S48926 TVKO v. Howland

SUPREME COURT CASES

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State: Oregon

Docket No: OTC4445

Case Date: 07/24/2003

Filed: July 24, 2003

IN THE SUPREME COURT OF THE STATE OF OREGON

TVKO,
a subdivision of Home Box Office,
a division of Time Warner Entertainment Company, L.P.,
a Delaware limited partnership,

Appellant,

LERON R. HOWLAND,
Superintendent of the Oregon Department of State Police;
ADOLFO AKIL, ARTHUR W. CREWS,
FRANK J. PEDROJETTI, F. LOUIS RIOS, M.D.,
and GREGORY A. SMITH,
Members of the Oregon State Boxing and Wrestling Commission,

Respondents.

(OTC 4445; SC S48926)

On appeal from the Oregon Tax Court.*

Carl N. Byers, Senior Judge.

Argued and submitted May 7, 2003.

William F. Gary, of Harrang Long Gary Rudnick PC, Salem, argued the cause for appellant. With him on the briefs were James E. Mountain, Jr., and Bernard Nash and Maria Colsey Heard of Dickstein Shapiro Morin & Oshinsky LLP, Washington D.C.

Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for respondents. Stephen K. Bushong and Christina M. Hutchins, Assistant Attorneys General, and Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General filed the briefs for respondents.

Neil D. Kimmelfield, of Ball Janik LLP, Portland, filed a brief on behalf of amicus curiae Oregon Cable Telecommunications Association.

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

DE MUNIZ, J.

The judgments of the Tax Court are affirmed.

*15 OTR 335 (2001), 15 OTR 402 (2001).

DE MUNIZ, J.

This case began in the Oregon Tax Court as an action for a declaratory judgment. The central issue involves the constitutionality of a particular tax that the State of Oregon levied on certain pay-per-view telecasts that plaintiff broadcast. The Tax Court ruled in plaintiff's favor on that underlying issue, and the correctness of that ruling is not before us. Instead, plaintiff asks this court to decide two ancillary issues: (1) whether the Tax Court improperly limited the declaratory relief that it afforded plaintiff and (2) whether that court improperly denied plaintiff's motion for attorney fees and costs. ORS 305.445. For the reasons that follow, we affirm the Tax Court's judgments.

Plaintiff TVKO is a subdivision of Home Box Office (HBO) that produces and distributes televised pay-per-view sporting events through local cable operators. Defendants are the Superintendent of the Oregon State Police and the members of the Oregon Boxing and Wrestling Commission who, together in their official capacity, administer the statutes regulating professional boxing and wrestling in Oregon. (1)

In March 1999, plaintiff broadcast a pay-per-view boxing match from New York City and distributed the program to cable operators across the country. In Oregon, the event generated 4,804 subscription orders. In accordance with ORS 463.320(3), (2) the commission demanded that plaintiff pay a gross-receipts tax of $14,450.46 on the event.

Plaintiff declined to pay the tax and brought an action under the Uniform Declaratory Judgments Act, ORS 28.010 to 28.160, and 42 USC section 1983, seeking declaratory and injunctive relief. Plaintiff moved for summary judgment arguing, inter alia, that the state's tax violated plaintiff's First Amendment free speech rights.

The Tax Court agreed with plaintiff. Although it acknowledged that the state had a legitimate interest in regulating boxing matches in Oregon, the court held that the statute at issue did more than that: it regulated the dissemination of images reproduced from boxing matches. What the state sought to tax, the court concluded, was not the event itself, but communications of and about the event.

The Tax Court then took issue with defendants' argument that the tax was constitutional because it did not raise revenue for the general fund, but "instead[,] pa[id] for the regulation of the industry in which taxpayer [did] business." The court concluded:

"Defendants err in failing to recognize that [plaintiff] is not in the business of promoting boxing or wrestling matches in Oregon. Defendant's own brief asserts:

"'Plaintiff, however, has never broadcast an event from Oregon, has not alleged that it plans to broadcast an event from Oregon, has not held a production meeting in Oregon, and does not allege that it plans to hold any production meetings in Oregon.'

