S50085 Kain v. Myers

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 03/06/2003

Filed: March 6, 2003

IN THE SUPREME COURT OF THE STATE OF OREGON

KRIS KAIN,
TRICIA BOSAK, and TIM NESBITT,

Petitioners,

HARDY MYERS,
Attorney General,
State of Oregon,

Respondent.

(SC S50085)

On petition to review ballot title.

Submitted on the record February 24, 2003.

Margaret S. Olney, of Smith, Gamson, Diamond & Olney, Portland, filed the petition for petitioners.

David F. Coursen, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With him on the answering memorandum were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

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

GILLETTE, J.

Ballot title referred to Attorney General for modification.

GILLETTE, J.

This ballot title review proceeding brought under ORS 250.085(2) concerns the Attorney General's certified ballot title for a proposed initiative measure that the Secretary of State has denominated as Initiative Petition 23 (2004). The proposed measure, if adopted, would amend the Oregon Constitution by adding a section forbidding use of a public payroll system "to collect or to help collect political funds" and imposing consequences on any entity that uses money collected for it through the public payroll system "for a political purpose."

Petitioners are electors who timely submitted written comments to the Secretary of State concerning the content of the Attorney General's draft ballot title and who therefore are entitled to seek review of the resulting certified ballot title in this court. See ORS 250.085(2) (stating that requirement). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035(2). ORS 250.085(5). For the reasons that follow, we conclude that it does not.

The Attorney General certified the following ballot title for Initiative Petition 23:

"AMENDS CONSTITUTION: PROHIBITS COLLECTING
PUBLIC EMPLOYEE PAYROLL DEDUCTIONS FOR
ORGANIZATIONS USING DEDUCTED FUNDS FOR
'POLITICAL PURPOSES' (DEFINED)

"RESULT OF 'YES' VOTE: 'Yes' vote prohibits organizations using money collected through automatic public employee payroll deductions for 'political purposes' (as defined) from receiving any deducted money in future.

"RESULT OF 'NO' VOTE: 'No' vote retains current law, rejects proposed prohibition against receiving public employee payroll-deducted money, for organizations using such money for 'political purposes' (as defined).

"SUMMARY: Amends Constitution. Current law allows public employees to pay union dues, insurance premiums, other obligations by payroll deductions; unions cannot require political contributions. Measure prohibits union or other organization receiving money collected through voluntary public employee payroll deductions from using collected money for 'political purposes.' Permanently prohibits organization that uses or commingles any portion of money collected from public employees through payroll deductions for 'political purpose' from receiving future payroll deductions for any use. 'Political purpose' includes: direct, in-kind, indirect contributions to candidate, committee, party; expenditures to support or oppose public office candidate or ballot measure, collect, solicit, or discourage ballot measure petition signatures; does not include lobbying, but does include communication identifying any public-office candidate within 60 days of election. Other provisions."

Petitioners challenge the caption, the "yes" vote result statement, and the "no" vote result statement in the Attorney General's certified ballot title. (They have no quarrel with the summary.) However, it is fair to say that those challenges proceed in the main from a common premise, which petitioners state as follows:

"Under the [proposed measure], a public employee who wishes to use payroll deductions to make payments to any organization that engages in political activity cannot do so. This limitation is separate and distinct from the limitation placed on organizations that receive payments or contributions from public employees through payroll deduction. In fact, thousands of Oregon public employees use payroll deduction to make payments that are expressly designated for political activity. They would lose that right [under the proposed measure]."

With the foregoing premise in mind, we consider petitioners' challenges to the various parts of the Attorney General's certified ballot title for Initiative Petition 23 (2004).

CAPTION

The caption of a certified ballot title shall contain a statement of not more than 15 words "that reasonably identifies the subject matter of the state measure." ORS 250.035(2)(a). (1) As noted, the caption of the Attorney General's certified ballot title for Initiative Petition 23 (2004) states:

"AMENDS CONSTITUTION: PROHIBITS COLLECTING
PUBLIC EMPLOYEE PAYROLL DEDUCTIONS FOR
ORGANIZATIONS USING DEDUCTED FUNDS FOR
'POLITICAL PURPOSES' (DEFINED)"

Petitioners assert that the Attorney General's caption fails to comply with the statutory standard in three respects. First, they assert that the Attorney General has written the caption in the passive voice and that, so written, it is "confusing." We do not agree with petitioners' "passive voice" premise; we therefore do not address that argument further.

