S50999 State v. Connally

SUPREME COURT CASES

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State: Oregon

Docket No: CC000634971;CAA116517;SCS50999

Case Date: 12/15/2005

FILED: December 15, 2005

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

RICHARD MICHAEL CONNALLY,

Petitioner on Review.

(CC 000634971; CA A116517; SC S50999)

En Banc

On review from the Court of Appeals.*

Argued and submitted November 9, 2004.

Jennelle Meeks Barton, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Joanna L. Jenkins, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Harry Auerbach, Chief Deputy City Attorney, Portland, filed the brief for amicus curiae City of Portland.

KISTLER, J.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

*Appeal from Multnomah County Circuit Court, Marshall Amiton, Judge. 189 Or App 551, 77 P3d 337 (2003).

KISTLER, J.

The issue in this criminal case is whether the Portland City Code authorized police officers to inventory the contents of a closed "fanny pack" that defendant left in an impounded car. We hold that that it did and accordingly affirm the Court of Appeals decision and the trial court's judgment.

Portland Police Officer Larson was sitting in his car outside Huskey's house. Larson knew that Huskey had sold methamphetamine and that there was an outstanding warrant for Huskey's arrest. Larson saw defendant and another person drive up to Huskey's house, park, and go inside. Later, defendant, Huskey, and a third person came out of the house and got into the car. Defendant drove. A short distance from the house, Larson pulled up behind defendant's car and turned on his overhead lights. Defendant did not stop but instead drove back to Huskey's house and parked in the driveway.

Larson approached the car and placed Huskey under arrest. At that point, defendant had stepped out of the car and was standing beside it. Larson mentioned to defendant that he had failed to stop when Larson had turned on his overhead lights. Larson asked defendant for his driver license, and defendant told him that his license had been suspended. Larson confirmed defendant's statement and, in doing so, learned that defendant had an outstanding felony warrant. At that point, he handcuffed defendant and placed him under arrest.

Larson patted defendant down, found approximately $1,200 in cash on him, and put him in the back of the patrol car. (1) Larson also impounded the car because defendant's driver license had been suspended. By that time, another officer had arrived and Larson asked him to inventory the car's contents. That officer found eight bottles of pseudoephedrine in an open paper bag, two cell phones, and a police scanner. He then felt a hard object inside a ski locker (a nylon bag for holding skis) placed between the back seats. Inside the ski locker, he found a fanny pack. He opened the fanny pack and discovered small baggies of what appeared to be methamphetamine, other unused baggies, syringes, and papers with defendant's name on them.

Based on the contents of the fanny pack, the state charged defendant with possessing methamphetamine. Before trial, defendant filed a motion to suppress. He did not challenge the lawfulness of the stop, the arrest, the discovery of the pseudoephedrine bottles, or the inventory search in general. Rather, defendant challenged only the search of the fanny pack.

At a pretrial hearing on defendant's motion, the state argued that the officers properly opened the fanny pack either under the automobile exception to the warrant requirement or as part of an authorized inventory. The trial court ruled that the automobile exception did not apply, apparently because the police had impounded the car before opening the fanny pack. The court determined, however, that the officers properly opened the fanny pack pursuant to the City of Portland's inventory policy. That policy, the court explained, authorizes the police to open closed containers that are designed to hold valuables, and the fanny pack fell into that category. The court denied defendant's motion to suppress and, after a bench trial, convicted defendant of possessing methamphetamine.

The Court of Appeals affirmed without opinion. State v. Connally, 189 Or App 551, 77 P3d 337 (2003). Defendant petitioned for review, arguing that the Court of Appeals had issued conflicting opinions on this subject. Defendant contended that, in one case, the court had held that the City of Portland's inventory policy permitted the officers to open a closed container found in an impounded car but that, in another case, the court had reached a different result under Washington County's virtually identical inventory policy. Compare State v. Rutledge, 162 Or App 301, 986 P2d 99 (1999) (holding that officers could open small leather container found next to driver's seat), with State v. Ray, 179 Or App 397, 40 P3d 528 (2002) (holding that officer could not open gym bag found in vehicle). We allowed defendant's petition for review to resolve that apparent conflict.

Article I, section 9, of the Oregon Constitution prohibits unreasonable searches. (2) A warrantless search is per se unreasonable unless it falls within "one of the few specifically established and carefully delineated exceptions to the warrant requirement." State v. Snow, 337 Or 219, 223, 94 P3d 872 (2004). In this case, the officers did not have a warrant to open the fanny pack. However, the state argues on review, as it did below, that the officers properly searched the fanny pack either as part of an authorized inventory of the car's contents or pursuant to the automobile exception. Because we hold that the City of Portland's inventory policy authorized the officers to open the fanny pack, we need not decide whether the search also came within the automobile exception.

