S50351 Nibler v. Dept. of Transportation

SUPREME COURT CASES

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State: Oregon

Docket No: CC0212-12262;SCS50351

Case Date: 02/03/2005

FILED: February 3, 2005

IN THE SUPREME COURT OF THE STATE OF OREGON

CURT NIBLER,
as Personal Representative of the Estate of Laura Nibler,

Plaintiff-Adverse Party,

OREGON DEPARTMENT OF TRANSPORTATION
and OREGON DEPARTMENT OF STATE POLICE,
Departments of the State of Oregon,

Defendants-Relators.

(CC 0212-12262; SC S50351)

En Banc

Original proceeding in mandamus.*

Argued and submitted September 9, 2004.

Janet A. Metcalf, Assistant Attorney General, Salem, argued the cause for defendants-relators. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Jonathan M. Friedman, Portland, argued the cause and filed the brief for the plaintiff-adverse party.

Maureen Leonard, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.

CARSON, C.J.

Peremptory writ of mandamus to issue.

*On petition for writ of mandamus from an order of Multnomah County Circuit Court, Nely L. Johnson, Judge.

CARSON, C.J.

The issue in this original mandamus proceeding is whether defendants-relators, the Oregon Department of Transportation and the Oregon Department of State Police (defendants), are entitled to a peremptory writ of mandamus requiring the trial court to change venue in the underlying negligence action from Multnomah County to Washington County. We conclude that defendants are entitled to that relief and, accordingly, direct the issuance of a peremptory writ.

The relevant facts are few and undisputed. Plaintiff-adverse party (plaintiff) and his wife were involved in an automobile accident in Washington County that resulted in his wife's death. As personal representative of his wife's estate, plaintiff filed an action against defendants in Multnomah County, alleging negligence in a number of respects. Defendants responded with a motion that, for our purposes here, argued that ORS 14.060, set out post, required venue in Washington County, where the accident had occurred. (1) The trial court denied the motion to change venue, and we allowed defendants' mandamus petition challenging that ruling and issued an alternative writ.

ORS 14.060, the statute upon which defendants rely, provides:

"Any suit against any department, official, officer, commissioner, commission or board of the state, as such, or in [sic] virtue of such status, other than a suit for the causes enumerated in ORS 14.040, may be brought in the county wherein the cause of suit, or some part thereof, arose." (2)

The parties dispute the meaning of ORS 14.060 and, particularly, the effect of the legislature's use of the ordinarily permissive word "may" in that statute. Before addressing those arguments, however, we first consider whether ORS 14.060 applies to plaintiff's action at all.

By its plain terms, ORS 14.060 applies to "any suit" that falls within the scope of that statute. In legal parlance, the word "suit" most specifically is used to refer to proceedings in equity, which plaintiff's action is not. See, e.g., Giant Powder Co. v. Oregon W. Ry. Co., 54 Or 325, 327, 101 P 209, 103 P 501 (1909) ("An 'action' is a proceeding at law to enforce a private right or to redress a private wrong * * *; but in equity the compulsion for that purpose is known as a 'suit[.]'" (internal citations omitted)). The legal usage of that word, however, is by no means always that specific. See, e.g., Thorp v. Rutherford, 150 Or 157, 163, 43 P2d 907 (1935) ("Text[-]writers and courts sometimes use the word[s] 'suit' and 'action' as synonymous."). Thus, the question here is: what meaning did the legislature intend by using the word "suit" in ORS 14.060?

A casual reading of the venue statutes in ORS chapter 14 suggests a legislative intent for the more specific usage. Compare ORS 14.050 and ORS 14.080 (referring to "actions") with ORS 14.060 (referring to "suits") and ORS 14.030 and ORS 14.040 (referring to "any cause of action or suit" and "actions and suits," respectively). The evolution of ORS 14.060 over time supports that view as well. See Krieger v. Just, 319 Or 328, 336, 876 P2d 754 (1994) ("[W]ording changes adopted from session to session are a part of context of the present version of the statute being construed."). As originally enacted in 1939, ORS 14.060 began with the phrase "[a]ny suit in equity * * *." Or Laws 1939, ch 284, § 1, codified as OCLA § 9-109 (1940). Although the legislature condensed that introductory phrase to its present form by eliminating the words "in equity" when it enacted the Oregon Revised Statutes in 1953, compare OCLA § 9-109 (1940), with ORS 14.060 (1953), the legislature, as a general matter, did not intend to make any substantive changes in the law when it created Oregon's present statutory scheme. See ORS 174.550 (so providing).

The foregoing contextual review, standing alone, strongly suggests that the legislature intended ORS 14.060 to apply to only suits in equity and not also to actions at law, such as plaintiff's case. There is, however, more. In 1979, as part of its adoption of the Oregon Rules of Civil Procedure, the legislature, through ORCP 2, largely abolished the procedural distinctions between law and equity practice. ORCP 2 provides:

"There shall be one form of action known as a civil action. All procedural distinctions between actions at law and suits in equity are hereby abolished, except for those distinctions specifically provided for by these rules, by statute, or by the Constitution of this state."

