No. 13 March 3, 2016 741

IN THE SUPREME COURT OF THE

STATE OF OREGON

Inquiry Concerning a Judge,

Re: THE HONORABLE

WALTER RANDOLPH “RANDY” MILLER,

Respondent.

(CJFD 14-50; SC S063788)

En Banc

On review of the Commission on Judicial Fitness 

and Disability Finding of Fact, Conclusion of Law, and 

Recommendation.

Submitted on the record January 26, 2016.

Lisa Ludwig, Portland, represented the Commission on 

Judicial Fitness and Disability.

W. Michael Gillette, Schwabe Williamson & Wyatt PC, 

Portland, represented respondent.

PER CURIAM

The recommendation of the Commission on Judicial 

Fitness and Disability is accepted, and the formal complaint 

is dismissed.

Case Summary: The Commission on Judicial Fitness and Disability filed 

a formal complaint alleging that respondent had violated two provisions of the 

Oregon Code of Judicial Conduct, in connection with a 2014 voters’ pamphlet 

statement supporting his judicial candidacy, before he became a judge. After conducting a hearing, the commission recommended that the formal complaint be 

dismissed. Held: (1) Rule 2.1(D), which provides that a “judge” shall not engage 

in conduct involving dishonesty, fraud, deceit, or misrepresentation, did not apply 

to respondent’s conduct; and (2) Rule 5.1(D), which provides that a “judicial candidate” shall not make any false statement concerning qualifications, education, 

experience, or other material fact relating to a judicial campaign, requires proof 

that the candidate acted knowingly or with reckless disregard for the truth, 

and that mental state was not proved as to respondent by clear and convincing 

evidence.

The recommendation of the Commission on Judicial Fitness and Disability is 

accepted, and the formal complaint is dismissed.
742 In re Miller

PER CURIAM

This case is before us on a recommendation from the 

Commission on Judicial Fitness and Disability. The commission filed a formal complaint alleging that respondent, now a 

circuit court judge, had violated the Oregon Code of Judicial 

Conduct (Code) in connection with a 2014 voters’ pamphlet 

statement supporting his judicial candidacy. The commission specifically alleged violations of Rule 2.1(D) (judge shall 

not engage in “conduct involving dishonesty, fraud, deceit, 

or misrepresentation”) and Rule 5.1(D) (judicial candidate 

shall not knowingly or with reckless disregard for truth 

make any “false statement” concerning qualifications, education, experience, or other material fact relating to judicial 

campaign). The commission conducted a hearing and now 

recommends that we dismiss the formal complaint. See ORS 

1.430(1) (if commission holds hearing, Supreme Court shall 

review record of proceedings on law and facts and may discipline judge). We accept the commission’s recommendation.

The facts, taken from the record, are as follows. 

In 2010, before he became a judge, respondent attended a 

week-long “trial academy” presented by the International 

Association of Defense Counsel (IADC), held on the campus 

of Stanford Law School. Although held on the Stanford campus, the academy was not affiliated with that school. Upon 

completion, respondent received a certificate stating that 

he “successfully completed the course of instruction at the 

IADC Trial Academy, Stanford Law School[.]”

In 2013, respondent filed for election to an open 

judicial position on the Deschutes County Circuit Court. As 

part of his initial form submission to the Secretary of State, 

under “Education Information,” “Educational Background 

(schools attended),” respondent listed his college and law 

school degrees, and under a related section, “Educational 

Background (other),” respondent identified his participation in the academy as follows: “International Association of 

Defense Counsel: Trial Academy Graduate, at Stanford Law 

School.” (Emphasis added.)

After respondent completed his Secretary of State 

submission, he prepared a voters’ pamphlet statement, limited to a 325-word narrative. To prepare that narrative, he 
Cite as 358 Or 741 (2016) 743

reviewed the Elections Division’s Candidates Manual for compliance, and he also consulted with colleagues. Respondent 

decided to include a reference to the academy in a section 

that contained his college and law school information, which 

he entitled “Educational Background.” In doing so, he did 

not include the word “at” before “Stanford Law School,” as 

he had in his earlier Secretary of State submission; instead, 

he replaced “at” with a comma. He initially used “IADC” 

to describe the academy—specifically writing “IADC Trial 

Academy, Stanford Law School”—but he eliminated that 

modifier after a judge who reviewed the draft statement 

suggested that it was not recognizable. Respondent opted 

not to spell out “IADC” so that he could save four words to 

use elsewhere in his statement. He asked a different judge 

to review an updated draft that removed “IADC,” and that 

judge told him that nothing about “Trial Academy, Stanford 

Law School,” appeared misleading to him. Respondent’s 

final voters’ pamphlet statement therefore stated, “Trial 

Academy, Stanford Law School,” as part of his educational 

background.

