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S51645 Dougan v. SAIF
State: Oregon
Docket No: WCB02-0094M;CAA119427;SCS51645
Case Date: 07/08/2005

FILED: July 8, 2005

IN THE SUPREME COURT OF THE STATE OF OREGON

In the Matter of the Compensation of
Jimmy O. Dougan, Claimant.

JIMMY O. DOUGAN,

Petitioner on Review,

v.

SAIF CORPORATION
and DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,

Respondents on Review.

(WCB 02-0094M; CA A119427; SC S51645)

En Banc

On review from the Court of Appeals.*

Argued and submitted May 9, 2005.

Christopher D. Moore, of Malagon, Moore & Jensen, Eugene, argued the cause and filed the brief for petitioner on review.

Alice M. Bartelt, Salem, argued the cause and filed the brief for respondent on review SAIF Corporation.

Judy C. Lucas, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review Department of Consumer and Business Services. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

BALMER, J.

The decision of the Court of Appeals is vacated, and the petition for judicial review is dismissed.

*Judicial Review from the Workers' Compensation Board. 193 Or App 767, 91 P3d 781 (2004).

BALMER, J.

In this workers compensation case, claimant asks this court to reverse an order of the Workers Compensation Board (board) that the board issued under its statutory "own-motion" authority. Claimant sought an award of permanent partial disability benefits for his worsening hip condition. The State Accident Insurance Fund (SAIF) awarded claimant only temporary disability compensation. The board approved the award of temporary disability compensation, but it refused to award permanent partial disability benefits. Claimant sought judicial review, and the Court of Appeals affirmed the board's order. We conclude that the appellate courts lack jurisdiction to review the board's order, because the legislature has limited appellate jurisdiction over claimants' challenges to own-motion orders to those that diminish or terminate an award. Accordingly, we vacate the decision of the Court of Appeals and dismiss the petition for judicial review.

We take the facts from the record. In February 1976, claimant suffered a compensable right hip fracture. In December 2000, claimant's right hip condition worsened. Claimant requested that SAIF reopen his claim. SAIF filed a recommendation with the board, and, in February 2001, the board reopened claimant's 1976 claim under its own-motion authority. See ORS 656.278(1) (board may modify "former findings, orders or awards" on "its own motion"). In July 2001, claimant's treating physician performed the hip-replacement surgery. In February 2002, the physician concluded that claimant was medically stationary. In March 2002, SAIF closed the claim, declaring claimant medically stationary as of February 2002. SAIF awarded temporary disability compensation but declined to award claimant permanent partial disability benefits. Claimant requested board review of that decision.

Before the board, claimant argued that SAIF should have granted him an award of permanent partial disability benefits. The board, however, affirmed SAIF's notice of closure, holding that claimant was not entitled to a permanent partial disability award. Claimant sought judicial review. Respondents moved to dismiss claimant's petition for judicial review, arguing that the Court of Appeals lacked statutory authority to consider claimant's petition. The Court of Appeals denied the motion, and then affirmed the board's decision on the merits in a brief per curiam order. Dougan v. SAIF Corp., 193 Or App 767, 91 P3d 781 (2004). Claimant filed a petition for review, which this court allowed.

As noted, the board took action here under its authority to reopen closed claims on its own motion. The board's own-motion authority represents the third phase of indemnity that the workers compensation scheme offers injured workers. The first phase begins when the worker is injured and initiates a claim. See ORS 656.262-656.270 (describing procedures for asserting claims for compensation for workplace injuries and for closure of claims). The second phase is the aggravation period, during which the worker may seek additional benefits for "worsening conditions" resulting from the original injury during a five-year period after the injury. See ORS 656.273 (describing aggravation benefits and providing that claim for aggravation must be filed within five years). The third phase is known as own-motion authority, pursuant to which the board may reconsider and adjust an earlier award, even after the five-year aggravation period has ended. Under ORS 656.278(1), the board "may, upon its own motion, from time to time modify, change or terminate former findings, orders or awards" if it determines that such action is "justified" because, among other reasons, "[t]here is a worsening of a compensable injury * * *." Here, the board concluded that, although ORS 656.278 authorizes temporary disability compensation for a worsening injury, that statute does not authorize permanent partial disability benefits for a worsening injury, such as the one that claimant suffered in this case.

