Prologue — Beustring v. Oklahoma Bar Association (No. 05-997)

No. 05-997 5236 - 26

PRICE GF is:

In The ,

Supreme Court of the Gnited States

+

GLENN R. BEUSTRING, individually and as

an attorney admitted to practice law in the

State of Oklahoma and a member of the

Oklahoma Bar Association,

Petitioner.

VS.

| OKLAHOMA BAR ASSOCIATION,

< the agent and an official arm of the

Supreme Court of Oklahoma, through its

General Counsel, Dan Murdock,

Respondent.

®

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

ve For-The Tenth Circuit

+

PETITION FOR WRIT OF CERTIOX ARI

e

MURRAY E. ABOWITZ,

OBA No. 000117

ABOWITZ, TIMBERLAKE &

DAHNKE, PC.

P.O. Box 1937

Oklahoma City, Oklahoma 73101

Telephone: (405) 236-4645

Facsimile: (405) 239-2843 -

Cawrsel for Petitioner

COCKLE LAW BUEFE PRINTING CO iso) 225 6964

~ OR CALE COLLECT (402) 342-2831

QUESTIONS PRESENTED

A lawyer charged under Oklahoma's disciplinary proce-

dure for exercising his constitutional right to free speech is

not afforded the opportunity to present a timely constitu-

tional challenge to those charges. The constitutional chal-

lenge cannot be presented until the matter is on final review

by the Supreme Court of Oklahoma. This review may occur

years after the protected speech and subsequent prosecution.

In the case of Petitioner, the protected speech and prosecu-

tion occurred in 2003, but the case, including Petitioner’s

constitutional challenges, has not yet been reviewed by the

Oklahoma Supreme Court.

I. Should federal courts apply the abstention doctrine

developed in Younger v. Harris, 401 U.S. 37 (1971), as

applied to attorney disciplinary proceedings by Middlesex

County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S.

423 (1982), when the state disciplinary procedures do not

afford the lawyer a timely opportunity to present constitu-

tional challenges to the charges brought against that

lawyer?

II. If abstention is mandated by Middlesex in circum-

stances where a lawyer is deprived of a timely opportunity

to raise his constitutional claim, does application of that

doctrine conflict with the rule announced in Dombrowski

v. Pfister, 380 U.S. 479 (1965) and expanded upon by

Justice Brennan in Perez v. Ledesma, 401 U.S. 82 (1971),

that federal jurisdiction is proper when the state proce-

dures “will not assure adequate vindication of constitu-

tional rights”? Dombrowski, 370 U.S. at 485.

il

PARTIES TO THE PROCEEDING

In the courts below, Petitioner, attorney Glenn R.

Beustring, seught relief from disciplinary proceedings

brought against him to silence him and otherwise deter

him from engaging in the exercise of his right to free

speech as secured by the First Amendment. The proceed-

ings also violated Petitioner’s rights to due process under

the Due Process Clause of the Fourteenth Amendment of

the United States Constitution. Respondent, a Defendant

below, is the Oklahoma Bar Association, the agent and

official arm of the Supreme Court of Oklahoma, through

its general counsel, Dan Murdock.

The Professional Responsibility Tribunal of the

Oklahoma Bar Association, through its members, Kenneth

L. Delashaw, Jr., Peggy Stockwell, and Neil William

McElderry, Jr., was initially named as a defendant. During

the pendency of post-judgment proceedings in the district

court, the Professional Responsibility Tribunal of the

Oklahoma Bar Association was dismissed with prejudice.

Pursuant to Sup. Ct. R. 12.6, Petitioner believes that this

entity has no interest as a party in the outcome of this

Petition.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...................... ie puduleints i

PARTIES TO THE PROCEEDING ......................seee ii

Te SI SET EB sii kairo tsecrtcsidviadoass bebesivon seeds ili

TPs CO FAG FRE MIE carves snndncnnsdcicgcevas sdnereniane iv

OPINIONS AND ORDERS BELOW..................00....2.. 1

SEAT e EIU apie Gan srdocukcoeoedredanevendeweeeus adi tetiiecsea 1

CONSTITUTIONAL PROVISIONS AND PROFES-

SIONAL DISCIPLINARY RULES INVOLVED...... 2

STATEMENT OF THE CASE .....0............ccccoccesccoeerees 3

REASONS FOR GRANTING THE WRIT.................. 7

I. Lack of a Swift Resolution of Constitutional

Sane ara eo PP ORTONE EST pee re i 9

II. Conflicts Exist Between Middlesex and

Dombrowski on the Federal Courts’ Role in

Protecting Constitutional Rights.................... 13

III. Petition for Certiorari Standards................... 15

Ca ise es ico oa ee 16

TABLE OF AUTHORITIES

Page

CASES

Beustring v. Okla. Bar Ass'n, 143 Fed. Appx. 997

CSREES Ras wisn seisa cd caivcackss tageals cats ts comticcataracesnivies 1

Dombrowshi v. Pfister, 380 U.S. 479 (1965)............... passim

Harlow v. Fitzgerald, 457 U.S. 800 (1982).............. cee 9

Middlesex County Ethics Comm. v. Garden State

Bar Assn, 457 U.S. 423 (1962)... c0scsecccseceescadcnviee passim

Perez v. Ledesma, 401 U.S. 82 ..cccccicccscscicccdecssece 9, 13, 14, 16

State ex rel. Okla. Bar Ass’n v. Hine, 1997 OK 52,

OF Fe OR ois cae pues pacads ved ices ovnceadesonpnanani copticepitaaicieial 8

State ex rel. Okla. Bar Ass’n v. Porter, 1988 OK 114,

FO Fe I sh Riis Aihiecsedcocsested eet inaion 8, 12,13

United States v. McIntyre, 836 F.2d 467 (10th Cir.