State and local governments may authorize officers to inventory the contents of an impounded car to protect the owner's property, to reduce the likelihood of false claims against the police, and to protect the safety of the officers. State v. Atkinson, 298 Or 1, 7, 688 P2d 832 (1984). The purpose of the inventory is not to discover evidence of a crime. Rather, an inventory serves civil purposes and is one type of administrative search. Nelson v. Lane County, 304 Or 97, 104, 743 P2d 692 (1987) (plurality opinion). Officers may inventory the contents of a vehicle consistently with Article I, section 9, if (1) they lawfully have impounded the vehicle and (2) they conduct the inventory pursuant to a properly authorized administrative program that limits their discretion. State v. Boone, 327 Or 307, 312-14, 959 P2d 76 (1998); Atkinson, 298 Or at 8, 10. The police may inventory the contents of containers when doing so is necessary to serve the inventory's purposes. See Atkinson, 298 Or at 10 (stating proposition); cf. State v. Keller, 265 Or 622, 629, 510 P2d 568 (1973) (opening closed fishing tackle box as part of an inventory search was unreasonable in violation of Article I, section 9).

In this case, defendant argues that the officers opened the fanny pack in violation of the terms of the Portland City Code (PCC). Initially, he contends that the PCC does not authorize officers to open any closed container that they find in an impounded car. Alternatively, he argues that, even if the PCC authorizes officers to open some closed containers, it only permits them to open closed containers in a suspect's possession. He contends that, because he did not possess the fanny pack after the officers impounded the car and its contents, the officers exceeded the scope of their authority under the PCC. (3)

In determining what the PCC authorizes, we begin with the text and context of that ordinance. See Lincoln Loan Co. v. City of Portland, 317 Or 192, 199, 855 P2d 151 (1993) (applying statutory construction methodology to municipal ordinances). Chapter 14C.10 of the PCC (4) authorizes officers to inventory both impounded vehicles and the personal property of persons taken into police custody. Section 14C.10.030 sets out the policy for inventorying impounded vehicles. With some exceptions, it authorizes officers to inventory "the contents of open containers" found throughout the vehicle. PCC 14C.10.030(C). It also provides that, "[u]nless otherwise provided in this Chapter, closed containers located either within the vehicle or any of the vehicle's compartments will not be opened for inventory purposes." PCC 14C.10.030(C)(3).

Chapter 14C.10 contains one other substantive section, PCC 14C.10.040. (5) That section provides, in part:

"A. A police officer will inventory the personal property in the possession of a person taken into police custody and such inventory will be conducted whenever:

"1. Such person will be either placed in a secure police holding room or transported in the secure portion of a police vehicle;

"* * * * *

"C. Inventories of the personal property in the possession of such persons will be conducted according to the following procedures:

"* * * * *

"2. To complete the inventory of the personal property in the possession of such person, the police officer will remove all items of personal property from the clothing worn by such person. In addition, the officer will also remove all items of personal property from all open containers in the possession of such person.

"3. A closed container in the possession of such person will have its contents inventoried only when:

"a. The closed container is to be placed in the immediate possession of such person at the time that person is placed in the secure portion of a custodial facility, police vehicle or secure police holding room;

"b. Such person requests that the closed container be with them in the secure portion of a police vehicle or a secure police holding room; or

"c. The closed container is designed for carrying money and/or small valuables on or about the person including, but not limited to, closed purses, closed coin purses, closed wallets and closed fanny packs."

PCC 14C.10.040.

Defendant argues initially that section 14C.10.030 does not authorize officers to inventory the contents of any closed container that they find in an impounded vehicle. As defendant notes, paragraph 14C.10.030(C)(3) of the PCC generally prohibits officers from opening closed containers that they find in impounded vehicles, but that paragraph also adds the following qualification: "[u]nless otherwise provided in this Chapter." Principles of statutory construction require that we give the quoted phrase meaning, if possible, and we look to the other sections in Chapter 14C.10 to determine the terms on which officers may open closed containers left in impounded vehicles. See ORS 174.010 (court should attempt to give effect to all provisions or particulars of statute when construing it); State v. Snyder, 337 Or 410, 425, 97 P3d 1181 (2004) (same).

