S52203 Towers v. Myers (S52203)

SUPREME COURT CASES

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State: Oregon

Docket No: (S52203)

Case Date: 05/26/2005

FILED: May 26, 2005

IN THE SUPREME COURT OF THE STATE OF OREGON

ART TOWERS,

Petitioner,

HARDY MYERS,
Attorney General,
State of Oregon,

Respondent.

(S52203)

En Banc

On petition to review ballot title.

Submitted on the record February 28, 2005.

Steven C. Berman, of Stoll Stoll Berne Lokting & Shlachter P.C., Portland, filed the petition for petitioner.

Brendan C. Dunn, Assistant Attorney General, Salem, filed the response for respondent. With him on the response were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

GILLETTE, J.

Ballot title referred to Attorney General for modification.

GILLETTE, J.

This ballot title review proceeding brought under ORS 250.085(2) concerns the Attorney General's certified ballot title for an initiative petition, denominated by the Secretary of State as Initiative Petition 15 (2006). Initiative Petition 15, if adopted, would amend the Oregon Constitution by adding a section whose stated purpose is to restrict how a person, company, or organization may use funds obtained by means of public employee payroll deductions. Section 1 of the initiative petition prohibits the use of any such funds for "political purposes" unless the employer has on file a current writing from each employee that authorizes such deductions.

Initiative Petition 15 then sets out eight subsections (two of which are identically denominated as subsection "(f)"). Subsection (a) defines money used for "political purposes" to include any funds, including in-kind and pass-through contributions, either contributed to a political candidate for public office or a political party, or used to support or oppose a ballot measure, or used to collect signatures or oppose any signature gathering efforts. Subsection (b) excludes from the initiative petition's coverage money spent on lobbying elected officials, unless those funds are spent within 90 days of an election. Subsection (c) provides that the employee's authorization must be in writing and renewed annually on a specific form. Subsection (d) establishes a system of fines for violations of the substantive provisions of the initiative petition. Subsection (e) requires that any entity using funds obtained through a payroll deduction for political purposes keep those funds segregated from other funds. The first subsection (f) prohibits any person, company, or organization that commingles funds in violation of subsection (e) from subsequently using a public payroll system to collect funds for political purposes, subject to limited exceptions. The second subsection (f) specifies that the initiative petition does not create a right to use payroll deduction funds for political purposes. Subsection (g) is a severability clause. (1)

Petitioner is an elector who timely submitted certain written comments to the Secretary of State concerning the content of the Attorney General's draft ballot title and who therefore is entitled to seek review in this court of the resulting certified ballot title. See ORS 250.085(2) (stating that requirement). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035(2)(a) to (d). ORS 250.085(5). For the reasons that follow, we conclude that the ballot title challenged here does not so comply.

The Attorney General certified the following ballot title for Initiative Petition 15:

"AMENDS CONSTITUTION: RESTRICTS HOW INDIVIDUALS AND
ORGANIZATIONS RECEIVING PUBLIC EMPLOYEES' PAYROLL
DEDUCTIONS MAY USE, MANAGE THOSE DEDUCTIONS

"RESULT OF 'YES' VOTE: 'Yes' vote prohibits individuals, organizations from using public employees' payroll deductions for 'political purposes' (defined) without obtaining employee's written, annual authorization and satisfying additional requirements.

"RESULT OF 'NO' VOTE: 'No' vote retains current law, which neither limits uses to which payroll deductions may be put nor requires segregating payroll deductions earmarked for political purposes.

"SUMMARY: Amends Constitution. Current law neither limits use of public employees' payroll deductions nor requires segregating deductions earmarked for political purposes. Measure prohibits individuals, organizations receiving public employees' payroll deductions from using them for 'political purposes' without obtaining employee's permission annually granted on form used for this purpose. Deductions are used for 'political purposes' when any portion is: contributed to candidate, political committee, party; or spent supporting/opposing ballot measure, public-office candidate. Deductions are not used for 'political purposes' when spent lobbying, unless spent on communications identifying public-office candidate within 90 days of election. Anyone receiving public employees' payroll deductions for 'political purposes' must keep them segregated. Anyone violating measure may be fined and barred from collecting funds through public payroll system. Other provisions."

