Opposition Brief — Wilson v. Neal

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No. 00-947 \

IN THE

Supreme Court of the United States

J. L. WILSON,

Petitioner,

JAMES NEAL, DIRECTOR OF THE ARKANSAS SUPREME

COURT COMMITTEE ON PROFESSIONAL CONDUCT,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

ARKANSAS SUPREME COURT

BRIEF IN OPPOSITION

LYNN WILLIAMS RoBERT J. DONOVAN

STAFF LITIGATION ATTORNEY Counsel of Record

ARKANSAS SUPREME CouRT COMMITTEE DAGGETT, VAN DOVER,

ON PROFESSIONAL CONDUCT DONOVAN & PERRY, PLLC

Justice Building - Room 110 P.O. Box 646

625 Marshall Street 12 South Poplar Street

Little Rock, AR 72201 Marianna, AR 72360

(501) 376-0313 (870) 295-3434

Attorneys for Respondent

164788 @ Counsel Press LLC

(800) 274-3321 + (800) 359-6859

QUESTIONS PRESENTED FOR REVIEW

1. Are the constitutional rights of the petitioner (and all

similarly situated citizen attorneys) to enjoy the federally

guaranteed protections of due process and the equal

protection of the laws being denied, when the Arkansas

Supreme Court or the lower state’s courts (in an attorney

disciplinary proceeding) are allowed by the system adopted

by the state court to exercise unfettered and unlimited

discretion in fashioning a sanction of “suspension” of the

attorney’s license to practice law (in a disbarment

proceeding), when the period of such sanction of

“suspension” exceeds the limitation of the period of years

that the Arkansas Supreme Court’s published Procedures for

Regulating the Professional Conduct of Attorneys at Law

imposes upon the power and authority the Arkansas Supreme

Court’s Committee on Professional Conduct to impose such

sanction, when the court is disciplining such attorneys?

TABLE OF CONTENTS

Questions Presented for Review ...............

Table of Content ©6555. So a eee

Table of Appen@ie@e 365635. GaSe eee

Statement of the CON 665s oa ee ee

Criminal Praca. xn bs 4a waa wen

Disciplinary Proceeding. ................

First Circuit Court Ruling. ..........

Second Circuit Court Ruling. ........

Federal Court Removal and Rulings. ..

Third Circuit Court Ruling. .........

Il.

IV.

Double Jeopardy and Collateral

CUI i eh sien se can ss

Request for Extensions. ........

Constitutionality of the procedures

regulating professional conduct.

S286 O88 248 O2EB EEO POH 48GB O88 8.08 6S

IS oc kt 3 ek ca ex

iil

Contents

V. Violation of Model Rule 8.4(b). .

VI. Righttoa Full Trial. ..........

VII. Appropriate Sanction. .........

E. Fourth Circuit Court Ruling. ........

Reasons for Denying the Writ .................

A. Consolidated argument of Points raised in

IE Hig Sig BPG Bn wv ccc sececsccacen

B. Rulings By Arkansas’ Courts in Similar

Attorney Disciplinary Matters Have Not

Reached Disparate Results. .............

1. A comparison of the Wilson and

Matthews proceeding. ..............

2. A comparison of the Meurer and

Hollingsworth proceedings. .........

Perceived Misstatements Of Fact Or Law In The

Petition Bearing On What Issues Properly Would

er rer er eee ee

Ege pa I es aS Se et

Page

TABLE OF CITED AUTHORITIES

Page

Cases:

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,

oe GS re eee Pore 3

In re Hollingsworth, 339 Ark. __, 4 S.W.3d 492

CRG x socks orcs Chae eink eeen re kere 27

In re Louis Art Doddrill, 260 Ark. 223, 538 S.W.2d

mg pn me nnn ae ema eee uy 18, 19, 24

In re Meurer, 338 Ark. 601, 999 S.W.2d 196 (1999)

one VOR bob ORaad a Dae RR AE bs RR cee 26, 29

In re Meurer, 341 Ark. _, 23 S.W.3d 220 (2000)

ode bo ahead es A Ee ee ks 26

Matter of Procedures of Arkansas Supreme Court,

ee ew RT) | | re errr 11, 13

Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d

TEE GRROOE 6 dace cast ansdees eres todas. 26

Neal v. Matthews, 342 Ark. 566, 30 S.W.3d 92

COD 5k. on aia ek ba i ae Rea wee 24

United States v. Wilson, 806 F.2d 171 (8th Cir. 1986)

Cited Authorities

Page

United States Constitution:

Powustecint AMONG oo nc 6 ci RS 27

Arkansas Constitution, Amendment 28 .......... 13, 29

Statutes:

bog k 2 eG yo. Gagan pene eee owe Laima es ah Rs! 24

5S UR Oe ee BIAS ye

19 USE OS AEA GS 3, 25,21

iS USC: Ce ak ieee 25

Rules:

gg BERR TEL CUR ELEL es Cree Eee 9,10

PCa TRI 5 oa a eR a een ces 9

Procodarel Ries, STNG) oes se ens heaadess 10

Supreme Court Rules of Professional Conduct,

§ MEP ROS ae. 10

TABLE OF APPENDICES

Appendix A — Findings And Consent Order Of

Discipline Of The Supreme Court Committee On

Professional Conduct Jn re Robert Fuller Meurer,

CPC Docket No. 98-057 Dated February 8, 1999

And Filed February 12, 1999 ................

Appendix B — Findings And Order Of The Supreme

Court Committee On Professional Conduct Jn re

Robert Fuller Meurer, CPC Docket No. 99-065

Dated September 29, 1999 And Filed October 22,

ee rs PR

Appendix C — Findings And Order Of The Supreme

Court Committee On Professional Conduct Jn re

Robert Fuller Meurer, CPC Docket No. 99-071

Dated September 29, 1999 And Filed October 22,

BOPP a ccctceddecusssbucneeseee

Appendix D — Memorandum Opinion And Order

Of Remand And Judgment Of The United States

District Court For The Eastern District Of

Arkansas, Western Division Dated March 18,

i Perron, re eee

Appendix E — Opinion Of The United States Court

Of Appeals For The Eighth Circuit Dated And

DeskGed Agee BS; VIGE . ksic eons ibe idiccexas

Page

10a

13a

]

STATEMENT OF THE CASE

The petition and argument includes a lengthy,

unnecessary and sometimes inaccurate review of the history

of this disciplinary action which requires a response to the

facts alleged.

1. Criminal Proceedings:

The facts leading to the within proceeding are found

in United States v. Wilson, 806 F.2d 171 (8th Cir. 1986) as

follows:

Defendant practices law and operates a farm in

Helena, Arkansas. Between February 1980 and

April 1982 he borrowed approximately

$775,230.00 from the FmHA for farm operating

expenses with the loans primarily secured by an

FmHA lien on his crops. To insure compliance

with the security agreement entered into at the

time of the loans, the FmHA circulated

defendant’s name on a list of FmHA borrowers

to the grain dryers in the region of his farm. The

grain dryers would then properly issue checks to

defendant and the FmHA as co-payees as payment

for crops transported from the farm.

Between 1981 and December 1982, defendant

made multiple sales of grain in the names of

Willie Weaver and Reggie Wilson. Willie .

Weaver, defendant’s cousin and co-defendant

below, worked as a farm manager for defendant.

Reggie Wilson is defendant’s son and is a student,

not engaged in farming. The government presented

evidence that the proceeds from the sales made by

Weaver and the junior Wilson, which were issued

clear of the FmHA lien, went variously into

defendant’s law firm account, to cash, into his farm

expense account, or toward payment on a bill for

farm supplies.

In May 1981, the FmHA required that a supervised

joint bank account be established in the names of

the FmHA and defendant and his wife, Henrietta.

FmHA loan proceeds were to be deposited into the

joint account, and defendant was required to advise

the FmHA of his intended use of funds prior to the

time of any withdrawal. On various occasions,

defendant would apply to the FmHA to have funds i

transferred from the joint account to his farm

operating account from which he would retransfer

the money to his law firm account. A substantial

portion of funds was used for the purchase and

maintenance of a Mercedes Benz.

The court in its opinion further stated:

Defendant-appellant Jimmie L. Wilson appeals from

a final judgment entered in district court upon a jury

verdict finding him guilty of one count of conspiracy

to defraud the United States, in violation of

18 U.S.C. § 371, of forty counts of knowingly

disposing of property mortgaged to a government

agency, in violation of 18 U.S.C. § 658 and of

seven counts of unlawfully converting to his own

use money of the United States, in violation of

18 U.S.C. § 641.

The above conviction was initially affirmed by the Eighth

Circuit Court of Appeals but was reversed in a subsequent

appeal when the Eighth Circuit found a Batson violation and

vacated its previous affirmance, While awaiting re-trial a plea

bargain was reached between the petitioner and the United States

and the petitioner pled guilty to five (5) misdemeanor counts

under 18 U.S.C. § 558 and 18 U.S.C. § 641. The misdemeanor

counts were not modified as asserted by the petitioner.

2. Disciplinary Proceeding. While serving his

sentence petitioner was notified by certified mail that a

complaint had been filed with the committee pursuant to the

Model Rules of Professional Conduct as amended and the

Procedures of the Arkansas Supreme Court Regulating

Professional Conduct of Attorneys at Law, a copy of which

was enclosed with the letter. The letter further states that the

complaint “is predicated on your entry of a plea of guilty to

certain criminal offenses.” Copies of appropriate documents

concerning the underlying proceedings were attached to the

letter. The letter called petitioner’s attention to Section 5 of

the court’s procedures and notified the petitioner that he had

twenty (20) days to respond “in affidavit form.” Petitioner

was further notified that the affidavit, along with the

complaint and any supporting documents, would be sent to

the committee for vote by written ballot. On April 19, 1991,

the Committee, acting through its executive director,

acknowledged receipt of an attorney’s letter of representation

dated April 15, 1991 from petitioner’s attorney, requesting

an extension of time until August 30, 1991. The director

responded by stating the request exceeded the director’s

authority but an extension of time for submission of

petitioner’s affidavit of response was granted until May 20,

1991. The director sent a second letter to petitioner’s attorney

dated June 10, 1991, acknowledging a subsequent request

for extension of time received on May 20, the date the first

extension was to expire. The director further advised that

the committee chairman had been contacted and that the

request for additional time was denied. Petitioner’s attorney

was advised that the complaint was being processed for a

determination pursuant to procedures outlined in the letter.

In a letter dated July 22, 1991, the petitioner was notified of

the committee’s decision to institute disbarment proceedings

“resulting from your entry of a plea of guilty to certain

criminal offenses.” By letter dated July 24, 1991, petitioner’s

attorney notified the committee that petitioner disagreed with

the decision and refused to voluntarily surrender his license.

This disciplinary action was commenced on October 9, 1991,

by the filing of a complaint against the petitioner in the

Circuit Court of Phillips County, Arkansas.

A. First Circuit Court Ruling. In the first Circuit

Court ruling the trial court concluded that the Committee

chose to wait too long to bring its action and granted the

defendant’s motion to dismiss. In reversing the trial court

the Arkansas Supreme Court stated that the operative

procedures of the Arkansas Supreme Court Regulating

Professional Conduct of Attorneys “focused upon the fact

of conviction rather than the allegation of misconduct.” The

court then calculated the time from petitioner’s plea of guilty

on March 22, 1990, to the Committee’s action of disbarment

filed on October 9, 1991, and held that the action was not

time barred. The court also stated that it was the conviction

or guilty plea that triggered the mandatory disbarment action

against an attorney. The court further noted that any

deferment of action until conviction inured to petitioner’s

benefit since he was “permitted to continue his practice of

law in the state courts while his case meandered in its course

for some ten (10) years of trial, appeal, and re-hearings in

the federal system.” The case was then remanded for further

proceedings. Neal v Wilson, 873 S.W.2d 552, 16 Ark. 588

(1994) Judge Hanshaw who had heard the first case by

assignment asked to be relieved and the case was re-assigned

to Judge Lineberger.

B. Second Circuit Court Ruling; and

C. Federal Court Removal and Rulings.

The above proceedings are discussed jointly because of

overlapping issues discussed in the opinions.

Perhaps the most objective analysis of the 2nd state

circuit court ruling is found in the opinions of United States

District Court and the Eighth Circuit Court of Appeals.

In Neal v. Wilson, 920 F. Supp. 976 (1990) the court stated

in its opinion as follows:

Prior to that time, as a result of a settlement

reached in a Federal voting rights case, new

electorial sub-districts were created providing for

a majority of black voters in some electorial sub-

districts, including the one in which the Helena,

Arkansas, area is located. Mr. Olly Neal, an

African American, was elected to that judgeship.

In spite of the fact that the case was clearly

assigned to Judge Lineberger and that Judge

Linberger had declined to recuse and have the case

re-assigned to Judge Neal, Judge Neal attempted

to assume jurisdiction and set a hearing for May

18, 1995. The committee, through its attorney,

Mr. Donovan, appeared on that date and contested

Judge Neal’s jurisdiction to proceed. Judge Neal

ruled that he did have jurisdiction to proceed in the

case and decided it on its merits.

(FN 5) The committee contends that Judge Neal was

disqualified from hearing the case because he was a

law partner of Mr. Wilson until sometime in 1988

and, in fact, was one of the attorneys representing

him in the very criminal proceeding which this

disbarment proceeding is all about. It is contended

that he, in fact, received, either on behalf of himself

or in behalf of a client, some of the funds that were

wrongfully obtained by Mr. Neal (sic) from the

Farmers Home Administration, and that he, by

stipulation, testified by letter in the criminal trial.

In affirming the district court the Court of Appeals in

Neal v. Wilson, 112 F.3d 351 (8th Cir. 1997) stated:

Wilson moved for Judge Lineberger’s

disqualification on the basis that there was a new

Circuit Judge in Phillips County who had not recused

himself who should hear the case. That judge was

Olly Neal, an African American who had been

elected in 1992 in a minority-majority district, newly

created pursuant to a consent decree in a voting rights

act lawsuit. Mr. Neal was Wilson’s former law

partner and one of the attorneys who represented

Wilson in his criminal case. Neal also testified at

Wilson’s federal trial.

Judge Lineberger denied the disqualification motion

on January 5, 1995, and set a trial date of June 13,

1995. At Wilson’s instigation, a hearing was set

before Judge Neal. Following the hearing, Judge

Neal ruled on May 24, 1995, that he had jurisdiction.

He then decided the case on the merits, concluding

that Wilson’s conduct warranted only a letter of

reprimand. The committee sought a Writ of

Certiorari from the Arkansas Supreme Court. The

Supreme Court issued the writ on June 12, 1995,

ruling that Judge Neal did not have jurisdiction and

quashing Judge Neal’s orders. See Neal v. Wilson,

321 Ark. 70, 900 S.W.2d 177 (1995).

The Eighth Circuit also stated in its opinion as follows:

Wilson argues that the state authorities have acted

in bad faith by seeking a reversal of two circuit

court decisions favorable to Wilson and that the

conduct of the state authorities and the Arkansas

Supreme Court shows that Wilson’s federal rights

will not be honored in state court. *** We agree with

the district court that Wilson has proffered no evidence

of bad faith, harassment, or other circumstances

that might render abstention inappropriate.

The Arkansas Supreme Court reversed the two

previous Circuit Court rulings on state law

grounds, and Wilson has the opportunity in the

current state proceeding to raise his federal claims.

As we noted above, the district court characterized

Wilson’s contentions of bad faith by the defendants

as “little more than a belief by him that, since the

State actors disagree with him and his lawyers,

they must have racially discriminatory motives.”

The case was then returned to the state trial court and a new

judge was assigned when Judge Lineberger recused. The case

was then presented to the trial court a third time.

D. Third Circuit Court Ruling.

In Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998),

the Supreme Court affirmed the trial court on the first six

issues and reversed only on the final issue of sanctions.

The issues presented are as follows:

I. Double Jeopardy and Collateral Estoppel.

The Court held that petitioner was procedurally

barred from raising these arguments on appeal

because they were not raised below or ruled upon

by the trial court.

II. Request for Extensions. Here petitioner

contended that the committee violated his right

to procedural due process when it denied his

request for an extension to prepare a response to

the initial complaint filed before the Committee.