bb ff pees Rp DSA Ean PD LE OR a ap AE SOOO Sane OSC Ry PSEC psy E> 12

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

STATUTES AND RULES :

SPE RAE Op | eine icrn es RRB pT Fy ONE Tip MANS TNS ORT ioe AN Bes Pe 1

NT Fe SAR iki Bienes opedacweouena 5

Ge UA © LOR oetinunnuimueies s Sodas ig atesdeodechegseace 6

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES

First Amendment to the United States

CRBCIE ENON ose. secsvescssessapsveedieosequetainriooreonberses 2, 5, 7,12

Fourteenth Amendment to the United States

RRC: NUE Foo i< iccscaccvinanascodcdcce coestovnduncesovie 2

Oklahoma Rules Governing Disciplinary Proceed-

NE, PINNY TIAB Ss . ids svat apncecdsenibvestencisea sb oneceueuseresmiees 2,8

RNIN tes Be a va snddvcni sdandaciseiercencccinieynin sh teavuniecieevenenipenesies 15

PU, Eas Gia Beceisaicacasaceueay osesudavies vdccsasbaeaniavcodmesetetaweasacturmcns ii

1

OPINIONS AND ORDERS BELOW

On March 1, 2004, the United States District Court

for the Western District of Oklahoma entered an order

(App. 6-19) abstaining from exercising jurisdiction and

dismissing a civil rights action brought by Glenn Beus-

tring. Mr. Beustring, an Oklahoma lawyer, was the subject

of state disciplinary proceedings for writing a letter critical

of the Oklahoma Supreme Court. On March 15, 2004,

Beustring filed a Rule 59(e) motion to vacate the judg-

ment. The district court denied his motion on March 23,

2004 (App. 3-5).

Mr. Beustring filed a Notice of Appeal to the United

States Court of Appeals for the Tenth Circuit on March 29,

2004. The Tenth Circuit affirmed the district court in an

Order and Judgment entered September 29, 2005, for

substantially the reasons and grounds set forth in the

district court’s opinions. See Beustring v. Okla. Bar Ass’n,

143 Fed. Appx. 997 (10th Cir. 2005) (App. 1-2).

Mr. Buestring’s subsequent motion for rehearing was

denied November 7, 2005 (App. 20-21).

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JURISDICTION

This Court has jurisdiction to review on a writ of

certiorari the judgment or order in question pursuant to

28 U.S.C. § 1254.

2

CONSTITUTIONAL PROVISIONS AND

PROFESSIONAL DISCIPLINARY

RULES INVOLVED .

Petitioner asserts that he is being prosecuted for

exércising his First Amendment right to free speech.

According to the Amendment:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peace-

ably to assemble, and to petition the government

for a redress of grievances.

Petitioner also claims that he is being denied due

process and equal protection under Oklahoma law as

required by the Fourteenth Amendment to the United

States Constitution, Section 1, which provides in relevant

part:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state

wherein they reside. No state shall make or en-

force any law which shall abridge the privileges

or immunities of citizens of the United States;

nor shall any state deprive any person of life, lib-

erty, or property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.

The rule barring Petitioner from raising a timely

constitutional claim in the proceedings against him is

Section 6.4 of the Oklahoma Rules Governing Disciplinary

Proceedings, which provides:

The respondent shall within twenty (20) days af-

ter the mailing of the complaint file an answer

3

with the Chief Justice. The respondent may not

challenge the complaint by demurrer or motion.

In the event the respondent fails to answer, the

charges shall be deemed admitted, except that

evidence shall be submitted for the purpose of

determining the discipline to be imposed.

,

_STATEMENT OF THE CASE

Glenn R. beustring, a lawyer licensed to practice in

- Oklahoma, represented the Wilsons in a medical malprac-

tice case filed in the District Court of Tulsa County, Okla-

homa (Wilson I). The Wilson case was tried to a jury, which

rendered a verdict in favor of the defendants. Plaintiffs

appealed. The Court of Civil Appeals of Oklahoma re-

versed and remanded the case for new trial because the

non-party physician treating the plaintiff made inconsis-

tent statements at trial that the plaintiffs were prevented

from rebutting. Plaintiffs had thus been deprived of the

opportunity to address the veracity of that physician. On

remand (Wilson IJ), Mr. Beustring, as plaintiffs’ counsel,

attempted to discover information relevant to the treating

physician’s veracity. Mr. Beustring also learned of, and

attempted to discover information regarding, a “unified

defense strategy” employed by defense counsel, which

entailed structuring a physician’s testimony to avoid “cross

criticism by defendants” that only works “to the benefit of

the plaintiffs.” In other words, witness tampering.