"Thus by Defendant's own assertions, [plaintiff's] only connection with Oregon is selling or transmitting television images and sound of a boxing match that took place outside of Oregon. Clearly, Oregon has no jurisdiction to regulate boxing matches held outside the state."

TVKO v. Howland, 15 OTR 335, 345-46 (2001) (emphasis in original).

Ultimately, the Tax Court granted plaintiff's summary judgment motion, in part, stating:

"In summary, a tax imposed on television transmissions of boxing matches held outside of Oregon violates the First Amendment of the United States Constitution. Boxing matches that take place in New York, the Phillippines, or Africa are clearly beyond Oregon's jurisdiction to regulate. The televising of such a boxing match is not promotion of boxing, subject to regulation by Oregon. The state's imposition of a tax on such can only be intended to regulate communication, something the state may not do in the absence of a compelling interest. It has shown no such interest."

Id. at 346 (emphasis added).

Both parties subsequently submitted proposed forms of the final declaratory judgment. Plaintiff's version broadly worded the judgment and, in effect, declared the tax to be unconstitutional vis-à-vis any pay-per-view boxing or wrestling event seen in Oregon:

"The provisions of ORS 463.320, subsections (3), (4), and (5), that impose a gross receipts tax on telecasts of boxing or wrestling events are unconstitutional, in violation of the First Amendment to the United States Constitution, applicable to defendants through the Fourteenth Amendment[.]"

In contrast, defendants offered a narrowly drawn version that applied to only out-of-state broadcasts, such as the one transmitted by plaintiff giving rise to this case:

"The provisions of ORS 463.320 that impose a gross-receipt tax on telecasts or transmissions of only out-of-state boxing or wrestling events are unconstitutional, in violation of the First Amendment to the United States Constitution applicable to defendants through the Fourteenth Amendment, and not enforceable."

(Emphasis added.) The Tax Court entered defendants' proposed judgment.

As the prevailing party, plaintiff moved for attorney fees and costs, relying on ORS 182.090 (3) as well as on the inherent equitable power of the Tax Court. Plaintiff argued that the state unreasonably had sought to enforce the tax because the statute was unconstitutional on its face and courts elsewhere had declared "virtually identical statutes" unconstitutional. Plaintiff also argued that the court should exercise its power in equity to award fees and costs because plaintiff had acted to "vindicate vitally important free speech rights of all telecasters and Oregonians."

The Tax Court denied plaintiff's motion. It acknowledged that state agencies do have authority to question the constitutionality of statutes. The court noted, however, that defendants in this case had conferred with the Oregon Department of Justice (DOJ) before continuing their enforcement efforts and that DOJ had advised them that the tax was constitutional. Citing State v. Mott, 163 Or 631, 640, 97 P2d 950 (1940), the Tax Court concluded that state officers were "entitled to follow the opinions of the Attorney General and, when acting in good faith, will be protected, even though that opinion may be in error." TKVO v. Howland, 15 OTR 402, 408 (2001).

Regarding its equitable power to award fees, the Tax Court determined that, under Armatta v. Kitzhaber, 327 Or 250, 287, 959 P2d 49 (1998), three conditions must exist before such an award is warranted: (1) the proceeding must be one in equity; (4) (2) the party requesting fees must be the prevailing party; and (3) the party must have sought to vindicate a constitutional right applying to all citizens without any gain peculiar to itself. Applying that rule to plaintiff, the Tax Court concluded:

"It is the element of self interest that disqualifies TVKO here. TVKO contested licensing and tax provisions that only apply to those who promote a boxing or wrestling match. The benefits of the court's decision flow largely to TVKO and other members of its industry, while the public is only indirectly benefitted. * * * If the interest that a litigating party seeks to vindicate is 'individualized,' 'peculiar,' or 'pecuniary,' it will not qualify as the type of interest justifying an award of attorney fees under the [equitable principles contained in Deras v. Myers, 272 Or 47, 535 P2d 541 (1975)]. * * * Accordingly, TVKO is not entitled to an award of attorney fees under the court's inherent equitable powers."

TVKO 15 OTR at 410. This appeal by plaintiff followed.