In its opinion the court noted that the petitioner

had twenty (20) days to file a written response

and that instead of filing a response Wilson’s

attorney asked for an extension of time which was

granted in part. The Court held that a one month

extension was reasonable because petitioner had

already had twenty (20) days to respond and was

represented by competent counsel who could have

helped him prepare his response. The Court also

held that a denial of a second request for extension

did not violate petitioner’s rights because he had

already been allowed almost two months instead

of the usual twenty (20) days to file his response.

III. Constitutionality of the procedures

regulating professional conduct. Petitioner

argued that the rules are unconstitutional because

the committee had discretion to determine what

crimes constitute a violation of Model Rule 8.4(b)

and to arbitrarily choose when they will pursue

disbarment. The Court found no merit in these

arguments because the rules “unambiguously

proclaims” that the committee “shall” institute a

disbarment action when it determines that a crime

constitutes a violation of Model Rule 8.4(b).

The Court noted that the committee had no

discretion whether or not to file a disbarment

action and that it was ultimately the trial court

that determined whether there had been a violation

of the model rules and whether disbarment was

an appropriate sanction.

IV. Discovery. The Court held that the majority

of the information requested by petitioner in his

discovery was a matter of public record that could

easily have been obtained from the Arkansas

Supreme Court Clerk pursuant to Rule 4(c) of the

Procedural Rules. The Court also noted that on

hearing petitioner’s motion to compel the

executive director of the committee voluntarily

took the stand and answered many of Wilson’s

questions about other attorneys who had been

convicted of criminal offenses. The Court also

noted that the Committee had presented its files

-which were reviewed in camera by the trial court.

The Court also noted that the trial court’s finding

that petitioner had over five years to engage in

meaningful discovery and that he had been “less

than diligent.”

V. Violation of Model Rule 8.4(b). The Arkansas

Supreme Court found that the trial court erred that

it found that the law of the case mandated

summary judgment in favor of the committee.

However the Supreme Court found as a matter of

law that the “undisputed facts” established that

petitioner’s federal convictioms constituted a

violation of Model Rule 8.4(b). The court noted

that it had no hesitancy in holding that the

convictions reflected adversely on petitioner’s

fitness to practice law.

VI. Right to a Full Trial. The Arkansas Supreme

Court held that the language in Section 5(g)(1) of

the rules did not guarantee the petitioner an

absolute right to a full trial that precluded the entry

of summary judgment.

VII. Appropriate Sanction. The Supreme

Court held that the trial court erred in its finding

that petitioner “must be disbarred as a matter of

law” according to Section B(6) of the procedural

rules. The court stated that the rules did not “limit

the sanctions the court may impose.” On remand

the court specifically directed that the parties

should be able to present evidence and arguments

on which of the four sanctions were appropriate

in the case. The court also specifically listed the

elements published by the American Bar

Association Joint Committee on Professional

Standards as the aggravating and mitigating

factors to be considered.

E. Fourth Circuit Court Ruling. On remand the

Circuit Court conducted a “Sanctions” hearing to consider

aggravating and mitigating factors. After a hearing the Circuit

Court suspended petitioner’s license for five (5) years giving

credit for previous suspension time. Petitioner again appealed

and the Arkansas Supreme Court could not reach a consensus

opinion on the core issue of the proper sanctions. Thus the

five year suspension was affirmed.

REASONS FOR DENYING THE WRIT

The only question actually presented by the petition is

whether the Arkansas Supreme Court rules governing

professional conduct of attorneys meets constitutional

standards as written and applied.

The Arkansas Supreme Court rules regulating the

professional conduct of attorneys are reported as Matter of

Procedures of Arkansas Supreme Court, 792 S.W.2d 323

(Ark. 1990). These rules meet constitutional standards as

written and interpreted by the Arkansas Supreme Court and

the federal courts.

Plainly stated, the Arkansas rules authorize the

Committee on Professional Conduct to warn, reprimand, or

suspend attorneys up to one (1) year for a violation of the

model rules. When the Committee finds that disbarment may

be warranted, it must cause a complaint to be filed in the

Circuit Court which has jurisdiction to warn, reprimand,

suspend, disbar or dismiss “as the evidence may warrant.”

In this case the trial court suspended petitioner for five years

and the petitioner asserts that his constitutional rights were

violated arguing that the rules limit the circuit court’s

jurisdiction to suspend to one year and any other

interpretation gives “unfettered and unlimited discretion” in

imposing sanctions. Petitioner argues that such discretion

violates constitutionally protected rights as written and

applied.

Petitioner also alleges racial discrimination based upon

his perception of other cases. This issue was not presented

to the Arkansas Supreme Court. Nevertheless respondent will

demonstrate that the facts do not support petitioner’s

allegation.

ARGUMENT

In general, the petitioner contends that the Procedures

of the Arkansas Supreme Court Committee on Professional

Conduct (“Procedures”) limits the suspension of an

attorney’s license to one year and that the imposition of a

five year suspension of his license was the result of

“unfettered and unlimited discretion by Arkansas Judges and

Justices in fashioning sanctions” thereby violating his

constitutional rights of due process and equal protection. The

petition also contains allegations of racial discrimination.

The petitioner in his brief divides his argument into the

following five categories:

A. The exercise of absolute discretion results in

an unconstitutional outcome; (Pg. 11)

B. Rulings by Arkansas Courts in similar attorney

discipline matter have reached disparate results;

(Pg. 15)

C. The comity usually accorded by this court to

state court attorney discipline proceedings is not

to be a bar to the court’s need to review the

judgment involved here; (Pg. 20)

D. This court must review the petitioner’s federal

constitutional claims, because the Arkansas court

has refused to do so; (Pg. 23)

E. The rules of construction for state court

disciplinary rules and procedures must be

governed by federal constitutional standards.

(Pg. 25)

Four of the above five points relied upon in the petition

involve the interpretation of the Procedures of the Arkansas

Supreme Court Committee Regulating Professional Conduct

of Attorneys and will be consolidated in respondent’s

argument. These rules are sometimes referred to by the

Arkansas Supreme Court as (“Procedures”).

A. Consolidated argument of Points raised in

Paragraphs A,C,D & E:

The Arkansas Court is granted authority to regulate the

practice of law by Amendment 28 to the Arkansas

Constitution which simply states: “The Supreme Court shall

make rules regulating the practice of law and the professional

conduct of attorneys at law.” Pursuant to this constitutional

authority the Arkansas Supreme Court has enacted the

“Procedures” which have been amended from time to time.

The “Procedures” governing this petition were enacted by

the Arkansas Supreme Court in 1990. The full text of these

“Procedures” are published under the title Matter of

Procedures of Ark. Supreme Ct., 792 S.W.2d 323.

The portions of the “Procedures” relevant to this proceeding

are as follows:

PROCEDURES OF THE COURT REGULATING

PROFESSIONAL CONDUCT OF

ATTORNEYS AT LAW

SECTION. SECTION.

1. Scope 5. Procedure

2. Committee 6. Criminal Activity.

3. Executive Director 7. Sanctions.

4. Confidentiality/Records 8. [Deleted].

SECTION 5.

PROCEDURE

B. NOTICE OF ATTORNEY. At the direction

of the Committee or upon a determination by the

Executive Director that a complaint should be

processed as a formal complaint, the Executive

Director shall:

(1) Furnish to the attorney complained

against a copy of the formal complaint and advise

the attorney that he may file a written response in

affidavit form with any supporting evidence

desired. The attorney’s mailing address on record

with the clerk shall constitute the address for

service. Certified mailing of the formal complaint

to said address shall be deemed service on the

attorney.

(2) Advise the attorney that should the attorney

be dissatisfied with the ballot vote, the attorney shall

have the right to a subsequent hearing.

C. TIME FOR RESPONSE. (1) Upon receiving

information of such complaint, the attorney shall

have twenty (20) days in which to file a written

response consisting of an original and eight (8)

copies with the Executive Director. In the event that

the Executive Director has not received a response

within twenty (20) days following the date of the

last notice of attempted delivery by the U. S. Postal

Service, the Executive Director shall proceed to issue

ballots as provided in subsection D of this Section.

(2) The Executive Director is authorized to

grant, at the request of an attorney, an extension of

reasonable length for the filing of a response.

Subsequent requests for extensions must be in

written form and will be ruled on by the Chairman

of the Committee.

*- * *&

D. VOTE BY BALLOT. (1) At such time as the

Executive Director has received from the attorney a

written response or the attorney has failed to respond

within the period provided in subsection C of

this Section, the Executive Director shall assign

the case a docket control number and shall cause

to be prepared seven copies of the complainant’s

affidavit, the response, rebuttal and exhibits, if any,

and such other information, memoranda, and

recommendations which the Executive Director may

deem relevant and shall send a copy thereof to

each member of the Committee.

x* * *

E. RESULTS OF BALLOT VOTE.

(5) Ifa majority of the Committee votes by paper

ballot to initiate disbarment proceedings, the

Committee shall proceed as set out in subsection

G of this Section and there shall be no hearing

before the Committee.

G. ACTIONS FOR DISBARMENT. (1) An

action for disbarment shall be filed with the Clerk

of the Circuit Court of the county in which the

attorney resides, or in which the alleged violation

was committed. In disbarment suits, the action

shall proceed as an action between the Executive

Director and the respondent. Proceedings in the

Circuit Court shall be held in compliance with

the Arkansas Rules of Civil Procedure and trial

shall be had before the Circuit Judge without a

jury.

(2) Ifthe Circuit Judge finds that the attorney

has violated the Model Rules, he shall caution,

reprimand, suspend, or disbar such attorney as

the evidence may warrant. If the Judge finds that

the complaint of the Committee is not sustained

by the evidence, the proceedings shall be

dismissed.

nak i

SECTION 6.

CRIMINAL ACTIVITY

* * &*

B. PROCEDURES UPON CONVICTION.

(1) When a complaint against an attorney is based

on a conviction of a felony or a crime which also

violates Rule 8.4(b) of the Model Rules of

Professional Conduct, the Committee sha//

institute an action of disbarment.

..2?.@

(2) Actions for disbarment based on the

conviction of a crime shall proceed in accordance

with the procedures in subsection G of Section 5

of these procedures.

(3) A certified copy of the judgment of

conviction shall be conclusive evidence of the

attorney’s guilt.

(4) The attorney may not offer evidence

inconsistent with the essential elements of the

crime for which he was convicted.

x * *

SECTION 7.

SANCTIONS

A. SANCTIONS AUTHORIZED.

When the Committee finds that an attorney has

violated any provision of the Model Rules, the

Committee is authorized:

(1) To warn (which shall be confidential); or

(2) To issue letters of caution or reprimand;

(3) To suspend the attorney for a period up

to but not exceeding one (1) year; or

(4) To cause a complaint to be prepared and

filed with the Circuit Court of proper venue in

accordance with the manner provided for

disbarment actions in subsection G of Section 5

of these Procedures; or (Emphasis added by

Respondent)

In 1976 the Arkansas Supreme Court interpreted an

earlier version of the “Procedures” in the case of Jn re Louis

Art Doddrill, 260 Ark. 223, 538 S.W.2d 549 (1976), where

the Court held that the circuit court had the power and

authority to impose a lesser penalty. Although a different

version of the “Procedures” are now in existence the relevant

portions concerning the imposition of a lesser penalty remain

substantial identical. Because of the short length of the

eT eT “

decision in Doddrill the full decision of the Court is quoted

herein as follows:

In February, 1975, the circuit court rendered a

judgment suspending petitioner’s license to

practice law for twelve months and ordering that

his license be reinstated thereafter only upon the

petitioner’s satisfactory passing the regular

examination for admission to the Bar administered

by the State Board of Bar Examiners. Petitioner

argues that the provision of the court’s judgment

which requires him to satisfactory pass the regular

bar examination is a nullity because the circuit

judge was without the power or authority to

impose such a condition on the reinstatement of

his suspended license. Therefore, petitioner

asserts that since the one year period of suspension

is completed his license shall be forthwith

reissued to him.

Proceedings involving the disbarment of an

attorney are civil in nature. Hurst v. Bar Rules

Committee of the State of Arkansas, 260 Ark. 223,

224, 538 S.W.2d 549, 202 Ark. 1101, 155 S.W.2d

697 (1941). Amendment 28 to the Arkansas

Constitution (1874) provides:

The Supreme Court shall make rules

regulating the practice of law and the

professional conduct of attorneys at

Law.

Rule 5 of our Supreme Court Rules on

Professional Conduct (1973), promulgated

pursuant to Amendment 28, provides in pertinent

part:

If the Judge or Chancellor finds,

upon the hearing before him, that

the attorney has been guilty of

professional misconduct, he shall

reprove, reprimand, suspend, or disbar

such attorney, as the testimony may

watrant ...

Either the Committee or the attorney

defendant may appeal to the Supreme

Court from the action taken by the Judge

or Chancellor. ...

Further, as to jurisdiction, it was succinctly said

in Feldman v. State Board of Law Examiners, 438

F.2d 699 (8th Cir. 1971):

The principle is firmly established that

the judicial branch of the government,

acting through the courts, has exclusive

jurisdiction to admit, control and disbar

attorneys.

Here, in a disbarment proceeding, the trial court

clearly had jurisdiction with the power and

authority to impose the lesser penalty; i.e. to

conditionally suspend petitioner’s license “as the

testimony may warrant....” which we equate

with the imposition of reasonable conditions upon

termination of the suspension. If the condition was

unacceptable when imposed, petitioner’s remedy

was by appeal to test the reasonableness of the

condition. Admittedly, petitioner failed to

exercise his right of appeal within the proper time.

Consequently, he is not entitled to a review of

his petition which asserts that the court was

without the power and authority to require him to

pass the bar examination as a condition to the

reinstatement of his license.

Petition denied. (Emphasis added by Respondent)

It is with this background that the Arkansas Supreme

Court considered the within case in view of the due process

and equal protection issues presented. In Wilson v. Neal, 341

Ark. 282, 16 S.W.3d 228 (2000), Justice Brown addressed

the five-year suspension issue under the present procedures

as follows:

He maintains, however, that our Procedures

should be construed so as to limit the circuit judge

and this court to a one-year suspension. That is

not a correct reading of our Procedures. Under

the Procedures in force in 1990, they provided

that the Committee was authorized to suspend an

attorney from the practice of law for one year.

But, a separate section of the Procedures sets forth

authority of the circuit judge as opposed to the

Committee, once a disbarment action has been

filed in that court. If a finding is made that one or

more of the Model Rules of Professional Conduct

have been violated, the circuit judge in a

disbarment action “shall caution, reprimand,

suspend, or disbar such attorney as the evidence

shall warrant.” 1990 Procedures, §5G. (2). Thus,

the whole panoply of sanctions is available to a

circuit judge and, concomitantly, to this court.

And there is no basis for concluding that because

the Committee can suspend a lawyer from the

practice for up to one year, circuit judges are

similarly limited when meting out sanctions in a

disbarment action. Our rules are so clear on this

point that there is no valid basis for invoking the

canons of statutory construction, as Justice Smith

has done. To do so takes a limitation on the

Committee’s power and impresses it on the circuit

judges in disbarment proceedings, which was

never contemplated by our Procedures. In sum,

the circuit judge in this case had the authority to

suspend Mr. Wilson from the law practice for five

years.

Nor do I see that Mr. Wilson’s due process rights

were jeopardized by imposition of a sanction

(five-year suspension) of which he contends he

had no notice. Again, our Procedures clearly give

circuit judges full authority to suspend as the

evidence warrants in disbarment matters. This

court has found a violation of an attorney’s due

process rights when that attorney was not notified

of a specific rule violation for which he or she

might have been sanctioned. See, e.g., Colvin v.

Committee on Professional Conduct, 305 Ark.

239, 806 S.W.2d 385 (1991). Here, though, Mr.

Wilson was fully apprised of the fact that his

sanction might be disbarment. Under these facts

it makes little sense to contend that the assessment

of a lesser sanction which is authorized by our

Procedures violated his right to due process.

