S54287 Terhune v. Myers

SUPREME COURT CASES

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State: Oregon

Docket No: (SCS54287)

Case Date: 03/23/2007

FILED: March 23, 2007

IN THE SUPREME COURT OF THE STATE OF OREGON

CHIP TERHUNE
& LARRY WOLF,

Petitioners,

HARDY MYERS,
Attorney General,
State of Oregon,

Respondent.

(SC S54287)

En Banc

On petition to review ballot title.

Submitted on the record December 7, 2006.

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

Anna M. Joyce, Assistant Attorney General, Salem, filed the answering memorandum for respondent.

GILLETTE, J.

Ballot title referred to Attorney General for modification.

Kistler, J., dissented and filed an opinion in which Linder, J., joined.

GILLETTE, J.

This ballot title review proceeding brought under ORS 250.085(2) concerns the Attorney General's certified ballot title for an initiative petition that the Secretary of State has denominated as Initiative Petition 50 (2008). Initiative Petition 50, if adopted, would add a section to Article XV of the Oregon Constitution that would grant a tax credit to parents "who directly spend money for educational expenses" as defined in the proposed measure equal "to the amount of their expenses." The amount so allowed would be "capped" (the measure's term) at $200 per child for calendar year 2009, $400 per child for calendar year 2010, and $600 per child for each calendar thereafter. The legislature could increase the credit, but not decrease it. The legislature also could expand the list of educational expenses, but could not shorten it.

Petitioners are electors who timely submitted written comments to the Secretary of State concerning the content of the Attorney General's draft ballot title and who therefore are entitled to seek review in this court of the resulting certified ballot title. See ORS 250.085(2) (stating that requirement). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035(2)(a) to (d). ORS 250.085(5). As we shall explain, we conclude that certain of petitioners' challenges are well taken, and we therefore refer the certified ballot title back to the Attorney General for revision. See ORS 250.085(8) (authorizing that disposition).

The proposed measure consists of eight subsections. The central provision is subsection 2, which provides, in part:

"Parents who directly spend money for educational expenses listed in [subsection 5 of] this Section shall be granted an Oregon income tax credit equal to the amount of their expenses. The tax credit shall be capped at $200 per child for calendar year 2009; $400 per child for calendar year 2010; and $600 per child for calendar year 2011 and each subsequent calendar year." (1)

"Educational expenses" then are defined in subsection 5 as

"textbooks, transportation, activity fees, school uniforms, school activity uniforms, musical instruments, electronic devices used in a class or for homework, tuition, and registration fees."

(Emphasis added.) It is the proposed measure's authorization of a tax credit for tuition that lies at the heart of this case.

The Attorney General certified the following ballot title for Initiative Petition 50:

"AMENDS CONSTITUTION: PROVIDES STATE INCOME TAX CREDIT
FOR EDUCATIONAL EXPENSES FOR CHILDREN ATTENDING
KINDERGARTEN THROUGH HIGH SCHOOL

"RESULT OF 'YES' VOTE: 'Yes' vote provides state income tax credit for education expenses, including tuition, for children attending kindergarten through high school; reduces revenue available for state services.

"RESULT OF 'NO' VOTE: 'No' vote retains current law, which does not provide a state income tax credit for the educational expenses of children attending kindergarten through high school.

"SUMMARY: Amends constitution. Constitution currently contains no provisions relating to income tax credit for children's education expenses. Measure provides state income tax credit for educational expenses for children attending kindergarten through the 12th grade, children completing high school diploma equivalency. Tax credit is amount of expenses, up to $200 per child in 2009, increases to $600 by 2011. Applies to religious, private, public schools. Legislature may increase, not decrease, amount of tax credit. Parents claiming child as dependent and emancipated children not claimed as dependents are entitled to credit. Educational expenses defined as books, transportation, activity fees, uniforms, musical instruments, tuition, registration, electronic devices. Legislature may expand but not restrict qualified expenses list. Reduces revenue for state services; provides no replacement funds. Other provisions."

Petitioners challenge the Attorney General's caption, "yes" vote result statement, and summary.

ORS 250.035(2)(a) requires that an Attorney General's certified ballot title contain a "caption of not more than 15 words that reasonably identifies the subject matter of the state measure." (2) This court reviews a challenge to a caption to determine whether the caption "substantially compl[ies]" with that requirement. ORS 250.085(5). See also, e.g., Honeyman v. Myers, 342 Or 126, 130-33, 149 P3d 1147 (2006) (illustrating process). The caption is the cornerstone of the ballot title; it must identify the proposed measure's subject matter in terms that will, inter alia, inform potential petition signers and voters of the sweep of the measure. See, e.g., Dale v. Myers, 328 Or 466, 469-71, 980 P2d 157 (1999) (caption required to mention payroll deductions, although such deductions never mentioned in proposed measure itself, because primary subject matter was deduction process).

