
Filed: April 17, 2003
IN THE SUPREME COURT OF THE STATE OF OREGON
In re: Complaint as to the Conduct of
LISA D. NUSS,
Accused.
(OSB 00-93; SC S48966)
	On review of the decision of a trial panel of the
Disciplinary Board.
	Argued and submitted May 14, 2002.
	Wayne Mackeson, Birmingham & Mackeson, LLP, Portland, argued
the cause and filed the brief for the accused.
	Jeffrey D. Sapiro, Disciplinary Counsel, Lake Oswego, argued
the cause and filed the brief for the Oregon State Bar.
	Before Carson, Chief Justice, and Gillette, Durham, Riggs,
De Muniz, and Balmer, Justices.*
	PER CURIAM
	Complaint dismissed.
	*Leeson, J., resigned January 31, 2003, and did not
participate in the decision of this case.
		PER CURIAM
	In this lawyer disciplinary proceeding, the Oregon
State Bar (Bar) alleged that the accused committed a "misdemeanor
involving moral turpitude," subjecting her to discipline under
ORS 9.527(2), because she had pleaded guilty to one count of
harassment under ORS 166.065(1)(a)(A).  A trial panel of the
Disciplinary Board agreed with the Bar and imposed a public
reprimand.  The accused sought review of the trial panel's
decision under ORS 9.536(1) and Bar Rule of Procedure (BR) 10.3,
contending that that type of harassment is not a misdemeanor
involving moral turpitude under ORS 9.527(2).  We review de novo. 
ORS 9.536(3); BR 10.6.  We disagree with the trial panel's
application of ORS 9.527(2) and dismiss the complaint.
	The facts are undisputed.  On February 22, 2000, the
accused pleaded guilty to one count of harassment under ORS
166.065(1)(a)(A).  ORS 166.065 provides, in part, as follows:

		"(1) A person commits the crime of harassment if
the person intentionally:
		"(a) Harasses or annoys another person by:
		"(A) Subjecting such other person to offensive
physical contact * **[.]
		"* * * * *
		"(3) Harassment is a Class B misdemeanor."

	The Bar subsequently initiated a disciplinary
proceeding in which it charged the accused with violating ORS
9.527(2).  That statute provides, in part, that this court may
discipline a member of the Bar when:

	"[t]he 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[.]"