Petitioner’s argument before the Arkansas Court, as here,

is that the “sanctions” section of the “Procedures” limits the

committee’s authority to suspend for one year and that the

circuit judge is equally limited. (§ 7A(3)) Petitioner also

attaches significance to the section titles contained in the

“Procedures” and argues that a section entitled “Procedure”

(Section 5) cannot give authority for “sanctions” which

petitioner argues must be found exclusively in the section

so titled. (Section 7) The Arkansas Supreme Court has elected

to name the entire document regulating professional conduct

as “Procedures” even though the document clearly describes

the sanctions that can be rendered. The “Procedures” also

prescribe the committee’s jurisdiction to impose sanctions

extending from a warning to a suspension not to exceed one

year (Sec. 7A(1), (2), and (3). The committee has no

jurisdiction regarding disbarment other than to cause a

complaint to be prepared and filed with the circuit court under

sub-section (g) of Section 5 of the Procedures. (Procedures,

Section 7A(4). Jurisdiction for the disbarment action

proceeds under Section 5G which specifically gives the

Circuit Judge authority to dismiss, caution, reprimand,

suspend or disbar “as the evidence may warrant.”

A reading of the procedural rules by the petitioner at

the time the petitioner pled guilty would have informed

him that a disbarment action by the committee was

mandatory. (Section 6B(1)) of the Procedures. A reading of

the next paragraph of Section 6B would have advised the

petitioner that an action for disbarment “shall proceed” in

accordance with “sub-section G of Section 5 of these

Procedures”. A reading of sub-section G of section 5(2) of

the procedures also would have informed the petitioner that

the circuit judge would have authority to dismiss the

complaint, issue a caution, reprimand, suspension or

disbarment “as the evidence may warrant.” Had there been

any doubt remaining in the petitioner’s mind at that time

elementary research of Arkansas decisions interpreting the

“Procedures” would have led him to Jn re Louis R. Doddrill,

260 Ark. 223, 538 S.W.2d 549 (1976) where the court held

that the trial court had authority to require the petitioner to

retake the bar examination as the imposition of a lesser

penalty.

B. Rulings By Arkansas’ Courts in Similar Attorney

Disciplinary Matters Have Not Reached Disparate

Results. (Pg. 15)

1. A comparison of the Wilson and Matthews

proceeding.

First, Mr. Wilson never argued the comparisons between

the Matthews (a white attorney) proceedings and his own

(an African-American attorney) proceedings before the

Arkansas Supreme Court. As such, the Court should not

entertain them now. However, if the Court decides to

compare the proceedings involving Mr. Matthews and

himself, a full and accurate review of the facts of each case

must be presented. The facts in Mr. Matthew’s case are

established in Neal v. Matthews, 342 Ark. 566, 30 S.W.3d

92 (2000). Mr. Matthews pled guilty to two counts of bribery

of a small business investment official, a federal

misdemeanor in violation of 18 U.S.C. § 215. Matthews

received two twelve month prison sentences, with four

months of the second sentence to run concurrent with the

first. Ultimately, he served fourteen months and there was

no restitution to be paid. The trial judge sanctioned

Mr. Matthews by suspending his license for 14 months;

running the suspension retroactively and immediately

reinstating him to the practice of law.

Mr. Wilson pled guilty to three counts of 18 U.S.C. § 658,

knowingly disposing of soybeans and rice that were mortgaged

and pledged to the FmHA, and two counts of violating

18 U.S.C. § 641, knowingly taking money from a Department

of Agriculture bank account and using it for unapproved

purposes. All were misdemeanor violations. Mr. Wilson was

sentenced to four and one half months in prison with three years

of probation.

After disbarment trials and appeals of those trials, both

Wilson and Matthews received a suspension of their respective

law licenses for five years. It would seem that any disparity

due to the circuit judges in this case has been cured by the

Arkansas Supreme Court.

2. A comparison of the Meurer and Hollingsworth

proceedings.

Mr. Wilson never argued the comparisons between the

Meurer (a white attorney) proceedings and the Hollingsworth

(an African-American attorney) proceedings before the

Arkansas Supreme Court. The Court should not entertain them

now. However, if the Court decides to compare the proceedings

involving Mr. Meurer and Mr. Hollingsworth, a full and accurate

review of the facts of each case must be presented. Mr. Meurer

was retained by his client in February, 1997, to file a Chapter

13 bankruptcy petition and was paid a sum of money for his

services. Mr. Meurer never filed the petition despite numerous

communications from his client. Subsequently, his client’s home

was lost in foreclosure and she filed her grievance against

him with the Committee. The Committee issued a sanction

which was appealed by Mr. Meurer. The appeal was de novo to

the Committee. On February 12, 1999, Findings of Fact and

Consent to Discipline Order (Consent Order) was entered.

(See Respondent’s Appendix) The Order evidences that

Mr. Meurer entered into this Order with the consent of his

complaining client. In the Order, Mr. Meurer accepted a

reprimand as a sanction for his professional misconduct.

As part of the sanction, Mr. Meurer agreed to pay $18,000 in

restitution to his client in equal monthly payments of $300.

The $18,000 represents the client’s lost equity in her home that

she lost in the foreclosure. The $18,000 was not money taken

from the client as Mr. Wilson asserts.

Meurer failed to make the first payment. The Committee

then filed a Petition to Show Cause with the Arkansas Supreme

Court. Mr. Meurer personally appeared before the Arkansas

Supreme Court and admitted his failure to comply with the

Consent Order. Mr. Meurer then made certain statements to

the Court and filed an affidavit that was later determined to be

untrue. On September 23, 1999, the Arkansas Supreme Court

found Mr. Meurer in contempt and reinvested the Committee

with jurisdiction to recommend a sanction for his contempt.

See In re Meurer, 338 Ark. 601, 999 S.W.2d 196 (1999).

The Committee recommended disbarment which it completed

on June 22, 2000. See In re Meurer, 341 Ark. _, 23 S.W.3d

220 (2000). Mr. Wilson is incorrect in his petition when he

stated that Mr. Meurer was allowed to voluntarily surrender his

license. It is true that in the fall of 1999, the Committee

suspended Mr. Meurer’s license when he defaulted on

two complaints filed against him by former clients.

(See Respondent’s Appendix) Neither complaint involved the

theft of client funds.

The details of the Hollingsworth proceedings can be found

at Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999).

Mr. Hollingsworth was representing a decedent’s estate.

He placed the estate’s funds in his client trust account, instead

of opening a separate trust account. During the five plus years

that he represented the estate, Mr. Hollingsworth failed

to file required and appropriate accountings and notices

to interested parties which prevented discovery of

his misconduct. At one point, the estate balance in

Hollingsworth’s trust account was $107,888.07. The balance

of all Mr. Hollingsworth’s client trust moneys was $182.62,

a difference of $107,705.45. The Hollingsworth opinion

found that Mr. Hollingsworth acted almost entirely without

authority of the Probate Court and used the estate’s money

for his own purposes for a period exceeding five years. True,

by the time of the disbarment hearing Mr. Hollingsworth

had repaid the principal of the sums misappropriated; he had

not repaid the estate the interest lost on those moneys.

True, the trial Court only sanctioned Mr. Hollingsworth with

a six month suspension and on appeal the Arkansas

Supreme Court reversed and remanded the sanction for

disbarment which was completed on November 11, 1999,

See In re Hollingsworth, 339 Ark. _,4S.W.3d 492 (1999).

Mr. Wilson alleges that the two attorney discipline cases

evidence a violation of the equal protection clauses of the

Fourteenth Amendment. It is obvious that any reasonable

comparison does not support such a contention.

PERCEIVED MISSTATEMENTS OF FACT OR LAW

IN THE PETITION BEARING ON WHAT ISSUES

PROPERLY WOULD BE BEFORE THE COURT:

1. The petitioner’s statement that “These misdemeanor

counts were modified to eliminate all elements of culpability

from 18 U.S.C. § 558 and 18 U.S.C. § 641, except the

‘knowing’ element,” is perceived by the respondent as a

misstatement. (Petition, Page 3)

2. Petitioner’s statement that he was notified of the

pending disciplinary action by “general mail” is perceived

by the respondent as a misstatement. (Petition, page 3)

3. Petitioner’s statement that he objected to the initiation

of the disciplinary proceedings on the basis of violations of

his constitutional due process rights, is perceived by the

respondent as a misstatement. (Petition, page 3)

4. Petitioner’s inference that he did not have an attorney

representing him at the initial stage of the proceedings is

perceived by the respondent as a misstatement. (Petition,

page 3-4)

5. Petitioner’s statement that the disbarment was based

upon “petitioner’s actions” which occurred in 1981 and 1982

is perceived by the respondent as a misstatement because

the disbarment proceedings were based upon respondent’s

subsequent “conviction.” (Petition, Page 5)

6. Petitioner’s statement that the respondent’s filing of

a petition for writ of certiorari to the Arkansas Supreme Court

was because the punishment imposed was not as severe as

requested is perceived by the respondent as a misstatement.

(Petition, Page 5) The petition for writ of certiorari to the

Arkansas Supreme Court was based upon the trial judge’s

lack of jurisdiction to hear the matter.

7. The petitioner’s statement that there was a “total lack

of any established standards to be applied by the judges

and justices of Arkansas Courts in imposing sanctions”

is perceived by the respondent to be a misstatement.

(Petition, Page 12 and 21)

8. Petitioner’s statement that it was determined by the

Arkansas Supreme Court that “no statute of limitations

applied to attorney disciplinary proceedings” is perceived

by the respondents is a misstatement. (Petition, Page 21)

9. Petitioner’s statement that the Arkansas Supreme

Court held that “duly elected judges within the jurisdiction

where the complaint was filed (if African American) do not

assume the same judicial authority to hear cases and causes

authorized by Article 7 of the Arkansas Constitution” is

perceived by the respondent as a misstatement. (Petition,

page 21)

10. Petitioner’s statement that the Arkansas Supreme

Court under authority of Amendment 28 of the state

constitution has “the right to displace duly elected judges

even where there has been no recusal of the duly elected

judge” is perceived by the respondent as a misstatement.

(Page 21)

11. Petitioner’s statement that the Arkansas Supreme

Court held that the ruling of a “defacto judge did not activate

the doctrines of res judicata, collateral estoppel or double

jeopardy and any subsequent prosecution of the same party”

is perceived by the respondent as a misstatement. (Petition,

Page 21)

12. Petitioner’s factual review of Jn re Meurer contains

several statements that are perceived by the respondent

as misstatements. (Petition, Page 18) The specific

misstatements are discussed in respondent’s brief.

CONCLUSION

For all of the foregoing reasons, Respondent respectfully :

requests that this honorable Court deny the petition. :

Respectfully submitted,

LYNN WILLIAMS RoBeERT J. DONOVAN

STAFF LITIGATION ATTORNEY Counsel of Record

ARKANSAS SUPREME COURT DAGGETT, VAN DOVER,

COMMITTEE ON PROFESSIONAL DONOVAN & Perry, PLLC

CONDUCT P.O. Box 646

Justice Building - Room 110 12 South Poplar Street

625 Marshall Street Marianna, AR 72360

Little Rock, AR 72201 (870) 295-3434

(501) 376-0313

Attorneys for Respondent

APPENDIX

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APPENDIX A — FINDINGS AND CONSENT ORDER

OF DISCIPLINE OF THE SUPREME COURT

COMMITTEE ON PROFESSIONAL CONDUCT

IN RE ROBERT FULLER MEURER, CPC DOCKET

NO. 98-057 DATED FEBRUARY 8, 1999

AND FILED FEBRUARY 12, 1999

BEFORE THE SUPREME COURT COMMITTEE

ON PROFESSIONAL CONDUCT

IN RE: ROBERT FULLER MEURER

ARKANSAS BAR ID#851908

CPC DOCKET NO. 98-057

FINDINGS AND CONSENT ORDER OF DISCIPLINE

The formal charges of misconduct arose from the

complaint of Tressia Russell. Ms. Russell was represented

by Robert Fuller Meurer, an attorney residing and primarily

practicing in Searcy, White County, Arkansas in the matter

of a possible bankruptcy which was never filed. Mr. Meurer

requested a de novo hearing before the Committee, but

immediately prior to the scheduled hearing he entered into

the following Findings and Consent Order of Discipline

which was accepted and approved by the Committee.

Ms. Russell referred matters to the Committee that

occurred from February, 1997 until the present. Ms. Russell

met with Mr. Meurer in February, 1997 for a consultation

on filing a bankruptcy petition under Chapter 13. Among

other indebtedness, Ms. Russell was in arrears on her home

mortgage payments. She was quoted an advance fee of

$300.00 which she paid by money order and delivered to

Mr. Meurer by United States Mail on March 21, 1997. No

petition for bankruptcy was filed.

on tae ENC Pa I ak oe iad

Appendix A

Ms. Russell confronted Mr. Meurer in July, 1997

regarding the status of the bankruptcy petition after she saw

a notice in the Des Arc newspaper of a foreclosure sale of

her home set for November 12, 1997. Mr. Meurer denied

that Ms. Russell had ever paid him the advance fee. On

August 11, 1997, she presented him a copy of the United

States Post Office trace and copy of the money order

personally endorsed by Mr. Meurer on March 21, 1997. He

then proceeded to obtain information from her to file a

bankruptcy petition which he again never filed.

Consequently, Ms. Russell relied on Mr. Meurer’s

representations that he was filing a bankruptcy petition and

that he was taking care of the matter. Ms. Russell in reliance

on Mr. Meurer’s statements and believing that the foreclosure

proceedings were stayed did not attend on the date scheduled

for the foreclosure sale of her home. As a consequence of

her mistaken belief, she sought no alternative financing and

did not attempt to bid on the home at the sale. Ms. Russell’s

home was sold on November 12, 1997 and she lost the

$18,000.00 in equity she had in the home. She requested her

file from Mr. Meurer on April 1, 1998 and after a delay

received it. To this date, Mr. Meurer has yet to refund any of

the $300.00 fee paid by Ms. Russell.

Although Mr. Muerer initially asserted that he engaged

in no improper, unethical or unprofessional conduct, upon

reconsideration he offered to and agreed to enter into a

consent to discipline pursuant to Section 8C(1)(c) of the

Procedures of the Arkansas Supreme Court Regulating

Professional Conduct of Attorneys at Law, as revised January

15, 1998. As part of the offer seeking discipline by consent,

the attorney, after consultation with his former client, agreed

Mh CO Re I mR a rare ne Onna eee

Appendix A

to compensate her for the loss of the equity in her home.

Upon consideration of the formal complaint response herein,

and the proposed consent to discipline, the Committee on

Professional Conduct finds that:

1. Mr. Meurer’s conduct violated Model Rule 1.1,

Arkansas Rules of Professional Conduct, when he failed to

file a bankruptcy petition and protect Ms. Russell’s property

interest manifesting an utter lack of thoroughness and

preparation necessary to represent his client, Ms. Russell.

Model Rule 1.1, Arkansas Rules of Professional Conduct

requires in pertinent part that a lawyer shall provide

competent representation to a client, including the

thoroughness and preparation reasonably necessary for the

representation.

2. Mr. Meurer’s conduct collectively and singularly,

violated Model Rule 1.3, Arkansas Model Rules of

Professional Conduct when despite representing Ms. Russell

for almost one year, he completely and totally failed to take

any legal action in Ms. Russell’s behalf. This nonfeasance

occurred despite Mr. Meurer knowing the date Ms. Russell’s

home was going to be sold in a foreclosure sale. Model Rule

1.3, Arkansas Model Rules of Professional Conduct requires

that a lawyer shall act with reasonable diligence and

promptness in representing a client.

3. Mr. Meurer’s conduct collectively and singularly,

violated Model Rule 1.4(a), Arkansas Model Rules of

Professional Conduct when he failed to inform Ms. Russell

that he was not going to file a bankruptcy petition or that he

did not file the bankruptcy petition prior to Ms. Russell

Appendix A

foreclosure sale date. After preparing a petition for chapter

seven protection in March, when the client had chosen a

chapter thirteen petition, he failed to oversee that the correct

petition was filed despite numerous telephone calls from Ms.

Russell from March to July, 1997. Additionally, after he

received her April 1, 1998 letter for the return of her file, he

unreasonably delayed delivery of her file to her and her

representative. Model Rule 1.4(a), Arkansas Model Rules

of Professional Conduct requires that a lawyer shall keep a

client reasonably informed about the status of a matter and

promptly comply with reasonable request for information.

