S51901 McFadden v. Dryvit Systems, Inc.

SUPREME COURT CASES

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State: Oregon

Docket No: (USDCCV-04-103-HA;SCS51901)

Case Date: 05/26/2005

FILED: May 26, 2005

IN THE SUPREME COURT OF THE STATE OF OREGON

DIXIE McFADDEN;
GREGORY W. BYRNE;
and DEBRA D. BYRNE,

Plaintiffs,

DRYVIT SYSTEMS, INC.,
a Rhode Island corporation,

Defendant.

(USDC CV-04-103-HA; SC S51901)

En Banc

On certified question from United States District Court for the District of Oregon Order dated October 29, 2004; certification accepted November 23, 2004.

Honorable Ancer L. Haggerty, Chief Judge, United States District Court for the District of Oregon.

Argued and submitted March 7, 2005.

Gregory W. Byrne, Portland, argued the cause and filed the brief for plaintiffs.

Kenneth Hobbs, of Stafford Frey Cooper, Seattle, Washington, argued the cause and filed the brief for defendant.

Peter R. Chamberlain, of Bodyfelt Mount Stroup & Chamberlain LLP, Portland, filed a brief for amicus curiae DaimlerChrysler Corporation.

GILLETTE, J.

Certified question answered.

GILLETTE, J.

This case presents a question of law certified to this court by the United States District Court for the District of Oregon. See generally ORS 28.200 to 28.255; Western Helicopter Services v. Rogerson Aircraft, 311 Or 361, 364-71, 811 P2d 627 (1991) (setting out and explaining certification process). The certified question asks whether a 2003 amendment to ORS 30.905, which revives certain product liability actions for which a court had entered a final judgment of dismissal before the effective date of the amendment, violates the separation of powers provisions of the Oregon Constitution. For the reasons that follow, we conclude that the answer to that question is "no."

We take the following facts from the District Court's certification order:

"Plaintiffs own adjacent townhouse residences in Portland, Oregon. Plaintiffs seek to recover damages allegedly resulting from water intrusion to their residences, which they allege stems from improper installation of an exterior stucco siding system (EIFS) and defective components.

"In 2001, plaintiffs filed a lawsuit against the siding installer and against defendant Dryvit Systems, Inc. ('Dryvit'), the manufacturer of the siding. After plaintiffs settled with the siding installer, the lawsuit was removed from state court to federal court, and then transferred to the Judicial Panel on Mutidistrict Litigation ('MDL Panel'). In December 2003, the MDL Panel dismissed all of plaintiffs' claims against Dryvit as time-barred under ORS 30.905, the two-year statute of limitations applicable to a product liability action.

"The Oregon legislature amended ORS 30.905, effective January 1, 2004, to allow a products liability civil action to be commenced within two years after the date on which the plaintiff discovers or reasonably could have discovered the injury or property damage and the causal connection between the injury or damage and the product. The amendment also contains a provision that revives any cause of action that was filed under the former Oregon product liability law and dismissed as untimely under the former version of ORS 30.905, so long as a final judgment was entered prior to January 1, 2004. Plaintiffs' claims are covered by this revival provision.

"As a result, plaintiffs filed this action on January 22, 2004. Plaintiffs assert the same five causes of action against Dryvit that they alleged in their prior lawsuit: deceit, strict liability, breach of implied warranty of merchantability, breach of implied warranty of fitness, and a claim under the Magnuson-Moss Warranty Act. However, Dryvit claims that the Oregon legislature's attempt to revive a dismissed cause of action violates the doctrine of separation of powers under the Oregon Constitution."

The District Court concluded that Oregon case law does not provide a definitive answer to the constitutional question presented and, therefore, certified the following question of law to this court:

"Whether § 2 of the 2003 amendments to ORS 30.905 (Sec. 2, Chap. 768, Or Laws 2003), which revives certain product liability causes of action for which a final judgment of dismissal has been entered prior to the effective date of the amendments, violates the separation of powers clause in Article VII, § 1, of the Oregon Constitution."

We accepted the certified question.