Petitioner challenges only the summary in the Attorney General's certified ballot title. ORS 250.035(2)(d) requires that the ballot title contain a "concise and impartial statement of not more than 125 words summarizing the state measure and its major effect." Petitioner asserts that the Attorney General's summary fails to meet the foregoing standard in four different respects, which we address separately.

Petitioner asserts, first, that the Attorney General's summary "inaccurately describes the current state of the law." Specifically, petitioner notes that the summary states that "[c]urrent law neither limits use of public employees' payroll deductions nor requires segregating deductions earmarked for political purposes." However, petitioner argues, that statement is not correct: "[C]urrent law does in fact contain 'limits' on the use of public employees' payroll deductions. Under current law, a union cannot require employee payroll deductions to be used for political purposes. * * * That is a limit."

Although petitioner cites no source of law for the above statement, we assume that he refers to the familiar case law from the United States Supreme Court that holds that a union cannot require an employee to contribute that part of "fair share" dues that the union devotes to political purposes, if the employee objects. See, e.g., Abood v. Detroit Board of Education, 431 US 209, 234-36, 97 S Ct 1782, 52 L Ed 2d 261 (1977) (unions may spend dues of particular employee on political causes only when employee does not object); Elvin v. OPEU, 313 Or 165, 168, 832 P2d 36 (1992) (discussing Abood). On that assumption, we agree with petitioner. Federal First Amendment jurisprudence limits the power to impose such deductions and imposes significant procedural requirements respecting the process. Elvin, 313 Or at 168-70 (discussing Abood and procedural requirements identified by Supreme Court of United States in Chicago Teachers Union v. Hudson, 475 US 292, 305-07, 106 S Ct 1066, 89 L Ed 2d 232 (1986)). The ballot title therefore must be referred to the Attorney General for modification respecting that point. (2)

Petitioner next asserts that the Attorney General's summary improperly uses the pronoun "anyone" to "describe the full range of individuals and entities affected by the initiative." "Anyone," petitioner asserts, is a pronoun that refers only to an individual; it does not include, for example, corporations, although corporate entities clearly are included in Initiative Petition 15's prohibition on use of funds for "political purposes." (3) The Attorney General responds that, although petitioner's grammatical point technically is correct, this court nonetheless safely may ignore it because other parts of the Attorney General's ballot title state that the initiative petition restricts how "individuals and organizations" may use and manage public employee payroll deductions.

We are unpersuaded by the Attorney General's justification. The last two sentences of the Attorney General's summary deal with the requirement that payroll deduction funds intended for political purposes be segregated and the provision that anyone who violates the substantive prohibitions of the proposed measure never again will be allowed to obtain payroll deductions. In each case, the sentence begins with the word "[a]nyone." The use of that pronoun is incorrect because it is underinclusive. The initiative petition's disqualification extends to corporations and organizations as well as individuals. Worse, the use of the pronoun is in direct contrast to earlier references in the ballot title, both in the summary and elsewhere, to "individuals and organizations." Grammatically, those contrasting usages leave the impression that the topics discussed by the last two sentences of the summary apply only to individuals. As we have indicated, and as the Attorney General acknowledges, such is not the case. We hold that that aspect of the Attorney General's summary also fails to meet the standard of ORS 250.035(2)(d). It therefore must be modified.

Petitioner next argues that the Attorney General's summary is deficient in that "it fails to mention the full extent of the penalties for violations." Initiative Petition 15, petitioner asserts, "contains extremely harsh penalties." The most important aspect of those penalties, petitioner further asserts, is the permanent bar on receiving future payroll deductions, once a person or organization violates the substantive provisions of the proposed measure. Petitioner concludes that the permanent nature of the disqualification from receiving payroll deduction funds must be included in the summary, "because the way the draft ballot title currently is written, the voters would infer that the bar lasts only one election cycle or applies to only one issue."