4. Mr. Meurer’s conduct violated Model Rule 1.16(d),

Arkansas Model Rules of Professional Conduct, when he

failed to promptly return Ms. Russell’s file containing her

papers upon her request of April 1, 1998, and by not

refunding any of the $300.00 fee paid to him for service he

failed to render to her. Model Rule 1.16(d) requires, in

pertinent part, that upon termination of representation, a

lawyer shall take steps to the extent reasonably practicable

to protect the client’s interests, such as surrendering papers

and property which the client is entitled and refunding any

advanced payment of the fee that has not been earned.

5. Mr. Meurer’s conduct violated Model Rule 8.4(c),

Arkansas Model Rules of Professional Conduct, when during

the entire period of his representation of Ms. Russell, he

mislead her into believing that he was filing a bankruptcy in

her behalf providing her protection from her creditors and

misleading Ms. Russell when he stated to her that he would

“take care of everything” regarding the foreclosure of her

house when in fact he did nothing. As a result, Ms. Russell

Appendix A

relied on Mr. Meurer and did not attend the foreclosure sale

and attempt to take advantage of any of her possible

remedies, which included hiring alternative counsel to file a

bankruptcy petition. Model Rule 8.4(c), Arkansas Medel

Rules of Professional Conduct requires that a lawyer shall

not engage in conduct involving dishonesty, fraud, decent or

misrepresentation.

WHEREFORE, in accordance with the consent to

discipline presented by Mr. Meurer and the Executive

Director, James A. Neal, it is the decision and order of the

Arkansas Supreme Court Committee on Professional

Conduct that ROBERT FULLER MEURER, Arkansas Bar

ID #85108, be, and hereby is REPRIMANDED for his

conduct in this matter. Further, pursuant to Sections 8A(1)

and 8A(3), it is the decision mid order of the Committee

that Mr. Meurer be, and hereby is, assessed the costs in this

matter of in the sum of $150.00 due and payable to the

Committee at its offices on March 1, 1999, and ordered to

make restitution to Ms. Russell in the amount of Eighteen

Thousand Dollars and No Cents ($18,000.00). To evidence

the terms of the restitution, Mr. Meurer will prepare and

execute a promissory note in the amount of the restitution

($18,000.00) in favor of Ms. Russell with payment in equal

monthly payments of $300.00 due the 1* of each month

beginning February 1, 1999, until paid in full and otherwise

reasonably satisfactory to Ms. Russell. Wi'lful failure to

make timely payments, in addition to the note’s provisions

for default, shall also be grounds for a citation of contempt

by this Committee before the Arkansas Supreme Court and

grounds for further sanction under the Model Rules and the

Procedures of this Committee.

Appendix A

ARKANSAS SUPREME COURT

COMMITTEE ON PROFESSIONAL

CONDUCT

By: s/ Carlton Bailey

Carlton Bailey

Chairman

Date: February 8, 1999

APPENDIX B — FINDINGS AND ORDER OF THE

SUPREME COURT COMMITTEE ON PROFESSIONAL

CONDUCT IN RE ROBERT FULLER MEURER,

CPC DOCKET NO. 99-065 DATED SEPTEMBER 29,

1999 AND FILED OCTOBER 22, 1999

BEFORE THE SUPREME COURT COMMITTEE

ON PROFESSIONAL CONDUCT

IN RE: ROBERT FULLER MEURER

ARKANSAS BAR ID#85108

CPC DOCKET NO. 99-065

FINDINGS AND ORDER

The formal charges of misconduct upon which this Order

is based arose from the complaint of Deborah Mosley. Ms.

Mosley retained Robert Fuller Meurer, an attorney primarily

practicing in Searcy, White County, Arkansas to appeal the

White County Chancery Judge’s adverse decision rendered

June 24, 1997, regarding the custody of her children. Ms.

Mosley paid Mr. Meurer $3,500.00. On July 7, 1997, Mr.

Meurer timely filed the notice of appeal with the White

County Circuit Clerk. Ms. Mosley subsequently attempted

to contact Mr. Meurer on the status of her appeal with little

success. Ms. Mosley was once told by Mr. Meurer that her

appeal was pending in the Arkansas Court of Appeals. Later,

Ms. Mosley phoned Les Steen, Clerk of the Arkansas Court

of Appeals, and discovered no appeal was filed. As of March

23, 1999, no appeal has been filed.

Mr. Meurer was personally served with a copy of the

Formal Complaint, pursuant to Section 5E, Procedures of

the Arkansas Supreme Court Regulating Professional

Appendix B

Conduct of Attorneys at Law (Procedures), as revised January

15, 1998. Mr. Meurer failed to respond to the Complaint.

His failure to respond timely to the Complaint constitutes

admission of the factual allegations contained in the

Complaint pursuant to Section 51(4) of the Procedures.

Upon consideration of the formal complaint, the failure

to file a response herein and the Arkansas Model Rules of

Professional Conduct, the Committee on Professional

Conduct finds:

1. That Mr. Meurer’s conduct violated Rule 1.3 when

he accepted a $3,500 retainer to appeal his client’s case of

an adverse child custody decision by the White County

Chancery Judge and then did not appeal the decision. Other

than filing the notice of appeal, Mr. Meurer took no further

action, i.e. ordering the transcript, lodging the transcript and

filing the necessary briefs or motions to protect Ms. Mosley’s

appeal. Model Rule 1.3 requires that a lawyer act with

reasonable diligence and promptness in representing a client.

2. That Mr. Meurer’s conduct violated Rule 8.4(d) of

the Arkansas Model Rules of Professional Conduct when he

failed to perfect and file the appeal of his client, Ms. Mosley.

His failure effectively denied her right to appeal the adverse

child custody decision of the White County Chancery Court.

Model Rule 8.4(d) states that it is professional misconduct

for a lawyer to engage in conduct that is prejudicial to the

administration of justice.

WHEREFORE, it is the decision and order of the

Arkansas Supreme Court Committee on Professional

Appendix B

Conduct that ROBERT FULLER MEURER, Arkansas Bar

ID #85108, be, and hereby is, SUSPENDED for ONE YEAR

for his conduct in this matter. The suspension shall become

effective as of the date of the filing of this Order with the

Clerk of the Arkansas Supreme Court. Further, pursuant to

Sections 5I(1) and 8A(2) of the Procedures of the Arkansas

Supreme Court Regulating Professional Conduct of

Attorneys at Law, it is the decision and order of the

Committee that Mr. Meurer be, and hereby is, fined in the

amount of $250. The fine is imposed as a separate sanction

for Mr. Meurer’s failure to respond to the complaint.

ARKANSAS SUPREME COURT

COMMITTEE ON PROFESSIONAL

CONDUCT

By: s/ Carlton Bailey

Carlton Bailey

Chairman

Date: 9-29-99

10a

APPENDIX C — FINDINGS AND ORDER OF THE

SUPREME COURT COMMITTEE ON PROFESSIONAL

CONDUCT IN RE ROBERT FULLER MEURER,

CPC DOCKET NO. 99-071 DATED SEPTEMBER 239,

1999 AND FILED OCTOBER 22, 1999

BEFORE THE SUPREME COURT COMMITTEE

ON PROFESSIONAL CONDUCT

IN RE: ROBERT FULLER MEURER

ARKANSAS BAR ID#85108

CPC DOCKET NO. 99-071

FINDINGS AND ORDER

The formal charges of misconduct upon which this Order

is based arose from the complaint of Kenneth Konopinski.

In July, 1998, Mr. Konopinski retained Robert Fuller Meurer,

an attorney primarily practicing in Searcy, White County,

Arkansas for $150.00 for Mr. Meurer to file for an

expungement of a criminal conviction. Mr. Meurer took no

action. In November, 1998, Mr. Konopinski retained Mr.

Meurer to represent Mr. Konopinski in a real property

dispute. Mr. Konopinski paid $1,200 of the $2,000 requested

by Mr. Meurer. No action was taken by Mr. Meurer. Prior to

filing his complaint Mr. Konopinski had attempted to contact

Mr. Meurer by telephone since December, 1998 without

success. On March 24, 1999, Mr. Konopinski sent Mr.

Meurer a certified letter to communicate with Mr. Meurer.

The letter was returned to Mr. Konopinski, “unclaimed.”

Mr. Meurer was personally served with a copy of the

Formal Complaint, pursuant to Section SE, Procedures of

the Arkansas Supreme Court Regulating Professional

lla

Appendix C

Conduct of Attorneys at Law (Procedures), as revised January

15, 1998. Mr. Meurer failed to respond to the Complaint.

His failure to respond timely to the Complaint constitutes

admission of the factual allegations contained in the

Complaint pursuant to Section 51(4) of the Procedures.

Upon consideration the formal complaint, the attorney’s

failure to respond, and the Arkansas Model Rules on

Professional Conduct herein, the Committee on Professional

Conduct finds:

1. That Mr. Meurer’s conduct violated Model Rule 1.1,

when in July, 1998, he was retained by Mr. Konopinski by

verbal agreement for $150.00 to represent him in the

expungement of a criminal record and failed to take any

action; when in November, 1998, he was again retained by

Mr. Konopinski to represent him in a real property dispute

for which the attorney received 60% of the requested fee in

advance and failed to take action. Model Rule 1.1 requires,

in pertinent part, that a lawyer provide competent

representation to a client, including the thoroughness

reasonably necessary for the representation.

2. That Mr. Meurer’s conduct violated Model Rule 1.3

when in July, 1998, he was retained by Mr. Konopinski for

$150.00 to represent him in the expungement of a criminal

record and failed to take any action; and, when in November,

1998, he was again retained by Mr. Konopinski to represent

him in a real property dispute for which the attorney received

60% of the requested fee in advance and failed to take action.

Model Rule 1.3 requires that a lawyer act with reasonable

diligence and promptness in representing a client.

12a

Appendix C

3. That Mr. Meurer’s conduct violated Rule 1.4(a) of

the Arkansas Model Rules of Professional Conduct, when

despite numerous attempts by Mr. Konopinski to contact Mr.

Meurer by telephone, the client was unable to communicate

with Mr. Meurer; when on March 24,1999, Mr. Konopinski

sent Mr. Meurer a certified letter to communicate with Mr.

Meurer and the letter was return to Mr. Konopinski,

“unclaimed.” Model Rule 1.4(a) requires that a lawyer keep

a client reasonably informed about the status of a matter and

promptly reply with reasonable requests for information.

WHEREFORE, it is the decision and order of the

Arkansas Supreme Court Committee on Professional

Conduct that ROBERT FULLER MEURER, Arkansas Bar

ID #85108, be, and hereby is, SUSPENDED for TWO

YEARS for his conduct in this matter. The suspension shall

become effective as of the date of the filing of this Order

with the Clerk of the Arkansas Supreme Court.

ARKANSAS SUPREME COURT

COMMITTEE ON PROFESSIONAL

CONDUCT

By: s/ Carlton Bailey

Carlton Bailey

Chairman

Date: 9-29-99

13a

APPENDIX D — MEMORANDUM OPINION AND

ORDER OF REMAND AND JUDGMENT OF THE

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF ARKANSAS, WESTERN

DIVISION DATED MARCH 18, 1996

United States District Court,

E.D. Arkansas,

Western Division.

JAMES A. NEAL, as Executive Director of the Supreme

Court Committee on Professional Conduct,

Plaintiff,

JIMMIE L. WILSON,

Defendant.

JIMMIE L. WILSON,

Plaintiff,

¥.

JACK HOLT, JR., Robert H. Dudley, Tom Glaze, and

Donald Corbin, Members of the Supreme Court of the State

of Arkansas, John Lineberger, Chancery J udge of the Fourth

Judicial District of Arkansas; James Neal, Director of the

Arkansas Supreme Court Committee on Professional

Conduct; the Members of the Arkansas Supreme Court

Committee on Professional Conduct; Robert Donovan,

ET ee ee trees Witte

ete wet ERR al SrA eR Tor et

MeL INLETS PROT a SEES eet

it SE owe EE a ia ae

ae ENS SM TC Rt ey RS

l4a

Appendix D

Attorney for the Arkansas Supreme Court Committee on

Professional Conduct; John Doe Defendants and other

unknown, each individually and in his official capacity

as set out herein,

Defendants.

Civil No. H-C-95-54.

March 18, 1996.

* * *

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

This is a case in which the justice system of Arkansas,

represented by the lawyers and the judiciary of this state,

has not done itself proud. The long, tortured, and torturous

route of this case through the courts of Arkansas, both state

and federal, over many long years has ended up about where

it started. In this court’s view, this has resulted from the

numerous lawyers in this case manipulating the system so

as to derail it and bring this case to the stalemate that

presently exists. The court also believes that the record

reflects that the judiciary is not entirely blameless in allowing

this to happen.

Although the conduct of Mr. Jimmie L. Wilson which

will be described in detail below apparently occurred in 1981

and 1982, and although this case was filed in the Circuit

15a

Appendix D

Court of Phillips County in October of 1991, this matter has

gone virtually nowhere during the intervening years. Sadly,

when this court ends this portion of the matter as it intends

to do and places the case back on course, it will be sitting

virtually at the same point on the course where it started.

Background.

As indicated, this all started in 1981 and 1982 when

Jimmie L. Wilson, an African-American lawyer, farmer, state

legislator, and civil rights activist from the Mississippi River

delta region of Eastern Arkansas at or near Helena, stole

money from the United States by scheming to sell mortgaged

property and by withdrawing funds for unauthorized purposes

by lying about the intended use of such funds. His conduct

is described in United States v. Wilson, 806 F.2d 171

(8th Cir.1986), an opinion resulting from his first appeal of

a conviction by a jury, thusly:

Defendant practices law and operates a farm in

Helena, Arkansas. Between February 1980 and

April 1982 he borrowed approximately

$775,230.00 from the FmHA for farm operating

expenses with the loans primarily secured by an

FmHA lien on his crops. To insure compliance

with the security agreement entered into at the

time of the loans, the FmHA circulated defendant’s

name on a list of FmHA borrowers to the grain

dryers in the region of his farm. The grain dryers

would then properly issue checks to defendant and

the FmHA as co-payees as payment for crops

transported from the farm.

16a

Appendix D

Between 1981 and December 1982, defendant

made multiple sales of grain in the names of

Willie Weaver and Reggie Wilson. Willie

Weaver, defendant’s cousin and co-defendant

below, worked as a farm manager for defendant.

Reggie Wilson is defendant’s son and is a student,

not engaged in farming. The government

presented evidence that the proceeds from the

sales made by Weaver and the junior Wilson,

which were issued clear of the FmHA lien, went

variously into defendant’s law firm account, to

cash, into his farm expense account, or toward

payment on a bill for farm supplies.

In May 1981, the FmHA required that supervised

joint bank account be established in the names of

the FmHA and defendant and his wife, Henrietta.

FmHA loan proceeds were to be deposited into

the joint account, and defendant was required to

advise the FmHA of his intended use of funds

prior to the time of any withdrawal. On various

occasions, defendant would apply to the FmHA

to have funds transferred from the joint account

to his farm operating account from which he

would retransfer the money to his law firm account.

A substantial portion of funds was used for the

purchase and maintenance of a Mercedes Benz.

Id. at 173.

In that decision and a prior decision later vacated by the

court, the Court of Appeals held that the Supreme Court

17a

Appendix D

decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,

90 L.Ed.2d 69 (1986) did not apply retroactively.!

Subsequently, in Griffith v. Kentucky, 479 U.S. 314, 107

S.Ct. 708, 93 L.Ed.2d 649 (1987) the United States Supreme

Court held that, indeed, Batson should be applied

retroactively. The Court of Appeals then vacated its prior

decisions, United States v. Wilson, 815 F.2d 52 (8th Cir.

1987), and remanded the matter to the trial court to determine

whether the requirements of Batson had been violated.

Judge G. Thomas Eisele held a hearing and determined

that the government had adequately met the test required by

Batson by showing that there were other legitimate non-

discriminatory reasons for the prosecutor having exercised

his peremptory challenges? to exclude certain black members

of the jury panel from serving on the case. The Court of

Appeals for the Eighth Circuit took the matter en banc and

ruled, 7-4, that Judge Eisele’s decision was clearly erroneous

and that, in fact, the requirements of Batson had been

violated. The conviction was reversed. United States v.