Article VII (Amended), section 1, of the Oregon Constitution provides:

"The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law. * * *"

Although that clause does not, by its terms, strictly address the separation of governmental powers, this court has acknowledged that a separation of powers concept inheres in those words. As this court stated in Circuit Court v. AFSCME, 295 Or 542, 547, 669 P2d 314 (1983), "[w]hen this provision is invoked it becomes our task to examine whether some other department of government, by legislation or otherwise, prevents or obstructs the courts' exercise of its judicial power."

In addition to the provision just quoted, however, the Oregon Constitution contains another separation of powers clause, in Article III, section 1, which addresses a somewhat different concern, viz., whether one department of government, by its actions, exercises a function that the constitution commits to another department of government. Article III, section 1, provides:

"The powers of the Government shall be divided into three separate (sic) departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided."

This court has described its inquiry under Article III, section 1, as whether, in taking an action, "a 'person' or member of one department is exercising a function of another department of government." AFSCME, 295 Or at 547.

Plaintiffs contend that this court's separation of powers jurisprudence is grounded at least as much on Article III, section 1, as on Article VII (Amended), section 1, and that the precise question presented here implicates the considerations in Article III more than those in Article VII (Amended), because it concerns whether the legislature, in enacting a law that revives certain actions that courts already had dismissed as untimely, has usurped a judicial function in some way. For those reasons, plaintiffs urge this court to exercise its discretionary authority to reframe the question so as to consider the constitutionality of ORS 30.905 under both Articles III and VII (Amended).

We agree that the question of the constitutionality of the claim revival provisions of ORS 30.905 includes whether the legislature has improperly exercised a judicial function and, therefore, is one properly answered by reference to Article III. Indeed, as will be seen below, the cases on which the parties principally rely to support their respective positions here are based on Article III, rather than on Article VII (Amended). (1) For that reason, we exercise our discretion to modify the question certified to us to address whether the 2003 amendment to ORS 30.905 violates the separation of powers provisions of Article VII (Amended), section 1, or of Article III, section 1, of the Oregon Constitution. See Western Helicopter, 311 Or at 370-71 (describing circumstances under which this court reserves the right, in the exercise of its discretion, to reframe questions); A.K.H. v. R.C.T., 312 Or 497, 501, 822 P2d 135 (1991) (reframing certified question because court assumed that certifying court would wish to have answer on issue and reframed question was easily resolved without further briefing from parties).

We turn now to answer the certified question, as reframed.

In 2001, when plaintiffs first filed an action against Dryvit, ORS 30.905 provided, in part:

"(1) * * * [A] product liability civil action shall be commenced not later than eight years after the date on which the product was first purchased for use or consumption.

"(2) Except [in circumstances not relevant to this case], a product liability civil action shall be commenced not later than two years after the date on which the death, injury or damage complained of occurs."

In Gladhart v. Oregon Vineyard Supply Co., 332 Or 226, 26 P3d 817 (2001), this court held that, under the foregoing statutory provision, the two-year limitations period for a product liability action begins to run when the "death, injury or damage complained of" occurs, whether or not the plaintiff discovers the harm within the ensuing two-year period. Id. at 234. That is, the court held that ORS 30.905 (2001) did not include a "discovery rule" that extended the statute of limitations in those cases in which the plaintiff could not have discovered the harm within two years of purchasing the product. Id. The record in this case discloses that plaintiffs purchased the allegedly defective siding product in 1997. Apparently, the harm began to occur immediately, but plaintiffs did not learn of that harm until 2000 and did not file their action against Dryvit until 2001. Accordingly, in 2003, the federal district court dismissed plaintiffs' action against Dryvit as untimely under ORS 30.905 (2001).

In early 2004, however, plaintiffs refiled their claims against Dryvit under authority granted by a 2003 amendment to ORS 30.905, which added a discovery rule to the statute of limitations for product liability actions and which revived certain actions that previously had been dismissed under the earlier version of the statute. Oregon Laws 2003, chapter 768, section 1, amended ORS 30.905 to provide, in part, as follows:

"(2) Except [in circumstances not relevant here], a product liability civil action for personal injury or property damage must be commenced not later than the earlier of:

"(a) Two years after the date on which the plaintiff discovers, or reasonably should have discovered, the personal injury or property damage and the causal relationship between the injury or damage and the product, or the causal relationship between the injury or damage and the conduct of the defendant; or

"(b) Ten years after the date on which the product was first purchased for use or consumption."

