registration plates to petitioner because the configuration of characters that he requested, "WINE," "INVINO," and "VINO," violated an administrative rule prohibiting references to alcoholic beverages on such plates. The order rejected petitioner's contention that the rule violated his right to freedom of expression under Article I, section 8, of the Oregon Constitution and the First Amendment to the United States Constitution. On judicial review, a divided en banc Court of Appeals affirmed the order. Higgins v. DMV, 170 Or App 542, 13 P3d 531 (2000). Petitioner sought review. For the following reasons, we affirm.

Proper resolution of this dispute turns on a clear understanding of the nature of vehicle registration plates and, especially, customized registration plates. Oregon law extensively regulates the ownership, registration, and operation of vehicles in the state. ORS 803.300 makes it an offense for a vehicle owner in Oregon to fail to register the vehicle. When the Oregon Department of Transportation (ODOT) registers a vehicle, ODOT must issue to the owner, among other things, two registration plates, ORS 803.525, unless state law authorizes issuance of a single plate. ORS 803.530 requires that the registration plates remain with the vehicle, unless transferred to another vehicle or replaced with ODOT's approval. ORS 803.535(1) provides that registration plates shall be in the size, form, and arrangement selected by, and made of materials determined by, ODOT, including:

"(d) Except as otherwise authorized under ORS 805.200, all plates shall contain the distinctive number or characters assigned to the vehicle and the word 'Oregon.'"

Oregon statutes authorize ODOT to issue several types of registration plates that exhibit special indicia of registration. See, e.g., ORS 805.210 (special interest vehicles); ORS 805.220 (vehicles of certain elected officials); ORS 805.230 (amateur radio operators' vehicles). As pertinent to this case, ORS 805.240 authorizes issuance of "customized" registration plates:

"The Department of Transportation is authorized to issue customized registration plates upon the request of vehicle owners. Such registration plates shall meet the requirements for registration plates described in ORS 803.535. The fee for issuance of the customized plates is as provided under ORS 805.250."

The registration plates that petitioner sought in this proceeding were customized registration plates within the terms of ORS 805.240.

Under ORS 805.240, customized registration plates must meet the requirements of ORS 803.535, quoted in part above, which provides that the statutory design requirements in ORS 803.535(1)(d) apply "[e]xcept as otherwise authorized under ORS 805.200 * * *." ORS 805.200 grants to ODOT the authority by rule to design several kinds of registration plates, including customized registration plates. ORS 805.200(1) provides, in part:

"The Department of Transportation by rule:

"* * * * *

"(b) May design plates, stickers, plate and sticker combinations or other devices or indicia for distinguishing vehicles registered under specific provisions of the Oregon Vehicle Code other than ORS 805.040 or 805.205 [providing for registration of certain vehicles not involved in this proceeding]. Plates designed under this paragraph shall comply with the requirements of ORS 803.535. The fees for plates or indicia described in this paragraph are provided under ORS 805.250."

Once ODOT issues a registration plate, ORS 803.550 makes it an offense to alter or obscure a registration plate. ORS 803.540 makes it a violation to operate a vehicle in the state without displaying the assigned registration plates in plain view.

The statutory scheme reviewed above demonstrates that registration plates are part of Oregon's detailed scheme for maintaining a state-controlled system for the registration of almost all motor vehicles in the state. The characters that the state assigns to a vehicle's registration plates facilitate the prompt identification of the vehicle for law enforcement purposes. However, the statutes discussed above do not disclose the details of a vehicle owner's role in, and the regulatory standards that govern, the selection of characters for customized registration plates. DMV has addressed those matters in administrative rules, some of which the agency has amended during the course of this proceeding. We turn now to a discussion of those rules and the facts of this case to which they pertain.

In 1996, petitioner submitted customized registration plate applications to DMV in which he requested plates displaying the following characters: "INVINO," "VINO," and "WINE." DMV denied the applications on the ground that the extant administrative rule, former OAR 735-46-010(7) (1996), required DMV to deny "custom plate choices that are * * * [d]rug-related words * * *." (2) DMV determined that petitioner's requests were "alcohol/drug related."

