Conduct of Chase, In re

• Decision Date: 09 July 1985
• Citation: 299 Or. 391,702 P.2d 1082
• Parties: In re Complaint as to the CONDUCT OF Gerald M. CHASE, Accused. SC 29057.
• Court: Oregon Supreme Court

Page 1082

702 P.2d 1082

299 Or. 391

In re Complaint as to the CONDUCT OF Gerald M. CHASE, Accused.

SC 29057.

Supreme Court of Oregon.

Argued and Submitted Jan. 31, 1985.

Decided July 9, 1985.

Richard L. Weil, Portland, argued the cause and filed the briefs for accused.

Patric J. Doherty, Portland, argued the cause for Oregon State Bar. On the brief were Dennis R. VavRosky, Bruce A. Gunter and Rankin, McMurry, VavRosky & Doherty, Portland.

Before PETERSON, C.J., and LENT, LINDE, CAMPBELL, ROBERTS and CARSON, JJ.

PER CURIAM.

The accused was convicted of attempted possession of a controlled substance, a misdemeanor. ORS 475.992(4)(b) and ORS 161.405(1). The Bar brought these disciplinary proceedings alleging that the misdemeanor involved moral turpitude. ORS 9.527(2) (set forth infra ). ¹ Two members of the Trial Board concluded that the crime did not involve moral turpitude. The other member dissented. The Disciplinary Review Board was also divided and by a four to three vote found the crime to be one involving moral turpitude and recommended a public reprimand.

The following facts are set out here from the Trial Board's Findings of Fact.

"On June 28, 1982, while waiting outside of Washington County Circuit Court Judge Alan Bonebrake's office to see the judge, the accused, Gerald M. Chase, got up from his seat and was seen to drop a matchbox and cigarette rolling papers. Judge Bonebrake's secretary, Harlene Crossen, and three other witnesses, Carole Robertson, Frank Rozales, and Bruce Johnson, all observed those items fall from the accused's pocket. The matchbox was later discovered to contain .27 grams of cocaine. A special prosecutor was called in to handle the case. Mr. Chase was charged with and pled guilty to Attempted Possession of a Controlled Substance (cocaine). This is a Class A Misdemeanor.

"Mr. Chase testified that he was given the cocaine in a matchbox by an in-law in Seattle, had left it in his automobile, and did not know the cocaine was in his possession when it fell from his clothing. He testified that he had put a matchbox in his pocket thinking it contained matches.

The accused, in arguing that the attempted possession of a controlled substance is not a misdemeanor involving moral turpitude, relies on an often quoted definition of moral turpitude as comprising "an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." Ex parte Mason, 29 Or. 18, 21, 43 P. 651 (1896), quoting Newell, Defamation, Slander, and Libel, § 12; see also In re Piper, 271 Or. 726, 534 P.2d 159 (1975); State ex rel Ricco v. Biggs, 198 Or. 413, 255 P.2d 1055 (1953); Ruble v. Kirkwood, 125 Or. 316, 266 P. 252 (1928). The accused eleborates that the intentional or knowing violation of any law by an attorney, does not, in and of itself, constitute an act of moral turpitude. Rather, he argues that the existence of moral turpitude depends on the underlying facts and circumstances as found in each individual case. The Bar, on the other hand, describes moral turpitude as "anything done contrary to justice, honesty, principle or good morals." State v. Edmunson, 103 Or. 243, 246, 204 P. 619 (1922). The parties apparently see a distinction in the definitions; however, if there is a distinction it is not significant for this case. ²

The Bar's position is that because the attempt statute, ORS 161.405(1), ³ requires intentional conduct constituting a substantial step toward the commission of a crime, a lawyer who takes this step toward the commission of the felony of possession of a controlled substance should be found guilty of committing a misdemeanor involving moral turpitude.

The problem presented in this case and another case decided this date, In re Drakulich, 299 Or. 417, 702 P.2d 1097 (1985), is the establishment of the proper criteria to determine whether a misdemeanor involves moral turpitude. The two cases before us illustrate the inconsistencies that can result when the definition hinges on the circumstances of individual cases. Both attorneys were convicted of the attempted possession of a controlled substance (cocaine). In the instant case the Disciplinary Review Board determined that the misdemeanor involved moral turpitude; in the other it concluded that the misdemeanor did not.