Further, section 2 of that enactment provides that, effective January 1, 2004, and

"(1) Subject to the provisions of this section, the amendments to ORS 30.905 by section 1 of this 2003 Act apply only to deaths, personal injuries or property damage that occurs [sic] on or after the effective date of this 2003 Act * * *.

"(2) The amendments to ORS 30.905 by section 1 of this 2003 Act revive a cause of action for which a civil action for death, personal injury or property damage was filed before the effective date of this 2003 Act if:

"(a) The civil action was filed within the time provided by ORS 30.905 as amended by section 1 of this 2003 Act;

"(b) The civil action was adjudicated based on the provisions of ORS 30.905 as in effect immediately before the effective date of this 2003 Act; and

"(c) A final judgment was entered in the civil action on or after June 8, 2001, and before the effective date of this 2003 Act.

"(3) A civil action based on a cause of action revived by subsection (2) of this section must be refiled within one year after the effective date of this 2003 Act."

Or Laws 2003, ch 768, § 2.

The Article VII (Amended), section 1, question before us is whether the foregoing statutory provision amounts to a legislative action that "interferes with the judiciary in a manner which prevents or obstructs the performance of its irreducible constitutional task, adjudication." AFSCME, 295 Or at 550. As this court further stated in AFSCME, "[o]nly an outright hindrance of a court's ability to adjudicate a case * * * or the substantial destruction of the exercise of a power essential to the adjudicatory function" will amount to a violation of Article VII (Amended), section 1. Id. at 551; accord DeMendoza v. Huffman, 334 Or 425, 454, 51 P3d 1232 (2002) (by setting out distributive scheme for punitive damage awards in ORS 18.540, legislature established reasonable guidelines for courts to follow in exercise of their duties and did not interfere impermissibly with adjudication of plaintiff's claims). The 2003 amendment to ORS 30.905 neither burdens a court's ability to adjudicate a case nor substantially destroys its ability to exercise a power essential to its adjudicatory function. Revival of claims that a court earlier had dismissed as untimely is no more burdensome to a court's ability to adjudicate a case than any other legislative enactment setting out statutes of limitations or other prerequisites for filing claims. Moreover, it cannot reasonably be said that the amendment to ORS 30.905 destroys a court's ability to exercise any power essential to its adjudicatory function, because a court's ability to decide the merits of the issues before it is unaffected by the amendments.

Based on the foregoing, we conclude that the 2003 amendment to ORS 30.905, reviving certain product liability claims that earlier had been dismissed as untimely, does not violate Article VII (Amended), section 1, of the Oregon Constitution.

As discussed above, the separation of powers clause of Article III is directed at a somewhat different concern than that of Article VII (Amended), viz., whether a person or member of one department of government has exercised a function that the constitution commits to another department of government. Dryvit asserts that the legislature has the authority to change statutes of limitations prospectively, and even to change statutes of limitations retroactively as to matters that have not yet been adjudicated, but argues that the legislature cannot, without running afoul of Article III, section 1, interfere in actions that the judiciary already has decided. Because, in Dryvit's view, the 2003 amendment to ORS 30.905 does purport to affect rights of litigants that the judicial branch already has resolved, it is unconstitutional.

Plaintiffs, for their part, agree that the legislature cannot constitutionally enact laws that purport to overturn judicial decisions or otherwise interfere with the vested rights of litigants, but, they argue, that is not what the amendment to ORS 30.905 does. Rather, according to plaintiffs, the amendment simply provides injured parties with a second opportunity to file and litigate their claims, which, until now, had not been decided on their merits.