Wilson, 884 F.2d 1121 (8th Cir.1989).

1. Of course, Batson held that “the Equal Protection Clause

forbids the prosecutor to challenge potential jurors solely on account

of their race or on the assumption that black jurors as a group will

be unable impartially to consider the [government’s] case against a

black defendant.” Batson, 476 U.S. at 89, 106 S.Ct. at 1719.

2. Of course, since Batson, the juror challenges that have been

permitted for centuries at this stage of a trial are misnamed, since

“peremptory challenge” means: “The right to challenge a juror

without assigning, or being required to assign, a reason for the

challenge.” Black’s Law Dictionary 1136 (6th Ed.1990).

18a

Appendix D

In August of 1990 a plea bargain agreement was reached

and Mr. Wilson, on August 22, 1990, appeared before Judge

Stephen Reasoner and pled guilty to an information charging

him with five misdemeanor counts involving essentially the

same conduct for which he had been initially convicted as a

result of the felony indictment returned by the grand jury. In

pleading guilty to these charges, it appears that he admitted

essentially the same conduct as was charged in the felony

indictment. See pages 19-21 of the transcript of the

sentencing hearing which was attached to the initial

complaint filed in this case in state court. He was sentenced

to a period of incarceration.

On January 10, 1991, Judge G. Thomas Eisele entered

an order in behalf of the entire court for the Eastern District -

of Arkansas, reciting that, with all judges of the court

concurring,’ Mr. Wilson was immediately suspended from

the practice of law in the Eastem District of Arkansas “until

final disposition of any disciplinary proceedings commenced

as a result of any such conviction.” Judge Eisele, again acting

for the entire court, by letter dated January 10, 1991, to James

A. Neal, executive director of the Arkansas Supreme Court

Committee on Professional Conduct, advised the committee

of Mr. Wilson’s conviction, anc advised that he was referring

the matter to the committee “for the institution of a

disciplinary proceeding before the court in which the sole

issue to be determined shall be the extent of the final

3. It was because of this action and his participation in it that

Judge George Howard decided to tecuse in this case and direct that

the matter be transferred to a judge outside the Eastern District of

Arkansas. That action resulted in the case being assigned to this

judge.

19a

Appendix D

disposition to be imposed as a result of the conduct resulting

in the conviction.” (quoting from Rule I-D of the Model

Federal Rules of Disciplinary Enforcement adopted by the

court’s for the Eastern District of Arkansas.)

Mr. Neal advised Mr. Wilson by letter dated March 29,

1991, of the institution of the proceedings against him, and

advised him of his right to respond to the charges. An attorney

entered an appearance for him and made multiple requests

for an extension of the time required to respond to the

charges. One extension was granted, but subsequent attempts

were denied by a letter to Mr. Wilson’s attorney dated June

10, 1991, in which Mr. Neal explained that he had consulted

with Mr. Eddie Walker,‘ the committee chairman, who had

instructed him to deny the request for an additional extension.

Mr. Wilson made no response to the charges, and by letter

dated July 22, 1991, he was notified that it was “the

unanimous decision of the Committee that your conduct in

this matter violated the Model Rules of Professional

Conduct” and that a disbarment proceeding would be

instituted in the event that Mr. Wilson had not voluntarily

relinquished his license to practice law in Arkansas within

seven days from the receipt of the letter.

On October 9, 1991, a lawsuit was filed in the Circuit

Court of Phillips County, Arkansas, seeking his disbarment.

Subsequently, the regular judges for that circuit recused for

4. Because of claims made in the matter by Mr. Wilson it is,

perhaps, pertinent to note that the court knows that Mr. Walker, the

chairman of the committee at the time, is a fine lawyer practicing in

Fort Smith and was a former Arkansas Worker’s Compensation

Administrative Law Judge. He also happens to be of African descent.

20a

Appendix D

cause and, months later, on February 21, 1992, the Chief

Justice of the Arkansas Supreme Court appointed Judge

Lance Hanshaw from Lonoke, Arkansas, in another judicial

circuit, to preside in the case.

The case rocked along with numerous continuances

being requested and granted until June 19, 1992, when Judge

Hanshaw wrote the attorneys for the parties advising that he

would deny Mr. Wilson’s motion to dismiss the complaint

and would grant the motion for summary judgment filed in

behalf of the committee. In that letter he said that: “The

Defendant’s license to practice law is suspended for a period

of two (2) years and he shall surrender his license to practice

law effective August 1, 1992, and further comply with Rule

11 of the Rules of Professional Conduct adopted March 11,

1985.” The attorney for the committee, Robert Donovan,

whom Mr. Wilson has since made a party to this case, was

directed to draft an order and judgment not inconsistent with

the court’s opinion.

However, some seven months later, for reasons not clear

in the record, by opinion filed February 16, 1993, Judge

Hanshaw apparently changed his mind and granted Mr.

Wilson’s motion to dismiss. Without citing any specific

authority, he seemed to simply hold that “the State

Committee chose to wait, too long, and the defendant’s

motion to dismiss is granted and the State’s complaint for

suspension is dismissed.” No applicable statute of limitations

or other authority was cited for this conclusion.

In Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994)

the court, in an opinion written by Chief Justice Holt,

2la

Appendix D

unanimously reversed the trial court and remanded the case

to Judge Hanshaw with directions that he conduct further

proceedings consistent with the opinion. However, in a letter

dated April 20, 1994, by Judge Hanshaw to the Administrative

Office of the Courts, Judge Hanshaw, incredibly, advised

that it would be necessary to reassign the case to someone

else “since the case has now been reversed and remanded by

Chief Justice Jack Holt, Jr.” In that letter, just as incredibly,

he said:

While my professional desire was to disbar Mr.

Wilson, my research and understanding of the law

was Clearly explained in my opinion. I do so much

disagree with the Chief Justice’s opinion as to

substance and law that I do not think that it would

be appropriate for me to rehear this case.

On May 3, 1994, the acting Chief Justice of the Arkansas

Supreme Court appointed Judge Lineberger to preside in the

case under the authority of Act 496 of 1965 as amended. For

some unknown reason, the order appointing Judge Lineberger

was not filed by the Phillips County Clerk until September

14, 1994.

Again, the case rocked on for month after month with

numerous requests for extensions of time and continuances

being made. By letter dated October 27, 1994, Judge

Lineberger set the matter for hearing on December 15, 1994.

However, after Mr. Wilson filed a motion for continuance,

and after he had also filed a motion asking Judge Lineberger

to disqualify so that Judge Olly Neal could hear the case,

the matter was continued by order dated December 12, 1994.

22a

Appendix D

Subsequently, the case was reset for January 30-31, 1995,

but once again, because Mr. Wilson pointed out that he would

be required to be present at a session of the Arkansas

Legislature during that period, the case was continued by

order dated January 9, 1995. It was finally reset by letter

dated April 26, 1995, to start on June 13, 1995, in Marianna,

Arkansas. Of course, by this time the case was coming up

on its fourth anniversary.

Prior to that time, as the result of a settlement reached

in a federal voting rights case, new electoral sub-districts

were created providing for a majority of black voters in some

electoral sub-districts, including the one in which the Helena,

Arkansas, area is located. Mr. Olly Neal,° an African-

American, was elected to that judgeship. In spite of the fact

that the case was clearly assigned to Judge Lineberger and

that Judge Lineberger had declined to recuse and have the

case reassigned to Judge Neal, Judge Neal attempted to

assume jurisdiction and set a hearing for May 18, 1995. The

committee, through its attorney, Mr. Donovan, appeared on

that date and contested Judge Neal’s jurisdiction to proceed.

Judge Neal ruled that he did have jurisdiction to proceed

in the case and decided it on the merits. In an order signed

5. The committee contends that Judge Neal was disqualified

from hearing the case because he was a law partner of Mr. Wilson

until some time in 1988 and, in fact, was one of the attorneys

representing him in the very criminal proceeding which this

disbarment proceeding is all about. It is contended that he, in fact,

received, either in behalf of himself or in behalf of a client, some of

the funds that were wrongfully obtained by Mr. Neal from the

Farmers Home Administration, and that he, by stipulation, testified

by letter in the criminal trial.

23a

Appendix D

on May 24, 1995, and entered on May 25, 1995, Judge Neal

found that Mr. Wilson had, in fact, violated the Arkansas

ethics rules but directed that the only sanctions imposed

against him would be a letter of reprimand. The committee

sought a writ of certiorari in the Arkansas Supreme Court

and by per curiam opinion delivered on June 12, 1995, the

court, with two justices dissenting, held that Judge Neal did

not have jurisdiction to take the action that he took because

the jurisdiction for the case rested with Judge Lineberger

pursuant to the court’s earlier order. The court found:

Because we find Judge Neal has proceeded in

excess of his authority and jurisdiction, his

directives and orders relating to the action

between petitioner and respondent are quashed.

It appears from the file that Judge Lineberger, on June

13, 1995, was in Marianna prepared to begin the trial.

However, on that same day, Mr. Wilson filed in the United

States District Court for the Eastern District of Arkansas,

Helena Division, a pleading showing that he was represented

by eight separate lawyers or law firms. The pleading was

denominated “Petition for Removal; Petition for Temporary

and Permanent Injunctive Relief; and Complaint at Law.”

In so doing, he not only removed the state disbarment

proceeding from the Circuit Court of Phillips County to

federal court in Little Rock, he also sued about every state

official and lawyer on the other side who had even touched

the file up to that point. Made parties were all of the Supreme

Court justices who had been in the majority on the writ of

certiorari, Judge Lineberger, James Neal, the director of the

Supreme Court Committee on Professional Conduct, and

a . eee

ee eae Ve

24a

Appendix D

each individual member of the committee, Robert Donovan,

the committee’s lawyer, and John Doe defendants “known

and unknown.’

Although there is no evidence which can be gleaned from

the file which, in any way, supports the allegations, it is

alleged, among many other things, that the “Supreme Court

members named herein, acquiesced to the petition of the

defendants, and it is the belief of the plaintiff herein that the

defendants acted conspiratorially to deny the plaintiff,

Jimmie L. Wilson, of his constitutional rights asserted

herein.” It is alleged that it was “the ultimate goal of the

defendants in this cause to destroy the plaintiff's legal

practice, and to damage his ability to be re-elected to public

office by their continuous and unrelenting persecution under

color or law.” Mr. Wilson and his attorneys point to no

evidence to support these claims, and the only circumstance

that might cause him to believe what he says is that these

individuals did not ultimately agree with his position which

he took in this proceeding which was working its way, albeit

slowly, through the justice system.

After the case was filed in federal court in the Eastern

District of Arkansas, the judge to whom it was assigned,

George Howard, held a telephone conference call with

counsel and advised that, since the federal court now had

jurisdiction of the case, it did not appear that the temporary

restraining order requested by Mr. Wilson was necessary.

He also advised counsel that he had had a discussion with

Judge Lineberger by telephone earlier that day and that Judge

6. The court will collectively refer to these parties as “the

State.”

25a

Appendix D

Lineberger recognized that his jurisdiction had ended and

that he did not intend to proceed with the trial which was to

have commenced that day. Counsel agreed that the restraining

order was not necessary, under the circumstances, so no further

action was taken other than the requirement of a cost bond and

some discussion about proceedings that would follow.

While the files have multiplied almost exponentially by

papers submitted by the lawyers since that time, little of a

substantive nature has occurred during the more than nine

months this case has been sitting in this court. Soon after

the case was removed, a motion to remand pointing out

reasons why this court did not have subject matter jurisdiction

was filed, but no action was taken on it before Judge Howard

recused. The file was received by this judge on the afternoon

of March 11, 1996.

Motion to Remand.

The State requests the remand of the disbarment action

to the Phillips County Circuit Court from which it was

removed on June 13, 1995. The State asserts that the removal

was improvident for the following reasons: (1) the matters

sought to be removed are not civil actions within the meaning

of the federal removal statutes and federal removal

jurisprudence; (2) no federal question appears on the face of

the state court complaint; (3) the petition for removal is time

barred; and, (4) there are a number of procedural irregularities

with the removal petition itself.

Wilson opposes remand arguing that removal was both

timely and proper under the applicable removal statutes.

26a

Appendix D

Additionally, Wilson argues that the disbarment proceedings

are quasi criminal in nature and subject to constitutional

safeguards. According to Wilson, the aileged violation of

these constitutional safeguards states a federal cause of action

and establishes the jurisdictional nexus with the petition to

remove. The second amended petition for removal asserts

that removal is based upon 28 U.S.C. § 1443 and § 1446(b).

“The right to removal from a state court to a federal court

exists only in certain enumerated classes of actions, and in

order to exercise the right of removal, it is essential that the

case be shown to be one within one of those classes.”

Schwinn Bicycle Co. v. Brown, 535 F.Supp. 486, 487

(W.D.Ark.1982) (citations omitted). The removal statutes

are strictly construed in favor of state court jurisdiction.

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct.

868, 85 L.Ed. 1214 (1941). Removal is effected when the

notice c . removal is filed in state court. Anthony v. Runyon,

76 F.3d 210 (8th Cir. 1996).

The court has the duty to fully consider the pleadings

filed in this matter and determine whether subject matter

jurisdictions exists. Any action taken by a federal court which

lacks subject matter jurisdiction is a nullity and either party,

even the party that invoked the jurisdiction of the court, can

attack jurisdiction at any time even after judgment is rendered

against him. American Fire & Cas. Co. v. Finn, 341 U.S. 6,

71 S.Ct. 534, 95 L.Ed. 702 (1951).

When determining whether removal is proper, a court

may only examine the face of the complaint and cannot rely

on an anticipated defense raised by the defendants. Franchise

27a

Appendix D

Tax Board of the State of Cal. v. Construction Laborers

Vacation Trust for Southern California, 463 U.S. 1, 103 S.Ct.

2841, 77 L.Ed.2d 420 (1983) (well-pleaded complaint rule).

A federal question must be an essential element of the

plaintiffs complaint to provide grounds for removal. Phillips

Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127, 94 S.Ct.

1002, 1003-04, 39 L.Ed.2d 209 (1974). The plaintiff is, then,

master of the compla‘nt and can generally avoid federal

jurisdiction by omitting claims that arise under federal law.

Gully v. First National Bank in Meridian, 299 U.S. 109, 112-

113, 57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936).

The state court complaint at issue asserts that Wilson

violated the ethical standards for his profession and that

disbarment is warranted under the applicable Arkansas state

rules and procedures regulating professional conduct. The

complaint does not rely upon the Constitution, laws, or

treaties of the United States.

The only federal question raised in this case is by the

defendant. Removal is therefore not proper, Caterpillar Inc.

v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 2430, 96

L.Ed.2d 318 (1987), unless an exception to the well-pleaded

complaint rule applies. Rogers v. Rucker, 835 F.Supp. 1410

(N.D.Ga.1993). Section 1443 provides a statutory exception

to the well-pleaded complaint rule for certain civil rights

actions. Id. at 1412.

However, this action does not fall within the class of

cases removable under § 1443(1). Section 1443(1) provides

for the removal by a defendant of any civil action or criminal

prosecution “[a]gainst any person who is denied or cannot

es.

28a

Appendix D

enforce in the courts of such State a right under any law

providing for the equal civil rights of citizens of the United

States, or of all persons within the jurisdiction thereof. .. .”

28 U.S.C. § 1443(1).

There are two broad restrictions upon removal under

§ 1443(1). “First, removal is limited to cases involving ‘a

right under any law providing for the equal civil rights of

citizens of the United States, or of all persons within the

jurisdiction thereof,’ and second, the petitioner for removal

must show that he ‘is denied or cannot enforce [such a right]

in the courts of such State.’ ” Bar Association of Baltimore

City v. Posner, 391 F.Supp. 76, 79 (D.Md.1975). See also

Johnson v. Mississippi, 421 U.S. 213, 95 S.Ct. 1591, 44

L.Ed.2d 121 (1975).

The Supreme Court has held that the phrase “any law

providing for equal civil rights” must be construed to mean

any law providing for specific civil rights stated in terms of

racial equality. Georgia v. Rachel, 384 U.S. 780, 86 S.Ct.

