S52883 Wolf v. Myers (S52883)

SUPREME COURT CASES

Laws-info.com » Cases » Oregon » 2006 » S52883 Wolf v. Myers (S52883)

State: Oregon

Docket No: APPENDIX

Case Date: 01/26/2006

FILED: January 26, 2006

IN THE SUPREME COURT OF THE STATE OF OREGON

LARRY WOLF,
GAIL RASMUSSEN and CHRISTINA COUGHLIN,

Petitioners,

HARDY MYERS,
Attorney General,
State of Oregon,

Respondent.

(SC S52883)

En Banc

On petition to review ballot title.

Submitted on the record January 5, 2006.

Margaret S. Olney, Smith, Diamond & Olney, Portland, filed the petition and the reply memorandum for petitioners.

Laura Anderson, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With her on the answering memorandum was Hardy Myers, Attorney General.

BALMER, J.

Ballot title referred to Attorney General for modification.

BALMER, 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 that the Secretary of State has denominated as Initiative Petition 67 (2006). The proposed measure, if adopted, would require certain corporations described in the measure to disclose tax-related information to the Secretary of State, who would make that information available as a public record. Petitioners are electors who timely submitted written comments to the Secretary of State concerning the Attorney General's draft ballot title and who are entitled, therefore, 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). ORS 250.085(5). For the reasons that follow, we conclude that it does not, and we therefore refer the ballot title to the Attorney General for modification.

The proposed measure is set out in its entirety in the Appendix, and we briefly describe its substantive provisions here. The proposed measure would require certain corporations doing business in Oregon to submit an annual statement to the Secretary of State that contains financial information, including the corporation's federal taxable income, its Oregon tax liability, the assessed value of its real and personal property located in Oregon, and the apportionment of its taxes between Oregon and other jurisdictions. The Secretary of State would be required to maintain the statement as a public record and make it available on the Internet. The filing requirement would apply to all publicly traded corporations, financial corporations and insurers as defined in ORS 317.010, and corporations with more than 50 full-time employees or sales in excess of $10 million with the exception of personal service corporations.

The Attorney General certified the following ballot title:

"REQUIRES SPECIFIED BUSINESSES TO REPORT CONFIDENTIAL BUSINESS INFORMATION TO STATE FOR PUBLIC AND INTERNET DISCLOSURE

"RESULT OF 'YES' VOTE: 'Yes' vote requires specified businesses to compile and report currently confidential business information to Secretary of State for Internet publication and public inspection.

"RESULT OF 'NO' VOTE: 'No' vote rejects requirement that specified businesses compile and report confidential business information to Secretary of State; maintains current laws prohibiting disclosure of such information.

"SUMMARY: Current Oregon law prohibits disclosure of some income and property tax documents and information. Measure requires that designated businesses compile business information, including Oregon-apportioned income, expenses, and property; federal and Oregon taxable income; and Oregon income, excise, and property tax liability, and file that information with the Secretary of State for publication on the Internet and public access. Measure applies to corporations with more than fifty full-time employees or sales over $10,000,000 in past tax year, financial corporations, insurers, and publicly-traded corporations regardless of size; exempts 'personal service corporations' but does not define term. Measure requires Secretary to develop oversight and enforcement system; maintains limits on Department of Revenue's disclosure of information, and imposes deadline for filing statements. Other provisions."

Petitioners challenge each part of the certified ballot title although, as we describe below, their primary objection is to the Attorney General's use of the phrase "confidential business information" in the caption and the "yes" and "no" vote result statements.

ORS 250.035(2)(a) requires that the caption of a ballot title contain a statement of not more than 15 words "that reasonably identifies the subject matter of the state measure." The caption is the "cornerstone for the other portions of the ballot title" and must identify the proposed measure's subject matter in terms that will not "confuse or mislead potential petition signers and voters." Mabon v. Myers, 332 Or 633, 33 P3d 988 (2001).

Petitioners first argue that the phrase "confidential business information" is misleading and inaccurate and that the caption therefore fails to identify the subject matter of the proposed measure. In petitioners' view, the word "confidential" confusingly implies that the information requested is information to which no one other than the business or its employees ever is privy. Therefore, petitioners contend that the phrase "confidential business information" is likely to mislead voters to believe that the measure forces the disclosure of trade secrets and other proprietary information, not the tax information that the proposed measure actually requests. A proper caption, petitioners state, would refer directly to the tax-related information that the proposed measure would require businesses to disclose.