DMV afforded petitioner a hearing on the denial and, after the hearing, issued a final order denying the applications. Petitioner sought judicial review of the final order. DMV withdrew the final order under ORS 183.482(6), (3) amended its administrative rule, which we quote below, regarding customized registration plates, and reissued its final order denying the applications under the amended rule. (4) Petitioner filed an amended petition for judicial review of the reissued final order.

DMV's amended administrative rule, OAR 735-046-0010, provides, in part:

"(1) Persons who want to obtain custom plates shall apply to DMV for approval and assignment of the plate choice.

"* * * * *

"(7) DMV shall not approve a custom plate choice, including plate choices that would do so by means of foreign or slang words or phrases, by use of phonetic, numeric or reverse spelling, or by being viewed in mirror image, that:

"* * * * *

"(b) Refers to alcoholic beverages, or controlled substances or paraphernalia used in the consumption thereof by combinations of letters, numbers or both."

DMV's administrative rules clarify the standards and procedures that govern issuance of customized registration plates. OAR 735-046-0010 permits a vehicle owner, on payment of a designated fee, to apply for DMV approval and assignment of registration plates that display letters and numbers that the owner chooses, rather than the letters and numbers that DMV's conventional registration plate system would produce. By displaying customized registration plates, vehicle owners can transform what they otherwise might consider to be an uninteresting mix of random letters and numbers into a message that they wish to display on their vehicles, such as "TRIGGR," "BTRMLK," or "10ENE1."

Customized registration plates perform the same vehicle identification function and are subject to the same prohibitions and requirements regarding display, removal, and alteration that apply to conventional registration plates. DMV's administrative rules permit vehicle owners to use their creativity in selecting the characters for customized registration plates. However, the rules restrict the range of permissible choices of license plate characters that DMV will incorporate on a customized registration plate and do so on the basis of the content of the message that the characters requested by the vehicle owner would state or imply. Those content-based restrictions in DMV's rules lie at the heart of the parties' dispute here.

On review, petitioner acknowledges that his requests for customized registration plates violated OAR 735-046-0010(7)(b) because each group of characters in his requests referred in some manner to an alcoholic beverage. He contends, however, that the administrative rule is invalid because it limits free speech on the basis of the content of that speech and does not confine its prohibition to some well-established historical exception to the state free speech guarantee. See State v. Robertson, 293 Or 402, 412, 649 P2d 569 (1982) (stating analysis under Oregon Constitution, Article I, section 8, including historical exception doctrine). Article I, section 8, of the Oregon Constitution provides:

"[n]o law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

Petitioner also asserts that the speech conveyed by a customized registration plate is that of the vehicle owner, not the state.

The Court of Appeals divided largely over the question whether the message displayed on a customized registration plate constitutes the speech of the vehicle owner or that of the state. The majority opinion sustained DMV's rule on the theory that a customized registration plate conveys communication by the state, not the vehicle owner. Higgins, 170 Or App at 547. Two judges concurred on the theory that, although speech by both the state or the vehicle owner occurs at three different stages of the application process, the restraint involved here applied to the stage that involved speech only by the DMV. Id. at 554-55 (Edmonds, J., concurring). Another judge concurred on the theory that, although the license plate characters constituted speech by petitioner, the incompatibility exception to Oregon's free speech doctrine justified DMV's restrictions on petitioner's speech. Id. at 561-63 (Wollheim, J., concurring) (discussing incompatibility doctrine). Two judges dissented, expressing the view that Oregon law should permit the state to limit the message that vehicle owners might desire to display on customized registration plates, but that the analysis adopted in this court's decision in Robertson precluded that result. Id. at 563 (Landau, J., dissenting).

We begin by observing that state law requires DMV to create registration plates, with a distinctive configuration of numerals and letters, to facilitate vehicle identification for law enforcement purposes. The numerals, letters, stickers, and other insignia on a registration plate communicate information about the registration status of the assigned vehicle. DMV creates that communication device by manufacturing and assigning a registration plate to vehicle owners. Vehicle owners in turn communicate their vehicles' registration status to the world by affixing the registration plate to the exterior of their vehicle as required by state law.