Respondent’s reference to the academy and Stanford 

Law School in his voters’ pamphlet statement became an 

issue during the campaign. After respondent was elected 

to a judicial position, the commission received a complaint, 

which it investigated, resulting in the filing of a formal 

complaint. At a hearing on that formal complaint, respondent asserted that the contested statement had not been 

false and that his decision to reword the description of the 

academy, following his initial Secretary of State filing, had 

been merely editorial in nature. He further asserted that, 

because Rule 2.1(D) applied to only “[a] judge,” but not also 

“a judicial candidate,” that rule did not apply to his conduct 

at the time of his candidacy, before he became a judge.

After the hearing, the commission filed an opinion 

with this court, which, as noted, recommended dismissal. 

As to Rule 5.1(D), which expressly applies to “a judge or a 

judicial candidate,” the commission recommends dismissal 

on the merits, because respondent’s voters’ pamphlet statement was not “false” within the meaning of that rule. As to 

Rule 2.1(D), which expressly applies to only “[a] judge,” the 

commission reasoned that, because Rule 5.1(D) sets out a 
744 In re Miller

more “specific” prohibition that applies to “a judge or a judicial candidate,” that latter rule “govern[ed]” the conduct at 

issue here. As discussed below, although we do not precisely 

agree with the commission’s particular reasoning, we conclude that Rule 2.1(D) did not apply to respondent’s conduct 

and that the allegation under that rule therefore should be 

dismissed. We further conclude, as did the commission, that 

the allegation under Rule 5.1(D) also should be dismissed.

The commission must establish a violation of the 

Code by clear and convincing evidence. Commission on 

Judicial Fitness and Disability Rule of Procedure 16. “Clear 

and convincing evidence means that the truth of the facts 

asserted is highly probable.” In re Jordan, 295 Or 142, 156, 

665 P2d 341 (1983) (internal quotation marks omitted). 

Additionally, under Article VII (Amended), section 8(1)(b), 

of the Oregon Constitution, a judge may be removed, suspended, or censured for “[w]ilful misconduct” in judicial 

office, “where such misconduct bears a demonstrable relationship” to the effective performance of judicial duties; further, under section 8(1)(e), a judge similarly may be removed 

for “[w]ilful violation” of any judicial conduct rule. See also

In re Schenck, 318 Or 402, 405, 870 P2d 185 (1994) (explaining section 8(1)(e)). Our review is de novo. ORS 1.430; In re 

Ochoa, 342 Or 571, 574, 157 P3d 193 (2007).

The predicate question whether Rule 2.1(D) applies 

to respondent’s conduct involves an examination of that rule 

as compared to Rule 5.1(D), as well as an additional rule, 

Rule 1.1, which describes the scope of the Code. Rule 1.1 

provides, in part:

“* ** The Oregon Code of Judicial Conduct establishes 

standards for the ethical conduct of judges and judicial 

candidates. A judge or judicial candidate shall comply with 

the provisions of this Code and may be disciplined for violation of the Code.

“Because a judge or judicial candidate may be disciplined for violations of this Code, the provisions are limited 

to addressing specific circumstances where certain conduct 

is either prohibited or required. * **”

(Emphasis added.) Rule 2.1(D) expressly applies to “[a] 

judge” and provides that a judge “shall not engage in conduct 
Cite as 358 Or 741 (2016) 745

involving dishonesty, fraud, deceit, or misrepresentation.” 

By contrast, Rule 5.1(D) expressly applies to “a judge or a 

judicial candidate” and provides that a judge or judicial candidate shall not, “[e]xcept as permitted by law,”

“knowingly or with reckless disregard for the truth, make 

any false statement concerning a judicial candidate’s identity, qualifications, present position, education, experience, 

or other material fact that relates to the judicial campaign 

of the judge or any judicial candidate[.]”

In light of the commission’s recommendation—which determined that Rule 5.1(D), rather than Rule 2.1(D), “govern[ed]” the conduct at issue—this case poses a construction 

question, most notably as to the “scope” rule, Rule 1.1.

