S48796 Kain v. Myers

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 12/13/2001

Filed: December 13, 2001

IN THE SUPREME COURT OF THE STATE OF OREGON

KRIS KAIN
and TRICIA BOSAK,

Petitioners,

HARDY MYERS,
Attorney General,
State of Oregon,

Respondent,

and

BILL SIZEMORE,

Intervenor.

(SC S48796)

En Banc

On petition to review ballot title.

Argued and submitted November 1, 2001.

Margaret S. Olney, Smith, Gamson, Diamond & Olney, Portland, argued the cause and filed the petition for petitioners.

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

Gregory W. Byrne, Byrne & Associates, Portland, argued the cause and filed the memorandum in support for intervenor.

DURHAM, J.

Ballot title referred to the Attorney General for modification.

DURHAM, J.

This is a proceeding under ORS 250.085(2) in which petitioners challenge a ballot title certified by the Attorney General for Initiative Petition 91 (2002). The proposed initiative, if adopted, would amend the Oregon Constitution by restricting the authority of government employers to sign certain agreements regarding payment of money to unions and by relieving public employee unions of the duty to represent or provide services to employees who do not join the union or pay for its services.

Initiative Petition 91 (2002) provides:

"BE IT ENACTED BY THE PEOPLE OF THE STATE OF OREGON:

"The Constitution of the State of Oregon is amended by adding the following section:

"Section 1. No government employer shall sign or otherwise make a contract or agreement (including an extension to a contract or agreement in existence as of the effective date of this section) that (a) requires a public employee who is not a member of a union to pay money to a union for any reason, or (b) authorizes deducting money from the paycheck of a public employee who is not a member of a union, and transferring the money to a union or its agent or assign without the employee's written authorization. No public employee union shall be required to represent or provide other services to a public employee who is not a member of the union or does not pay the union for its services. No employee shall be discriminated against for not joining or being represented by a public employee union."

The Attorney General certified the following ballot title for the proposed initiative:

"AMENDS CONSTITUTION: PUBLIC EMPLOYERS
IN UNIONIZED WORKPLACE CANNOT SIGN
CERTAIN LABOR CONTRACTS, UNIONS NEED
NOT REPRESENT NONMEMBERS

"RESULT OF 'YES' VOTE: 'Yes' vote prohibits public employers in unionized workplace from signing contracts requiring nonunion employees to pay money to union; union may refuse to represent nonpayers.

"RESULT OF 'NO' VOTE: 'No' vote rejects amendment prohibiting public employers from signing contracts requiring nonunion employees to pay money to union; retains laws requiring unions to represent nonpayers.

"SUMMARY: Amends constitution. Currently, public employers in workplace where majority of employees have voted to be represented by union may sign labor contracts requiring employees who are not union members to make payments in lieu of dues to union for representation in collective bargaining. Unions must represent all employees in bargaining unit, including nonmembers. Measure prohibits public employers in unionized workplaces from signing contracts requiring nonmember employees to pay money to union for any purpose and from deducting money from paycheck of any nonmember for transfer to union without employee's authorization. Unions not required to represent public employees who are not union members or who do not pay for union services. Prohibits discrimination against public employees for not joining or being represented by union. Other provisions."

This court reviews a ballot title for "substantial compliance with the requirements of ORS 250.035." ORS 250.085(5). Petitioners challenge the sufficiency of the caption, result statements, and summary of the Attorney General's ballot title. We have reviewed petitioners' challenges and, with the exception of the argument regarding the result statements discussed below, we conclude that the Attorney General's ballot title substantially complies with statutory requirements.

ORS 250.035(2)(b) requires a "yes" vote result statement that is a "simple and understandable statement of not more than 25 words that describes the result if the state measure is approved." ORS 250.035(2)(c) requires a "no" vote result statement that is a "simple and understandable statement of not more than 25 words that describes the result if the state measure is rejected."

Petitioners argue that the term "nonunion" in each result statement is not appropriate, because it is either inaccurate or confusing. They point out that the phrase "nonunion employees" does not appear in the proposed initiative, is not synonymous with and does not describe employees who are not union members, and generally refers (inaccurately, they assert) to any employees who are not members of the union's bargaining unit, such as confidential, supervisory, or managerial employees. (1)

The statutory requirements that the result statements be "understandable" and "describe[] the result" of approval and rejection of the proposed initiative, ORS 250.035(2)(b), (c), are designed to protect the voters' interest in an accurate disclosure of those respective results. This court has stated that misstatements, even by implication, of either existing law or the law that the proposed measure would enact are not appropriate in a ballot title. Novick/Bosak v. Myers, 333 Or 18, ___, ___ P3d ___ (November 30, 2001) (slip op at ___); Dale v. Kulongoski, 321 Or 108, 113, 894 P2d 462 (1995). Such misstatements potentially invite misleading arguments to support passage or defeat of the proposed initiative.

