S49963 City of Nyssa v. Dufloth/Smith

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 09/29/2005

FILED: September 29, 2005

IN THE SUPREME COURT OF THE STATE OF OREGON

CITY OF NYSSA,

Respondent on Review,

SALLY A. DUFLOTH,

Petitioner on Review.

CITY OF NYSSA,

Respondent on Review,

DUANE L. SMITH,

Petitioner on Review.

(CC A00080112, A00080111; CA A113180 (control), A113181; SC S49963)

On review from the Court of Appeals.*

Argued and submitted November 3, 2003.

Laura Graser, Portland, argued the cause and filed the brief for petitioners on review.

James N. Westwood, of Stoel Rives LLP, Portland, argued the cause and filed the brief for respondent on review. With him on the brief was Gary Kiyuna, of Stunz, Fonda, Kiyuna & Horton, Nyssa.

Bradley J. Woodworth and Lake James Perriguey, of Bradley J. Woodworth & Associates, PC, Portland, filed the briefs for amicus curiae Association of Club Executives.

James K. Neill and Jennifer Williamson, of Davis Wright Tremaine LLP, Portland, filed the briefs for amicus curiae Danzine.

Chin See Ming and Julia E. Markley, of Perkins Coie LLP, Portland, filed the brief for amici curiae ACLU Foundation of Oregon, Inc. and White Bird.

Carmel E. Bender, Portland, filed the brief for amicus curiae Lola Greene Baldwin Foundation for Recovery.

Robert M. Atkinson, Assistant Attorney General, Salem, filed the brief for amicus curiae State of Oregon.

Tracy Pool Reeve, Senior Deputy City Attorney, City Attorney's Office, Portland, filed the brief for amici curiae City of Portland and the League of Oregon Cities. With her on the brief was Christy K. Monson, Salem.

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

GILLETTE, J.

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

De Muniz, J., dissented and filed an opinion.

*Appeal from Malheur County Circuit Court, Rodney W. Miller, Judge. 184 Or App 631, 57 P3d 161 (2002).

**Kistler, J., did not participate in the consideration or decision of this case.

GILLETTE, J.

In this criminal case, the defendants, owners of a nude dancing club, were convicted of violating a local ordinance that required, among other things, that entertainers at such clubs remain at least four feet away from the patrons. Defendants appealed their convictions to the Court of Appeals, arguing that the ordinance was facially unconstitutional as an unlawful restraint on expression in violation of Article I, section 8, of the Oregon Constitution. (1) A divided, en banc Court of Appeals affirmed the ruling of the lower court. City of Nyssa v. Dufloth/Smith, 184 Or App 631, 57 P3d 161 (2002). We allowed review and, for the reasons set out below, now reverse the decision of the Court of Appeals.

The pertinent facts are not in dispute. Defendants are the owners and managers of "Miss Sally's Gentlemen's Club" in the City of Nyssa. The club features nude female dancers. The club admits patrons 18 years of age and older and does not serve alcohol.

In February 2000, a police officer responded to a complaint at the club and, upon entering, saw a nude dancer kneeling against a barrier surrounding the stage, shaking her hair in a patron's face. The dancer was less than a foot away from the patron. The officer arrested defendants for violating a section of the Nyssa City Code (NCC), which provides, (2) in part:

"5.10.130: Every adult concession shall comply with the following standards of operation and the following standards of conduct must be adhered to by employees and entertainers of all adult concessions:

"* * * * *

"(17) No entertainer is permitted to be unclothed or in less than opaque and complete attire, costume or clothing, so as to expose to view any portion of the pubic region, buttocks, genitals, vulva, or anus, except removed at least four feet (4') from the nearest patron." (3)

The Nyssa Municipal Court convicted both defendants of violating that city code provision. Defendants appealed those convictions to the Malheur County Circuit Court, where they demurred to the charges, asserting that the city ordinance is an unconstitutional restriction on expression. The circuit court denied the demurrers, conducted a trial de novo, convicted defendants of the violations, and fined them each $185. Defendants appealed their convictions to the Court of Appeals.

In the Court of Appeals, defendants argued that the city's ordinance requiring entertainers in "live adult entertainment establishments" to remain four feet away from patrons impermissibly restricts expression in violation of Article I, section 8, of the Oregon Constitution and, therefore, that the circuit court erred in denying their demurrers. The city countered that the Court of Appeals recently had decided, in State v. Ciancanelli, 181 Or App 1, 45 P3d 451 (2002), that nude dancing is not protected expression under the state constitution. The city also argued that the ordinance at issue is not an impermissible restriction on expression because it does not prevent or interfere with the dancers' message; rather, the ordinance is directed at preventing sexual activity and, to that end, merely imposes a reasonable restriction on conduct. Finally, the city argued that the ordinance did not restrict speech at all, but only restricted conduct.

