Petition for Writ of Certiorari — Beustring v. Oklahoma Bar Association (No. 05-997)

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Orders Below,” supra, at 1. Petitioner now challenges the

circuit court’s affirmation of the district court’s conclusion

that Oklahoma’s disciplinary procedures provided Peti-

tioner with an adequate and timely opportunity to raise

his constitutional claims. In addition, Petitioner contends

that he is entitled to invoke the jurisdiction of the federal

courts because he is being prosecuted in retaliation for

exercising his First Amendment right to the freedom of

speech. Thus, the district court’s holding that abstention is

proper because Petitioner is afforded a timely and ade-

quate right to assert a constitutional challenge upon de

novo review by the Oklahoma Supreme Court years later,

conflicts with Dombrowski, wherein the Court held that

federal jurisdiction should be exercised when the state

proceeding itself is a constitutional deprivation because it

is brought in bad faith to discourage conduct protected by

the First Amendment. See Dombrowski, 380 U.S. at 485-

86.

REASONS FOR GRANTING THE WRIT

There are two important issues that warrant granting

this petition for a writ of certiorari. These are:

1. The district court’s decision, as affirmed by the

court of appeals, was based on an erroneous and incom-

plete application of Middlesex County Ethics Comm. v.

Garden State Bar Ass'n, 457 U.S. 423 (1982), wherein the

Court addressed the issue of whether the state proceed-

ings provided an adequate opportunity to raise constitu-

tional challenges. Unlike the procedures analyzed in

Middlesex, the Oklahoma disciplinary procedures do not

8

afford an attorney a timely judicial resolution of constitu-

tional challenges.

An Oklahoma attorney who exercises the constitu-

tional right to free speech and is subsequently subject to

disciplinary proceedings as a result is barred from making

an adequate and timely c .stitutional challenge. Rule 6.4

of the Oklahoma Rules Governing Disciplinary Proceed-

ings provides that an attorney charged with a formal

complaint cannot challenge the complaint by demurrer or

motion. Further, the Oklahoma Professional Responsibil-

ity Tribunal, which serves as the trial panel, is not permit-

ted to consider constitutional issues. State ex rel. Okla.

Bar Ass’n v. Hine, 1997 OK 52, 937 P.2d 996; State ex rel.

Okla. Bar Ass’n v. Porter, 1988 OK 114, 766 P.2d 958, 962.

constitutional challenges are considered by the Oklahoma

Supreme Court only upon a de novo review of the proceed-

ings on the merits. Porter, 766 P.2d at 962. The ultimate

review by the Oklahoma Supreme Court, and thus the

initial consideration of an attorney's constitutional chal-

lenge, may not occur for years. Such certainly has been the

case for Mr. Beustring.

Middlesex was not intended to apply in cases such as

this where the state procedure fails to provide a timely

opportunity to raise constitutional issues and, conse-

quently, an opportunity for swift judicial resolution of

constitutional claims. Thus, certiorari should be granted to

clarify the limits of the abstention doctrine as discussed

and applied in Middlesex.

2. The relevant holding in Middlesex, as interpreted

by the district court in this case, is inconsistent with

Dombrowski v. Pfister, 380 U.S. 479 (1965), and the

interpretation of Dombrowski in Justice Brennan’s opinion

in Perez v. Ledesma, 401 U.S. 82 (1971). Dombrowski and

Perez emphasize the established principle that the federal

courts are the primary guardian of constitutional rights.

This guardianship is necessary to prevent a person from

being subjected to the burden of defending himself against

a proceeding that isitself unconstitutional. Proceedings

where a party is unable to raise a constitutional defense

and must wait for years to have the constitutional claim

heard by a judicial body are proceedings that fail to

adequately protect the important constitutional rights at

stake. Thus, an aggrieved party is permitted to bring a

civil claim in federal court for relief. Dombrowski, 380 U.S.

at 486; Perez, 401 U‘S. at 118. Accordingly, the district

court’s interpretation of Middlesex is in direct conflict with

Dombrowski. The Court should accept certiorari to har-

monize its holdings: See Harlow v. Fitzgerald, 457 US.

800, 822 n.2 (1982) (Burger, C.J., dissenting) (noting that

the Supreme Court has “an obligation to try to harmonize

its holdings”).

) Lack of a Swift Resolution of Constitutional

Challenges

The lower courts found that Oklahoma’s attorney

disciplinary procedures provided Petitioner with an

adequate opportunity to raise his jurisdictional claims or

challenges. In reaching this conclusion, the lower courts

relied on Middlesex County Ethics Comm. v. Garden State

Bar Ass’n, 457 U.S. 423 (1982). Specifically, the district

court focused on footnote 15, in which the Court stated

that, even if the New Jersey Supreme Court had not

altered its rules to permit an interlocutory constitutional

challenge, the attorney had an adequate opportunity to

raise constitutional issues upon an ultimate review of the

10

decision of the disciplinary review board by the New

Jersey Supreme Court. \ :

The treatment of Mr. Beustring by the Oklahoma

Supreme Court is the antitheses of the treatment afforded

in Middlesex:

Indeed, the decision of the New Jersey Supreme

Court to consider respondent Hinds’ constitu-

tional challenges indicates that the state court

desired to give Hinds a swift judicial resolution of

his constitutional claims.

Middlesex, at fn. 16.

The lower court’s reasoning is premised solely on the

provisions in the preceding footnote, note 15. The district

court’s order dismissing the case provides:

Having carefully reviewed the parties’ submis-

sions, and the applicable law, the Court finds

that Beustring has failed to establish that he will

be deprived of an adequate opportunity to raise

his constitutional claims in the bar disciplinary

proceeding. While Rule 6.4 of the Rules Governing

Disciplinary Proceedings provides that a respon-

dent lawyer may not challenge a disciplinary com-

plaint by demurrer or motion, the Court finds that

this rule does not preclude a respondent lawyer

from raising constitutional issues in his answer

or addressing and presenting evidence on such

issues during the proceedings before the PRT.

Further, the Court finds that while the PRT can

not ultimately determine the merits of any con-

stitutional challenge, the PRT can forward its

concerns and make recommendations to the

Oklahoma Supreme Court, which, upon de novo

review, does consider and ultimately determine

the merits of any constitutional challenge. The

11

- Court finds that Oklahoma’s bar disciplinary

procedures provide Beustring with an adequate

opportunity to raise his constitutional claims. See

Middlesex, 457 U.S. at 436 n.15 (noting that in-

dividual has adequate-opportunity to raise con-

stitutional claims even if state supreme court

does not grant interlocutory review of constitu-

tional issues but only addresses those issues

upon its ultimate review of decision of discipli-

nary review board).