The latter point demonstrates that, contrary to the state's argument, the information that a vehicle registration plate conveys is not "government speech," as this court has employed that term in describing legal problems arising from the government's publicity about, and promotion of, its policies. See Burt v. Blumenauer, 299 Or 55, 66, 699 P2d 168 (1985) (discussing "the concerns that stretch out to many forms of so called government speech"). The function of a registration plate, at bottom, is vehicle identification, not government advocacy. Government controls completely the manufacture and assignment of registration plates, but the label "government speech" in our view fails to describe accurately the vehicle owner's conduct in displaying the registration plate that the government assigns.

Neither can we agree with petitioner that the act of displaying a registration plate on his vehicle constitutes self-expression within the ambit of Article I, section 8. Rather, that conduct constitutes the compelled public disclosure of the registration status of the vehicle. If petitioner chooses to drive his vehicle on the state's highways, then he must display the registration plate that DMV assigns to his vehicle and no other plate. The government's complete control over the manufacture, assignment, and requirements for display of vehicle registration plates undermines petitioner's claim that displaying a registration plate amounts to his own free speech.

In that regard, petitioner's free speech claim is distinguishable from those analyzed in much of this court's case law regarding Article I, section 8. A few examples will suffice. Robertson held that a statute that created and defined the crime of "coercion" reached privileged expression, that no historical exception for the restriction existed, and that the court could not construe the statute so as to avoid its overbreadth. Robertson, 293 Or at 436-37.

In City of Eugene v. Miller, 318 Or 480, 871 P2d 454 (1994), the court reversed the defendant's conviction under a city ordinance for selling joke books on a city sidewalk. The court, relying on earlier authority, noted that selling is a form of communicative behavior that includes speech, id. at 485; that the joke books were expressive material, id. at 486; and that the ordinance in question treated vendors of expressive material more restrictively than vendors of other merchandise, id. at 491.

In City of Hillsboro v. Purcell, 306 Or 547, 761 P2d 510 (1988), this court held unconstitutional a city ordinance that forbade any person to enter private property or to call at residences, without an invitation, for the purpose of selling goods. The court noted that government may not ban speech through either criminal laws or civil prohibitions. Id. at 553-54. The court, citing City of Portland v. Tidyman, 306 Or 174, 182, 759 P2d 242 (1988), did observe that "even free speech activities 'are not immune from regulations imposed for reasons other than the substance of their particular message,' Tidyman * * *. In either case, laws must proscribe harm rather than expression itself." Purcell, 306 Or at 554. The court determined that "[s]elling is a form of communicative behavior that includes speech and may involve goods that are protected expression." Id. at 555. The court then held that the ordinance was overbroad because it prohibited "all solicitation for any purpose at any time" and that the court could not confine the ordinance through interpretation to "constitutional confines intended by lawmakers[.]" Id. at 556.

Those cases, and others that we have not cited, address the constitutionality of legal restraints on a person's own expressive activity, not, as here, the legally compelled display of a message that government creates for a regulatory purpose unrelated to the suppression of speech. Petitioner seeks, however, to circumvent that distinction by emphasizing that DMV's rules for customized registration plates permit him, for a fee, to compose and request a plate configuration of his own choosing. According to petitioner, those rules permit a type of free speech and, consequently, DMV cannot enforce its restraints on the substance of that free speech without offending Article I, section 8.

We disagree with petitioner, because his premise is incorrect. As we discussed earlier, the compelled display, for regulatory purposes, of a registration plate bearing a government-created identification message is not an act of constitutionally protected speech, writing, or printing by the vehicle owner in any historical or modern sense. DMV's customized registration plate rules permitted petitioner to participate, within defined limitations, in the selection of the numerals and letters that would appear on the registration plate for which he applied. But the limitations in DMV's rule confined the possible combinations of characters from which petitioner could select. The state did not open the process to any combination of letters and numbers that a vehicle owner might request. The state, not petitioner, retained control of the parameters within which petitioner could request characters for his customized registration plates.