1783, 16 L.Ed.2d 925 (1966). “Thus, removal has been held

improper in a variety of cases involving alleged infringements

of fundamental federal rights” on the grounds that these rights

are not stated in terms of racial equality. Bar Association of

Baltimore City v. Posner, 391 F.Supp. 76, 79 (D.Md.1975).

To show that he is being denied or cannot enforce his

equal rights in the courts of Arkansas, Wilson must show

either

that there is a basis for a firm prediction that such

rights [of racial equality] will be denied in state

29a

Appendix D

court or that the pendency of the prosecution

without more, is a deprivation of such a federally

protected right. It is not enough to show that he

has a defense with more or less hope of its

successful assertion in an impartial tribunal; he

must show that his federally secured right of racial

equality is denied by the pendency of the

proceeding or “by reasons of the operation of a

pervasive and explicit state or federal law that

those rights will inevitably be denied by ...

bringing the defendant to trial in the state court.”

State of South Carolina v. Moore, 447 F.2d 1067, 1070 (4th

Cir.1971). See also Greenwood v. Peacock, 384 U.S. 808,

86 S.Ct. 1800, 16 L.Ed.2d 944 (1966). Allegations that an

individual is being denied equal protection by discriminatory

prosecution of professional misconduct and assorted

allegations of denial of due process have been held

insufficient to support removal under this section. Bar

Association of Baltimore City v. Posner, 391 F.Supp. 76, 79

(D.Md.1975).

Wilson contends his removal petition raises the

following issues: (1) denial of due process; (2) denial of equal

protection; (3) violation of his citizenship rights under

Section 2 of the Voting Rights Act of 1965, as amended,

and the Thirteenth Amendment of the United States

Constitution; (4) violation of federally established rights

under 42 U.S.C. § 1981, 42 U.S.C. § 1983, and 42 U.S.C.

§ 1985; (5) violation of the doctrine of equitable estoppel/

double jeopardy; and (6) violation of his constitutional rights

of the United States Constitution insomuch as the rules,

i ae ia

30a

Appendix D

procedures, and laws under which petitioner was being

prosecuted were violative of the United States Constitution.

Wilson’s Brief of July 17, 1995, at 7. Wilson takes the

position that the Arkansas Supreme Court’s action in

appointing a special chancellor to the Phillips Circuit Court

to preside over Neal v. Wilson violated the federal Voting

Rights Act and the Thirteenth Amendment to the United

States Constitution.

Wilson’s allegations regarding the denial of

constitutional rights generally are clearly insufficient to

support removal under § 1443. Johnson v. Mississippi, 421

U.S. 213, 219, 95 S.Ct. 1591, 1595, 44 L.Ed.2d 121 (1975)

(Claims that an action “will violate rights under constitutional

or statutory provisions of general applicability or under

statutes not protecting against racial discrimination, will not

suffice.”); Doe v. Berry, 967 F.2d 1255, 1257 (8th Cir.1992)

(42 U.S.C. § 1983 and 42 U.S.C. § 1985(3) do not meet the

test and cannot support removal under § 1443), cert. denied,

507 U.S. 911, 113 S.Ct. 1258, 122 L.Ed.2d 656 (1993).

However, courts have held that certain of the statutes relied

upon by Wilson qualify as laws providing for “equal civil

rights.” For instance, the Voting Rights Act confers rights

specifically in terms of racial equality and has been held to

support removal under § 1443. See e.g., Smith v. Winter,

717 F.2d 191 (Sth Cir. 1983); Jackson v. Riddell, 476 F.Supp.

849 (N.D.Miss.1979). Additionally, § 1981 qualifies under

the statutory definition. Greenwood v. Peacock, 384 U.S.

808, 825, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966).

Assuming for the sake of argument that he has

sufficiently asserted a cause of action under a statute securing

3la

Appendix D

racial equality, which the court does not believe he has,

Wilson still has not alleged facts which indicate he would

be unable to adequately exercise or enforce his ri ghts under

these statutes in state court. See Bar Association of Baltimore

City v. Posner, 391 F.Supp. 76, 83 (D.Md.1975). As the

Supreme Court has stated, to show that he is being denied or

cannot enforce the specified federal rights in the courts of

the state, Wilson must normally show “that the ‘denial be

manifest in a formal expression of state law,’ ... such as a

state legislative or constitutional provision, ‘rather than a

denial first made manifest at the trial of the case.’ ” Johnson,

421 U.S. at 219, 95 S.Ct. at 1595 (citations omitted). Clearly,

Wilson has failed to make the required showing, so removal

is not supported by the provisions of § 1443.

Additionally for the reasons stated below, we believe

the removal was untimely. Section 1446 sets forth the

procedures to be used for removal of actions from state to

federal court. Section 1446(b) contains two separate time

limitations with respect to the removal of civil cases. First,

if the initial pleading states a basis for federal jurisdiction, a

notice of removal “shall be filed within thirty days after the

receipt by the defendant, through service or otherwise, of a

copy of the initial pleading setting forth the claim for relief

upon which such action or proceeding is based... .”

28 U.S.C. § 1446(b). Second, if the case stated in the initial

pleading was not removable, “a notice of removal may be

filed within thirty days after receipt by the defendant, through

service or otherwise, of a copy of an amended pleading,

motion, order or other paper from which it may first be

ascertained that the case is one which is or has become

removable... .” Id.

32a

Appendix D

The state court disbarment proceeding was filed on October

9, 1991. The action was removed on June 13, 1995. Clearly

removal was untimely unless the second thirty day period set

forth in § 1446(b) is applicable. Wilson argues that it is. Wilson

asserts that this action first became removable when the

Arkansas Supreme Court issued the “administrative order . . .

affirming its appointment of the Honorable Judge John

Lineberger as Special Judge in the cause of Neal v. Wilson,

Phillips County Circuit No. CIV-91-147....” Wilson’s Brief

of August 25, 1995, at 1-2. In essence, Wilson argues the

Arkansas Supreme Court’s ruling constitutes “other paper”

which converts the action into a removable action.

Generally, a non-removable action may only be converted

into a removable action by “paper” resulting from some

voluntary act of the plaintiff. S.W.S. Erectors, Inc. v. Infax,

Inc., 72 F.3d 489, 494 (Sth Cir.1996); Gaitor v. Peninsular

& Occidental S.S. Co., 287 F.2d 252, 254 (Sth Cir.1961)

(“other paper” requires a voluntary act of the plaintiff);

Horton v. Scripto-Tokai Corp., 878 F.Supp. 902 (plaintiff

must do something voluntarily to change the nature of the

case and render it removable). It is a well established doctrine

that a case may not be heard in district court when the only

federal question posed is raised by a defense argument.

Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct.

2425, 2430, 96 L.Ed.2d 318 (1987).

The per curiam order of the Supreme Court of Arkansas

issued on June 12, 1995, in response to James Neal’s petition

for writ of certiorari did not convert the otherwise unremovable

case into a removable one. The opinion merely reaffirmed

the validity of the court’s appointment of a special circuit

judge to hear the disbarment proceedings.

33a

Appendix D

Judge Lineberger was appointed by the Arkansas

Supreme Court to hear the case on May 3, 1994. The order

assigning Judge Lineberger was for some reason not filed in

the Phillips County case, Neal v. Wilson, until September

14, 1994. Judge Neal was elected on November 3, 1992, and

assumed office shortly thereafter. Thus if any impropriety

giving rise to a violation of the Voting Rights Act, or any

other statute relied on by Wilson, occurred in connection

with the appointment of Judge Lineberger, it occurred on

May 3, 1994, or at the latest when the order of assignment

was filed in Phillips County. It was the act of appointment

not the issuance of the opinion on June 12, 1995, which

allegedly violated Wilson’s rights and purportedly made the

disbarment action removable.

Wilson was well aware of the appointment of Judge

Lineberger and in fact asked him to recuse. When Judge

Lineberger refused, Wilson did not raise the issue with the

Supreme Court but instead later asked J udge Neal to exercise

jurisdiction over the case despite the fact that the Arkansas

Supreme Court had assigned the case to another judge. The

Arkansas Supreme Court then in ruling on the writ of

certiorari declared Judge Neal’s assumption of jurisdiction

to be void because of their earlier appointment. This action

did not begin the running of the thirty day period for removal.

The removal was therefore untimely. An order will be entered

remanding the disbarment action to the Phillips County

Circuit Court.’

7. The clerk will also be directed to refund to Wilson the $500

cost bond. Since 1988 the removing party has not been required to

post a cost bond.

34a

Appendix D

However, this decision does not end the case. As the

court and the parties have recognized, the allegations of the

combined petition for removal/complaint at law really

encompassed two separate legal actions, the first action being

the state court disbarment action which was removed. The

second action consists of a federal cause of action for

declaratory and injunctive relief based on the alleged

constitutional violations. These allegations were presented

in the form of a counterclaim and third party complaint. We

will proceed to analyze the parties arguments concerning

whether this court can legitimately proceed to deciding the

merits of the action for declaratory and injunctive relief.

Younger v. Harris Abstention.

The State takes the position, inter alia, that the court

must abstain from exercising jurisdiction over the allegations

of the counterclaim/third party complaint under the doctrine

set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27

L.Ed.2d 669 (1971).

In Younger v. Harris the Supreme Court “instructed

federal courts that the principles of equity, comity and

federalism in certain circumstances counsel abstention in

deference to ongoing state proceedings.” Fieger v. Thomas,

74 F.3d 740, 743 (6th Cir.1996). In the case of Middlesex

Ethics Committee v. Garden State Bar Association, 457 US.

423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), a case that

appears to be directly on point, the Supreme Court addressed

the applicability of this doctrine to pending state disciplinary

proceedings. The Court noted that Younger and “its progeny

espouse a strong federal policy against federal-court

35a

Appendix D

interference with pending state judicial proceedings absent

extraordinary circumstances.” Middlesex, 457 U.S. at 431,

102 S.Ct. at 2521. If Younger abstention applies it is not

appropriate to address the merits. Greening v. Moran, 953

F.2d 301, 304 (7th Cir.1992), cert. denied, 506 U.S. 824,

113 S.Ct. 77, 121 L.Ed.2d 42 (1992). “To say that abstention

is in order then is to say that federal courts should not address

the merits, period. Silence by the federal court is the objective

of abstention; the desirability of silence is the reason for

abstention.” Greening, 953 F.2d at 304.

In Middlesex, a New Jersey attorney, Lennox Hinds, was

being charged in a disciplinary proceeding with violating

two sections of the Disciplinary Rules of the Code of

Professional Responsibility as a result of statements he made

during a press conference which were critical of an ongoing

criminal trial and the trial judge’s judicial temperament and

racial insensitivity. Middlesex, 457 U.S. at 428, 102 S.Ct. at

2519. Instead of replying to the charges of the Ethics

Committee, Hinds filed a suit in federal district court

contending the disciplinary rules violated his First

Amendment rights. Additionally, he asserted that the rules

were facially vague and overbroad. Middlesex, 457 U.S. at

429, 102 S.Ct. at 2519-20.

In analyzing the applicability of Younger the Court

applied the following threefold analysis: “first, do state bar

disciplinary hearings within the constitutionally prescribed

jurisdiction of the State Supreme Court constitute an ongoing

State judicial proceeding; second, do the proceedings

implicate important state interests; and third, is there an

adequate opportunity in the state proceedings to raise

° 36a

Appendix D

constitutional challenges.” Middlesex, 457 U.S. at 432, 102

S.Ct. at 2521. The Court answered each question

affirmatively.

First, the court found the that under New Jersey law the

disciplinary proceedings were judicial in nature. As the

proceedings were judicial, the Court noted “the proceedings

are of a character to warrant federal-court deference.” Id.,

457 U.S. at 434, 102 S.Ct. at 2522. Second, the Court noted

that the State of New Jersey “has an extremely important

interest in maintaining and assuring the professional conduct

of the attorneys it licenses.” Id. “The judiciary as well as the

public is dependent upon professionally ethical conduct of

attorneys and thus has a significant interest in assuring and

maintaining high standards of conduct of attorneys engaged

in practice.” Id. It also noted that the State’s interest in the

present litigation was demonstrated by the fact that the Ethics

Committee, an agency of the New Jersey Supreme Court,

was named as a defendant. Id.

Finally, it noted that Hinds had failed to even attempt to

raise any federal constitutional challenges in the state

proceedings. Id., 457 U.S. at 435, 102 S.Ct. at 2522-23.

Because Hinds has an “ ‘opportunity to raise and have

decided by a competent state tribunal the federal issues

involved’ . . . and because no bad faith, harassment, or other

exceptional circumstances dictate to the contrary, federal

courts should abstain from interfering with the ongoing

proceedings.” Id., 457 U.S. at 437, 102 S.Ct. at 2524.

See also Fieger v. Thomas, 74 F.3d 740 (6th Cir.1996)

(federal district court should abstain from deciding

constitutional challenge to state disciplinary rules where state

37a

Appendix D

disciplinary proceedings are ongoing); Hirsh v. Justices of

the California Supreme Court, 67 F.3d 708 (9th Cir.1995)

(abstention proper when a federal court complaint allegeu

the disciplinary system deprived attorneys of various

constitutional rights, including due process, equal protection,

the right to vote, and the right to court access).

The Arkansas Supreme Court has exclusive jurisdiction

over the conduct of Arkansas attorneys and has the power to

make “rules regulating the practice of law and the

professional conduct of attorneys of law.” Ark. Const.

Amend. No. 28; Dodrill v. Executive Director, Committee

on Professional Conduct, 308 Ark. 301, 824 S.W.2d 383

(1992); Sexton v. Arkansas Supreme Court Comm. on

Professional Conduct, 299 Ark. 439, 774 S.W.2d 114 (1989),

cert. denied, 494 U.S. 1066, 110 S.Ct. 1782, 108 L.Ed.2d

784 (1990). “Amendment 28 certainly put to rest for all time

any possible question about the power of the courts to

regulate the practice of law in the state. There can be no

doubt that the power of the judicial department, acting

through this court, is, in this respect, exclusive and supreme

under this amendment, if the power was not already inherent

in the courts.” McKenzie v. Burris, 255 Ark. 330, 340, 500

S.W.2d 357 (1973).

“The Rules of Professional conduct are the substantive

rules governing the bar.” Sexton v. Supreme Court Comm.

on Professional Conduct, 297 Ark. 154A, 154B, 761 S.W.2d

602 (1988). The Arkansas Supreme Court Committee on

Professional Conduct acts as an arm of the Supreme Court

in matters relating to the supervision and licensing of

Arkansas attorneys. However, the Committee does not

38a

Appendix D

exercise judicial power; rather the Committee’s function “‘is

in the nature of an administrative agency, which is not bound

by the rules of the courts.” Sexton v. Arkansas Supreme Court

Comm. or Professional Conduct, 299 Ark. 439, 446, 774

S.W.2d 114 (1989), cert. denied, 494 U.S. 1066, 110 S.Ct.

1782, 108 L.Ed.2d 784 (1990). The Committee on

Professional Conduct enforces the substantive rules. Sexton,

297 Ark. at 154B, 761 S.W.2d 602.

The rules governing the action of the Committee and

setting forth its procedures provides that, in the event a

majority of the committee votes for disbarment, an action

for disbarment will be filed with the Clerk of the Circuit

Court of the county in which the attorney resides, or in which

the alleged violation was committed. Procedures of the Court

Regulating Professional Conduct of Attorneys at Law

§ 5(E)(5) & § 5(G). The action proceeds as an action between

the Executive Director and the attorney. Id. § 5(G)(1). The

proceedings are to be held in compliance with the Arkansas

Rules of Civil Procedure. Id. If the Circuit Judge finds a

violation of the ethical rules he may caution, reprimand,

suspend or disbar the attorney. Id. at § 5(G)(2). If the attorney

does not agree with the decision, he may appeal to the

Arkansas Supreme Court. Id. at § 5(H). The appeal is heard

de novo. Id. at § 5(H)(3).

