S53523 State v. Murray

SUPREME COURT CASES

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State: Oregon

Docket No: CCC020284CR;CAA120622;SCS53523

Case Date: 06/28/2007

FILED: June 28, 2007

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

JOSHUA JONATHAN MURRAY,

Petitioner on Review.

(CC C020284CR; CA A120622; SC S53523)

On review from the Court of Appeals.*

Argued and submitted November 7, 2006.

Shawn Wiley, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief were Peter A. Ozanne, Executive Director, Office of Public Defense Services, and Peter Gartlan, Chief Defender, Legal Division.

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

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

GILLETTE, J.

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

*Appeal from Washington County Circuit Court, Michael McElligott, Judge. 204 Or App 779, 132 P3d 62 (2006).

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

GILLETTE, J.

This criminal case requires this court to visit once again an old conundrum respecting the permissibility of punishing an individual criminally for reckless activity when the "victim" of that activity to some degree participated in the reckless conduct. Defendant argues that, under such circumstances, no criminal liability can be assigned to either participant. The trial court disagreed, convicting defendant of assault in the third degree, together with two counts of criminal mischief. (1) On defendant's appeal, the Court of Appeals affirmed the decision of the trial court without opinion. State v. Murray, 204 Or App 779, 132 P3d 62 (2006). We allowed defendant's petition for review and now affirm the decision of the Court of Appeals.

Although the parties state the essential facts somewhat differently, they do not appear to dispute them. Defendant owns an automobile shop where he converts conventional cars into racing machines by modifying a car's body, suspension, brakes, and engine. (2) The victim, Harris, was defendant's employee at the shop. On the night of February 24, 2001, defendant was "test-driving" a Volkswagen GTI that defendant and Harris had modified for racing. Defendant was driving; Harris was in the front passenger's seat, monitoring the car's performance in various respects both by using his own senses and by using a laptop computer. Defendant drove the car into a residential neighborhood where the speed limit was 35 miles per hour and accelerated the car to a speed in excess of 90 miles per hour. At that point, defendant lost control of the vehicle, which skidded into a power pole, sheared off the pole, and burst into flames. Defendant, who suffered a concussion, was able to get out on his own. Harris was severely injured; passersby pulled him out of the burning car.

Although Harris was defendant's employee, he did not feel coerced to participate in the test drives that defendant would make with cars on which the pair worked. Indeed, there were times when Harris drove and defendant observed. Thus, there is no question in this case that Harris's participation in the test drive of the Volkswagen on the night in question was voluntary.

As noted, defendant was charged, inter alia, with assault in the third degree in connection with the crash of the Volkswagen. Assault in the third degree is defined in ORS 163.165. That statute provides, in part:

"(1) A person commits the crime of assault in the third degree if the person:

"(a) Recklessly causes serious physical injury to another by means of a deadly or dangerous weapon." (3)

Defendant elected to waive his right to a jury trial and agreed to be tried by the court. At trial, defendant stipulated that Harris, the victim, was seriously physically injured in the crash, that defendant's own conduct in driving the car at the time was reckless, and that his recklessness led to Harris's injuries. Nonetheless, at the close of the state's case, defendant moved for a judgment of acquittal on the assault charge on the ground that, viewing the facts in the light most favorable to the state, the evidence established that the victim had been a knowing participant in the recklessness and, as a consequence, there was no "legal causation" on which to base a conviction. In so moving, defendant relied on State v. Petersen, 270 Or 166, 526 P2d 1008 (1974), which we address in depth later in this opinion. As noted, the trial court disagreed with defendant and found him guilty, and the Court of Appeals affirmed the conviction without opinion.

We begin by examining the statute that defendant was convicted of violating, ORS 163.165. Under that statute, a person is guilty of third-degree assault if he recklessly "causes" injury to "another" using a dangerous weapon. To discern the meaning of ORS 163.165, we employ the familiar methodology for statutory construction that this court first described in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). Under that methodology, we first examine the words of the statute in context. Id. at 610-11. If the meaning of the statute is clear at that first level of analysis, then we proceed no further. Id. at 611.

The word "cause" is not defined in the criminal statutes. It is, however, a word of common usage, which we presume the legislature intended to be given its plain, natural, and ordinary meaning. Id. The dictionary defines the verb "cause" as follows: "1: to serve as a cause or occasion of : bring into existence: MAKE (careless driving ~s accidents) * * * 2: to effect by command, authority or force." Webster's Third New Int'l Dictionary 356 (unabridged ed 2002).