In our view, DMV's rules allowing a vehicle owner's limited participation in the selection of characters for a customized registration plate do not alter the essential character of a registration plate. It remains a government-controlled device that carries a government-approved identification message that vehicle owners must display on their vehicle for regulatory purposes unrelated to the suppression of speech. For that reason, there is no basis under this court's case law to examine, as in Miller and Tidyman, whether DMV's rules are permissible time, place, and manner regulations of free speech, whether the rules fail, as in Purcell, to proscribe harm rather than expression itself, or whether, as discussed in Robertson, a well-established historical exception applies to rules governing the display of vehicle registration plates.

DMV's rule identified the parameters within which DMV was prepared to manufacture customized registration plates pursuant to applications that vehicle owners submitted. It is obvious from the rule that DMV was unwilling to manufacture a customized registration plate, as a part of its process for vehicle registration, if the requested characters conveyed a message about alcohol (or drug use, profanity, sexual terms, and the like). We find nothing in the text or history of Article I, section 8, that entitles petitioner to compel DMV to manufacture a customized registration plate that conveys a message that falls outside the scope of the messages that DMV was willing to use in its vehicle regulatory scheme. (5)

Petitioner also asserts that DMV's substantive restriction on customized registration plate messages violates the First Amendment to the United States Constitution, which provides:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The Court of Appeals rejected petitioner's argument. It concluded that, under current federal case law, a registration plate is a nonpublic forum and that DMV's rules are permissible restraints on speech in that context because they "are reasonable in light of the purposes of the forum and are viewpoint neutral." Higgins, 170 Or App at 553 (citing Arkansas Ed. Television Comm'n v. Forbes, 523 US 666, 118 S Ct 1633, 140 L Ed 2d 875 (1998)). We conclude that the First Amendment analysis that the Court of Appeals applied was correct. Accordingly, we reject petitioner's First Amendment challenge to DMV's rule.

The decision of the Court of Appeals and the order of the Driver and Motor Vehicle Services Branch are affirmed.

1. The order on review describes DMV, in accordance with then-current administrative rules, as the Driver and Motor Vehicle Services Branch. The current name of the agency is Driver and Motor Vehicle Services Division. OAR 735-010-0008(11).

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2. OAR 735-046-0000(1) provides that "'[c]ustom plates' means customized registration plates as authorized by ORS 805.240."

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3. ORS 183.482(6) provides:

"At any time subsequent to the filing of the petition for review and prior to the date set for hearing the agency may withdraw its order for purposes of reconsideration. If an agency withdraws an order for purposes of reconsideration, it shall, within such time as the court may allow, affirm, modify or reverse its order. If the petitioner is dissatisfied with the agency action after withdrawal for purposes of reconsideration, the petitioner may refile the petition for review and the review shall proceed upon the revised order. An amended petition for review shall not be required if the agency, on reconsideration, affirms the order or modifies the order with only minor changes. If an agency withdraws an order for purposes of reconsideration and modifies or reverses the order in favor of the petitioner, the court shall allow the petitioner costs, but not attorney fees, to be paid from funds available to the agency."

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4. Although the reissued final order in part referred to the repealed administrative rule, the basis for the denial in that order was the amended administrative rule.

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5. Petitioner does not argue that DMV is failing to administer its rule in an even-handed manner. For example, petitioner does not complain that DMV refused to approve an application for a registration plate reading "GO DEMS" but had approved a registration plate reading "GO GOP." This court has discussed some of the statutory and constitutional limits that constrain a public body's discretion to engage in political advocacy. See Burt, 299 Or at 66-70 (discussing limits applicable to government's advocacy in pursuit of its goals). Petitioner's challenge does not implicate those kinds of limits on the way that government may carry out its business.

Petitioner's arguments also do not raise questions about the government's statutory authority to invite or to limit public participation in its business communications. See Burt, 299 Or at 70 (before addressing constitutional premises underlying governmental speech, courts should address first what ordinary laws authorize, require, or forbid). Neither do petitioner's arguments raise issues about attempts by government to enforce parameters for such public participation as a pretext to silence its opponents or to evade other constitutional requirements. See Or Const, Art I,

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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.
1

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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
2

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[.]"
3

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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