The legislature, in creating the board's own-motion authority, limited appellate review of board orders issued under that authority:

"The claimant has no right to appeal any order or award made by the board on its own motion, except when the order diminishes or terminates a former award. The employer may appeal from an order which increases the award."

ORS 656.278(4). That is, the statute forecloses a claimant from obtaining appellate review of any order made by the board under its own-motion authority, but it provides an exception to that bar if the order "diminishes or terminates a former award." Here, claimant challenged a board order that affirmed SAIF's notice of closure. SAIF's notice of closure included an award of temporary disability compensation and a denial of permanent partial disability benefits. The board's order neither "diminishe[d]" nor "terminate[d]" claimant's former award. Because the board's order does not come within the exception described in ORS 656.278(4), "claimant has no right to appeal." The Court of Appeals, therefore, lacked jurisdiction to consider claimant's appeal, as does this court.

Claimant argues that the legislature cannot exempt a board decision from judicial review. Claimant, however, fails to identify a plausible foundation for that argument. The legislature created the workers compensation system, and the legislature has determined by statute which board orders are subject to judicial review and which are not. ORS 656.298 generally provides that a party "affected by" a board order may request judicial review by the Court of Appeals, but, as to orders issued under the board's own-motion authority, the right to appeal is controlled by the particular provision of ORS 656.278(4) that is quoted above. See ORS 174.020(2) (when a general and a particular provision of a statute are inconsistent, particular is "paramount" to general, "so that a particular intent controls a general intent that is inconsistent with the particular intent").

Claimant asserts that the board's order involved the interpretation and application of a statute, ORS 656.278, and that the board must exercise its authority under that statute "within the bounds of the law." Plainly, the board must act "within the bounds of the law." (1) That does not mean, however, that a claimant dissatisfied with a board order has a right to appeal that order to the Court of Appeals. The right to appeal is wholly statutory and is subject to any limitations imposed by the statute conferring the right. State v. Snyder, 337 Or 410, 416, 97 P3d 1181 (2004). Because no statute authorizes claimant to appeal from the order at issue here -- and, indeed, ORS 656.278(4) expressly forecloses this appeal -- claimant had no right to appeal to the Court of Appeals, and neither that court nor this court has jurisdiction to review the board's order. (2) Accordingly, we have no choice but to vacate the decision of the Court of Appeals and dismiss the petition for judicial review.

The decision of the Court of Appeals is vacated, and the petition for judicial review is dismissed.

1. We acknowledge the significant disputed issue of statutory interpretation that claimant seeks to raise. The board held that claimant could not recover permanent partial disability benefits under ORS 656.278(2)(d) when his claim was reopened under the board's own-motion authority because of claimant's worsening condition. Two members dissented. Jimmy O. Dougan, 54 Van Natta 1213, 1226, aff'd on recons, 54 Van Natta 1552 (2002). As noted, the Court of Appeals affirmed the board's decision on the merits, citing its earlier decision, Goddard v. Liberty Northwest Ins. Corp., 193 Or App 238, 89 P3d 1215 (2004), in which it agreed with the board's interpretation of ORS 656.278.

Return to previous location.

2. We express no view as to whether avenues other than appeal (for example, a declaratory judgment proceeding under ORS 28.020 or a petition for a writ of mandamus under ORS 34.110) might be available to a claimant in this or another case to determine whether the board properly interprets and applies the authority that ORS 656.278 grants. Moreover, because claimant's arguments here are exclusively statutory, we do not address either the constitutional permissibility of leaving a dispositive statutory ruling by an agency unreviewable or the more general issue of the legislature's authority to bar judicial review of constitutional challenges to government action.

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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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