Lee v. Wisconsin State Bd. of Dental Examiners

• Decision Date: 04 January 1966
• Citation: 29 Wis.2d 330,139 N.W.2d 61
• Parties: Dr. Royal LEE, Respondent, v. WISCONSIN STATE BOARD OF DENTAL EXAMINERS, Appellant.
• Court: Wisconsin Supreme Court

Page 61

139 N.W.2d 61

29 Wis.2d 330

Dr. Royal LEE, Respondent, v. WISCONSIN STATE BOARD OF DENTAL EXAMINERS, Appellant.

Supreme Court of Wisconsin.

Jan. 4, 1966.

Bronson C. La Follette, Atty. Gen., Warren H. Resh, Asst. Atty. Gen., Madison, for appellant.

Peter P. Woboril, Jr., Milwaukee, for gdn. of Estate of Royal Lee, Incompetent, Werner J. Trimborn, Milwaukee, Special Counsel.

HALLOWS, Justice.

This appeal involves only that part of the court's order which held the conviction under Title 21 United States Code sec. 331(a) was not of a crime involving moral turpitude within the meaning of sec. 152.07(2), Stats. The board agrees the matter should go back for further proceeding on the second ground.

Under sec. 152.07(2) the conviction of a crime involving moral turpitude empowers the board to revoke a dentist's license to practice and the record of the conviction is conclusive evidence. It is argued by Lee that his conviction under Title 21 U.S.C., secs. 331(a) and 352(a) ² cannot be considered a conviction in this revocation proceeding because the conviction is based upon a plea of nolo contendere. The view that a conviction based on a plea of nolo contendere is clothed with the same attributes as the plea is a minority view which this court has not followed. The essential characteristic of a plea of nolo contendere is that it cannot be used collaterally as an admission. Such a plea is not a plea of right and may be refused by a court, sec. 957.25; but when accepted by the court it constitutes an implied confession of guilt for the purposes of the case to support a judgment of conviction and in that respect is equivalent to a plea of guilty. State v. Suick (1928), 195 Wis. 175, 217 N.W. 743. But the plea of nolo contendere differs from a plea of guilty in its collateral effects. Because a plea of guilty is an unqualified express admission by the defendant it may be used against him in a collateral or subsequent civil action; but a plea of nolo contendere is not such an admission against interest and may not be used in a subsequent or collateral civil action for that purpose. State v. Suick, supra; Brozosky v. State (1928), 197 Wis. 446, 222 N.W. 311; Ellsworth v. State (1951), 258 Wis. 636, 46 N.W.2d 746. See Anno., Plea of nolo contendere or non vult contendere, 89 A.L.R.2d 540, p. 600, and 152 A.L.R. 253; 20 Am.Jur., Evidence, 1965 Cumulative Supplement, p. 125, sec. 648; 28A Words & Phrases, Nolo Contendere, p. 293. The plea is extensively discussed in Hudson v. United States (1926), 272 U.S. 451, 47 S.Ct. 127, 71 L.Ed. 347.

Under the majority rule this distinction in the pleas does not carry over to the conviction. A judgment of conviction based on a plea of nolo contendere is a conviction which contains all the consequences of a conviction based on a plea of guilty or a verdict of guilty. There is no difference in the nature, character or force of a judgment of conviction depending upon the nature of the underlying plea. State v. Suick, supra; Ellsworth v. State, supra; see Anno., Plea of nolo contendere or non vult contendere, 89 A.L.R.2d 540, p. 604; Anno., What constitutes former 'conviction' within statute enhancing penalty for second or subsequent offense, 5 A.L.R.2d 1080, p. 1103, sec. 15, Plea of nolo contendere. Consequently we have a conviction which is attributable to Lee.

