*1 9, 1985 July 31, complaint January Argued dismissed and submitted Complaint as to Conduct In re CHASE, M. GERALD Accused. 29057)

(SC P2d 1082 *2 argued Weil, Portland, Richard L. the cause and filed briefs for accused. Doherty, argued Oregon Portland,

Patrie J. the cause for VavRosky, State Bar. theOn brief Dennis were R. A. Bruce McMurry, VavRosky Doherty, Rankin, Gunter and & Port- land. Campbell, Peterson, Justice, Lent, Linde,

Before Chief Carson, Roberts and Justices.

PER CURIAM opinion. Peterson, J.,C. dissented and filed opinion. Lent, J., dissented and filed an CURIAM PER attempted was convicted

The accused 475.992(4)(b) ORS substance, a misdemeanor. of a controlled disciplinary these 161.405(1). brought Bar The and ORS involved misdemeanor alleging proceedings members 9.527(2) (set Two infra).1 forth turpitude. ORS involve did not the crime Board concluded the Trial Disciplin- dissented. The other member vote a four to three and was also divided ary Review Board involving moral to be one the crime found public reprimand. recommended Trial from the are set out here following facts Findings of Fact.

Board’s Washington 28, 1982, waiting outside of while “On June office to see the Judge Alan Bonebrake’s County Circuit Court Chase, accused, up got from his seat judge, Gerald M. papers. cigarette rolling drop seen to a matchbox was Crossen, secretary, and three Judge Harlene Bonebrake’s Robertson, Rózales, witnesses, and Bruce Frank Carole other Johnson, fall from the accused’s all observed those items .27 later discovered to contain pocket. The matchbox was prosecutor in to handle special A was called grams of cocaine. *3 pled guilty to charged with and the case. Mr. Chase was (cocaine). Attempted Controlled Substance Possession of a A This is a Class Misdemeanor. in given the cocaine a that he was “Mr. Chase testified automobile, Seattle, it in his by in had left

matchbox an in-law possession it fell in his when did not know the cocaine was and in put matchbox clothing. He testified that he had a from his thinking matches. pocket it contained his attempted posses- the accused, arguing in The a misdemeanor substance is not sion of a controlled moral definition of quoted an often relies on turpitude, moral vileness, baseness, or “an act of comprising as turpitude to a man owes duties which and social depravity private the to the contrary man, society general, fellow or his man duty between right customary rule accepted (1896), 18, 21, P 651 Mason, Or 43 29 parte and man.” Ex Libel, Slander, 12; see also Newell, Defamation, § quoting 1 9.527(2). 9.480(2) ORS than ORS ORS rather and the accused refer to The Bar 9.480(2) in 1981 and renumbered. in a minor fashion was amended

394 726, (1975); In re 271 Or P2d Piper, State ex rel Ricco Kirkwood, Biggs, 413, (1953); v. 198 Or P2d Ruble v. 316, (1928). 125 Or 266 P 252 The accused the elaborates that knowing any attorney, intentional or violation of law not, itself, does in and of constitute an act of moral Rather, he existence argues of moral depends underlying on the facts and circumstances as found Bar, hand, in each individual case. The on the other describes moral as “anything contrary justice, done hon- esty, Edmunson, v. principle good morals.” State 103 Or (1922). 246, 204 P 619 a parties apparently see definitions; however, distinction in the if there is a distinction it is not significant for this case.2 position

The Bar’s is that stat- because ute, 161.405(1),3 requires conduct constitut- ORS intentional crime, ing step a substantial toward the commission of a a lawyer step who takes this toward the commission of the of a should be found controlled substance a misdemeanor tur- guilty committing pitude. problem presented this case and another case Drakulich, date,

decided this In re 299 Or 702 P2d 1097 (1985), proper is the establishment of the criteria to determine a involves moral The two whether misdemeanor cases before us illustrate the inconsistencies that can result on the individual hinges when definition circumstances of Both attorneys attempted posses- cases. were convicted of (cocaine). sion of a controlled substance In the instant case Disciplinary Review Board determined that the misde- turpitude; meanor involved moral in the other it concluded that the misdemeanor did not. term, upon interpret statutory

We are called 9.527(2). of actual turpitude, found in ORS Conviction 475.992(4) (b), possession, felony, grounds ORS would be parties here. At least one case had combined the two definitions relied on *4 Andresen, Attorney (1977). 152, 157, v. Griev Comm’n 159 281 Md 379 A2d 161.405(1) provides: ORS intentionally person guilty “A commit a crime when he is of an to step engages of the in conduct which constitutes a substantial toward commission

crime.” But because of moral irrespective discipline misdemeanor, it must involve a only is attempted impose judgment our own not free to turpitude. We are was which the accused conduct for propriety of the of the rather, legislature’s the task, is to discern Our convicted. authorizing or rule other statute some meaning. Whether not before us.4 conduct may reach the accused’s discipline I 9.527, discipline this to which authorizes court

ORS part: in relevant members, provides, bar disbar, suspend reprimand a may or Supreme “The Court whenever, proper proceedings for upon member of the bar purpose, appears the court that: it to * * <<* * *