In addition, what a person must cause under ORS 163.165, in order to be guilty of third-degree assault, is a serious physical injury to "another." The statute contains no express limitation on who the victim might be and contains no provision respecting the victim's mental state. Nothing in the foregoing text (or the context) of ORS 163.165 suggests that the legislature intended to carve out an exception for harm done to willing participants in the conduct. Based on our review of the text and context to this point, therefore, a person commits third-degree assault under ORS 163.165 if he or she recklessly brings about, makes, or effects by force the serious injury of another person with a dangerous weapon, no matter the role of the other person in the reckless conduct.

At the first level of analysis of a statute, this court also considers case law interpreting that statute. See State v. Toevs, 327 Or 525, 532, 964 P2d 1007 (1998) (so stating). In that regard, defendant suggests that this court in Petersen effectively redefined the concept of legal responsibility in cases of this kind. (4) After that case, according to defendant, a person cannot be said to have legally caused a result to a victim if the victim was a willing participant in the conduct that led to the harm to the victim. As we shall show, however, defendant reads too much into this court's decision in Petersen.

In Petersen, two cars were involved in a speed contest. The defendant was the driver of one of the vehicles; the victim was a passenger in the other and a willing participant in the race. The two vehicles raced through city streets in Portland, reaching speeds of 60 to 80 miles per hour. After about a half-mile, the two vehicles approached an intersection with Powell Boulevard. The defendant, whose pickup truck had been in the lead for most of the race, decelerated as he approached Powell, coming to a complete stop at the intersection. The driver of the car in which the victim was riding passed defendant and proceeded, without slowing down, into the intersection, where his car was struck by a truck traveling west on Powell. Both the driver of that car and the victim were killed in the collision.

The defendant was charged with, among other offenses, second-degree manslaughter, for recklessly causing the death of the passenger in the other racing car. (5) Under ORS 163.125, a person commits the crime of second-degree manslaughter if he or she recklessly "causes the death of another human being." (6) The defendant was convicted of that crime in the trial court. He appealed his conviction to the Court of Appeals, which affirmed in a divided decision. State v. Petersen, 17 Or App 478, 522 P2d 912 (1974). The Court of Appeals majority held that the defendant's conduct was the "cause in fact" of the victim's death, insofar as it was a substantial factor in bringing it about. Id. at 489. In addition, the court held that the defendant's conduct was the legal cause of the accident, because the victim's death had been within the area of risk that the rules of caution that the defendant had violated were intended to minimize. Id. at 489-90.

Chief Judge Schwab dissented. Judge Schwab began by defining the pertinent inquiry as whether the defendant's conduct was the legal cause of the victim's death, which, he opined, is "ultimately a policy question." Id. at 495. He then went on to state that, in his view, "policy considerations are against imposing responsibility for the death of a participant [] in a race on the surviving racer when his sole contribution to the death is the participation in the activity mutually agreed upon." Id. at 495-96 (emphasis in original; footnote omitted).

In support of his basic proposition, Chief Judge Schwab described several other scenarios that could lead to the death of one of the participants, but in which he would not find a survivor legally responsible: a game of Russian roulette where one of the participants shoots and kills himself; an automobile race at a race track where one of the racers is involved in a fatal crash; and risky recreational activities such as skydiving, deep sea diving, or even ocean fishing in inclement weather, where all involved know that there is a risk of death and one of the participants in fact dies. Chief Judge Schwab concluded,

"My point is that people frequently join together in reckless conduct. As long as all participants do so knowingly and voluntarily, I see no point in holding the survivor(s) guilty of manslaughter if the reckless conduct results in death. Contrary to the majority, I find no expression of legislative policy on this issue in the manslaughter statute, or in any other statute. The issue here is 'legal causation,' an issue which has been traditionally left to the courts."

Id. at 497-98.

After the Court of Appeals affirmed the defendant's manslaughter conviction in Peterson, the defendant sought review in this court. In a very short opinion, this court reversed. As pertinent here, this court, after briefly reviewing the majority holding below, stated,

"Chief Judge Schwab dissented, expressing the opinion that ORS 163.125 should not be interpreted to extend to those cases in which the victim is a knowing and voluntary participant in the course of reckless conduct. We agree with the reasoning in the dissenting opinion and adopt it as the opinion of this court."

Petersen, 270 Or at 167-68.