This court considered a similar question in State ex rel Huntington v. Sulmonetti, 276 Or 967, 557 P2d 641 (1976). In that case, a worker was injured in April 1969 and filed a claim for workers' compensation in July 1970. The Worker's Compensation Board denied the claim as untimely under the then-applicable statute of limitations, which required claims like those of the worker to be filed within one year of the date of the accident causing the injury. In so doing, the board did not adjudicate any issue in the matter other than the claim's timeliness. The Court of Appeals affirmed the denial of the claim in 1973. See Dahlstrom v. Huntington Rubber Mills, 12 Or App 55, 505 P2d 352 (1973) (so holding). In 1975, the legislature amended the applicable statute of limitations in a manner that made the worker's claim timely and made the amendment retroactive to all claims for compensable injuries that occurred before its effective date. The worker filed the identical claim a second time. The employer argued, as Dryvit does here, that the issue of the timeliness of the claim was completely litigated after its first filing and that that adjudication was binding on the worker.

The court identified the issue presented in the case as one of res judicata, insofar as the case involved whether the claimant could bring a second identical claim against the employer after receiving an adverse ruling. Sulmonetti, 276 Or at 970. And, the court concluded, legislative action abrogating the rule of res judicata in certain cases does not offend the constitution in any way that the employer had contended. Id. at 971-72. First, the court rejected the employer's argument that it had a vested right in the result of the first adjudication and, therefore, that the revival of the worker's claims violated the employer's due process rights. The court observed that, because res judicata is a court-created rule, the court can determine the circumstances of its application; accordingly, a party cannot have a vested right in an expected application of the rule. Id.

Second, the court rejected the employer's argument that revival of workers' claims amounts to the legislature's attempt to interfere with the court's application of the rule of res judicata and, therefore, violates the separation of powers provision of Article III, section 1, of the Oregon Constitution. Of particular pertinence here, the court stated:

"If the legislature wants to provide for the refiling or retrial of claims previously created and litigated in accordance with legislative direction because it feels that the claimants did not have a fair opportunity to do so under prior law, it is the legislature's business and not an interference with any judicial function. It can be contended that the legislature cannot retroactively interfere with the prior results of litigation based upon common law or court established causes of action. We do not have to decide this question, however, because workmen's compensation claims are part of an exclusively legislative plan.[ (2)] The legislature is not setting aside the court's original determination, which is final as to the law then existing. It is merely deciding that prior claimants should have another opportunity to file and litigate their claims under a new and different set of standards. If the legislature would originally have had authority to enact the statutes relating to the filing of claims as such statutes were subsequently amended (and it is plain it would have had), it had the authority to make the amendment retroactive and to permit claimant to refile despite the intervening litigation."

276 Or at 972.

As in Sulmonetti, the 2003 amendment to ORS 30.905 reviving certain claims does not effectively set aside the courts' initial determinations as to those claims. Those rulings remain final as to the law then existing. Rather, the amendment merely constitutes a legislative determination that the earlier version of the statute did not provide certain litigants with a fair opportunity to discover and pursue their claims. As was the case in Sulmonetti, it is undisputable that the legislature would have had the authority to include a "discovery rule" in the product liability statute of limitations in the first instance. Accordingly, the legislature had the authority to do so by amendment to the earlier statute, to make the amendment retroactive, and to permit plaintiffs to refile their claims notwithstanding an earlier judicial determination that their claims were untimely.

Dryvit argues that the court came to the opposite conclusion in Macartney v. Shipherd, 60 Or 133, 117 P 814 (1911), and, essentially, that the court's decision in Sulmonetti was wrong. Dryvit's reliance on Macartney is misplaced. In Macartney, the trial court entered a judgment against the defendant in a contract dispute. The defendant filed a motion for a new trial based on certain errors that he alleged that the trial court had committed during the trial. The court kept that motion under advisement for more than six months before ruling against the defendant. Within six months after the defendant received notice that the court had denied his motion, the defendant filed a notice of appeal. The statute governing the timing of appeals in effect at that time mandated that notices of appeal be filed within six months of the trial court's judgment. In addition, controlling case law at that time provided that orders granting or refusing a new trial were not appealable. The plaintiff, therefore, moved to dismiss the appeal as untimely.

After the defendant filed the notice of appeal, but before this court had issued its decision, the legislature amended the statute governing the time for filing appeals. The amendment purported to "validate" any "pending and undetermined" appeals that had been filed in the Supreme Court within six months of an order denying a motion for a new trial, and required that they "shall be deemed to have been taken within the time required by law." 60 Or at 140-41, quoting Or Laws 1911, ch. 143, § 1.