The Court of Appeals majority concluded that it need not decide whether the ordinance in this case restricts expression or is aimed merely at conduct. According to the majority, even if the ordinance were directed at expression, the ordinance is not unconstitutional, because nude dancing is not expression protected under Article I, section 8, of the Oregon Constitution. In reaching that conclusion, the Court of Appeals agreed with the city that the court's earlier decision in Ciancanelli was dispositive.

In Ciancanelli, the defendants were convicted of, among other things, violating a state statute, ORS 167.062(3), which makes it a crime to "direct, manage, finance or present a live public show in which the participants engage in * * * sexual conduct." The defendants in that case had argued that that statute is unconstitutional because it is directed, by its terms, at expression.

In its opinion affirming the defendants' convictions in Ciancanelli, the Court of Appeals considered the constitutionality of the statute in light of this court's opinion in State v. Robertson, 293 Or 402, 649 P2d 569 (1982). In Robertson, this court explained that Article I, section 8, contains a broad prohibition –- "No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever," together with an exception –- "but every person shall be responsible for the abuse of this right." According to the court in Robertson, that prohibition "forecloses the enactment of any law written in terms directed to the substance of any 'opinion' or any 'subject' of communication." Robertson, 293 Or at 412. However, also according to the court, the sweeping prohibition set out in Article I, section 8, contains an exception for certain kinds of restrictions on expression. Under that exception, a law would survive a constitutional challenge if "the scope of the restraint [on expression] is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach." Id.

Using that analytical framework for analyzing Article I, section 8, cases, the Court of Appeals in Ciancanelli reviewed the line of laws and cases dating back to the seventeenth century dealing with public nudity and public sexual conduct, and concluded that ORS 167.062 falls within a "well-established" historical exception to the Oregon Constitution's general prohibition against laws restricting expression. Id. at 19. In light of that conclusion, the Court of Appeals held that, although the statute at issue is directed at expression, it does not violate Article I, section 8. 181 Or App at 27.

In the present case, the Court of Appeals reasoned that the city's nude dancing ordinance is, for purposes of constitutional analysis, indistinguishable from the nude dancing statute at issue in Ciancanelli. Accordingly, the court concluded that the Nyssa ordinance likewise does not violate Article I, section 8, even if it is aimed at expression. Dufloth/Smith, 184 Or App at 639.

Before this court, defendants argue that the ordinance at issue here is directed at expression and that the Court of Appeals misapplied the historical exception doctrine announced in Robertson when it concluded that laws dealing with nude dancing fall within an historical exception. Defendants argue that this court did not intend the "historical exception" to include that type of restriction on expression; rather, the historical exception includes only laws against "well-established conventional crimes," such as forgery, fraud, and perjury. The city, for its part, continues to contend that the ordinance's four-foot rule regulates unprotected conduct and not expression but that, even if the ordinance were held to restrain expression, it nonetheless either legitimately focuses on forbidden effects or falls within the historical exception from Article I, section 8, protection identified by the Court of Appeals in Ciancanelli.

This court allowed review in Ciancanelli and heard argument in that case on the same day that we heard oral argument in the present case. Our decision in State v. Ciancanelli, ___ Or ___, ___ P3d ___ (decided this date), informs our analysis in the present case. Accordingly, we briefly summarize our conclusions in Ciancanelli.

In Ciancanelli, as in the present case, the parties' arguments principally concern the correct application of the Robertson framework to the facts of the case. On review in this court in Ciancanelli, however, the state also presented an argument that the analytical origins of the Robertson framework were unsound and that this court should jettison Robertson and reexamine Article I, section 8, using the systematic approach for analyzing original provisions of the Oregon Constitution that the court described in Priest v. Pearce, 314 Or 411, 840 P2d 65 (1992). Under the Priest paradigm, the court searches for the intent of the people who drafted and adopted the original provision of the constitution. In so doing, the court examines the wording of the constitutional provision, the case law surrounding it, and the historical circumstances leading to its adoption. 314 Or at 415-16.

In Ciancanelli, this court agreed to reexamine Article I, section 8, using the Priest methodology. We chose to do so, however, not because we agreed with the state's premise respecting Robertson's shortcomings -- in fact, we did not agree with that premise -- but because the state's extensive arguments respecting Article I, section 8, focused on a part of that provision that was not central to this court's decision in Robertson. Ciancanelli, ___ Or at ___ (slip op at 11).