The district court erroneously determined that Okla-

homa’s attorney disciplinary proceedings afforded an

adequate opportunity to raise constitutional challenges

based on the provisions in footnote 15 in Middlesex,

without considering the provisions of the following foot-

note, in which it was noted that the State had indicated a

desire to give the attorney a “swift resolution of his consti-

tutional claims.” No swift resolution of constitutional

claims exists in Oklahoma’s disciplinary proceedings.

The Oklahoma proceedings do not afford an attorney

subject to discipline a timely or swift resolution of constitu-

tional issues, as contemplated by Middlesex. The discipli-

nary complaint against Mr. Beustring was filed September

30, 2003. The Oklahoma Supreme Court Docket’ (App. 22-

29) shows that, after completion of the proceedings before

the Professional Responsibility Tribunal and the submis-

sion of a report by that entity, the parties submitted their

briefs to the Oklahoma Supreme Court. The briefing was

completed September 24, 2004 (App. 27). The case was

thereafter assigned to the Oklahoma Supreme Court on

November 10, 2004 (App. 28). The proceedings, and the

* Available at www.oscn.net, Appellate Docket No. SCBD-4849.

12

resolution of Mr. Beustring’s First Amendment challenge,

remain pending before the Oklahoma Supreme Court,

more than one year after the proceedings were submitted

to that Court for de novo review and consideration and

more than two years (28 months as of 2-1-06) since the

original disciplinary charges were filed.

This extreme delay is even longer than the time

required by former State Senator E. Melvin Porter to

obtain a vindication of his First Amendment right to

freedom of speech almost twenty (20) years ago. See State

ex rel. Okla. Bar Ass’n v. Porter, 1988 OK 114, 766 P.2d

958. The conduct that subjected Mr. Porter to the bar

disciplinary proceedings was his criticism of a federal trial

judge, which occurred at the completion of a criminal trial

in federal court in Oklahoma City, Oklahoma, some time

between March and August 1986.° The Oklahoma Su-

preme Court reviewed the trial panel’s decision and Mr.

Porter’s constitutional claim and issued a decision vindi-

cating Mr. Porter on October 18, 1988. Porter, 1988 OK

114, 432, 766 P.2d at 969.

In contrast, it has been more than three years since

Mr. Beustring criticized members of the Oklahoma Su-

preme Court on January 7, 2003. Surely this extreme

delay cannot be characterized as a swift judicial resolution

* The decision on appeal from that criminal trial, United States v.

McIntyre, 836 F.2d 467 (10th Cir. 1987), shows that the charges against

McIntyre resulted from an event occurring March 24, 1986. The exact

date the McIntyre trial concluded, when Senator Porter made the

remarks criticizing the federal trial judge, is not discussed in the

federal court opinion. The McIntyre appeal, No. 86-2212, was filed

August 15, 1986. Accordingly, the statements must have been made

sometime between March 24 and August 15, 1986.

13

of such important constitutional rights. On this basis, the

Court should grant certiorari.

II. Conflicts Exist Between Middlesex and Dom-

browski on the Federal Courts’ Role in Pro-

tecting Constitutional Rights

The lower courts’ interpretation of Middlesex is

inconsistent with Dombrowski v. Pfister, 380 U.S. 479

(1965), as expanded upon in Justice Brennan’s opinion in

Perez v. Ledesma, 401 U.S. 82 (1971). In Dombrowski, 380

U.S. at 485-86, the Court provided that jurisdiction should

be exercised when:

the allegations [of the] complaint depict a situa-

tion in which defense of the State’s criminal

prosecution will not assure adequate vindication

of constitutional rights [and] [t]hey suggest that

a substantial loss or impairment of freedoms of

expression will occur if appellants must await

the state court’s disposition and ultimate review

in this Court of any adverse determination.

These allegations, if true, clearly show irrepara-

ble injury.

Justice Brennan considered this language in his

separate opinion in Perez v. Ledesma, 401 U.S. at 116-18:

Dombrowski ... recognized that exceptional cir-

cumstances may justify federal intervention

when the opportunity to raise constitutional de-

fenses at the state criminal trial does not assure

protection of the constitutional rights at stake.

Dombrowski considered two situations in which

‘exceptional circumstances’ can exist. First, if in

order to discourage conduct protected by the

First Amendment or by some other provision of

14

the Constitution, a State brings or threatens to

bring a criminal prosecution in bad faith for the

purpose of harassment, the bringing of the prose-

cution or the threat is itself a constitutional dep-

rivation since it subjects a person to a burden of

criminal defense which he should not have to

bear, and there then exists a situation ‘in which

_ defense of the State’s criminal prosecution will

not assure adequate vindication of constitutional

rights. Accordingly, in this context a civil suit is

an appropriate means to cut short the unconsti-

tutional state prosecution. The civil suit for re-

medial relief may appropriately be brought in

federal court since the federal courts are the

primary guardians of constitutional rights ...

Thus in Dombrowski we held that in cases in

these categories federal courts may properly in-

tervene in order to assure the full protection of

federal constitutional right.

(Citations and footnotes omitted.)

Dombrowski and Perez affirm the principle that the

federal courts are the primary guardian of constitutional

rights and will protect a person seeking remedial relief

from an unconstitutional state prosecution. The person

subject to the punitive state proceedings is net required to

endure protracted litigation before having an opportunity

to have his constitutional claims heard. Dombrowski, 380

U.S. at 487. An immediate resolution of such claims is

necessary to protect against the constitutional deprivation

inherent in the state proceeding itself. Jd. at 489 (interest

in immediate resolution and final adjudication of the

constitutional claims); Perez, 401 U.S. at 118. ‘

Yet an ongoing constitutional deprivation is exactly

what is happening in this case. Mr. Beustring has been

15

forced to shoulder the burden of defending himself in discpli-

nary proceedings when he should not have to do so. This

injury, coupled with the lack of an opportunity to seek timely

consideration of his constitutional claims in the state pro-

ceedings, results in the complete denial of a forum in which

Beustring may seek complete relief for the State’s infringe-

ment of his constitutional right to free expression. If the

lower court’s interpretation is left uncorrected, the result is

the implicit overruling of Dombrowski. Clearly, this is an

’ undesirable result. Mr. Beustring and others similarly-

situated should have the opportunity to seek relief in federal

court for constitutional deprivations committed by the State.