The Attorney General responds that the word "confidential" is appropriate because the essential subject of the measure is the disclosure of information, most of which would not have been subject to mandatory public disclosure absent the measure. The Attorney General also contends that the use of the word "confidential" is appropriate because the Oregon Public Records Law uses it in a similar context: ORS 192.502 exempts from disclosure as a public record "[i]nformation submitted to a public body in confidence and not otherwise required by law to be submitted, where such information should reasonably be considered confidential" and "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law." ORS 192.504(4), (9) (emphasis added).

We agree with petitioners. The problem with the Attorney General's caption is twofold: The use of the phrase "confidential business information" is inaccurate, and the caption simply fails to "reasonably identif[y]" the "subject of the measure," ORS 250.035(2)(a), which, quite plainly, is the disclosure of information related to taxes paid by corporations and other entities doing business in Oregon. The adjective "confidential," used in conjunction with the broad noun "information," encompasses information that the proposed measure does not, in fact, seek to make public -– including information that is primarily characterized by its confidential status, such as trade secrets -- and fails accurately to describe other information that the proposed measure would make public, such as the nonconfidential assessed value of Oregon real property. Moreover, the phrase "confidential business information" focuses the reader's attention on an ill-defined category of data, rather than on the specific tax and related financial information that, as noted, is the subject of the proposed measure. Thus, we conclude that the word "confidential" is likely to confuse or mislead potential petition signers and voters as to the content of the proposed measure.

Petitioners also argue that the proposed measure is inaccurate because the word "business" includes in its scope some entities that are not required to pay corporate income or excise taxes and that, therefore, Initiative Petition 67 does not address. We reject that argument because the adjective "specified" indicates that the measure does not target all businesses. (1)

Petitioners also argue that the caption's reference to "internet disclosure" is an "implementing detail" that should not appear in the caption. Petitioners do not contend that that reference is inaccurate or misleading, although they assert that it is not the "subject" of the measure. They argue that the words "internet disclosure" consume space that is scarce in a caption that is limited to 15 words. We agree that the reference to Internet disclosure is less important than other aspects of the measure, but we cannot say that the Attorney General must exclude it from the caption. The Attorney General will have the opportunity to modify the caption, as described above. If the modified caption otherwise accurately describes the subject of the measure, the Attorney General may include the words "internet disclosure" in the caption if that addition would not exceed the word limit.

ORS 250.035(2)(b) and (c) states that the "yes" and "no" vote result statements must describe, in "simple and understandable" terms, the "result" if the measure is accepted or rejected. The Attorney General's "yes" and "no" vote result statements, like the Attorney General's caption, contain the phrase "confidential business information" and suffer from the same defects that we identified in the caption. We therefore agree with petitioners that the "yes" and "no" vote result statements do not substantially comply with ORS 250.035(2)(b) and (c).

Finally, petitioners challenge the Attorney General's summary in several particulars and more generally on the ground that the measure "fails to clearly describe how the proposal works or the breadth of its impact." ORS 250.035(d) requires that the summary be a "concise and impartial statement of not more than 125 words summarizing the state measure and its major effect." This court has explained that the purpose of the summary is to "help voters understand what will happen if the measure is approved." Fred Meyer, Inc. v. Roberts, 308 Or 169, 175, 777 P2d 406 (1989). We have considered petitioners' arguments in light of that purpose and conclude that they are not well taken. Nonetheless, for the reasons that we have described above, the Attorney General must make changes to the caption and to the "yes" and "no" vote result statements. Those changes may alter the calculus of what constitutes an appropriate summary, and the Attorney General has the authority to modify the summary, should he find it appropriate to do so. See Mabon, 332 Or at 640 (recognizing that authority).

In summary, we hold that the caption and the "yes" and "no" vote result statements of the Attorney General's certified ballot title do not substantially comply with the requirements set out in ORS 250.035(2)(a), (b), and (c). The ballot title must be referred to the Attorney General for modification. See ORS 250.085(8) (authorizing that disposition).

Ballot title referred to Attorney General for modification.

APPENDIX

PROPOSED MEASURE

BE IT ENACTED BY THE PEOPLE OF OREGON

Section 1. STATEMENT OF NEED. The People of Oregon find:

(1) Corporations doing business in Oregon pay a lower tax rate on their profits than individuals and small businesses pay on their wages, earnings and other income.