Additionally, and more importantly for our purposes, the legislature also enacted ORS 174.590 that same year, providing:

"References in the statute laws of this state, including provisions of law deemed to be rules of court as provided in ORS 1.745, in effect on or after January 1, 1980, to actions, actions at law, proceedings at law, suits, suits in equity, proceedings in equity, judgments or decrees are not intended and shall not be construed to retain procedural distinctions between actions at law and suits in equity abolished by ORCP 2."

Or Laws 1979, ch 284, § 5. This court long has held that statutory venue provisions are procedural in nature. See, e.g., Mutzig v. Hope, 176 Or 368, 385, 158 P2d 110 (1945) ("By the overwhelming weight of authority, statutes relating to venue are held to be procedural merely, and not jurisdictional in the strict sense."). The question that remains, however, is whether, by retaining the words "suits" and "actions" in the venue statutes in ORS chapter 14, the legislature intended to signal a specific intent to provide for a distinction between law and equity in those statutes under the exception to ORCP 2. See ORCP 2 (abolishing procedural distinctions between actions at law and suits in equity, except for "those distinctions specifically provided for by these rules, by statute, or by the Constitution of this state"). As explained below, we conclude that it did not.

Because the legislature has directed both (1) that statutory references to "actions" and "suits" are not intended to retain procedural distinctions between actions at law and suits in equity abolished by ORCP 2, see ORS 174.590 (so providing), and (2) that those distinctions remain where "specifically provided for * * * by statute," see ORCP 2 (so providing), the statutory context of references to "actions" and "suits" has particular importance in discerning the legislature's intent in using those terms. In Ben Rybke Co. v. Royal Globe Insurance Co., 293 Or 513, 520, 520 n 5, 651 P2d 138 (1982), for example, this court concluded that ORCP 2 did not abolish the distinction between actions at law and suits in equity under former ORS 19.125 (1981), renumbered as ORS 19.415 (1997), (3) which provided for the application of de novo review only in appeals from "a decree in a suit in equity." In that case, despite the direction in ORS 174.590, it was clear that the legislature had intended for the statutory reference to "suit in equity" to retain its specific legal meaning because a contrary reading would lead to the absurd result that that statute had provided for two standards of appellate review without providing any basis for determining which of those standards applies in a particular instance.

The application of ORS 174.590 to the venue statutes in ORS chapter 14, by contrast, yields no such absurdity and, indeed, completes those statutes. As discussed in more detail below, __ Or at __ (slip op at 9), the "catch-all" venue statute, ORS 14.080(1), refers to only "actions." See ORS 14.080(1) (so providing). Thus, if the statutory references to "suits" and "actions" in the venue statutes in ORS chapter 14 were construed to retain their specific legal meanings, then ORS 14.080(1) would apply to only actions at law, and a gap would exist for suits in equity not fitting within the specific categories of the other venue statutes.

Based upon that context, the impact of ORS 174.590 on ORS 14.060 appears clear to us: by its enactment of ORS 174.590 in 1979, the legislature directed courts to read the words "suit" and "cause of suit" in ORS 14.060 so as to not draw precisely the distinction between legal and equitable proceedings that the legislature in 1939 had contemplated. Effectively, then, we must replace those words with the "one form of action" that ORCP 2 does provide, namely, a "civil action." So construed, ORS 14.060 applies to plaintiff's negligence action against defendants.

Having determined the applicability of ORS 14.060, we next proceed to consider whether that statute requires -- or, instead, simply permits -- plaintiff to maintain his action against defendants "in the county wherein the [civil action], or some part thereof, arose." The parties offer competing interpretations of the legislature's use of the word "may" in ORS 14.060. See ORS 14.060 ("Any suit * * * may be brought * * *."). Defendants argue that, when considered in historical context, concerns over the implicit waiver of sovereign immunity explain the legislature's use of the word "may." Specifically, defendants contend:

"If [ORS 14.060] had used 'shall,' and had provided that any suit against a state department, official, officer, agency, or board 'shall be brought in the county wherein the cause of suit, or some part thereof, arose,' there would have been a serious risk that 'shall' might have been taken as a signal that the state was impliedly waiving its sovereign immunity. Using 'may' instead was only prudent, given the tenor of the times [which defendants describe as an 'era of scholarly and judicial hostility to the concept of state sovereign immunity']."

According to defendants, viewed in that light, the word "may" indicates only that, if a civil action against the state and its subdivisions can be brought at all, then it may be brought in the county in which the cause of action arose.

Although ably advanced, defendants' sovereign immunity theory is subtle to the point that we do not think it a plausible explanation for the legislature's choice of wording. We, therefore, turn to consideration of plaintiff's theory.