Ill. Petition for Certiorari Standards

Both of these issues qualify for review on.certiorari

pursuant to United States Supreme Court Rule 10, which

provides in part:

Review on a writ of certiorari is not. asaatter of

right, but of judicial discretion. A petition for a

writ of certiorari will be granted only for compel-

ling reasons. The following, although neither con-

trolling nor fully measuring the Court’s discretion,

indicate the character of the reasons the Court

considers:

* * + *

(c) a state court or a United States court of ap-

peals has decided an important question of fed-

eral law that has not been, but should be settled

by this Court, or has decided an important ,*d-

eral question in a way that conflicts with relevant

decisions of this Court. [Emphasis supplied.]

r

4

16

CONCLUSION

Middlesex did not contemplate the situation where

consideration by the State’s Supreme Court of a lawyer’s

constitutional defense in a disciplinary proceeding would

not occur for years, after protracted litigation and extreme

delays. The Court should grant certiorari to determine

whether it is appropriate to exisnd Middlesex to such

circumstances.

Further, Middlesex, as interpreted by the lower courts

to apply to these circumstances, is in direct conflict with

this Court’s jurisprudence in Dombrowski and Perez.

Respectfully-submitted,

MuRRAY E. ABOWITZ,

OBA No. 000117

ABOWITZ, TIMBERLAKE &

DAHNKE, P.C.

P.O. Box 1937

Oklahoma City, Oklahoma 73101

Telephone: (405) 236-4645

Facsimile: (405) 239-2843

Counsel for Petitioner

App. 1

143 Fed. Appx. 997 <

APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT _

GLENN R. BEUSTRING,

Plaintiff-Appellant,

v.

THE OKLAHOMA BAR No. 04-6091

ASSOCIATION, the agent W.D. Oklahoma

and an official arm of the

Supreme Court of Oklahoma, (D.C. No. CIV-03-1538-M)

through its General Counsel,

Dan Murdock,

Defendant-Appellee.

ORDER AND JUDGMENT*

(Filed September 29, 2005)

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit

Judges.

Attorney Glenn R. Beustring brought this 42 U.S.C.

§ 1983 action against the Oklahoma Bar Association and

* This order and judgment is not binding precedent, except under

the doctrines of law of the case, res judicata, and collateral estoppel.

The court generally disfavors the citation of orders and judgments;

nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3.

App. 2

certain individuals, challenging disciplinary proceedings

brought against him by the Bar. Counsel for the parties

agreed at oral argument that the disciplinary proceedings

are still ongoing, having been presented to and remaining

pending before the Oklahoma Supreme Court.

The details of this case, including Mr. Beustring’s

arguments and the underlying facts and procedural

history, are set forth in detail in two orders entered by the

district court, dated, respectively, March 1, 2004, and

March 23, 2004, and we need not repeat them here. In

those orders, the district court concluded that “it should

abstain from exercising jurisdiction over the case at bar

under the Younger/Middlesex abstention doctrine.” Ac-

cordingly, the court dismissed the action on that basis.

Likewise, the district court denied the plaintiff/appellant’s

Fed. R. Civ. P. 59(e) motion to vacate the judgment, citing

the same grounds set forth in the court’s initial opinion.

We have reviewed Mr. Beustring’s arguments on

appeal claiming that the district court erred in its judg-

ment, and we are unpersuaded. Substantially for the

reasons and-on the grounds set forth in the district court’s

opinions referred to above, the judgment of the district

court is AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge

' Younger v. Harris, 401 U.S. 37 (1971); Middlesex County Ethics

Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982).

App. 3

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF OKLAHOMA

GLENN R. BEUSTRING,

individually and as an attorney

admitted to practice law in the

State oi Oklahoma and a member

of the Oklahoma Bar Association,

Plaintiff,

VS.

OKLAHOMA BAR ASSOCIATION,

- the agent and an official arm of

the Supreme Court of Oklahoma

through its General Counsel, Dan

Murdock; and PROFESSIONAL

RESPONSIBILITY TRIBUNAL,

through its members, Kenneth L.

Delashaw, Jr., Peggy Stockwell

and Neil William McElderry, Jr.,

Defendants.

Case No.

CIV-93-1538-M

elt

ORDER

Before the Court is plaintiff’s Rule 59e) Motion to

Vacate Judgment Entered on Judgment Docket March 1,

2004 and Underlying Order, filed March 15, 2004.

Grounds warranting a motion under Federal Rule of

Civil Procedure 59(e) include “(1) an intervening change in

the controlling law, (2) new evidence previously unavail-

able, and (3) the need to correct error or prevent manifest

injustice.” Servants of the Paraclete v. John Does I-XVI,

204 F.3d 1005, 1012 (10th Cir. 2000). A Rule 59(e) motion

is appropriate “where the court has misapprehended the

App. 4

facts, a party’s position, or the controlling law” but is not

appropriate “to revisit issues already addressed or ad-

vance arguments that could have been raised in prior

briefing.” /d.

In his motion and brief, plaintiff asserts that the

Court committed “manifest errors of fact and law” when it

found that this action does not fall within the bad

faith/harassment exception to the Younger abstention

doctrine. Plaintiff also asserts that he was not afforded an

opportunity to offer evidence on the issues of the alleged

bias and prejudice of the Oklahoma Supreme Court and

the Oklahoma Bar Association’s alleged violation of his

Fourteenth Amendment rights to “due process” and “equal

protection.”

Having carefully reviewed plaintiff’s motion and

brief, the Court finds no grounds which would warrant

vacating the Court’s March 1, 2004 Order and Judgment.

Specifically, the Court finds that it did not commit “mani-

fest errors of fact and law” in making its determination.

The Court also finds that it did not misapprehend the

facts, the parties’ positions, or the controlling law. The

Court further finds that the issues of the alleged bias and

prejudice of the Oklahoma Supreme Court and the Okla-

homa Bar Association’s alleged violation of plaintiff’s

Fourteenth Amendment rights to “due process “equal

protection” were raised in defendants’ motions to dismiss

and that plaintiff was afforded an opportunity to offer

evidence on these issues in both his responses, at the

hearing, and in his supplemental pleadings.

Additionally, the Court finds that in his motion,

plaintiff mere'* reargues issues that were already ad-

dressed by thy Court in its March 1, 2004 Order and

App. 5

Judgment and advances arguments that could have been

raised when the prior motions were briefed, at the hear-

ing, and/or through the supplemental pleadings which the

Court allowed plaintiff to file. Plaintiff simply disagrees

with the Court’s conclusion and seeks to reargue its

position in the hope that the Court changes its mind.

Therefore, for the above reasons, the Court DENIES

plaintiff’s Rule 59(e) Motion to Vacate Judgment Entered

on Judgment Docket on March 1, 2004 and Underlying

Order [docket no. 33].

