S51000 V. L. Y. v. Board of Parole

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State: Oregon

Docket No: CAA108068;SCS51000

Case Date: 02/10/2005

FILED: February 10, 2005

IN THE SUPREME COURT OF THE STATE OF OREGON

V.L.Y.,

Petitioner on Review,

BOARD OF PAROLE AND POST-PRISON SUPERVISION,

Respondent on Review.

(CA A108068; SC S51000)

On review from the Court of Appeals.*

Argued and submitted September 14, 2004.

Kendra M. Matthews, of Ransom Blackman LLP, Portland, argued the cause and filed the brief for petitioner on review.

Janet A. Metcalf, 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.

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

GILLETTE, J.

The decision of the Court of Appeals is reversed. The order of the Board of Parole and Post-Prison Supervision is reversed, and the case is remanded to the board for further proceedings.

*On judicial review of Order of the Board of Parole and Post-Prison Supervision. 188 Or App 617, 72 P3d 993 (2003).

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

GILLETTE, J.

This is a case of judicial review of an order of the Board of Parole and Post-Prison Supervision (the board) that designated petitioner as a "predatory sex offender" for purposes of Oregon's sex offender community notification law, set out at ORS 181.585 to 181.590. Petitioner challenges the designation on statutory and constitutional grounds. We agree with petitioner that the designation arose out of a statutorily impermissible decisional process and, accordingly, reverse the board's order.

In 1993, the legislature enacted a law requiring agencies who supervise sex offenders to notify "appropriate" persons when a parolee or probationer who has been designated as a predatory sex offender is released into the community. Or Laws 1993, ch 807, §§ 1 - 5. The law, which has been amended on several occasions since 1993, now appears at ORS 181.585 to 181.590. The law authorizes the board to determine which of the persons whom it releases on parole or post-prison supervision should be designated as predatory sex offenders. ORS 181.586(1)(a). It then requires the agencies that supervise persons so designated to notify "anyone whom the agency determines is appropriate" about the designation. Id.

When the board first took on the task of identifying predatory sex offenders, it adopted a decisional process that relied, in part, on a "sex offender risk assessment scale" and that did not allow for input from the potential designees. However, in Noble v. Board of Parole, 327 Or 485, 964 P2d 990 (1998), this court held that the board violated a parolee's due process rights by designating him as a predatory sex offender under that procedure. We further held that due process required the board to give a potential designee notice and an evidentiary hearing before the designation takes place. Id. at 498.

Shortly thereafter, and apparently in response to this court's decision in Noble, the board adopted a new designation scheme. The new procedure, set out at OAR 255-060-0011 (2000), (1) began with the same sex offender risk assessment scale that the board had been using. The scale consisted of a one-page checklist of items, some of which focused on past criminal conduct (e.g., "multiple victims on current sex offense conviction") and some of which described present characteristics and behaviors (e.g., "takes full responsibility for offending behavior" and "not in treatment"). The scale assigned each item either a negative or a positive numeric value, depending on whether the item was thought to increase or decrease the probability that a convicted sex offender will reoffend. The scale designated a small number of the negative items as "starred" factors and three other negative items as "override" factors. All the starred and override factors pertained to the offender's criminal history. (2)

Applying the risk assessment scale to an individual was a simple process of having a designated government employee check the items on the scale that pertained to that individual. The results then were forwarded to the board, which used them to make its predatory sex offender determination. Under the rule, the board was required to make a finding that the individual was a predatory sex offender if the individual scored on three or more starred factors or on any of the override factors. The board could make a predatory sex offender finding if the individual scored at least negative 50 in total on the scale but had no override factors and less than three starred factors. OAR 255-060-0011(3) (2000).

