Petition for Writ of Certiorari — Stilley v. Dickey

No. ___41521 MAY 1 1 2009

OFFICE @F THE CLERK

3n The

Supreme Court of the Anited States

¢

OSCAR STILLEY,

Petitioner,

Vv.

ROBERT BROWN, TOM GLAZE, DONALD L. CORBIN,

ANNABELLE CLINTON IMBER, and JIM HANNAH,

EACH IN THEIR INDIVIDUAL CAPACITY AND IN

THEIR OFFICIAL CAPACITY AS A JUSTICE OF THE

ARKANSAS SUPREME COURT; BETTY DICKEY and

JIM GUNTER, EACH IN THEIR OFFICIAL CAPACITY

AS A JUSTICE OF THE ARKANSAS SUPREME COURT;

and RAY THORNTON AND W. H. “DUB” ARNOLD,

EACH IN THEIR INDIVIDUAL CAPACITIES,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The Eighth Circuit Court Of Appeals

¢

PETITION FOR WRIT OF CERTIORARI

S

OSCAR STILLEY, Attorney at Law

Central Mall Plaza, Suite 520

5111 Rogers Avenue

Fort Smith, AR 72903-2047

Pro se

Phone 479 996-4109

Fax 479 996-3409

oscar@oscarstilley.com email

Arkansas Bar # 91096

QUESTIONS PRESENTED

1) Is a judge who functions as accuser and decider in the

same case at the same time is nonetheless a “competent”

court, even though the judge’s order was entered in a

tribunal in which the judge does not sit and does not even

claim to hold office?

2) Is a judge who functions as accuser and decider in

another tribunal, in direct contravention of the rules made

by that judge’s court acting “wholly without jurisdiction”

such that judicial immunity does not apply?

3) Where a judge usurps the role of the decision maker in

another tribunal, and prevents the proper officer from

considering and deciding a motion for reconsideration

directed to the proper officer, for a period of 687 days,

despite repeated and diligent efforts to obtain a ruling,

does the litigant nonetheless have “the opportunity to

raise and have timely decided by a competent state

tribunal the federal issues involved” as required by Huff-

man v. Pursue, Ltd., 420 U.S. 592, 594, 95 S.Ct. 1200,

1203, 43 L.Ed.2d 482 (1975) (quoting Gibson v. Berryhill,

411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488

(1973))?

4) Were the Petitioner’s due process rights infringed

when the proper officer, the Chair of the panel of the

Arkansas Supreme Court Committee on Professional

Conduct, flatly refuses to explain his summary “denial” of

the motion, which gave no consideration to the constitu-

tional issues raised?

ii

PARTIES TO THE PROCEEDING

The caption contains the names of all parties in the

case below.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...........cccccccssescsssssesesssssseees i

PARTIES TO THE PROCEEDING ...0........ccccscsesesssseees ii

TIE Te Cr I onscosenncisscoxscsesacesccoscccaconacenss Vv

ae sestinmioans 1

STATEMENT OF JURISDICTION ..........cccccccccessessseees 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

RRC en aR RE Sa SO NESS 2

SPTATIRAAIEOT OP THAIS CAG ac ccccnccscescsncacscsossceeess 2

REASONS FOR GRANTING THE WRIT ..............0000. 6

1. The unpublished per curiam Eighth Circuit

panel opinion does not address the fact that an

“incompetent” state court precludes abstention

under Younger v. Harris, 401 U.S. 37(1971).... 6

2. The unpublished per curiam Eighth Circuit

opinion falls below the minimum standards

required of judicial proceedings; the honor and

public esteem of this August tribunal require

that the Court exercise its supervisory role,

and require the Eighth Circuit to re-examine

PU UUIIEN ciniisccssiactantcdscibepadsssdcemioenmacntionaetel 19

STITT itevcndcervscchpnbactnbacanesacaqaeacoicaniniuinabliaaaia’ 25

APPENDICES

APPENDIX 1 — 3-23-04 District Court Judgment

SED sachasnidstnensicaibentdabbaataite App. 1

APPENDIX 2 — 4-28-04 District Court Order

denying motion for reconsidera-

iv

TABLE OF CONTENTS -— Continued

Page

APPENDIX 3 — 1-11-2005 Eighth Circuit unpub-

lished per curiam decision .............. App. 7

APPENDIX 4 — 2-16-05 Order Denying Petition

for Rehearing and for Rehearing

SE ID csinsnscnctoensinintthtedinisaiaintontad App. 8

TABLE OF AUTHORITIES

Page

CASES

Arkansas Pub. Serv. Comm’n v. Continental Tel. Co.

of Ark., 262 Ark. 821, 561 S.W.2d 645 (1978)...............«16

Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000)........... 10

Brickhouse v. Hill, 167 Ark. 513, 268 S.W. 865

FRAC NE RL TEHRAN BAD OR POT Apo Bay O Beer ee We 21

Dennis v. Sparks, 449 U.S. 24 (1980).........ccscccssssseesseeseees 7

E-Z Cash Advance, Inc., v. Harris, 347 Ark. 132, 59

We Ge CE i ittaeasedckindvecee deen 10

Fenner v. Boykin, 271 U.S. 240 (1926)..............cssssseesessenes 11

Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36

i Te A TI iiss csaivac acneccaticdeetion cs 8, 9, 10, 15

Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct.

TOGO, GET TE De Ge Ce cons cssicicinesocdshaseatsacatencstcatac 8,9

In re Murchison, 349 U.S. 133 (1955) ...............ccccceeees 17, 24

Lunding v. New York Tax Appeals Tribunal, 522

CES, Sr CA ao etd pntsetndecticseckntcacued ae 24

Middlesex Ethics Comm. v. Garden State Bar Assn.,

ET Tee ee cons nskeecksceosataacascbecaueat 10, 11, 12, 13

Nissan Motor Corp. v. Royal Nissan, Inc., 757

P. Sere, TOG GED E. TOO) biinisnccccstesasscssscrcssecisnioandacoes 15

O’Shea v. Littleton, 414 U.S. 488 (1974) .............ccceceseeeeeeees rf

Offutt v. United States, 348 U.S. 11 (1954)....................00 18

Schweiker v. McClure, 456 U.S. 188, 102 S.Ct.

1666, 72 LBA De 2 CROC sicissssicccsscstincascedstcasticiesminesssiee 15

Sexton v. Ark. Supreme Ct. Comm. On Profess.

Conduct, 299 Ark. 439 (1969).............scccceccsssesssscosarszenes 20

vi

TABLE OF AUTHORITIES — Continued

Sexton v. Supreme Court Committee on Professional

Conduct, 297 Ark. 154-A, 761 S.W.2d 602 (1988).......... 20

Southwestern Bell Tel. v. Arkansas Pub. Serv.

Comm'n, 58 Ark. App. 145, 946 S.W.2d 730 (1997).... 16, 24

Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed.