In our substantive analysis, we stated that Article I, section 8, announces a broad and sweeping right of an individual to free expression. As we stated in Ciancanelli, the words are so sweeping, in fact, that "it appears to us to be beyond reasonable dispute that the protection extends to the kinds of expression that a majority of citizens in many communities would dislike -- profanity, blasphemy, pornography -- and even to physical acts, such as nude dancing or other explicit sexual conduct, that have an expressive component." ___ Or at ___ (slip op at 42).

Analysis of the second part of Article I, section 8, the so-called "abuse" clause, was more difficult, however. Based on the historical evidence, we noted in Ciancanelli that the framers might have intended that phrase to be construed in either of two ways: (1) to convey, on the one hand, that a legislature has full authority to punish, after the fact, any speech that it deems to be abusive; or (2) to convey, on the other hand, that a legislature may punish or interfere with expression only to the extent that the expression causes injury to the fundamental, "natural" rights of other individuals. ___ Or at ___ (slip op at 44). We further noted that, because there appeared to be no sound basis for choosing one of those possible meanings over the other, the state would have to demonstrate that Robertson is incompatible with both of those possible meanings in order to meet its burden of showing that the Robertson framework is contrary to the framers' intent. ___ Or at ___ (slip op at 45). We concluded that the state had not met and could not meet that burden, because Robertson is fully compatible with the latter, "natural rights" approach. Ultimately, we announced that we would continue to use the Robertson framework to analyze challenges brought under Article I, section 8. ___ Or at ___ (slip op at 47-48).

We now turn to the task of applying the Robertson framework to the issue before us -- namely, whether the city's four-foot ordinance violates Article I, section 8. Under that framework, we first determine whether it is a law directed by its terms at restraining or restricting speech or expression.

This court previously has considered whether laws purporting merely to restrict the manner of expression, without prohibiting expression entirely, were "directed at expression" for purposes of an Article I, section 8, analysis. In City of Portland v. Tidyman, 306 Or 174, 759 P2d 242 (1988), for example, this court addressed a zoning ordinance that required "adult" bookstores to be located at least 500 feet from any residential zone and, in some cases, at least 1,000 feet from any other adult business. The ordinance did not prohibit all adult bookstores from locating within the city limits, nor did it purport to limit the content of the printed material for sale in the stores. Nonetheless, this court held that, in light of the fact that "the same structure devoted to essentially the same kind of use, retailing reading or viewing materials or showing films, becomes a prohibited use under the ordinance simply because the quantity of 'adult' merchandise increases from a minor to a 'substantial' or 'significant' portion," id. at 181, that ordinance was "flatly directed against one disfavored type of pictorial or verbal communication." Id. at 184. Similarly, in Moser v. Frohnmayer, 315 Or 372, 845 P2d 1284 (1993), this court held that a law that prohibited the use of "an automatic dialing and announcing device to solicit the purchase of any realty, goods, or services" was directed at expression. The court held that, insofar as the law was applicable only to those messages soliciting commercial services or goods but did not apply to any other type of message, the law "restricts expression because it is directed at a specific subject of communication, excluding some speech based on the content of the message." Id. at 376. And, finally, in Ciancanelli, we held that, because the statute at issue there "prohibits and criminalizes [certain sexual] acts only when they occur in an expressive context, i.e., in a 'live public show[,]' * * * we cannot avoid the conclusion that the statute is directed primarily, if not solely, toward the expressive aspect of the conduct that it describes. That is, the statute is one restraining free expression." ___ Or at ___ (slip op at 56) (emphasis in original).

The ordinance at issue in this case provides that "[n]o entertainer is permitted to be unclothed or in less than opaque and complete attire, costume or clothing, so as to expose to view any portion of * * * [certain body parts], except removed at least four feet (4') from the nearest patron." NCC § 5.10.130(17). "Entertainer" is a defined term and means "any person who provides live adult entertainment within an adult concession." Id., § 5.10.020(5). "Live adult entertainment" means "any exhibition, performance or dance of any type which contains * * * any display of specified anatomical areas," including, among other things, less than completely or opaquely covered buttocks and breasts. Id., § 5.10.020(2)(b); § 5.10.020(13). In addition, the ordinance specifically excludes from the scope of its reach, among other things, plays, operas, musicals, classes, seminars, exhibitions and performances that are "not obscene." NCC § 5.10.150(1). Thus, by its terms, the ordinance applies only to one disfavored type of communication (nude performances) in one disfavored type of establishment (one that regularly features that type of entertainment). In that way, it is indistinguishable from the laws and ordinances at issue in Tidyman, Moser, and Ciancanelli, all of which this court held to be directed at expression. We hold that Nyssa City Code, section 5.10.130(17), restrains free expression.