As noted, section 14C.10.040 is the only other substantive section in Chapter 14C.10. That section authorizes officers to inventory "personal property in the possession of a person taken into police custody," PCC 14C.10.040(A), and one paragraph in that section authorizes officers to open closed containers in certain circumstances, PCC 14C.10.040(C)(3). We conclude that the phrase "[u]nless otherwise provided in this Chapter" in paragraph 14C.10.030(C)(3) refers to paragraph 14C.10.040(C)(3). The Portland City Council adopted sections 14C.10.030 and 14C.10.040 at the same time, and any other interpretation would render the phrase in paragraph 14C.10.030(C)(3), "unless otherwise provided in this Chapter," meaningless. See, e.g., Snyder, 337 Or at 425 (directing courts to avoid that result if possible).

Having concluded that paragraphs 14C.10.030(C)(3) and 14C.10.040(C)(3) authorize officers to open some closed containers that they find while inventorying the contents of an impounded vehicle, we turn to the second issue that defendant raises -- whether subparagraph 14C.10.040(C)(3)(c) authorized the officers to open the fanny pack that they found in this case. That subparagraph authorizes officers to inventory the contents of a closed container "in the possession" of a person taken into police custody when the container "is designed for carrying money and/or small valuables on or about the person including, but not limited to * * * closed fanny packs." Defendant does not dispute that the fanny pack was a container "designed for carrying money and/or small valuables." He argues, however, that the fanny pack was not in his possession when the officers inventoried its contents.

In arguing whether subparagraph 14C.10.040(C)(3)(c) authorized the officers to open the fanny pack, the parties spend much of their time debating the meaning of the word "possession." In our view, the meaning of that word is neither difficult nor, as it turns out, dispositive. "Possession" ordinarily means "the act or condition of having in or taking into one's control or holding at one's disposal." Webster's Third New Int'l Dictionary 1770 (unabridged ed 2002). That definition is broad enough to include personal property within the suspect's immediate reach as well as property under the suspect's dominion and control, a conclusion that other parts of the ordinance support. Section 14C.10.040 refers both to "possession" and "immediate possession." See PCC 14C.10.040(C) (possession); PCC 14C.10.040(C)(3)(a) (immediate possession). We understand the phrase "immediate possession" to refer to personal property that is on the suspect's person or within his or her immediate reach and the term "possession" to refer, in addition, to personal property under the suspect's dominion and control. See PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993) (use of different terms usually connotes different meanings). Put more succinctly, "possession" includes both actual and constructive possession.

That definition does not resolve the parties' dispute, however, as an examination of their arguments demonstrates. Defendant does not dispute that he possessed the fanny pack when the officers placed him under arrest. At that point, defendant was standing next to the car, and the fanny pack was inside the car under his dominion and control. Rather, defendant argues that he did not possess the fanny pack after the officers had placed him in the back of the police car and had impounded his car. At that point, he argues, "[t]he car and its contents [we]re in the physical possession and within the dominion or control of the police bureau" -- an argument that has some force.

It follows, we think, that the issue that divides the parties is not the meaning of the term "possession" but the temporal question of when, under the PCC, possession matters. Does the PCC authorize officers to inventory all the property that was in a suspect's possession when they arrested him, or does it authorize them to inventory only the property that remains in the suspect's possession after they impound his or her car? In answering that question, we turn again to the text and context of the PCC.

Subsection 14C.10.040(A)(1) directs the police to "inventory the personal property in the possession of a person taken into police custody * * * whenever * * * [s]uch person will be either placed in a secure holding room or transported in the secure portion of a police vehicle." Temporally, the phrase in the independent clause "property in the possession of a person taken into police custody" refers to property that the person possesses when the police take that person into custody. The dependent clause -- "whenever [s]uch person will be either placed in a secure holding room or transported in the secure portion of a police vehicle" -- reinforces that conclusion. (Emphasis added). The use of the future tense makes clear that paragraph 14C.10.040(A)(1) is directed at property that the suspect possessed when the police took the person into custody and before they put him or her into the secure portion of a police vehicle.

Paragraph 14C.10.040(C)(3) -- the paragraph on which defendant's argument turns -- refers to paragraph 14C.10.040(A)(1) and incorporates the same temporal determination. It provides that "[a] closed container in the possession of such person [a person taken into police custody] will have its contents inventoried only when" one of three conditions occurs. PCC 14C.10.040(C)(3). Reading paragraph 14C.10.040(C)(3) and subsection 14C.10.040(A) together, we conclude that the phrase "in the possession of such person" in paragraph 14C.10.040(C)(3) refers to property that the suspect possessed when the police took him or her into custody. Not only does that conclusion follow from the wording of paragraph 14C.10.040(C)(3), but any other conclusion would render subparagraph 14C.10.040(C)(3)(b) internally inconsistent.

That subparagraph states that a "closed container in the possession of such person [a person taken into police custody] will have its contents inventoried only when * * * [s]uch person requests that the closed container be with them in the secure portion of a police vehicle[.]" At first blush, that sentence appears internally inconsistent. The independent clause refers to a container in the suspect's possession. The dependent clause refers to the same container in the possession of the police, which they may or may not return to the suspect.