FED CIES cceccetinsnstesecsensinnnndcietsiaiaiibaimaniaimaa 16, 18, 24

United States v. Booker, 543 U.S. ___, 160 L. Ed. 2d

GBD, TES BS. GO. Fae GHG cccncccncnsctesinttinntinesniapinainniapiiatiin 23

United States v. Nixon, 418 U.S. 683 (1974).............cccccecee 7

United States v. Will, 449 U.S. 200 (1980)...............0.0c00e 21

Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct.

OD, 36 LeTNE. DE BOE Ci Cai icccsnsnsssecsientteniniitnisinisaninme 16

Washington v. Confederated Bands and Tribes of

Yakima Nation, 439 U.S. 463 (1979) ............ccccccceeeeeeeee 24

West v. United States, 2005 U.S. LEXIS 3295 (U.S.,

RGD acacesecssecssnsessssaceseetectansenieaiennaamamenninaneianaaae 23

White v. Priest, 348 Ark. 135, 73 S.W.3d 572 (Ark.

BOGE) .cceccersscestessésinncciemntinsesenennnasaniaanenemenennala 2, 21, 22

Yamaha Motor Corp., U.S.A. v. Riney, 21 F.3d 793

CTs GIR Bi ai ccscnsncssssecienteniinigannnia 8, 14, 15, 24, 26

Younger v. Harris, 401 U.S. 37 (1971).............. 4, 6, 8, 11, 15

STATUTES AND RULES

BB UG, § EDGE). .eeccssenssvssvepnqssessectaindguesiguicunstanaiennaian 1

BB UB.G. § BEBE nncccreseccsercceseccssninnhinditedssbesnuseiasesienibnalnsaietin 1

4B UBC. § RBG .cccecseesnssinneseniinseninsncnuentadiineeniinadasnnieiaeiaanaan 4

Vii

TABLE OF AUTHORITIES — Continued

Page

DIBA, © Ba cicceccccssssstinbesstctnendatinttnssintacelibiecniiianiiaen 9

Ark. Code of Judicial Conduct Canon 3(E)(1).............000+ 21

Arkansas Code of Judicial Conduct Canon, Com-

mentary to Canon S(E)(1)...............ssssssssccsssssssssssseeeeeees 21

Arkansas Rules of Civil Procedure, Rule 11..................... 23

Jeffery M. Shaman et al., Judicial Conduct and

Ethics § 4.03, at 111-112 (3d ed. 2000)................s0ccee-es 21

Richard E. Flamm, Judicial Disqualification:

Recusal and Disqualification of Judges § 20.2.2,

i Be Ce rcccectienitienccinteiscnnatnenncniqnesisneensecnapnagitiibin 21

U.S. Supreme Court Rule 10...............:cccccsesseseeeeeeeseeeeeeeees 19

U.S. Supreme Court Rule 10(8) ............::ccccsceeeeeeeeeeeeeeenees 19

U.S. Supreme Court Rulle 10(C)............cccccsscceseeeeeeeeeeneeneees 19

U.S. Supreme Court Rule 15...............cccccscsscseeeeeeeereeeeeenes 23

U.S. Supreme Court Rule 16(1) ............cccccccsssseeeeeeeeeeeeees 22

UNITED STATES CONSTITUTION

United States Constitution, Amendment 5 ........................ 2

United States Constitution, Amendment 14....................... 2

OTHER AUTHORITIES CITED

Arkansas Constitution Amendment 80 ................scsseeseeeees 9

Arkansas Constitution Amendment Q ...............scseseeeeeeees 2

Procedures of the Arkansas Supreme Court Regu-

lating Professional Conduct of Attorneys at Law,

Beate B CR cceecnssccecncnssnnencenstentibinstinntnensetiinennimimiieniinints 6

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Oscar Stilley respectfully requests that a

writ of certiorari be issued to review the judgment of the

Eighth Circuit Court in this case.

+

OPINIONS BELOW

The March 23, 2004 order and judgment of the U.S.

District Court for the Eastern District of Arkansas, dis-

missing Petitioner’s federal complaint, is reproduced at

App. 3. A timely motion to alter or reconsider was made,

whereupon the Court entered an order denying the mo-

tion, dated April 28, 2004, reproduced at App. 8. Notice of

Appeal was filed on May 13, 2004, which made the open-

ing brief at the Eighth Circuit due on the 28th day of

June, 2004. The District Court’s opinion was affirmed in

an unpublished per curiam decision dated January 11,

2005, reproduced at App. 1. A timely petition for rehearing

and rehearing en banc was filed, which was denied at the

direction of the Court on February 16, 2005, reproduced at

App. 9.

+

STATEMENT OF JURISDICTION

Jurisdiction to appeal from the District Court to the

Eighth Circuit Court of Appeals is found in 28 U.S.C.

§ 1291, for appeal from a final decision of the United

States District Court. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1), for a petition for writ of

certiorari to the Eighth Circuit Court of Appeals.

4

2

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

U.S. Constitution Amendment 5, providing that “No

person shall ... be deprived of life, liberty, or property

without due process of law...”

U.S. Constitution Amendment 14, providing that “Nor

shall any state deprive any person of life, liberty, or

property, without due process of law...”

¢

STATEMENT OF THE CASE

On March 26, 2002, Petitioner filed suit, as attorney

for one Robert White, against Respondents, justices of the

Arkansas Supreme Court. Among the claims was an

allegation that respondents were committing an illegal

exaction in receiving salary greater than that allowed by

Arkansas Constitution Amendment 9, according to recent

case law written by Respondents. White requested recusal

of the sitting justices, since recusal was clearly mandatory

under precedents from both federal and state courts.

Fifteen days later, without notice or opportunity to be

heard, the Respondents summarily dismissed the illegal

exaction claim against themselves, on grounds that the

suit could not be instituted as part of an original action at

the Arkansas Supreme Court. White v. Priest, 348 Ark.

135, 73 S.W.3d 572 (Ark. 2002) Respondents also denied

the motion for recusal. Respondents issued a show-cause

order, requiring Appellant to show cause why sanctions

pursuant to Arkansas Rules of Civil Procedure, Rule 11,

should not be imposed.

3

Petitioner filed a brief of some 70 pages explaining

why the claims were properly brought as an original

action, asking for reconsideration, and explaining why

Rule 11 of the Arkansas Rules of Civil Procedure was not

violated. Respondent justices did not impose Rule 11

sanctions, but did refer Petitioner to the Arkansas Su-

preme Court Committee on Professional Conduct for such

claimed offenses as “a general tone of disrespect for the

code of ethics and Mr. Stilley’s breach of his oath of office

as an attorney-at-law.”

The rules of the Arkansas Supreme Court Committee

on Professional Conduct (hereinafter sometimes Commit-

tee) provide that such complaints by justices must be

prosecuted, regardless of their merit or lack of same.

Therefore, Mr. Stark Ligon, Executive Director of the

Arkansas Supreme Court Committee on Professional

Conduct, instituted an ethics complaint against Petitioner.

Petitioner promptly sought to depose the justices in

conformity with Committee rules. Mr. Ligon duly issued

the requested subpoenas, which Petitioner caused to be

properly served February 14, 2003. Later the same day,

the Respondents “quashed” the subpoenas, without notice

or opportunity to be heard, by a letter/order/motion sent to

Mr. Ligon.