The Bar asked that the accused be publicly reprimanded.
	The accused and the Bar agreed that the trial panel
should determine whether the accused's misdemeanor involved moral
turpitude by "reference to the nature and elements of the crime
and without consideration of the specific circumstances of [the]
case."  See In re Chase, 299 Or 391, 399, 702 P2d 1082 (1985) (so
stating). The parties disagreed, however, on whether the Chase
court's definition of moral turpitude under ORS 9.527(2) would
reach a violation of ORS 166.065(1)(a)(A).  The Bar contended
that, under Chase, a misdemeanor involves moral turpitude if the
crime has the element of intent or knowledge, and also involves,
as in this instance, "harm to a specific victim."  Id. at 402. 
The Bar further contended that a violation of
ORS 166.065(1)(a)(A) met both those requirements. (1)
	The accused agreed that, under Chase, all misdemeanors
involving moral turpitude must have either intent or knowledge as
an element of the crime.  The accused argued, however, that Chase
did not make "harm to a specific victim" one of the additional
factors necessary to conclude that a misdemeanor involves moral
turpitude.  Chase, the accused contended, held only that
"[c]rimes involving violence against another person are * * *
classed as moral turpitude offenses."  Id. at 401 (emphasis
added).  The accused argued that a violation of
ORS 166.065(1)(a)(A) did not qualify as a crime of violence and
so was not a misdemeanor involving moral turpitude under
ORS 9.527(2).
	The trial panel determined that a violation of ORS
166.065(1) involves both intent and harm to a specific victim
and, thus, was a misdemeanor involving moral turpitude.  It
concluded that the appropriate disciplinary sanction was a public
reprimand.
	We turn to the text of ORS 9.527(2) to determine what
the legislature meant by the phrase "moral turpitude."  We do so
because, strictly speaking, the Chase court's characterization of
the "harm to a specific victim" category of misdemeanors
involving moral turpitude -- the only category arguably
applicable here -- was dictum.  Chase dealt with what sometimes
is called a "victimless" crime.  The only thing that the Chase
court needed to decide was that that category of moral turpitude
reached, at most, only crimes that involved a victim (and thus
caused "harm to a specific victim").  Having determined that even
the outer boundaries of moral turpitude did not reach the crime
at issue, the Chase court did not determine whether the
boundaries were any narrower.  That can be seen in the way that
the Chase court continually expanded the scope of that particular
category of cases involving moral turpitude:  It started with a
single federal case holding that voluntary, unjustifiable
homicide involved moral turpitude, 299 Or at 401 (citing De Lucia
v. Flagg, 297 F2d 58 (7th Cir 1961), cert den, 369 US 837, 82 S
Ct 867, 7 L Ed 2d 843 (1962)); (2) broadly recharacterized that
category, without any discussion, as "[c]rimes involving violence
against another person," id.; and then recharacterized the
category again, even more broadly, as "harm to a specific
victim," id. at 402.
	In interpreting a statute, we begin with the text and
context of the statute, giving words of common usage their plain,
natural, and ordinary meaning.  PGE v. Bureau of Labor and
Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993).  If a term
has a well-defined legal meaning, however, then we give it that
meaning.  Stull v. Hoke, 326 Or 72, 78, 948 P2d 722 (1997).
	This court first defined "moral turpitude" over one
hundred years ago.  In Ex parte Mason, 29 Or 18, 43 P 651 (1896),
this court, interpreting the predecessor to ORS 9.527(2), (3) quoted
with approval the following definition of moral turpitude:

	"'[A]n 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.'"

Id. at 21 (quoting Martin L. Newell, The Law of Defamation, Libel
and Slander ch VI, § 12, 99 (1890)). (4) See also Chase, 299 Or at
393 (noting that "often quoted definition").
	The Mason court acknowledged that the exact parameters
of moral turpitude will follow changing moral standards.

	"'This element of moral turpitude,' says Lowrie, J., in
Beck v. Stitzel, 21 Pa St 522, 'is necessarily
adaptive; for it is itself defined by the state of
public morals, and thus far fits the action to be at
all times accommodated to the common sense of the
community.' * * * [T]he term is vague, and * * * 'moral
turpitude' is involved only when so considered by the
state of the public morals, and hence it might be
applied in some sections and denied in others, thus
rendering a satisfactory definition of the term
difficult[,] if not impossible."