Plaintiff argues that, in declaring the tax levied against it under ORS 463.320(3) unconstitutional, the Tax Court committed legal error in limiting that declaration to taxes on telecasts of out-of-state boxing and wrestling events. Plaintiff asserts that the parties argued the case in the Tax Court as a facial challenge to the statute, the court analyzed it as a facial challenge and, on summary judgment, the Tax Court decided the issue in plaintiff's favor as a facial challenge. It follows, plaintiff reasons, that the Tax Court should have issued a declaratory judgment of comparable scope. For the reasons that follow, we conclude that the Tax Court did not commit legal error in entering the more limited judgment.

This court consistently has held that courts cannot issue declaratory judgments in a vacuum; they must resolve an actual or justiciable controversy. See Mitchell Bros. Truck Lines v. Lexington, 287 Or 217, 219, 598 P2d 294 (1979); Oregon Medical Assn. v. Rawls, 276 Or 1101, 1107, 557 P2d 664 (1977); and Hale v. Fireman's Fund Ins. Co. et al, 209 Or 99, 103, 302 P2d 1010 (1956) (all so stating). To be justiciable, a controversy must involve a dispute based on present facts rather than on contingent or hypothetical events. Brown v. Oregon State Bar, 293 Or 446, 449, 648 P2d 1289 (1982); see also Drake v. City of Portland, 172 Or 558, 599, 143 P2d 213 (1943) (courts will not render declaratory judgment where plaintiff's rights are contingent on event that no one can predict and that might never occur).

As a result, declaratory relief is available "only when it can affect in the present some rights between the parties[.]" Barcik v. Kubiaczyk, 321 Or 174, 188, 895 P2d 765 (1995) (emphasis in original). That tenet applies with particular force when issues involve questions of constitutional importance. In those situations, we have cited with approval the United States Supreme Court's policy of "'avoiding constitutional decisions until the issues are presented with clarity, precision and certainty,'" declining, in the process, to exercise jurisdiction when "'prematurity and comparative abstractness,' or 'uncertainness'" would leave this court without a concrete basis for a decision. Rawls, 276 Or at 1107, quoting Rescue Army v. Municipal Court, 331 US 549, 574-76, 67 S Ct 1409, 91 L Ed 2d 1666 (1947).

Plaintiff, however, argues that, under Brown, the substance of a justiciable controversy can lie in the interpretation of a statute and a determination of a state officer's official duties thereunder, rather than an actual application of a statute in a particular circumstance. In Brown, an agency that was conducting a contested case hearing requested advice from the Attorney General's office. Two assistant attorneys general subsequently met in private with the agency's director and a hearings officer and did not notify the opposing litigants. As a result of that meeting, the Oregon State Bar (Bar) received an ethics complaint against the Attorney General and issued an opinion that the meeting had violated several provisions of the Code of Professional Responsibility.

The Attorney General subsequently brought an action against the Bar seeking a declaratory judgment regarding the Attorney General's authority under ORS 180.220 (5) to give private, ex parte advice to agencies involved in contested cases. The trial court granted the Bar's motion for summary judgment based, in part, on the ground that the Attorney General had failed to present a justiciable controversy involving present facts. This court reversed that decision, stating:

"The court is requested to consider a specific set of facts -- whether plaintiff may give advice upon request to agencies in contested cases where plaintiff's office is not involved in the case, agency rules do not prohibit the conduct and the recipient does not have authority to issue binding orders. The controversy involves present facts, the plaintiff's existing statutory duty. * * * The controversy does not concern the specific conduct of having given advice to the [agency director] but concerns the plaintiff's continuing state-wide official conduct under the statutes."

Brown, 293 Or at 450 (emphasis added).

In Brown, this court concluded that the issue that the plaintiff raised was justiciable because it called for the interpretation of a statute and implicated a current dispute over the plaintiff's compliance with statutory duties that were part of his duties as Attorney General. The court emphasized that individuals assuming that office immediately become responsible for those duties and that the dispute over the plaintiff's fulfillment of his duties was not hypothetical or prospective. Brown, therefore, stands for the unremarkable proposition that, when state officers seek judicial declarations regarding their duties, the statutory responsibilities of their office provide the present facts necessary for a justiciable controversy and, when such a controversy is present, a court only has limited discretion to decline to adjudicate it. Nothing in Brown, however, compels the conclusion that it was legal error for the Tax Court to confine its judgment in this case to the actual controversy between the parties.

