# Petition for Writ of Certiorari — Stilley v. Dickey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 816

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0888%3A1. Public record. Not legal advice.