Under the board's rule, the amount of process that a potential predatory sex offender designee received depended on the category in which the risk assessment score placed the potential designee. The rule entitled individuals in the last-described category to a full evidentiary hearing prior to any predatory sex offender finding. OAR 255-060-0011(6)(a). On the other hand, individuals who scored on at least one override factor or at least three starred factors were not entitled to a hearing. They were, however, entitled to receive notice of their risk assessment score and an opportunity to submit written objections. If, after considering the individual's objections, the board found that there was evidence to support at least three starred factors or one override factor, it had to designate the individual as a predatory sex offender. OAR 255-060-0011(6)(b) (2000).

In the present case, the board initially designated petitioner as a predatory sex offender under the board's old designation procedures. However, after the Noble decision issued, the board chose to reevaluate petitioner using the procedure described above.

Upon applying that procedure, the board initially concluded that it should designate petitioner as a predatory sex offender because he had scored on an "override" factor -– conviction for forcible rape. The board retreated from that rationale when petitioner demonstrated, in his written objections, that the conviction was for statutory (not forcible) rape. However, petitioner also had scored on three "starred" items –- for having a history of sex offense convictions other than the current conviction, for using weapons or threats in the crime that led to his current conviction, and for having a prior nonsexual criminal history. Although petitioner objected in writing to the findings with respect to those items, the board rejected those objections, along with other general objections to the designation scheme. The board then issued an order designating petitioner as a predatory sex offender.

Petitioner sought judicial review, arguing, inter alia, that the board had erred in refusing to consider evidence that petitioner wished to offer showing that he now presents a low risk of reoffending. (3) The board argued, in response, that it lawfully could, and did, base its designation decision entirely on objective facts drawn from petitioner's criminal history.

A majority of the Court of Appeals, sitting en banc, agreed with the board's theory and affirmed. (4) V.L.Y. v. Board of Parole, 188 Or App 617, 72 P3d 993 (2003). Although the majority acknowledged that, under the relevant statute, a predatory sex offender presently must "exhibit[ ] characteristics showing a tendency to victimize or injure others," ORS 181.585(1)(a), it concluded that reliance on an individual's past crimes is permissible, because such crimes are relevant to the issue of whether a tendency to victimize others presently exists. Id. at 625. The majority also opined that, because the statute delegates to the Department of Corrections (the department) the task of devising a scale that identifies the relevant characteristics, it leaves that body free to devise a scale that relies entirely on criminal history. Id.

Two dissenting opinions took the opposite view –- that the inquiry into whether a person is a predatory sex offender for purposes of the community notification statute necessarily is concerned with an offender's present condition and is subjective, and that the board therefore had no authority to limit itself to an examination of the "objective" facts of an offender's criminal history. Id. at 639-46 (Edmonds, J., dissenting), 646-49 (Armstrong, J., dissenting).

Although there are other issues in this case, the foregoing one -- whether the board may look exclusively at past convictions reported in petitioner's sex offender risk assessment scale to determine whether an individual is a predatory sex offender, even when a potential designee wishes to offer evidence of his or her own on the subject -- is fundamental, and we consider it first. That issue, as all the members of the Court of Appeals, both majority and dissent, recognized, is first of all a matter of statutory construction, to be resolved using the analytical paradigm set out in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). Under that paradigm, we first consider the relevant statutory text and context.

ORS 181.585 provides:

"(1) For purposes of ORS 181.585 to 181.587, a person is a predatory sex offender if the person exhibits characteristics showing a tendency to victimize or injure others and has been convicted of a sex crime listed in ORS 181.594(2)(a) to (d), has been convicted of attempting to commit one of those crimes or has been found guilty except for insanity of one of those crimes.

"(2) In determining whether a person is a predatory sex offender, an agency shall use a sex offender risk assessment scale approved by the Department of Corrections or a community corrections agency."