As Brown demonstrates, Oregon courts are accorded some discretion in fashioning a judgment under the declaratory judgment statute. See id. at 451 (courts have some discretion in granting declaratory judgments). Historically, in declaratory judgment cases involving the constitutionality of a statute, the discretion accorded a court in its adjudicative function has been guided, in part, by the view that courts should avoid making "constitutional decisions until issues are presented with clarity, precision and certainty[.]" Rawls, 276 Or at 1107 (internal quotation marks and citation omitted). The underpinnings of that form of judicial restraint were expressed by this court in Oregon Cry. Mfgs. Ass'n v. White, 159 Or 99, 109, 78 P2d 572 (1938), as follows:

"Deciding hypothetical cases is not a judicial function. Neither can courts, in the absence of constitutional authority, render advisory opinions. A declaratory judgment has the force and effect of an adjudication. Hence, to invoke this extraordinary statutory relief there must be an actual controversy existing between parties. Particularly should this be so when a court is asked to declare that a co-ordinate branch of government has exceeded its power by passing a statute in violation of the fundamental or basic law. No court should declare an act unconstitutional unless it is necessary to do so."

(Emphasis added; citation omitted.)

Here, with regard to pay-per-view events originating in Oregon, plaintiff presented only a tentative -- and hence, uncertain -- constitutional claim to the Tax Court. Nothing in the record indicated that plaintiff ever had broadcast a pay-per-view boxing or wrestling event from Oregon, made plans to do so, or even considered such an enterprise. Thus, it was unnecessary in this case for the Tax Court to rule on the constitutionality of the statute in that respect. The fact that plaintiff labeled and argued its claim as a facial challenge to the statute did not prohibit the Tax Court from adjudicating only the more narrow and actual constitutional controversy between the parties. We hold that the Tax Court did not err in limiting its judgment accordingly.

Plaintiff also asserts that the Tax Court erred as a matter of law by issuing a final judgment that was significantly narrower than its summary judgment order. Plaintiff contends that the Tax Court's summary judgment ruling invalidated the tax with respect to both in-state and out-of-state telecasts, a decision that the final judgment should have reflected. However, that assertion is not borne out in the text of the Tax Court's summary judgment order. As we noted above, the Tax Court expressly predicated its order on the fact that plaintiff's boxing matches all had originated outside Oregon, i.e., beyond the state's regulatory jurisdiction. To the extent that plaintiff argues that an inconsistency exists between the Tax Court's summary judgment order and its final judgment, that argument is not correct. (6)

Finally, plaintiff also contends that the Tax Court erred when it denied plaintiff's motion for attorney fees and costs. Plaintiff first reiterates its argument that defendants acted without a reasonable basis in fact or in law. ORS 182.090(1). We disagree. The fact that an agency's position on a matter is legally incorrect does not make it unreasonable as a matter of law. McKean-Coffman v. Employment Div., 314 Or 645, 649-50, 842 P2d 380 (1992). See also Market Transport v. Maudlin, 301 Or 727, 742, 725 P2d 914 (1986) (where correct application of law to the facts at hand was unclear, court could not state that agency's order lacked reasonable basis in law or fact).

In this case, plaintiff raised an issue of first impression in this jurisdiction. Although it is true that other jurisdictions had addressed similar issues, those decisions were not binding precedent in Oregon and, therefore, did not establish that defendants acted unreasonably in the face of settled law. Moreover, in the course of enforcing the tax, defendants' relied -- as they were entitled to do -- on the advice of the Attorney General. As this court noted in State ex rel. v. Mott, 163 Or 631, 640, 97 P2d 950 (1940):

"Officers acting in good faith have a right to rely on the opinion of the attorney general, as he is the officer designated by law to render such service for their guidance and protection."