Petitioner moved for reconsideration February 19,

2003, on grounds, among others, that 1) Petitioner re-

ceived no notice or opportunity to be heard prior to the

deprivation of the important right to depose his accusers,

2) Respondents flagrantly and willfully violated Commit-

tee rules which provide that discovery disputes will be

decided by the Chair of the panel to which the matter is

assigned, and 3) Respondent Arkansas Supreme Court

4

justices acted wholly without jurisdiction, by entering an

order against their adversary in a proceeding not before

the Arkansas Supreme Court.

Respondents did not acknowledge or respond to the

motion for reconsideration. When this motion was not

acted upon for 289 days, despite repeated assurances that

a decision would be forthcoming “soon,” Petitioner brought

a civil action in District Court pursuant to 42 U.S.C.

§ 1983, and other statutes, for compensatory and injunc-

tive relief against the Respondents.

Respondents moved for dismissal on various grounds.

The District Court dismissed based on the Younger’

abstention doctrine, and declined to reconsider despite a

written claim by the Executive Director that the Commit-

tee is not a governmental agency at all, and despite ample

proof that Petitioner could not have his claims adjudicated

at the Committee, or on appeal from same, consistent with

the minimum requirements of due process.

Petitioner appealed to the Eighth Circuit Court of

Appeals. Some 687 days after the filing of the original

motion requesting that Petitioner be heard, in writing or

orally, on his arguments of why he should be permitted to

proceed with the depositions, the Chair of Panel “B” of the

Committee entered an order summarily and without

explanation denying the request, with no consideration or

analysis with respect to the constitutional issues raised.’

Five days later, the Eighth Circuit Court of Appeals

* Younger v. Harris, 401 U.S. 37 (1971).

* A subsequent request for an explanation of the reasons for the

action was likewise denied.

5

summarily and without explanation affirmed the District

Court’s order in an unpublished per curiam decision.

Petitioner filed a petition for rehearing, raising the

following two points:

1) Whether a judge who functions as accuser

and decider in the same case at the same

time is nonetheless a “competent” court.

2) Whether this Court will permit a claimed tri-

bunal (which simultaneously claims not to be

a public agency or supported by public

funds)’ to wait 687 days to rule on a motion,

and then rule upon the motion in a manner

suggesting the communication of assurances

concerning the outcome of the 8th Circuit

case, by reason of the fact that the adverse

8th Circuit panel opinion was released a

mere 5 days thereafter.

The Eighth Circuit Clerk denied the petition for

rehearing, by order entered February 16, 2005 at the

direction of the Court, without explanation. This petition

for writ of certiorari followed.

+

* In an email explaining why he was not duty bound to release

certain public records pursuant to the Arkansas Freedom of Informa-

tion Act, Executive Director Ligon claimed that the Arkansas Supreme

Court Committee on Professional Conduct was not an agency supported

in whole or in part by public funds, or expending public funds.

6

REASONS FOR GRANTING THE WRIT

1. The unpublished per curiam Eighth Circuit

panel opinion does not address the fact that an

“incompetent” state court precludes abstention

under Younger v. Harris, 401 U.S. 37 (1971).

The Respondent justices of the Arkansas Supreme

Court clearly usurped the role of the chair of Panel “B” of

the Arkansas Supreme Court Committee on Professional

Conduct, for the express purpose of quashing subpoenas

served upon the justices. The Committee rules, known as

the “Procedures of the Arkansas Supreme Court Regulat-

ing Professional Conduct of Attorneys at Law” provide in

Section 8 (B) that:

Resolution of Disputes. Disputes concerning dis-

covery shall be determined by the chair of the

panel to which the matter was assigned. All dis-

covery orders by the chair are interlocutory and

may not be appealed prior to the entry of the fi-

nal order.

(Emphasis added)

The Respondents personally quashed the subpoenas of

Petitioner without notice or opportunity to be heard,

despite a clear rule vesting the Chair of Panel “B” with

sole authority to decide discovery matters before the

Committee. None of the Respondents were the Chair of

Panel “B” at the time of their issuance of an order quash-

ing their own subpoenas, nor did Respondents ever make

such a claim.

If there was a legitimate reason for the Respondents’

actions, why would they engage in an act not colorably

within their jurisdiction? A judicial officer can be required to

testify in cases in which they have material information. In

7

Dennis v. Sparks, 449 U.S. 24, 30 (1980), the U.S. Su-

preme Court said:

Of course, testifying takes time and energy

that otherwise might be devoted to judicial du-

ties; and, if cases such as this [Page 31] survive

initial challenge and go to trial, the judge’s integ-

rity and that of the judicial process may be at

stake in such cases. But judicial immunity was

not designed to insulate the judiciary from all

aspects of public accountability. Judges are im-

mune from § 1983 damages actions, but they are

subject to criminal prosecutions as are other citi-

zens. O’Shea v. Littleton, 414 U.S. 488, 503

(1974). Neither are we aware of any rule

generally exempting a judge from the nor-

mal obligation to respond as a witness

when he has information material to a

criminal or civil proceeding.[fn7] [footnote

omitted] Cf. United States v. Nixon, 418 U.S. 683,

705-707 (1974).

(Emphasis added)

This case represents a textbook case in favor of

requiring a judicial officer to testify. The accusations are so

vague as to amount to little more than criticism. Most of

the “charges” are altogether without precedent. No one

except the accusing Respondents can say what they meant

by the accusations.

On February 19, 2003, Petitioner filed a motion for

reconsideration of the decision to quash, before the Com-

mittee. Despite repeated assurances over a long period of

time, that a ruling would be forthcoming soon, no ruling

8

was entered until January 6, 2005,‘ 687 days later. The

Eighth Circuit appeal was submitted to the panel the

same day, and summarily denied in an unpublished per

curiam opinion on January 11, 2005, or 692 days after the

filing of the Committee motion.

Why? The Arkansas Judicial Discipline & Disability

Commission, on September 23, 2002, sanctioned Special

Judge Stephen P. Sawyer, in Case #02-176," because he

took 643 days to decide a matter before him.

It very much looks like the Chair of Panel “B” waited

until he had assurances from the Eighth Circuit that his

actions would not be scrutinized by the assigned panel of

the Eighth Circuit Court of Appeals. Why else would one

wait for nearly two years, and then suddenly enter a

ruling the exact same day that the Eighth Circuit case was

submitted to the panel? In Yamaha Motor Corp., U.S.A. v.

Riney, 21 F.3d 793 (8th Cir. 1994), the Court said:

[19] A “necessary predicate for a Younger dis-

missal ... is, ‘the opportunity to raise and have

timely decided by a competent state tribunal

the federal issues involved.’” Huffman v. Pursue,

Ltd., 420 U.S. 592, 594, 95 S.Ct. 1200, 1203, 43

L.Ed.2d 482 (1975) (quoting Gibson v. Berryhill,

411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36

L.Ed.2d 488 (1973)). This requirement for Younger

abstention, articulated in both Huffman and

Gibson, is a reiteration of the third Middlesex

* The Eighth Circuit case was submitted January 6, 2005, precisely

the same day the Chair of Panel “B” entered the summary order

denying the motion before the Committee.