We conclude application of the Middlesex threefold test

requires abstention in this case. First, the disbarment

proceeding is clearly judicial in nature. New Orleans Public

Service, Inc. v. Council of the City of New Orleans, 491

U.S. 350, 371, 109 S.Ct. 2506, 2520, 105 L.Ed.2d 298 (1989);

Middlesex, 457 U.S. at 433, 102 S.Ct. at 2522. See also

39a

Appendix D

Fieger, 74 F.3d at 744 (Even if state disciplinary procedures

were characterized as administrative, abstention would be

appropriate under Ohio Civil Rights Comm’n v. Dayton

Christian Sch., 477 U.S. 619, 627, 106 S.Ct. 2718, 2722, 91

L.Ed.2d 512 (1986).); Hirsh, 67 F.3d at 712; Greening, 953

F.2d at 304. Second, it cannot be disputed that the state has

a strong interest in maintaining and assuring the professional

conduct of the attorneys it licenses. “The fact that [Wilson]

poses a constitutional challenge to the substance of the rules

of professional conduct as well as the procedures adopted to

enforce them does not overcome [Arkansas’s] interest.”

Fieger, 74 F.3d at 744.

Finally, Wilson’s constitutional challenges can be

determined in the state court proceedings. “Minimal respect

for the state processes, of course, precludes any presumption

that the state courts will not safeguard federal constitutional

rights.” Middlesex, 457 U.S. at 431, 102 S.Ct. at 2521. In

fact, the Supreme Court has held abstention to be appropriate

“unless state law clearly bars the interposition of the

constitutional claims.” Moore v. Sims, 442 U.S. 415,

425-26, 99 S.Ct. 2371, 2379, 60 L.Ed.2d 994 (1979).

The Arkansas Supreme Court has heard and ruled on

constitutional challenges presented by attorneys during

disciplinary hearings. See e.g., Arens v. Committee on

Professional Conduct of the Supreme Court of Arkansas, 307

Ark. 308, 820 S.W.2d 263 (1991) (Fifth and Fourteenth

Amendments to the United States Constitution); Sexton v.

Arkansas Supreme Court Comm. on Professiona! Conduct,

299 Ark. 439, 774 S.W.2d 114 (1989) (procedural due

process), cert. denied, 494 U.S. 1066, 110 S.Ct. 1782, 108

‘ 40a

Appendix D

L.Ed.2d 784 (1990); Eaton & Benton v. Supreme Court of

Arkansas Comm. on Professional Conduct, 270 Ark. 573,

607 S.W.2d 55 (1980) (regulations on legal advertising did

not violate the First Amendment), cert. denied, 450 U.S. 966,

101 S.Ct. 1483, 67 L.Ed.2d 615 (1981).

Wilson strenuously argues that Younger is inapplicable

because the state officials are proceeding with the

disciplinary proceedings in bad faith. See e.g., Bishop v. State

Bar of Texas, 736 F.2d 292 (Sth Cir.1984) (claim that state

bar prosecuted disciplinary proceedings against an attorney

for many years was sufficient to state a claim that the

disciplinary proceedings were taken in bad faith and for an

improper motive). According to Wilson “[b]ad faith and the

denial of due process can clearly be imputed to the

respondents from the facts of this case.” Wilson’s Brief of

July 17, 1995 at 11.

In support, Wilson asks the court to consider the

following facts: (1) the disciplinary action was commenced

approximately a decade after the sanctionable conduct was

committed; (2) there have been two trials in this case;

(3) although the Committee prevailed in the second trial they

objected to the particular judge presiding in the case and

appealed via a writ of certiorari; (4) Wilson’s request to do

discovery to substantiate his claim of selective prosecution

was denied by the judge appointed by the Supreme Court;

(5) a special judge was appointed despite the fact that a

regularly elected circuit judge had not recused or otherwise

disqualified himself from the case; (6) the appointment of a

special judge was in violation of Arkansas law and an

improper incursion on the jurisdiction of the regularly elected

4la

Appendix D

circuit judge; (7) Wilson’s political and social activist activities

have incurred considerable ire from persons closely connected

with the Committee; (8) the Committee asked for and received

a ruling eliminating the statute of limitations in this case;

(9).all rules regulating the issuance of writs of certiorari were

bypassed for the Committee; (10) the action was commenced

while Wilson was in prison and did not have the opportunity

to defend himself; (11) absolute disbarment was requested

when lesser sanctions are available; (12) the fact that the

Committee took an appeal from a favorable decision; and

(13) the open hostility of the State toward Wilson as exhibited

by its action, language and conduct in the court. Id. at

11-13. See also Wilson Brief of August 25, 1995, at 27-30.

Wilson also contends that this case is a reincarnation of

the case of Lewellen v. Raff, 843 F.2d 1103 (8th Cir.1988).

Wilson argues the same environment that gave rise to

Lewellen has resurfaced to give rise to the instant case.

According to Wilson, “[t]here is absolutely no reason but

bad faith, harassment, vindictiveness, and racial animosity

that would prompt the Supreme Court Committee on

Professional Conduct to appeal a decision that was favorable

to the Committee and subject Wilson to a third trial on

disbarment.” Wilson Brief of July 17, 1995, at 17. In

Wilson’s view, the State’s problem with the decision is quite

simple; The decision “was not harsh enough and it was

rendered by a black judge to a black defendant.” Id. See also

Wilson Brief of August 25, 1995, at 27-28 (extraordinary

act in disregard for the constitutional authority of Judge Neal,

extraordinary use of administrative authority of the court to

usurp the authority of a duly elected judge, and the resulting

denial of the right to franchise).

42a

Appendix D

In Lewellen the Eighth Circuit was reviewing the

decision of a district court to preliminarily enjoin the

prosecution of a state criminal trial. The court noted that

“(t]he allegations in Lewellen’s complaint painted a picture

of pervasive racism and discriminatory treatment of blacks

in the Lee County court system.” Lewellen, 843 F.2d at 1110.

The evidence also described an environment in which

Lewellen would not be assured adequate vindication of due

process and equal protection. Id. at 1111.

The Eighth Circuit in reviewing the district court’s

findings under the clearly erroneous standard upheld the

injunction under the bad faith and harassment exception to

the Younger abstention doctrine. Id. at 1112-113.

Nothing presented to this court indicates that the

environment present in Lewellen is present in this case. The

initiation of disbarment proceeding was in response to

Wilson’s pleading guilty to criminal conduct involving

dishonesty, to say the least. The Committee’s seeking of a

writ from the Arkansas Supreme Court was in response to a

legitimate concern and does not constitute evidence of bad

faith. Judge Lineberger had been appointed to preside over

the case by the Arkansas Supreme Court and in fact had been

exercising that jurisdiction. Judge Neal at the behest of

Wilson attempted to wrest jurisdiction over the case from

Judge Lineberger by jumping into the fray and hearing the

case on the merits prior to Judge Lineberger issuing a

decision on the merits. He obviously knew that the case had

been assigned by the state’s highest court to Judge Lineberger

and that it was set to be heard in June.

43a

Appendix D

We have already discussed in great detail the factual

background of this case and will not repeat that discussion

here. As our discussion of the facts and history of the present

controversy indicates, Wilson’s characterization of the events

is simply inaccurate or tendentious. The record before us is

extensive. We simply find no evidence of “bad faith,

harassment, or some other circumstances that would make

abstention inappropriate.” Middlesex, 457 U.S. at 435, 102

S.Ct. at 2523. See also Fieger, 74 F.3d at 750. Other than

the bare assertions of Wilson, there is no evidence that any

of the decisions made by the members of the ethics committee

or the judges of the Arkansas Supreme Court were motivated

by bad faith, racial discrimination, or intent to harass. His

contentions in this respect boil down to little more than a

belief by him that, since the state actors disagree with him

and his lawyers, they must have racially discriminatory

motives. That simply doesn’t follow.

Quite simply, the allegations are insufficient to establish

the extraordinary circumstances under which Younger

abstention is inappropriate. See e.g., Hirsh, 67 F.3d

at 713-14; Berger v. Cuyahoga County Bar Ass’n, 983 F.2d

718, 724 (6th Cir.1993), cert. denied, 508 U.S. 940, 113 S.Ct.

2416, 124 L.Ed.2d 639 (1993). We believe the case before

us falls squarely within the abstention doctrine set forth in

Younger v. Harris and applied by the Supreme Court to

constitutional challenges to pending state disciplinary

proceedings in Middlesex. Therefore, the allegations of the

counterclaim/third party complaint will be dismissed by a

separate order entered concurrently herewith. Trainor v.

Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486

(1977).

Se aad al

44a

Appendix D

To the extent Wilson’s arguments regarding the

appointment of a special judge by the Arkansas Supreme

Court can be read to assert claims unrelated to the disbarment

proceeding, we will address the parties’ arguments regarding

the court’s jurisdiction to review the decision of the Arkansas

Supreme Court.

Rooker-Feldman Doctrine.

Alternatively, the State takes the position that the court

must dismiss the allegations of the counterclaim/third party

complaint under the Rooker-Feldman doctrine.* We believe

that if this doctrine has any applicability it is only to the

decision of the Arkansas Supreme Court regarding the

appointment of Judge Lineberger to the Phillips County case.

The Court of Appeals for che Eighth Circuit recently

examined this doctrine and summarized it in the following

terms:

The Rooker-Feldman doctrine states that district

courts do not have subject matter jurisdiction over

challenges to state court decisions in judicial

proceedings. Rooker v. Fidelity Trust Co., 263

U.S. 413, 416, 44 S.Ct. 149, 150, 68 L.Ed. 362

(1923); District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303,

1311, 75 L.Ed.2d 206 (1983). The only court with

jurisdiction to review decisions of state courts is

the United States Supreme Court. A federal

8. See also 28 U.S.C. § 1738.

45a

Appendix D

district court has jurisdiction over general

constitutional challenges if these claims are not

inextricably intertwined with the claims asserted

in state court. A claim is inextricably intertwined

if the federal claim succeeds only to the extent

that the state court wrongly decided the issues

before it. In other words, Rooker-Feldman

precludes a federal action if the relief requested

in the federal action would effectively reverse the

state court decision or void its ruling.

Charchenko v. City of Stillwater, 47 F.3d 981, 983 (8th

Cir.1995) (citations omitted). See also LaNave v. Minnesota

Supreme Court, 915 F.2d 386, 388 (8th Cir.1990), cert.

denied, 500 U.S. 923, 111 S.Ct. 2028, 114 L.Ed.2d 113

(1991). The doctrine “is broader than claim and issue

preclusion because it does not depend on a final judgment

on the merits.” Charchenko, 47 F.3d at 983 n. 1.

Wilson argues the Rooker-Feldman doctrine is

inapplicable on the grounds that the act of the Arkansas

Supreme Court in granting the writ of certiorari and voiding

Judge Neal’s ruling was administrative rather than judicial.

We reject this argument. Perhaps the act of appointing a

special judge in the first instance can be regarded as

administrative rather than judicial; however, the act of

declaring the decision of one judge to be void on the grounds

that a different judge was given authority over the case is

clearly judicial in nature. Thus, the application of the Rooker-

Feldman doctrine precludes review.

46a

Appendix D

Conclusion.

It makes no difference to this court whether Mr. Wilson

is ultimately disbarred — it is simply none of this federal

court’s business. However, the simple fact is that this court

has no removal jurisdiction of this case and never did, and

didn’t during any of the 9 month period when the pendency

of this matter in this court served to stall the proceedings.

This court is convinced that it is in the interest of all parties

and in the public interest for this matter which has been going

on in one form or another for well over a decade, to come to

a conclusion one way or the other.

For the reasons stated above, the disbarment action will

be remanded to the Circuit Court of Phillips County,

Arkansas. Additionally, the court will abstain from deciding

the issues raised in the counterclaim/third party complaint

and that portion of the case will be dismissed. A separate

order in accordance herewith will be concurrently entered.

47a

Appendix D

ORDER OF REMAND & JUDGMENT

On this 14th day of March, 1996, the court finds for the

reasons stated in a memorandum opinion of even date as

follows:

(1) The case of Neal v. Wilson, Civ. No. 91-147 which

was removed to this court on June 13, 1995, was

improvidently removed and should be and hereby is

remanded to the Circuit Court of Phillips County, Arkansas.

The clerk of this court is directed to send a certified copy of

this order to the clerk of the state court. The clerk is also

directed to refund to Jimmie L. Wilson the cost bond in the

amount of $500 which was deposited at the time of removal.

(2) The court will abstain from deciding the issues raised

in the federal court action for declaratory and injunctive relief

(referred to as the counterclaim/third party complaint) and

this portion of the case is dismissed. Alternatively, the court

holds that application of the Rooker-Feldman doctrine

precludes review.

IT IS SO ORDERED.

48a

APPENDIX E — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

DATED AND DECIDED APRIL 25, 1997

United States Court of Appeals,

Eighth Circuit.

JAMES A. NEAL, Director of Arkansas Supreme Court

Committee on Professional Conduct,

Plaintiff/Appellee,

JIMMIE L. WILSON,

Defendant/Appellant,

JACK HOLT, JR., Member of the Supreme Court of the State

of Arkansas; Robert H. Dudley, Member of the Supreme

Court of the State of Arkansas; Tom Glaze, Member of the

Supreme Court of the State of Arkansas; Donald Corbin,

Member of the Supreme Curt of the State of Arkansas; John

Lineberger, Chancery Judge of the Fourth Judicial District

of Arkansas; Members of Arkansas Supreme Court

Committee on Professional Conduct; Robert Donovan,

Attorney for the Arkansas Supreme Court Committee on

Professional Conduct; John Doe, Defendants and other

unknown John Doe Defendants, known and unknown, each

individually and in his official capacity as set out herein;

Ken Reeves, Chairman; Sue Winter, Secretary; Carlton

Bailey, Member of the Arkansas Supreme Court Committee

49a

Appendix E

on Professional Conduct; Allen Humphries, Member of the

Arkansas Supreme Court Committee on Professional

Conduct; Richard A. Reed, Member of the Arkansas Supreme

_ Court Committee on Professional Conduct; Burt Virden,

Member of the Arkansas Supreme Court Committee on

Professional Conduct; Patricia Youngdahl, Member of the

Arkansas Supreme Court Committee on Professional Conduct,

Third Party Defendants/Appellees.

No. 96-2112.

Submitted Jan. 15, 1997.

Decided April 25, 1997.

* * *

Before WOLLMAN and FLOYD R. GIBSON, Circuit

Judges, and MONTGOMERY, ' District Judge.

WOLLMAN, Circuit Judge.

Jimmie Wilson appeals from the district court’s? order

remanding his disbarment case to state court and dismissing

a complaint Wilson filed against various Arkansas officials.

We affirm.

1. The HONORABLE ANN D. MONTGOMERY, United

States District Judge for the District of Minnesota, sitting by

designation.

2. The Honorable H. Franklin Waters, United States District

Judge for the Western District of Arkansas, sitting by designation.

50a _

Appendix E

I. Background

The background of this case stretches back almost

seventeen years and involves numerous proceedings in state

and federal court. Wilson, an African-American from Helena,

Arkansas, has been a lawyer, farmer, civil rights activist,

and state legislator. Wilson borrowed money for his farm

from the Farmers Home Administration between 1980 and

1982, securing the loan with a lien on his crops. Wilson

attempted to avoid the government lien and was convicted

in 1985 of knowingly disposing of property mortgaged to a

government agency, unlawfully converting money of the

United States, and conspiring to defraud the United States.

See United States v. Wilson, 806 F.2d 171 (8th Cir.1986).

His conviction was ultimately reversed in 1989 because of a

Batson violation at his trial. See United States v. Wilson,

884 F.2d 1121 (8th Cir. 1989) (en banc). Wilson subsequently

pleaded guilty in 1990 to five misdemeanor counts of

converting property mortgaged or pledged to a farm credit

agency and converting public money to personal use and

was sentenced to imprisonment and probation.

