S53232 Liberty v. State Dept. of Transportation

SUPREME COURT CASES

Laws-info.com » Cases » Oregon » 2006 » S53232 Liberty v. State Dept. of Transportation

State: Oregon

Docket No: none

Case Date: 11/24/2006

FILED: November 24, 2006

IN THE SUPREME COURT OF THE STATE OF OREGON

JOHN P. LIBERTY,

Petitioner on Review,

STATE OF OREGON,
DEPARTMENT OF TRANSPORTATION,

Respondent on Review,

and

COUNTY OF TILLAMOOK,

Defendant.

NICKLAUS A. GRAHAM,

Petitioner on Review,

STATE OF OREGON,
DEPARTMENT OF TRANSPORTATION,
and PARKS AND RECREATION DEPARTMENT,

Respondents on Review.

(CC 012082; CC 022066; CA A120225 (Control);
CA A120226; SC S53232)

On review from the Court of Appeals.*

Argued and submitted September 11, 2006.

Brian R. Whitehead, Salem, argued the cause and filed the brief for petitioners on review.

Brendan C. Dunn, Assistant Attorney General, Salem, argued the cause and filed the brief for respondents on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General, Salem.

BALMER, J.

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

The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

*Appeal from Tillamook County Circuit Court, Rick W. Roll, Judge. 200 Or App 607, 116 P3d 902, aff'd on recons, 202 Or App 355, 122 P3d 95 (2005)

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

BALMER, J.

This case requires us to determine the scope of the immunity that ORS 105.682 confers on a land owner who "permits any person to use the [owner's] land for recreational purposes[.]" The specific issue is whether ORS 105.682 grants immunity to a land owner that permits persons to cross its land to obtain access to other land where those persons will engage in recreational activities. Plaintiffs were injured on defendant's land, which plaintiffs crossed to get to land where they swam and picnicked. Plaintiffs sought recovery for their injuries, and defendant moved for summary judgment on the basis of the immunity statute. The trial court granted summary judgment to defendant, holding that ORS 105.682 provides immunity to owners of land who permit their land to be used to obtain access to other land for recreational purposes. Plaintiffs appealed, and the Court of Appeals affirmed, in an en banc decision, holding that crossing land to access other land on which to recreate amounted to the use of land for a recreational purpose. Liberty v. State Dept. of Transportation, 200 Or App 607, 116 P3d 902 (2005). We allowed plaintiffs' petition for review and, for the reasons set forth below, reverse the decision of the Court of Appeals and the judgment of the trial court.

We take the facts from the Court of Appeals opinion and the record. Plaintiffs and their families drove on Highway 6 to a paved turnout along the highway near the "Fisherman's Bridge" area of the Wilson River. Plaintiffs parked their cars in the turnout area and walked along an asphalt path that is parallel to the roadway and between the road's guardrail and a chain link fence. On the other side of the fence is a steep slope. The asphalt path and the underlying land is owned by defendant, the State of Oregon Department of Transportation. Plaintiffs and their families used the path to gain access to a footbridge that crosses the river to a riverside beach area owned by Willamette Industries and Kenneth Fan Rad. Willamette and Rad had opened the beach area to the public for recreational purposes. After swimming and relaxing at the beach area, plaintiffs re-crossed the footbridge and used the path owned by defendant to return to their cars. While walking on that path, the asphalt under plaintiffs' feet crumbled and plaintiffs slid under the fence and down the steep slope approximately 40 feet, sustaining injuries.

Plaintiffs filed separate actions against defendant to recover damages for their injuries. Defendant answered that ORS 105.682 granted it immunity, moved to consolidate the two actions, and moved for summary judgment on the basis of ORS 105.682.

ORS 105.682(1) provides:

"Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, woodcutting or the harvest of special forest products. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational purposes, woodcutting or the harvest of special forest products, and is not affected if the injury, death or damage occurs while the person entering land is engaging in activities other than the use of the land for recreational purposes, woodcutting or the harvest of special forest products."

The trial court succinctly stated the legal question presented by defendant's summary judgment motion as "whether the legislature intended immunity to attach to contiguous land for both the entry into and exit from recreational property." The trial court answered that question in the affirmative and granted defendant's motion for summary judgment.