* Complete opinion at http/www.arkansas.gov/jdde/pdf/sawyer_092302.

pdf.

9

requirement.[fn10] [footnote omitted] Thus, Hu/f-

man and Gibson explain that a district court

may not abstain from an exercise of its jurisdic-

tion when the parties lack a competent state tri-

bunal to decide the issues.

(Emphases added)

The ruling on the motion to reconsider before the

Committee, and the unpublished Eighth Circuit panel

opinion, could be rephrased to say “We read your pleadings

carefully, and you lose” with virtually no loss of meaning

in either instance. When Petitioner asked the Chair of the

Committee Panel the reasons for his actions, he stated

that he felt no obligation to explain his decision whatso-

ever.

Petitioner raised a number of legal issues in his

motion to the Committee, including specifically the depri-

vation of due process as guaranteed by the state and

federal constitutions. Petitioner asked for a ruling with

respect to, amongst other things, A.C.A. §21-8-304, a

statute forbidding state employees from using their official

position to secure special privileges for themselves or their

relatives, and Arkansas Constitution Amendment 80,

which provides:

No Justice or Judge shall preside or participate

in any case in which he or she might be inter-

ested in the outcome, in which any party is re-

lated to him or her by consanguinity or affinity

within such degree as prescribed by law, or in

which he or she may have been counsel or have

presided in any inferior court.

10

The Chair of Panel “B” addressed none of these

arguments, summarily denying the motion. Thus the

Chair has already defeated the altogether illusory right to

appeal to the Arkansas Supreme Court concerning the

constitutional issues raised. Petitioner is already defeated

pursuant to the rule of E-Z Cash Advance, Inc., v. Harris,

347 Ark. 132, 136, 59 S.W.3d 432 (2001) where the Court

said:

We are unable to reach the merits of Harris’s ar-

gument regarding the usurious nature of the con-

tract, because she failed to obtain a ruling from

the trial court on this argument. Her failure to

obtain such a ruling is a procedural bar to our

consideration of this issue on appeal. See Barker

v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000).

Firm but respectful demands for a ruling have been

fruitless. There is no other method of obtaining the pre-

requisite ruling, thus Petitioner’s constitutional claims

will be heard through the intervention of this august

tribunal or not at all.

In Middlesex Ethics Comm. v. Garden State Bar Assn.,

457 U.S. 423, 437 (1982) the Court said:

Because respondent Hinds had an “opportu-

nity to raise and have timely decided by a compe-

tent state tribunal the federal issues involved,”

Gibson v. Berryhill, 411 U.S., at 577, and because

no bad faith, harassment, or other excep-

tional circumstances dictate to the contrary,

federal courts should abstain from interfering

with the ongoing proceedings. Accordingly, the

judgment of the United States Court of Appeals

for the Third Circuit is reversed, and the case is

11

remanded for further proceedings consistent with

this opinion.

(Emphases added)

If the Arkansas Supreme Court’s activities do not fall i

under the category of “bad faith, harassment, or other

exceptional circumstances,” then Petitioner would like to

hear what it takes to constitute such. In Middlesex Ethics

Comm. v. Garden State Bar Assn, the Court said:

Respondent Hinds contends that there was

no opportunity in the state disciplinary proceed-

ings to raise his federal constitutional challenge

to the disciplinary rules. Yet Hinds failed to re-

spond to the complaint filed by the local Ethics

Committee and failed even to attempt to raise

any federal constitutional challenge in the

state proceedings. Under New Jersey's proce-

dure, its Ethics Committees constantly are called

upon to interpret the state disciplinary rules. Re-

spondent Hinds points to nothing existing at the

time the complaint was brought by the local

Committee to indicate that the members of the

Ethics Committee, the majority of whom are

lawyers, would have refused to consider a claim

that the rules which they were enforcing violated

federal constitutional guarantees. Abstention is

based upon the theory that “‘[t]he accused

should first set up and rely upon his defense in

the state courts, even though this involves a

challenge of the validity of some statute, unless

it plainly appears that this course would not af-

ford adequate protection.’” Younger v. Harris,

401 U.S., at 45, quoting Fenner v. Boykin, 271

U.S. 240, 244 (1926).

(Emphases added)

12

Despite Hinds’ lackadaisical approach to his dilemma,

the New Jersey Supreme Court actually considered Hinds’

constitutional claims sua sponte. The Middlesex Court

continued on to say:

Whatever doubt, if any, that may have ex-

isted about respondent Hinds’ ability to have

constitutional challenges heard in the bar disci-

plinary hearings was laid to rest by the subse-

quent actions of the New Jersey Supreme Court.

Prior to the filing of the petition for certiorari in

this Court the New Jersey Supreme Court sua

sponte entertained the constitutional issues

raised by respondent Hinds. Respondent Hinds

therefore has had abundant opportunity to pre-

sent. his constitutional challenges in the state

disciplinary proceedings.

There is no reason for the federal courts to

ignore this subsequent development. .. .

If there was not reason to ignore subsequent develop-

ments then, surely the same principle would be true today.

The subsequent developments in the instant case have

been extreme delay in the consideration of a motion

concerning due process and other constitutional rights,

and then total refusal to make a reasoned opinion on those

questions — even when Petitioner made a second request

in a firm but respectful manner.

The Arkansas Supreme Court has for all practical

purposes put itself out of the running for a sua sponte offer

to consider constitutional claims. After they have entered

an order in the Committee records, despite their own rules

13

prohibiting same, an unlawful act almost® unprecedented

in American jurisprudence, what credibility do they have

left? Their conduct for the duration of this litigation has

been one continuous train of abuses and usurpations, and

denials of due process.

It is hard to imagine a case more unlike that of

Middlesex Etiiics Comm. v. Garden State Bar Assn.

In fact, out of the District Court opinion, the Eighth

Circuit opinion, the petition for rehearing, and the ruling

from the Chair of the panel, not one even makes a stab at

analyzing whether or not petitioner’s federal issues would

be either “timely decided” or decided by a “competent”

tribunal! Only the District Court wrote a meaningful

opinion of any sort, and his opinion walks straight up to

the central issue and refuses to address it. Had the Dis-

trict Court addressed the question, the dismissal could not

have been entered.

If the Chair of Panel “B” had believed that the denial

of Petitioner’s unrebutted motion was lawful, he would

have entered it promptly, not 687 days after it was filed.

Such an order can be typed without substantial guidance

by any competent legal secretary. The directive to type

such an order can be given orally or in writing in 30

seconds or less. Such an order requires no thought or

reasoning, and gives no guidance to members of the bar.

On petition for rehearing, Petitioner asked the Eighth

Circuit panel to explain the suspicious timing, stating that

he had no desire to erroneously accuse the Eighth Circuit

panel and the Chair of the Committee with collaborating if

* Perhaps entirely unprecedented.