In determining whether the conviction is of an offense involving moral turpitude for the purpose of applying sec. 152.07(2), this court agrees with the circuit judge that 'the crime itself must be one with the inherent elements of moral turpitude.' This court is restricted in its consideration to the elements of the offense disassociated from the particular facts and circumstances surrounding its commission, and the crime by extraneous evidence can be neither gilded with virtue nor tarnished with vice. This view follows from the fact sec. 152.07(2) makes the record of the conviction conclusive evidence. A similar view was taken in State v. Willstead (1946), 248 Wis. 240, 21 N.W.2d 271, of sec. 147.20, Stats. (1945), which authorized a revocation of a license to practice medicine upon a conviction of a crime involving moral turpitude. In that case we held the defendant had no right to explain or qualify the facts and circumstances surrounding his conviction upon a plea of guilty to the unlawful sale of narcotics because the statute made the conviction and not the facts upon which it was grounded the cause for revoking the license. This view was also taken by the California court in Lorenz v. Board of Medical Examiners (1956), 46 Cal.2d 684, 298 P.2d 537, which involved a revocation of a license to practice medicine upon a conviction under the Alcoholic Beverage Control Act. This does not mean, however, that evidence is not admissible of the nature of the crime and its relationship to the mores of the community to determine whether the elements of the crime constitute moral turpitude.

We think a violation of Title 21 U.S.C. §§ 331(a) and 352(a) does not constitute a crime involving moral turpitude for several reasons. The introduction into interstate commerce of a misbranded drug or food product prohibited in sec. 331(a) is made a misdemeanor by sec. 333(a) and the offense does not include an element of the intent to defraud or mislead. Violations of sec. 331(a) committed with such an animus or intention constitute an offense under sec. 333(b) which provides much more serious penalties of imprisonment not exceeding three years or a fine of not more than $10,000, or both. Nor did the offense of which Lee was convicted involve the elements of fraud, deceit, criminal intent or any of the usual elements of moral turpitude. V. E. Irons, Inc. v. United States (1st Cir. 1957), 244 F.2d 34, 43 (cert. denied 354 U.S. 923, 77 S.Ct. 1383, 1 L.Ed.2d 1437. Neither is it necessary to a conviction under sec. 331(a) of Title 21 U.S.C. to charge and prove any awareness of wrongdoing, bad faith or motives. United States v. Greenbaum (3rd Cir. 1943), 138 F.2d 437, 152 A.L.R. 751; Triangle Candy Co. v. United States (9th Cir. 1944), 144 F.2d 195, 155 A.L.R. 903; United States v. Kaadt (7th Cir. 1949), 171 F.2d 600; United States v. Sprague (E.D.New York Cir. 1913), 208 F. 419; United States v. H. Wool & Son (2d Cir. 1954), 215 F.2d 95, 98.

Since the mere fact the introduction in interstate commerce of a misbranded drug is sufficient to constitute the crime, there is no moral turpitude involved. In United States v. Dotterweich (1943), 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48, which involved a charge of misbranding in violation of the federal food and drug laws, the court characterized such law as 'legislation whereby penalties served as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct--awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in a responsible relation to a public danger.' This case was approved in Morissette v. United States (1952), 342 U.S. 246, 259, 72 S.Ct. 240, 96 L.Ed. 288.

For purposes of revocation of licenses, a crime involving moral turpitude had been considered in this state as an offense which involved some guilty knowledge or wrongful intent or an act which is considered inherently wrongful regardless of whether it was punishable by law or not. It was the doing of the act of such character rather than its prohibition by law which determined the moral turpitude. It is said that such acts are malum per se, not malum prohibitum. State v. McCarthy (1948), 255 Wis. 234, 38 N.W.2d 679; State v. McKinnon (1953), 263 Wis. 413, 57 N.W.2d 404; State v. Brodson (1960), 11 Wis.2d 124, 103 N.W.2d 912; State v. Roggensack (1963), 19 Wis.2d 38, 119 N.W.2d 412. In Roggensack this court broadened the grounds of what constituted unprofessional conduct on the part of an attorney by including therein conduct not involving moral...