Mr. Beustring attempted to obtain discovery relevant

to defendants’ suborning perjury to fabricate a causation

defense and the treating physician’s veracity, but was

rebuffed by the trial court. Mr. Beustring sought relief by

extraordinary writ in the Supreme Court of Oklahoma.

4

The Supreme Court of Oklahoma granted the plaintiffs

limited relief, but, ignoring its precedent, declined to

permit discovery on the unified defense/witness tampering

issue. Frustrated by the Court’s failure to follow its own

precedent, an argument presented to the Court a second

time in a petition for rehearing, Mr. Beustring wrote .a

letter to seven Supreme Court Justices. That letter is

quoted below verbatim:

Re: Wilson v. Russell, et al, No. 98,220 — Denial

of Petition for Rehearing

Dear Justices Opala, Hodges, Lavender, Har-

grave, Kauger, Boudreau and Winchester:

Please accept this letter as my resignation from

the Oklahoma Bar Association effective sixty (60)

days from this date so that I can arrange for the

orderly transfer of existing clients to new coun-

sel.

As a lawyer, I am statutorily obligated to respect

you. Your denial of the Wilson’s Petition for Re-

hearing leaves me without spiritual or physical

ability to fulfill my statutory obligation. The

facts were before you. You cannot indulge your-

selves in the “three monkeys” game of choosing

to ignore the evil. You should be impeached and

not honored.

Your decision denying appropriate relief to vic-

tims of medical negligence — in this instance, the

Wilsons — is an embarrassment to the “Rule of

Law” — a repudiation of your duty to safeguard

the rights of the public under the Oklahoma

Constitution, Art. 2, §§6, 7 and 19. In the area of

medical negligence law, evil lawyers and their ~

“puppet” judges have flourished under your su-

pervision.

5

Last Sunday, at church, my mother handed me

an index card that said only these words: “To sin

by silence when they should protest, makes cow-

ards of men.”

Sincerely,

Glenn R. Beustring

OBA #768

cc: Chief Justice C.M. Watt

Justice J. Summers

(Emphasis in original.) The letter was based upon Mr.

Beustring’s reasonable belief of the truth of the statements

contaized therein.’

In direct response to this letter, the Oklahoma Bar

Association filed a formal complaint on September 30,

2003, against Mr. Beustring for alleged violations of a

number of Oklahoma Rules of Professional Conduct.

Petitioner filed a Complaint in the United States

District Court for the Western District of Oklahoma on

November 5, 2003, seeking declaratory and injunctive

relief pursuant to 28 U.S.C. § 1343(a)(3) and (4) (App. 30-

53). Specifically, Petitioner requested that the federal

court declare that the state bar complaint was filed in bad

faith and without probable cause in retaliation for Mr.

Beustring exercising his First Amendment rights and to

intimidate him and other similarly-situated Oklahoma

lawyers from exercising such rights in the future. Mr.

' For instance, Mr. Beustring’s statement regarding “puppet

judges” was premised in part on a fund-raising letter issued by the

medical negligence defense bar, in which the trial court judge had been

described as providing “unique justice” to medical negligence defen-

dants.

6

Beustring also sought a permanent injunction against the

Oklahoma Bar Association from taking any further action

in the disciplinary proceedings and an award of his fees

and costs in the matter. Petitioner’s claims were brought

pursuant to 42 U.S.C. § 1983. Respondent and the Okla-

homa Professional Responsibility Tribunal both filed

motions to dismiss requesting that the court abstain from

exercising jurisdiction pursuant to Younger v. Harris, 401

U.S. 37 (1971), and Middlesex County Ethics Comm. v.

Garden State Bar Ass’n, 457 U.S. 423 (1982). After an

evidentiary hearing, the district court granted the motions

to dismiss and abstained from exercising its subject

matter jurisdiction. Following the district court’s denial of

his timely-filed Rule 59(e) motion to vacate, Mr. Beustring

lodged an appeal in the United States Court of Appeals for

the Tenth Circuit.

Petitioner contended on appeal that the district court

erred in determining that his action did not fall within an

exception to the Younger and Middlesex abstention doc-

trine. Specifically, Petitioner argued that the “exceptional

circumstances” exception applied because Oklahoma’s

attorney disciplinary procedures do not afford an attorney

a timely and adequate opportunity to raise a constitu-

tional challenge.

Separately, Petitioner claimed on appeal that the bad

faith and harassment exception to the Younger abstention

doctrine applied and, pursuant to Dombrowski v. Pfister,

380 U.S. 479 (1965), Petitioner should not be required to

bear the burden of defending himself in the unconstitu-

tional bar disciplinary proceedings.

The decisions of the district court and the court of

appeals are generally described in the “Opinions And