S52165 Engweiler v. Board of Parole

SUPREME COURT CASES

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State: Oregon

Docket No: (CAA108469;SCS52165)

Case Date: 04/13/2006

FILED: April 13, 2006

IN THE SUPREME COURT OF THE STATE OF OREGON

CONRAD ENGWEILER,

Petitioner on Review,

BOARD OF PAROLE
AND POST-PRISON SUPERVISION,

Respondent on Review.

(CA A108469; SC S52165)

On review from the Court of Appeals.*

Argued and submitted September 8, 2005.

Andy Simrin, Salem, 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,*** Balmer, and Kistler, Justices.

GILLETTE, J.

The decision of the Court of Appeals is affirmed.

*Judicial review of order of the Board of Parole and Post-Prison Supervision. 197 Or App 43, 103 P3d 1201 (2005)

**Chief Justice when case was argued.

***Chief Justice when decision was issued.

GILLETTE, J.

This is one of two related cases, both decided this date, involving the life sentence that petitioner is serving. The dispositive issue in this case is whether a 1999 order of the Board of Parole and Post-Prison Supervision (the board) relating to that sentence that set both a "prison term" and a "murder review date" for petitioner was subject to judicial review under ORS 144.335 (1999), amended by Oregon Laws 2001, chapter 661, section 1; Oregon Laws 2003, chapter 352, section 1. The Court of Appeals ultimately concluded that it was not and, accordingly, dismissed petitioner's petition for judicial review. Engweiler v. Board of Parole, 197 Or App 43, 103 P3d 1201 (2005) (Engweiler IV). We allowed review and now affirm the decision of the Court of Appeals.

In 1990, when petitioner was 15 years old, he raped, sodomized, and killed a 16-year-old female acquaintance. The juvenile court remanded petitioner to the adult court, where he was tried and convicted of aggravated murder, among other things. The trial court initially imposed a life sentence with a 30-year mandatory minimum term of imprisonment under ORS 163.105(1)(c) (1989), amended by Oregon Laws 1991, chapter 126, section 8; Oregon Laws 1995, chapter 421, section 2; Oregon Laws 1999, chapter 59, section 31; Oregon Laws 1999, chapter 782, section 5. On appeal, the Court of Appeals vacated that sentence because another statute, ORS 161.620 (1989), amended by Oregon Laws 1993, chapter 33, section 306; Oregon Laws 1993, chapter 546, section 119; Oregon Laws 1995, chapter 422, section 131y; Oregon Laws 1999, chapter 951, section 2, prohibited the trial court from imposing a mandatory minimum sentence on any person remanded from the juvenile court who had been under the age of 17 when the person committed the crime for which the person was remanded. See State v. Engweiler, 118 Or App 132, 846 P2d 1163 (1993) (Engweiler I) (so holding). On remand, the trial court, in November 1994, imposed an indeterminate sentence of life imprisonment. Under such a sentence, petitioner was eligible for parole at some future date.

In June 1999, the board held a "prison term hearing," at the conclusion of which it issued Board Action Form (BAF) #1. In BAF #1, the board established a 480-month "prison term" for petitioner under a prison term matrix that it had established in May 1999 to deal specifically with juveniles who had been convicted of aggravated murder and sentenced to life imprisonment. BAF #1 also set a "murder review date" of February 22, 2030, and provided that a "murder review hearing" would be scheduled in December 2029.

After unsuccessfully pursuing administrative review of BAF #1, petitioner sought judicial review in the Court of Appeals. In that court, petitioner argued, among other things, that, in applying the 1999 matrix to set a 480-month "prison term," the board effectively had imposed on him a harsher penalty than would have been imposed on him at the time that he was convicted, even had he been an adult. Doing so, petitioner asserted, violated his state and federal constitutional right not to be subject to ex post facto laws under Article I, section 21, of the Oregon Constitution and Article I, section 10, of the United States Constitution. He also argued that doing so violated his rights under the Oregon privileges and immunities clause, set out in Article I, section 20, of the Oregon Constitution, the federal Equal Protection Clause set out in the Fourteenth Amendment to the United States Constitution, and the cruel and unusual punishments clause set out in Article I, section 16, of the Oregon Constitution.

The board moved to dismiss judicial review on the ground that BAF #1 was unreviewable under ORS 144.335 (1999), set out post, the statute that then governed review of final board orders dealing with parole. Among other things, that statute generally eliminated judicial review of any order relating to a release date or a parole consideration hearing date, save for a subcategory of challenges to orders setting initial release dates in which a petitioner challenged the crime severity rating, criminal history score, or aggravation factors that the board had used to set that initial release date.