(2) Oregon lawmakers have given corporations doing business in Oregon a number of tax credits, deductions and other tax breaks that result in those corporations paying as little as $10 per year in Oregon income taxes and low property taxes.

(3) Since 1990, corporations have been paying a decreasing share of taxes used to fund essential government services, including education (k-12 through higher education), public safety, senior services and health care.

(4) Corporations doing business in Oregon do not have to publicly disclose information relating to their total taxable income in Oregon or the amount of taxes they have paid in Oregon.

(5) Public disclosure of corporations' total taxable income in Oregon and the amount of taxes they have paid in Oregon will improve the ability of Oregon citizens to evaluate the fairness of state income tax policies and to hold lawmakers accountable for laws that reduce corporate taxes and thereby reduce revenue available to fund essential government services.

(6) Based upon experience at the federal level, where publicly traded corporations must report their total taxable income and actual tax liability, there is no evidence of harm to the corporations of such disclosure.

Section 2. DISCLOSURE OF CORPORATE TAX PAYMENTS

(1) The following corporations that are engaged in business in this state and that are required to file an excise or income tax return for purposes of ORS chapter 317 or 318, shall file with the Secretary of State the statement described in subsection (2) of this section:

(a) All publicly traded corporations.

(b) All financial corporations and insurers, both as defined in ORS 317.010.

(c) All corporations not described in paragraph (a) or (b) of this subsection having on the January 1 preceding a number of full-time employees in excess of 50, or for the period referred to in subsection(2)(b) of this section, sales in excess of $10,000,000.

(d) Personal service corporations shall be exempt from this disclosure requirement.

(2) The statement shall be on a form prescribed by the Secretary of State and shall contain the following information:

(a) The name of the corporation, business activity code, type of corporation and the name of the registered agent to accept service.

(b) The state excise tax or income tax liability under ORS chapter 317 or 318 of the corporation for the tax year ending in the fiscal period beginning July 1 and ending June 30 immediately before the date the statement is required to be filed.

(c) The most recent assessed value of real and personal property located in Oregon and the gross assessed tax on that property[.]

(d) The corporation's business presence in Oregon, as reflected in the following apportionment factors:

(A) The amount and percentage of sales within and without Oregon that are allocated or apportioned to Oregon;

(B) The amount and percentage of payroll expenses within and without Oregon that are allocated or apportioned to Oregon;

(C) The amount and percentage of real and personal property within and without Oregon that is allocated or apportioned to Oregon[.]

(e) The apportionment factor used to calculate the corporation's taxable income in Oregon.

(f) Total taxable income allocated or apportioned to Oregon for the tax year described in paragraph (b) of this subsection.

(g) Total United States taxable income, as reported to the IRS for the tax period described in paragraph (b) of this section.

(3) For the fiscal year ending June 30, 2006, statements must be filed with the Secretary of State on or before March 15, 2007. Thereafter, the statement shall be filed at the same time as the corporations' state tax returns are filed, but no later than March 15 of the following year. If a corporation files an amended return, either on its own initiative or after an audit, the corporation shall file a revised statement under this section not later than 60 calendar days after the amended return is filed.

(4) The statements required by this section shall be maintained as public records in the office of the Secretary of State and shall be made available on the internet.

(5) The Secretary of State shall develop and implement an oversight and penalty system to ensure that corporations doing business in Oregon provide the required information in a timely and accurate manner.

(6) Nothing in this section permits disclosure to the Secretary of State, or any employee or agent of the Secretary of State, by the Department of Revenue or its employees of any information under ORS 314.835 that the department may not disclose.

Section 3. Section captions. The section captions used in this Act do not become part of the statutory law of this state.

Section 4. Severability. If any section of this Act is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, the remaining sections shall remain in full force and effect.

1. Petitioners further contend that the word "specified" "makes it sound like the measure targets specific businesses, rather than regulating a category of corporations that meet certain characteristics." Petitioner proposes the term "certain" as a substitute. We see little difference between those terms in this context, and so we decline to instruct the Attorney General not to use the term "specified."

Return to previous location.

Preview:1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

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

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

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.
1

3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

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
2

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

4

1 2 3 4 5 6 7 8 9

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[.]"
3

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 * * * ."

5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

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).

4

9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6

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.

12

Download S058778 In re Lawrence.pdf