This court held that the amendment to the statute governing appeals could not be applied to pending cases without running afoul of the constitution. The court first observed that the dispute arose out of a contract between the plaintiff and the defendant, and that the laws relating to the enforcement of a contract are deemed to be part of the agreement so that, "when a judgment is rendered upon such contract, the rights of the parties after the time for appeal has elapsed become fixed and vested, and the legislature cannot, by any subsequent act, change those rights under such judgment." Macartney, 60 Or at 141. Accordingly, the court held, the plaintiff had a vested right in the fruits of the judgment on the contract that the circuit court had rendered at the time that the period for appeals from that judgment elapsed, and the legislature's attempt to interfere with that vested right was invalid. Id. at 142.

In addition, the court in Macartney considered the matter under Article III, section 1, of the Oregon Constitution. The court first observed that, "[t]o declare what the law is or has been is judicial power; to declare what the law shall be is legislative." 60 Or at 142, (quoting Griffin's Ex'r v. Cunningham, 20 Gratt 31, 61 Va 31 (1870) (which, in turn, quoted Cooly, Constitutional Limitations, 92)). In addition, the court quoted with approval the following from its earlier decision in Thomas v. Portland, 40 Or 50, 52, 66 P 439 (1901):

"A statute which operates to annul or set aside the final judgment of a court of competent jurisdiction, and to disturb or defeat rights thus vested, is inoperative and void. By reason of the distribution of powers under the constitution, assigning to the legislature and the judiciary each its separate and distinct functions, one department is not permitted to trench upon the functions and powers of the other."

Macartney, 60 Or at 143. The court observed that the act in question did not profess to give litigants any new rights of appeal; rather, it purported to "construe [previous legislative enactments] and to declare their meaning validating appeals, notices of which had been theretofore served." Macartney, 60 Or at 143. According to the court, that effort to validate pending appeals that had been filed late was "plainly an invasion of the judicial power by the legislative assembly, and is not admissible." Id.

As is evident from the foregoing, the court's holding in Macartney is not inconsistent with this court's later decision in Sulmonetti. As discussed above, the legislation at issue in Sulmonetti left intact existing rulings by the courts. It merely gave litigants a second opportunity to litigate their claims under new standards. As such, that legislation was an effort to "declare what the law shall be." Macartney, 60 Or at 142. By contrast, the legislation at issue in Macartney purported to construe existing legislation in a way that "validated" appeals then pending. As such, it was an effort to "declare what the law has been." Id.

It follows that Macartney is inapposite here. As discussed above, in enacting the 2003 amendment to ORS 30.905, the legislature did not retroactively "declare what the law has been." That is, the legislature was not declaring what the previous statute of limitations meant; that was done by the court in dismissing plaintiff's first case under the earlier statute of limitations. Neither did the amendment "operate to annul or set aside a final judgment of a court" on the merits. Rather, it gave litigants with product liability claims a new right to file an action. In so doing, the legislature performed the legislative function of "declar[ing] what the law shall be" with respect to newly filed claims. That choice was within the legislature's power to make. (3)

Based on the foregoing, we hold that, in enacting the 2003 amendment to ORS 30.905 and thereby reviving certain product liability actions for which a court had entered a final judgment of dismissal before the effective date of the amendment, the legislature did not violate the separation of powers provision of Article III, section 1 of the Oregon Constitution. As discussed above, we also hold that the legislature did not violate Article VII (Amended), section 1, of the Oregon Constitution in enacting that amendment.

Certified question answered.

1. In fact, Dryvit, for its part, does not make any argument to this court concerning the constitutionality of ORS 30.905 that is based on Article VII (Amended).

Return to previous location.

2. Although we do not necessarily share the reservations that the Sulmonetti court expressed, we note that plaintiffs' product liability claims in the instant case are governed by a "legislative plan."

Return to previous location.

3. Our purpose in discussing Macartney at length is to demonstrate that the case, by its own terms, does not control the outcome here. And, because it does not, we do not address the question whether we still would adhere completely to its analysis.

Return to previous location.

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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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