The Court of Appeals initially concluded that, because BAF #1 set a "prison term" and thereby guaranteed petitioner's parole eligibility on a certain date, and because petitioner's objection to the board's use of the matrix to set his prison term essentially was a challenge to the crime severity rating, criminal history score, or aggravation factors that the board had used, petitioner's challenge to BAF #1 was subject to judicial review under ORS 144.335 (1999). Accordingly, the Court of Appeals denied the board's motion to dismiss the petition for judicial review. Engweiler v. Board of Parole, 170 Or App 653, 13 P3d 1009 (2000) (Engweiler II).

The Court of Appeals' review proceeded; both sides filed briefs, the case was argued, and the Court of Appeals took the matter under advisement. In January 2005, however, the Court of Appeals, on its own motion, reconsidered its earlier decision respecting jurisdiction and determined that its denial of the board's motion to dismiss had been incorrect. Upon further consideration of BAF #1, together with an examination of the board's administrative rules, the court concluded that the board actually had not set an initial release date for petitioner, either when it set the 480-month "prison term" or when it set the February 22, 2030, "murder review date." Engweiler IV, 197 Or App at 47-50. It followed, in the Court of Appeals' view, that BAF #1 was not reviewable. Id. at 50. The court therefore granted the board's motion to dismiss judicial review. Id. at 51. We allowed petitioner's petition for review to address the question whether an order like BAF #1 that is issued to a prisoner in petitioner's circumstances is subject to judicial review.

Both parties appear to agree that, in 1999, when the board issued BAF #1, ORS 144.335 (1999) governed the availability of judicial review of board orders. (1) That statute provided, in part:

"(1) When a person over whom the State Board of Parole and Post-Prison Supervision exercises its jurisdiction is adversely affected or aggrieved by a final order of the board related to the granting, revoking or discharging of parole, * * * such person is entitled to judicial review of the final order.

"* * * * *

"(3) Notwithstanding subsection (1) of this section, the board's order is final and not subject to judicial review when the board makes any decision relating to a release date or a parole consideration hearing date, including:

"(a) Setting an initial release date under ORS 144.120, except that the setting of an initial release date under ORS 144.120 remains subject to judicial review if the prisoner contests the crime severity rating, the history risk score or aggravation factors found by the board under the rules of the board."

(Emphasis added.)

We emphasize at the outset the narrow scope of our inquiry in this case. The sole issue before us is whether BAF #1 was reviewable by the Court of Appeals under ordinary judicial review procedures pursuant to ORS 144.335 (1999). If it were not, this case is at an end. But such a holding, even if correct, would not necessarily mean that petitioner would be unable to vindicate any legal rights that he may have had vis-à-vis BAF #1. See, e.g., State ex rel Engweiler v. Cook, ___ Or ___, ___ P3d ___ (decided this date) (illustrating availability of other forms of judicial scrutiny). (2)

We begin our analysis with the text of ORS 144.335 (1999). By its express terms, section (1) of that statute limited the availability of judicial review to final board orders "related to the granting, revoking or discharging of parole." Strictly speaking, BAF #1, which set petitioner's "prison term" and a "murder review date," was not such an order: It did not, by its terms, grant, revoke, or discharge petitioner on parole. Arguably, then, BAF #1 was not subject to review under ORS 144.335 (1999).

It is true that BAF #1 indirectly "related" to the granting of parole, at least to the extent that any order that somehow touched on any matter, circumstance, or condition that could be considered in connection with a prisoner's eventual eligibility for parole was an order "related" to the granting of parole. However, this case does not require us to determine the specific scope of that "related to" clause in ORS 144.335 (1999) because, to the extent that BAF #1 can be said to be "related" to the granting of parole, it falls squarely within the category of orders "relating to a release date or a parole consideration hearing date" that expressly was excluded from review by ORS 144.335(3) (1999). Thus, by its text read in context, ORS 144.335(3) (1999) appears to be the complete answer to petitioner's effort to raise certain issues through the vehicle of judicial review of BAF #1.

Petitioner argues that, notwithstanding the broad exclusion from judicial review set out in ORS 144.335(3) (1999), BAF #1 is reviewable because it fell within a subcategory of orders that remained subject to judicial review, viz., those orders "setting an initial release date under ORS 144.120 * * * if the prisoner contests the crime severity rating, the history risk score or aggravation factors found by the board under the rules of the board." ORS 144.335(3)(a) (1999). As noted, the Court of Appeals concluded, after an extensive review of the board's rules, that that statutory provision was inapplicable because BAF #1 did not set an initial release date. Engweiler IV, 197 Or App at 50. We turn to that issue. (3)

Examining the question whether the board in BAF #1 "set an initial release date under ORS 144.120," as that phrase is used in ORS 144.335(3)(a) (1999), requires us to consider both the history of petitioner's incarceration and the evolution of certain statutes since petitioner committed his crime. In 1990, when petitioner committed his crime, ORS 144.120 (1989) provided, in part:

