S52664 Christ/Tauman v. Myers

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State: Oregon

Docket No: APPENDIXPROPOSEDMEASURE

Case Date: 11/18/2005

FILED: November 18, 2005

IN THE SUPREME COURT OF THE STATE OF OREGON

THOMAS M. CHRIST,

Petitioner,

HARDY MYERS,
Attorney General,
State of Oregon,

Respondent.

CHARLES S. TAUMAN,

Petitioner,

HARDY MYERS,
Attorney General,
State of Oregon,

Respondent.

(SC S52664 (Control), S52667)
(Cases Consolidated)

En Banc

On petitions to review ballot title.

Submitted on the record September 30, 2005.

Thomas M. Christ, Portland, filed the petition for himself.

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

Ryan Kahn, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With him on the memorandum 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 a proposed initiative measure, denominated by the Secretary of State as Initiative Petition 41 (2006). Petitioners are electors who timely submitted written comments to the Secretary of State concerning the content of the Attorney General's draft ballot title and who therefore are entitled to seek review of the resulting certified ballot title in this court. 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 it does not. Accordingly, we refer the ballot title to the Attorney General for modification.

The proposed measure is set out in its entirety in the Appendix. For purposes of introduction, the following summary suffices. The proposed measure begins as follows:

"Be it Enacted by the People of the State of Oregon:

"1[.] This Act shall be known as The Peoples' Court Act[.]

"2[.] The seven judges of the Supreme Court of Oregon shall be elected from districts within the state. Six judges shall be elected from each of six geographic districts,[fn,1] and one judge shall be elected in a statewide district. The judge elected statewide shall be the Chief Justice of the Supreme Court."

The proposed measure goes on in eight additional numbered paragraphs to provide, inter alia, how the six geographic districts will be formed (viz., by combining certain Oregon Senate districts), how the judges will be elected from those districts, and how incumbent members of the court fit into the proposed system. The proposed measure also provides that the Chief Justice will be elected in the state at large and will have administrative authority over the state Judicial Department.

We do not think it useful to set out the Attorney General's certified ballot title in its entirety. Instead, we limit our recitation of the ballot title to those parts that are at issue. The Attorney General's caption for the Initiative Petition 41 states:

"AMENDS CONSTITUTION: REQUIRES ELECTION OF SIX OREGON SUPREME COURT JUDGES BY GEOGRAPHIC DISTRICTS; CHIEF JUSTICE ELECTED STATEWIDE"

The Attorney General's summary for the proposed measure also begins with the phrase "Amends Constitution."

Both petitioners challenge the caption and the summary in the Attorney General's certified ballot title on the same ground. They assert that the Attorney General's caption and summary should not begin with the words, "Amends Constitution," because the proposed measure is, in fact, a proposed statute and not a proposed constitutional amendment.

Ordinarily, a caption for the ballot title for a proposed initiative measure consists of "not more than 15 words that reasonably identif[y] the subject matter of the state measure." ORS 250.035(2)(a). However, when the proposed initiative measure would amend the constitution,

"[t]he caption of an initiative or referendum amendment to the constitution shall begin with the phrase, 'Amends Constitution,' which shall not be counted for purposes of the 15-word limitation."fn,2

Id. (emphasis added). Thus, as a part of his statutory obligation to prepare ballot titles, the Attorney General is required to determine in each case involving a proposed initiative measure whether that measure would amend the state constitution and, if it would, to include the phrase "Amends Constitution" in the caption. The question in this case is whether the Attorney General properly chose to label the proposed initiative measure as such a constitutional amendment.

We have little difficulty in concluding that the Attorney General erred. We begin with the text of Initiative Petition 41 itself. We note that nothing in that proposed measure states, suggests, or even fairly may be said to imply that the measure is intended to be a constitutional amendment, either by changing existing wording in the Oregon Constitution or by adding new wording or provisions to it.

In contrast to what the proposed initiative measure does not say, what it does say is telling. As noted, the proposed measure twice characterizes itself in its first paragraph as an "Act": "This Act shall be known as The Peoples' Court Act[.]" (Emphasis added.) Similarly, the fourth paragraph of the proposed initiative measure states that "[t]his Act shall not have the effect of shortening the term of any incumbent judge," the ninth paragraph offers the assurance that "[t]his Act is intended to bring the Supreme Court of Oregon closer to the people," and the tenth paragraph provides that "[t]his Act takes effect upon Passage [and] * * * [c]ertain parts of the Act are operative on delayed dates as specified in the Act." (Emphasis added.)