Beginning very simply with the text of Rule 2.1(D), 

we observe, as did respondent and the commission below, 

that that rule expressly applies to only “[a] judge,” contrasted against Rule 5.1(D), which applies to both “a judge 

or a judicial candidate.” Rule 1.1 provides necessary context 

for that textual difference; that rule, however, could be read 

in more than one way, as discussed below.

As noted, Rule 1.1 provides, in part, that the Code 

“establishes standards for the ethical conduct of judges and 

judicial candidates” and that “[a] judge or judicial candidate shall comply with the provisions of this Code * * *.” 

(Emphasis added.) One way to read that rule is that all the 

Code’s provisions apply to both judges and judicial candidates, with the exception of provisions that, by their nature, 

could apply to only judges. As an example of the latter, Rule 

3 sets out provisions relating to the impartial and diligent 

performance of judicial duties that, in practical operation, 

can apply to only judges. See, e.g., Rule 3.2 (ensuring right 

to be heard); Rule 3.7 (decorum, demeanor, and communication with jurors); Rule 3.9 (ex parte communications); Rule 

3.10 (disqualification). Other provisions of the Code that 

textually apply to only “a judge,” however, could be read to 

apply to both judges and judicial candidates. For example, 

most, if not all, of Rule 2—which sets out provisions relating 

to maintaining the integrity of the judicial system—theoretically could apply to both judges and judicial candidates 

See, e.g., Rule 2.1 (various rules to promote confidence in 
746 In re Miller

judiciary); Rule 2.2 (avoiding misuse of prestige of judicial 

office, which could apply to both present and future office). 

Similarly, Rule 4—which sets out provisions about minimizing the risk of conflict between a judge’s activities and 

the obligations of judicial office—contains some provisions 

that, by their nature, could apply to only judges, but also 

theoretically could apply to judicial candidates. Compare

Rule 4.8 (prohibiting “[a] judge” from practicing law, which 

would apply to only a judge), with Rule 4.5(A) (prohibiting 

“a judge” from personally soliciting funds for an organization or entity, with exceptions, which could apply to both a 

judge and a judicial candidate). And, of course, most of Rule 

5 both in its text and in practical operation applies to both 

judges and judicial candidates. See generally Rule 5 (setting 

out provisions relating to engaging in political and judicial 

campaign activities). If Rule 1.1 were construed to apply to 

both judges and judicial candidates as to any provision of the 

Code that, by its nature, could apply to judicial candidates, 

then respondent would have been required to comply with 

Rule 2.1(D) (prohibiting engaging in conduct involving dishonesty, deceit, or misrepresentation), as well as Rule 5.1(D) 

(prohibiting making false statement in relation to judicial 

campaign).

The other way to read Rule 1.1, however, is to mean 

that judicial candidates are bound by the Code, even though 

they are not “judges,” but they are so bound only as to those 

provisions that expressly apply to a “judicial candidate.” 

That is, in stating that the Code “establishes standards for 

the ethical conduct of judges and judicial candidates” and 

that “[a] judge or judicial candidate shall comply with the 

provisions of this Code,” Rule 1.1 could be intended to mean 

that judges must comply with all the “judge” rules, and judicial candidates must comply with all the “judicial candidate” rules. Only Rule 5 sets out rules that expressly govern 

both judges and “judicial candidate[s],” see Rule 5.1 (political activities of judges and judicial candidates in general); 

Rule 5.2 (judge or judicial candidate shall take reasonable 

measures to ensure that other persons and organizations do 

not undertake, on judge’s or candidate’s behalf, any activity 

prohibited under Rule 5). Otherwise, the rest of the Code—

including Rule 2.1(D)—textually applies to only “a judge.” 
Cite as 358 Or 741 (2016) 747

Under that alternative reading, Rule 2.1(D) could not have 

applied to respondent’s conduct while he was a judicial candidate, before he became a judge.1

The underlying history of Rule 1.1 resolves those 

competing readings in respondent’s favor. Rule 1.1 is based, 

in part, on the “Scope” section of the 2007 American Bar 

Association’s Model Code of Judicial Conduct. Rule 1.1, 

Notes on Sources, printed in Oregon Rules of Court, v I - 

State (2015). The Model Code’s Scope statement refers to 

a separate “Application” section that establishes when the 

various model rules “apply to a judge or judicial candidate.” 