Petersen predates by almost 20 years this court's articulation of its statutory construction methodology in PGE. The court, therefore, did not follow that methodology in interpreting ORS 163.125, nor could it have been expected to. It is a fact, however, that neither this court nor Chief Judge Schwab specifically relied on the statutory wording or its context in interpreting that statute. Instead, as noted, Chief Judge Schwab based his interpretation on his own view of an appropriate legislative policy respecting legal causation, and this court adopted that reasoning wholesale. Nonetheless, as this court has had occasion to state, in one form or another, on many occasions, considerations of stare decisis weigh particularly heavily when this court has purported to interpret a statute. See, e.g., State v. Ciancanelli, 339 Or 282, 290, 121 P3d 613 (2005) ("A decent respect for the principle of stare decisis dictates that this court should assume that its fully considered prior cases are correctly decided."). Accordingly, to the extent that this court, in Petersen, truly and authoritatively interpreted the scope of the word "cause" in the manslaughter statute (and to the extent that that interpretation is equally applicable in other criminal statutes, including, as pertinent here, ORS 163.165), then this court considers itself bound by that interpretation, because the legislature has not changed that statute in any material respect since the court announced its opinion in Petersen in 1974.

That said, we turn to examine what was actually before the court in Petersen and what the court actually held there. In Petersen, the defendant's conduct -- even if it was reckless -- did not cause the victim's death; the defendant's contribution was limited to participation in the speed contest. The victim was killed when a different person -- the driver of the car in which the victim was riding -- recklessly chose to speed into a busy intersection. Similarly, none of the examples that Chief Judge Schwab gave to illustrate his view of legal causation in the manslaughter statute are ones in which a potential defendant, by his or her own conduct other than mere participation in the risky activity, caused a victim's death. Thus, as we read Chief Judge Schwab's dissent in Petersen -- and this court's adoption of it -- that case stands for the proposition that the mere fact that two people both participate in reckless conduct at the same time and place does not mean that one of the participants necessarily brings about, makes, or effects by force a harm to the other participant; that result requires something more. Chief Judge Schwab succinctly articulated that precise point when he stated that, in his view, the court should not impose legal responsibility "for the death of a participant [] in a race on a surviving racer when his sole contribution to the death is the participation in the activity mutually agreed upon." Petersen, 17 Or App at 495-96 (first emphasis in original; second emphasis added; footnote omitted).

The foregoing discussion shows that nothing in Petersen holds that a participant in a reckless activity whose recklessness does bring about, make, or effect by force an injury to or the death of another person would not be criminally liable for the consequences of his or her conduct, even if the victim voluntarily placed himself or herself in a position to be so injured or killed. It follows that the court's holding in Petersen does not absolve defendant of criminal liability for his conduct in this case. Rather, after examining the text of ORS 163.165, in context, including this court's decision in Petersen, it is clear at the first level of our analysis of ORS 163.165 that a person commits third-degree assault if, in addition to participation in the reckless activity, that person's own recklessness causes -- i.e., brings about, makes, or effects by force -- serious physical injury to another by means of a deadly or dangerous weapon, regardless of the other person's willing participation in the reckless activity. Here, it is undisputed that, in that sense, defendant caused Harris's serious physical injuries; he stipulated that he was driving recklessly and that his reckless driving led directly to the crash that injured Harris. Under ORS 163.165, defendant is guilty of third-degree assault.

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

1. Defendant does not challenge the propriety of the two convictions for criminal mischief in this court; the sole issue before us concerns defendant's conviction for assault in the third degree.

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2. Defendant's customers are amateurs who race primarily on weekends.

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3. The "dangerous weapon" alleged in this case was the car.

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4. In Petersen, this court did not interpret the same statute, ORS 163.165, that is at issue here. Rather, that case concerned the interpretation of the second-degree manslaughter statute, ORS 163.125. However, the key inquiry in that case was the same as in the instant case, viz., whether one person recklessly "causes" an effect on another person (in that case, death) if the other person was a willing participant in the reckless conduct. Accordingly, we agree that this court's statutory analysis in Petersen provides relevant context for our decision in the present case.

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5. Apparently, the defendant was not charged with the death of the driver of the car in which the victim was the passenger.

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6. ORS 163.125 provides, in part:

"(1) Criminal homicide constitutes manslaughter in the second degree when:

"(a) It is committed recklessly[.]"

ORS 163.005(1), in turn, provides that a person commits criminal homicide if that person "intentionally, knowingly, recklessly or with criminal negligence causes the death of another human being."

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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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