IT IS SO ORDERED this 23rd day of March,

2004,

/s/ Vicki Miles-LaGrange

VICKI MILES-LAGRANGE

UNITED STATES

DISTRICT JUDGE

j App. 6

APPENDIX C

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF OKLAHOMA

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,

Plaintiff,

VS.

OKLAHOMA BAR ASSOCIATION,

the agent and an official arm of

the Supreme Court of Oklahoma

through its General Counsel, Dan

Murdock; and PROFESSIONAL

RESPONSIBILITY TRIBUNAL,

through its members, Kenneth L.

Delashaw, Jr., Peggy Stockwell

and Neil William McElderry, Jr.,

Defendants.

Case No.

CIV-03-1538-M

ORDER \

On December 29, 2003, defendants filed motions to

dismiss. On January 15, 2004, plaintiff filed his responses.

On February 11, 2004, the Court conducted a hearing on

the issue of whether the instant action falls within an

exception to tie Younger'/ Middlesex’ abstention doctrine.

On February 26, 2004, plaintiff filed his supplemental

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

* Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457

U.S. 423 (1982). ”

App. 7

evidence, and the parties filed proposed findings of fact

and conclusions of law. Based upon the parties’ submis-

sions, and the evidence presented, the Court makes its

determination.

I. Introduction -

Plaintiff Glenn R. Beustring (“Beustring”) is a lawyer

who is currently licensed to practice law in the state of

Oklahoma. Beustring represented the plaintiffs in the case

of Wilson, et al. v. Russell, et al. in the District Court of

Tulsa County. On November 5, 1997, Beustring filed a

Motion to Withdraw in that case because the plaintiffs

could not “receive a fair trial based on pretrial ruling made

by the Court.” This pretrial ruling involved the number of

expert witnesses who could testify for each side — in effect

allowing plaintiffs to have one expert and defendants to

have six or seven experts. On November 18, 1997, Judge

David L. Peterson, the assigned judge, issued an order

allowing Beustring to withdraw and staying the case for

up to sixty days for new counsel to make an entry of

appearance. At the request of his clients, on February 17,

1998, Beustring reentered his appearance in the case. The

matter was subsequently tried to a jury which entered a

verdict for the defendants. Beustring filed a motion for a

new trial, which the trial court denied. Beustring appealed

that order to the Oklahoma Supreme Court

The appeal was assigned to the Oklahoma Court of

Civil Appeals, which reversed the decision and remanded

the matter back to the district court. Upon remand, Judge

Peterson recused, and the case was assigned to Judge

App. 8

Deborah C. Shallcross.’ The matter was set for trial on

January 13, 2003. Beustring objected to the trial setting

and repeatedly sought to have the trial continued.* Con-

temporaneous with his efforts in the trial court, Beustring

also sought a continuance of the trial setting from the

Oklahoma Supreme Court; on December 31, 2002, Beus-

tring filed an application to strike the trial setting and to

stay all district court proceedings in the case.

Additionally, on September 6, 2002, Beustring filed an

Application to Assume Original Jurisdiction and Petition

for Writ of Mandamus with the Okiahoma Supreme Court.

Beustring sought to invoke the Oklahoma Supreme

Court’s original jurisdiction in an effort to disqualify Judge

Shallcross and to secure appellate review of certain legal

issues before being required to retry the case. On Novem-

ber 12, 2002, the Oklahoma Supreme Court issued a Writ

of Mandamus commanding Judge Shalicross to vacate a

portion of her order which concerned discovery but deny-

ing all other requests for relief. On December 2, 2002,

Beustring filed a Petition for Rehearing regarding the

November 12, 2002 Order.” On January 7, 2003, the

> Beustring requested Judge Shallcross disqualify herself and

recuse from the case. Judge Shallcross denied Beustring’s request.

Beustring further sought Judge Shallcross’ disqualification from the

Chief Administrative Judge of Tulsa County, who also denied Beus-

tring’s request.

* On December 16, 2002, Beustring filed with the trial court an

emergency application to strike the trial scheduled for January 13,

2003. On December 26, 2002, Beustring filed with the trial court a

second motion to strike trial, and on January 3, 2003, Beustring filed

with the trial court a third motion to strike trial.

* One of the issues raised in the mandamus action and the petition

for rehearing was the trial court’s refusal to allow discovery of “witness

tampering” by lawyers retained by the Physicians Liability Insurance

(Continued on following page)

App. 9

Oklahoma Supreme Court entered an order denying the

Petition for Rehearing.

On the afternoon of January 7, 2003, Beustring hand-

delivered a letter addressed to the Oklahoma Supreme

Court. That letter provided:

Please accept this letter as my resignation

from the Oklahoma Bar Association effective

sixty (60) days from this date so that I can ar-

range for the orderly transfer of existing clients

to new counsel.

As a lawyer, I am statutorily obligated to re-

spect you. Your denial of the Wilson’s Petition for

Rehearing leaves me without spiritual or physi-

cal 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

victims of medical negligence — in this instance,

the Wilsons — is an embarrassment to the “Rule

of Law” — a repudiation of your duty to safe-

guard the rights of the public under the Okla-

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

area of medical negligence law, evil lawyers and

their “puppet” judges have flourished under your

supervision.

Last Sunday, at church, my mother handed

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

Company of Oklahoma (“PLICO”) and its sealing of documentary

evidence of “witness tampering” by members of the medical defense bar

without the required evidentiary showing.

App. 10

sin by silence when they should protest, makes

cowards of men.”

Plaintiff’s hearing exhibit 1 (emphasis in original).

On January 8, 2003, Beustring appeared before a

referee of the Oklahoma Supreme Court at a hearing on

his application for an emergency stay of the trial setting.

At that time, Beustring advised the Referee and opposing

counsel that he had tendered a letter resigning from the

practice of law. That afternoon, the Oklahoma Supreme

Court granted an emergency stay of the trial based upon

Beustring’s filing of an application to withdraw as attor-

ney in the case and his letter sent to the Oklahoma Su-

preme Court withdrawing from the practice of law.

On January 22, 2003, Beustring hand-delivered to the

Oklahoma Supreme Court a request to withdraw his

resignation. According to Beustring, the letter was ten-

dered after he received a call from General Counsel, Dan

Murdock, advising him that the “conditional” resignation

was ineffectual due to the fact that it attempts to reserve

sixty (60) days in order to transfer clients to other counsel

and, therefore, could not be accepted. Beustring also

asserts that Mr. Murdock stated that he would like to

come to Tulsa to talk Beustring out of resignation from the

Bar because “we need lawyers like you.” Mr. Murdock,

however, never came to Tulsa.