ABA Model Code of Judicial Conduct (Feb 2007), Scope [1], 

2, http://www.americanbar.org/content/dam/aba/migrated/

judicialethics/ABA_MCJC_approved.authcheckdam.pdf 

(accessed Feb 25, 2016). That “Application” section, in turn, 

expressly states that Canon 4 of the Model Code—which, as 

with Rule 5 of the Oregon Code, sets out political activity 

and campaigning rules for “[a] judge or candidate for judicial office”—applies to “judicial candidates.” Model Code, 

Application I, 6.2

 That express link in the Model Code’s 

Application section between “judicial candidates” and Canon 

4 necessarily precludes a conclusion that any other canon of 

the Model Code—such as any provision designed to ensure 

1 We do not agree with the commission’s framing of the issue as whether, 

because it more specifically applies to “a judge or a judicial candidate,” Rule 

5.1(D) “govern[ed]” the conduct in this case. This case did not require the commission to apply conflicting rules, which in turn might have invoked the statutory construction principle that a particularly worded statute controls over a 

conflicting, generally worded statute. See ORS 174.020(2) (setting out principle); 

Kambury v. DaimlerChrysler Corp., 334 Or 367, 374, 50 P3d 1163 (2002) (stating 

and applying principle). Instead, the formal complaint alleged that respondent 

had violated two rules as a result of a single course of conduct, both of which could 

apply to that conduct, if Rule 2.1(D) applies to judicial candidates.

2 The Application section of the Model Code provides, in part:

“The Application section establishes when the various Rules apply to a 

judge or judicial candidate.

“I. APPLICABILITY OF THIS CODE

“(A) The provisions of the Code apply to all full-time judges. Parts II 

through V of this section identify those provisions that apply to four 

distinct categories of part-time judges. * ** Canon 4 applies to judicial 

candidates.”

Model Code (2007), Application, I(A), 6, http://www.americanbar.org/content/

dam/aba/migrated/judicialethics/ABA_MCJC_approved.authcheckdam.pdf 

(accessed Feb 25, 2016) (footnote omitted; emphasis added).
748 In re Miller

preservation of the integrity, impartiality, and independence 

of the judiciary—applies to judicial candidates.

The Oregon Code also contains an “Application” section, Rule 1.2, but that section does not mention applicability 

of the Oregon Code to judicial candidates.3

 Given that Rule 

1.1 is based on the Model Code’s Scope section, however, and 

because the Model Code’s Scope section in turn incorporates 

an express clarification that judicial candidates are bound 

by only the Model Code’s political and campaign rules that 

expressly refer to “a candidate for judicial office,” we likewise construe Rule 1.1 to mean that only provisions in the 

Oregon Code that expressly refer to a “judicial candidate” 

apply to such candidates. Under that construction, Rule 

2.1(D), which applies to only “[a] judge,” did not apply to 

respondent’s conduct. We therefore accept the commission’s 

recommendation to dismiss that allegation.

As to the allegation under Rule 5.1(D) (false statement relating to judicial campaign), the commission determined—as respondent argued below—that respondent’s 

voters’ pamphlet statement had not been “false” within the 

meaning of that rule. After reviewing the record, even if 

respondent’s statement qualified as a “false statement” for 

purposes of Rule 5.1(D) (which we do not decide), we are not 

persuaded by clear and convincing evidence that respondent 

acted with the requisite mental state. See Rule 5.1(D) (false 

statement must be made knowingly or with reckless disregard for truth); Article VII (Amended), § 8(1)(b), (e) (judge 

may be disciplined for “[w]ilful misconduct” or “[w]ilful violation” of judicial conduct rule). We therefore also accept the 

commission’s recommendation to dismiss that allegation.

The recommendation of the Commission on Judicial 

Fitness and Disability is accepted, and the formal complaint 

is dismissed.

3 Rule 1.2 describes when the Oregon Code applies in different circumstances 

in which a person might perform the functions of a judge. That rule, similarly to 

Rule 1.1, is based in part on the “Application” section of the Model Code. Rule 

1.2, Notes on Sources, printed in Oregon Rules of Court, v I - State (2015). The 

“Application” section of the Model Code contains similar provisions pertaining to 

the functions of a judge, but also, as noted, includes an express “judicial candidates” applicability provision. See 358 Or at 747 n 2 (quoting that provision). Rule 

1.2 also is similar in subject matter to former JR 5-101 (2012), Rule 1.2, Notes on 

Sources, which provided that “[a]ll judges shall comply with this Code except as 

provided otherwise in this rule.” (Emphasis added.)