14

it were not true.’ Both the Eighth Circuit panel and the

Chair of Panel “B” refuse to explain themselves.

Petitioner has had considerable difficulty ascertaining

or “framing the issue” concerning the identity and nature

of the “tribunal” to which the District Court thought it

should defer. The actual supposed “tribunal” is Panel “B”

of the Arkansas Supreme Court Committee on Profes-

sional Conduct. However, in fact the Respondent Arkansas

Supreme Court Justices slip in and out of the role of the

Chair of Panel “B” as easily as one might change hats.

Where as here, justices act as de facto “chairs” of the

Committee panels, who or what is the tribunal? Is Peti-

tioner in fact before the Arkansas Supreme Court under

the name of the Committee? Is the Petitioner before the

Committee, but with the proviso that the Respondents get

the first and last word, if they feel like it?

The Eighth Circuit, relying on authority from the U.S.

Supreme Court, has explicitly stated that a biased tribu-

nal, or even a single member of a tribunal who is biased

and refuses to recuse, deprives a litigant of an “adequate”

opportunity to litigate his issues in state court. In Yamaha

Motor Corp., U.S.A. v. Riney, 21 F.3d 793 (8th Cir. 1994)

the Eighth Circuit said:

[20] We hold that the district court’s finding that

there was no evidence of bias in the state pro-

ceeding is clearly erroneous. The district court

" Where the Arkansas Supreme Court justices declare their

pleasure immediately, it may be that the Chair of the panel would be

intimidated to tell the justices that their action is wrong. But if that

were the case, why the long delay prior to a bland pronouncement

upholding the justices’ clearly unlawful action?

==

en TIE

15

erred when it dismissed this action pursuant to

Younger abstention because the state proceeding

was before an incompetent tribunal. Adjudication

by an incompetent state tribunal precludes a

federal court from abstaining on Younger

grounds.[fnll] [footnote omitted] Gibson, 411

U.S. at 577, 93 S.Ct. at 1697. “Nor... would a

different result be required simply because

judicial review, de novo or otherwise,

would be forthcoming at the conclusion of

the administrative proceedings.” Id.

(Emphases added)

A judge who is at once the accuser, the decider, and

litigant in separate litigation cannot possibly constitute a

“competent” tribunal under Yamaha. When one adds in

the fact that the court’s own rules plainly eliminate all

possibility that said judge might be an authorized judicial

officer for the question at hand, any claim of competency is

frivolous.

The Yamaha Court’s standard for proof of bias is as

follows:

[22] An adjudicator is presumed to be unbiased;

to overcome that presumption, a litigant must

make a “showing of conflict of interest or some

other specific reason for disqualification.”

Schweiker v. McClure, 456 U.S. 188, 195, 102

S.Ct. 1665, 1670, 72 L.Ed.2d 1 (1982). An indirect

financial interest in the claim raises a question

of impartiality. Nissan Motor Corp. v. Royal Nis-

san, Inc., 757 F. Supp. 736, 740 (E.D.La. 1991).

Bias can be shown by a finding that the adjudica-

tor prejudged the issues or had a pecuniary in-

terest in the subject of the action. Gibson, 411

U.S. at 578, 93 S.Ct. at 1697. In general, the test

16

is whether the adjudicator’s situation is one

“which might lead him not to hold the balance

[between the parties] nice, clear and true.”

Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437,

444, 71 L.Ed. 749 (1927); accord Ward v. Village

of Monroeville, 409 U.S. 57, 60, 93 S.Ct. 80, 83,

34 L.Ed.2d 267 (1972).

Both the Arkansas and United States Supreme Courts

have declared that due process is a fundamental right of

all citizens. The Arkansas Court of Appeals, in Southwest-

ern Bell Tel. v. Arkansas Pub. Serv. Comm’n, 58 Ark. App.

145, 946 S.W.2d 730 (1997), stated that the right of due

process includes:

[11, 12] A full and fair hearing is a fundamental

requirement of due process in the determination

of the reasonableness of utility rates, and in or-

der to meet due process requirements, a

hearing must afford a utility the right to

reasonably know the charges and the right

to meet such charges by competent evidence.

Arkansas Pub. Serv. Comm’n v. Continental Tel.

Co. of Ark., 262 Ark. 821, 561 S.W.2d 645 (1978).

The opportunity to submit evidence to rebut

charges or adverse claims and testimony is

an essential requirement of a full and fair

hearing of the due process clause of the

Constitution. Id. Here, the evidence supports

the Commission’s finding that the Petitioners

were advised of the issues before the Commission

and were given the opportunity to present evi-

dence to the Commission in support of all the

components of the proposed tariffs, including the

existing rate-of-return factor.

(Emphases added)

}

}

)

1

:

:

|

‘

ei

17

Petitioner was neither advised of the issues before his

deposition subpoenas were quashed, nor informed that

there was any plan or possibility that the subpoenas might

be quashed. Respondents did not so much as pay lip

service to the requirements of due process. No judicial

officer could do what they have done in good conscience or

with the slightest pretension that he or she was acting

within the confines of the law.

Petitioner has been totally denied the opportunity to

obtain evidence whereby he might submit evidence to

rebut the pending charges of unethical conduct. He has

not been permitted to obtain a shred of evidence in sup-

port of his position. Presumably, any attempt to subpoena

witnesses with relevant evidence to a hearing of the ethics

charges will likewise be denied.

This case involves an accusation by the members of

the Arkansas Supreme Court against Petitioner. Jn re

Murchison, 349 U.S. 133 (1955) is perhaps the foremost

case explaining the rules regarding judges who make

accusations and then attempt to be the decisionmaker in

the trial of the charges levied. In that case, the Court said:

A fair trial in a fair tribunal is a basic

requirement of due process. Fairness of

course requires an absence of actual bias in the

trial of cases. But our system of law has always

endeavored to prevent even the probability of un-

fairness. To this end no man can be a judge

in his own case and no man is permitted to

try cases where he has an interest in the

outcome. That interest cannot be defined with

precision. Circumstances and relationships must

be considered. This Court has said, however, that

“every procedure which would offer a possible

temptation to the average man as a judge... not

18

to hold the balance nice, clear and true between

the State and the accused, denies the latter due “

process of law.” Tumey v. Ohio, 273 U.S. 510, 532.

Such a stringent rule may sometimes bar trial by

judges who have no actual bias and who would

do their very best to weigh the scales of justice

equally between contending parties. But to per-

form its high function in the best way “justice

must satisfy the appearance of justice.” Offutt v.

United States, 348 U.S. 11, 14 (1954).