On February 28, 2003, after being unable to find

substitute counsel, Beustring filed an entry of appearance

in the Wilson case. Beustring served as counsel for the

plaintiffs in that action which proceeded to trial on July 7,

2003. On or about July 30, 2003, Beustring filed an origi-

nal action with the Oklahoma Supreme Court requesting

that court to vacate its decision in the mandamus action

App. 11

for “fraud on the court.” On September 15, 2003, the

Oklahoma Supreme Court dismissed the “fraud on the

court” action.

On September 30, 2003, defendant Oklahoma Bar

Association (“OBA”) filed a bar complaint against Beus-

tring. The Complaint alleges that Beustring’s resignation

was a subterfuge designed to secure a continuance of the

trial setting and that Beustring thereby effected a con-

tinuance which the trial court had denied him. Bar Com-

plaint at { 31. The Complaint asserts that this conduct

violated Rules 3.5(d),° 8.4(c),’ and 8.4(d)° and constitutes

grounds for professional discipline. Bar Complaint at { 32.

Further, the Complaint alleges:

[Beustring’s] conduct thereby (specifically his

comments that the Supreme Court was engaged

in a game of “three monkeys,” that the Supreme

Court was “choosing to ignore the evil,” that the

Supreme Court should be “impeached and not

honored,” and that “‘puppet’ judges have flour-

ished” under the supervision of the Supreme

Court) violated Rule 8.2(a), ORPC,’ and Rule 1.3,

* Rule 3.5(d) provides, in pertinent part: “{a] lawyer shall not ...

engage in conduct intended to disrupt a tribunal.” Rule 3.5(d), Okla-

homa Rules of Professional Conduct, Okla. Stat. tit. 5, Ch. 1, App. 3-A.

7 Rule 8.4(c) provides, in pertinent part: “li]t is professional

misconduct for a lawyer to ... engage in conduct involving dishonesty,

fraud, deceit or misrepresentation. .. .” Rule 8.4(c), Oklahoma Rules of

Professional Conduct, Okla. Stat. tit. 5, Ch. 1, App. 3-A.

* Rule 8.4(d) provides, in pertinent part: “liJt is professional

misconduct for a lawyer to ... engage in conduct that is prejudicial to

the administration of justice....” Rule 8.4(d), Oklahoma Rules of

Professional Conduct, Okla. Stat. tit. 5, Ch. 1, App. 3-A.

* Rule 8.2(a) provides, in pertinent part: “[a] lawyer shall not make a

statement that the lawyer knows to be false or with reckless disregard as

(Continued on following page)

App. 12

RGDP,” and constitutes grounds for professional

discipline.

Bar Complaint at J 33.

On November 5, 2003, Beustring filed the instant

action against the OBA and the Professional Responsibil-

ity Tribunal (“PRT”). In his Complaint, Beustring seeks (1)

a declaratory judgment that the disciplinary proceedings

against him were brought in “bad faith” and without

“probable cause” under color of state law and subjected or

caused him to be subjected to the deprivation of rights

secured by the First Amendment and the Due Process

Clause of the Fourteenth Amendment to the United States

Constitution; (2) a permanent injunction enjoining the

OBA, the General Counsel and other members of his staff,

and the PRT from taking any further action in the disci-

plinary action, including the PRT’s submission of a report

or recommendation to the Oklahoma Supreme Court; and

(3) an award of his fees and costs in this action pursuant

to 42 U.S.C. § 1988.

In his Complaint, Beustring alleges that the charges

asserted against him in the OBA Complaint are based on

“information and belief,” not evidence, much less clear and

convincing evidence — the standard applicable in disciplinary

to its truth or falsity concerning the qualifications or integrity of a

judge, adjudicatory officer or public legal officer, or of a candidate for

election or appointment to judicial or legal office.” Rule 8.2(a), Okla-

homa Rules of Professiona] Conduct, Okla. Stat. tit. 5, Ch. 1, App. 3-A.

* Rule 1.3 provides, in pertinent part: “[t]he commission by any

lawyer of any act contrary to prescribed standards of conduct, whether

in the course of his professional capacity, or otherwise, which act would

reasonably be found to bring discredit upon the legal profession, shall

be grounds for disciplinary action....” Rule 1.3, Oklahoma Rules

Governing Disciplinary Proceedings, Okla. Stat. tit. 5, Ch. 1, App. 1-A.

App. 13

proceedings. Beustring asserts that the statements con-

tained in his letter to the Supreme Court Justices consti-

tute speech on vital issues of self-government protected by

the First Amendment and that his exercise of protected

rights under the First Amendment was a substantial or

motivating factor in the filing of the OBA Complaint.

Beustring also alleges that the OBA knew or should have

known of controlling Oklahoma Supreme Court precedent

and that without proof that the statements Beustring

made were false, the Professional Responsibility Commis-

sion was foreclosed from prosecuting him under the First

Amendment.

Additionally, Beustring alleges that the OBA Com-

plaint was filed in “bad faith” and without “probable

cause” for constitutionally impermissible reasons — the

suppression of protected speech and retaliation against

him for exercising his First Amendment right to criticize

the Oklahoma Supreme Court’s summary denial of the

petition for rehearing filed in the mandamus action.

Finally, Beustring asserts that the filing of the OBA

Complaint and scheduled prosecution of him has had and

will continue to have a significant chilling effect on speech

that cannot be avoided by proceedings before the PRT and

the Oklahoma Supreme Court.

II. Discussion

Defendants have now filed motions to dismiss, assert-

ing that this Court should abstain from exercising juris-

diction in this matter based upon Younger and Middlesex.

“Under the Younger abstention doctrine, federal courts

should not interfere with state court proceedings by grant-

ing equitable relief — such as injunctions of important state

App. 14

proceedings or declaratory judgments regarding constitu-

tional issues in those proceedings — when a state forum

provides an adequate avenue for relief.” Weitzel v. Div. of

Occupational and Prof’ Licensing of the Dep't. of Com-

merce of the State of Utah, 240 F.3d 871, 875 (10th Cir.

2001) (internal quotations and citation omitted). In Mid-

dlesex, the United States Supreme Court extended the

Younger abstention doctrine to state bar disciplinary

proceedings. Middlesex, 457 U.S. at 431-37.