"(1)(a) Within six months of the admission of a prisoner to any Department of Corrections institution, with the exception of those prisoners sentenced to a term of imprisonment for life or for more than five years, the board shall conduct a parole hearing to interview the prisoner and set the initial date of release on parole pursuant to subsection (2) of this section. For those prisoners sentenced to a term of imprisonment for more than five years but less than 15 years, the board shall conduct the parole hearing and set the initial date of release within eight months following admission of the prisoner to the institution. For those prisoners sentenced to a term of imprisonment for life or for 15 years or more, the board shall conduct the parole hearing, and shall set the initial release date, within one year following admission of the prisoner to the institution. Release shall be contingent upon satisfaction of the requirements of ORS 144.125."

(Emphasis added.) The emphasized part of the statute notwithstanding, petitioner never received the parole hearing contemplated by the statute, possibly because his initial sentence was on appeal in what eventually would lead to the Court of Appeals decision in Engweiler I.

By 1994, when petitioner was resentenced after remand, ORS 144.120(1)(a) had been amended by 1991 Oregon Laws, chapter 126, section 6, to exclude from the emphasized parole hearing requirement those individuals who had been sentenced for aggravated murder. (4) After that amendment, ORS 144.120(1)(a) (1993) provided, in part:

"Within six months of the admission of a prisoner to any Department of Corrections instruction, with the exception of those prisoners sentenced to a term of imprisonment for life or for more than five years, the [board] shall conduct a parole hearing to * * * set the [prisoner's] initial date of release on parole(.) * * * For those prisoners sentenced to a term of imprisonment for life or for 15 years or more, with the exception of those sentenced for aggravated murder, the board shall conduct the parole hearing, and shall set the initial release date, within one year following admission of the prisoner to the institution."

(Emphasis added.) Under that version of ORS 144.120(1)(a), which continues in effect unchanged in any pertinent respect today, the board was not required to set an initial release date for prisoners who, like petitioner, had been sentenced for aggravated murder. (5) Still another statute, ORS 163.105(1)(c) and (2) (1989), made certain prisoners who had been convicted of aggravated murder as adults eligible for parole after 30 years and directed the board to conduct a rehabilitation hearing for such prisoners after 20 years but, after 1991, no similar statute required the board to set an initial release date for persons like petitioner.

Petitioner has contended, and the board concedes for purposes of argument here, that the version of ORS 144.120 that was in effect when petitioner committed his crimes -- ORS 144.120 (1989) -- is the version that applies in this case. In so contending and conceding, however, neither party has explained why it necessarily is the case that a procedural statute such as ORS 144.120, which does not increase petitioner's punishment in any way, would continue to apply after it was changed by the legislature. We need not decide that issue, however, because it is undisputed that, notwithstanding the statute's mandatory wording, the board did not conduct a parole hearing under ORS 144.120(1)(a) (1989) for petitioner within one year following his admission to prison.

Instead of receiving a parole hearing during the year following his admission to prison, when the board was required under ORS 144.120(1)(a) (1989) to conduct it, petitioner was serving an unlawful mandatory minimum sentence and was actively pursuing an appeal. His initial misfortune, it could be argued, lay in winning that appeal. As noted, by the time that the sentencing court resentenced him on remand in 1994, ORS 144.120 had been amended to exclude those prisoners serving sentences for aggravated murder from the hearing requirement. We express no opinion whether either or both of those factors obviated the necessity for the board to conduct the hearing contemplated by the 1989 version of the statute. However, to the extent that petitioner had (or continues to have) a right to enforce the board's obligation under ORS 144.120(1)(a) (1989) to conduct a parole hearing and to set an initial release date, this proceeding is not the way to do it. The proper avenue for vindicating that right is to seek a writ of mandamus or, if the facts otherwise justify it, a writ of habeas corpus.

Petitioner suggests, without arguing directly, that, even after the legislature amended ORS 144.120(1)(a) in 1991 to exclude from the mandatory parole hearing requirements those prisoners who had been sentenced for aggravated murder, the board still was required to conduct a parole hearing for juveniles sentenced for aggravated murder, because those particular convicted persons remained eligible for parole. If the board simply were to decline to conduct a parole hearing, petitioner argues, the board effectively would violate ORS 161.620 (1989), which prohibited the imposition on certain juveniles of either sentences of life without the possibility of parole or mandatory minimum sentences. Petitioner concedes that the 1991 amendment did not establish a time frame for conducting any such hearings. In that connection, petitioner assumes that the "prison term hearing" that the board conducted in 1999 in his case essentially amounted to the "parole hearing" that the board was required to conduct under ORS 144.120(1)(a). (6) Importantly, however, petitioner stops short of arguing that, after the legislature amended it in 1991, ORS 144.120(1)(a) still required the board to set an initial release date at the parole hearing. Instead, petitioner argues that, in setting a 480-month "prison term," the board implicitly and necessarily did set such an initial release date. As petitioner argues, "[t]o be didactic, after an inmate finishes his 'prison term' by completing his 'time to be served,' he is released from physical custody." Therefore, according to petitioner, an initial release date, "de facto, is the tail end of the 'prison term.'"