“(2) any jurisdiction The member has been convicted involving moral tur- an offense which is a misdemeanor state, punishable pitude or the laws this or is under imprisonment by under the laws of the United death or States, any of which cases the record the conviction shall * * *.”5 be conclusive evidence 9.527(1) example, provides: For ORS disbar, reprimand Supreme may suspend a member the bar “The Court or whenever, upon proper proceedings purpose, appears it to the that: for that court “(1) has carried a course of The member committed act or on conduct bar, that, applying if the for to the such nature member were admission the application should be denied.” 9.220, attorney, part: regulates provides, in ORS admission as an relevant which attorney Supreme applicant apply the Court “An for admission as must to applicant: and show old, proof “(1) state, years may which be Is resident of this and at least 18 applicant’s made affidavit. “(2) (a) person good moral character. Is a 9.025, 9.110, 9.210, 9.070, 9.130, “(b) purposes of this section and ORS For 9.545, 9.250, ‘good be 9.527 lack of moral character’ established acts conduct or to reference acts or conduct that reflect person have substantial doubts about cause a reasonable which would honesty, respect rights the laws for the of others individual’s fairness rationally question should be and nation. The conduct or acts state practice applicant’s law.” fitness to connected to the present provisions express one. on a case like the no of the effect of these We view grounds by removal, suspension Judges subject or censure on the same are (Amended), Oregon Constitution. terms of Article VII section

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

One commentator explains: law, rarely “At common distinguish this term was used to between more and less heinous crimes. The classifications vogue misdemeanor, included and crimes mala in se malaprohibita, falsi, and crimen and infamous crimes. Uncer- connotation, conflicting precedent, tain and unsuccessful categories objectionable. Legislators redefinition made these upon called to draft civil statutes that referred to criminal offenses needed a classification less tenuous. Instead of cata- loguing separate crimes at which their enactments were directed, they term, employed general ‘crimes turpitude.’ moral criterion, It is not clear whether this established a new merely synthesis

or was previously recognized distinctions; any rate, phrase widely has been employed, legislation dealing immigration, with disbar- ment, physicians’ licenses, defamation, revocation of Note, credibility Involving of witnesses. Crimes Moral Tur- pitude, 117, (1929-30). (Footnotes 43 Harv L Rev 118 omit- ted.)6

Courts from jurisdictions developed other have two turpitude. methods define moral One is a variable standard 6 Supreme turpitude” The federal Court noted the “moral has been a statutory many deportation aliens, including standard in contexts the disbar attorneys, licenses, disqualification impeachment ment of revocation of medical witnesses, determining tort-feasors, joint the measure of between contribution deciding 223, language George, whether certain is slanderous. Jordon v. De 341 US 227, 703, (1951). Supreme 71 S Ct 95 LEd 886 A recent federal Court case Hunter v. Underwood, US_, 1916, 85 (1985), 471 105 S Ct LEd 2d 222 another illustrates use provision disenfranchising of the term. The Alabama Constitution contained a persons convicted of crimes The court struck down provision equal protection. as a violation of The court did not consider a definition for the term. The same each case. the circumstances which considers depending on turpitude, may not be one of moral Calaway, 20 Cal 3d See In re in the individual case. conduct (1977); Fahey, 8 Cal 805, In re 165, 141 570 P2d 1223 Rptr Cal (1973); People v. 313, 842, 505 P2d Rptr 106 Cal 3d Legal (1965); Gibbons, 357, Committee Colo 403 P2d 434 (1965). The 2d 141 Scherr, 721, 143 SE v. 149 W Va Ethics crime deter The elements of the is a fixed definition. other The circumstances mine whether it involves moral See determination. do not alter the of the individual case (Tex App Civ Texas, 2d 256 Searcy State Bar 604 SW v. Bd., App 89 Cal 1980); Beverage Appeals v. Alcoholic Etc. Rice (1979); ex rel Bar Rptr 285 State Oklahoma 3d 152 Cal Jones, (Okl 1977); v. Aurora P2d 130 Fortman Ass’n v. Commission, 2d 20 App Ill 3d 346 NE Civil Service *6 App Cal (1976); Investigators, v. Bureau Private 230 Otash (1964). 568, Rptr 2d 41 Cal 263 Likewise, turpitude moral Oregon in we have defined the circumstances of each analysis dependent with both an on have some at a fixed definition. We case and with nature of fixed definition cases on the basis of the decided our itself, distinction applying the crime often the common law se, inherently evil and between a crime malum in a crime itself, wrong in and a malum a crime wrong prohibitum, cases, These all only prohibited legislation.7 because it is involved, include In re concluding turpitude that moral was (1984) Mahr, Carstens, 155, (theft); In re 297 Or 683 P2d 992 939, (1976) Thomas (shoplifting); 276 Or 556 P2d 1359 In re (1965) (violation Walker, 65, 240 Or 399 P2d 1015 Graham statute); Biggs, supra, ex rel Ricco v. federal income tax State house); 103, 105 P2d bawdy King, In re 165 Or (keeping Edmunson, 870(1940) (false (selling swearing); supra, State v. law); contrary prohibition parte Ex intoxicating liquor Mason, (criminal libel). supra, facts approach cases take the that the Oregon

Other 7 meaning fallen and these distinctions have of these terms is itself obscure examples provided his era. Mala in se crimes included into disuse. Blackstone from being “murder, theft, turpitude perjury; on additional from which contract * * “exercising prohibita mala included declared unlawful Illustrations of crimes * * * thereto, apprenticeship burying serving not the dead trades without * * * * * Blackstone, woollen, public performing 1 on the roads not the statute-work (Lewis 1897). *54, ed Commentaries 58