The proposed measure's repeated self-characterization is important, because the term "act" has a special and well-recognized meaning in the area of lawmaking: An "act" ordinarily is a legislatively passed statute. Webster's Third New Int'l Dictionary 20 (unabridged ed 2002) defines an "act" as

"the formal product of a legislative body: the formally declared will of a legislature the final requirement of which is usu[ally] the signature of the proper executive officer: STATUTE <an ~ of Congress> * * *."

Thus, taking the proposed initiative measure at its word, the most reasonable reading of it is that it is intended to be a statute, not a constitutional amendment.

In addition to the foregoing, context within chapter 250 of the Oregon Revised Statutes confirms that the legislature recognizes that the meaning of "act" on which we rely is apt in cases involving proposed initiative measures. ORS 250.005(3), one of the provisions in chapter 250 setting out definitions, provides that, for purposes of an initiative, the term "measure" includes:

"(a) A proposed law.

"(b) An Act or part of an Act of the legislative assembly.

"(c) A revision of or amendment to the Oregon Constitution."

That is, "Acts" are different than constitutional amendments.

In response, the Attorney General relies on the Secretary of State's form (a form denominated "SEL 310") that the sponsors of Initiative Petition 41 filed with the Secretary of State respecting the proposed measure. That form offered the sponsors two boxes, one labeled "statutory" and the other labeled "constitutional." The sponsors checked the box labeled "constitutional." Such a choice, the Attorney General asserts, designates the measure as a "constitutional amendment," and "the Attorney General must adhere to that designation."

We cannot accept that explanation, which would make the Attorney General the prisoner of a choice -- perhaps informed, perhaps not, perhaps even intentionally duplicitous -- by a measure's sponsor to check one or another box on a form. As our earlier recitation of the pertinent statutory tasks assigned to the Attorney General shows, that officer is charged by legislation with drafting a ballot title that properly labels a proposed initiative measure. No piece of paper, indeed no rule, created by the Secretary of State can relieve or excuse the Attorney General from that statutory obligation.

The Attorney General, relying on various older opinions of this court,fn,3 argues that he is not permitted, in the ballot title process, to "interpret" the "practical effect" of a proposed initiative measure. That argument is not well taken. The statutory framework in which the Attorney General performs the ballot title preparation function may deny the Attorney General the right to speculate as to a proposed initiative measure's meaning, where two or more reasonable interpretations are possible. But the statutory standards in ORS 250.035(2)(a) (requiring Attorney General to prepare caption "that reasonably identifies the subject matter" of the proposed measure); (2)(b) (requiring a "simple and understandable statement * * * that describes the result if the state measure is approved"); (2)(c) (requiring a "simple and understandable statement * * * that describes the result if the state measure is rejected"); and (2)(d) (requiring a statement "summarizing the state measure and its major effect") all require a degree of interpretive effort by the Attorney General. See, e.g., Kain/Waller v. Myers, 337 Or 36, 93 P3d 62 (2004) (interpreting ORS 250.035(2)(a) and (b), and illustrating proposition). The Attorney General should not in the future rely on apparently contrary statements from our older decisions. Instead, the Attorney General must recognize that his or her statutory obligation includes a certain amount of basic interpretation including, in this case, an independent assessment of what the proposed initiative measure in this case is -- statutory enactment or constitutional amendment. He or she must make that identification in order to inform potential signers of the initiative petition as to what the "practical effect" of the proposed measure will be if it is adopted.

The noted textual and contextual points all lead inevitably in the same direction. The lack of any mention of the Oregon Constitution in Initiative Petition 41, the proposed measure's self-characterization as an "Act," the ordinary meaning of that term, and the specific legislative recognition in ORS chapter 250 of the meaning of "Act" as something different from a constitutional amendment establish that Initiative Petition 41 is a proposed statute, not a proposed constitutional amendment. The Attorney General's contrary arguments are unavailing.

We hold that the caption and the summary of the Attorney General's certified ballot title fail to meet the requirement of ORS 250.085(5) that they substantially comply with the requirements set out in ORS 250.035(2)(a) and (d). The ballot title must be referred to the Attorney General for modification. See ORS 250.085(8) (authorizing such disposition).