We are called upon to interpret a statutory term, moral turpitude, found in ORS 9.527(2). Conviction of actual possession, a felony, ORS 475.992(4)(b), would be grounds for discipline irrespective of moral turpitude. But because attempted possession is only a misdemeanor, it must involve moral turpitude. We are not free to impose our own judgment of the propriety of the conduct for which the accused was convicted. Our task, rather, is to discern the legislature's meaning. Whether some other statute or rule authorizing discipline may reach the accused's conduct is not before us. ⁴

I

ORS 9.527, which authorizes this court to discipline bar members, provides, in relevant part:

"The Supreme Court may disbar, suspend or reprimand a member of the bar whenever, upon proper proceedings for that purpose, it appears to the court that:

" * * *

"(2) The member has been convicted in any jurisdiction of an offense which is a misdemeanor involving moral turpitude or a felony under the laws of this state, or is punishable by death or imprisonment under the laws of the United States, in any of which cases the record of the conviction shall be conclusive evidence * * *." ⁵

Legislative standards for the morality of attorneys have existed in this country since colonial times. "Educational standards came and went, but, at least after the colonial period, virtue remained a constant prerequisite, in form if not in fact." Rhode, Moral Character as a Professional Credential, 94 Yale L.Rev. 491, 496 (1985). The language of ORS 9.527(2) has been a part of our attorney discipline statute since 1862. General Laws of Oregon, ch. 14, § 1015, p. 402 (Deady 1845-1864). The statute has been amended or renumbered on occasion but the legislature has not altered or explained the statutory term. We must attribute to the legislature an intelligent understanding of what crimes fit within this category.

One commentator explains:

"At common law, this term was rarely used to distinguish between more and less heinous crimes. The classifications in vogue included felony and misdemeanor, crimes mala in se and mala prohibita, crimen falsi, and infamous crimes. Uncertain connotation, conflicting precedent, and unsuccessful redefinition made these categories objectionable. Legislators called upon to draft civil statutes that referred to criminal offenses needed a classification less tenuous. Instead of cataloguing the separate crimes at which their enactments were directed, they employed the general term, 'crimes involving moral turpitude.' It is not clear whether this established a new criterion, or was merely a synthesis of previously recognized distinctions; at any rate, the phrase has been widely employed, in legislation dealing with immigration, disbarment, revocation of physicians' licenses, defamation, and credibility of witnesses." Note, Crimes Involving Moral Turpitude, 43 Harv.L.Rev. 117, 118 (1929-30). (Footnotes omitted.) ⁶

Courts from other jurisdictions have developed two methods to define moral turpitude. One is a variable standard which considers the circumstances of each case. The same crime may or may not be one of moral turpitude, depending on conduct in the individual case. See In re Calaway, 20 Cal.3d 165, 141 Cal.Rptr. 805, 570 P.2d 1223 (1977); In re Fahey, 8 Cal.3d 842, 106 Cal.Rptr. 313, 505 P.2d 1369 (1973); People v. Gibbons, 157 Colo. 357, 403 P.2d 434 (1965); Committee on Legal Ethics v. Scherr, 149 W.Va. 721, 143 S.E.2d 141 (1965). The other is a fixed definition. The elements of the crime determine whether it involves moral turpitude. The circumstances of the individual case do not alter the determination. See Searcy v. State Bar of Texas, 604 S.W.2d 256 (Tex.Civ.App.1980); Rice v. Alcoholic Beverage Etc. Appeals Bd., 89 Cal.App.3d 30, 152 Cal.Rptr. 285 (1979); State ex rel Oklahoma Bar Ass'n v. Jones, 566 P.2d 130 (Okl.1977); Fortman v. Aurora Civil Service Commission, 37 Ill.App.3d 548, 346 N.E.2d 20 (1976); Otash v. Bureau of Private Investigators, 230 Cal.App.2d 568, 41 Cal.Rptr. 263 (1964).

Likewise, in Oregon we have defined moral turpitude with both an analysis dependent on the circumstances of each case and with some attempt at a fixed definition. We have decided our fixed definition cases on the basis of the nature of the crime itself, often applying the common law distinction between a crime malum in se, a crime inherently evil and wrong in itself, and a crime malum prohibitum, a crime wrong only because it is prohibited by legislation. ⁷ These cases, all concluding that moral turpitude was involved, include In re Carstens, 297 Or. 155, 683 P.2d 992 (1984) (theft); In re Mahr, 276 Or. 939, 556 P.2d 1359 (1976) (shoplifting); In re Thomas Graham Walker, 240 Or. 65, 399 P.2d 1015 (1965) (violation of federal income tax statute); State ex rel Ricco v. Biggs, supra, (keeping a bawdy house); In re King, 165 Or. 103, 105 P.2d 870 (1940) (false swearing); State v. Edmunson, supra, (selling intoxicating liquor contrary to prohibition law); Ex parte Mason, supra, (criminal libel).

Other Oregon cases take the approach that the facts and circumstances surrounding the commission of the crime will be considered in determining whether the misdemeanor involved moral turpitude. These cases begin with In re Means, 207 Or. 638, 298 P.2d 983 (1956) (did not decide if a violation of federal income tax laws involves moral turpitude but considered facts of case). Means was followed by In re Maurice C. Corcoran, 215 Or. 660, 337 P.2d 306 (1959) (whether failure to file income...