This incident also shows that the judge was

doubtless more familiar with the facts and cir-

cumstances in which the charges were rooted

than was any other witness. There were no

public witnesses upon whom petitioners

could call to give disinterested testimony

concerning what took place in the secret

chambers of the judge. If there had been they

might have been able to refute the judge’s state-

ment about White’s insolence. Moreover, as

shown by the judge’s statement here, a “judge-

grand jury” might himself many times be a very

material witness in a later trial for contempt. If

the charge should be heard before that |

judge, the result would be either that the de-

fendant must be deprived of examining or

cross-examining him or else there would be

the spectacle of the trial judge presenting

testimony upon which he must finally pass

in determining the guilt or innocence of the

defendant.(fn10} In either event the State

would have the benefit of the judge’s personal

knowledge while the accused would be denied an

effective opportunity to cross-examine. The right

of a defendant to examine and cross-examine

Leb hh Pt sl RA en

TT

19

witnesses is too essential to a fair trial to have

that right jeopardized in such way.

We hold that it was a violation of due process

for the “judge-grand jury” to try these petition-

ers, and it was therefore error for the Supreme

Court of Michigan to uphold the convictions. The

judgments are reversed and the causes are re-

manded for proceedings not inconsistent with

this opinion.

(Emphases added)

2. The unpublished per curiam Eighth Circuit

opinion falls below the minimum standards re-

quired of judicial proceedings; the honor and

public esteem of this August tribunal require

that the Court exercise its supervisory role, and

require the Eighth Circuit to re-examine its de-

cision.

U.S. Supreme Court Rule 10 provides for “Considera-

tions Governing Review on Certiorari.” The Court may

treat this petition as falling under Rule 10(c), since there

is ample basis for stating that the Eighth Circuit panel

opinion contradicts any number of U.S. Supreme Court

decisions. This petition also falls under the last part of

Rule 10(a), which provides that a reason considered by the

Court for the grant of certiorari is that a U.S. court of

appeals “... has so far departed from the accepted and

usual course of judicial proceedings, or sanctioned such a

departure by a lower court, as to call for an exercise of this

Court’s supervisory power.”

In this case, the Respondents have engaged in clear,

flagrant misconduct and denial of due process. They have

left Petitioner with no meaningful alternative except to

20

seek relief before the U.S. Supreme Court. This conduct is

clearly contrary to the precedent of the Arkansas Supreme

Court. See for example Sexton v. Ark. Supreme Ct. Comm.

On Profess. Conduct, 299 Ark. 439 (1989), where the

Arkansas Supreme Court said:

i ha

The appellant insists that the Committee

should fulfill its functions by gathering informa-

tion, investigating complaints, and making rec-

ommendations to this court. He argues that the

Committee has gone beyond those functions and

become a court in its own right through the exer-

cise of the power of this court in suspending the

appellant’s license.

In establishing this Committee, we have

presumed the honesty and integrity of those ap-

pointed. Certainly we could never tolerate the

denial of the right to practice law without fully

affording due process to the practicing attorney.

Amendment 28 did not specify the procedure or

the manner in which we would regulate the prac-

tice of law. We have adopted rules and have de-

clared that the right to appeal a decision of the

Committee exists. See Sexton v. Supreme Court

Committee on Professional Conduct, 297 Ark.

154-A, 761 S.W.2d 602 (1988).

Despite these reassurances to the bar, the Respon-

dents have flagrantly violated their own rules, denying

due process so clearly that a contrary argument cannot be

made with any credibility whatsoever. In the face of this

conduct, the potential of an appeal to the Respondents has

virtually no value.

Furthermore, the Respondents have all but promised

that they would not recuse from Petitioner’s future cases,

ee ren

21

when required by precedent to recuse. In White v. Priest,

348 Ark. 135, 73 S.W.3d 572 (Ark. 2002) the Court said:

Even if this court had original jurisdiction to ini-

tially consider a claim based on illegal exactions,

the justices still would be empowered and duty

bound to consider and decide these issues White

strives to raise. Under Ark. Code of Judicial

Conduct Canon 3(E)(1), while a judge must dis-

qualify himself or herself in a proceeding in

which the judge’s impartiality might reasonably

be questioned, the “Rule of Necessity” may over-

ride the rule of disqualification. For example, a

judge might be required to participate in judicial

review of a judicial salary statute. See Commen-

tary to Canon 3(E)(1);’ see also Richard E.

Flamm, Judicial Disqualification: Recusal and

Disqualification of Judges § 20.2.2, at 591-592

(1996) (the Rule of Necessity is most likely to be

invoked in situations where the filing of a suit

whose resolution will directly affect the pecuni-

ary well-being of judges as a whole, such as a

suit seeking to increase judicial pay or retire-

ment benefits); and Jeffery M. Shaman et al.,

Judicial Conduct and Ethics § 4.03, at 111-112

(3d ed. 2000).

This claim has no merit. This case is totally different

from United States v. Will, 449 U.S. 200 (1980), where

there was no readily available method of obtaining disin-

terested jurists. On the contrary, questions concerning

judicial salaries, or laws affecting same, and the justices

have always recused and allowed the governor to appoint

special justices. See for example Brickhouse v. Hill, 167

* This commentary was written — at least in part — by the Respon-

dents!

22

Ark. 513, 268 S.W. 865 (1925), another case in which the

judicial pay of Arkansas judicial officers was in question,

in which all justices recused.

In the White case, tens of thousands of dollars of their

own salary was at stake, yet they did not recuse, not did

they comply with the most elementary requirements of

due process. Respondents dismissed the White complaint

without any notice or opportunity to be heard prior to

decision.”

In light of this history, it would be foolish to indulge

the normal presumption, that judges with a clear disquali-

fication will recuse, where there is a well established

procedure for the appointment of replacement judges.

Petitioner has shown not only a great need for this Court

to exercise it’s supervisory powers, for the good of the legal

profession, but also a situation where the probability of

Petitioner obtaining the most rudimentary due process is

exceedingly low.

This Court unquestionably is required to deal with a

large volume of requests for certiorari. This particular

request need not consume a great deal of the time of the

Court. Supreme Court Rule 16(1) permits this Court to

summarily dispose of cases on the merits. This case does

not call for scholarly analysis, since none of the decisions

below have even tried to put words on paper to justify the

actions of Respondents. They have simply refused to

* While Respondents dismissed the complaint before the time for

any of the ote: Defendants’ answer had run, Respondents did give

their co-defendants 4 days time to respond to Petitioners show cause

brief, if they so chose.

ee

23

consider and adjudicate the important constitutional

questions raised.

If the Respondents think that any fact or legal conclu-

sion herein is erroneous, they have the right to file a brief

pursuant to Supreme Court Rule 15. Absent such a filing, or

in the event that the filing does not squarely meet and deny

the allegations of the petition, it is plain that the Petitioner

has shown himself entitled to the issuance of the writ.

The Court has in hundreds of cases summarily va-

cated judgments and remanded the case to a court of

appeals, with respect to the United States v. Booker, 543

USS. , 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005) issue

alone. For example, see West v. United States, 2005 U.S.

LEXIS 3295 (U.S., 2005), where the Court said:

OPINION: On petition for writ of certiorari

to the United States Court of Appeals for the

Fifth Circuit. Motion of petitioner for leave to

proceed in forma pauperis and petition for a writ

of certiorari granted. Judgment vacated, and

case remanded to the United States Court of Ap-

peals for the Fifth Circuit for further considera-

tion in light of United States v. Booker, 543 U.S.