Aided by amicus curiae Oregon Trial Lawyers Association, plaintiff contends that, by applying the principles of statutory construction announced in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993), this court should assign the word "may" in ORS 14.060 its ordinary permissive meaning. See id. at 611 ("[W]ords of common usage typically should be given their plain, natural, and ordinary meaning."). According to plaintiff, if the word "may" is construed in that manner, then ORS 14.060 grants plaintiff the discretion either to file the action in the county where the claim arose or to elect, instead, to proceed under ORS 14.080(1), the "catch-all" venue statute. ORS 14.080(1) provides, in part:

"All other actions shall be commenced in the county in which the defendants, or one of them, reside at the commencement of the action or in the county where the cause of action arose. A party resident of more than one county shall be deemed a resident of each such county. If none of the defendants reside in this state the action may be commenced in any county."

(Emphasis added.) Because, in plaintiff's view, the state resides in every county, the county of venue is his to choose.

We begin by observing that the word "may" ordinarily denotes permission or the authority to do something. See Webster's Third New Int'l Dictionary 1396 (unabridged ed 2002) (defining the word "may" as meaning, in part, to "have permission to * * *: have liberty to"); see also, e.g., Martin v. City of Tigard, 335 Or 444, 452, 72 P3d 619 (2003) ("The ordinary meaning of the word 'may' is 'have liberty to.'" (internal citation omitted)). Applying that definition here, we agree with plaintiff that ORS 14.060 grants him statutory authority to file his action in the county where his claim arose.

That conclusion, however, does not mean that ORS 14.060 also grants plaintiff authority to elect to proceed under a different statute. This court's decision in Hubner v. Hubner, 67 Or 557, 136 P 667 (1913), illustrates that point. In that case, the husband had brought a dissolution of marriage proceeding against his wife in Clackamas County, despite the fact that both parties resided in Multnomah County. The venue statutes at that time were, in many respects, the same as they are today, see id. at 559-60, with specific provision having been made for venue in marital dissolution cases: "[I]n any suit for the dissolution of the marriage contract the same may be commenced and tried in any county of this state in which either party to the suit resides." Id. at 560 (referring to Lord's Oregon Laws, title VI, ch I, § 396 (1910) (emphasis added)). In construing that quoted wording, the court held that, because the statute conferred the right to commence a marriage dissolution proceeding only in a county where one of the parties resides, it followed that "a person has no right to commence a suit for divorce in a county in which neither party resides." Id.

So it is, we conclude, with respect to the legislature's use of "may" in ORS 14.060. ORS 14.060, and no other statute, grants a plaintiff statutory authority to file an action against the state and its subdivisions in a particular county. (4) Although ORS 14.080(1) applies to "[a]ll other actions[,]" an action subject to ORS 14.060 necessarily is not an "other" action. The trial court, therefore, erred in denying defendants' motion to change venue from Multnomah County to Washington County. A writ directing the trial court to vacate that order and to enter an order granting the motion shall issue.

Peremptory writ of mandamus to issue.

1. Defendants' legal theory has evolved somewhat over the course of the proceedings. That variation, however, does not impede our ability to decide the questions of statutory construction that this case presents. See Newport Church of the Nazarene v. Hensley, 335 Or 1, 16, 56 P3d 386 (2002) (once issue of construction of statute properly is presented, meaning is for court to decide).

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2. ORS 14.040, to which ORS 14.060 refers, provides:

"Actions and suits for the following causes shall be commenced and tried in the county in which the subject of the action or suit, or some part thereof, is situated:

"(1) Actions for the recovery of real property, or an estate or interest therein, or for injuries to real property.

"(2) Actions for the recovery of any personal property distrained for any cause.

"(3) Suits for the partition of real property.

"(4) Suits for the foreclosure of a lien or mortgage upon real property.

"(5) Suits for the determination of an adverse claim, estate, or interest in real property, or the specific performance of an agreement in relation thereto."

No party asserts that ORS 14.040 applies to the facts of this case, and we agree that it does not.

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3. Former ORS 19.125 (1981), renumbered as ORS 19.415(3) (1997), provided:

"(1) Upon an appeal from a judgment in an action at law, the scope of review shall be as provided in section 3, Article VII (Amended) of the Oregon Constitution.

"(2) No judgment shall be reversed or modified except for error substantially affecting the rights of a party.

"(3) Upon an appeal from a decree in a suit in equity, the Court of Appeals shall try the cause anew upon the record.

"(4) When the Court of Appeals has tried a cause anew upon the record, the Supreme Court may limit its review of the decision of the Court of Appeals to questions of law."

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4. We note that a different statute governs venue for actions against public officers and those specially appointed to execute the duties of a public officer or who act at the command or in aid of a public officer. ORS 14.050(2) provides that such actions "shall be commenced and tried in the county where the cause, or some part thereof, arose."

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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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