A. Applicability of Younger Abstention Doctrine

Under the Younger abstention doctrine, a federal court

must abstain from exercising jurisdiction when: (1) there

is an ongoing state judicial proceeding; (2) the state

proceedings implicate important state interests, and (3)

there is an adequate opportunity in the state proceedings

to hear the claims raised in the federal complaint. Weitzel,

240 F.3d at 875. “Younger abstention is non-discretionary;

the district court must abstain once the conditions are

met, absent extraordinary circumstances.” /d. In the case

at bar, the parties do not dispute that the first two condi-

tions are met — that the bar disciplinary proceeding

against Beustring is an ongoing state judicial proceeding

and that it implicates important state interests. The

Supreme Court’s holding in Middlesex further supports a

finding that the first two conditions are met.

The parties do, however, dispute whether the third

condition — whether there is an adequate opportunity in

the bar disciplinary proceeding to raise Beustring’s consti-

tutional challenges — is met. Beustring asserts that there

is no timely or adequate procedure available to him to

raise constitutional issues in the course of the disciplinary

App. 15

proceedings. Specifically, Beustring asserts that under the

Oklahoma Rules Governing Disciplinary Proceedings, he

does not have a right to have the constitutional issues

considered before or during a trial before the PRT and that

the constitutional issues can only be considered in the

subsequent de novo review Ly the Oklahoma Supreme

Court. Beustring further asserts that the Oklahoma

Supreme Court is presumptively not a fair and impartial

tribunal because the letter at issue was written to justices

of the Supreme Court.

It is the plaintiff’s burden to establish that the state

procedures are inadequate. Butler v. Ala. Judicial Inquiry

Comm'n, 245 F.3d 1257, 1262 (11th Cir. 2001). “Minimal

respect for the state processes, of course, precludes any

presumption that the state courts will not safeguard

federal constitutional nghts.” Jd. (internal quotations and

citations omitted) (emphasis in original).

Having carefully reviewed the parties’ submissions,

and the applicable law, the Court finds that Beustring has

failed to establish that he will be deprived of an adequate

opportunity to raise his constitutional claims in the bar

disciplinary proceeding. While Rule 6.4 of the Rules

Governing Disciplinary Proceedings provides that a

respondent lawyer may not challenge a disciplinary

complaint by demurrer or motion, the Court finds that this

rule does not preclude a respondent lawyer from raising

constitutional issues in his answer or addressing and

presenting evidence om such issues during the proceedings

before the PRT. Further, the Court finds that while the

PRT can not ultimately determine the merits of any

constitutional challenge, the PRT can forward its concerns

and make recommendations to the Oklahoma Supreme

Court, which, upon de novo review, does consider and

App. 16

ultimately determine the merits of any constitutional

challenge. The Court finds that Oklahoma’s bar discipli-

nary procedures provide Beustring with an adequate

opportunity to raise his constitutional claims. See Middle-

sex, 457 U.S. at 436 n.15 (noting that individual has

adequate opportunity to raise constitutional claims even if

state supreme court does not grant interlocutory review of

constitutional issues but only addresses those issues upon

its ultimate review of decision of disciplinary review board).

Further, if state law requires the recusal of judges

under proper circumstances and provides a mechanism to

replace such judges, the adequacy of an individual's

opportunity to present constitutional claims is not altered

based upon allegedly biased judges. Kugler v. Helfant, 421

U.S. 117, 127-29 (1975); Flangas v. State Bar of Nev., 655

F.2d 946, 950 (9th Cir. 1981). In Oklahoma, a judge or

justice must disqualify himself if he has a personal inter-

est or bias concerning a party or has knowledge of an

evidentiary fact. Canon 3(E), Oklahoma Code of Judicial

Conduct, Okla. Stat. tit. 5, Ch. 1, App. 4. In the event of a

disqualification of a Supreme Court Justice, the Governor

of Oklahoma is required to appoint a member of the bar

with similar qualifications to sit in his or her place. Okla.

Stat. tit. 20, § 1402. Accordingly, the Court finds that the

allegation that Beustring can not receive a fair hearing

before the Oklahoma Supreme Court because six members

of that court received the letter at issue and because the

letter was highly critical of that court does not alter this

Court’s conclusion that Beustring has an adequate oppor-

tunity to present his constitutional claims in the bar

disciplinary proceeding.

App. 17

B. Applicability of Exception to Younger Abstention

Doctrine

The Younger abstention doctrine is inapplicable in

cases (1) commenced in bad faith or to harass, (2) based on

a flagrantly and patently unconstitutional statute, or (3)

related co any other extraordinary circumstance creating a

threat of “irreparable injury” both great anc immediate.

Phelps v. Hamilton, 59 F.3d 1058, 1064 (10th Cir. 1995).

In considering whether a federal plaintiff meets

one of the exceptions to Younger abstention, fed-

eral courts must balance the necessity of protect-

ing an individual’s exercise of his or_ her

constitutional rights with a prosecutor’s discretion

in selecting certain actions for [] prosecution.

Moreover, federalism concerns counsel against

federal court intervention into state prosecutions

so that the state judiciary opportunity will have

the opportunity to correct any prosecutorial vio-

lations of an individual’s constitutional rights.

These twin rationales of respecting prosecutorial

discretion and federalism explain why the excep-

tions to Younger only provide for a very narrow

gate for federal intervention.

Id. (internal quotations and citation omitted).

Beustring asserts that this action falls within an

exception to the Younger abstention doctrine because the

disciplinary proceedings against him were commenced in

bad faith, for harassment, to punish him for exercising his

First Amendment right to criticize the Oklahoma Supreme

Court, and to deter him from exercising such right in the

future. The Tenth Circuit considers three factors in deter-

mining whether a state action was commenced in bad faith

or was intended to harass:

App. 18

(1) whether it was frivolous or undertaken with

no reasonably objective hope of success; (2)

whether it was motivated by defendant’s suspect

class or in retaliation for the defendant’s exercise

of constitutional rights; and (3) whether it was

conducted in such a way as to constitute harass-

ment and an abuse of prosecutorial discretion,

typically through the unjustified and oppressive

use of multiple prosecutions.

Weitzel, 240 F.3d at 877 (internal quotations and citation

omitted). “Ordinarily, a bad faith prosecution will not be

predicated upon probable cause. However, if prosecutions

are brought for the purpose of chilling or preventing a

defendant from exercising his or her constitutional rights,

this may constitute a harassing and/or bad faith prosecu-

tion, even though the charges are predicated on probable

cause.” Phelps, 59 F.3d at 1064-65 n.12. A plaintiff has a

heavy burden of proof in order to overcome the bar of

Younger abstention — a plaintiff must set forth more than

mere allegations of bad faith or harassment; he must prove

bad faith or harassment before intervention is warranted.