Plaintiffs appealed, and the Court of Appeals affirmed. The court first determined that immunity under ORS 105.682 is available only if (1) the land owner permits any person to use the land for recreational purposes, without charge, and (2) the injury has "arisen out of the use of that land for such 'recreational purposes.'" Liberty at 614-15. Next, the court noted that the statute does not define "recreational purposes," but rather sets out, in ORS 105.672(5), a nonexclusive list of activities that the term "includes" -- a list that does not include the use of land to gain access to other land for recreational purposes on the latter property. Id. at 615. The court then examined the meaning of the words "recreational" and "purpose" and found that "purpose," according to Webster's Third New Int'l Dictionary, is "'an aim or end,'" or "'an object, effect or result aimed at, intended or attained.'" Id. at 616 (quoting Webster's Third New Int'l Dictionary 1847 (unabridged ed (2002)). "Recreational" means simply "'of or relating to recreation,'" and "recreation" is defined as "'the act of recreating or the state of being recreated.'" Id. (quoting Webster's at 1899). From those definitions, the court concluded that it "seems reasonably plausible that, when a person enters land for the purpose of gaining access to another parcel for recreational purposes, the access itself has a recreational purpose in that the end, object, result, or goal of the entry is recreation." Id. at 616.

The Court of Appeals also examined the legislative history of ORS 105.682 and determined that what limited evidence existed supported its interpretation of the statute. The legislature enacted the predecessor to ORS 105.682 in 1963. During the hearings on the bill to enact that earlier statute, a representative from the Oregon Farm Bureau testified that "his organization supported the bill because, among other things, 'in many cases an individual must cross private land in order to get to public lands; and the potential suit is always there. Such a bill [creating immunity] would relieve the landowner's mind if he allowed this.'" Liberty, 200 Or App at 617 (quoting Minutes, House Committee on Fish and Game, HB 1696, Apr 10, 1963, 2) (emphasis added by Court of Appeals). The court noted that no actual legislator had commented on that issue, but found that the quote indicated that legislators were aware that at least one member of the public viewed the act as providing immunity to lands used to gain access to public recreational lands. Id. at 617-18. The court also observed that the immunity statute had been amended on several occasions, but asserted that the legislative history of those amendments did not suggest that the legislature intended to alter the "basic thrust" of the statute. Id. at 618. Accordingly, the court held that ORS 105.682 protected defendant from liability for plaintiffs' injuries. Id. at 619. (1)

In this court, not surprisingly, the parties reiterate the arguments that they made below, with plaintiffs asserting that the Court of Appeals erred in its interpretation of the immunity statute and defendant arguing that the Court of Appeals was correct. Because the scope of the immunity that ORS 105.682 grants to landowners is a matter of statutory construction, we begin with the text of the statute. As noted, ORS 105.682 provides, in part, that "an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes * * * when the owner of land either directly or indirectly permits any person to use the land for recreational purposes[.]" (Emphasis added.) ORS 105.672(5) provides:

"'Recreational purposes' includes, but is not limited to, outdoor activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, nature study, outdoor educational activities, waterskiing, winter sports, viewing or enjoying historical, archaeological, scenic or scientific sites or volunteering for any public purpose project."

ORS 105.688 further defines the scope of the immunity granted to landowners by ORS 105.682 by providing, in part:

"(1) * * * [T]he immunities provided by ORS 105.682 apply to:

"(a) All public and private lands, including but not limited to lands adjacent or contiguous to any bodies of water, watercourses or the ocean shore as defined by ORS 390.605[.]"

Plaintiffs' argument is simply stated: Nothing in ORS 105.682 or in the definition of "recreational purposes" in ORS 105.672(5) refers to land that persons cross to gain access to other land for recreational purposes. Although ORS 105.682 provides immunity to a landowner for injuries incurred in the recreational use of its land, it does not expressly provide immunity to owners of land that is used only to gain access to other land in order to engage in recreational activities there. Plaintiffs contend that the Court of Appeals' conclusion -- that crossing one person's property to obtain access to another person's property for a recreational purpose is, in itself, a recreational purpose -- will lead to anomalous and arbitrary results, such as a providing immunity to a person whose negligence injures a child on that person's sidewalk if the child was on her way to a park for a picnic.

