S53056 State v. Sanders

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 06/21/2007

FILED: June 21, 2007

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

TRAVIS RAY SANDERS,

Petitioner on Review.

(CC 011137484; CA A122330; SC S53056)

On review from the Court of Appeals.*

Argued and submitted September 6, 2006.

Susan F. Drake, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender.

Mary H. Williams, Solicitor General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Janet A. Klapstein, Assistant Attorney General.

Before De Muniz, Chief Justice, and Carson, Gillette, Durham, Balmer, and Kistler, Justices.**

GILLETTE, J.

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

*Appeal from Multnomah County Circuit Court, Jerome LaBarre, Judge. 202 Or App 672, 126 P3d 1260 (2005).

**Riggs, J., retired September 30, 2006, and did not participate in the decision of this case. Carson, J., retired December 31, 2006, and did not participate in the decision of this case. Walters, and Linder, JJ., did not participate in the consideration or decision of this case.

GILLETTE, J.

This criminal case presents the issue whether a state statute mandating the collection of blood or buccal samples for purposes of DNA profiling from all persons convicted of felonies violates either the state or federal constitutional prohibitions against unreasonable searches and seizures. The Court of Appeals upheld a trial court order requiring the defendant to submit a blood or buccal sample as a condition of his probation. State v. Sanders, 202 Or App 672, 126 P3d 1260 (2005). For the reasons set out below, we affirm the decision of the Court of Appeals.

The operative facts are brief and undisputed. In 2003, after a jury trial, defendant was convicted of the felony offense of fleeing or attempting to elude a police officer in a motor vehicle. (1) Under ORS 137.076, because defendant had been convicted of a felony, (2) the trial court was required to include in the judgment of conviction an order requiring defendant to submit a blood or buccal sample at the request of either the Department of Corrections or a law enforcement agency. (3) If the court were to sentence defendant to probation, then the court would be required to include an order to submit the sample as a condition of probation. ORS 137.076(2)(b). Before sentencing, defendant moved to prohibit the seizure of his DNA through a blood or buccal sample under ORS 137.076 on the ground that requiring him to submit to such a procedure would violate his state and federal constitutional rights to be free from unreasonable searches and seizures. The trial court rejected defendant's arguments, sentenced defendant to 18 months probation on the felony conviction, (4) and imposed various conditions of probation including, as required under ORS 137.076(2)(b), a direction that defendant provide a blood or buccal sample at the request of the Multnomah County Sheriff or the state Department of Corrections.

Defendant appealed the sentence to the Court of Appeals, assigning error to the trial court's imposition of the condition of probation requiring him to submit a blood or buccal sample. As noted, the Court of Appeals affirmed without opinion.

In this court, defendant reprises his arguments that the requirement in ORS 137.076 that he provide a blood or buccal sample violates his state and federal constitutional rights to be free from unreasonable searches and seizures. He argues that, for purposes of both constitutions, taking a blood or buccal sample is both a search and a seizure. Defendant then contends that that search and seizure is done without a warrant, and without probable cause or even reasonable suspicion, and does not fall within any exception to the warrant requirement under either constitution. Therefore, according to defendant, the search and seizure are unreasonable and unconstitutional.

In analyzing the constitutionality of ORS 137.076, we follow our usual paradigm: We consider state constitutional claims before considering federal constitutional claims. See State v. Cookman, 324 Or 19, 25, 920 P2d 1086 (1996) (so stating). Article I, section 9, of the Oregon Constitution provides:

"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."

Under Article I, section 9, a "search" occurs when a government agent invades an individual's protected privacy interest. State v. Tiner, 340 Or 551, 562, 135 P3d 305 (2006). The privacy that is protected under Article I, section 9, is the "privacy to which one has a right." State v. Campbell, 306 Or 157, 164, 759 P2d 1040 (1988) (emphasis in original). One ordinarily has a right to privacy that extends to protecting against having a government agent draw one's blood, and this court has stated that "[t]he extraction of a blood sample by the police is both a search of the person and the seizure of an 'effect' -- the person's blood." State v. Milligan, 304 Or 659, 664, 748 P2d 130 (1988). One ordinarily also has a right to privacy that protects against having a government agent swab the inside of one's cheek and then testing the swab to reveal physiological data. Thus, in requiring convicted felons to provide a blood or buccal sample, ORS 137.076 effectively subjects those individuals to what commonly would be understood to be searches and seizures as an additional consequence of their convictions. If the person is sentenced to a term of imprisonment, then the Department of Corrections performs the search and seizure upon incarceration. ORS 137.076(2)(c)(A). If, on the other hand, the person is sentenced to a term of probation, then the statute directs the trial court to order the convicted person to submit to that search and seizure as a condition of the probation. ORS 137.076(2)(b).