___., 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005).

Judicial economy is a wonderful principle which should

be respected in this case. Unless the Respondents make a

substantial challenge to the facts set forth herein, this Court

is fully empowered to simply issue the following order:

OPINION: On petition for writ of certiorari

to the United States Court- of Appeals for the

Eighth Circuit. Petition for a writ of certiorari

granted. Judgment vacated, and case remanded

to the United States Court of Appeals for the

Eighth Circuit for further consideration in light

24

of In re Murchison, 349 U.S. 133 (1955), South-

western Bell Tel. v. Arkansas Pub. Serv. Comm'n,

58 Ark. App. 145, 946 S.W.2d 730 (1997), Tumey

v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71

L.Ed. 749 (1927), and Yamaha Motor Corp.,

U.S.A. v. Riney, 21 F.3d 793 (8th Cir. 1994).

|

Otherwise, the Respondents would likely assume the

Court’s action to amount to a stamp of approval on the |

specific misconduct in this case, and similar acts of mis-

conduct. In Lunding v. New York Tax Appeals Tribunal, |

522 U.S. 287, 306 (1998), this Court stated:

Turning to respondents’ arguments to this :

Court, as an initial matter, we reject the State’s |

suggestion that this Court’s summary dismissals |

in several other cases should be dispositive of the |

question presented in this case. See Brief for Re-

spondent Commissioner of Taxation and Finance

[Page 307] 15-16, n. 8.[fn3] Although we have

noted that “[o]ur summary dismissals are ... to

be taken as rulings on the merits in the sense

that they rejected the specific challenges pre-

sented ... and left undisturbed the judgment

appealed from,” we have also explained that they

do not “have the same precedential value ... as

does an opinion of this Court after briefing and

oral argument on the merits.” Washington v.

Confederated Bands and Tribes of Yakima Na-

tion, 439 U.S. 463, 477, n. 20 (1979) (citations

and internal quotation marks omitted). —

et a cee

Petitioner has taken care to state the challenges in

this case with specificity. Other challenges could also be

made, but Petitioner has stated challenges to conduct so

clearly illegal as to be a gross embarrassment to the bench

and bar. After all, what judge could think that he has

jurisdiction when the rules created by that judge’s own

25

court unequivocally state otherwise? And what judge could

think that he or she has a legal right to usurp authority

over a matter before another tribunal, merely because that

judge was the accuser of the responding attorney in that

case? The fact that the judge is the accuser is all the more

reason that the accusing judge must allow the controversy

to be decided by the legally constituted authority.

Petitioner submits that the facts demonstrate a clear

case for the Court to exercise its supervisory power. The

honor and reputation of this august tribunal, and of courts

below, depend upon the imposition of consistent and

certain discipline where there has been an abandonment

of the judicial role. That is what has happened in this case.

4

CONCLUSION

Petitioner faces an accusation by the Respondents,

who are also his judges, when they so elect, even as to

matters not before Respondents’ court. Respondents have

usurped the role of the Chair of the Committee, despite

unmistakable language stating that discovery disputes

must be decided by the Chair of the Committee, and not a

judge who is at once the accuser and adversary. Petitioner

has been forced to defend against allegations so vague that

no definite meaning can be ascertained. This cannot

constitute a “competent” tribunal, under U.S. Supreme

Court case law, or Eighth Circuit case law, else the entire

concept of a “competent” tribunal ceases to have any

meaning whatsoever.

Furthermore, by all appearances, the Chair of the

Committee waited for word that he might deny the Peti-

tioner’s motion for reconsideration of the quashing of

26

his subpoenas without embarrassing repercussions, then

summarily denied the motion without explanation and

without ruling on any of the constitutional questions

involved. The timing of these events, including the denial

of the motion 687 days after filing, the day of submission

of the Eighth Circuit appeal, and 5 days before the Eighth

Circuit panel opinion, suggest that communication be-

tween one or more members of the Eighth Circuit panel

and the Chair of the Committee has further deprived

Petitioner of his rights to a constitutional and competent

tribunal. Neither the Respondents nor the Eighth Circuit

has even claimed that such communication did not take

place, despite the suggestion of same in a proper pleading,

with request for correction if the perception was inaccu-

rate.

The honor, integrity, and public reputation of this

Court require that the unpublished per curiam panel

decision of the Eighth Circuit be vacated. The cause

should be remanded for a decision consistent with Yamaha

Motor Corp., U.S.A. v. Riney, 21 F.3d 793 (8th Cir. 1994),

and the numerous U.S. Supreme Court cases requiring

that legal disputes be decided by a disinterested tribunal.

Respectfully submitted,

Oscar Stilley, Attorney at Law

Central Mall Plaza, Suite 520

5111 Rogers Avenue

Fort Smith, AR 72903-2047

Pro se

Phone 479 996-4109

Fax 479 996-3409

oscar@oscarstilley.com email

Arkansas Bar # 91096

App. 1

APPENDIX 1

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 04-2172

Oscar Stilley,

Appellant,

*

*

*

v. * Appeal from the

Betty Dickey, in her official capacity : ey peer a er

as Chief Justice of the Arkansas Peer or the Eastern

Supreme Court (for the “official” District of Arkansas.

capacity claims against former Chief” [UNPUBLISHED]

Justice W. H. “Dub” Arnold); Robert :

Brown, in his individual capacity

and in his official capacity as a

Justice of the Arkansas Supreme

Court; Tom Glaze, in his individual

capacity and in his official capacity

as a Justice of the Arkansas

Supreme Court; W. H. Arnold, in his

individual capacity; originally sued

as W. H. “Dub” Arnold; Donald L.

Corbin, in his individual capacity

and in his official capacity as a

Justice of the Arkansas Supreme

Court; Annabelle Clinton Imber, in

her individual capacity and in her

official capacity as a Justice of the

Arkansas Supreme Court; Jim

Hannah, in his individual capacity

and in his official capacity as a

Justice of the Arkansas Supreme

Court,

* *e*#& &FHeHeeHeHeHeHe Hee Ee HEHEHE FE HE HR HR OF

Appellees.

App. 2

Submitted: January 6, 2005

Filed: January 11, 2005

Before MURPHY, FAGG, and SMITH, Circuit Judges.

PER CURIAM.

Oscar Stilley appeals the district court’s’ dismissal

under Younger v. Harris, 401 U.S. 37 (1971), of his 42

U.S.C. §§ 1983, 1985, and 1988 complaint against defen-

dant justices of the Arkansas Supreme Court. He also

appeals the denial of his motion for reconsideration.

Having carefully reviewed the record, we conclude that the

district court did not abuse its discretion in determining

that abstention was appropriate, and in denying the

motion for reconsideration. Accordingly, the judgment of

the district court is affirmed. See 8th Cir. R. 47B.

* The Honorable James M. Moody, United States District Judge for

the Eastern District of Arkansas.

App. 3

APPENDIX 2

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

LITTLE ROCK DIVISION .

