S52169 State ex rel Engweiler v. Cook

SUPREME COURT CASES

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State: Oregon

Docket No: CC01C19211;CA117264;SCS52169

Case Date: 04/13/2006

FILED: April 13, 2006

IN THE SUPREME COURT OF THE STATE OF OREGON

State ex rel CONRAD R. ENGWEILER,

Petitioner on Review,

DAVE COOK,
Director of the Oregon Department of Corrections;
and CHARLES KLIEWER,
Administrator at the Offender Information and Sentence Computation
Agency of the Oregon Department of Corrections,

Respondents on Review.

(CC 01C19211; CA 117264; SC S52169)

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 and the judgment of the circuit court are affirmed.

*Appeal from Marion County Circuit Court, Joseph C. Guimond, Judge. 197 Or App 32, 103 P3d 1205 (2005).

**Chief Justice when case was argued.

***Chief Justice when decision was issued.

GILLETTE, J.

This is one of two cases, both decided this date, relating to the life sentence for murder that petitioner presently is serving. The life sentence is for an aggravated murder that petitioner committed as a teenager. In this case, he seeks a writ of mandamus to compel the Department of Corrections (DOC) to permit him to earn credit under ORS 421.121 against his prison term for good prison behavior. A trial judge dismissed the writ, and the Court of Appeals affirmed. State ex rel Engweiler v. Cook, 197 Or App 32, 103 P3d 1205 (2005) (Engweiler III). We allowed petitioner's petition for review and, for the reasons that follow, now affirm the decision of the Court of Appeals and the judgment of the trial court.

In 1990, when petitioner was 15 years old, he raped, sodomized, and killed a 16-year-old female acquaintance. He was tried as an adult and convicted of aggravated murder, for which the trial court ultimately imposed an indeterminate sentence of life imprisonment. (1) In June 1999, the Board of Parole and Post-Prison Supervision (the board) held a prison term hearing. At the conclusion of that hearing, the board issued Board Action Form (BAF) #1, which established, among other things, a 480-month "prison term" for petitioner. That term was based on a matrix that the board had created in May 1999 to deal with juveniles who had been convicted of aggravated murder and sentenced to life imprisonment. (2) After unsuccessfully seeking administrative review of BAF #1, petitioner petitioned for judicial review in the Court of Appeals. The Court of Appeals ultimately dismissed the petition, (3) Engweiler v. Board of Parole, 197 Or App 43, 103 P3d 1201 (2005) (Engweiler IV). In Engweiler v. Board of Parole, 340 Or ___, ___ P3d ___ (2006) (Engweiler V), decided this date, we affirm that decision, holding that BAF #1 was not 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 present case presents an alternative approach to petitioner's effort to obtain judicial review in Engweiler IV. Here, as noted, petitioner contends that he is entitled under ORS 421.121 to earn "credits" (known as "earned-time credits") against the 480-month prison term that the board set in BAF #1, because he has complied with DOC's rules for appropriate institutional behavior. (4) ORS 421.121(1) provides, in part:

"Except as provided in ORS 137.635 [concerning certain repeat offenders, not applicable here], each inmate sentenced to the custody of the Department of Corrections for felonies committed on or after November 1, 1989, shall be eligible for a reduction in the term of incarceration for appropriate institutional behavior, as defined by rule of the Department of Corrections * * *."

(Emphasis added.) Petitioner requested that DOC make reductions in petitioner's 480-month prison term in accordance with ORS 421.121 and, when DOC refused, he filed the present mandamus proceeding to compel DOC to make the reductions. The trial court issued an alternative writ of mandamus. DOC then moved to dismiss the writ on the grounds that (1) DOC may not deduct earned-time credits from minimum sentences; (2) the sentencing court did not commit petitioner to DOC custody under the sentencing guidelines; and (3) earned-time credits do not apply to inmates serving life sentences. The trial court agreed with DOC with respect to all three arguments and dismissed the writ.

Petitioner appealed the trial court's ruling to the Court of Appeals, arguing that the plain words of ORS 421.121(1) make his eligibility for earned-time credits mandatory and that none of the three bases for the trial court's ruling was meritorious. Specifically, petitioner argued that (1) he was not serving a mandatory minimum sentence (indeed, the Court of Appeals in Engweiler I had vacated the mandatory minimum sentence that the trial court first had imposed); (2) whether or not he was serving a guidelines sentence was immaterial under ORS 421.121(1); and (3) ORS 421.121(1) does not make an exception for inmates serving life sentences.

The Court of Appeals affirmed the trial court's ruling, but on another ground. In that court's view, ORS 421.121(1) provides for eligibility for earned-time credits against an inmate's "term of incarceration," and that phrase, the court held, refers only to the term of incarceration that a sentencing court imposes, not to a prison term that the board may impose. Engweiler III, 197 Or App at 40. The Court of Appeals observed that petitioner had confined his arguments to his eligibility under ORS 421.121(1) for earned-time credits against the 480-month prison term that the board had set in BAF #1. Indeed, the Court of Appeals observed, petitioner specifically had disavowed any duty on DOC's part to reduce his life sentence, acknowledging that "no mortal can predict with precision the length of his life." (5) Id. at 41. Accordingly, the court held, petitioner was not entitled to earned-time credits under ORS 421.121(1) for any of the reasons that he had advanced. Engweiler III, 197 Or App at 42. We address the issue of the Court of Appeals' rationale first.

The operative words of ORS 421.121(1) provide that "each inmate sentenced to the custody of the Department of Corrections for felonies committed on or after November 1, 1989, shall be eligible for a reduction in the term of incarceration for appropriate institutional behavior." (Emphasis added.) As a preliminary matter, we observe that there is no dispute concerning the following: (1) petitioner was "sentenced to the custody of the Department of Corrections" for a felony committed after November 1, 1989; (2) ORS 421.121(1) applies to "each inmate" so sentenced, subject only to an exception not applicable here; (3) ORS 421.121 contains no explicit exception for inmates convicted of any particular crimes, including aggravated murder, for inmates not sentenced under the sentencing guidelines, or for inmates sentenced to life imprisonment; and (4) the phrase "each inmate * * * shall be eligible for a reduction in the term of incarceration" (emphasis added) indicates that DOC's duty to reduce the "term of incarceration" is mandatory for each inmate who meets the criteria for such reductions elsewhere described in ORS 421.121. In light of the foregoing, we conclude, as did the Court of Appeals, that the answer to the question presented by this case turns on the meaning of the phrase "term of incarceration."

Under this court's statutory interpretation paradigm, our task is to discern the intent of the legislature. In so doing, we first consider the text of the statute, in context. If the legislature's intent is clear at that level of analysis, further inquiry is unnecessary.

As the Court of Appeals noted, the phrase "term of incarceration" is not defined in the statutes. At first blush, however, the phrase "term of incarceration" does not appear to be ambiguous or in need of definition or interpretation. The plain and natural reading of the phrase would seem to refer simply to the amount of time that a prisoner must spend in prison before being eligible for parole. That would make a "term of incarceration" unlike a "sentence," the latter being something that is uniquely within a court's province to impose and that can include more than the amount of time that a prisoner must serve before being eligible for parole.

The foregoing notwithstanding, the Court of Appeals, after an analysis of the context of ORS 421.121, concluded that the phrase "term of incarceration" essentially is a term of art that refers to a prison term imposed by a sentencing court and not to a prison term set by the board. In other words, in the view of that court, "term of incarceration" in ORS 421.121(1) means "sentence." The court reached that conclusion first by demonstrating that the phrase "term of incarceration" is used interchangeably in the sentencing and parole statutes with the phrase "term of imprisonment" and, then, by explaining that its review of those statutes led it to the observation that, when the statutes use either of those phrases, they "typically refer to one of two closely related concepts: (1) the amount of time that a sentencing court is authorized to impose for particular offense; or (2) the amount of prison time that a sentencing court actually imposes as part of a sentence for a particular offender." Engweiler III, 197 Or App at 37-38 (emphasis in original).

The court's conclusion that the phrase "term of incarceration" is a term of art does not follow from those premises, however. The unremarkable fact that the sentencing and parole statutes routinely refer to a sentencing court's authority to impose a sentence that includes some period, some "term," of incarceration is not, in our view, persuasive evidence that the phrase "term of incarceration" necessarily refers only to (or is coextensive with) a sentence imposed by a court. Indeed, the multiplicity of usages just as convincingly demonstrates the opposite: The phrase is not a term of art; the words merely mean what they say in each of the contexts in which they are used. To illustrate, statutes providing that a court may impose a sentence that includes a "term of incarceration" merely reflect the fact that there are various ways in which an offender may be punished, including serving a period of time in prison, as opposed to being placed (for example) on probation.

The Court of Appeals found further support for its conclusion that the phrase "term of incarceration" in ORS 421.121 means the prison term imposed by a sentencing court in the fact that ORS 144.108(3)(a) specifically exempts from ORS 421.121 those "terms of incarceration" that the board imposes as a sanction for post-prison supervision violations. (6) However, we think that the existence of that statute cuts the other way: If "term of incarceration" were a term of art referring specifically to the amount of prison time that a sentencing court imposes, then it would have been unnecessary for the legislature to exempt board-imposed terms of incarceration from ORS 421.121.

To summarize the foregoing, there is nothing that we perceive in the phrase "term of incarceration" or in the context in which that phrase is used in ORS 421.121(1) or in other related statutes that suggests to us that the phrase means anything other than simply the amount of time that an inmate must spend in prison before he is eligible to be paroled. The alternative approach taken by the Court of Appeals -- interpreting the phrase to mean only those terms of incarceration imposed by a court as part of a sentence -- is not consistent with the statutory wording.

Our conclusion that the phrase "term of incarceration" refers to the amount of time that an inmate must spend in prison before the inmate is eligible for parole does not, however, fully answer the question presented in this case, i.e., the question whether petitioner presently is serving an identifiable "term of incarceration" for purposes of computing earned-time credits under ORS 421.121. That question arises because, unlike most other inmates, petitioner is serving a life sentence.

ORS 421.121 was enacted in 1989 as part of a larger legislative enactment, Oregon Laws 1989, chapter 790, which, among other things, substantially changed the way courts sentenced felony offenders. Before 1989, Oregon used a "parole matrix system" for sentencing offenders convicted of certain felonies. Hamel v. Johnson, 330 Or 180, 186, 998 P2d 661 (2000). As this court explained in Hamel:

"Under that system, a trial court imposed an indeterminate sentence of a specified duration on a defendant who had been convicted of a crime. An indeterminate sentence stated only a maximum term to be served under the jurisdiction of the Department of Corrections. Such a sentence did not establish the length of time that a defendant was to be incarcerated. Harris v. Board of Parole, 288 Or 495, 503, 605 P2d 1181 (1980). Regardless of the length of an indeterminate sentence, under ORS 144.780 and ORS 144.785, 'it is the [Board] that determines the actual duration of imprisonment.' Id. In other words, for prisoners sentenced under the matrix system, the Board, not the court, determines the actual duration of imprisonment. Price [v. Board of Parole], 300 Or [283] at 288[, 709 P2d 1075 (1985)]. See also OAR 213-002-0001(3)(b) ('Although many citizens believe the indeterminate sentence sets the length of imprisonment, that sentence only sets an offender's maximum period of incarceration and the matrix controls actual length of stay.')."

In 1989, the legislature adopted a new system. That system required judges to use defined presumptive punishments for felony convictions, subject to some judicial discretion to deviate from those presumptive sentences. Those defined presumptive sentences were set out in sentencing "guidelines" created by the State Sentencing Guidelines Board and later approved by the state legislature in Oregon Laws 1989, chapter 790, section 87. The new system applied to offenders who committed felonies after November 1, 1989; offenders who had committed crimes before that date still were to be sentenced under the old parole matrix system. See ORS 137.120 (so providing). Thus, under the guidelines system, courts no longer merely set an outermost limit on the length of an inmate's stay in prison. Instead, in almost all cases for criminals convicted after November 1, 1989, sentencing courts impose what actually would be the offender's "term of incarceration." (7)

However, that is not the case in every instance. For a few years after November 1, 1989, there remained a small class of inmates who continued to receive indeterminate sentences -- those inmates who, like petitioner, committed aggravated murder but who were juveniles at the time of their crimes. As we shall explain, for them, the board set the "term of incarceration," as it had for virtually all offenders before the guidelines were adopted.

As noted, the sentencing guidelines define presumptive sentences for almost all felonies. They do so by creating a grid for establishing the sentence in light of the offender's criminal history and the seriousness of the offense. The vertical axis of the grid is the Crime Seriousness Scale, which classifies the crime of conviction according to its seriousness in relation to other crimes. OAR 213-004-0001(1). The horizontal axis of the grid is the Criminal History Scale, which classifies the offender's personal criminal history. Id. Each block on the grid provides the presumptive sentencing range for offenders whose crime and criminal history places them in that block. OAR 213-004-0001(2).

Certain offenses are "unranked," i.e., not assigned a block within the grid. That is true for various reasons, among them the fact that the offenses rarely are prosecuted or they encompass such a broad spectrum of criminal conduct that a single classification is impractical. OAR 213-004-0004; Commentary to OAR 253-04-004 (1989). For most of those crimes, the sentencing court retains the authority to determine the appropriate crime category. Id. The crime of aggravated murder also is unranked, but the reason in that case is that the sentencing court does not have discretion to determine the appropriate punishment. Instead, the applicable regulation provides, "The offense of Aggravated Murder is not ranked in the Crime Seriousness Scale because the sentence is set by statute * * *." OAR 213-004-0003.

When petitioner committed his offense, ORS 163.105 provided that the trial court had to sentence a person convicted of aggravated murder either to death, to life in prison without the possibility of release or parole, or to life in prison with a 30-year mandatory minimum before becoming eligible for parole. Also at that time, however, ORS 161.620 (1989) provided that,

"[n]otwithstanding any other provision of law, a sentence imposed upon any person remanded from the juvenile court under ORS 419.533 shall not include any sentence of death or life imprisonment without the possibility of release or parole nor imposition of any mandatory minimum sentence, except that a mandatory minimum sentence under ORS 163.105(1)(c) shall be imposed where the person was 17 years of age at the time of the offense."

Accordingly, the only sentencing option available to the sentencing court in petitioner's case was life imprisonment with the possibility of release or parole, and that is the sentence that the court imposed on him on remand from the Court of Appeals following Engweiler I. Having been sentenced to an indeterminate life sentence for a felony committed after November 1, 1989, petitioner was and is in the same position as an inmate sentenced before the adoption of the guidelines. As a consequence, however, petitioner's sentence stated only the maximum term that he could serve under DOC's jurisdiction; it did not establish the actual length of time that he was to be incarcerated. For him, as for any inmate sentenced to an indeterminate sentence before the adoption of the guidelines, regardless of the length of that sentence, the board is responsible for determining the actual duration of his imprisonment.

But has the board made that determination? Thus far, it has not. Instead, in petitioner's case, the board, in BAF #1, set a 480-month "prison term." That means that, after 480 months, petitioner will be eligible for consideration for parole and, if he is considered an appropriate candidate, the board will set a release date. (If he is not given a release date, petitioner will be given a concrete date on which he will be further considered for parole.) Thus, petitioner does not at present have a "term of incarceration" that he is serving. And, as discussed, ORS 421.121 provides only that "each inmate sentenced to the custody of the Department of Corrections for felonies committed on or after November 1, 1989, shall be eligible for a reduction in the term of incarceration for appropriate institutional behavior." Nothing in that statutory wording creates any basis for crediting earned-time credits against any other date, including the date on which the board may -- or may not -- set petitioner's parole release date. If the board does set petitioner's parole release date, it also will have defined his "term of incarceration." It follows that petitioner is not eligible for a reduction in the prison term that the board imposed in BAF #1, because petitioner is not yet serving a "term of incarceration." The Court of Appeals was correct in so holding, although the reasons given by that court were incorrect.

We recognize that, in so holding, we leave petitioner unable to obtain a term of incarceration -- and, therefore, unable as yet to make use of earned-time credits -- when virtually all other convicted felons can obtain and apply earned-time credits. But petitioner confined the present mandamus case to the theory that he was entitled to have the credits deducted from his next hearing date and, as we have explained, that theory cannot be sustained under the wording of ORS 421.121. Petitioner now may be able, based on this opinion and our opinion in Engweiler V, to predicate a further mandamus proceeding on a theory that accepts the statutory scheme but points to other sources of law -- e.g., the state and federal constitutions -- as a basis for relief. However, petitioner is not entitled to the relief that he seeks in this proceeding.

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

1. Petitioner originally was sentenced to 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. The Court of Appeals vacated that sentence on appeal and remanded for resentencing, because the trial court was prohibited under 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, from imposing a mandatory minimum sentence on any person remanded from the juvenile court who had been under the age of 17 when he committed his crime. State v. Engweiler, 118 Or App 132, 846 P2d 1163 (1993) (Engweiler I). The legislature thereafter amended ORS 161.120 to permit imposition of a 30-year mandatory minimum sentence on persons in petitioners' circumstances. 1995 Or Laws, ch 422, § 131y.

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2. 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.

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3. The Court of Appeals initially denied the Board of Parole's motion to dismiss the petition for judicial review and allowed the case to go forward. Engweiler v. Board of Parole, 170 Or App 653, 13 P3d 1009 (2000) (Engweiler II).

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4. In his petition for a writ of mandamus, petitioner alleged that he had been in full compliance with DOC rules defining appropriate institutional behavior since he first was confined to prison. DOC has not disputed that assertion.

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5. Petitioner now disputes that he disavowed any argument that he is entitled to earned-time credits against his life sentence. We need not resolve that question, however, in light of our conclusion that ORS 421.121(1), does not, in petitioner's case, apply to the sentence the trial court imposed, but, instead, to any "term of incarceration" that the board eventually may impose on petitioner's behalf.

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6. ORS 144.108(3) provides, in part:

"A person who is ordered to serve a term of incarceration in a jail or state correctional facility as a sanction for a post-prison supervision violation in not eligible for:

"(a) earned credit time as described in ORS 169.110 or 421.121."

ORS 144.108(3) has been amended several times in minor respects since it was enacted in 1989, but not in ways that affect the analysis of this case.

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7. As the legislature stated in the Statement of Purposes and Principles for the guidelines, Oregon Laws 1989, chapter 790, section 96, after the adoption of the guidelines, "[s]entences of imprisonment should represent the time the offender will actually serve, subject only to any reduction authorized by law."

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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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