Weitzel, 240 F.3d at 877; Phelps, 59 F.3d at 1066.

Having reviewed the parties’ submissions and the

evidence presented, the Court finds that Beustring has not

presented sufficient evidence to satisfy his heavy burden

of proving that the disciplinary proceeding was brought in

bad faith or to harass. Specifically, the Court finds that

Beustring has not presented sufficient evidence that

the OBA Complaint is frivolous or that the disciplinary

proceeding was undertaken with no reasonably objective

hope of success. Beustring, in fact, has offered nothing

more than his own conclusory assertions of bad faith and

harassment. Further, evidence has been presented that

the OBA investigated the bar complaint made against

App. 19

Beustring, researched the constitutional issues and

determined that the First Amendment was not implicated,

and is prepared to present witnesses and documentary

evidence to support the complaint. The Court also finds

that Beustring has presented no evidence that the bar

disciplinary proceeding was commenced to punish him for

exercising his First Amendment right to criticize the

Oklahoma Supreme Court and to deter him from exercis-

ing such right in the future. Accordingly, the Court finds

that the instant action does not fall within the bad

faith/harassment exception to the Younger abstention —

doctrine."

III. Conclusion

For the reasons set forth above, the Court finds that it

should abstain from exercising jurisdiction over the case at

bar under the Younger/Middlesex abstention doctrine.

Accordingly, the Court GRANTS the PRT’s Motion to

Dismiss [docket no. 10], GRANTS the OBA’s Motion to

Dismiss [docket no. 12], and DISMISSES this action.

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

/s/ Vicki Miles-LaGrange

VICKI MILES-LAGRANGE

UNITED STATES

DISTRICT JUDGE

ENTERED ON JUDGMENT DOCKET ON 3/1/04

" Beustring does not assert, and the Court does not find, that any

other exception to the Younger abstention doctrine is applicable.

App. 20

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GLENN R. BEUSTRING, .

Plaintiff-Appellant,

= No. 04-6091

THE OKLAHOMA BAR

ASSOCIATION, the agent and

an official arm of the Supreme

Court of Oklahoma, through it’s

General Counsel, Dan Murdock,

Defendant-Appellee.

ORDER

Filed November 7, 2005

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit

Judges.

Appellant’s petition for rehearing is denied.

The petition for rehearing en banc was transmitted to

ali of the judges of the court who are in regular active

service. As no member of the panel and no judge in regular

App. 21

active service on the court requested that the court be

polled, that petition is also denied.

Entered for the Court

CLERK, COURT OF APPEALS

by: /s/ [{Illegible]

Deputy Clerk

App. 22

APPENDIX E

OSCN www.oscn.net

THE OKLAHOMA STATE COURTS NETWORK

Home Courts Court Dockets Legal Research Calendar Help

The information contained in this report is provided in

compliance with the Oklahoma Open Records Act, 51 O.S.

§ 24A.1. Use of this information is governed by this act, as

well as other applicable state and federal laws.

IN THE SUPREME COURT OF THE

STATE OF OKLAHOMA

OKLAHOMA BAR ASSOCIATION,

Complainant, No. SCBD-4849

~. (Disciplinary Rule 6)

Glenn R. Beustring, Filed: 11/07/2003

Respondent.

Parties

Beustring, Glenn R., Respondent

OKLAHOMA BAR ASSOCIATION, Complainant

Attorneys

Attorney Represented Parties

Abowitz, Murray E(Bar #117) Beustring, Glenn R.

Abowitz Rhodes Dahnke, PC

P O BOX 1937

Oklahoma City, OK 73101

App. 23

WELCH, ALLEN J(Bar #) OKLAHOMA BAR

ASSISTANT GENERAL ASSOCIATION

COUNSEL

OKLAHOMA BAR ASSOCIATION

P.O. BOX 53036

OKLAHOMA CITY, OK 73152

Lower Court Counts and Other Information

Count Case Number Statute Crime Special

Sentence Judge Reporter :

0-1590

Docket

Line Date Code Entry Date

11/07/2003 CPLT Nov 7 2003 12:55:11:533PM

Complaint

11/07/2003 TEXT Nov 7 2003 12:57:15:720PM

ENTRY OF APPEARANCE —

MURRY [sic] A. ABOWITZ

11/07/2003 TEXT Nov 7 2003 12:58:20:920PM

RESPONDENTS MOTION TO

ENLARGE TIME FOR ANSWER-

ING COMPLAINT TO NOVEMBER

10, 2003 AND CONTINUANCE OF

TRIAL SETTING

11/07/2003 TEXT Nov 7 2003 1:00:30:700PM

JE: ORDER - WATT, CJ; THE

RESPONDENT GLENN R. BEUS-

TRING BY HIS COUNSEL IS

GRANTED TO NOVEMBER 6, 2003

TO FILE HIS ANSWER TO THE

COMPLAINT FILED HEREIN.

11/07/2003

11/07/2003

11/07/2003

11/07/2003

11/07/2003

11/13/2003

11/13/2003

11/24/2003

12/10/2003

12/15/2003

TEXT

TEXT

TEXT

PAY

TEXT

TEXT

TEXT

TEXT

TEXT

App. 24

Nov 7 2003 1:00:50:527PM

RESPONDENT'S ANSWER

Nov 7 2003 1:01:11:540PM

RESPONDENT'S MOTION TO DIS-

MISS COMPLAINT

Nov 7 2003 1:02:18:620PM

APPELLANT’S MOTION TO STAY

Nov 7 2003 12:48:44:790PM

Disciplinary Rule 6 Initial Filing

Nov 7 2003 12:49:28:367PM

Receipt # 20945 on 11/07/2003.

OKLAHOMA BAR ASSOCIATION

V. GLENN R. BEUSTRINC Payor:

ALLEN J WELCH Tots: Amount

Paid: $ 0.00. Line Items: $0.00 on

Disciplinary Rule 6 Initial Filing.

Nov 13 2003 2:24:43:150PM

COMPLAINTS RESPONSE TO

MOTION TO STAY

Nov 13 2003 2:25:08:100PM

COMPLAINANT’S RESPONSE TO

MOTION TO DISMISS

Nov 24 2003 2:18:09:587PM

SCHEDULING ORDER

Dec 10 2003 2:58:13:463PM

REQUEST FOR AN EXTENSION

OF TIME

Dec 15 2003 2:33:32:993PM

ORDER ALLOWING EXTENSION

OF TIME /S/ KENNETH eL.

