State ex rel. Oklahoma Bar Ass'n v. Denton

• Decision Date: 24 July 1979
• Docket Number: No. 2720,2720
• Citation: 1979 OK 116,598 P.2d 663
• Parties: STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. David O. DENTON, Respondent. S.C.B.D.
• Court: Oklahoma Supreme Court

Page 663

598 P.2d 663

STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. David O. DENTON, Respondent.

S.C.B.D. No. 2720.

Supreme Court of Oklahoma.

July 24, 1979.

Rehearing Denied July 24, 1979.

Disciplinary proceeding against respondent upon complaint of the Oklahoma Bar Association. We find respondent is subject to discipline; trial authority's recommendation of suspension is modified as per opinion.

DISCIPLINE IMPOSED: SUSPENSION ORDERED.

William E. Boswell, Jr., Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, for complainant.

Clyde A. Muchmore, Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, for respondent.

DOOLIN, Justice:

Article X, § 4(b) of the Rules of the Oklahoma Bar Association ¹ provides that:

"A member of the association who has been convicted in any jurisdiction of a crime involving moral turpitude regardless of whether conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial, shall be subject to discipline as herein provided, regardless of the pendency of an appeal."

Respondent pleaded guilty in Kay County, Oklahoma, to two charges, one involving unlawful possession of amphetamines and one involving unlawful possession of marijuana. Sentence was deferred on the amphetamine charge and he was placed on probation without supervision for one year. That probation time expired in August of 1978, the case was dismissed by operation of law and his plea of guilty was expunged from the record. Because the expungement was prior to the date of the disciplinary proceeding, the trial authority found his plea could not be used against him by the Oklahoma Bar Association. ²

The sentence on the charge of unlawful possession of marijuana was similarly deferred. However his probation time on this charge was two years and does not expire until August 1979. On this basis, that of the conviction of possession of marijuana alone, the trial authority found respondent to have pleaded guilty to a crime of moral turpitude and recommended that he be suspended from the practice of law for one (1) year.

The issue for decision by this Court is whether such recommendation should be approved. We are not bound by the trial authority's recommendation but may take any action which we deem appropriate. ³ Respondent pleaded guilty to a misdemeanor involving possession only. Does this involve moral turpitude and thus require discipline?

This court in State ex rel. Oklahoma Bar Association v. Jones, 566 P.2d 130 (Okl.1977) attempted to delineate the elements of moral turpitude. We stated moral turpitude implies something immoral in itself regardless of fact of whether it is punishable by law. Important elements are Intent and Knowledge. There can be no question under the conviction respondent is accountable for Intent to possess the marijuana and Knowledge that such possession is illegal. Moral turpitude is admittedly an elusive concept incapable of precise definition. Its definition may change with the times and vary from community to community. ⁴

In Oklahoma, the primary purpose of discipline is not punishment, but purification of the bar and protection of the courts and the public generally. But this is not the sole purpose for discipline. It must also serve to deter respondent from committing similar acts in the future and it further acts as a restraining influence on other attorneys. ⁵

We hold respondent's wilful misconduct in violation of the law of Oklahoma is a crime of moral turpitude under the definition of State ex rel. Oklahoma Bar Association v. Jones, supra. Thus he is subject to discipline under Rule 4(b).

A first time offender charged with unlawful possession of marijuana (a misdemeanor) has an opportunity to have his conviction expunged from the record. ⁶ Respondent's crime will be expunged by operation of law in August of 1979 if he meets the requirements of his probation. Although respondent must be disciplined, we believe a suspension for the length of his probation is adequate warning that this court does not condone such acts. This court has discretion in determining appropriate discipline. ⁷ It is therefore ordered David O. Denton be suspended until the date his deferred sentence is completed.

LAVENDER, C. J., and WILLIAMS, HODGES, BARNES and HARGRAVE, JJ., concur.

IRWIN, V. C. J., and OPALA, J., dissent.

SIMMS, J., concurs in result.