In the present case, petitioners argue -- and we agree -- that the principal effect of the proposed measure (among other important effects) will be to allow tax credits for parochial and other private school tuition. That is true because, under the state's present public education system, parents ordinarily do not pay tuition. Thus, although all the other expenditures listed in the measure are likely to be made by all parents, the credit for "tuition" runs in favor of the parents of children in religious and other private schools. Moreover, tuition expenditures are almost invariably the largest educational expense of parents who send their children to those kinds of institutions. Such a public policy choice -- whatever its merits -- would represent a very significant change in Oregon law, both by reducing the general fund by the collective total of the tax credits and by facilitating parents' desire to enroll their children, with the aid of public tax dollars, in parochial and other private schools. Those facts make the subject matter of the measure not merely a "tax credit." It is, instead, a tax credit aimed most specifically at lessening the tuition burden of those who choose to send their children to parochial or other private schools.

The Attorney General's caption blandly refers to a "tax credit for educational expenses." That may be accurate, but it hardly can be said to note, much less highlight, the actual major effect of the proposed measure. The caption must reflect specifically the proposed tuition offset aspect, as discussed above, if that is possible within the 15-word limit provided in ORS 250.035(2)(a). We believe that it is possible and therefore hold that the Attorney General's certified caption fails to comply substantially with the requirements of ORS 250.035(2)(a). We must refer the ballot title to the Attorney General for revision.

Petitioners challenge the Attorney General's "yes" result statement on the same ground that they advance respecting the caption, and we again agree that a modification is required. The "yes" result statement does mention "tuition," but again says nothing about who benefits from a tax credit for that expenditure. The Attorney General's certified ballot title is referred to the Attorney General for revision in that respect as well.

Finally, petitioners challenge the Attorney General's summary, arguing that the summary must include a description of Article I, section 5, of the Oregon Constitution, (3) to give prospective petition signers and voters perspective as to the policy choice they are being asked to make. We agree with the Attorney General that he was not required to include that material in his summary. We do note that, on remand, he is free to further consider the question and include that material, if he so chooses.

Ballot title referred to the Attorney General for modification.

KISTLER, J., dissenting.

The ballot title in this case accurately describes the terms of the proposed measure. The majority holds, however, that the ballot title is deficient. It reasons that the Attorney General should have gone beyond accurately describing the terms of the measure and "highlight[ed]" the measure's "actual major effect," which the majority perceives is lowering "the tuition burden of those [parents] who choose to send their children to parochial or other private schools." In my view, the factual assumptions that underlie the majority's holding are reasonably subject to dispute. Even if the Attorney General could have chosen to "highlight" the effect on tuition for religious and other private schools, a proposition that is far from clear, his decision not to do so substantially complies with his statutory obligation to describe the measure and its effects. Because I would certify the ballot title, I respectfully dissent.

The proposed measure, if enacted, would add a section to the Oregon Constitution granting a tax credit to parents for their children's educational expenses without regard to whether the child attends a public or a private school. The measure caps the amount of the tax credit at $200 per child in 2009, $400 per child in 2010, and $600 per child thereafter; it also allows the legislature to increase the cap. The measure defines educational expenses as the cost of "textbooks, transportation, activity fees, school uniforms, school activity uniforms, musical instruments, electronic devices used in a class or for homework, tuition, and registration fees." The legislature may expand the list of covered expenses but not narrow it.

The majority's holding rests on the proposition that "the principal effect of the proposed measure" is "to allow tax credits for parochial and other private school tuition." It bases that proposition on two premises. The majority notes initially that, "because, under the state's public education system, parents ordinarily do not pay tuition. * * * the credit for 'tuition' runs in favor of the parents of children in religious and other private schools." The majority then observes that, because "tuition expenditures are almost invariably the largest educational expense" for parents whose children attend private school, the "principal" or "actual major effect" of the measure is to subsidize the tuition costs of children attending private schools.

The factual premises on which the majority's holding rests are flawed. As the majority recognizes, children who attend public schools may pay tuition either to attend public school in another district or to participate, within their district, in educational programs, such as driver's education, that are not part of the regular school program. See ORS 339.115(1) (district may charge tuition to nonresident students); ORS 339.141(2) (district may charge tuition to resident students for certain educational programs) . The majority concludes, however, that a tax credit for tuition will "ru[n] in favor of the parents of children in religious and other private schools" presumably because it assumes that more parents will pay tuition for their children to attend private school than will pay tuition for their children either to attend a public school outside their district or to take courses, such as driver's education, within their district..

The factual assumption underlying the majority's conclusion may be correct or it may not. The difficulty, however, is that we have no record or other information before us that would permit us to determine whether that assumption is accurate. Without that information, the majority has no reliable basis for saying that more parents will pay tuition for their children to attend private school than will pay tuition for their children either to attend public schools in other districts or to take certain public school courses, such as driver's education. At a minimum, the Attorney General reasonably could choose to avoid the factual speculation on which the majority's decision rests and describe, as he did, the terms of the measure neutrally and accurately.