Mason, 29 Or at 23.
	Some core aspects of moral turpitude do not change,
however.  The definition set out in Mason necessarily includes
the other categories of crimes involving moral turpitude
identified by Chase:  fraud, deceit, dishonesty, or illegal
activity undertaken for personal gain.
 Chase also concluded that the courts should determine
whether a crime involves moral turpitude by reference only to the
"record of conviction."  299 Or at 398-99; see ORS 9.527(2)
(using "record of the conviction").  Chase did not, however,
identify what constitutes the "record of the conviction." (5)
	Therefore, we must determine what the legislature
intended this court to consider when it stated in ORS 9.527(2)
that the "record of the conviction" is "conclusive evidence." 
The words "record of the conviction" have been used in the
statute since 1862, see General Laws of Oregon, Civ Code, ch 14,
title V, § 1015, p 402 (Deady 1845-1864) (enacted October 11,
1862) (at that time using phrase "record of his conviction"), and
so we consider how the phrase would have been understood at that
time.  See Theatre West of Lincoln City, Ltd. v. Dept. of Rev.,
319 Or 114, 119, 873 P2d 1083 (1994) (1854 statute; "[T]o ensure
that we are keeping faith with the probable understanding (and,
therefore, the probable intention) of the 1854 enacting body, we
have inquired into the use of the term 'literary' around that
time.").
	We first observe that the legislature directed this
court to look at the "record of the conviction," not just the
"judgment."  It is often necessary for a court to consider
portions, if not the entirety, of the record for the court to
determine what was adjudicated in the prior case.  See Gilmore v.
Taylor, 5 Or 89, 91-92 (1873) ("These prior portions of the
record [before entry of an order directing sale of property by
administrator of estate] * * * are also material and pertinent
for the purpose of showing what subject-matter was before the
court for adjudication, and upon whom the adjudication is
binding.  * * * For these reasons the plaintiff had a right to
insist that the record should be presented as a whole, or in
other words, that a foundation should be laid for exhibiting the
decretal order.").  See also 7 John Henry Wigmore, Evidence in
Trials at Common Law § 2110, 648 (James H. Chadbourn rev 1978)
("Without considering the plaintiff's statement of claim, the
defendant's statement of defense, the intermediate motions and
orders, the verdict, and the later doings, it may be impossible
to ascertain what are the terms of the judgment which is to be
proved and acted on.").
	The present proceeding demonstrates why a review of the
judgment alone might not permit the court to complete its
analysis.  Here, the judgment of conviction states only that the
accused was convicted of harassment.  The crime of harassment,
ORS 166.065, includes five different and disparate fact patterns. 
It is not possible to determine from the judgment alone that the
accused intentionally intended to harass or annoy a person by
subjecting the person to an offensive physical contact,
ORS 166.065(1)(a)(A), as opposed to (for example) "[s]ubject[ing]
another to alarm by conveying a false report, known by the
conveyor to be false, concerning death or serious physical injury
to a person, which report reasonably would be expected to cause
alarm," ORS 166.065(1)(b), or knowingly allowing another to use a
telephone to commit one of the other forms of harassment, ORS
166.065(2). (6)
	ORS 9.527(2) also directs that the record of the
conviction is to be "conclusive evidence."  It is apparent that
the statute does not make every piece of evidence that was
introduced in the criminal proceeding conclusive in a lawyer
disciplinary proceeding, because then any evidence of innocence
would be as conclusive as the prosecution's evidence of guilt. 
Rather, by making the "record of the conviction" conclusive
(emphasis added), the legislature directed this court to examine
the record to determine what the court actually and necessarily
resolved in finding the defendant guilty.  Both the Bar and the
accused lawyer are bound by the record of the conviction:  The
accused lawyer cannot contend that he or she is innocent, and the
Bar cannot argue, for the purposes of ORS 9.527(2), that the
accused lawyer actually committed a more serious crime.  Neither
the accused lawyer nor the Bar can challenge the factual
predicates that the conviction actually and necessarily
resolved. (7)
	It will not be necessary for the parties always to
present to the court the entire record of the conviction.  Some
crimes, by their very nature, may "announce" that they involve
moral turpitude; the court then need not consider anything beyond
the judgment of conviction.  In other cases, the crime itself may
not announce moral turpitude, but those facts actually and
necessarily resolved in convicting the accused lawyer will
demonstrate that the misdemeanor involves moral turpitude.
	In summary:  When a lawyer is charged under ORS
9.527(2) with committing a misdemeanor involving moral turpitude,
this court will apply the following test, remembering that the
Bar bears the burden of proof.  First, this court will consider
whether the crime was intentional or knowing, as required by
Chase.  Second, this court will consider whether the accused
lawyer's crime involved any of the following:  fraud; deceit;
dishonesty; illegal activity for personal gain; or "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."  Mason, 29 Or at 21 (internal quotation
marks and citation omitted).  If the Bar sustains its burden of
proof as to both parts of the test, either because the crime
itself "announces" those facts or because those facts actually
and necessarily were resolved in the conviction, then the accused
lawyer committed a misdemeanor involving moral turpitude.
	We now turn to this proceeding.  We agree with the Bar
that the accused committed a crime that was intentional or
knowing.  Harassment under ORS 166.065(1)(a)(A), however, is not
necessarily a crime involving moral turpitude.  The act of
intentionally harassing or annoying another person by subjecting
that person to offensive physical contact does not involve fraud,
deceit, dishonesty, or illegal activity for personal gain. 
Neither can we say that it is "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."  Mason, 29 Or at 21 (internal quotation marks and citation
omitted).  The crime itself does not "announce" that it involves
moral turpitude.
	We also conclude that those facts actually and
necessarily resolved in convicting the accused do not demonstrate
moral turpitude.  Those facts are, as the accused admitted in her
"Petition to Plead Guilty / No Contest and Waiver of Jury Trial,"
that "[o]n April 6, 1999, with the intent to irritate [the
victim], [the accused] subjected [the victim] to offensive
physical contact by reaching in her vehicle and touching her
shoulder."  Those facts do not demonstrate baseness, vileness, or
depravity in a moral sense, or involve fraud, deceit, dishonesty,
or illegal activity for personal gain.  We conclude that the
record of the conviction here does not show that the accused's
actions in violation of ORS 166.065(1)(a)(A) involved moral
turpitude.
	Complaint dismissed.




1. In Chase, the accused lawyer had been convicted of the
misdemeanor of attempted possession of a controlled substance. 
299 Or at 393.  The Bar asserted that ORS 9.527(2) authorized
this court to impose discipline for that crime.  In its opinion,
the Chase court suggested that a misdemeanor involves moral
turpitude when it has certain characteristics:

		"We conclude, as to the elements of the crime at
issue here, the following:  this attempted possessory
offense requires the element of intent or knowledge;
however, it does not contain the element of fraud,
deceit or dishonesty and does not involve harm to a
specific victim.  Neither is this case one involving
illegal activity undertaken for personal gain.  It does
not contain any of the elements, in addition to intent,
that we have interpreted moral turpitude to require."

Id. at 402.

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2. In De Lucia, an alien deportation case, the respondent
had, among other things, been convicted in Italy of voluntary
homicide.  The De Lucia court stated:  "So long as the homicide
is voluntary and not justifiable no amount of provocation can
remove it from the class of crimes involving moral turpitude." 
297 F2d at 61.  De Lucia said nothing else about the parameters
of moral turpitude.

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3. The Codes and General Laws of Oregon, ch XIV, title V, § 1047 (Hill 2d ed 1892).

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4. Newell, in turn, derived that definition by combining
the dictionary definitions of the words "moral" and "turpitude." 
Newell, Law of Defamation ch VI, § 12, at 98-99, 98 nn 4-5.

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5. At one point in its opinion, the Chase court used the
words "judgment of conviction" instead of "record of the
conviction,"  299 Or at 399 ("it is determined from the judgment
of conviction alone that the misdemeanor involved moral
turpitude" (emphasis added)), but nothing indicates that the
court actually considered whether those two phrases were
synonymous.  Indeed, the Chase court acknowledged the Mason
court's usage of the phrase "record of his conviction,"
suggesting that the substitution of the word "judgment" for
"record" might have been simply inadvertent.  Id. at 398-99.

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6. In 1999 the legislature amended ORS 166.065(2) to
include electronic devices.  Or Laws 2001, ch 870, § 2.

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7. In that respect, the statute invokes a species of issue
preclusion.  See State Farm v. Century Home, 275 Or 97, 104, 550
P2d 1185 (1976) ("Since [issue preclusion] rests upon the
principle that an issue was actually decided and was necessary to
the judgment in a prior action, the party asserting [it] bears
the responsibility of placing into evidence the prior judgment
and sufficient portions of the record, including the pleadings,
exhibits, and reporter's transcript of the testimony and
proceedings, to enable the court to reach that conclusion with
the requisite degree of certainty." (Citations omitted.)).
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