We disagree with petitioner. The Attorney General's summary uses the verb "barred," a word that fairly communicates -- in our view -- the permanent nature of the consequence. It might be, as the Attorney General acknowledges, that the summary would be even better if it used the word "permanent," but, as this court consistently has held, the fact that a part of a ballot title could be "better" does not establish that the ballot title fails to meet the statutory standard. See, e.g., Phillips v. Myers, 325 Or 221, 228, 936 P2d 964 (1997) (so holding). (4)

For his final argument, petitioner contends that the summary inadequately explains that, under the initiative petition, a deduction will be deemed to have been used for a political purpose if it is spent on efforts to obtain or discourage the gathering of signatures for initiative petitions. Petitioner acknowledges that the summary explains that a deduction will be deemed to have been used for a political purpose if it is "spent supporting/opposing ballot measure." However, petitioner asserts, a "ballot measure" is a proposed initiative that actually has been placed on the ballot; signature-gathering in support of the measure already has occurred.

The Attorney General responds that this court should not consider petitioner's last argument. ORS 250.085(6) provides that, when reviewing a ballot title, this court "shall not consider arguments concerning the ballot title not presented in writing to the Secretary of State unless the court determines that the argument concerns [wording] added to or removed from the draft title after expiration of the comment period[.]" Here, the Attorney General argues, although the draft ballot title contained the wording to which petitioner now objects, he did not object to it earlier. We have reviewed the comments that petitioner submitted to the Secretary of State respecting the proposed measure and find the Attorney General's point to be well taken. We decline to address this issue. (5)

We hold that, for the reasons stated, the Attorney General's summary in his certified ballot title for Initiative Petition 15 fails to meet the requirements of ORS 250.035(2)(d). We therefore refer the ballot title to the Attorney General for modification.

Ballot title referred to Attorney General for modification.

1. Initiative Petition 15 is identical to another proposed measure, denominated by the Secretary of State as Initiative Petition 17 (2006), except that Initiative Petition 15 applies only to employee payroll funds deducted by public employers, while Initiative Petition 17 applies to all employers. The Attorney General has certified a ballot title for Initiative Petition 17 that is similar in all material respects to the ballot title under consideration in this case. Petitioner in this case also has challenged the Attorney General's certified ballot title respecting Initiative Petition 17. See Towers v. Myers, ___ Or ___, ___ P3d ___ (May 26, 2005) (decided this date) (dealing with objections to ballot title for Initiative Petition 17).

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2. As we have indicated, petitioner in this case challenges only the Attorney General's summary. However, we note that the wording that we here disapprove is a substantial mirror of the wording of the Attorney General's "no" vote result statement, which petitioner does not challenge. On referral, the Attorney General may wish to consider making a modification of that part of the ballot title, as well. See Kain v. Myers, 336 Or 116, 123 n 3, 79 P3d 864 (2003) (recognizing such authority); Mabon v. Myers, 332 Or 633, 640, 33 P3d 988 (2001) (same).

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3. Petitioner is correct grammatically. Webster's Third New Int'l Dictionary 97 (unabridged ed 2002) defines "anyone" as "any person indiscriminately: anybody."

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4. Of course, the Attorney General will be free on referral to change this aspect of the summary, if he wishes. See cases cited above, at ___ Or at ___ n 2 (slip op at 5 n 2) (recognizing such authority).

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5. We elsewhere have held that an argument that is the equivalent of petitioner's argument on the merits of this issue is valid. See Terhune v. Myers, ___ Or ___, ___, ___ P3d ___ (May 26, 2005) (decided this date) (so holding). Because we refer this case to the Attorney General for modification in other respects, he is free to modify the ballot title summary in this respect as well. See cases cited above, at ___ Or at ___ n 2 (slip op at 5 n 2) (recognizing such authority).

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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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