The factual premises underlying the majority's decision are flawed in a second, more substantial respect: the majority's decision never accounts for the effect of the cap on the tax credit. The proposed measure gives parents a tax credit for a variety of educational expenses but caps the credit at $200, $400, and $600 respectively for the 2007, 2008, and 2009 tax years. In identifying the "actual major effect" of the proposed measure, the majority focuses on the credit for tuition and discounts the credit for every other educational expense because "tuition expenditures are almost invariably the largest educational expense of parents who send their children to [private schools]."

The majority may be correct that, without a cap, the money that a parent will spend per child on private school tuition typically will exceed the money that a parent will spend per child on the other educational expenses for which the tax credit is available. The cap, however, limits the size of the available credit. Even if private school tuition ordinarily exceeds the other educational expenses borne by parents of public school children, that proportional difference is not relevant if the expenses paid by parents of public school children approach or exceed the cap on the tax credit that all parents may claim under the measure. In those circumstances, the parents of public school children will reap benefits from the measure roughly equal to those reaped by parents of private school children. The distinction that the majority believes to be the principal effect of the measure will not exist.

It may be that, as the cap on the tax credit increases from $200 to $600, a greater percentage of the credit will be used for tuition than for other educational expenditures. However, we have no factual basis for saying how much parents of public school children pay for musical instruments, athletic fees, or computers "used in a class or for homework" or how many parents pay those expenses. See Initiative Petition 51 § 5 (listing expenses subject to tax credit); ORS 336.183 (authorizing public schools to charge fees for before- and after-school programs); ORS 339.155 (authorizing public schools to charge fees for certain programs, activities, uniforms, towels, and musical instruments). The majority thus has no basis, other than its intuitive sense of the matter, for knowing whether the average cost of those expenses per child would consume or be less than the available tax credit.

More significantly, even if the average cost per child for private school tuition would consume the entire tax credit while the average cost for other educational expenses would not, we have no basis on this record for knowing whether the aggregate tax credits for private school tuition would exceed the aggregate tax credits for the other educational expenses. An example will illustrate the problem with the majority's analysis. Assume that 10,000 parents receive a $600 tax credit per child for private school tuition while 100,000 parents receive a $150 tax credit per child for other types of educational expenses. Even though the average tax credit for private school tuition would exceed the average tax credit for other educational expenses, the aggregate tax credit for other educational expenses would far exceed the aggregate tax credit for private school tuition, calling into question the principal or actual major effect of the measure that the majority perceives.

Given that uncertainty, I would be hesitant to posit, as the majority does, that the principal effect of the proposed measure "will be to allow tax credits for parochial and other private school tuition." See Nesbitt v. Myers, 335 Or 567, 572, 73 P3d 925 (2003) (stating that court should not engage in "speculation" or "an inappropriate factual investigation"); Kain v. Myers, 333 Or 446, 451, 41 P3d 416 (2002) (ballot title need not mention "conditional and conjectural" effects of measure). The degree to which parents would use the tax credit for tuition expenses (whether for public or private schools) as opposed to other educational expenses is far from clear. It may be that the majority's intuitive sense will prove correct, or the variables might be greater than the majority foresees. But it is precisely that uncertainty that, in my view, counsels against the requirement that the majority would impose on the Attorney General in this case. See Pelikan/Tauman v. Myers, 342 Or 383, 389, ____ P3d ____ (2007) (explaining that Attorney General may go beyond terms of ballot measure only when the effect of the measure is not reasonably subject to dispute).

At a minimum, I would not hold, as the majority does, that a caption that does not highlight tuition for "parochial and other private school[s]" fails to substantially comply with the Attorney General's statutory obligation to describe the subject matter and major effect of the measure. Even if it were permissible for the Attorney General to include that information in the caption, he legitimately could choose to avoid the uncertainty that the majority embraces; that is, the Attorney General legitimately could choose to write a neutral ballot title that accurately describes the measure's terms, leaving it to the advocates and opponents of the measure to debate its effects. Because I would certify the Attorney General's ballot title, I respectfully dissent.

Linder, J., joins in this dissenting opinion.

1. Subsection 3 confirms what subsection 2 already states: The tax credit applies for "each child" of the taxpayer. Subsection 4 provides that "child" means any person under 21 who is taking classes to complete grade levels from kindergarten through the twelfth grade.

Return to previous location.

2. When, as here, the proposed measure would amend the Oregon Constitution, the caption may contain two additional words, viz., "amends constitution." Those words appear in the Attorney General's caption for Initiative Measure 50.

Return to previous location.

3. Article I, section 5, of the Oregon Constitution provides, in part:

"No money shall be drawn from the Treasury for the benefit of any relig[i]ous, or theological institution * * *."

Return to previous location.

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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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