(Emphasis added.) ORS 181.585(1) contains two clauses, each of which has a distinct focus. The second clause establishes an objective criterion, viz., conviction (or its functional equivalent) of one or more specified sexually related offenses. That criterion must exist in order to invoke first clause: The first clause states that a person "is" a predatory sex offender if that person is one who has been so convicted and who "exhibits" the requisite characteristics. Thus, the first clause defines the concept of a predatory sex offender in terms of a present condition. It follows, from that text alone, that the board's designation of anyone as a predatory sex offender, in order to be statutorily valid, must speak to that person's present condition.

It is significant, also, that ORS 181.585(1) speaks of a person who "exhibits characteristics showing a tendency to victimize or injure." (Emphasis added.) A "characteristic" is defined as "a trait, quality, or property or a group of them distinguishing an individual, group, or type: that which characterizes or is characteristic." Webster's Third New Int'l Dictionary 376 (unabridged ed 2002). A "trait" is "a distinguishing quality (as of personal character)." Id. at 2424. A "quality" is "a special or distinguishing attribute" and a "property" is "a quality or trait belonging to a person or thing, esp.: a quality peculiar to an individual person or thing." Id. at 1858, 1818.

A past act, such as a past crime, does not appear to fit into any of the foregoing (admittedly, somewhat circular) definitions. A past act cannot describe a person or thing in the way that present qualities, attributes, and traits do. Although a past crime may be a basis for inferring that one or more traits, qualities, or "characteristics" presently exists, it does not in itself qualify as a characteristic.

The state attempts to erase that distinction by suggesting that past convictions can be a kind of characteristic. Along those lines, the state suggests that an individual may have a "characteristic" of having used threats against a sexual assault victim or the "characteristic" of having a prior sex offense conviction. But that suggestion is deaf to the ordinary usage of the word "characteristic." We may speak of an instance of past conduct as being "in character" or "out of character" (that is, consistent or inconsistent with a person's characteristics), and a certain behavior may become a "characteristic" of an individual if repeated often enough. But we ordinarily do not use the word "characteristic" to describe a single incident in a person's life.

Thus, ORS 181.585(1) appears to contemplate a board determination that focuses on whether a potential designee presently exhibits certain personal and social traits -- like impulsiveness, alcoholism, social alienation, or a violent disposition –- that are or may be associated with "a tendency to victimize or injure others." Obviously, the offender's past conduct, including his or her past crimes, logically may be relevant to that determination. Indeed, the idea that a person has a certain characteristic often arises out of a recognition that the person's past behavior has been consistent over time in some respect.

The question here, however, is whether the statute permits the board to determine that an offender exhibits the required characteristics based solely on the fact of the offender's past convictions and without regard to other seemingly relevant evidence. The text of ORS 181.585(1) does not support such a conclusion. Neither does anything in that subsection excuse the board from considering all the evidence that logically is relevant to the issue that the board must decide, i.e., whether the offender presently exhibits the required characteristics. (5)

The board argues that we must read the "exhibits characteristics" requirement of ORS 181.585(1) in the context of ORS 181.585(2), which directs the board to "use" a risk assessment scale "approved by the Department of Corrections" in determining whether a person is a predatory sex offender. The board contends that, by enacting ORS 181.585(2), the legislature delegated to the department the task of "flesh[ing] out the concept of 'exhibit[ing] characteristics showing a tendency to victimize or injure others.'" The board further contends that, because its designation decision flowed directly from that broad delegation, our review must be limited to determining whether the designation comports with the general policy of the statute. The board concludes that there can be "little doubt" that designating an individual as a predatory sex offender based on objective aspects of their prior crimes comports with the more general policy of ORS 181.585 to 181.590.

For convenience in evaluating that contextual argument, we repeat the wording of ORS 181.585(2) here:

"In determining whether a person is a predatory sex offender, an agency[, i.e., an agency charged by the statute with the authority to make such a designation,] shall use a sex offender risk assessment scale approved by the Department of Corrections or a community corrections agency."