OSCAR STILLEY PLAINTIFF

VS. CASE NO. 4:03CV000965 JMM

RAY THORNTON, IN HIS INDIVIDUAL

CAPACITY AND IN HIS OFFICIAL

CAPACITY AS A JUSTICE OF

ARKANSAS SUPREME

COURT, ET AL. DEFENDANTS

ORDER

(Filed Mar. 23, 2004)

Pending before the Court is defendants’ motion to

dismiss to which plaintiff has responded. For the reasons

stated below, the motion will be granted.

Plaintiff, an attorney, brings his complaint against all

seven members of the Arkansas Supreme Court (“defen-

dants”) for alleged violations of his due process and equal

protection rights under the United States Constitution

pursuant to 42 U.S.C. §§ 1983, 1985 and 1988. Plaintiff

has sued defendants in their “individual” and “official”

capacities seeking declaratory and injunctive relief,

compensatory ard punitive damages, costs, and attorney’s

fees.

Plaintiff filed an original action in the Arkansas

Supreme Court against defendants on behalf of his client,

Robert White. Defendants struck the complaint and

entered an order against plaintiff directing him to show

cause why sanctions should not be entered against him.

App. 4

Plaintiff responded to the show cause order with a 70 page

brief contending sanctions were unwarranted. Defendants

subsequently referred plaintiff to the Arkansas Supreme

Court Committee on Professional Conduct (“Committee”)

based upon “a general tone of disrespect for the code of

ethics and ... breach of his oath of office as an attorney-

at-law.”

As a result of this referral, plaintiff served each of the

defendants with a subpoena for appearance at depositions

for “among other reasons the purpose of ascertaining the

nature and cause of their accusation, and specific rules or

legal provisions thought to have been violated by plain-

tiff.” Based upon these subpoenas, defendants sent a

letter to Stark Ligon, Executive Director of the Office of

Professional Conduct, requesting and directing that the

subpeenas be quashed citing Arkansas Code Annotated

§ 25-19-105(b)(8) which states that documents that are

protected from disclosure by order or rule of court are not

open to the public. (Ex. 1 to the Complaint).

On February 19. 2003, plaintiff responded to the

defendants’ letter by filing a Response to Motion to Quash

Subpoenas of Supreme Court Justices, and Motion to

Strike Order Purporting to Grant Motion to Quash alleg-

ing that defendants did not have jurisdiction to direct that

the subpoenas be quashed. The Office of Professional

Conduct has taken no action on this response and plaintiff

alleges that defendants have directly or indirectly acted to

prevent the Office of Professional Conduct from taking any

further action on his response.

The Court will dismiss a complaint upon a motion to

dismiss only when “‘it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim

App. 5

which would entitle him to relief.’” Casazza v. Kiser, 313

F.3d 414, 418 (8th Cir.2002) (quoting Conley v. Gibson, 355

U.S. 41, 45-46, 78 S. Ct. 99, 2 L.Ed.2d 80 (1957)). More-

over, the Court must accept the allegations in the com-

plaint as true and construe them ‘in the light most

favorable to the plaintiff. Kottschade v. City of Rochester,

319 F.3d 1038, 1040 (8th Cir.2003).

Plaintiff agrees that judges are absolutely immune

from suits for actions taken in their judicial capacity. See

Mireles v. Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116

L.Ed.2d 9 (1991) (per curium) (judicial immunity is immu-

nity from suit, not just from ultimate assessment of

damages).' He contends, however, that defendants were

not acting in their judicial capacity which would entitle

him to prospective injunctive relief.

The Supreme Court has held that, when judges act in

an enforcement capacity against attorneys, they are

subject to prospective injunctive relief. See Supreme Court

of Virginia v. Consumers Union of the United States, 446

U.S. 719, 739, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980)

(plaintiffs entitled to declaratory and injunctive relief

without regard to defendants’ status as judicial officers

because lawsuit arose out of their role as “enforcers” of the

bar rules).

* In 1996 in response to Pulliam v. Allen, 466 U.S. 522, 541-42, 104

S.Ct. 1970, 80 L.Ed.2d 565 (1984) (judicial immunity does not bar

prospective injunctive relief), Congress enacted the Federal Courts

Improvement Act of 1996 which amended 42 U.S.C. § 1983 to provide

that “in any action brought against a judicial officer for an act or

omission taken in such officer’s judicial capacity, injunctive relief shall

not be granted unless a declaratory decree was violated or declaratory

relief was unavailable. Pub.L. No. 1044-317, 110 Stat. 3847 (1996).

App. 6

The Younger abstention doctrine prohibits a federal

court from interfering in pending state civil cases where

(1) there is an ongoing state proceeding, (2) that implicates

important state interests, and (3) there is an adequate

opportunity in the state proceeding to raise the federal

issues. Middlesex County Ethics Comm. v. Garden State

Bar Ass’n, 457 U.S. 423, 482, 102 S.Ct. 2515, 73 L.Ed.2d.

Here, there is an on going state proceeding implicating the

state’s interest in overseeing a code of ethics for attorneys

licensed to practice in state of Arkansas, and there is a

procedure in place which plaintiff can pursue his claim

against defendants.

Defendants’ motion to dismiss is granted (#12). Judgment

will be entered accordingly. IT IS SO ORDERED this 23

day of March, 2004.

/s/ James M. Moody

James M. Moody

United States District Judge

App. 7

APPENDIX 3

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

LITTLE ROCK DIVISION

OSCAR STILLEY PLAINTIFF

VS. CASE NO. 4:03CV000965 JMM

RAY THORNTON, IN HIS INDIVIDUAL

CAPACITY AND IN HIS OFFICIAL

CAPACITY AS A JUSTICE OF

ARKANSAS SUPREME

COURT, ET AL. DEFENDANTS

JUDGMENT

(Filed Mar. 23, 2004)

Pursuant to the Order entered on this day, it is Con-

sidered, Ordered and Adjudged that this case be, and it is

hereby, dismissed.

IT IS SO ORDERED this 23 day of March, 2004.

/s/ James M. Moody

James M. Moody

United States District Court

App. 8

APPENDIX 4

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

LITTLE ROCK DIVISION

OSCAR STILLEY PLAINTIFF

VS. CASE NO. 4:03CV000965 JMM

RAY THORNTON, IN HIS INDIVIDUAL

CAPACITY AND IN HIS OFFICIAL

CAPACITY AS A JUSTICE OF

ARKANSAS SUPREME

COURT, ET AL. DEFENDANTS

ORDER

(Filed Apr. 28, 2004)

For the reasons previously stated plaintiff’s motion to

alter or reconsider the Court’s March 23, 2004 Order is

denied (#23). The Judgment entered on March 23, 2004 is

a final appealable order.

IT IS SO ORDERED this 28 day of April, 2004.

/s/ James M. Moody

James M. Moody

United States District Court

App. 9

APPENDIX 5

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 04-2172

Oscar Stilley, *

Appellant, :

vs , Order Denying Petition for

, Rehearing and for Rehearing

Betty Dickey, etc., et al, . En Banc

Appellees. ~

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

(5128-010199)

February 16, 2005

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit