In re Complaint as to the Conduct of EDWARD N. FADELEY

FILED: February 23, 2007

IN THE SUPREME COURT OF THE STATE OF OREGON

In re Complaint as to the Conduct of

EDWARD N. FADELEY,

Accused.

(OSB 05-21; SC S53368)

On review of the decision of a trial panel of the Disciplinary Board.

Argued and submitted January 3, 2007.

Edward N. Fadeley, Creswell, argued the cause and filed the briefs for himself.

Mary A. Cooper, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the brief for the Oregon State Bar.

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

PER CURIAM

The accused is suspended from the practice of law for 30 days, commencing 60 days from the date of this decision.

*Durham and Walters, JJ., did not participate in the consideration or decision of this case.

PER CURIAM

In this lawyer disciplinary proceeding, the Oregon Star Bar (Bar) charged the accused with violating Oregon Code of Professional Responsibility Disciplinary Rule (DR) 9-101(A) (failure to deposit client funds in trust); DR 9-101(C)(3) (failure to render appropriate accounting of client funds); DR 2-106(A) (collecting clearly excessive fee); and DR 2-110(A)(3) (failure promptly to refund unearned fee). ⁽¹⁾ A trial panel of the Disciplinary Board found that the accused had violated each of those rules and suspended him for 30 days. On de novo review, we affirm the trial panel's decision.

In late December 2003, while the accused was on vacation, he received a telephone call from Tidrick, who was considering divorcing her husband. The accused and Tidrick spoke several times. When the accused returned from his vacation, he met with Tidrick on December 31, 2003, to discuss the dissolution of her marriage and the disposition of a business that Tidrick and her husband owned. The accused told Tidrick that he usually charged $250 per hour but that he charged a slightly higher rate for work he did while on vacation, such as for the telephone conversations that he and Tidrick had had the week before. The accused also told Tidrick that he would not take her case unless she paid him $10,000. Tidrick wrote the accused a check for that amount, which the accused deposited into his personal checking account, not into a lawyer trust account.

The accused understood that the $10,000 payment was a nonrefundable minimum fee, earned upon receipt, and treated it as such. Tidrick understood that the $10,000 payment was a retainer; that is, Tidrick understood that the accused would work on her case for the hourly fee that he had described and would refund any unearned portion of the retainer. The accused never presented Tidrick with, and Tidrick never signed, a written fee agreement memorializing either understanding.

Following their meeting, the accused began to work on Tidrick's case. On January 23, 2004, Tidrick sent the accused a letter terminating his representation of her and asking him to return the $10,000 retainer "less fees incurred." Tidrick also hired another lawyer to handle her divorce. That lawyer sent the accused a letter on February 9, 2004, repeating Tidrick's request for a refund. The accused responded that he considered the $10,000 nonrefundable. He stated, however, that he was willing to submit the matter to arbitration and asked Tidrick to tell him what sort of a refund she thought would be fair. The accused did not provide Tidrick with an accounting or give her any basis from which she could determine how much he owed her. Tidrick, for her part, did not agree to arbitration.

On September 23, 2004, Tidrick complained to the Bar regarding the accused's failure to refund the money that, in her view, he owed her. On March 31, 2005, the Bar filed a formal complaint against the accused, alleging the four violations set out above. After the Bar filed the complaint against him, the accused twice tendered $8,000 to the Bar to hold in escrow. The Bar declined to accept the tender. A trial panel held a hearing on the charges on December 7, 2005. On January 30, 2006, the trial panel found that the Bar had proved its allegations by clear and convincing evidence and concluded that the accused had violated all four disciplinary rules. The trial panel suspended the accused from the practice of law for 30 days, and the accused filed a request for review.

On review, the accused raises three arguments. ⁽²⁾ His initial argument concerns the composition of his trial panel. Bar Rule (BR) 2.4(a) provides that each trial panel "shall consist of 2 attorneys and 1 public member." The accused's trial panel consisted of an attorney, an "active emeritus" attorney, and a public member. An active emeritus attorney is a lawyer in good standing who has practiced law for the preceding 40 years and who limits his or her professional activities to "providing pro bono legal services to indigent clients * * * or volunteer service on the * * * Disciplinary Board." Bar Bylaw § 6.101(c). ⁽³⁾

The accused argues that an active emeritus attorney is not an "attorney" for the purposes of BR 2.4(a). Relying primarily on the definition of attorney in ORS 9.310, the accused contends that an attorney is a person who is authorized to engage in the general practice of law. The accused reasons that, because an active emeritus attorney can engage in only a restricted practice, an active emeritus attorney is not an "attorney" within the meaning of ORS 9.310 or BR 2.4(a). It follows, the accused concludes, that his trial panel did not consist of "2 attorneys and 1 public member," as BR 2.4(a) requires.

The difficulty with the accused's argument is that he looks to the wrong definition of attorney. We first identify the applicable definition of that term and explain why the accused's trial panel consisted of two attorneys, as BR 2.4(a) requires. We then discuss the two definitions of "attorney" on which the accused relies and explain why neither of those definitions applies.

BR 1.1(c) defines the term "attorney" as it is used in BR 2.4(a). BR 1.1(c) provides that, "[i]n these rules, [which include BR 2.4(a),] unless the context or subject matter requires otherwise: * * * 'Attorney' means a person who has been admitted to the practice of law in Oregon." That definition uses the present perfect tense, which generally refers to an action that occurred in the past and continues to the present. See John Eastwood, Oxford Guide to English Grammar 86 (1994) (explaining that "[t]he present perfect tells us about the past and about the present. We use it for an action in the period leading up to the present"). An active emeritus attorney qualifies as an "attorney" under BR 1.1(c). An active emeritus attorney is a person "who has been admitted to the practice of law" for at least 40 years and who presently is authorized to practice law, albeit for a limited class of clients (indigent clients) and with a specific fee arrangement (pro bono). It follows that, under the operative definition of "attorney," the accused's trial panel consisted of "2 attorneys," as BR 2.4(a) requires.

In arguing otherwise, the accused never discusses BR 1.1(c). Rather, he relies on the definition of attorney found in ORS 9.310, which provides:

"An attorney is a person authorized to represent a party in the written proceedings in any action, suit or proceeding, in any stage thereof. An attorney, other than the one who represents the party in the written proceedings, may also represent a party in court, or before a judicial officer, in which case the attorney is known as counsel, and the authority of the attorney is limited to the matters that transpire in the court or before such officer at the time."

What is now codified as ORS 9.310 "was enacted in 1864 and was intended to more or less recognize and preserve the old common-law distinction between a counselor and an attorney at law." See Lehman v. Knott, 100 Or 240, 245, 187 P 1109 (1920) (explaining source of ORS 9.310). As the last part of ORS 9.310 suggests, the purpose of drawing a distinction between counselors and attorneys at law was to define the respective authority of those classes of lawyers. See id. at 245-46 (considering whether one of plaintiff's lawyers who had appeared at trial for a limited purpose had authority to accept service of the notice of appeal). ⁽⁴⁾ Unlike the definition of attorney in BR 1.1(c), which expressly applies to BR 2.4(a), the definition of attorney in ORS 9.310 was not intended to address the question of who may serve on a trial panel under BR 2.4(a). ⁽⁵⁾

The accused also relies on BR 2.1(c). That rule defines who may represent an accused lawyer in a bar disciplinary proceeding. It provides that "[a]ny attorney admitted to practice law in Oregon may represent an accused unless the attorney" holds or has held one of seven positions within the Bar that could create a conflict of interest. BR 2.1(c). The rule on which the accused relies is inapposite. It does not define the word "attorney," either generally or for the purposes of BR 2.4(a). Rather, it identifies who may represent an accused lawyer in a disciplinary proceeding. The accused errs in arguing that an active emeritus attorney may not serve as one of the attorney members on a trial panel.

Having considered the accused's objection to the composition of the trial panel, we turn to his arguments on the merits of the charges against him. We begin with the charge that the accused violated DR 9-101(A), which requires a lawyer to deposit client funds in a lawyer trust account. On that issue, the accused contends that he and Tidrick entered into an oral agreement that the $10,000 fee was earned on receipt and was not refundable. ⁽⁶⁾ The accused reasons that, because he earned the $10,000 on receipt, he appropriately deposited it into his own bank account. As noted, Tidrick remembers their oral agreement differently.

We need not resolve that factual dispute to decide this case. Even if the accused and Tidrick orally agreed that the $10,000 minimum fee would be earned on receipt and not refundable, an oral agreement does not provide a sufficient basis for a lawyer to treat a client's funds as if they were his or her own. See In re Biggs, 318 Or 281, 293, 864 P2d 1310 (1994) (so stating). As this court explained in Biggs,

"Without a clear written agreement between a lawyer and a client that fees paid in advance constitute a non-refundable retainer earned on receipt, such funds must be considered client property and are, therefore, afforded the protections imposed by DR 9-101(A)."

Id.; see also In re Balocca, 342 Or 279, 287-88, ___ P3d ___ (2007) (following Biggs). Because there was no written fee agreement between Tidrick and the accused, the $10,000 remained Tidrick's property regardless of what she and the accused may have agreed orally. Under Biggs and Balocca, the accused violated DR 9-101(A) when he deposited the $10,000 fee into his personal checking account instead of a lawyer trust account. ⁽⁷⁾

On January 23, 2004, Tidrick explicitly terminated the accused's representation of her and requested a refund of all unearned funds. The accused, however, has never provided her with an accounting. ⁽⁸⁾ DR 9-101(C)(3) required an accounting because, as explained above, the $10,000 remained Tidrick's property until earned by the accused. We conclude that the accused violated DR 9-101(C)(3). See Balocca, 342 Or at 290 (reaching similar conclusion in similar circumstances).

The trial panel also found that the accused violated DR 2-106(A) and DR 2-110(A)(3) when he failed to refund the unearned portion of the $10,000 fee that he collected from Tidrick. See DR 2-106(A) ("A lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee."); DR 2-110(A)(3) (requiring "lawyer who withdraws from employment [to] refund promptly any part of a fee paid in advance that has not been earned"). On that issue, the accused does not contend that, if the $10,000 were a retainer, he earned all of it. ⁽⁹⁾ He relies instead on his argument that, under his oral agreement with Tidrick, the entire $10,000 was earned on receipt.

This court has held that a lawyer violates DR 2-106(A) "when he or she collects a nonrefundable fee, does not perform or complete the professional representation for which the fee was paid, but fails promptly to remit the unearned portion of the fee." In re Gastineau, 317 Or 545, 551, 857 P2d 136 (1993). The result is the same when, as here, a lawyer believes the fee to be nonrefundable but, because the client did not agree to that arrangement in writing, the fee actually is refundable. See Balocca, 342 Or at 291-92 (recognizing that proposition). The same conduct also constitutes a violation of DR 2-110(A)(3), which requires prompt repayment of unearned fees when the lawyer-client relationship ends. Id. at 292-93.

The final issue is the appropriate sanction for the accused's conduct. The trial panel suspended the accused from the practice of law for 30 days. The accused argues that, if he violated the four rules, a reprimand is sufficient. The Bar responds that the trial panel properly imposed a 30-day suspension but argues that we should order restitution as part of the sanction. In determining the appropriate sanction, we follow our well-established methodology. See In re Paulson, 341 Or 13, 29-34, 136 P3d 1087 (2006) (considering the duty breached, the lawyer's mental state, any actual or potential injury caused, any aggravating and mitigating factors, and this court's case law).

In this case, the accused's misconduct violated his duty to preserve Tidrick's property and his duty to the profession not to charge, collect, or retain unreasonable or improper fees. American Bar Association's Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards) 4.1 & 7.0. The accused knew or should have known that he was dealing improperly with Tidrick's funds, and his misconduct injured Tidrick because she did not, and still does not, have access to funds that rightfully are hers. Preliminarily, we conclude that an appropriate sanction for such misconduct is suspension. ABA Standard 4.12; see Balocca, 342 Or at 296-97 (reaching that conclusion on similar facts).

We also conclude that two aggravating factors and one mitigating factor are present here. The accused has substantial experience in the practice of law, having been a member of the Oregon State Bar since 1957 and a member of this court from 1989 to 1998. See ABA Standard 9.22(i) (identifying substantial experience in the practice of law as an aggravating factor). The accused was a member of this court when Hedges, Biggs, and Gastineau were decided. The accused, however, has refused to acknowledge that, under those decisions, his conduct was wrongful. See ABA Standard 9.22(g) (identifying refusal to acknowledge wrongful nature of conduct as an aggravating factor). The mitigating factor that is present is the accused's full cooperation with the Bar's investigation of this case. See ABA Standard 9.32(e) (identifying full cooperation as a mitigating factor).

The accused argues that his offers to arbitrate this matter and the fact that he tendered $8,000 to the bar should be viewed as mitigating factors. ABA Standard 9.32(d) identifies a "timely good faith effort to make restitution or to rectify consequences of misconduct" as a mitigating factor. In our view, the accused's offers to arbitrate do not qualify as such an effort. The accused prefaced his offers with a statement that he owed Tidrick nothing and, in making the offers, never provided her with an accounting, which would have permitted her to determine how much, in her view, he owed her. Similarly, the accused twice tendered an $8,000 check to the Bar to hold in escrow pending resolution of this matter, but that act does little to rectify the consequences of the accused's misconduct. Rather, it simply ensures that funds will be available for Tidrick if and when some entity (the trial panel, the court, or an arbitrator) determines that she is entitled to the unearned portion of the retainer. Although we do not view the accused's efforts as a mitigating factor under ABA Standard 9.32(d), we conclude that, on balance, the aggravating and mitigating factors are roughly equal in this case.

We turn to a consideration of our cases. In Balocca, this court suspended a lawyer for 90 days for violating DR 9-101(A), DR 9-101(C)(3), DR 2-106(A), DR 2-110(A)(3), and DR 5-105(C) (former client conflict of interest). 342 Or at 298. This case differs from Balocca in that the lawyer in that case violated an additional disciplinary rule, which the accused did not. Moreover, the court found several aggravating factors in Balocca, such as deceit during the disciplinary process, but no mitigating factor. Id. at 297.

This case is closer to In re Eakin, 334 Or 238, 48 P3d 147 (2002), in which this court suspended a lawyer for 60 days for violating DR 9-101(A), DR 9-101(C)(3), and DR 9-101(C)(4) (failure to return client property promptly). Although the accused did not violate DR 9-101(C)(4), as the lawyer in Eakin did, the accused violated a similar rule, DR 2-110(A)(3), which the lawyer in Eakin did not. Additionally, although the accused violated DR 2-106(A), which the lawyer in Eakin did not, that violation is cumulative of the accused's violation of DR 2-110(A)(3). See Balocca, 342 Or at 293 (so indicating). Finally, the aggravating and mitigating factors present in Eakin were similar to those present here except that the aggravating factors outweighed the mitigating factors. See 334 Or at 258. Those circumstances suggest that the accused should receive a similar or less severe sanction.

Another case suggests that the accused should receive a lighter sanction than the lawyer in Eakin did. In Hedges, this court suspended a lawyer for 63 days for violating former DR 9-101(B)(3) (1988) (failure to render accounting), former DR 9-101(B)(4) (1988) (failure to return client property promptly), DR 6-101(B) (neglect of a legal matter), DR 1-102(A)(3) (misrepresentation), and DR 1-103(c) (failure to cooperate with disciplinary investigation). 313 Or at 626. Although the accused violated the current versions of two of the rules violated by the lawyer in Hedges, the lawyer in Hedges also violated several other, unrelated rules. Those circumstances suggest that the accused should receive a less onerous sanction than the lawyer in Hedges.

We conclude that a 30-day suspension is appropriate in this case. Although the accused violated multiple disciplinary rules, all his violations stemmed essentially from one act -- his failure to recognize that he needed to reduce the fee agreement to writing. The circumstances here are slightly less egregious than they were in Eakin, and the accused's aggregate offenses are less than those of the lawyer in Hedges. Moreover, we note that the Bar has not argued that we should impose a greater sanction than 30 days. Accordingly, we conclude that a 30-day suspension is appropriate in this case.

In addition to suspension, the Bar asks the court to order restitution. Specifically, the Bar notes that the accused has acknowledged in his reconstructed accounting that the value of the services that he provided Tidrick is $3,310. It follows, the Bar contends, that the accused effectively has admitted that, if the money that Tidrick paid him were a retainer, he owes her $6,690. The Bar accepts the accused's reconstructed accounting and argues that we should order him, as part of the sanction, to pay Tidrick the unearned portion of the retainer.

Although BR 6.1(a) permits the court to award restitution in an appropriate case, ⁽¹⁰⁾ we decline to do so here. The accused did not refund Tidrick the unearned portion of the $10,000 because he took the view that, under their oral agreement, the funds were his. We have now held that the accused's view of his ethical obligations is not correct. The funds were Tidrick's, not the accused's. The accused held the funds in trust until he earned them. The accused has an ethical obligation to return the unearned portion of the $10,000 retainer promptly to Tidrick, and we have no reason to believe that, given our decision, the accused will not comply with that obligation.

The accused is suspended from the practice of law for 30 days, commencing 60 days from the date of this decision.

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Analysis and review provided by San Diego County Property line attorney.

1. The Oregon Rules of Professional Conduct became effective January 1, 2005. Because the conduct at issue in this case occurred before that date, we apply the Oregon Code of Professional Responsibility.

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2. The accused also makes two constitutional arguments. We decline to consider those arguments because neither is sufficiently developed for review. See State v. Amaya, 336 Or 616, 634 n 6, 89 P3d 1163 (2004) (declining to consider undeveloped constitutional argument).

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3. Bar Bylaw § 6.100(a) defines an active member of the Bar as "[a]ny member of the Bar admitted to practice law in the State of Oregon who is not an inactive or suspended member." It also provides that active members include active pro bono and active emeritus members. Bar Bylaw § 6.101(c) provides:

"The Active Emeritus category of active membership is available to lawyers in good standing: Who were admitted to practice law for the preceding 40 years; however, all 40 years of practice need not have been in Oregon; who limit their professional activities to providing pro bono legal services to indigent clients referred by pro bono programs certified under Section 13.2 of the Bar's Bylaws or volunteer service on the State Professional Responsibility Board or a Local Professional Responsibility Committee, the Disciplinary Board or as bar counsel; who do not engage in the private practice of law except as provided above and who obtain professional liability coverage through the Professional Liability Fund or the program referring the pro bono cases."

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4. Although the plaintiff in Lehman argued that a lawyer who had appeared at trial lacked authority to accept service of the notice of appeal, the court found that it did not need to decide that question because the lawyer who had accepted service had apparent authority to do so. 100 Or at 246.

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5. We note that, even if ORS 9.310 applies to BR 2.4(a), an active emeritus attorney qualifies as an attorney under that definition. ORS 9.310 defines an attorney as a "person authorized to represent a party in the written proceedings in any action, suit or proceeding, in any stage thereof." An active emeritus attorney may represent a party in written proceedings, and the Bar Bylaws do not place any restriction on either the type or stage of the proceedings in which an active emeritus attorney may appear. Rather, the bylaws limit only the type of clients (indigent clients) whom an active emeritus attorney may represent and the fee arrangement (pro bono).

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6. The accused points out that he memorialized that oral agreement in his notes of their conversation. The accused's handwritten notes are dated "12-31" and include, among other things, the phrase "$10,000 min fee."

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7. At oral argument, the accused argued that Biggs is no longer good law because that decision relied on In re Hedges, 313 Or 618, 836 P2d 119 (1992), which in turn relied on a legal ethics opinion that has been withdrawn. The accused's argument lacks merit for two reasons. First, in Hedges, the court looked to the legal ethics opinion for its persuasive value, not as if it were binding precedent. Second, although the specific ethics opinion was withdrawn, the Bar has adhered to the same reasoning in a different ethics opinion. See Oregon Formal Ethics Opinion 2005-151 (adhering to that reasoning).

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8. As described below, the accused created a reconstructed accounting of the time that he spent working on Tidrick's divorce in cooperation with the Bar's investigation of this case. The accused did not provide Tidrick with a copy of that accounting.

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9. The accused prepared a reconstructed accounting for the Bar in cooperation with its investigation of this case. That accounting shows that, multiplying the number of hours worked by an hourly rate, the accused earned $3,310; he worked 10.9 hours at a rate of $250 per hour and 1.8 hours at a rate of $325 per hour.

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10. BR 6.1(a) provides:

"In conjunction with a disposition or sanction referred to in this rule [such as suspension or disbarment], an accused may be required to make restitution of some or all of the money, property or fees received by the accused in the representation of a client, or reimbursement to the Client Security Fund."

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In re Complaint as to the Conduct of WILLIAM REDDEN

FILED: February 23, 2007

IN THE SUPREME COURT OF THE STATE OF OREGON

In re Complaint as to the Conduct of

WILLIAM REDDEN,

Accused.

(OSB 05-75; SC S53578)

En Banc

On review of the decision of a trial panel of the Disciplinary Board.

Argued and submitted January 4, 2007.

David J. Elkanich, Hinshaw & Culbertson LLP, Portland, argued the cause and filed the brief for the accused. With him on the brief was Peter R. Jarvis.

Jeffrey D. Sapiro, Disciplinary Counsel, Lake Oswego, argued the cause and filed the brief for the Oregon State Bar.

PER CURIAM

The accused is suspended from the practice of law for 60 days, commencing 60 days from the date of this decision.

PER CURIAM

In this lawyer disciplinary proceeding, the Oregon State Bar alleged that the accused violated former Oregon Code of Professional Responsibility Disciplinary Rule (DR) 6-101(B) ("A lawyer shall not neglect a legal matter entrusted to the lawyer."). ⁽¹⁾ The accused concedes that he had violated that rule. A trial panel of the Disciplinary Board imposed a 120-day suspension from the practice of law. The accused sought review, requesting that this court suspend him from the practice of law for 60 days. We review this case de novo. ORS 9.536(2). For the reasons that follow, we conclude that the appropriate sanction for the accused's violation is a 60-day suspension from the practice of law.

The following facts are not disputed. The accused was admitted to the Bar in 2002, and he has no previous disciplinary record. In December 2002, a client retained the accused to dispute a legal determination by a hearings officer that he owed his ex-wife $10,122.15 in arrearages for child support. At the accused's request, the trial court set a hearing. Subsequently, the client and his ex-wife agreed to stipulate to a lower amount in arrearages, and the client informed the accused of that agreement. The accused advised the trial court that the matter was resolved and that it could take the case off the hearing docket. The accused drafted a stipulation, but failed to have the ex-wife sign it and did not submit it to the court. In fact, as the accused concedes, from February 2003 to November 2004, he took no further action on his client's case.

In November 2004, the client complained to the Bar about the accused's conduct. The accused admitted to the Bar that he had allowed the client's legal matter to slip "to the bottom of the stack" and that he should have completed the stipulation. As a result, the Bar filed a complaint alleging that the accused had violated DR 6-101(B) by neglecting the client's legal matter. The accused did not respond, and the Bar filed a motion for an order of default. The trial panel granted the motion and issued an order concluding that the accused had violated DR 6-101(B). The trial panel requested memoranda from the accused and the Bar regarding the appropriate sanction. The accused did not submit a memorandum.

Subsequently, the trial panel found:

"The failure of the [a]ccused to respond in any way to his client and his failure to respond to the [c]omplaint of the [Bar] in this proceeding shows such a lack of interest in participating responsibly as a member of the Oregon Bar that the [t]rial [p]anel is of the opinion that the [a]ccused should be suspended from practice for a period of 120 days."

The accused does not challenge the trial panel's determination that he violated DR 6-101(B), and we agree that the accused violated that rule. The only issue presented here is the appropriate sanction. In determining a sanction, this court first considers "(1) the duty violated, (2) the accused's mental state, and (3) the actual or potential injury caused by the misconduct." In re Rhodes, 331 Or 231, 238, 13 P3d 512 (2000); American Bar Association's Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards). This court then may adjust the sanction if any aggravating or mitigating circumstances exist. Rhodes, 331 Or at 238. Finally, this court reviews Oregon case law for guidance in determining the appropriate sanction. In re Stauffer, 327 Or 44, 66, 956 P2d 967 (1998).

Here, the accused violated his duty to represent the client with reasonable diligence and promptness. ABA Standard 4.4. The accused concedes that he acted knowingly in failing to perform services diligently for his client. The accused also admits that he caused actual injury to his client because his client paid a $300 retainer to the accused, but received no benefit, and the accused failed to complete the settlement between the client and his ex-wife. The ABA Standards suggest a suspension when "a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client." ABA Standard 4.42(a).

We next consider whether any aggravating or mitigating circumstances are present. "[A]ggravating circumstances are any considerations, [sic] or factors that may justify an increase in the degree of discipline to be imposed." ABA Standard 9.21. The trial panel found one aggravating factor, i.e., that the accused's neglect of his client's matter constituted "a pattern of misconduct." ABA Standard 9.22(c). The Bar submits that, although the accused did not neglect the legal matters of multiple clients or commit multiple rule violations, he did neglect his client's matter at distinct periods of time. The Bar contends that those "distinct periods of time in which the [a]ccused should have, but did not act, constitutes a pattern of misconduct." Similarly, the trial panel opined that "the [a]ccused's neglect was on-going over many months and continued even after [the client] made attempts to contact the [a]ccused and learn about the status of his legal matter."

That reasoning blurs the elements of a "pattern of misconduct" that the Bar must prove to establish that aggravating circumstance. In order to prove a DR 6-101(B) violation, "the Bar must show a course of negligent conduct." In re Eadie, 333 Or 42, 64, 36 P3d 468 (2001) (internal quotation marks omitted; emphasis added). A "course" is "an ordered continuing process, succession, sequence, or series." Webster's Third New Int'l Dictionary 522 (unabridged ed 2002). Thus, DR 6-101(B) requires proof of a succession or series of negligent actions. Additionally, this court has stated that, in considering an allegation under DR 6-101(B), this court "view[s] a lawyer's conduct along a temporal continuum, rather than as discrete, isolated events." In re Magar, 335 Or 306, 321, 66 P3d 1014 (2003) (viewing continuum of accused lawyer's representation of client, lawyer did not neglect client's legal matter). However, as the following discussion demonstrates, the course of neglect inquiry under DR 6-101(B) is separate from the inquiry into a pattern of misconduct for purposes of sanction.

When considering the sanction issue, this court has found a pattern of misconduct in DR 6-101(B) cases when the accused lawyer engaged in similar misconduct in the past, the lawyer's conduct violated multiple disciplinary rules, or the lawyer neglected the legal matters of multiple clients. See, e.g., In re Obert, 336 Or 640, 653, 89 P3d 1173 (2004) (finding pattern of misconduct when accused lawyer had neglected several clients and committed multiple rule violations); In re Cohen, 330 Or 489, 501-02, 8 P3d 953 (2000) (finding pattern of misconduct because court had disciplined lawyer recently for similar neglect of client); In re Chandler, 306 Or 422, 430, 760 P2d 243 (1988) (finding pattern of misconduct when lawyer had neglected multiple clients and pattern spanned several years and two previous disciplinary proceedings). Following that same mode of analysis in deciding the appropriate sanction here, we view the accused's conduct during the entirety of his representation of his client. The accused's conduct constituted a serious neglect of his client's legal matter. However, the accused has no prior disciplinary history, and the record is devoid of any evidence that the accused engaged in similar professional misconduct in the past. The accused represented the client on one legal matter, not multiple matters. The Bar did not charge the accused with multiple rule violations, and it admits that the accused did not neglect other clients. We conclude that the Bar did not establish that the accused engaged in "a pattern of misconduct" under ABA Standard 9.22(c).

"[M]itigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed." ABA Standard 9.31. The trial panel found the following mitigating factors: (1) absence of a prior disciplinary record, ABA Standard 9.32(a); (2) absence of a dishonest or selfish motive, ABA Standard 9.32(b); and (3) inexperience in the practice of law, because the accused was admitted to practice in 2002, ABA Standard 9.32(f). Neither the Bar nor the accused disputes those trial panel findings. On the basis of the evidence in the record, we agree that those mitigating factors apply in this case.

We next consider this court's prior case law. The Bar contends that, in reviewing this court's case law, the 120-day sanction imposed here is within a permissible range of sanctions for the type of misconduct that the accused committed. The Bar cites several cases, but particularly relies on In re Meyer, 328 Or 220, 970 P2d 647 (1999), and In re Knappenberger, 340 Or 573, 135 P3d 297 (2006).

In Meyer, the accused lawyer violated DR 6-101(B) when he neglected a client's divorce matter. The client emphasized that his immediate concern was opposing his wife's request for temporary support. The lawyer failed to file the appropriate paperwork or respond to the wife's motions. The lawyer arrived unprepared to a settlement meeting and failed to provide opposing counsel necessary financial documentation, despite promising to do so. The trial court found the client in default and issued an order requiring the client to commence paying temporary support immediately. The lawyer did not inform his client of that order. Consequently, the wife garnished the client's wages. Meyer, 328 Or at 222-24.

This court suspended the accused lawyer in Meyer for one year. The court found that several aggravating factors were present, but found no mitigating factors. The lawyer had substantial experience in the practice of law, ABA Standard 9.22(i), and he refused to acknowledge the wrongful nature of his conduct, ABA Standard 9.22(g). More notably, he had several prior disciplinary offenses, which, in the court's view,

"taken together, carry significant weight in aggravation, because the presence of three prior disciplinary rule violations resulting in two separate sanctions demonstrate that the accused is careless with respect to his ethical obligations."

Id.at 229.

In Knappenberger, as in Meyer, the accused lawyer violated DR 6-101(B) by neglecting a client's divorce matter. 340 Or at 575. The lawyer had to file a qualified domestic relations order (QDRO) approved by the court with the client's husband's employer. Over a period of more than eight years, the lawyer neglected to take the steps necessary to finalize the QDRO, despite repeated requests to do so by his client, opposing counsel, and the husband's employer. Id. at 581.

This court suspended the accused lawyer in Knappenberger from the practice of law for one year. The court observed that two aggravating factors were present: the lawyer had two prior disciplinary cases in which he had committed four rule violations, ABA Standard 9.22(a), and he had substantial experience in the practice of law, ABA Standard 9.22(i). In mitigation, the Bar conceded that the lawyer lacked a dishonest or selfish motive, ABA Standard 9.32(b), and he fully had cooperated in the disciplinary proceedings, ABA Standard 9.32(e). Id. at 582-86. In examining pertinent case law, the court concluded that Meyer most resembled Knappenberger and that the mitigating factors in the latter case did not present a basis for distinguishing the two. Id. at 586-88. This court also stated:

"[A]ll the accused's offenses, taken together, 'present an unsettling record of violating the disciplinary rules.' * * * Indeed, they carry significant weight in aggravation, because their presence 'demonstrates that the accused is careless with respect to his ethical obligations.' [Meyer, 328 Or at 292]."

Knappenberger, 340 Or at 586.

The Bar maintains that it is not "suggesting that the [a]ccused be suspended from practice for as long as Meyer." Instead, it suggests that "[a] reduction in the sanction for the [a]ccused from the one year in Meyer to the 120 days imposed by the [t]rial [p]anel takes into account the differences in aggravating and mitigating factors in the two cases." The Bar misses two key distinctions between the case here and the facts in Meyer and Knappenberger. First, as noted earlier, in Meyer and Knappenberger, the accused lawyers' prior disciplinary violations added significant weight in aggravation. Here, the accused has no prior disciplinary offenses, and no aggravating factors are present.

Second, it appears that the trial panel in this case regarded the accused's default either as an aggravating factor or some form of misbehavior in determining the sanction. As we noted earlier, the trial panel stated:

"[T]he failure of the [a]ccused to respond in any way to his client and his failure to respond to the [c]omplaint of the [Bar] in this proceeding shows such a lack of interest in participating responsibly as a member of the Oregon Bar that the [t]rial [p]anel is of the opinion that the [a]ccused should be suspended from practice for a period of 120 days."

(Emphasis added.)

That was error. This court has held that an accused's failure to attend a trial panel hearing on a disciplinary complaint is not an aggravating factor. In re Schaffner, 323 Or 472, 481, 918 P2d 803 (1996) (so stating; court also noted disciplinary rules do not require an accused to attend trial panel hearing). Thus, we are not persuaded that Meyer and Knappenberger parallel this case.

Instead, we agree with the accused that this case is factually similar to In re LaBahn, 335 Or 357, 67 P3d 381 (2003). In LaBahn, the accused lawyer violated DR 6-101(B) when he knowingly neglected his client's tort claim against a retail store by failing to file proof of service with the trial court in a timely matter. The court dismissed the client's complaint. The lawyer did not inform his client of the dismissal and avoided his client's telephone calls. Only after the client asked another lawyer to look into the matter more than a year later did the client discover that the court had dismissed his case. Id. at 359-60.

This court found that three aggravating factors and three mitigating factors were present, but concluded that those factors were in equipoise. Id. at 363-64. This court then reviewed several analogous cases that involved similar misconduct and resulted in 60-day suspensions. See Schaffner, 323 Or at 472 (accused knowingly neglected clients' case for several months by failing to communicate with clients and opposing counsel); In reKissling, 303 Or 638, 740 P2d 179 (1987) (63-day suspension imposed, because accused lawyer had failed to investigate and pursue claims for several clients and had misled them about his inaction); In re Dugger, 299 Or 21, 697 P2d 973 (1985) (63-day suspension imposed when accused lawyer neglected client's case and misrepresented to the client the status of his case); In re Morrow, 297 Or 808, 688 P2d 820 (1984) (accused lawyer neglected to timely file a legal action, yet informed his client otherwise and advised client he was negotiating a settlement). The LaBahn court concluded that the accused lawyer's neglectful behavior merited a 60-day suspension. LaBahn, 335 Or at 367.

The accused lawyer in LaBahn and the accused in this case knowingly neglected their clients' legal matters for similar periods of time, causing their clients actual injury. Our review of this court's analogous cases indicates that a 60-day suspension is appropriate. As noted in In re Knappenberger, 337 Or 15, 32-33, 90 P3d 614 (2004), we "generally [have] imposed 60-day suspensions" in cases involving DR 6-101(B) violations comparable to the accused's violation.

After considering the factual circumstances of this case, the ABA Standards, and this court's case law, we conclude that the accused should be suspended from the practice of law for 60 days.

The accused is suspended from the practice of law for 60 days, commencing 60 days from the date of this decision.

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1. The Oregon Rules of Professional Conduct became effective January 1, 2005. Because the conduct at issue here occured before that date, we apply the Oregon Code of Professional Responsibility.

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PELIKAN v. MYERS

FILED: February 23, 2007

IN THE SUPREME COURT OF THE STATE OF OREGON

GLENN PELIKAN,

Petitioner,

v.

HARDY MYERS,
Attorney General,
State of Oregon,

Respondent.

(SC S54203 (Control))

CHARLES TAUMAN,

Petitioner,

v.

HARDY MYERS,
Attorney General,
State of Oregon,

Respondent.

(SC S54288)
(Cases Consolidated)

En Banc

On petition to review ballot title.

Submitted on the record January 8, 2007.

Kevin L. Mannix, of Kevin Mannix, PC, Salem, filed the petition for petitioner Pelikan.

Steven C. Berman, of Stoll, Stoll, Berne, Lokting & Shlachter, PC, Portland, filed the petition and reply to respondent's answering memorandum for petitioner Tauman.

Paul L. Smith, Assistant Attorney General, Salem, filed the answering memoranda for respondent. With him on the memoranda were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

KISTLER, J.

Ballot title referred to Attorney General for modification.

KISTLER, J.

These consolidated ballot title review proceedings brought under ORS 250.085(2) concern the Attorney General's certified ballot title for Initiative Petition 51 (2008). Because petitioners submitted timely written comments to the Secretary of State concerning the Attorney General's draft ballot title, they may seek judicial review of the certified ballot title. See ORS 250.085(2) (stating that requirement). We review the certified ballot title for substantial compliance with the requirements of ORS 250.035(2). See ORS 250.085(5) (stating standard of review). For the reasons explained below, we refer the ballot title to the Attorney General for modification.

This case arises in an unusual procedural posture. After receiving comments on the draft ballot title for Initiative Petition 51, the Attorney General wrote a letter to the Secretary of State describing the draft ballot title, the comments that he had received, and the modified ballot title that he intended to certify. However, instead of certifying the modified ballot title for Initiative Petition 51, the Attorney General mistakenly certified a ballot title for a different initiative petition. On review, all the parties agree, and so do we, that the ballot title that the Attorney General certified must be modified. See ORS 250.085(8) (requiring modification of ballot title that fails to substantially comply with ORS 250.035).

The dispute in this case concerns the ballot title that the Attorney General intended to certify. Petitioner Pelikan and the Attorney General urge us to certify that ballot title. Petitioner Tauman argues that the intended ballot title does not substantially comply with the requirements of ORS 250.035. Although ORS 250.085 generally contemplates review of certified ballot titles, this court has considered challenges to the ballot title that the Attorney General intended to certify. See Carley/Towers v. Myers, 340 Or 222, 132 P3d 651 (2006) (so doing). Following Carley/Towers, we turn to Tauman's objections to the intended ballot title.

The proposed measure, if adopted, would add the following text to the Oregon Revised Statutes:

"(1) In any civil action, no lawyer may charge a client a contingent fee in excess of the following:

"(a) 25% of the first $25,000 recovered, and

"(b) 10% of any recovery above $25,000[.]

"(2) A contingent fee means a fee where the lawyer is paid a fee as a percentage of any money which is awarded in a legal case.

"(3) This contingent fee limitation does not apply to costs and expenses, which may be fully reimbursed to the lawyer.

"(4) This Act takes effect upon passage and applies to all contingent fee agreements made on or after the effective date of this act."

The Attorney General intended to certify the following ballot title for Initiative Petition 51:

"LIMITS AMOUNT OF CONTINGENT FEES THAT LAWYERS MAY CHARGE CLIENTS FOR REPRESENTATION IN CIVIL CASE

"RESULT OF 'YES' VOTE: 'Yes' vote limits contingent fee lawyer may charge in civil case: 25% of first $25,000 recovered, 10% of recovery above $25,000.

"RESULT OF 'NO' VOTE: 'No' vote retains current law, placing no limitations on percentage of recovery in civil case that a lawyer can charge under a contingent fee agreement.

"SUMMARY: Current law does not define the phrase 'contingent fee' in lawyer-client context. Current law places no limitations on the percentage of recovery or award that a lawyer can charge a client as part of a contingency fee. Measure defines 'contingent fee' as a fee where lawyer is paid a percentage of money awarded to the client in a legal case. Measure limits the contingent fee that a lawyer may charge to a client in a civil case to no more than: (1) 25% of the first $25,000 recovered by the client; and (2) 10% of any recovery by the client above $25,000. Measure does not limit ability of lawyer to be reimbursed for all costs and expenses incurred. Other provisions."

Tauman challenges the caption, the "yes" vote result statement, the "no" vote result statement, and the summary.

A ballot title caption must contain "not more than 15 words that reasonably identif[y] the subject matter of the state measure." ORS 250.035(2)(a). Tauman argues that the caption fails to comply with that standard because its use of the word "limits" is misleading. Specifically, Tauman argues that the word "limits" implies that there is currently no limit on the amount of fees that a lawyer can charge a client in a civil case. He contends that such limits do exist.

We agree with Tauman that existing legal rules impose limits on the amount of fees that a lawyer can charge. See ORPC 1.5(a) (lawyer may not charge illegal or clearly excessive fee); ORPC 1.5(c)(1) (lawyer may not charge certain contingent fees in domestic relations cases). We disagree, however, that the use of the word "limits" in the caption implies that no limit currently exists.

To "limit" is "to set bounds or limits to: confine." Webster's Third New Int'l Dictionary 1312 (unabridged ed 2002). A "limit," in turn, is "something that bounds, restrains, or confines[;] * * * a prescribed maximum or minimum amount, quantity, or number." Id. The use of the word "limits" accurately describes what the proposed measure would do; the measure, if enacted, would limit the amount of the contingent fee that a lawyer may charge a client in a civil case. The fact that other laws impose different limits does not mean that the proposed measure would not limit contingent fees.

Tauman relies on Sizemore/Novick v. Myers, 332 Or 352, 29 P3d 1108 (2001), for a contrary view; however, that decision does not support his position. The summary in Sizemore/Novick stated that "[c]urrent law * * * limits political activity on government time" and that the proposed measure "would prohibit" public employees from collecting money for political purposes while at work. Id. at 357. In the context of that ballot title, the words "limits" and "would prohibit" implied that public employees currently enjoyed a limited right to collect political contributions on the job -- a proposition that was not accurate. Id. at 359-60. Unlike the use of the word "limits" in the ballot title at issue in Sizemore/Novick, the caption's use of "limits" in this ballot title is accurate.

Tauman also objects to the caption because it fails to state that the proposed measure's restrictions would apply only to lawyers for plaintiffs. Tauman recognizes that, by its terms, the measure applies to all lawyers. He argues, however, that the measure will affect only plaintiffs' lawyers and that the caption should reflect that effect. The Attorney General agrees that the proposed measure "would likely apply only to attorneys for plaintiffs." However, he argues that, because the measure is facially neutral, any reference to its effect on plaintiffs' lawyers would be an incomplete description of its terms. Alternatively, the Attorney General argues that, even if he could refer to the proposed measure's effect on plaintiffs' lawyers, he need not do so to substantially comply with ORS 250.035(2)(a).

The parties' dispute raises two separate issues. The first is whether the Attorney General may go beyond the terms of a measure to describe its effect. If he may, the second issue is whether that effect -- that the measure will fall only on plaintiffs' lawyers -- is part of the subject matter of the measure that the Attorney General must set out in the caption.

On the first issue, this court has explained that it will not speculate about the possible effects of a proposed measure. See Nesbitt v. Myers, 335 Or 567, 571-72, 73 P3d 925 (2003) (so stating); Kain v. Myers, 333 Or 446, 450-51, 41 P3d 416 (2002) (ballot title need not mention "conditional and conjectural" effects of proposed measure). The court has also recognized, however, that, when the effects of a measure are not reasonably subject to dispute, the Attorney General may (and sometimes must) go beyond the terms of the measure and mention those effects in the ballot title. See Kain v. Myers, 335 Or 228, 233-34, 64 P3d 1129 (2003) (requiring Attorney General to explain that general prohibition on payroll deductions for political purposes would affect unions).

In this case, the Attorney General does not dispute, and we agree, that a limitation on contingent fees will fall only on plaintiffs' lawyers, not on defense lawyers. The question that remains, however, is whether that effect is one that the Attorney General must mention in the caption. As noted, the caption must reasonably identify the "subject matter" of a measure. In this case, the subject matter of the measure is limiting contingent fees. It is certainly true that the measure will affect one group of lawyers, and the Attorney General could have chosen to mention that fact in the caption. But we cannot say that the omission of that effect from the caption means that the caption does not reasonably identify the subject matter of the measure, at least as long as we review for substantial compliance with statutory standards. See id. at 233 (recognizing that caption could but need not refer to effect on unions of general limitation on public payroll deductions).

Tauman also challenges the "yes" and "no" vote result statements. ORS 250.035(2)(b) and (c) require two "simple and understandable statement[s] of not more than 25 words" that describe the result if a state measure is approved and if it is rejected. The intended ballot title provides:

"RESULT OF 'YES' VOTE: 'Yes' vote limits contingent fee lawyer may charge in civil case: 25% of first $25,000 recovered, 10% of recovery above $25,000.

"RESULT OF 'NO' VOTE: 'No' vote retains current law, placing no limitations on percentage of recovery in civil case that a lawyer can charge under a contingent fee agreement."

Tauman argues that the "yes" vote result statement fails to comply with ORS 250.035(2)(b) because its "excessive use of numbers and percentages * * * is extremely confusing." We disagree. The few numbers mentioned in the "yes" vote result statement are relatively straightforward and understandable. They convey, in an accurate manner, important information regarding the effect that the proposed measure, if adopted, would have. That suffices to achieve substantial compliance with ORS 250035(2)(b). SeeNovick/Crew v. Myers, 337 Or 568, 574, 100 P3d 1064 (2004) ("yes" vote result statement should reflect a proposed measure's "most significant and immediate" consequences).

Tauman also argues that the "yes" vote result statement should refer to the fact that the measure will affect only plaintiffs' lawyers. We agree with Tauman that a significant consequence of this measure will be to limit the percentage of contingent fees that plaintiffs' lawyers can charge. Seeid. at 574 ("yes" vote result statement should reflect proposed measure's "most significant and immediate" consequences). Unlike the caption, the "yes" vote result statement should reflect that consequence. See Kain, 335 Or at 233-34 (concluding that "yes" vote result statement should include effect on unions of a general limitation on public employee payroll deductions).

Tauman argues that the "no" vote result statement inaccurately implies that current law places no limitation on the amount of contingent fees that a lawyer can charge. We agree that the "no" vote result statement conveys that implication. We also agree that the statement could mislead a voter. As noted, current law prohibits lawyers from charging illegal or clearly excessive fees. See ORPC 1.5(a) (lawyer may not charge illegal or clearly excessive fee). It is true, as the Attorney General argues, that the "no" vote result statement says that current law "plac[es] no limitations on percentage of recovery in civil case that a lawyer can charge under a contingent fee agreement" and that ORCP 1.5(a) does not limit contingent fees in terms of the percentage of any recovery. (Emphasis added.) But we think that the distinction the Attorney General draws is too fine. As Tauman argues, the "no" vote result statement implies that no limitation on contingent fees currently exists when limitations in fact do exist. See Kain v. Myers, 333 Or 75, 79, 38 P3d 266 (2001) (stating that "misstatements, even by implication, of either existing law or the law that the proposed measure would enact are not appropriate in a ballot title").

Finally, Tauman challenges the summary. ORS 250.035(2)(d) requires "[a] concise and impartial statement of not more than 125 words summarizing the state measure and its major effect." Tauman argues that the summary, like the "yes" vote result statement, must mention the measure's effect on plaintiffs' lawyers. Tauman also argues that the summary, like the "no" vote result statement, incorrectly implies that current law places no limitation on the amount of a contingency fee that a lawyer can charge. For the reasons stated above, both challenges are well taken. ⁽¹⁾

Ballot title referred to Attorney General for modification.       

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1. We have considered the other challenges that Tauman makes to the ballot title and reject them without further discussion.

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STATE OF OREGON v. GUZEK

FILED: February 15, 2007

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff on Review,

v.

RANDY LEE GUZEK,

Defendant on Review.

(SC S45272)

On remand from the United States Supreme Court.*

Submitted February 22, 2006.

Mary H. Williams, Solicitor General, Salem, filed the brief for plaintiff on review. With her on the brief was Hardy Myers, Attorney General.

J. Kevin Hunt, Oregon City, filed the brief for defendant on review. With him on the brief was Richard L. Wolf.

Before De Muniz, Chief Justice, and Carson, Gillette, Durham, Riggs, Justices, and Walters, Justice pro tempore.**

Gillette, J.

Defendant's sentence of death is vacated. The court's decision in State v. Guzek, 336 Or 424, 86 P3d 1106 (2004), is modified. The case is remanded to the circuit court for further proceedings.

*State v. Guzek, 546 US 517, 126 S Ct 1226, 163 L Ed 2d 1112 (2006).

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

GILLETTE, J.

This case is before us on remand from the United States Supreme Court. In our prior decision, we vacated defendant's death sentence and remanded his case to the trial court for a new sentencing proceeding. State v. Guzek, 336 Or 424, 86 P3d 1106 (2004) (Guzek III). In doing so, we addressed not only the issue that required (as the state conceded) remand for a new trial, but also several issues of law that defendant had raised and that we concluded were likely to arise on retrial. One of those issues involved the admissibility of certain "alibi" evidence at defendant's sentencing. We held that the Eighth Amendment to the United States Constitution provided defendant with the right to introduce that evidence during the penalty phase of his trial. The State of Oregon petitioned for a writ of certiorari from the United States Supreme Court concerning that determination and, on review, the Court subsequently vacated our decision in Guzek IIIand remanded the case to us for further proceedings not inconsistent with its opinion. Oregon v. Guzek, 546 US 517, 126 S Ct 1226, 163 L Ed 2d 1112 (2006). The parties have provided further briefing on the question, and we now are able to announce our ruling.

We begin by briefly summarizing the procedural history of this matter. Defendant was charged, along with two associates, with the 1987 shooting deaths of Rod and Lois Houser. Defendant's associates, who were with him during those shootings, confessed their involvement in the crime and named defendant as their leader. Despite alibi testimony provided by his grandfather and his mother during the guilt phase of his trial, a jury convicted defendant on two counts of aggravated murder and sentenced him to death. Following the penalty phase of that trial, however, this court concluded that the sentencing court had erred by not allowing the jury an opportunity to consider evidence that may have militated against a death sentence. As a result, this court affirmed defendant's two convictions, but vacated the death sentence and remanded the case for a new penalty-phase proceeding. State v. Guzek, 310 Or 299, 797 P2d 1031 (1990) (Guzek I).

At the conclusion of the second sentencing proceeding, a jury again sentenced defendant to death. On review, however, this court concluded that certain victim-impact evidence introduced by the state at the new proceeding was not relevant to any of the questions that a jury was required to consider under the statutory framework for imposition of the death penalty set out at ORS 163.150(1)(b) (1989). Consequently, the court remanded this case for a third sentencing proceeding. State v. Guzek, 322 Or 245, 906 P2d 272 (1995) (Guzek II).

Defendant's third penalty-phase proceeding began in 1997. At that new sentencing trial, defendant unsuccessfully sought to have the trial court instruct the jury regarding the possibility of a true-life sentence as a penalty option. To facilitate that instruction, defendant expressly waived all ex post facto guarantees that otherwise would have prevented the jury from considering such a sentencing option. Again, a jury sentenced defendant to death but, on review, this court held that the trial court's failure to give the requested instruction was reversible error. As a result, this court concluded that it again was required to vacate defendant's death sentence and to remand the case to the trial court for further proceedings. Guzek III, 336 Or at 430.

In Guzek III, we noted that defendant had raised other issues on review and we went on to address those that seemed likely to arise on remand. Id. Among them was a question regarding the admissibility at sentencing of defendant's previously adduced alibi evidence. Id. at 450. At his third penalty-phase proceeding, defendant had offered a transcript of his grandfather's earlier alibi testimony, as well as the live alibi testimony of his mother, as evidence militating against a death sentence. The trial court had excluded that evidence on relevance grounds. With regard to the transcript of the grandfather's testimony, we wrote in Guzek III:

"The transcript of defendant's grandfather's testimony -- like the transcript of any other witness's testimony -- was relevant and subject to consideration in the penalty phase, regardless of its substance, because it was 'previously offered and received' during the trial on the issue of guilt. ORS 163.150(1)(a); see also ORS 138.012(2)(b) (if reviewing court vacates death penalty, transcript of all testimony, all exhibits, and other evidence properly admitted in prior guilt- and penalty-phase proceedings deemed admissible in remanded penalty-phase proceeding). The trial court therefore erred in sustaining the state's objection to admission of that evidence."

Id. at 451. As to the admissibility of mother's live alibi testimony at defendant's sentencing, this court -- citing cases from the United States Supreme Court -- concluded that the Eighth Amendment to the United States Constitution required the jury to consider such evidence for sentencing purposes. Id. at 462-63. Two members of this court dissented from both of those rulings. See id. at 466-80 (Gillette, J., joined by Carson, C. J., dissenting).

As noted, the State of Oregon petitioned the United States Supreme Court for a writ of certiorari respecting the alibi evidence ruling, and that Court allowed the petition. On review, the Supreme Court chose to address directly only the narrow question of the mother's proffered live testimony. As to that testimony, the Court held that the state did indeed possess the authority to regulate, through exclusion, the live alibi testimony that defendant had sought to present. Oregon v. Guzek, 546 US at ___, 126 S Ct at 1232-33. According to the Court, three factors influenced that determination: (1) traditional sentencing concerns focused on how a defendant had acted in committing a particular crime -- by contrast, the alibi evidence at issue in the case at hand focused only on whether defendant had committed the crime at all; (2) the parties already had litigated the issue of defendant's guilt and a jury properly had found him culpable in the Housers' murders, with the result that the alibi evidence that defendant sought to present was a collateral attack on a previously determined matter -- an action typically discouraged as a matter of law; and (3) any negative impact arising from restrictions on defendant's ability to introduce new alibi evidence at sentencing was minimized by Oregon statutes giving defendant the right to present, at resentencing, all innocence-related exhibits and transcripts from his original trial. Id. Ultimately, the Court concluded that "the Eighth Amendment does not protect defendant's right to present the evidence at issue here." Id. at 1233. Noting that defendant also had asserted that he was nevertheless entitled to introduce that evidence to impeach any testimony from his associates that might be introduced at resentencing, the Court opined that this court was free to consider that question on remand. Id.

Following remand from the United States Supreme Court, this court asked the parties to submit supplemental briefing on three questions related to defendant's use of alibi-related testimony at his new sentencing proceeding: (1) whether such testimony is admissible under ORS 138.012(2)(b) ⁽¹⁾; (2) whether such testimony is admissible to impeach the testimony of other state witnesses; and (3) where, in the trial court record, had defendant preserved his arguments regarding those two issues. We turn first to our preservation-related inquiry.

On review, the state contends that defendant failed to preserve either of the alibi-related issues noted above. According to the state, defendant offered his mother's live alibi testimony at his third penalty-phase proceeding solely in mitigation of the propriety of a death sentence in his case. Consequently, the state argues, the other alibi-related issues present here were not preserved, because

"[t]he argument portion of defendant's opening brief did not include any argument that the alibi testimony was offered as impeachment evidence or was improperly excluded as impeachment evidence. Nor did defendant argue that the prior transcript testimony of his mother and grandfather was admissible under ORS 138.012(2)(b)."

(Internal citation to excerpt of record omitted.)

This court has made clear, however, that it may entertain such supplemental arguments on review despite the fact that they were not presented in the parties' opening briefs if those arguments nevertheless were encompassed within a broad legal issue that was adequately preserved and presented for the court's consideration. See, e.g., Gadda v. Gadda, 341 Or 1, 7-8, 136 P3d 1099 (2006) (argument presented for the first time on review in supplemental brief that husband had properly served notice of appeal to wife by mail or by delivery in domestic relations case was adequately preserved where broad legal issue before the court was whether husband had accomplished service by legally sufficient means). Here, after examining the supplemental briefing and excerpt of record provided by defendant, it is apparent that, after remand of defendant's initial death sentence, the admissibility of alibi evidence at the penalty phase of defendant's trial became an ongoing issue that was placed before the trial court on various occasions and rejected each time. Moreover, on review, defendant expressly assigned error in his opening brief to the trial court's exclusion of "any defense evidence of alibi or other evidence tending to negate guilt, in answer to and in impeachment of the transcript testimony of [codefendants]." As a result, we conclude that the broad legal issue regarding the admissibility of alibi evidence at the sentencing portion of defendant's trial was sufficiently preserved below and therefore is properly before this court for consideration. Consequently, this court also may consider the supplemental questions encompassed by that issue that we have asked the parties to address. We turn now to those questions.

As noted above, we first asked whether mother's alibi testimony was admissible under ORS 138.012(2)(b). ORS 138.012 focuses generally on the automatic review of death sentences and allows, among other things, a reviewing court to set aside a death sentence and remand for new penalty-phase proceedings if the reviewing court determines that prejudicial error occurred at the sentencing below. Paragraph (2)(b) of that statute sets forth the type of evidence that is admissible in the new proceedings. It provides:

"The new sentencing proceeding is governed by the provisions of ORS 163.150 (1), (2), (3) and (5). A transcript of all testimony and all exhibits and other evidence properly admitted in the prior trial and sentencing proceeding are admissible in the new sentencing proceeding. Either party may recall any witness who testified at the prior trial or sentencing proceeding and may present additional relevant evidence."

(Emphasis added.)

Defendant contends that mother's alibi-related testimony is indeed admissible under ORS 138.012(2)(b). He argues that such evidence is relevant and admissible per se by virtue of the fact that ORS 138.012(2)(b) expressly allows defendants involved in remanded capital sentencing proceedings to recall any witness who properly testified at any point during the prior trial and further provides that those defendants also may introduce all previously admitted evidence and exhibits.

The state, in response, argues that mother's live alibi testimony is admissible only to the extent that it is relevant to the specific questions that the penalty-phase jury must address. According to the state, mother's alibi evidence -- if believed -- tends to show only that defendant did not commit the aggravated murders of which he has been convicted. Because defendant's guilt is not at issue in the penalty phase, the state continues, that testimony is not relevant and therefore may be excluded. As to the transcripts of that same testimony taken from defendant's first trial, the state acknowledges that, in Guzek III, the court majority -- citing ORS 163.150(1)(a) and ORS 138.012(2)(b) -- declared such transcript evidence to be

"relevant and subject to consideration in the penalty phase, regardless of its substance, because it was 'previously offered and received' during the trial on the issue of guilt."

Guzek, 336 Or at 451 (quoting ORS 163.150(1)(a)). The state, however, respectfully suggests that this court has overstated the role of such evidence in remanded penalty proceedings because no statute presently provides that prior transcript testimony is indeed relevant regardless of its substance.

We turn first to the question of how -- if at all -- the prior transcript testimony at issue here can be used under ORS 138.012(2)(b). To answer that question, it is helpful to first understand the relationship between ORS 138.012 and ORS 163.150, and the common history that those statues share.

Taken together, ORS 138.012 and ORS 163.150 cover virtually all the aspects of sentencing and sentencing review that accompany an aggravated murder conviction. ORS 163.150 is aimed primarily at the initial sentencing proceeding that takes place in such cases. That statute calls for that proceeding to be conducted "in the trial court before the trial jury as soon as practicable." ORS 163.150(1)(a). Moreover, should an original juror be unable to perform a juror's function at sentencing, the statute also requires the trial court to draw randomly the name of an alternate to be seated on the sentencing jury, "notwithstanding the fact that the alternate juror did not deliberate on the issue of guilt." Id. The statute goes on to establish a template for conducting sentencing proceedings in aggravated murder cases and delineates the sentencing issues that a jury must consider, one of which is "[w]hether the defendant should receive a death sentence." ORS 163.150(1)(b)(D). Among other things, ORS 163.150(1)(a) provides:

"In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence including, but not limited to, victim impact evidence relating to the personal characteristics of the victim or the impact of the crime on the victim's family and any aggravating or mitigating evidence relevant to the issue in paragraph (b)(D) of this subsection; however, neither the state nor the defendant shall be allowed to introduce repetitive evidence that has previously been offered and received during the trial on the issue of guilt. The court shall instruct the jury that all evidence previously offered and received may be considered for purposes of the sentencing hearing."

ORS 138.012, by contrast, addresses (1) the direct review of death sentences meted out in the proceedings covered by ORS 163.150; and (2) the type of evidence that is admissible on remand should those death sentence proceedings be tainted by prejudicial error. Currently, the provisions of ORS 163.150 and ORS 138.012 are distinct from each other in the organizational scheme of the Oregon Revised Statutes. Prior to 1999, however, the text of ORS 138.012 was wholly contained within ORS 163.150 as an integral part of the latter statute. In 1999, the legislature separated the respective provisions of each statute, thereby creating ORS 138.012. Or Laws 1999, ch 1055, §§ 1-2. Before that occurred, however, this court decided State ex rel Carlile v. Frost, 326 Or 607, 956 P2d 202 (1998), and, in the process, construed former ORS 163.150(5)(d) (1997), the provision that subsequently would become ORS 138.012(2)(b) in 1999.

Like defendant in this case, the defendant in Carlile also had been convicted of aggravated murder and sentenced to death. Prejudicial error at sentencing, however, had forced this court twice to vacate that sentence, each time remanding the case to the trial court for a new penalty-phase proceeding. Before his third sentencing proceeding, the defendant filed a motion in limine seeking to suppress 53 items of state evidence that had been admitted in the previous guilt and penalty phases of his trial. The trial judge ruled in defendant's favor with regard to certain evidence relating to his future dangerousness, and the state subsequently sought a writ of mandamus challenging the propriety of the resulting suppression order.

At the time that this court took up that issue, former ORS 163.150(5)(d) (1997) provided:

"The new sentencing proceeding is governed by the provisions of subsections (1) and (2) of this section. A transcript of all testimony and all exhibits and other evidence properly admitted in the prior trial and sentencing proceeding shall be admissible in the new sentencing proceeding. Either party may recall any witness who testified at the prior trial or sentencing proceeding and may present additional relevant evidence."

(Emphasis added.) The defendant in Carlile argued that former ORS 163.150(5)(d) (1997) required the trial court to engage in "an analysis of relevance and a process of 'balancing' under OEC 403 to determine anew whether to admit evidence that was introduced during a prior proceeding." Carlile, 326 Or at 617-18 (internal footnote omitted). Drawing on the plain text of the statute, however, this court disagreed:

"Once again, we begin our analysis of the statute with an examination of its text and context, in an effort to ascertain the legislature's intent. The text of [former] ORS 163.150(5)(d) [(1997)] is clear. It provides that evidence properly admitted at the prior proceedings 'shall' be admissible at a penalty-phase retrial. Because of the use of the word 'shall' in the statute, the court has no discretion whether to admit evidence at the resentencing, if that evidence was properly admitted during the previous proceedings. The statute thus directs the court at the penalty-phase retrial to admit all previously admitted evidence, so long as the earlier court committed no legal error in admitting that evidence."

Id. at 617. Ultimately, this court concluded that the defendant's construction of former ORS 163.150(5)(d) (1997) was inconsistent with the statute's mandatory wording, which the court had held in similar cases to preclude consideration of relevance and prejudice. Id. at 618. Shortly thereafter, the legislature removed those particular provisions from ORS 163.150 (1997) and enacted ORS 138.012 in its place.

Ordinarily, Carlile would mark the end-point of our inquiry into the penalty-phase admissibility of the transcripts at issue in this case. If ORS 138.012(2)(b) simply had imported the text of former ORS 163.150(5)(d) (1997) into a new statutory numbering scheme, then the decision in Carlile would be sufficient to demonstrate that, in the penalty phase of an aggravated murder trial, previously admitted transcript testimony is admissible regardless of relevancy considerations.

However, when the legislature created ORS 138.012(2)(b) from provisions that had previously existed as former ORS 163.150(5)(d) (1997), it changed the phrase "shall be admissible" in the former statute to "are admissible" in the new statute. As a general rule,

"when a statute has been construed by the court of last resort of the state and is later reenacted, it is deemed that the legislature has adopted the court's construction unless the contrary purpose is clearly shown."

State v. Ford, 310 Or 623, 637 n 21, 801 P2d 754 (1990) (emphasis added); see also Overland et al. v. Jackson et al., 128 Or 455, 463-65, 275 P 21 (1929) (discussing rule). The question, then, is whether the textual change that accompanied the enactment of ORS 138.102(2)(b) clearly demonstrate a legislative intent to countermand this court's holding in Carlile.

Upon consideration, we conclude that the legislature's use of the word "are" in place of "shall," without more, falls short of "clearly" showing that the legislature intended to supplant the statute's mandatory command. Indeed, it appears to us that the actual effect is to maintain it. As this court long has acknowledged under its case law, even use of the word "may" -- often viewed as a purely discretionary term -- can be read to indicate a mandatory requirement when to do so reflects the legislature's intent. See, e.g., Dilger v. School District 24 CJ, 222 Or 108, 117, 352 P2d 564 (1960) ("If necessary to carry out the intention of the legislature it is proper to construe the word 'may' as meaning 'shall.'"); Donaghy v. Oregon-Washington R. & Nav. Co., 133 Or 663, 681-82, 288 P 1003 (1930) (in statute providing that contributory negligence "may" be considered by jury, "may" held to mean "must," importing duty to consider contributory negligence); Hubner v. Hubner, 67 Or 557, 560, 136 P 667 (1913) (in statute providing that marriage dissolution actions "may" be commenced in county in which either party resides, "may" means "shall" and precludes jurisdiction when parties file actions in counties where neither reside). That said, we find no true ambiguity in the legislative rewording of the statute. Both versions had the same substantive meaning.

Absent evidence of a clearly shown contrary purpose in ORS 138.012(2)(b), we conclude that this court's prior construction of former ORS 163.150(5)(d) (1997) in Carlile remains valid in its application to this case. That conclusion is in accord with an observation that this court made not long ago in another death sentence case, State v. Langley, 331 Or 430, 432 n 1, 16 P3d 489 (2000):

"In enacting ORS 138.012, the 1999 Legislature renumbered the statute that described this court's review authority in death-penalty cases, but made no substantive change to that authority."

As a result, we hold that, pursuant to ORS 138.012(2)(b), a transcript of all testimony properly admitted in defendant's prior trial and sentencing proceedings -- which, in this case, encompasses both mother's and grandfather's previously received alibi testimony -- is admissible on remand in defendant's new penalty-phase proceeding without regard to issues of relevancy or balancing.

Having addressed the admissibility of transcript alibi evidence at defendant's new sentencing trial, we turn now to consider the same issue as it pertains to mother's live testimony. As already noted, defendant argues that such testimony is admissible because, in remanded capital sentencing cases, ORS 138.012(2)(b) allows defendants to recall any witness who properly testified at any point during the prior trial and, according to defendant, essentially repeat their previous testimony. That testimony, defendant contends, is admissible per se under the statute because, along with the transcripts of prior testimony and previously admitted exhibits, it comprises part of the "other evidence properly admitted in the prior trial and sentencing proceeding." ORS 138.012(2)(b).

That argument fails for several reasons. First, defendant incorrectly has conflated the evidentiary record provision of ORS 138.012(2)(b) with the statute's live testimony provision. Live testimony is not the same as "a transcript of all testimony, and all exhibits and other evidence properly admitted in the prior trial and sentencing proceeding." Id. (emphasis added). As the statute's past-tense reference makes clear, the admissibility of those evidentiary elements is predicated on the fact that, at a new sentencing proceeding, each of those elements already is part of the evidentiary record and, as such, is able to stand alone without resort to the multitude of procedures that are part of the adversarial process at trial. The same cannot be said of a witness's live testimony, even if the words spoken on the witness stand have been spoken before.

Second, defendant fails to acknowledge that, unlike the transcript testimony discussed above, the plain terms of ORS 138.012(2)(b) make live testimony from a prior witness admissible under the statute only insofar as that testimony encompasses "additional relevant evidence." The phrase "relevant evidence" has a well-established meaning and application under Oregon law. OEC 401 of the Oregon Evidence Code provides:

"'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

That standard of relevancy applies in penalty-phase proceedings. State v. Stevens, 319 Or 573, 580, 879 P2d 162 (1994). Except as otherwise provided as a matter of law, "[e]vidence which is not relevant is not admissible." OEC 402.

In Guzek II, this court explored the doctrine of relevancy at some length. Among other things, the court held that the function of the doctrine required "that there be some rational relationship between the item of evidence offered by a litigant and the substantive issues properly provable in the case." 322 Or at 251 (emphasis added). More specifically, the court recognized the role materiality played in a relevancy analysis:

"Relevance under OEC 401 merges two traditional concepts--relevance and materiality--into a single definition, using the term "relevant" to embrace the two. The traditional concept of relevance concerns the relation between the facts in evidence and the conclusions to be drawn from them, while materiality concerns the relation between the proposition for which evidence is offered and the issues in the case. Under OEC 401, an offered item of evidence may be excluded as irrelevant for either of two quite distinct reasons: (1) because it is not probative (i.e., does not have any tendency to prove or disprove, or to make more probable or less probable) of the fact or proposition at which it is directed, or (2) because that fact or proposition at which the item is directed is not provable in the case, i.e., is not 'of consequence ['material'] to the determination of the action.' Thus, relevance under OEC 401 is not only a relational concept, it is also a legally substantive or definitional one."

Id. (internal citations omitted; brackets in original).

In this case, the live alibi testimony that defendant wishes to present has only one purpose: to convince a sentencing jury of his innocence, even though that jury will be powerless to alter the fact of his conviction. That goal is not relevant in a sentencing proceeding and, unlike the transcript and exhibit provisions of ORS 138.012(2)(b) discussed above, relevancy clearly is a factor with regard to the live testimony offered under the statute. It is axiomatic that, having been convicted of the aggravated murders at the heart of this matter, defendant's innocence is no longer a "substantive issue properly provable" in this case. Previous trial proceedings already have dispositively adjudicated defendant's guilt, and alibi evidence to the contrary -- unless otherwise provided for as a matter of law -- is neither relevant nor material for sentencing purposes. On this record, we hold that mother's live alibi testimony is not relevant in the sentencing context of this case and therefore is not admissible as a matter of state law.

Finally, we take up the remaining question before us: is mother's live alibi testimony admissible to impeach the testimony of other state witnesses? Defendant contends that it is. Specifically, he argues that, under Oregon evidentiary law, he is entitled to impeach the testimony of his codefendants by having his mother testify that he was not present at the crime scene when the murders occurred. Such impeachment evidence, defendant asserts, is a material part of his challenge to the state's assertion that he acted deliberately. We disagree.

Under Oregon law, "a witness may be impeached by evidence that contradicts the witness's testimony on any independently relevant fact[.]" State v. Gibson, 338 Or 560, 572, 113 P3d 423 (2005) (emphasis added). In a nutshell, that means that a witness "cannot be impeached as to merely collateral matters." Id. The test of whether a fact is collateral or not is straightforward: the fact is not collateral if "'the cross-examining party would have been entitled to prove it as part of and tending to establish its case.'" Id. at 573 (quoting State v. Johnson, 277 Or 45, 48, 559 P2d 496 (1977).

As we have demonstrated, however, defendant's culpability in the Housers' deaths has already been determined; it no longer is an independently relevant fact for sentencing purposes. Defendant is not entitled to prove his innocence as part of his sentencing case; at this stage, his guilt is a collateral matter not subject to impeachment. Consequently, we hold that, on this record, mother's live alibi testimony is inadmissible for impeachment purposes at defendant's new sentencing proceeding.

Defendant's sentence of death is vacated. The court's decision in State v. Guzek, 336 Or 424, 86 P3d 1106 (2004), is modified. The case is remanded to the circuit court for further proceedings.

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1. The text of ORS 138.012(2)(b) is set out post, ___ Or at ___ (slip op at 7).

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STATE OF OREGON v. WARNER

FILED: February 15, 2007

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

SCOTT A. WARNER,

Petitioner on Review.

(CC 9905-44488; CA A121246; SC S52880)

On review from the Court of Appeals.*

Argued and submitted June 20, 2006.

Anne Fujita Munsey, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were Peter A. Ozanne, Executive Director, Office of Public Defense Services, and Peter Gartlan, Chief Defender, Legal Services 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, Riggs, Balmer, and Kistler, Justices.**

GILLETTE, J.

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

*Appeal from Multnomah County Circuit Court,
 Douglas G. Beckman, Judge.
 200 Or App 65, 112 P3d 464 (2005).

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

GILLETTE, J.

The principal issue in this case concerns the meaning and scope of ORS 153.108(1), ⁽¹⁾ a statute that permits the state to prosecute separately a violation and a crime arising out of the same criminal episode, notwithstanding the general statutory prohibition on such prosecutions set out in ORS 131.515 (the "former jeopardy" statute). ⁽²⁾ Defendant contends that ORS 153.108(1) does not overcome that statutory former jeopardy bar when, as in this case, the state separately prosecutes a defendant for careless driving (ORS 811.135) (a traffic violation) and reckless driving (ORS 811.140) (a traffic crime), and both charges arise out of the same traffic accident. For the reasons that follow, we reject that argument. We also reject defendant's alternative contention that, in spite of its noncriminal label, a careless driving charge under ORS 811.135 is sufficiently criminal in nature to place a defendant in "jeopardy" for purposes of the former jeopardy provision in the Oregon Constitution. Accordingly, we affirm the decision of the Court of Appeals that rejected those arguments and held that defendant could be prosecuted separately for careless driving and reckless driving. SeeState v. Warner, 200 Or App 65, 112 P3d 464 (2005) (so holding).

The relevant facts are as follows. On May 7, 1999, defendant was involved in a traffic accident while driving on I-205 in Portland. Defendant was injured in the accident and was taken to a nearby hospital. A police officer met him there. After questioning defendant about the accident and administering certain tests, the officer issued two separate citations. The first citation charged defendant with three traffic violations: ⁽³⁾ careless driving (ORS 811.135), driving uninsured (ORS 806.010), and failure to carry proof of compliance with financial responsibility requirements (ORS 806.012). The second citation charged defendant with driving under the influence of intoxicants (DUII) (ORS 813.010), a traffic crime. Both citations summoned defendant to appear in court on May 27, 1999. However, sometime before that May 27, 1999, court date, the district attorney filed an information charging defendant with both DUII and a second traffic crime, reckless driving (ORS 811.140).

Defendant failed to appear on the May 27, 1999, court date. As a result of defendant's failure to appear, the trial court entered default judgments of conviction against defendant on the three traffic violations. See ORS 153.102(1). ⁽⁴⁾ The court also issued an arrest warrant for defendant's failure to appear with respect to the criminal DUII and reckless driving charges. Thereafter, the district attorney amended the original criminal information to add a third criminal charge against defendant -- failure to appear (ORS 133.076). Defendant ultimately was arrested and arraigned on the DUII, reckless driving, and failure to appear charges.

Before his trial, defendant moved to dismiss the DUII and reckless driving charges on both statutory and constitutional former jeopardy grounds. ⁽⁵⁾ After hearing arguments in the matter, the trial court granted defendant's motion. Specifically, the trial court held that the traffic violation of careless driving was criminal in nature and a lesser- included offense of reckless driving and that, as such, prosecuting defendant for reckless driving after he already had been convicted of careless driving with respect to the same incident would violate constitutional and statutory former jeopardy prohibitions. The trial court further held that ORS 131.515(2) precluded defendant's prosecution on the DUII charge because the DUII charge and the reckless driving charge arose out of the same criminal episode and defendant effectively already had been prosecuted and acquitted of reckless driving when he was convicted of careless driving. The state then appealed the trial court's dismissal of the reckless driving and DUII charges to the Court of Appeals.

On appeal, the state argued that ORS 153.108(1) sets out an exception to the general statutory bar on multiple prosecutions based on the same incident or episode and that the prosecutions at issue -- for a violation (careless driving) and for two traffic crimes (reckless driving and DUII) -- fell within that exception. The state also argued that defendant's careless driving prosecution was not a "criminal prosecution" and therefore did not implicate the former jeopardy prohibitions in the state and federal constitutions. The Court of Appeals agreed with both arguments, reversed the trial court's order of dismissal, and remanded the case for further proceedings. Warner, 200 Or App at 69-77.

Defendant petitioned for review by this court and we allowed the petition to consider two questions: (1) does defendant's conviction of careless driving, a traffic violation, operate as a bar to a prosecution for the crime of reckless driving, in spite of the fact that ORS 153.108(1) appears to permit separate prosecution of crimes and violations arising out of the same incident; and (2) does a conviction on a careless driving citation amount to "jeopardy" for purposes of Article I, section 12, of the Oregon Constitution, so that any further prosecution on criminal charges arising out of the same criminal episode is barred?

We begin with the statutory question. As we have noted, defendant's argument relies on Oregon's general former jeopardy statute, ORS 131.515. That statute prohibits consecutive prosecutions in the following terms:

"Except as provided in ORS 131.525 and 131.535:

"(1) No person shall be prosecuted twice for the same offense.

"(2) No person shall be separately prosecuted for two or more offenses based upon the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of the commencement of the first prosecution and establish proper venue in a single court.

"(3) If a person is prosecuted for an offense consisting of different degrees, the conviction or acquittal resulting therefrom is a bar to a later prosecution for the same offense, for any inferior degree of the offense, for an attempt to commit the offense or for an offense necessarily included therein.

"(4) A finding of guilty of a lesser included offense on any count is an acquittal of the greater inclusive offense only as to that count."

(Emphasis added.)

Before the Court of Appeals, defendant argued that, in view of the fact that he has been convicted of careless driving based on the May 7, 1999, incident, his subsequent prosecution for reckless driving based on the same incident would violate either ORS 131.515(1) or (2). However, the state argued (and the Court of Appeals ultimately held), assuming that prosecution of defendant for reckless driving otherwise would fall within the bar set out at ORS 131.515 -- an issue that the court did not need to decide -- another statute, ORS 153.108(1), would remove the case from the reach of ORS 131.515. ORS 153.108(1) provides:

"Notwithstanding ORS 131.505 to 131.535 [the former jeopardy statutes], if a person commits both a crime and a violation as part of the same criminal episode, the prosecution for one offense shall not bar the subsequent prosecution for the other. However, evidence of the first conviction shall not be admissible in any subsequent prosecution for the other offense."

(Emphasis added.) ⁽⁶⁾ Under ORS 153.108(1), the Court of Appeals held, defendant's prior conviction of careless driving -- a traffic violation -- did not bar his subsequent prosecution on the criminal charge of reckless driving. Warner, 200 Or App at 69-72.

Defendant argues that the Court of Appeals' analysis misses an important nuance in ORS 153.108(1). That statute, defendant asserts, speaks only to a successive prosecution for separate offenses and -- in defendant's view -- careless driving and reckless driving are parts of a single offense. In so arguing, defendant relies primarily on the fact that ORS 153.108(1) uses terms that connote multiplicity and separateness -- "both," "one offense," and "the other" -- and on certain earlier statements by the Court of Appeals to the effect that the exception set out at ORS 153.108(1) relates only to ORS 131.515(2), which bars separate prosecutions for different offenses. See, e.g., City of Lake Oswego v. Ritchie, 82 Or App 434, 437, 728 P2d 882 (1986) (so stating). ⁽⁷⁾ But defendant then carries his point even further, arguing that ORS 153.108(1) also cannot pertain to a lesser-included offense and its greater-inclusive counterpart, even if such offenses are defined in separate statutes, in essence because such offenses are, in fact, the "same" offense. ⁽⁸⁾

Defendant's argument rests heavily on the proposition that careless driving, ORS 811.135, is, in fact, a lesser-included offense ⁽⁹⁾ of reckless driving, ORS 811.140. Although that proposition is open to dispute, we need not decide whether it is correct in this case. For the sake of argument, we shall assume that it is, and we confine our analysis to defendant's further argument that the wording of ORS 153.108(1) does not extend to such a circumstance.

We begin with the fact that the wording of ORS 153.108(1) refers to "both a crime and a violation," then to "one offense" and "the other." We agree with defendant that those phrases suggests two separate "offenses," in some sense of that word. However, that conclusion does little to advance defendant's overall argument, because it is unclear what sense of the term "offense" the legislature intended. On the one hand, the legislature may have chosen "offense" only as a convenient and efficient way to refer back to the two objects of the first sentence of ORS 153.108(1) ("crime" and "violation"). On the other hand, it at least is arguable that the statute does assume that, to be included within its exception, a lesser-included offense and its greater-inclusive counterpart must be one and the same "offense."

However, the flaw in that second possible construction begins to appear when we expand our consideration to include other, contextual statutes. For example, the former jeopardy statutes (ORS 131.505 to 131.535) are part of that context. That is so because ORS 153.108(1), beginning with the phrase "[n]otwithstanding ORS 131.505 to 131.535," expressly refers to the former jeopardy statutes and sets itself up as an exception to them.

The former jeopardy statutes include ORS 131.505(1) and (2), which define and explain the meaning of "offense" in the following terms:

"As used in ORS 131.505 to 131.525, unless the context requires otherwise:

"(1) 'Conduct' and 'offense' have the meaning provided for those terms in ORS 161.085 and 161.505.

"(2) When the same conduct or criminal episode violates two or more statutory provisions, each such violation constitutes a separate and distinct offense."

(Emphasis added.)

The first subsection refers to the definition of "offense" at ORS 161.505, viz., "conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state * * *." By that definition, both careless driving and reckless driving are "offenses." The former subjects the offender to, at least, a possible fine, while the latter subjects the offender to a fine, to imprisonment, or to both. Most importantly, however, for purposes of the present discussion, the second subsection of ORS 131.505 expands upon the definition in subsection (1) by making it clear that the same "conduct" constitutes two or more separate "offenses" if it violates two or more "statutory provisions." Thus, ORS 153.108(1) incorporates by reference that principle and, in doing so, it appears to reject the very essence of defendant's argument.

Defendant argues, however, that, even if the principle found in ORS 131.505(2) applies, a lesser-included offense and its greater-inclusive counterpart still are not "separate and distinct offenses" for purposes of that principle because a defendant who commits such offenses does not violate "two or more statutory provisions." In so arguing, defendant points to a number of this court's cases -- State v. Barrett, 331 Or 27, 10 P3d 901 (2000); State v. Crotsley, 308 Or 272, 779 P2d 600 (1989); and State v. Kizer, 308 Or 238, 779 P2d 604 (1989) -- and notes that this court indicated in those cases that the phrase "two or more statutory provisions" referred to "separate and distinct legislative concerns" rather than to any particular form of organization of the Oregon Revised Statutes. Defendant then adopts certain aspects of the logic of those cases, arguing that lesser-included offenses and their greater-inclusive counterparts are not directed at separate and distinct legislative concerns because they share some of the same elements and address similar harms. As such, defendant concludes, a lesser-included offense and its greater-inclusive counterpart are not "two or more statutory provisions" and, thus, are not separate offenses for purposes of the former jeopardy statutes or ORS 153.108(1).

The problem with that analysis is that it relies on this court's statements about the meaning of a phrase -- "two or more statutory provisions" -- as that phrase is used in an entirely different statute than the one at issue here. Barrett, Crotsley, and Kizer all are concerned with the meaning of an antimerger statute, former ORS 161.062(1) (1987), repealed by Or Laws 1999, chapter 136, section 1, which provided, in part:

"When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations."

Although that statute shared certain wording with ORS 131.505(2) (even beyond the five-word phrase that is defendant's focus), it differed from ORS 131.505(2) significantly in that it was directed at defining the number of offenses that the government may separately punish, not at the number of offenses that may separately be prosecuted. Moreover, the phrase on which defendant relies is too generic to carry over its attendant statutory analysis respecting one concern -- the number of permissible punishments under former ORS 161.062(1) (1987) -- to the analysis respecting an entirely separate concern -- the number of permissible prosecutions under ORS 131.515(1) and (2). Cf. State v. Brown, 262 Or 442, 450, 497 P2d 1191 (1972) ("The underlying considerations in multiple punishment cases are entirely different from those involved in multiple prosecutions, and a test which is appropriate in one class of cases is not necessarily appropriate in the other class.").

It follows from the foregoing discussion that, when ORS 131.505(2) refers to the same conduct violating "two or more statutory provisions," it is indifferent to whether those statutory provisions ultimately are directed at the same type of harm or define offenses that might be related to one another as lesser-included/greater-inclusive offenses. And, because ORS 131.505(2) is a part of the context of ORS 153.108(1), the latter statute also is indifferent to those considerations. In the end, we conclude that, when ORS 153.108(2) provides that, "if a person commits both a crime and a violation as part of the same criminal episode, the prosecution for one offense shall not bar the subsequent prosecution for the other," it includes within its scope any violation and any crime that are defined in separate statutes, regardless of any relationship between the two offenses or any argument that the two offenses are directed at a single harm.

It also follows from the foregoing that there is no statutory bar to defendant's prosecution on a charge of reckless driving, notwithstanding that he already has been prosecuted and convicted in the same traffic incident on a charge of careless driving, a violation. To the extent that ORS 131.515(2) otherwise might prohibit such a prosecution, because the two charges are "based upon the same criminal episode," ORS 153.108(1) overrides that prohibition, because reckless driving is a crime and careless driving is a violation, each of which is defined by its own statute. Neither are defendant's prosecutions for careless driving and reckless driving the "same offense" for purposes of ORS 131.515(1). ⁽¹⁰⁾ That is so even if we assume, as defendant does, that careless driving is a lesser-included offense of reckless driving. As discussed, ORS 153.108(1) incorporates from ORS 131.505(2) the idea that the same conduct may constitute two or more offenses if it violates two or more statutory provisions.

Having disposed of defendant's statutory former jeopardy argument, we turn to his argument under Article I, section 12, the former jeopardy provision of the Oregon Constitution. In marked contrast to the detailed statutory provision, Article I, section 12, prohibits successive prosecutions in simple terms: "No person shall be put in jeopardy twice for the same offen[s]e."

This court discussed Article I, section 12, at length in State v. Selness/Miller, 334 Or 515, 54 P3d 1025 (2002). There, the court noted that, at least for purposes of Article I, section 12, "jeopardy" arises only in proceedings involving a prosecution for a crime. Our task, then, is to determine whether careless driving is a crime under Oregon law.

As to that question, the statutes themselves do not help defendant. In that regard, the following statutory definitions are pertinent: ORS 161.505 defines an "offense" as

"conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law or ordinance of a political subdivision of this state. An offense is either a crime, as described in ORS 161.515, or a violation, as described in ORS 153.008."

(Emphasis added.) ORS 161.515 then defines "crime":

"(1) A crime is an offense for which a sentence of imprisonment is authorized.

"(2) A crime is either a felony or a misdemeanor."

ORS 153.008 concludes the definitional exercise by defining "violation." It provides, in part:

"(1) [A]n offense is a violation if any of the following apply:

"(a) The offense is designated as a violation in the statute defining the offense.

"(b) The statute prescribing the penalty for the offense provides that the offense is punishable by a fine but does not provide that the offense is punishable by a term of imprisonment. The statute may provide for punishment in addition to a fine as long as the punishment does not include a term of imprisonment."

As we have noted, the legislature has designated careless driving as a traffic violation (ORS 811.135). An officer citing a person who allegedly has committed that violation (1) may not arrest the person for the violation, and (2) may detain the person only so long as necessary to investigate the violation for it. ORS 810.410(3)(a) and (b). Moreover, the violation is punishable only by a fine, not by imprisonment. ORS 153.018. Thus, careless driving is not a "crime," as that term is used in Oregon law.

That conclusion, however, does not end the constitutional inquiry. As this court acknowledged in Selness/Miller, determining whether a proceeding is criminal may involve more than simply examining the label that the legislature has attached to it. This court noted, in particular, that a nominally civil proceeding may be "so far criminal in its nature that it amounts to a criminal proceeding." Selness/Miller, 334 Or at 530-31. The court then identified four factors to consider in determining whether even a nominally criminal action "amounts to a criminal proceeding" ⁽¹¹⁾ for purposes of triggering the protections of Article I, section 12:

"(1) the use of pretrial procedures that are associated with the criminal law, such as indictment, arrest, and detention; (2) the potential for imposition of a penalty that is historically criminal or 'infamous' or that cannot be justified fully in terms of the civil purposes that the penalty supposedly serves; and (3) the potential for a judgment or penalty that carries public stigma; (4) the potential for collateral consequences that, either taken by themselves or added to the direct consequences of the underlying forbidden acts, amount to criminal penalties."

Id. at 536. The inquiry into those four factors here need not detain us long.

With respect to the first factor, defendant argues that a careless driving proceeding involves pretrial procedures associated with the criminal law in that a person suspected of careless driving may be stopped, detained, and subjected to inquiries regarding criminal activity, officer safety, and other matters. ORS 810.410(3)(a) to (e). Defendant further notes that a police officer may use a degree of force reasonably necessary to make the stop and to ensure the safety of all persons present. ORS 810.410(3)(f). However, the police authority on which defendant relies is contingent on something other than an ordinary police stop and issuance of a citation. As we have explained, the key provisions in ORS 810.410 provide that an officer may not arrest a person for a traffic violation and that the interlude of detention when a person is stopped must be no longer than necessary to investigate the violation, assure the driver's identity, and issue the citation. ORS 810.410(3)(a) and (b). None of those provisions makes the process criminal, in constitutional terms.

As to the second Selness/Miller factor, defendant suggests that the potential penalties that careless driving carried at the relevant time -- a $300 fine, former ORS 153.615 (1997), repealed by Or Laws 1999, ch 1051, § 32, suspension of driving privileges, ORS 809.220, and required participation in driver education and other rehabilitative programs, ORS 809.270 -- are "hallmarks" of a criminal prosecution. We are unpersuaded. First of all, the fine is a small one -- inconvenient to pay, but far less so than potential penalties for such things as expanding one's garage without a building permit. Second, the suspension that concerns defendant can occur only if he fails to appear -- a matter entirely within his control. It is not a consequence of the violation. Finally, the participation in driver improvement programs is remedial -- designed to protect both the public and defendant. In fact, all the consequences of a careless driving conviction are justified fully in terms of remedial purposes, such as making the public highways safer by discouraging careless driving and encouraging careless drivers to learn better driving techniques through driver education programs.

Defendant suggests, next, that the third Selness/Miller factor -- "public stigma" -- weighs in his favor, because careless driving addresses the same harm as the crime of reckless driving and necessarily has the same stigmatizing effect. However, we think that to state that proposition is to refute it. In our view, there is no potential stigma that might accompany a careless driving prosecution, unless such a stigma applies to every issuance of a traffic ticket. Selness/Miller does not even hint that such would be the case.

Finally, defendant argues that careless driving proceedings carry a potential for collateral consequences that amount to criminal penalties in and of themselves. He points to the fact that a defendant may be charged with a crime for failing to appear in the proceeding, ORS 153.992, and ultimately may be arrested for such failure to appear, ORS 153.064. Defendant also notes that a careless driving conviction becomes part of the offender's driving record and may affect his or her insurance rates and ability to obtain a job that involves driving. The first two "consequences" that defendant identifies are inapposite -- they do not flow from the careless driving offense but from an additional and altogether different act. As to the latter consequences, they are remedial, and not punitive, in nature.

After examining the reckless driving proceeding in question in the light of the four Selness/Miller factors, we have little difficulty in concluding that the reality of a careless driving proceeding exactly matches its label. The offense is a violation, not a crime, and conviction on a charge of careless driving does not amount to "jeopardy" for purposes of Article I, section 12, of the Oregon Constitution. Defendant's argument that the state is barred, under Article I, section 12, from pursuing its reckless driving and DUII charges against him is not well taken. The Court of Appeals was correct in so holding. ⁽¹²⁾

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

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1. The text of ORS 153.108(1) is set out at 342 Or ___, ___ P3d ___ (February 15, 2007) (slip op at 6).

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2. The text of ORS 131.515 is set out at 342 Or ___, ___ P3d ___ (February 15, 2007) (slip op at 5).

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3. In 1999, the Legislative Assembly substituted the term "violation" for the term "infraction" in ORS 161.505. See Or Laws 1999, ch 1051, § 43. Because the change was not a substantive one, we use the present statutory terminology.

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4. ORS 153.102(1) provides:

"If the defendant in a violation proceeding does not make a first appearance in the manner required by [another statute] within the time allowed, and a trial is not otherwise required by the court or by law, the court may enter a default judgment based on the complaint and any other evidence the judge determines appropriate."

Thus, "violations" (traffic or otherwise) may be dealt with summarily when a cited person fails to appear. "Violations" are "offenses" but not "crimes" (the latter category being reserved for misdemeanor and felonies). ORS 161.505; ORS 161.515(2).

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5. At the time that defendant filed his former jeopardy motion, the case already had been before the Court of Appeals once. The state had appealed from two pretrial orders suppressing certain evidence in the DUII prosecution. The Court of Appeals reversed the order and remanded. State v. Warner, 181 Or App 622, 47 P3d 497 (2002), rev den, 335 Or 42 (2002).

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6. ORS 153.108(1) became effective on January 1, 2000. Or Laws 1999, ch 1051, § 326. It applies to defendant's former jeopardy claim, which defendant raised and which the trial court considered in 2003. Prior to January 1, 2000, another statute, former ORS 153.585(1) (1997), exempted traffic violations from former jeopardy protection in similar terms.

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7. Ritchie discusses former ORS 153.585(1) (1985), an earlier version of present-day ORS 153.108(1).

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8. Defendant argues, in that regard, that an "offense" is nothing more than "a proscribed act undertaken with a particular mental state" and that, by definition, a lesser- included offense involves the same proscribed act as its greater-inclusive counterpart or one that is entirely subsumed in it.

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9. In Oregon criminal trial practice, a "lesser included offense" is either an offense that constitutes a "degree inferior" to an offense with which a defendant is charged, ORS 136.460, or an offense the commission of which is "necessarily included" in the wording of the charging instrument, ORS 136.465. See State v. Washington, 273 Or 829, 836-40, 543 P2d 1058 (1975) (explaining scope of rule).

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10. Before this court, defendant initially also argued that ORS 131.515(4) barred the state from prosecuting him for DUII after prosecuting and convicting him of careless driving. Defendant's theory was that his conviction on the careless driving charge amounted to an acquittal of the reckless driving charge under ORS 131.515(4) and that, under ORS 131.515(2), that acquittal precluded any further criminal prosecution based on the same criminal episode. Defendant now has withdrawn that argument.

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11. Although defendant does not make the argument, one might argue that certain subsections of ORS 131.005 affix a criminal label to traffic violations like careless driving. We refer to the following wording:

"As used in section 1 to 311, chapter 836, Oregon Laws 1973, except as otherwise specifically provided or unless context requires otherwise:

"* * * * *

"(6) 'Criminal action' means an action at law by means of which a person is accused of the commission of a violation, misdemeanor or felony.

"(7) 'Criminal proceeding' means any proceeding which constitutes a part of a criminal action or occurs in court in connection with prospective, pending or completed criminal action."

ORS 131.005(6) and (7). Clearly, however, the more specific provisions at ORS 131.505, ORS 131.515, and ORS 153.108(1) are "context [that] provides otherwise."

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12. Defendant does not argue that the prosecutions at issue violated the Double Jeopardy Clause in the Fifth Amendment to the United States Constitution.

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