Because of his conviction, Wilson was suspended from

practice by the United States District Court for the Eastern

District of Arkansas in January of 1991, pending the outcome

of any disciplinary proceedings. The court referred the matter

to the Arkansas bar authorities, specifically James Neal, the

executive director of the Arkansas Supreme Court Committee

on Professional Conduct (the Committee). The Committee

decided that Wilson’s conduct warranted disbarment. After

Wilson refused to voluntarily surrender his license, the

Committee filed a complaint for disbarment in the Phillips

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Appendix E

County Circuit Court. All of the circuit judges in that circuit

recused themselves, and the Chief Justice of the Arkansas

Supreme Court assigned a circuit judge from another circuit

to hear the case. This circuit judge dismissed the complaint

in 1993 on the ground it was time-barred, a ruling that was

reversed by the Arkansas Supreme Court. See Neal v. Wilson,

316 Ark. 588, 873 S.W.2d 552 (1994) (Wilson I).

The crux of Wilson’s federal case stems from what

happened when the case was remanded by the Arkansas

Supreme Court to the Phillips County Circuit Court. The

appointed circuit judge recused himself because of his

disagreement with the supreme court’s opinion. The supreme

court subsequently appointed another outside circuit judge,

John Lineberger, to hear the case in 1994. Wilson moved

for Judge Lineberger’s disqualification on the basis that there

was a new circuit judge in Phillips County who had not

recused himself who should hear the case. That judge was

Olly Neal, an African-American, who had been elected in

1992 in a minority-majority district, newly created pursuant

to a consent decree in a Voting Rights Act lawsuit. Neal

was Wilson’s former law partner and one of the attorneys

who had represented Wilson in his criminal case. Neal also

testified at Wilson’s federal trial.

Judge Lineberger denied the disqualification motion on

January 5, 1995, and set a trial date of June 13, 1995. At

Wilson’s instigation, a hearing was set before Judge Neal.

Following the hearing, Judge Neal ruled on May 24, 1995,

that he had jurisdiction. He then decided the merits of the

case, concluding that Wilson’s conduct warranted only a

letter of reprimand. The Committee sought a writ of certiorari

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Appendix E

from the Arkansas Supreme Court. The supreme court issued

the writ on June 12, 1995, ruling that Judge Neal did not

have jurisdiction and quashing Judge Neal’s orders. See Neal

v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995) (per curiam)

(Wilson II).

On June 13, 1995, before Wilson’s trial began, he

removed the case from Judge Lineberger’s court to the

district court, citing 28 U.S.C. § 1443(1) as the basis for

removal. Wilson filed a counterclaim and third-party

complaint against numerous state officials, including Neal,

the members of the Committee, the justices of the Arkansas

Supreme Court who formed the majority in Wilson II, Judge

Lineberger, and John Doe defendants. Wilson alleged

violations of his federal constitutional and statutory rights

and sought declaratory and injunctive relief. See Neal v.

Wilson, 920 F.Supp. 976, 982-83 (E.D.Ark. 1996) (Wilson III).

The case was assigned to United States District Judge

George Howard, Jr. After briefing, Judge Howard recused

himself because of the district court’s initial reference of

Wilson to the state bar authorities for disciplinary action in

1991 and directed that the case be assigned to a judge from

outside the Eastern District of Arkansas. Judge Waters was

subsequently assigned the case.

The district court first concluded that Wilson’s attempted

removal of his disbarment case was improper. Even assuming

that Wilson had pleaded causes of action under 42 U.S.C.

§ 1981 or the Voting Rights Act, the court concluded that

Wilson had not met the requirements for section 1443(1)

removal because he had failed to show that he would be

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unable to adequately enforce his rights in state court. The

court also concluded that the removal was untimely and

remanded the case to state court. See Wilson III, 920 F.Supp.

at 983-86. With regard to the merits of Wilson’s complaint,

the district court concluded that it should abstain under the

Younger abstention doctrine. It also concluded that the

Rooker-Feldman doctrine precluded what would be

essentially federal court review of the Arkansas Supreme

Court’s decision regarding Judge Lineberger’s appointment.

The court then dismissed Wilson’s complaint. See id.

at 986-91. Wilson subsequently moved for reconsideration

and requested that Judge Waters recuse himself for the same

reason given by Judge Howard. The district court denied both

motions.

On appeal, Wilson argues that he met the requirements

of section 1443 for removal, that his petition for removal

was timely, that the district court erred in abstaining, that

the district court erred applying the Rooker-Feldman

doctrine, and that Judge Waters erred in refusing to recuse

himself.

II. Discussion

A. Removal/Remand

We may review the district court’s remand order because

this case involves a section 1443 removal. See 28 U.S.C.

§ 1447(d); Doe v. Berry, 967 F.2d 1255, 1257 (8th Cir.1992)

(per curiam). We conclude that the district court properly

remanded Wilson’s case to the state courts because Wilson’s

notice of removal was untimely; alternatively, the district

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court correctly concluded that Wilson did not meet the

requirements for removal under section 1443(1).

Wilson admits that he was required to file his notice of

removal “within thirty days after receipt . . . of a copy of an

amended pleading, motion, order or other paper from which

it may first be ascertained that the case is . . . or has become

removable.” 28 U.S.C. § 1446(b). Wilson argues that the

relevant “order or other paper” was the Arkansas Supreme

Court’s June 12, 1995, opinion in Wilson II affirming Judge

Lineberger’s appointment and quashing Judge Neal’s orders.

We disagree. As the district court stated, the Arkansas

Supreme Court’s opinion in Wilson II affirming the validity

of its own prior action did not convert an otherwise

unremovable case into a removable one. See Wilson III, 920

F.Supp. at 986. The thrust of Wilson’s complaint is that his

rights were violated when the Arkansas Supreme Court

appointed Judge Lineberger to hear his case. The Arkansas

Supreme Court made this appointment in May of 1994, and

Wilson did not file his notice of removal within thirty days

of his receipt of this order. Even reading the record in the

light most favorable to Wilson, the thirty-day limitation

period began running no later than January 5, 1995, the day

on which Judge Lineberger overruled Wilson’s motion for

disqualification in which Wilson raised his argument that

Judge Neal had jurisdiction over the case. Wilson’s June 13,

1995, notice of removal was thus untimely by a factor of

months. }

Even assuming that Wilson’s removal notice was timely,

the district court correctly ruled Wilson had not established

his eligibility for a section 1443(1) removal. Under that

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statute, Wilson must show that he relies upon a law providing

for equal civil rights stated in terms of racial equality.

See 28 U.S.C. § 1443(1); Georgia v. Rachel, 384 U.S. 780,

792, 86 S.Ct. 1783, 1790, 16 L.Ed.2d 925 (1966). Although

we doubt that Wilson has done so, we will assume, as did

the district court, that Wilson has sufficiently asserted causes

of action under the Voting Rights Act and 42 U.S.C. § 1981.

See City of Greenwood v. Peacock, 384 U.S. 808, 825, 86

S.Ct. 1800, 1811, 16 L.Ed.2d 944 (1966) (Voting Rights Act

and § 1981 fall within statutory definition of § 1443(1)).

Wilson must show that he is denied or cannot enforce that

right in state court. See 28 U.S.C. § 1443(1). “Removal is

warranted only if it can be predicted by reference to a law of

general application that the defendant will be denied or

cannot enforce the specified federal rights in the state courts.”

Rachel, 384 U.S. at 800, 86 S.Ct. at 1796. Further, in “the

unusual case. . . ‘an equivalent basis could be shown for an

equally firm prediction that the defendant would be “denied

or cannot enforce” the specified federal rights in the state

court.’ ” See Johnson v. Mississippi, 421 U.S. 213, 219, 95

S.Ct. 1591, 1595, 44 L.Ed.2d 121 (1975) (quoting Rachel,

384 U.S. at 804, 86 S.Ct. at 1796).

Wilson has not met these stringent requirements. He has

not shown that there is a state law preventing him from

raising his federal claims in state court, nor has he shown

the basis for an “equally firm prediction” that he will be

unable to protect his federal rights in state court. As the

district court stated, Wilson’s contentions regarding the

defendants “boil down to little more than a belief by him

that, since the state actors disagree with him and his lawyers,

they must have racially discriminatory motives.” Wilson III,

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Appendix E

920 F.Supp. at 990. If, as Wilson fears, the Arkansas state

courts do not respect and enforce his federal rights, Wilson’s

proper course of action is to seek direct review in the United

States Supreme Court. See Berry, 967 F.2d at 1258 (“The

issues involved . . . can be decided in the state courts, which

have equal responsibility for ruling on federal constitutional

issues. Berry may then seek review of any adverse rulings

in the United States Supreme Court.”).’

3. Wilson makes assertions regarding the motives and possible

bias of the state bar authorities. As the Supreme Court has stated:

It is not enough to support removal under § 1443(1) to

allege or show that the defendant’s federal equal civil

rights have been illegally and corruptly denied by state

administrative officials in advance of trial... . The

motives of the officers bringing the charges may be

corrupt, but that does not show that the state trial court

will find the defendant guilty if he is innocent, or that

in any other manner the defendant will be “denied or

cannot enforce in the courts” of the State any right under

a federal law providing for equal civil rights. The civil

rights removal statute does not require and does not

permit the judges of the federal courts to put their

brethren of the state judiciary on trial. Under § 1443(1),

the vindication of the defendant’s federal rights is left

to the state courts except in the rare situations where it

can be clearly predicted by reason of the operation of a

pervasive and explicit state or federal law that those

rights will inevitably be denied by the very act of

bringing the defendant to trial in the state court.

City of Greenwood, 384 U.S. at 827-28, 86 S.Ct. at 1812-13.

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Appendix E

B. Wilson’s complaint

The district court lacked subject matter jurisdiction to

consider the claims Wilson pleaded in his second amended

complaint because of the Rooker-Feldman doctrine. We

recently summarized the Rooker-Feldman doctrine:

The Rooker-Feldman doctrine states that district

courts do not have subject matter jurisdiction over

challenges to state court decisions in judicial

proceedings. Rooker v. Fidelity Trust Co., 263

U.S. 413, 416, 44 S.Ct. 149, 150, 68 L.Ed. 362

(1923); District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303,

1311, 75 L.Ed.2d 206 (1983). The only court with

jurisdiction to review decisions of state courts is

the United States Supreme Court. A federal

district court has jurisdiction over general

constitutional challenges if these claims are not

inextricably intertwined with the claims asserted

in state court. A claim is iney*~cably intertwined

if the federal claim succeeds only to the extent

that the state court wrongly decided the issues

before it. In other words, Rooker-Feldman

precludes a federal action if the relief requested

in the federal action would effectively reverse the

state court decision or void its ruling.

Charchenko v. City of Stillwater, 47 F.3d 981, 983 (8th

Cir.1995) (citations omitted). See also Bechtold v. City of

Rosemount, 104 F.3d 1062, 1065-66 (8th Cir.1997).

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Appendix E

Wilson’s complaint repetitively recites the facts of the

case and alleges that these facts show violations of the Fifth,

Fourteenth, and Fifteenth Amendments, the Voting Rights

Act,* 42 U.S.C. §§ 1981, 1983, 1985, and 1986, and Arkansas

state law. As relief, Wilson requested removal of the Phillips

County Circuit Court case and the Arkansas Supreme Court

case to the federal court “for a determination of the

constitutional rights of [Wilson],” an injunction preventing

the defendants from further seeking Wilson’s disbarment,

an order dismissing the disbarment complaint filed against

Wilson, and recognition “that the Order of Judge Neal entered

in this matter [is] a legal judgment.”

Wilson’s complaint does not present a general challenge

to the constitutionality of the Arkansas procedural rules

regarding attorney disbarment. See Feldman, 460 US. at 486,

103 S.Ct. at 1316-17 (district courts may entertain general

challenges to state bar rules). In our view, the district court

could not review Wilson’s claims and grant relief without

effectively reviewing and reversing the decisions of the

Arkansas Supreme Court in Wilson I and Wilson II,

particularly its conclusions that the disbarment action was

not barred by the statute of limitations and that Judge

Lineberger, rather than Judge Neal, had jurisdiction over

Wilson’s disbarment trial. Thus, the district court lacked

jurisdiction under the Rooker-Feldman doctrine to consider

Wilson’s complaint because his federal claims are

inextricably intertwined with his state case.

: 4. Wilson’s Voting Rights Act claim is based on an alleged

violation of the consent decree in Hunt v. Arkansas, No. PB-C-89-406

(E.D.Ark. Sept. 24, 1992).

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Appendix E

Alternatively, to the extent that any portion of Wilson’s

complaint survived the jurisdictional bar of the Rooker-

Feldman doctrine, the district court correctly ruled that

Younger abstention was warranted under the standard of

Middlesex County Ethics Comm. v. Garden State Bar Ass’n,

457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). The

only Middlesex element in dispute is whether there is “an

adequate opportunity in the state proceedings [for Wilson]

to raise constitutional challenges.” Id. at 432, 102 S.Ct. at

2521. Wilson has not pointed to any state obstacle preventing

him from raising his federal claims in the state proceedings.

See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14, 107 S.Ct.

1519, 1527, 95 L.Ed.2d 1 (1987) (burden on plaintiff to show

that state procedural law barred presentation of claims); Hirsh

v. Justices of Supreme Court of California, 67 F.3d 708, 713

(9th Cir.1995). The Arkansas Supreme Court has in the past

considered constitutional claims presented during attorney

disciplinary hearings. See Arens v. Committee on Professional

Conduct, 307 Ark. 308, 820 S.W.2d 263 (1991); Sexton v.

Arkansas Supreme Court Comm. on Professional Conduct,

299 Ark. 439, 774 S.W.2d 114 (1989); Eaton v. Supreme

Court of Arkansas, 270 Ark. 573, 607 S.W.2d 55 (1980).

Because Wilson has the opportunity to raise his federal

claims in the state proceedings, Younger abstention is

appropriate. See Middlesex, 457 U.S. at 432, 102 S.Ct. at

2521; Hirsh, 67 F.3d at 713.

Wilson argues that the state authorities have acted in

bad faith by seeking the reversal of two circuit court decisions

favorable to Wilson and that the conduct of the state

authorities and the Arkansas Supreme Court shows that

Wilson’s federal rights will not be honored in state court.

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Appendix E

See Middlesex, 457 U.S. at 435, 102 S.Ct. at 2523 (bad faith,

harassment, or extraordinary circumstances justify

exceptions to abstention). We remind Wilson that we may

not engage any presumption “that the state courts will not

safeguard federal constitutional rights.” Id. at 431, 102 S.Ct.

at 2521; Hirsh, 67 F.3d at 713 (“one who alleges bias ‘must

overcome a presumption of honesty and integrity in those

serving as adjudicators’ ”) (quoted cases omitted). We agree

with the district court that Wilson has proffered no evidence

of bad faith, harassment, or other circumstance that might

render abstention inappropriate. The Arkansas Supreme

Court reversed the two previous circuit court rulings on state

law grounds, and Wilson has the opportunity in the current

state proceedings to raise his federal claims. As we noted

above, the district court characterized Wilson’s contentions

of bad faith by the defendants as “little more than a belief by

him that, since the state actors disagree with him and his

lawyers, they must have racially discriminatory motives.”

Cf. Peterson v. Sheran, 635 F.2d 1335, 1340 (8th Cir. 1980)

(disbarred lawyer argued Minnesota Supreme Court biased

against him and he would not have “real opportunity” to raise

claim before that court; allegations not sufficient because

he alleged only general bias because of previous proceedings

in case and hypothetical reactions of state judges to his public

criticism).°

5. We also agree with the district court that our case of

Lewellen v. Raff, 843 F.2d 1103 (8th Cir.1988), is distinguishable

from the present case.

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Appendix E

C. Recusal

Wilson argues that Judge Waters should have recused

himself for the same reason given by Judge Howard. We

disagree. Judge Howard recused himself because the District

Court for the Eastern District of Arkansas had referred

Wilson’s disciplinary matter to the Arkansas bar authorities.

Because Judge Waters was not involved in that decision, the

rationale for Judge Howard’s recusal does not apply to him.

We presume that Judge Waters is impartial, and Wilson has

not met his “ ‘substantial burden of proving otherwise.’ ” In

re Kansas Pub. Employees Retirement Sys., 85 F.3d 1353,

1358 (8th Cir.1996) (quoted case omitted).° Accordingly,

Judge Waters did not abuse his discretion in refusing to

recuse himself. See id. (citing 28 U.S.C. § 455(a)).

III. Conclusion

Resolution of this matter should take place in the courts

of Arkansas, not the federal courts. The judgment is affirmed.

6. We also disapprove of Wilson’s decision to wait until after

Judge Waters had issued an unfavorable ruling before moving for

recusal.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.