If the law were otherwise, few administrators would care to assume responsibility for rendering hard decisions in matters like the one presented here. Plaintiff has not demonstrated that defendants' enforcement of the tax in this instance lacked a reasonable basis in law or fact.

Plaintiff also argues that the Tax Court erred when it declined to exercise its inherent equitable authority to award attorney fees. Plaintiff points out that its action in this case has vindicated important First Amendment rights for all telecasters. Although plaintiff acknowledges that the Tax Court's decision has served plaintiff's own financial interests, plaintiff argues that those interests are ones shared with all affected telecasters and, therefore, not peculiar to itself. In plaintiff's view, that fact should trump the Tax Court's conclusion under Armatta, 327 Or 250, that plaintiff's own self-interest nullified its claim to equitable fees and costs.

In Armatta, however, this court wrote:

"Finally, in filing the action, the party requesting attorney fees must have been seeking to 'vindicat[e] an important constitutional right applying to all citizens without any gain peculiar to himself,' as opposed to vindicating 'individualized and different interests,' or 'any pecuniary or other special interest of his own aside from that shared with the public at large.'"

Id. at 287 (emphasis added; internal citations omitted). In this case, plaintiff and the assorted telecasters that it purports to represent are not "all citizens"; neither is it likely that their numbers would allow them to pass for a significant part of the "public at large." Plaintiff also has secured for itself a special (and substantial) pecuniary interest not shared with the general public. See Dennehy v. Dept. of Rev., 308 Or 423, 427 781 P2d 346 (1993) (personal pecuniary interest disqualified moving party from award of attorney fees under court's inherent equitable authority to award attorney fees). Under Armatta and Dennehy, the Tax Court did not err in declining to award equitable attorney fees and costs to plaintiff.

The judgments of the Tax Court are affirmed.

1. ORS 463.113 created the Oregon State Boxing and Wrestling Commission as part of the Department of State Police. As a result, the Superintendent of State Police plays various roles in the functions of the commission including, among other things, appointing the commission's five members. See ORS 463.125 (so stating).

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2. ORS 463.320(3) provides:

"Any person licensed under this chapter who holds the distribution rights of a closed circuit telecast of a boxing or wrestling event that occurs within or outside this state and who sells the rights to a cable system operator in this state shall within 30 days after the telecast event:

"(a) File with the superintendent a written report on a form provided by the superintendent. The report shall include the number of orders sold by the cable system operator to its customers in this state and the face value of those orders.

"(b) Pay a tax equal to six percent of the face value of the orders sold by the cable system operator to its customers in this state. The person shall pay the tax by cashier's check or money order payable to the department and attached to the report required under paragraph (a) of this subsection."

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3. ORS 182.090 provides:

"(1) In any civil judicial proceeding involving as adverse parties a state agency, as defined in ORS 291.002, and a petitioner, the court shall award the petitioner reasonable attorney fees and reasonable expenses if the court finds in favor of the petitioner and also finds that the state agency acted without a reasonable basis in fact or in law.

"(2) Amounts allowed under this section for reasonable attorney fees and expenses shall be paid from funds available to the state agency. The court may withhold all or part of the attorney fees from any award to a petitioner if the court finds that the state agency has proved that its action was substantially justified or that special circumstances exist which make the award of all or a portion of the attorney fees unjust.

"(3) As used in this section, 'civil judicial proceeding' means any proceeding, other than a criminal proceeding as defined in ORS 131.005(7), conducted before a court of this state."

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4. In Swett v. Bradbury, 335 Or 378, 389, 67 P3d 391 (2003), decided after the Tax Court issued its decision in this case, this court concluded that the requirement that the proceeding be one in equity was of "limited utility" in determining whether to award attorney fees.

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5. ORS 180.220 enumerates the powers and duties of the Department of Justice, the agency headed by the Attorney General. Among them is the responsibility for all legal business of state agencies requiring the services of an attorney.

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6. Because we do not find plaintiff's factual predicate for its argument to be well taken, we need not, and do not, address the merits of plaintiff's legal theory that a trial court's final judgment must mirror any interlocutory order awarding summary judgment.

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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
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[.]"
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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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