398 of the crime the commission surrounding

and circumstances misdemeanor whether the determining considered in will be Means, with In re begin These cases involved moral (did (1956) decide if a violation 638, P2d 207 Or 298 983 turpitude but consid- involves moral federal income tax laws Maurice C. case). followed In re Means was ered facts (whether (1959) failure to Corcoran, 660, 215 Or 337 P2d 306 depends on circum- moral file income taxes involves decided). analysis the Corcoran stances; citing Cases issue not 45, P2d 217 Or Langley, L. approval are In re William with attorney refus- (1959) (whether district for conviction of gambling for violation against prosecute to inform ing not be determined could involved statutes record); Pennington, 220 Or In re John W. incomplete from (evidence failing (1960) in conviction 343, P2d 774 tax returns partnership of false filing federal taxes and pay Bassett, 240 Or In re Alton John turpitude); established (1965) filing conviction for (involving 401 P2d 33 issue). taxes; misdemeanor not income fraudulent duties emphasizes which Another theme surfaces the accused’s acts on and the effect of lawyer of a Means, the accused violated supra, re where profession. In specifically duty uphold, he had a income tax laws that maintaining high necessity for “paramount referred to the re conduct,” Or at 641. In In professional standards (1958), Jr., we said Johns, 212 Or 321 P2d M. Claude matter grave was “a file income tax returns that the failure to is a member of the the offender any case; the more so when Pen- re John W. stated In 212 Or at 593-94. We bar.” *7 on a different weigh this conduct must nington, supra: “[W]e The court’s institution. operating a reform are not scale. We of highest the standards with compel compliance is to duty occupation.” business or any profession, on imposed conduct 220 Or at 347. the reference to examined with

The term must be cases, with few derives, prior a task our which it statute from (2) spe provides Subsection failed to undertake. exceptions, conclusive shall be of conviction cifically that the record sanctions. We may trigger conviction which of the evidence is of his conviction “The record Ex Mason: explained parte in of thereof, production so that the conclusive evidence made guilt proceed- record such established his the disbarment however, ings. may, go The court the for the behind record purpose severity of the extent or of determining upon the be at punishment administered.” 29 Or 25. This means that category involving the of misdemeanors moral is fixed with reference to the nature and the elements of specific and without consideration the circumstances of a Interpreting way case. moral in this avoids the definitional difficulties of lack of precision notice which variable, attend the fact-specific alternative.

The statute also provides attorney that once an is found to have been convicted of a misdemeanor turpitude, may moral this impose Imposition court sanction. of sanction discretionary is and the decision be made with consideration aggravating mitigating circumstances However, the individual case. consideration of the facts does not occur it is until determined from judgment the convic tion alone In that misdemeanor involved moral Walker, re supra, Thomas Graham summarized the collected opinions in the area following pattern: and discerned the really facts considered degree are used decide the “[T]he punishment, question not the turpitude.” moral 240 Or at 66-67.

In summary, our provides statute that moral tur- pitude meaning, has a fixed and the determination category of must misdemeanors be made with reference to the crime and its elements. If misdemeanor one turpitude, facts and circumstances of an individual case become significant determining appropriate sanc- tion.

II inquiry to identify now is those elements that the legislature place intended would into misdemeanor statutory category. any argues Bar intentional vio lation of law involves support Some cases see cases cited in Breach Liquor Law As position, this Note, Involving Turpitude, Moral (1930-31), LWis Rev 40 includ Edmunson, of State extent, to some v. ing, Oregon case supra. However, more recent cases have this inter rejected pretation. In John Pennington, supra, re W. In 349; 220 Or Means, re supra, 207 Or agree at 640. We with the critics of the

400 distinc- theory interpretation that such an removes the Bar’s generally criminal conduct and that which tion between Note, turpitude. Turpitude See Moral and its involves moral Laws, 75 Penn L Liquor Connection With Infraction of 357, (1926-27). automatically all It would include Rev 358 only requiring knowledge intent and and would exclude crimes recklessness, negligence criminal strict crimes 161.085(7)-(10). the dividing See ORS This liability. line statute to make. appears a devel- attempted own cases have not consistent

Our However, can discern for future cases. we opment guidelines categories in the of behavior that certain common elements are turpitude. moral Our cases this court has held constitute only inheres in an inten- agreement that moral Mason, 29 at 22. supra, a Or knowing parte tional or crime. Ex King, supra, a In re significant factor in Untruthfulness was prompted finding element of fraud has 165 Or 113. The Corcoran, 215 Or at supra, re C. moral In Maurice empha- 48, 217 Or at Langley, supra, In re William L. 663-64. turpitude. In re in its on moral “corrupt ruling sized motive” Bassett, addressing moral tur- though not supra, Alton John the elements of the crime for which pitude, summarized to practice rendered him unfit accused was convicted which fraudulent con- knowing law. included and intentional These personal 240 Or at 288. gain. duct undertaken for deportation present cases The federal alien moral using the fixed definitions of largest body law analysis the elements of the examines The federal is convicted without consideration person crime for which these Although circumstances. mitigating aggravating indicating elements those identifying cases are not uniform in principles. turpitude, guiding find some moral we order to agreement cases are in The federal require must an intentional turpitude, a crime involve Service, state, v. & Naturalization Immigration Hirsch mental Brownell, 1962); Supp F 848 (9th 149 562 Cir Forbes v. 308 F2d (D RI1934) Cola, Supp F 194 (D 1957); In Schiano Di 7 DC re it eliminates (lack negligent or reckless homicide of intent turpitude). crimes category from place a crime dishonesty generally will of fraud or element S Ct DeGeorge, 341 US Jordan v. within the definition. (1951) L (conspiracy Ed to defraud federal taxes); government Immigration Lozano-Giron v. & Natu Service, (7th 1974) 506 F2d ralization Cir (possession defraud); money counterfeit with intent to Winestock v. Immi Serv., gration (9th 1978) and Naturalization 576 F2d 234 Cir securities); (dealing in counterfeit Immigra Ramirez v. U.S. *9 Service, (DC tion Cir), & Naturalization 413 F2d den 405 cert 929, 90 264, 24 (1969) (false 396 S Ct L pretenses US Ed 2d 226 defraud); Savoretti, with intent to United States v. 200 F2d (5th 1952) (forgery 546 Cir uttering); v. United States (7th 1940) 109 F2d Cir Schlotfeldt, 106 (perjury); United Reimer, (DC (embezzle v. Supp 1937) States 19 F 719 NY ment). Crimes involving against person violence another are also classed as moral v. Flagg, offenses. DeLucia 297 (7th 1961), 837, 82 F2d 58 Cir cert den US S Ct 7 L Ed (1962) homicide).8 2d (unjustified

Similar elements are reflected in the cases state only consider the crime itself and not the circumstances each Bd., case. In Rice v. Beverage Alcoholic Etc. Appeals supra, the court indicated that moral turpitude was “inherent crimes intent, fraudulent dishonesty intentional * * for personal purposes gain or other corrupt purpose App 89 Cal 3d at 37. Possession cocaine with intent to sell was held to involve moral turpitude largely because of personal element of gain which motivated the illegal conduct. Searcy Texas, In v. State Bar supra, an attorney was convicted of knowingly making a false statement an application a for bank loan. The court determined that gravamen crime, of the to knowingly lying obtain a for loan personal benefit, rendered the crime one moral

Ill We turn now to a determination whether accused in this case committed a misdemeanor involving moral tur- pitude. The accused was convicted of a misdemeanor for attempted 475.992(4)(b), violation of ORS provides: which

“(4) person any It is for knowingly unlawful or inten- tionally possess a controlled substance unless the substance 8Many compiled (1975). of these federal cases are at 23 Fed ALR The federal drug cases do not consider whether offenses involve moral because violations drug 1251(a)(ll). independent grounds deportation. are laws §USC from, to, pursuant prescrip- directly a or valid was obtained practitioner acting in tion order of a while the course of his or except

professional practice, as otherwise authorized Any person and 475.991 to 475.995. ORS 475.005 475.285 respect with to: who violates this subsection * * ^[*] ^[*] II,

“(b) guilty A in Schedule of a controlled substance felony.” Class C respect to moral tur

There is no distinction with crime and an a substantive pitude between the commission of in 3 Am Jur 2d commit it. See sources cited attempt a felony, completed 80. If the crime was Aliens and Citizens § discipline obtaining a reduction of the lawyer avoid cannot completed charge where to misdemeanor of moral involves the elements conclude, of the crime issue as to the elements

We requires attempted possessory offense here, following: this however, does not knowledge; it element of intent or dishonesty fraud, and does deceit or contain the element is this case one specific to a victim. Neither involve harm gain. It does activity personal undertaken for illegal *10 elements, intent, in addition to that we any of the not contain interpreted turpitude require. moral have posses- the crimes of There is a distinction between In the trafficking or sale. of a controlled substance and sion trafficking and sale courts held that prohibition, era of alcohol for possession while turpitude were acts of moral of alcohol Skrmetta, 22 F2d 120 Coykendall See v. personal use was not. personal use (5th 1927) wine for (making possessing Cir and State, Ala Baugh v. 215 turpitude); not involve moral did (1927) did not inolve moral (distilling liquor 112 So 157 Court, F2d 722 District 19 United States turpitude); Bartos v. use, personal (8th 1927) possessing beer for (brewing Cir and offense). sale, turpitude was not a moral if not for prohib our current under This distinction continues 225, 227, 268 SE2d 587 Harvey, v. 275 SC itory State laws. was not (1980), marijuana of simple possession held indicated that The court turpitude. moral involving crime declaring no case it could find research” after “exhaustive v. turpitude. In State to involve moral possession marijuana (1983), distinguished court 499, 299 329 Lilly, SC SE2d 278

403 possession marijuana, between a crime not moral involving distribute, and with intent possession a crime Estate, moral turpitude. Pearl v. Fla Bd Real 394 (Fla App 1981), So2d 189 reviewed offense drug cases and observed that none held of these moral to be the possession involved in of controlled The court substances. possession held that “mere of a controlled substance is not a ** * turpitude.” moral 394 192. So2d at 562, 572, Similarly, Higbie, In re 3d Cal Rptr Cal (1972), Court, P2d Supreme the California in consider- ing whether pay conviction failure to a marijuana transfer that, tax involved moral turpitude, possession noted although unlawful, or use of marijuana was such conduct was not act “baseness, or depravity” vileness as moral turpitude is defined. The court held that the conviction did involve turpitude, but the of counseling accused’s act others in a marijuana did smuggling imposed scheme a sanction. Edmunson,

Our own case of State v. supra, discusses liquor of intoxicating prohibition during as a “technical contemplated offense” not as punishable under the attorney discipline statute predating that at issue in this case. Or at 249. The sale of intoxicating liquor, however, was held to involve This case illustrates application of the elements we have identified: One who prohibited trafficks in only substances not violates the law for personal but, by act, gain directly the same also contributes to physical harm to the purchaser. tráfficking Sale and offenses meet the elements moral Possessory offenses do not. agree

We with the dissenters that substance abuse is problem society. serious legislature our Doubtless the has perceived it prohibition as such. Outright drugs of such as marijuana pervasive cocaine and regulation others, alcohol, However, as such make this pervasive clear. neither regulation nor possessors the fact of controlled sub- stances contribute to a wider enterprise illegal *11 harmful defining statutory conduct aids in term. As Chief acknowledges, many Justice Peterson regulatory offenses perceived enacted widespread impli- to address some harm are by cated proposed analysis. the dissenters’ Justice Lent seeks the sweep by narrow of this distinguishing broad definition among However, controlled substances. is marijuana whether substances, as he from other controlled

“truly different” equipped which this court is not suggests, inquiry upon is an has that of mari- legislature provided possession embark. punished severely is less than other quantities in certain juana 475.992(4)(f). noting, is ORS It worth possessory offenses. however, possession avoirdupois one ounce of mari- more, regard to it is presumably or without whether juana punished possessor, is more purchased grown Marijuana a Schedule I severely than of cocaine. is and is in II of the controlled substance cocaine Schedule Act, 21 USC ORS Federal Controlled Substances § 475.992(4). were in this state adopted The federal schedules 475.035, OAR 885-80-02. rule. ORS administrative misdemeanor of which accused We hold that the convicted is not one was

Complaint dismissed.

PETERSON, J., dissenting. C. holding in Part majority’s I concur with the Although only crime itself and not circum- II we “consider case,” 401,1 disagree Part III of each 299 Or at with stances and therefore dissent. drug euphoric is narcotic whose powerful

Cocaine by depression, and followed which are short lived are effects its drug. Apart physical from greater results in use of turn delusions, user, usually produces use effects on the cocaine occassionally, homicidal frequently paranoia causes Rothblatt, Cases Bailey Handling Drug Narcotic urges. Cocaine, (1972); Cohen, Drug Health Hazards § (Fall 1982). Enforcement 10 presently It that between 1980 and estimated for the first time rose trying of Americans cocaine the number four and people and that between from 10 million to million Stone, monthly. at least Americans use cocaine eight million Solution 3 Seduction and Kagan, Fromme and Cocaine: Americans were (1984). contrast, four million By only in 1976 Council, The Drug cocaine. The Abuse estimated to have used (1980). “Drug About Abuse” Facts Seduction by the authors Cocaine: As noted Solution:

405 group fastest-growing up “The of cocaine is users made forties, through early in Americans ing their late twenties includ- people men women. both and Most who have tried cocaine through upper-class are over 26 and include blue-collar Amer- mobile, average, upwardly people icans: outward educated who all * * *”Stone, appearances are successful. Fromme and Kagan, supra at 4. survey City

One in the New York area revealed that cocaine- episodes related room emergency 1979, increased from 1980, to 1991 in percent. an increase of Nationally, Id. cocaine deaths nearly percent during related increased period. same Id. Statistics from the National Center quadrupling Disease Control showed a of cocaine related deaths Caffey, between 1976 and 1981. Counter-attack on Strategy Cocaine: The Enforcement, Drug Enforcement 2 (Fall 1982). Probably high due to the cost of even moderate drug, use of the there has been a concomitant rise in non- violent and white-collar crime associated with the increase in cocaine use Stone, middle class. Fromme Kagan, and supra at 4. Recent studies have firmly more established the correlation between drug use, cocaine, including and crime in general. See Justice, National Department Institute of Justice, Probing Links Drugs Between and (February Crime 1983).

The accused pled guilty and was convicted of attempted possession of cocaine. Possession of cocaine a felony. 475.992(4)(b). ORS We know that the accused inten- tionally engaged which, in conduct if completed, would have supported a conviction for cocaine. The majority acknowledges that is no distinction with “[t]here respect to turpitude between the commission substantive crime and an to commit it.” 299 atOr 402. majority inability has confessed an to dis- “

tinguish between a definition of moral as ‘an act of baseness, vileness depravity private and social duties which a man society general owes his fellowman or to contrary accepted to customary and rule right duty ” man,’ 393, between man and 299 Or at Ex quoting parte Mason, 21, (1896), 29 Or 43 P 651 and that found in State Edmundson, (1922), v. 243, 246, 103 Or 204 P 619 which contrary to “anything justice,

defines moral as done good morals.” honesty, principle irresponsibility social manifested in I believe that the “contrary justice, here is the accused’s conduct at issue honesty, good Apart from the fact that principle and morals.” comport higher expected to with members of the bar are Johns, persons, e.g. In lay conduct than are re standard of (1958), persons like the accused who Or 321 P2d 181 contrary to the law are and use controlled substances possess self, responsibilities has helpless victims. Each one friends, community. drug In an era when family, *13 increasing is particular on rise and cocaine use in use is implications part of of the rate, being the moral astonishing responsibil- persons positions to problem should be clear ity trust. does not contain elements possessory

This offense to a fraud, dishonesty not involve harm deceit or and does victim; involving illegal one specific neither is this case However, it does activity personal gain. for undertaken knowledge. intent or Inten- require possession occur with alone is insufficient to knowing illegal tional or conduct However, conduct, even certain turpitude. constitute moral above, may identified falling categories within though to some wide- turpitude moral because it contributes involve regards any Presumably legislature spread public harm. some public harm of crime, by definition, involving as social practices, elec- involving offenses business Regulatory kind. violations, tax offenses and environmental campaign tion However, possession con- examples. protection wildlife are and cannot be is of a different character trolled substances viewed in isolation. selling in and controlled sub-

Although trafficking mere culpability than does greater degrees stances involve unlawfully presence persons willing to possession, essential to the and use substances as possess controlled are the traffickers. problem abuse as continuing substance their wares the possess and use persons willing Without Both those would be without customers. traffickers and sellers those who substances and possess who and use controlled individual for the responsible are traffic those substances drugs and societal ills associated with the unlawful use of such as cocaine. legislature Not to be overlooked is the fact that the (which degree to a real determines the collective watermark of conduct) possession moral has denominated cocaine felony. I would hold that the misdemeanor of which the attempted possession convicted, accused was aof controlled turpitude. substance, is one disagree holding possessory I with the that no trafficking contains elements of moral While greater degree sales offenses be associated awith of moral possessory than offenses, mere degree cocaine alone is attended a sufficient of moral requirement attorney to meet the threshold discipline 9.257(2).1 under ORS

Lawyers they may subject should realize that still be discipline for conduct such as is involved in this case. See majority opinion. footnote 4 of the

joinI Lent, the dissent of J. dissenting.

LENT, J., majority possess concludes that an cocaine is not a misdemeanor I agree. cannot *14 475.992(4)(b)provides:

ORS any person knowingly intentionally “It is unlawful * * possess to a Any person controlled substance *. who violates respect this subsection with to:

* * * * “(b) A controlled in substance Schedule II assume [I here], guilty felony.” cocaine falls is (Emphasis of a Class C added.) pleaded guilty

After the accused had to the misde- attempt felony, meanor of an to commit this Class C ORS lawyers laymen 1 Somecourts have held to than a stricter standard because of the position public lawyers enjoy. trust which In this case we need not decide whether sliding turpitude, occupation. depending there is a scale of moral I on one’s am satisfied that this is a crime lGl.JOñílHd),1 proceedings charging commenced, these were of a misde- the “conviction constitutes a conviction that turpitude.” meanor stipu- Oregon

The State Bar and the accused have lated: 28, 1982, waiting Judge “On while outside of June accused, judge, M.

Bonebrake’s office see the the Gerald Chase, drop got up from his and was seen to a matchbox seat secretary, cigarette rolling Judge papers. Bonebrake’s and Crossen, witnesses, three other Carole Harlene and Rózales, Johnson, Robertson, observed Frank and Bruce all pocket. The matchbox was said items fall from the accused’s grams special .27 of cocaine. A later discovered contain was prosecutor called in to handle the case. Mr. Chase was pled Attempted a charged guilty to Possession of with and (cocaine); a A Substance Class Misdemeanor.” Controlled accurately quotes majority the Trial Board’s The findings of fact: in given he a “Mr. testified that was cocaine Chase automobile, Seattle, in in-law in it his

matchbox an had left in it fell did the cocaine was his when not know clothing. put a from his He testified that he had matchbox pocket thinking his it contained matches.” adopts “finding.” Apparently, majority this same absolutely absolutely finding accurate is The testify. point. did Whether that accused so beside testimony entirely different matter. is true is parties stipulated named if detective accuracy testify to the of his called he Sheland were would report, the Trial Board. which was received evidence before report, with the Sheland’s interview That which describes days apartment nine after the that the some accused the accused’s Judge anteroom, discloses incident Bonebrake’s falling any memory from of matchbox denied accused first his clothing. the accused that After detective reminded package “zig-zags”2 seen matchbox were both 161.405(l)(d) provides is a Class commit a Class C 1 ORS that an A misdemeanor. clear, zig-zags entirely gather testimony 2 Although are I from other it is not rolling cigarettes. papers for *15 to the (according his the accused falling clothing, from exhibit) given him the match box had been earlier

“then said that gave him day. up asking I who it to followed on picked up it off a coffee table. He he then advised he now he remembered it was an older small match box and that day Paddy’s it earlier he had been at remembered was on Restaurant, & in Portland and about 1st Yamhill his office picked up just sitting the table. He it because found box on open he needed matches. He never did the box and had no idea why he it held cocaine. follows the accused’s version of [There patted pockets Judge he Bonebrake’s his when arose day he in the that he had seen anteroom and how noticed later “zig-zags” missing.] his doctor and had noted that the were story given “I then reviewed his as [detective Sheland] happened. he advised that was what again “I asked if he was aware of the contents of the match box and he advised he was unaware. He also that at no advised opened any time had he the box or touched of the contents.” testimony In his “explained” the accused what he felt to be discrepancies report. in the detective’s He testified that he told the than detective that his visit to the doctor was earlier anteroom, the incident in the judge’s but he did concede that he had told the detective that he had taken the matchbox from Paddy’s. a table at He testified: says, day by up asking gave

“It T it to followed on that who advised, picked up him and he then he it off a coffee table.’ Again, totally that is not a accurate reflection of our conversa- Paddy’s I gone tion. told him that I had and that coffee upon recall, leaving, many I I I and can’t have so of them and evidently grabbed can’t if I it I recall from the bar. But what during picked up told him I it off conversation was that tables, usually they the table. On each one of the individual So, ashtray early morning. every- have an in the and this is thing day’s usually is clean and set for the business. There is ashtray ashtray. with a box of matches inside the gone I him

“And what told was that I had there for coffee table, picked up and then I left I it of the when off out ashtray and table. context, before, you I

“In the like described to there older, about, language small matchbox.’ some ‘It was an my got You’ve to understand that when he came to door attention, frightened. brought my I scared. I was this to was going things were grasping I for straws and certain And was part the older my And that’s the about through head. But, point I in addition thing that want to out matchbox. early on says, that he remembered it was to that it ‘And now *16 Restaurant,’ guess I day, Paddy’s and that he had been at regard report in is only thing objection I to to this that take about, know, you very specific I him time that was with in that’s it’s written place and how this had occurred and discrepancies early get And then we to the terms of like or later. these regard in to the doctor’s office and how to the visit just things come out of order.”3 accused, explained that he that In fairness to the I must note to his source in Seattle. story protect his to the detective was the version that believes Apparently majority containing he obtained a matchbox Seattle although had but clothing was in his cocaine, just he didn’t know that box to I know what version in his automobile. don’t thought it was attorney his that he advised I do know that he testified believe. in the fact, knowledge of the cocaine “I did in have I had that on matchbox, any have idea that but that I didn’t my possession at the time.” the accused plea bargaining a

Apparently as result charge. “attempt” to the plead guilty decided to Board, the the Trial version before given Under the cocaine in a matchbox knew that he had some accused words, he In other was in his automobile. knew the matchbox given the version possessed cocaine. Under “knowingly” had Sheland, didn’t know he he the accused to detective plead guilty all, why he would at and one must wonder cocaine cocaine. intentionally” possess to attempt “knowingly an “knowingly” he true, we know that story is If the “Seattle” the incident very a short time before had of cocaine of this purposes anteroom. For Judge Bonebrake’s assume, charge that under the arguendo, opinion, I shall the convic- go behind permitted we are not proceeding this had whether he question “attempt” an and reach tion of required point garbled is out that this version of what occurred 3 Noelaboration diametrically opposed testimony Paddy’s to the Restaurant is of the accused obtaining possession concerning of the cocaine in Seattle. his 9.527(2), felony.4 ORS cocaine, C See a Class possession conclusive. shall be of the conviction that the record providing review of truly brilliant produced has majority The concerning the case law strengths both the weaknesses reason- majority’s a crime involves when here with dealing we seductive. Were review is ing from that consid- itself, was not that, in conduct proscribed legislatively that to offensive than socially less to be legislature ered might I succumb. “felony” applied, should be name which the I cannot. here involved of misdemeanor In the kind in the only a misdemeanor because This conduct crimes respect to inchoate symmetry with apparent reach a Class C to commit decided to treat legislature prescribed legislature has only a misdemeanor. as specified attempts to commit reduces general scheme itself to of the crime crimes from the classification classes of hierarchy of crimes. in the the next lower classification such as to warrant attempted be Although the *17 attempt heavy penalty, calling as a crime for classification therefore, ORS and, penalty. down the classification steps of the crime the nature change 161.405. That does not attempted. an to commit must decide whether

Where we that we turpitude, I believe felony involving a crime moral a is a crime be itself would must look to whether that concludes turpitude. majority The involving moral moral involving a crime of cocaine is not possession crime of application and in I both in the abstract turpitude. disagree, case. particular this that concerned violation relies on cases majority

The Each of those prohibition.” “alcohol concerning laws of the use of manufacturing personal possession or cases involved involve cases did not those majority recognizes, As the alcohol. sale of alcohol. “trafficking” the distinc- continuing cases majority relies on case, first [drug] prohibition.” era of present

tion “in our (1972), 97, 99 562, 493 Rptr Higbie, a case cited Cal 3d P2d 4 InIn re Cal infra, court behind the federal majority court went discussed the California lawyer had pay facts that the the actual failure to a tax and considered conviction of conspiracy smuggle marijuana. engaged in a Harvey, State v. (1980), SC 268 SE 2d 587 concerned whether the trial court erred in allowing prosecutor to ask a defense alibi witness about the prior guilty plea witness’ to a charge marijuana. The rule of law was that witness could not impeached by specific be acts of misconduct except for involving crimes majority As the states, here the South Carolina court stated that “exhaustive research” produced had no decision that simple possession of marijuana was a involving moral turpitude. The court then held that simple possession was not crime of moral I suggest that the South Carolina court embarked on the wrong “exhaustive research.” That the court found no case holding that it was a crime involving meaningless. It should have looking been for a case that held simple possession marijuana did not involve moral turpitude. True, Harvey, State v. can be supra, accurately now cited for simple possession marijuana the rule that does not turpitude, involve moral but the basis of the decision is suspect.

The majority Lilly, next relies on State v. 278 SC (1983), 299 SE 2d 329 for holding simple possession is not court, a crime moral turpitude. That is what the in a said, per opinion, curiam it what held. It held that possession with intent to distribute did involve moral tur- pitude. What it said was based on its own case of State v. Harvey, supra.

The next case is a decision intermediate court Estate, (Fla appeals, Pearl v. Fla. Bd. Real 394 So 2d 189 1981), a App two-to-one decision revocation of a real estate majority opinion salesman’s license. The states that the drug “reviewed offense cases and observed that none of these held moral to be in the possession involved My reading controlled substances.” 299 Or at 403. of the *18 opinion tells me that the court first reviewed a of group Florida A nothing drug cases that had to do with offenses. category jurisdictions second of cases reviewed from other category drug likewise were not offense cases. The third appeals found reviewed the Florida intermediate court of that certain crimes in certain states did involve moral tur- pitude: opium.

Missouri: sale of of keep failure to a record physician’s California: addict. dispensed narcotics to known morphine. Texas: sale of

Arizona: of use. drugs sale for non-medical find no case majority states that the Florida court could constituted moral The Florida possession which thing. court said no such

The Florida court said: “None of these authorities involves mere [above described] possession drugs. persuade The cited authorities us that possession mere of a controlled substance is not a crime [involving turpitude].” outstanding

394 So 2d at 192. I nominate this for one the sequiturs non of our time. one of those cases con- Not was possession cerned with the mere of a controlled substance. The true find quest holding would be to a case that mere did not involve moral The Florida court majority “totality went on to take into account the of circum- (below) finding stances” and the of treatment and rehabilita- (The tion. majority recognizes in the case at bar that such subsequent question.) conduct has no on the central bearing purpose The court concluded that the of the real estate was licensing statutes protection public unscrupulous the

“to insure of the from purpose against guard dishonest real estate brokers. Its is to practices.” fraudulent real estate

394 So 2d at 192.

Although purpose Oregon may one law be to protect unscrupulous attorneys, from dishonest and public case, sincerely hope majority, by citing I the Florida our statutes and the holding only purpose is the Responsibility. object Code of Professional It is true that the attorney disciplinary protection of sanctions in cases is the attorney, than of the but the public punishment rather Responsibility, statutes and the Code of Professional in iden- tifying imposed, conduct for which sanctions be reaches fact, canons, part In are majority further. which Code, Rules, directly are not Disciplinary as well as the dishonesty unscrupulousness. concerned with *19 '414

I am astonished the majority’s reliance on the fourth case cited in opinion, the namely, Higbie, In re 6 Cal 3d 562, (1972). 493 P2d Rptr 99 Cal discipli- There the nary proceeding arose lawyer’s out of the conviction on a guilty plea pay of failure to the federal transfer tax on transfer (as Feds). of marihuana it is lawyer known to the was engaged in a smuggle scheme to marijuana from Mexico to California help friends, out a bunch of Yuppie his who wanted to indulge their habit. He actually was involved in a smuggling operation copped but out to the tax offense. Attorney’s

“The United States motivation to reduce the charge apparently difficulty derived from the in proving respondent’s possible fraudulent intent and the from success respondent’s establishing entrapment.” defense of 493 P2d at 100. The court noted that the statute requirement wrongful

“contains no intent or intent to government defraud the an individual be [and that] pay convicted the federal crime of failure to the [of tax] possession marijuana failure, virtue of his inadvertent, and his however pay the tax.” 493 P2d at 102. The court then held that because the statute require did not a showing defraud, of an intent to the failure to (to pay the tax lawyer pleaded which the had did guilty) not involve moral

In its brief the actually California State Bar urged that, given widespread use marijuana today, only use of marijuana for “illicit traffic” could be found to be conduct “moral as a matter of law.” 493 P2d at agreed, stating possession 103. The court alone baseness, vileness, depravity

“does not constitute ‘an act of contrary . . . accepted customary to the right rule of duty (In supra, Craig, between man and man.’ re Cal.2d 444), p. p. attorney 82 P.2d at or indicate that an is unable professional fiduciary practice.” to meet the duties of his pure dictum; 493 P2d at 103. This is a possession this was not case. The court concluded that attorney, although motivated to defraud government smuggling scheme, had engaged conspiracy in an unlawful that included conduct that did involve moral The court sus- pended lawyer practice. from majority, authorities, con- these on the basis of “prohibited possession does substances” mere

cludes that not involve trafficking in those but that lumping turpitude. This involve would substances together the fact conceals substances of all controlled truly marijuana sub- such manufactured different from angel dust, meth- LSD, cocaine, heroin, stances as amphetamines, etc. quantity easily grow person mari-

A could small exclusively juana of that use. His for his own (as growing stage) distinguished marijuana consumption *20 from trafficking part of the which of it would be place marijuana. same is not true with in often takes respect named. other controlled substances above to the produce heroin or manufacture or One who does not possession has into of heroin or cocaine cocaine but comes necessarily trafficking in the final result of obtained it as product. drugs. produced It has been has the finished Someone part purchaser is a of that distributed and sold. The ultimate trafficking. purchaser, Indeed, were it not for the ultimate whole, in as cocaine worldwide illicit traffic substances such very collapse. purchaser at the least must be would fostering trafficking, regarded as the illicit which now con- society’s attempting eradi- sumes much of cate the resources in so trafficking. (two jurisdictions)

The three cases decided senior appellate marijuana. majority relies all involved courts on which the

(We in know substance was involved don’t what case.) does not involve The case before us Florida attempted attempted possession marijuana. It involves knowing possession that cocaine. I would hold possession involves moral of cocaine intentional unlawful felony is a to commit that and that the involving moral say by majority its footnote of I understand the attorney today opinion it does not decide whether any controlled could be sanctioned for law support a con- that would substance in circumstances attorney prosecuted regardless viction, of whether Oregon State Bar I the members of the convicted. caution possession, properly charged disciplinary “mere” in a case proceedings, result sanctions. appropriate

I do not reach what would be the sanc- persuaded my case, tion in this point but if the court could be view, the court would have to consider which of the acquisition true, accused’s versions of his of this cocaine is if any is true. joins dissenting opinion. J.,

Peterson, C. this