It is important to recognize at the outset that, by its terms, that subsection adds nothing to the definition of predatory sex offender provided in subsection (1). Certainly, there is no hint in the statutory wording that the scale, the creation of which the statute authorizes, is supposed to be a substitute for the characteristics assessment process that the first subsection directs the board to carry out. Instead, the second subsection merely directs the designating agency to "use" a particular device, the sex offender risk assessment scale, in making the determination contemplated by subsection (1). The scale is not a product of the board –- it is to be created or, at least, "approved," either by the department or a "community corrections agency." Neither does the statute contain any substantive criteria concerning what the department may and may not place in and measure by the scale. Subsection (2) simply directs the board to "use" the scale, and that is all.

Neither is there anything about the definition in subsection (1) that, when read together with subsection (2), suggests a delegation of the sort that the board proposes. We note, in particular, that the phrase "exhibits characteristics showing a tendency to victimize or injure others" is not like the terms that we have identified as delegative in the past. See, e.g., Springfield Education Assn. v. School Dist., 290 Or 217, 228, 621 P2d 547 (1980) ("good cause," "fair," "unfair," "undue," "unreasonable," all delegative terms ). Instead, it appears to be a completed policy choice that the board is obliged to carry out. Clearly, the authorization to the board to "use" a risk assessment scale approved by the department does not transmogrify that policy choice. It simply requires the use of a tool to assist the board in carrying out its task.

The Court of Appeals majority also found a delegation (albeit a narrower one) in ORS 181.585(2), viz., a delegation to the department to "develop a scale that identifies those characteristics or combination of characteristics that 'show a tendency to victimize or injure others.'" V.L.Y., 188 Or App at 625. Although seemingly closer to the mark (the majority opinion appropriately describes the authority of the department in terms of a risk assessment scale), that proposition does not authorize the department to devise a scale that narrows or alters the board's inquiry or require the board to limit its inquiry to a scale that does not, in fact, relate to what the board is supposed to measure. Neither does ORS 181.585(2) contain any suggestion that the department or the board may exclude evidence that inherently is relevant to the intended inquiry. The statute's meaning, in that regard, is so clear from text and context that there is no need to proceed to legislative history.

When we consider the whole of ORS 181.585 in this plain and objective way, it becomes apparent that the statute does not authorize the board to permit a scale created or "approved" by some other agency to serve as a substitute for the board's own task. The assessment of a potential predatory sex offender designee's present tendency to victimize or injure others remains work that the board must do, making such use of the assessment scale as inheres in that scale's relevance to the inquiry. The legislative directive to "use" the scale can stand for no more than that, unless this court ignores the substance of the task that the first subsection of ORS 181.585 specifically and unequivocally gives to the board. (6)

We turn, then, to the task of applying our conclusions about the intended effect of ORS 181.585 to the majority's delegation analysis. The Court of Appeals' majority suggested that the delegation inherent in ORS 181.585(2) is "broad enough" to permit the department to develop a scale that relies solely on previous convictions. V.L.Y., 188 Or App at 626. That proposition is true, the majority contended, because it is clear that an offender's previous convictions "bear on" or are "logically relevant" to the question of whether he or she exhibits the characteristics described in ORS 181.585(1). Id.

That line of reasoning obscures the issue. Petitioner's complaint is not that the risk assessment scale treats certain aspects of past crimes as relevant to the predatory sex offender designation, but that it treats those facts (or combinations of facts) as conclusive in that regard and, thus, excludes other evidence that is relevant to the issue. The question for this court, then, is whether the board reasonably can use a scale that relies solely on objective and easily ascertainable aspects of the offender's crime or crimes and excludes other evidence of the offender's current behavior and characteristics as the sole basis for determining that the offender presently "exhibits characteristics showing a tendency to victimize or injure others." The answer to that question, in our view, is "no."