In our view, it is the requirement of a felony conviction that is the key here. In most of the cases that we have cited above, the person whose privacy interests were invaded without a warrant had not been convicted. In those cases, the state had no basis for arguing that the person had any lesser privacy right than the general public. On the other hand, the warrant requirement never has been applied to convicted persons who have been placed in state custody as a result of their convictions. That is so, because it is inherent in the very notion of punishment for a felony conviction that an offender's freedom is or may be drastically curtailed. As this court recently stated in Tiner, in rejecting a defendant's challenge to the state's taking photographs of the tattoos on his chest,

"Neither the United States Constitution nor the Oregon Constitution requires a search warrant or its equivalent before the state may take pictures of or inspect defendant's torso because, once defendant became a prisoner, he enjoyed few rights regarding his privacy. * * * Once defendant was imprisoned, he lacked the right to privacy that he enjoyed when he was not in prison. Among the rights that he forfeited was the right to keep his personal appearance [--] including any distinguishing marks such as tattoos -- from being known to the state."

340 Or at 563 (citations omitted). See also Sterling v. Cupp, 290 Or 611, 620, 625 P2d 123 (1981) ("Those sentenced to prison forfeit many rights that accompany freedom."); State v. Lippert, 317 Or 397, 856 P2d 634 (1993) (seizure of paperfold containing controlled substance from defendant's pocket permissible, when defendant placed in protective custody for detoxification).

Similarly, probationers and other conditional releasees who have been lawfully convicted of a felony do not enjoy the full panoply of rights that the general public possesses. Rather, they are subject to a broad range of restrictions that might infringe on what otherwise would be constitutional rights of a person in a free society. Many such restrictions last only for the duration of the supervision or probation period. For example, probationers and parolees, while they are on probation or parole, often are forbidden to use liquor, to associate with certain people, to travel outside the state, and to change jobs or move without first seeking permission. In addition, at least one permissible restriction on a convicted felon's constitutional rights is permanent, whether that person has been sentenced to a term of imprisonment or to probation: Felony offenders permanently lose their state (and, perhaps, federal) constitutional right to bear arms as a consequence of conviction. See ORS 166.270 (making it a felony for a convicted felon to possess a firearm and a misdemeanor for a convicted felon to possess other "restricted weapons"); see also 18 USC § 922(g)(1) (making it a federal offense for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to transport, possess, or receive a firearm or ammunition that has been shipped or transported in interstate or foreign commerce); State v. Hirsch/Friend, 338 Or 622, 114 P3d 1104 (2005) (statute making it a crime for felon to possess firearm not unconstitutional under Article I, section 27, of the Oregon Constitution).

It follows from the foregoing that ORS 137.076 does not necessarily deprive felony offenders (be they prisoners, persons on supervision, or probationers) of certain of their constitutional rights in general, or of their Article I, section 9, rights in particular, by subjecting them to a specific form of search and seizure as a consequence of their convictions. Furthermore, the statute narrows the class of persons potentially subject to it by limiting its terms to felons and persons convicted of certain other serious offenses.

We turn to consider the nature of the search itself. The blood or buccal sample that a convicted felon must provide under ORS 137.076 permits the state to derive that person's DNA profile. That profile establishes a record of the convicted person's identity (an extremely accurate and detailed one). No particularized probable cause or suspicion is needed to justify gathering or retaining a permanent record of a person's identity through fingerprints and photographs, even when he or she has only been arrested, and this court never has required that a person's fingerprints and photographs be discarded after their initial evidentiary and identification purposes had been served or after that person has completed his or her sentence and/or period of supervision or conditional release. The fact that DNA testing enables the state to obtain and preserve a much more accurate record of identification of a convicted person does not meaningfully distinguish taking that person's blood or buccal sample from taking his or her fingerprints or photograph. If the former methods of obtaining and preserving identification information are permissible under Article I, section 9 -- and we do not understand defendant to argue that they are not -- then we can perceive no principled basis for declaring that the blood and buccal samples at issue here are different in any constitutionally significant way. (5)

Defendant argues that Article I, section 9, which provides that "no law" shall infringe on the "people's" right to be free from unreasonable searches and seizures, imposes a limit on the government's power that is not dependent on the status of the person who asserts it. However, as is evident from our discussion above, we think that there are constitutionally sound reasons to distinguish between suspicionless searches of and seizures from the general public and such searches of and seizures from the far more narrowed class of prisoners, probationers, and other conditional releasees who have been convicted of felonies. The first group is made up of presumably law-abiding citizens who are entitled to all the rights afforded by our constitution, but the other is composed of lawfully adjudicated criminals whose proven felonious conduct substantially heightens the government's interest in identifying and monitoring them. That conduct can and does properly carry lasting consequences. It follows that what we may view as constitutionally unreasonable when done to those in the first group we appropriately may view as permissible when done to those in the second. (6) We hold that the requirement in ORS 137.076 that persons convicted of felonies -- this case presents only the "felony" component of the statute -- provide a blood or buccal sample does not violate Article I, section 9, of the Oregon Constitution.