OPALA, Justice, dissenting:

The Bar's complaint rests on respondent's two violations of the Uniform Controlled Dangerous Substances Act. ¹ Both criminal acts, Doubtless arising from a single arrest, constitute a misdemeanor. One consists of unlawful possession of amphetamines and the other of marihuana. ² As a basis for imposition of discipline the Bar alleges both offenses involve moral turpitude and "adversely reflect( ) on (respondent's) fitness to practice law . . .". ³

The case was submitted on stipulated facts with exhibits. No evidence was offered to show respondent's want of fitness to practice law. We know nothing about the circumstances of his arrest or the quantity of substances seized from him. The record gives us no information about his age, background, maturity, past professional activity and performance or reputation. Nor does it reveal the extent of respondent's involvement, if any he have, with the use of controlled dangerous substances. Without knowledge of these critical facts I am unable to determine here whether or what professional discipline should be meted out.

Were I called upon to do no more than pass my Moral judgment I would not hesitate to invoke my life-tested generational, social and cultural standards to pronounce, without hesitation, unequivocal condemnation of respondent's conduct. My Legal judgment cannot be given as easily because it requires additional proof in order to apply a vastly different reasoning process.

The bare facts known to us unfold this chronology of events: (a) both violations occurred August 2, 1977; (b) charges were filed August 3, 1977; (c) guilty pleas to both charges were entered August 19, 1977; (d) deferred judgment and sentence with probation without supervision, rendered August 19, 1977, imposed one-year probation on the amphetamine charge (which was successfully completed August 19, 1978) and two-year probation on the marihuana charge (which will expire August 19, 1979) ⁴; (e) Bar complaint was filed May 20, 1978; (f) trial authority was appointed June 6, 1978, and (g) disciplinary hearing was held August 24, 1978.

Trial authority's report, recommending one-year suspension from practice, rests on these findings and conclusions: (a) respondent's admitted guilt of unlawfully possessing marihuana is proof Per se of moral turpitude and (b) respondent's unlawful possession of amphetamines cannot be a legal predicate for imposition of discipline because before this case stood submitted to the trial authority (on August 24, 1978) the period of probation on the amphetamine charge had ended (on August 19, 1978). ⁵

With the passage of Uniform Controlled Dangerous Substances Act almost a decade ago, the policy of our law with respect to First offenders in marihuana possession cases underwent a Drastic change. For these violators the offense itself has been reduced from a felony to a misdemeanor. ⁶ Opportunity for a deferred, and ultimately conviction- and record-free disposition became available under special statutory provisions ⁷ which offer a shield of protection far beyond that available under our general deferment-of-sentence statute. ⁸ The expungement contemplated by the latter extends no further than "the verdict or plea of guilty", while the former statute appears to include "arrest or conviction" and offers the affected offender a veritable palladium for "any other public or private purpose". Nay, it makes the very illegal act obliterable in contemplation and by force of law. ⁹

It is, no doubt, the broad and explicit language in the protective provisions of 63 O.S.1971 § 2-410 that led the trial authority to conclude the amphetamine possession had been so effectively obliterated from legal existence that it could no longer be used as a ground for disciplinary complaint. I am in complete accord with this conclusion.

My concern is that the course taken by the trial authority and by the court's opinion today withholds full faith and credit from post-1971 legislative Policy for first offenders charged with simple possession of marihuana. Statutory distinctions between persons never before convicted of a drug offense (to whom the benefits of § 2-410 are intended to apply) and those who are subsequent violators stand rejected and the deliberate legislative policy of a "first bite free" is ignored. In fashioning and applying norms of rectitude for lawyers, we should remain ever mindful that because our inherent power to exercise disciplinary jurisdiction calls on the judicial branch to function, at its highest level, in both legislative and adjudicative capacities, ¹⁰ we should not needlessly abandon harmony with the declared policy of the law. I find it entirely consistent with our constitutional responsibility to the public to maintain a safe and respectable profession that we recognize the beneficent objective of present-day legislative policy. Where, as here, it is doubtful or uncertain whether the Legislature intended to attribute moral delinquency ¹¹ to a criminal act, Summary discipline is unwarranted. Instead, a full inquiry as to fitness should be conducted. ¹² Our own court applied this approach when dealing with conviction under an ambiguous federal statute. ¹³

The pronouncement today does not leave the affected area of professional responsibility in a state more satisfactory than before. In what is doubtless a case of first impression, the court has fashioned its process to discipline a first offender charged with simple possession of marihuana into an unwholesome...