The Court of Appeals majority asserted that the board "reasonably could conclude that an offender with a history of multiple convictions for sexual assault 'exhibits characteristics showing a tendency to victimize others.'" V.L.Y., 181 Or App at 625 (emphasis supplied). That statement is unobjectionable, as far as it goes. But, as the Court of Appeals majority used it, the statement incorporates an unspoken assumption -- that the prospective designee has had an opportunity to present countervailing evidence of his or her current characteristics and has failed to offer anything that outweighs an inference that might arise out of his criminal history. In our view, however, where the prospective designee has had no such opportunity (as is the case under the risk assessment scale at issue here), the Court of Appeals majority's statement loses its analytical force. Unless the prospective designee is given such an opportunity procedurally, the board's order will not be legally supportable.

We hold that, under the present statutory scheme, the board erred in using a procedure that permitted it to rely exclusively on the sex offender risk assessment scale in making its predatory sex offender designation. The board's order therefore must be reversed. (7)

We add the following note of clarification, because the import of this court's previous opinion in Noble does not appear to have been fully understood by the board: Under the present statutory formulation of the predatory sexual offender designation, any party facing such a designation, whatever the reasons for that designation, must be accorded the basics of due process. Those basics, at a minimum, include notice and the opportunity to be heard as to all factual questions at a meaningful time and in a meaningful manner. Noble, 327 Or at 498. Because of the nature of the statutory inquiry assigned to it (to determine whether a potential designee "exhibits characteristics showing a tendency to victimize or injure others"), the board is not at liberty to substitute a purely documentary exercise for the hearing that any person faced with such a designation is entitled to receive.

The decision of the Court of Appeals is reversed. The order of the Board of Parole and Post-Prison Supervision is reversed, and the case is remanded to the board for further proceedings.

1. In 2004, the board adopted yet another procedure for identifying predatory sex offenders. OAR 255-060-0011 (2004). The new rule refers to a different sex offender risk assessment scale, the STATIC - 99, and requires the board to make a predatory sex offender finding for inmates and offenders who score four or more points on the scale. The change in the rule has no effect on our analysis here.

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2. Starred factors included: offender has history of sexual crimes other than present offense; offender has history of sex offense convictions other than present offense; offender was stranger to the victim of his current offense; offender's current offense had multiple victims; offender used weapons or threats in current offense; and offender had prior nonsexual criminal history. Override items were: conviction for forcible rape; offender uses weapon to harm victim in current conviction; and male offender has criminal history of molesting boys.

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3. Petitioner also argued that (1) due process entitled him to an evidentiary hearing before the board issued a determination designating him as a predatory sex offender; (2) the board must prove a determination that a person is a predatory sex offender for purposes of ORS 181.585 by clear and convincing evidence; (3) in making such a determination, the board must employ a scale that is scientifically valid; (4) regardless of the standard of proof, the evidence did not support a determination that petitioner is a predator sex offender; (5) applying the predatory sex offender statute retrospectively violated the ex post facto prohibitions in the state and federal constitutions; and (6) the statutory predatory sex offender scheme violates federal and state constitutional prohibitions on bills of attainder, double jeopardy, and cruel and unusual punishment and federal guarantees respecting the right to privacy.

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4. The majority briefly considered and then rejected each of petitioner's other claims of error.

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5. We would add that the evidence at issue here –- expert psychological evaluations proffered by petitioner to the effect that he has a low risk for reoffending -- appears to be logically relevant.

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6. Nothing that we have found (or that the Court of Appeals majority or the parties identified) alters the foregoing statement. No statutory context calls into question our interpretation. And, once we recognize the inescapable and directive content of ORS 181.585(1)(a), nothing in the Court of Appeals majority's extensive consultation with legislative history, see V.L.Y. v. Board of Parole, 188 Or App at 627-32 (describing history), demonstrates anything to the contrary.

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7. As noted, __ Or ___ n 3 (slip op at 5), petitioner has advanced a number of other arguments against the board's order. However, because petitioner may not face a further hearing or, if he does face one, may prevail, we decline to consider petitioner's other arguments.

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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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