Defendant argues that the Court of Appeals correctly concluded that ORS 105.682 grants immunity to owners of land who open their land so that persons can gain access to another owner's land for recreational purposes. Defendant asserts that, when a person crosses one parcel of land to reach or to return from a second parcel of land where the person swims or engages in other recreational activity, the person has entered and used the first parcel of land "for recreational purposes." Defendant argues that its interpretation of the statute is supported by the dictionary definitions of the statutory terms. The definition of "purpose" includes "an object to be attained" and a "result aimed at." Webster's at 1847 (unabridged ed 2002). The definition of "recreational" is something "relating to recreation." Id. at 1899. Therefore, according to defendant, "a person uses a parcel of land for a purpose related to recreation when the person uses that parcel of land with the end, aim, object or goal of reaching an adjacent parcel of land where he plans to engage in [recreation.]"

In our view, the words that the legislature used in ORS 105.682 demonstrate its intent to grant immunity to only the owner of the land that itself is "use[d] * * * for recreational purposes," and that "recreational purposes" does not include crossing one person's land to gain access to another person's land to recreate there. We reach that conclusion for two primary reasons.

First, ORS 105.682 grants immunity only when the injury "arises out of the use of the land for recreational purposes." (Emphasis added.) That statute, of course, does not expressly grant immunity if the purpose of "the use of the land" is only to cross the land to gain access to different land on which recreation will occur, and we can reach the conclusion urged by defendant only if we determine that that "use" of "the land" constitutes a "recreational purpose." In interpreting a statute, we examine the text of the statute within its context. Here, an important part of the context of ORS 105.682 is another provision in the immunity law, ORS 105.688(1)(a), which does grant immunity if the injury occurs on land that is "adjacent or contiguous to any bodies of water, watercourses or the ocean shore as defined by ORS 390.605[.]" In that related statute, the legislature expressly extended the immunity conferred by ORS 105.682 to adjacent or contiguous land that is used to gain access to waters where the injured party intended to recreate. The fact that the legislature enacted ORS 105.688(1)(a) to provide immunity for injuries on land that is adjacent or contiguous to water -- water that persons travel to for recreational purposes -- strongly suggests that the legislature believed that ORS 105.682(1) otherwise did not extend to land that was "adjacent or contiguous" to places where persons go for recreational purposes. If the legislature similarly had intended to extend immunity to land -- often, adjacent or contiguous land -- that is used for access to other land where the person intended to recreate, it would have done so. It did not do so, and we decline to insert into the statute that which the legislature has omitted. ORS 174.010.

Second, the definition of "recreational purposes" in ORS 105.672(5) simply does not encompass a person's crossing of one landowner's land to reach another landowner's land where the person intends to recreate. Defendant contends that, under the dictionary definitions of "recreational" and "purpose," "a person's act of entering one parcel of land so he can access or leave a second parcel where he intends to swim is itself a 'use of the land' or 'entry upon the land' that is 'for recreational purposes.'"

We disagree. By providing in ORS 105.672(5) that the term "'[r]ecreational purposes' includes, but is not limited to, outdoor activities such as hunting, fishing [and other specified activities]," the legislature made it clear that its list of "outdoor activities" that could be "recreational purposes" was not exhaustive. When the legislature uses "nonspecific or general phrases" as well as a list of items, this court, under the principle of ejusdem generis, construes the statute "as referring only to other items of the same kind." Vannatta v. Keisling, 324 Or 514, 533, 931 P2d 770 (1997) (stating and applying principle). See also Lewis v. CIGNA Ins. Co., 339 Or 342, 350-51, 121 P3d 1128 (2005) (under ejusdem generis rule, court examines "basic characteristics" of enumerated items when construing more general words). With that principle in mind, we consider whether there is a characteristic trait among the "outdoor activities" listed in ORS 105.672(5) that also is shared by the act of crossing land to get to other land.