We believe that the Attorney General intends the phrase "nonunion employees" in the result statements to refer to members of a public employee bargaining unit who are not union members and who, therefore, do not pay union dues, but who may make fair-share payments in lieu of dues to the union. (2) The question before the court is whether "nonunion employees" accurately describes that group of public employees.

The dictionary definition of "nonunion" is:

"1 : not belonging to or affiliated with a trade union * * * 2 : not recognizing or favoring trade unions or trade unionists."

Webster's Third New Int'l Dictionary, 1539 (unabridged ed 1993).

The first of those definitions is broader in scope than the employee group to which the Attorney General intends to refer. That definition includes any employee "not belonging to or affiliated with" a union, i.e., a group that embraces not only bargaining unit members who pay no money to a union but also all other employees of the public employer, including supervisory and confidential employees. (3)

The second of the dictionary's definitions refers to a distinct employee group, i.e., those who do not recognize or favor unions. That definition carries the implication of political or philosophical opposition to unions. Indeed, the dictionary's word for that belief system is a related term, "nonunionism," which the dictionary defines as follows: "[T]he theories, opinions, or practices of those who do not support trade unions[.]" Id.

The foregoing discussion indicates that the term chosen by the Attorney General, "nonunion," does not describe accurately the employee group to which the Attorney General meant to refer. Moreover, the inaccuracy of that term likely will produce voter confusion. Voters familiar with the definitions discussed above could infer incorrectly from the Attorney General's result statements that the proposed initiative would preclude contractually mandated payments to unions by supervisory and confidential employees, as well as all employees who politically oppose unions.

Another term in the result statements contributes to the likelihood of voter confusion from the term "nonunion." The Attorney General uses the term "nonpayers" in each result statement, apparently intending to refer to a union's bargaining unit members who do not pay money to the union. However, because the result statements imply that the terms "nonpayers" and "nonunion employees" are synonyms, the term "nonpayers" simply reinforces, rather than eliminates, the problems noted above regarding the term "nonunion."

The Attorney General argues that petitioners' criticism of the Attorney General's phrase, "nonunion employees," is faulty because there is no meaningful difference between that phrase and the phrase that petitioners recommend to the court, "non-union members." That argument is unresponsive to the question before the court, that is, whether the ballot title certified by the Attorney General substantially complies with statutory requirements. ORS 250.085(5). Consequently, we do not address that argument. (4)

We conclude that, because the term "nonunion" is incorrect and confusing in this context, the Attorney General's result statements do not state accurately "the result" if the voters approve or reject the proposed initiative. ORS 250.035(2)(b), (c).

Ballot title referred to the Attorney General for modification.

1. Petitioners rely in part on ORS 243.650(19), which defines "public employee" as follows:

"'Public employee' means an employee of a public employer but does not include elected officials, persons appointed to serve on boards or commissions, incarcerated persons working under section 41, Article I of the Oregon Constitution, or persons who are confidential employees, supervisory employees or managerial employees."

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2. ORS 243.650(10) defines "fair-share agreement" in part as follows:

"'Fair-share agreement' means an agreement between the public employer and the recognized or certified bargaining representative of public employees whereby employees who are not members of the employee organization are required to make an in-lieu-of-dues payment to an employee organization except as provided in ORS 243.666."

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3. ORS 243.650(23) defines "supervisory employee" in part as follows:

"'Supervisory employee' means any individual having authority in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection therewith, the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment."

ORS 243.650(6) defines "confidential employee" as follows:

"'Confidential employee' means one who assists and acts in a confidential capacity to a person who formulates, determines and effectuates management policies in the area of collective bargaining."

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4. Because ORS 250.085(5) focuses the court's review on the Attorney General's ballot title, the Attorney General's criticisms of alternative words or phrases suggested by a ballot title challenger often play no role in the court's analysis. See generally Order Adopting Temporary Amendments to ORAP 11.30, Chief Justice Order No. 01-111 (October 24, 2001), Oregon Appellate Court Advance Sheets No. 23 at A-13 (November 12, 2001) (deleting from ORAP 11.30(4)(b) requirement that petitioner include in body of petition proposed ballot title that petitioner believes would comply substantially with statutory requirements).

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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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