However, as explained above, the independent clause in subparagraph 14C.10.040(C)(3)(b) refers to containers that were in the suspect's possession when the police took him or her into custody and before they placed the suspect in the secure part of a police vehicle. The dependent clause in that subparagraph refers to possession at a later period of time -- after the police have taken the suspect into custody, removed the suspect's personal property, see PCC 14C.10.040(B)(2) (so authorizing), and placed him or her in the secure portion of a police vehicle. (6) Recognizing that temporal distinction resolves the apparent contradiction between the independent and dependent clauses and gives effect to both. (7) See ORS 174.010 (directing courts to give effect to all provisions); Snyder, 337 Or at 425 (same).

We hold that the PCC expressly authorizes officers to inventory certain closed containers found in an impounded car if the suspect possessed those containers when the police arrested or took him or her into police custody. See PCC 14C.10.020(D)(1) (defining "police custody" as, among other things, "[t]he imposition of restraint as a result of an 'arrest'"). That interpretation gives effect to both the words of the ordinance and the stated goal of avoiding spurious claims. See PCC 14C.10.040(B)(1) (identifying that goal as one purpose of city's inventory policy). It ensures that the police can account for all the personal property that a suspect possessed when the police took him or her into their custody.

The specific question in this case -- whether defendant possessed the fanny pack when the police arrested him -- presents a factual issue for the trier of fact. See State v. Oare, 249 Or 597, 599, 439 P2d 885 (1968) (recognizing that question of constructive possession presents factual issue). Although the trial court did not address that issue explicitly, we are bound by its implicit findings as long as there is evidence in the record to support them. See State v. Amaya, 336 Or 616, 628, 89 P3d 1163 (2004) (stating that proposition). Here, defendant drove the car and was standing next to it when the officers took him into custody. The trial court reasonably could infer from that evidence that defendant exercised dominion and control over the fanny pack (and thus possessed it) when Larson placed him under arrest. (8) We also note that defendant does not dispute, at least on review, that a fanny pack "is designed for carrying money and/or small valuables on or about the person" and thus falls within the terms of subparagraph 14C.10.040(C)(3)(c). Because that subparagraph explicitly authorized the officers to open defendant's fanny pack in the course of the inventory, the trial court correctly denied defendant's motion to suppress.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

1. Larson noticed that defendant was sweating, unkempt, talking fast, and acting aggressive. Based on his experience, Larson concluded that defendant probably was under the influence of methamphetamine.

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2. Article I, section 9, provides:

"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."

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3. Defendant does not argue that, if the PCC authorized the officers to inventory the contents of the fanny pack, the scope of the inventory was unreasonable in violation of Article I, section 9. See State v. Perry, 298 Or 21, 688 P2d 827 (1984) (in noncriminal context, Article I, section 9, prohibits opening closed suitcase to inventory its contents); Keller, 265 Or at 629 (in criminal context, Article I, section 9, prohibits opening closed tackle box to inventory its contents).

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4. At the time that police searched defendant's car, Chapter 14C.10 of the PCC was numbered as Chapter 14.10. Because the chapter has not been changed substantially since the search, we cite to the current version of the PCC.

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5. Chapter 14C.10 contains four sections. In addition to the two sections discussed in the text, section 14C.10.010 states the purpose of the chapter, and section 14C.10.020 defines some of the terms used in the chapter.

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6. Although the PCC contemplates that the police usually will conduct the inventory before they place the suspect in a secure holding room or police vehicle, it also recognizes that the police may conduct the inventory after doing so. PCC 14C.010.40(C)(1).

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7. Subparagraph 14C.10.040(C)(3)(a) presents the same interpretative issue. That subparagraph authorizes the police to inventory the contents of a "closed container in the possession of [a person taken into police custody]" when it "is to be placed" in the suspect's possession after he or she is in a secure area. A container cannot simultaneously be both in the suspect's possession and "to be placed" in his or her possession. The answer to that apparent contradiction is the one noted above; the first use of the term "possession" refers to possession when the police took the person into custody and the second use of the term refers to possession after the suspect has been placed in a secure area.

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8. Defendant did not argue below and has not argued in this court that the evidence was insufficient to permit the court to find that he, as opposed to one of his passengers, possessed the fanny pack. Given defendant's apparent control over the car and its contents, such an argument would be difficult to mount. Cf. Oare, 249 Or at 599-600 (evidence not sufficient, under circumstances of that case, to establish that visitor exercised constructive possession over contraband found in home).

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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.
1

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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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