The first common trait of the enumerated items is that identified by the legislature itself: The activities all can take place outdoors. Traversing land parcel A to reach land parcel B, as plaintiffs did, is, of course, also an activity done outdoors, so it shares that trait with the listed items. But many other plainly nonrecreational activities, such as roofing a house or paving a road, also take place outdoors, so that trait does not provide any useful limiting characteristic or quality to identify which "outdoor activities" other than those specifically identified, are "recreational purposes" that come within the statutory definition.

Another common trait of the activities listed in ORS 105.672(5) is that the activities are recreational in and of themselves. With one possible exception, none of the specified activities is solely a means to a different recreational activity; each activity is an end in itself. (2) In contrast to each of the enumerated activities, the defining characteristic of crossing one land parcel to gain access to another land parcel is that the act of crossing is not an end or an activity unto itself, but rather is a means to a different end. For that reason, applying the ejusdem generis rule, crossing land to obtain access to other land is not an outdoor activity that comes within the definition of "recreational purposes" in ORS 105.672(5). (3)

We therefore disagree with defendant and the Court of Appeals that "recreational purposes" includes crossing one land parcel to gain access to another land parcel on which one will engage in a recreational activity such as swimming. The definition in Webster's of "purpose" as an "object" or "aim" is one common meaning of the word, but that meaning does not answer the dispositive question in this case -- it simply removes it one step. Although it is apparent that plaintiffs' ultimate "aim" or "object" in walking on the path was to swim -- a recreational activity listed in ORS 105.672(5) -- that conclusion only leads to a further question, "What was plaintiffs' purpose, aim, or object in entering defendant's land, which was not where the recreation was to take place?" Based on our analysis of the statute and the summary judgment record, we agree with plaintiffs that the "purpose" of plaintiffs' crossing of defendant's land was to travel to the land on which plaintiffs would engage in recreation. The activity of crossing a parcel of land, by itself, is not a recreational purpose. For that reason, we hold that ORS 105.682 does not grant immunity to defendant.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

1. The Court of Appeals rejected plaintiffs' argument that application of the immunity statute would lead to the absurd result that the state could not be liable for any accidents on a public highway leading to a public recreation area. The court noted that other statutes impose obligations on the state agencies responsible for maintaining highways. Liberty, 200 Or App at 619. Plaintiffs petitioned for reconsideration, arguing that the path on which they were walking at the time of the accident was itself a "state highway." The Court of Appeals granted the petition, but adhered to its prior opinion because it concluded that plaintiffs had offered no evidence, in responding to defendant's summary judgment motion, that the path was part of the state highway system. Liberty v. State Dept. of Transportation, 202 Or App 355, 122 P3d 95 (2005). Because of our disposition of the case, we do not address that issue.

Return to previous location.

2. The one possible exception -- an activity listed in ORS 105.672(5) that is both an end in itself as an outdoor activity and can also be a means to engage in another outdoor activity -- is hiking. One can hike as a recreational, outdoor activity -- an end in itself -- and as a means to another activity, such as swimming in a mountain lake. Defendant, however, does not claim that plaintiffs had been "hiking" on its land, and the evidence in the record indicates that plaintiffs' only purpose in walking along the narrow strip of asphalt between the guardrail and the fence was to gain access to the beach and river for purposes of swimming and playing with their friends and relatives.

Return to previous location.

3. Defendant argues that the legislative history of the 1963 version of the immunity statute supports its position because one witness testified that the statute would provide immunity from liability for injuries that occur on land that a person crossed to gain access to other land for recreational purposes. See Liberty, 200 Or App at 617-18 (describing that legislative history). We do not give substantial weight to that legislative history, in light of our analysis of the text and context of ORS 105.682, set forth above. Moreover, the immunity statutes were substantially rewritten in 1971 and again in 1995, and provisions that are central to our interpretation of the statute here -- including the definition of "recreational purposes" in ORS 105.672(5) and the provision extending immunity to land that is adjacent or contiguous to bodies of water, ORS 105.688(1)(a) -- do not appear in the 1963 version of the statute.

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