Defendant also challenges the requirement in ORS 137.076 that he provide a blood or buccal sample under the Fourth Amendment to the United States Constitution, which provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Unlike Article I, section 9, of the Oregon Constitution, which protects against intrusions into a person's protected privacy interests, the Fourth Amendment protects a person's reasonable expectation of privacy. See Oliver v. United States, 466 US 170, 177, 104 S Ct 1735, 80 L Ed 2d 214 (1984) (so stating). The United States Supreme Court has held that prisoners, probationers, and other conditional releasees have reduced expectations of privacy and, therefore, they may be deprived of many constitutional rights and freedoms that law-abiding citizens enjoy, including the right to be free from unreasonable searches and seizures under the Fourth Amendment. United States v. Knights, 534 US 112, 119-21, 122 S Ct 587, 151 L Ed 2d 497 (2001). Recently, the Court held that it is appropriate to examine the totality of the circumstances to determine whether a search is reasonable within the meaning of the Fourth Amendment. Samson v. California, 547 US __, 126 S Ct 2193, 2197, 165 L Ed 2d 250 (2006). According to the Court, whether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes on an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate state interests. Id. Applying that test, the Court upheld against a Fourth Amendment challenge the suspicionless search of a California parolee under a California law that required parolees to agree, as a condition of parole, to be subjected to search and seizure at any time. Id. at 2202.

The Supreme Court has not yet considered the constitutionality of any state or federal law requiring convicted persons to provide DNA samples. However, our research shows that every federal appellate court that has considered the matter has concluded that such laws do not violate the Fourth Amendment. See, e.g., United States v. Kincade, 379 F3d 813, 839 (9th Cir 2004), cert den, 544 US 924 (2005); Green v. Berge, 354 F3d 675, 679 (7th Cir 2004); Groceman v. US Dept of Justice, 354 F3d 411, 413 (5th Cir 2004); United States v. Kimler, 335 F3d 1132, 1146 (10th Cir), cert den, 540 US 1083 (2003); Roe v. Marcotte, 193 F3d 72, 79 (2d Cir 1999); Jones v. Murray, 962 F2d 302, 306-07 (4th Cir), cert den, 506 US 977 (1992) (all so holding). The reasoning in those opinions satisfies us that the requirement in ORS 137.076 that convicted felons submit a blood or buccal sample is reasonable under the totality of the circumstances and does not violate the Fourth Amendment to the United States Constitution.

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

1. ORS 811.540(1)(b)(A). Defendant also was convicted of the misdemeanor offense of fleeing or attempting to elude a police officer on foot. ORS 811.540(1)(b)(B).

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2. ORS 137.076 applies to persons convicted of certain other crimes in addition to those convicted of felonies. We have not been asked to, and we do not address the constitutionality of ORS 137.076 as it applies to persons convicted of crimes other than felonies.

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3. ORS 137.076 provides, in part:

"(1) This section applies to any person convicted of:

"(a) A felony;

"* * * * *

"(2) When a person is convicted of an offense listed in subsection (1) of this section:

"(a) The person shall, whether or not ordered to do so by the court under paragraph (b) of this subsection, provide a blood or buccal sample at the request of the appropriate agency designated in paragraph (c) of this subsection.

"(b) The court shall include in the judgment of conviction an order stating that a blood or buccal sample is required to be obtained at the request of the appropriate agency and, unless the convicted person lacks the ability to pay, that the person shall reimburse the appropriate agency for the cost of obtaining and transmitting the blood or buccal sample. If the judgment sentences the convicted person to probation, the court shall order the convicted person to submit to the obtaining of a blood or buccal sample as a condition of the probation.

"(c) * * * The appropriate agency shall be:

"(A) The Department of Corrections, whenever the convicted person is committed to the legal and physical custody of the department.

"(B) In all other cases, the law enforcement agency attending upon the court."

ORS 137.076 further provides that no sample is required if taking the sample would pose a substantial or unreasonable risk to the health of the convicted person and that its terms apply retroactively to anyone who was convicted of one of the enumerated crimes since 1991 and presently is incarcerated or on probation for that offense. ORS 137.076(4)(b) and (5).

Another statute, ORS 181.085, sets out procedures and rules for the storage, analysis, and use of the samples collected under ORS 137.076. In addition, among other things, ORS 181.085 provides that any person ordered to provide a sample under ORS 137.076 whose conviction later is reversed can request the destruction of the sample and any criminal identification record created in connection with that sample. ORS 181.085(8)(a).

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4. Defendant was sentenced to 18 months' probation on the misdemeanor conviction as well.

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5. Nor do we think that the fact that taking a blood or buccal sample involves a physical intrusion into the convicted person's body distinguishes in a meaningful way that type of search and seizure from other types of searches commonly conducted on prisoners, probationers, and other conditional releasees. First, taking a swab from a person's cheek is only minimally invasive and involves little or no risk or even discomfort to the person providing the sample. Moreover, in this day and age, and with the protections that ORS 137.076 affords in designating how and by whom blood samples are to be taken, see ORS 137.076(3)(a) (blood sample may only be drawn in medically acceptable manner by licensed professional or person acting under such person's direction or control), we also do not think that blood extractions from convicted persons constitute an unduly invasive imposition on an individual's bodily integrity.

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6. In reaching that conclusion, we do not suggest that prisoners, probationers or other conditional releasees forfeit all rights they might have under Article I, section 9, of the Oregon Constitution. Our holding in this case is limited to the relatively narrow issue presented by the present facts.

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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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