Having concluded that the city's four-foot ordinance is directed by its terms at expression, we turn to consider whether it nonetheless is permissible because it is "wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach." Robertson, 293 Or at 412. As noted, the Court of Appeals concluded that the city's rule falls within the same "well-established" exception that it had found and on which it relied in its Ciancanelli decision -- an exception for laws regulating public sexual conduct. City of Nyssa, 184 Or App at 638 (citing historical exception analysis in Ciancanelli, 181 Or App at 16-19).

However, this court today has rejected the Court of Appeals' Ciancanelli decision, including its conclusion that there is a well-established historical exception within the meaning of the Robertson framework for laws regulating live public shows involving displays of nudity and sexuality. Ciancanelli, ___ Or at ___ (slip of at 58-59). (4) The city does not suggest any other basis for finding the present law to fall within a historical exception to the prohibition of Article I, section 8, and we find none.

In summary, we conclude that Nyssa City Code, section 5.10.130(17), is a law that is directed by its terms and in its actual focus on restraining a particular variety of expression, and that it does not fall within any well-established historical exception to the prohibition against such laws in Article I, section 8. It is unconstitutional on its face. Accordingly, defendants' convictions for violating the ordinance must be reversed. (5)

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

DE MUNIZ, J., dissenting

For many of the reasons expressed in my dissent in State v. Ciancanelli, 339 Or ___, ___ P3d ___ (2005), I also dissent in this case. Specifically, I would conclude, on two grounds, that the ordinance at issue in this case is not unconstitutional under the State v. Robertson, 293 Or 402, 649 P2d 569 (1983) framework. First, the ordinance does not constrain either the subject or the content of nude dancing. Limiting proximity of the dancers is simply not limiting expression.

Second, the four-foot proximity ordinance focuses legitimately on forbidden effects. The Nyssa City Council has legislatively determined that "[t]he regulation of distances at which live performances occur from the patrons [is] directed at the elimination of sexual conduct or other adverse secondary effects, unrelated to the protected expression of the performer." In my view, the proximity ordinance is tailored to address an effect (sexual conduct or harm to dancers) rather than an expression of opinion.

I therefore respectfully dissent.

1. Article I, section 8, provides:

"No 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."

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2. Since the time of defendants' arrest, the City of Nyssa has amended the applicable city code provisions in ways that do not affect our analysis in this case.

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3. "Adult concession" is defined as, among other things, a "live adult entertainment establishment." NCC § 5.10.020(1). A "live adult entertainment establishment" is defined, in turn, as:

"any building or portion of a building to which any member of the public is invited or admitted and where any employee or entertainer, on a regular basis or as a substantial part of the premises activity, conducts live adult entertainment."

NCC § 5.10.020(3). In addition, "entertainer" is defined as "any person who provides live adult entertainment within an adult concession as defined in this Section whether or not a fee is charged or accepted for entertainment." NCC 5.10.020(5).

"Live adult entertainment" means:

"any exhibition, performance or dance of any type which contains:

"* * * * *

"(b) any display of specified anatomical areas."

NCC § 5.10.020(2). Finally, "specified anatomical areas" is defined to include, among other things, less than completely or opaquely covered buttocks and breasts. NCC § 5.10.020(13).

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4. We explained in Ciancanelli that, contrary to the Court of Appeals' view, a historical exception cannot be established with respect to laws directed at regulating the portrayal of sexual matters merely by showing that similar regulations were longstanding at the time of the adoption of Article I, section 8, and continued to exist in Oregon after the adoption of that provision, if those historical criminal prohibitions were directed exclusively at protecting the hearer or the viewer from a disfavored message. Id. at ___ (slip op at 52-53, 58-59).

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5. As this court pointed out in Ciancanelli, the legislature constitutionally may enact laws designed to prohibit or punish conduct that amounts to prostitution or other criminal activity, but Article I, section 8, precludes the legislature from using limitations on speech or expression as a substitute for regulating that conduct directly. ___ Or at ___ n 31 (slip op at 58-59 n 31). In the present case, the city constitutionally can regulate such conduct as sexual contact between performers and patrons, and the fact that an individual uses speech or expression in the course of that conduct would not immunize the individual from prosecution. However, that is not what the ordinance at issue here does. The four-foot ordinance does not specifically preclude or even refer to sexual contact between performers and patrons. Rather, as discussed, it simply restrains certain kinds of expression in certain kinds of establishments.

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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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