There are two problems with that argument. First, we are not satisfied that the "prison term hearing" that the board conducted in 1999 in fact was a "parole hearing" under ORS 144.120(1)(a) (1989) or (1993). The mere fact that no statute appears expressly to authorize the board to conduct "prison term hearings" does not lead inexorably to the conclusion that the board's only authority to conduct that hearing arose out of ORS 144.120. In fact, the board purported to conduct the 1999 prison term hearing not under the authority of ORS 144.120 but, instead, pursuant to regulations that it had adopted earlier that year, on the recommendation of the Attorney General and under the board's rulemaking authority in ORS 144.140(1) (board has authority to "adopt rules to carry out its responsibilities under the sentencing guidelines").

Second, the board not only did not itself purport to "set" an initial release date under ORS 144.120 in BAF #1, it does not appear on this record that the board took an important step that ORS 144.120 required it to take in the event that it did set an initial parole release date, viz., inform the sentencing court of the date. ORS 144.120(6). Instead, the wording of BAF #1 provided only that the "board will conduct a progress review" pursuant to administrative rules in February 2025 and that the board will schedule a "murder review hearing" in December 2029. Such wording necessarily contemplates further review before an initial parole release date would be set. The Court of Appeals thus was correct when it held that the board's actions established a date for further parole review, but did not establish a date on which petitioner was to be released on parole. See Engweiler IV, 197 Or App at 50 (so holding). It follows that BAF #1 was not an order "setting * * * an initial release date under ORS 144.120." Petitioner therefore cannot successfully argue that the order was one subject to judicial review under ORS 144.335(3)(a) (1999), whether or not he wished to contest the "crime severity rating, the history risk score or aggravation factors found by the board."

Petitioner argues in the alternative that, to the extent that BAF #1 was not an order setting an initial release date, then it was not one "relating to a release date" at all. It was, rather, "an order that established when the Board would weigh in on whether Petitioner had transformed himself into a parole eligible candidate" -- petitioner's own description -- and the exclusion from judicial review set out ORS 144.335(3) would not apply. As discussed above, however, ORS 144.335(3) (1999) excludes from judicial review "any decision relating to * * * a parole consideration hearing date." (Emphasis added.) The date that the board would "weigh in on whether petitioner had transformed himself into a parole eligible candidate" inescapably is a "parole consideration hearing date." It follows that the order is not subject to judicial review, even under petitioner's alternative view of the effect of BAF #1.

Based on the foregoing analysis, we conclude that petitioner has no right to judicial review of BAF #1 pursuant to ORS 144.335 (1999). The Court of Appeals was correct in so holding.

The decision of the Court of Appeals is affirmed.

1. ORS 144.335 continues today to govern the availability of judicial review but the statute was significantly modified in 2001 to broaden the types of orders subject to judicial review. Or Laws 2001, ch 661, § 1.

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2. In State ex rel Engweiler v. Cook, we affirm the Court of Appeals' decision in State ex rel Engweiler v. Cook, 197 Or App 32, 103 P3d 1205 (Engweiler III).

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3. Of course, even were we to disagree with the Court of Appeals on this issue, the question would remain whether petitioner actually contested "the crime severity rating, the history risk score or aggravation factors found by the board." However, because, for the reasons set out in the text below, we agree with the Court of Appeals' view on the "initial release date" issue, we need not address the other question.

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4. ORS 144.120 has been amended on several additional occasions over the years. Or Laws 1993, ch 294, § 5; Or Laws 1999, ch 782, § 3; Or Laws 2001, ch 104, § 48.

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5. In Engweiler II, the Court of Appeals assumed for purposes of its decision there that the board in BAF #1 had set an "initial release date" under ORS 144.120. Engweiler II, 170 Or App at 657-58. It made that assumption because the board had stated in its response to petitioner's request for judicial review that the Department of Justice had advised it in 1994 that "'the Board had the authority to conduct a hearing and set an initial release date pursuant to ORS 144.120 for juveniles convicted of aggravated murder.'" Engweiler II, 170 Or App at 657 (emphasis in original). However, the board never conceded that it in fact had set an initial release date for petitioner in BAF #1, and nothing in BAF #1 can be construed as doing so expressly.

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6. He then goes on to assert that he does not object to the board's timing in this appeal.

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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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