Second, petitioners assert that use of the phrase "prohibits collecting public employee payroll deductions" focuses on, and makes it appear as if the proposed measure focuses on, activities of public employers when, in fact, the entire measure is aimed at the activities of those who receive the money so collected. We agree with that criticism. The true focus of the proposed measure -- its true "subject" -- is what organizations who receive money from payroll deductions may do with those deductions. The proposed measure's answer to that question is categorical: The deductions may not be used for "political purposes," as the proposed measure uses that term, or commingled with other funds that will be used for "political purposes." It follows that, as written, the caption does not comply substantially with the requirement of ORS 250.035(2)(a) that it state "the subject matter" of the proposed measure. The ballot title must be modified. We therefore refer it to the Attorney General for modification. See ORS 250.085(8) (permitting that disposition).

Although it does not affect our disposition of the issue respecting the caption, we also take note of petitioners' third argument. Petitioners argue that the proposed measure will put an end to the right that public employees presently have to make contributions to their unions through payroll deduction with the specific authorization to those unions to use some of the money so collected for political purposes. See ORS 292.055 (authorizing payroll deduction to be paid to labor organization). We agree with petitioners that the proposed measure categorically puts an end to that practice. We do not agree, however, that the Attorney General's caption violates the statute because it does not include that information. It might be more completely accurate to do so and the Attorney General may consider doing so on referral. However, given the statutory 15-word limitation in which the caption must identify the proposed measure's subject, the failure to mention an aspect of the measure that has a particular effect on the union members' rights does not necessarily make the caption invalid.

"YES" VOTE RESULT STATEMENT

The "yes" vote result statement is to be 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)(b). As noted, the "yes" vote result statement of the Attorney General's certified ballot title for Initiative Petition 23 states:

Petitioners have two objections to the Attorney General's "yes" vote result statement. First, they assert that, whether or not the matter must be mentioned in the caption, the fact that adopting the proposed measure will put an end to the ability of state employees to make payroll deduction contributions to their unions (and, necessarily, to any organization that receives money through a payroll deduction and then devotes any of its resources to a "political purpose") must be included in the "yes" vote result statement because it would be a direct result of adopting the proposed measure.

We agree. The only way that the result that petitioners describe could not occur would be for unions to give up political activity -- a contingency well outside the realm of reason. The Attorney General's "yes" vote result statement should have referred to that result. Because it did not, it fails to comply substantially with the requirement of ORS 250.035(2)(b) and also must be modified.

Petitioners also assert that the use of the word "automatic" in the Attorney General's "yes" vote result statement is misleading, because the point is not whether a deduction of the kind that the proposed measure would forbid occurs automatically from time to time, or occurs only once or sporadically. Rather, the point is that certain kinds of deductions would be forbidden. Again, we agree. The word "automatic" should not be used in the modified "yes" vote result statement.

"NO" VOTE RESULT STATEMENT

The "no" vote result statement is to be a "simple and understandable statement of not more than 25 words that describes the result if the state measure is rejected." ORS 250.035(2)(c). As noted, the "no" vote result statement of the Attorney General's certified ballot title for Initiative Petition 23 states:

Petitioners assert two objections to the Attorney General's "no" vote result statement. First, they object that the statement mentions "current law," but fails to explain what current law is. It follows, they assert, that that reference is devoid of content and either should be explained further or eliminated. We agree with petitioners that, however justified a reference to "current law" might be in other ballot titles, the phrase in question has no substance in the context of the present proceeding. Including the reference does not "describe[] the result if the state measure is rejected."

Petitioners further argue that the Attorney General's "no" vote result statement is not "simple and understandable," as the statute commands, but is, instead, "extremely difficult to understand." We agree with petitioners that the statement is not understandable, because it provides no new information to the reader. Instead, it simply attaches the word "rejects" to the same summary of the proposed measure that appeared in the "yes" vote result statement. That is, the substantive message of the Attorney General's "no" vote result statement is that "'no' rejects 'yes'." That is not a sufficient explanation to meet the requirement of ORS 250.035(2)(c). We hold that the Attorney General's "no" vote result statement fails substantially to comply with the requirement of ORS 250.035(2)(c). On referral, the Attorney General shall modify it.

In summary, we hold that the Attorney General's certified ballot title for Initiative Petition 23 (2004) fails substantially to comply with the requirements of ORS 250.035(2)(a), (b), and (c). The ballot title is referred to the Attorney General for modification. See ORS 250.085(8) (authorizing that procedure).

Ballot title referred to Attorney General for modification.

1. The caption for an initiated measure that would amend the Oregon Constitution is to begin with the phrase, "Amends Constitution," which two words do not count toward the 15-word limitation. ORS 250.035(2)(a).

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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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