One other issue requires mention. Petitioner Tauman asserts that the Attorney General's "no" result statement also fails to meet the standard of ORS 250.085(5) because it incorrectly indicates that current Oregon law contains no residency requirement for members of the Oregon Supreme Court. See ORS 250.035(2)(c) (setting out standards for "no" result statement). The Attorney General concedes that his "no" result statement is deficient in that respect, and we agree. By statute, members of the Oregon Supreme Court must have resided in the state for at least three years before assuming office. ORS 2.020(1). The Attorney General's certified ballot title, therefore, is referred to the Attorney General for modification on that ground as well.

Ballot title referred to Attorney General for modification.

APPENDIX

PROPOSED MEASURE

Be It Enacted by the People of the State of Oregon:

1 This Act shall be know[n] as the Peoples' Court Act

2 The seven judges of the Supreme Court of Oregon shall be elected from districts within the state. Six judges shall be elected from each of six geographic districts, and one judge shall be elected in a statewide district. The judge elected statewide shall be the Chief Justice of the Supreme Court.

3 The seven existing positions on the Supreme Court of Oregon shall be assigned to the following geographic districts, consisting of the following State Senate districts:

Court Position Senate Districts 1 1,2,3,4,5 2 6,7,8,9,10 3 11,12,13,14,15 4 16,17,18,19,20 5 21,22,23,24,25 6 26,27,28,29,30 7 entire state

4 Any judge who is in office or is a judge-elect as of January 1, 2007 shall remain assigned to the court position to which the judge was elected until the conclusion of the term for which the judge was elected. This Act shall not have the effect of shortening the term of any incumbent judge.

5 Any candidate for election as judge of the Supreme Court of Oregon must reside in the geographic district assigned to the respective position at the time of filing for election to the position.

6 Any judge of the Supreme Court of Oregon must reside in the geographic district assigned to the judge's position throughout the judge's term of office. This residency requirement does not apply for the immediate term of any judge who is already in office, or is a judge-elect, as of January 1, 2007.

7 Current law relating to selection of the Chief Justice of the Supreme Court of Oregon shall remain in effect until such time as position number 7 on the Supreme Court is next filled by election. The next regular election to fill position number 7 shall be for the statewide district and the judge who takes office upon such election shall be Chief Justice upon taking office.

8 At any time that the Chief Justice position is vacant, the other members of the Supreme Court may elect, from among the judges of the Supreme Court, an Acting Chief Justice, who shall so serve until the Chief Justice is duly selected by interim appointment by the governor of by election.

9 This Act is intended to bring the Supreme Court of Oregon closer to the people by having each of six judges elected by geographic district, and by having the Chief Justice of the Supreme Court directly elected by all the people. The Chief Justice shall have equal authority to decide cases with each of the six other judges, but shall exercise the power, inherent in the office of Chief Justice, to manage the administrative affairs and organization of the Judicial Department. Powers held by the Chief Justice of the Supreme Court of Oregon as of November 1, 2006 shall remain with any Chief Justice elected under this Act. Such powers may not be diminished except by vote of the Legislative Assembly or by vote of the people.

10 This Act takes effect upon Passage. Certain parts of the Act are operative on delayed dates as specified in the Act.

1. We recognize the unfortunate imprecision inherent in the phrase, "[s]ix judges shall be elected from each of six geographic districts": Read literally, the wording calls for the election of a total of 36 Supreme Court judges (six "from each" of six specified geographic districts). However, the overall context in which the phrase appears makes it clear that the sponsors of the proposed measure do not intend to expand the size of the court from seven to 37. What is intended is that one judge shall be elected "from each" of the six specified geographic districts.

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2. There is no similar statutory requirement respecting the content of the Attorney General's summary, which is described in ORS 250.035(2)(d) simply as a "concise and impartial statement of not more than 125 words summarizing the state measure and its major effect." Neither is there a similar statutory exemption from the word limit for the use of the phrase "Amends Constitution." However, it is difficult to imagine a summary of a state measure proposing to amend the constitution that would be adequate without including that information in some form.

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3. The Attorney General cites Kouns v. Paulus, 296 Or 826, 828, 680 P2d 385 (1984) (not Attorney General's role in ballot title process to interpret words of proposed measure); Hand v. Roberts, 309 Or 430, 438, 788 P2d 446 (1990) ("[t]his court * * * assiduously attempts to avoid deciding questions of the practical effect of initiative * * * measures in its review of a certified ballot title"); and ACLU v. Paulus, 282 Or 539, 544, 580 P2d 168 (1978) (inappropriate for Attorney General to speculate on meaning of wording of the proposed measure).

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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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