DELASHAW, JR. PM

12/15/2003

12/23/2003

01/12/2004

01/13/2004

01/15/2004

02/05/2004

02/24/2004

03/03/2004

03/15/2004

03/22/2004

03/23/2004

TEXT

TEXT

TEXT

TEXT

TEXT

TEXT

TEXT

TEXT

TEXT

TEXT

TEXT

App. 25

Dec 15 2003 2:33:55:213PM

ORDER DENYING MOTION TO

DISMISS /S/ KENNETH L.

DELASHAW, JR.

Dec 23 2003 4:15:27:410PM

RSPNT’S MOTION FOR CLARIFI-

CATION

Jan 12 2004 4:00:42:387PM

RSPNT’S WITNESS LIST

Jan 13 2004 2:34:01:330PM

ORDER DENYING MOTION TO

STAY (PRT)

Jan 15 2004 4:36:38:800PM

EXHIBIT LIST OF RESPONDENT

Feb 5 2004 3:41:55:010PM

COMPLAINANT’S WITNESS AND

EXHIBIT LIST

Feb 24 2004 3:24:03:640PM

OBJECTION TO RSPNT’S EXHIB-

ITS

Mar 3 2004 3:12:13:190PM

ORDER FOR CONTINUANCE (PRT)

Mar 15 2004 4:56:02:950PM

RESPONDENT'S MOTION TO SUP-

PLEMENT WITNESS AND EX-

HIBITS LISTS

Mar 22 2004 3:06:20:297PM

COMPLAINANTS MOTION

SUPPLEMENT EXH LIST

Mar 23 2004 3:59:28:970PM

COMPLAINANT’S MOTION TO

STRIKE WITNESSES

TO

03/26/2004

03/29/2004

03/30/2004

03/30/2004

06/22/2004

06/22/2004

06/23/2004

06/24/2004

07/01/2004

08/05/2004

08/10/2004

ATBC

TEXT

TEXT

TEXT

TEXT

TEXT

TEXT

TEXT

TEXT

TEXT

TEXT

App. 26

Mar 26 2004 2:47:16:800PM

TRIAL BRIEF OF COMPLAINANT

Mar 29 2004 2:27:51:750PM

STIPULATIONS OF THE PARTIES

Mar 30 2004 2:01:43:163PM

ORDER REGARDING PENDING

MATTERS

Mar 30 2004 2:02:40:847PM

PRETRIAL ORDER

Jun 22 2004 2:31:02:503PM

MOTION TO SUPPLEMENT RE-

CORD AND BRIEF IN SUPPORT

THEREOF

Jun 22 2004 3:09:44:343PM

COMPLAINANTS PROPOSED

FINDINGS OF FACT AND CON-

CLUSIONS OF LAW

Jun 23 2004 10:27:37:8307AM

RESPONDENT'S PROPOSED FIND-

INGS OF FACT AND CONCLU-

SIONS OF LAW

Jun 24 2004 2:15:51:903PM

RESPONSE TO RESPONDENT'S

MOTION TO SUPPLEMENT REC-

ORD

Jul 1 2004 3:52:00:900PM

ORDER SUPPLEMENTING RECORD

Aug 5 2004 2:45:26:693PM

REPORT OF TRIAL PANEL

Aug 10 2004 9:36:11:927AM

JE: ORDER — WATT, CJ; BRIEFS

SHALL BE FILED ACCORDING

08/30/2004

08/31/2004

09/03/2004

09/14/2004

09/24/2004

ATBC

TEXT

TEXT

AEAB

ATRB

App. 27

TO THE FOLLOWING SCHED-

ULE: COMPLAINANT’S BRIEF

IS DUE AUGUST 30, 2004. RE-

SPONDENTS BRIEF SHALL BE

FILED NOT MORE THAN 15 DAYS

AFTER COMPLAINANT'S BRIEF

IS FILED; COMPLAINANT MAY

REPLY WITHIN 10 DAYS AFTER

THE RESPONDENT'S BRIEF IS

FILED. COPIES TO ATTYS

Aug 31 2004 1:07:28:830PM

COMPLAINANT'S BRIEF IN CHIEF

Aug 31 2004 3:49:20:707PM

RSPNDT’S MOT FOR STAY OF

FURTHER PROCEEDINGS IN

STATE DISCIPLINARY ACTION

PENDING DETERMINATION OF

APPEAL TAKEN FROM FED.

COURTS DISMISSAL OF RE-

SPONDENTS CIVIL RIGHTS

ACTION

Sep 3 2004 2:01:34:437PM

COMPLAINANT'S RESPONSE TO

RSPDNTS MTN FOR STAY OF

FURTHER PROCEEDINGS IN

STATE DISCIPLINARY ACTION

PENDING DETERMINATION OF

APPEAL TAKEN FROM FED CT’S

DISM’L OF RSPDNT’S§ CIVIL

RIGHTS ACTION

Sep 14 2004 4:32:20:047PM

RSPNT’S ANSWER BRIEF

Sep 24 2004 3:44:14:630PM

COMPLAINANT'S REPLY BRIEF

09/24/2004

09/24/2004

09/24/2004

09/24/2004

11/10/2004

02/28/2005

08/04/2005

08/04/2005

10/03/2005

11/09/2005

TEXT

TRAN

TRAN

RCCT

ASNJ

TEXT

TEXT

TEXT

TEXT

TEXT

App. 28

Sep 24 2004 3:44:34:567PM

COMPLNT’S APPL. TO ASSESS

COSTS

Sep 24 2004 3:45:04:393PM

Transcript BD VOL VOL 1 4-5-04

HEARING

Sep 24 2004 3:45:20:050PM

Transcript BD VOL II 4-6-04 HEAR-

ING

Sep 24 2004 3:45:35:160PM

Record to Court

Nov 10 2004 3:44:29:620PM

Assigned to Supreme Court

Feb 28 2005 3:12:36:06PM

COMPLAINANTS MOTION TO

SUBSTITUTE COUNSEL

Aug 4 2005 3:57:30:483PM

COMPLAINANT'S NOTICE OF THE

COURT

Aug 24 2005 9:20:53:827AM

ORDER RE-SETTING HEARING

**** entry deleted as inadver-

tently docketed in wrong case

* * * * '

Oct 3 2005 3:16:43:887PM

COMPLAINANT'S NOTICE TO THE

COURT

Nov 9 2005 4:14:15:043PM

COMPLAINANT'S NOTICE TO THE

COURT

App. 29

Report Generated by The Oklahoma Supreme Court

Network at January 31, 2006 10:09:57.

App. 30

APPENDIX F

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF OKLAHOMA

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,

Plaintiff,

versus

(1) OKLAHOMA BAR ASSOCIA-

TION, the agent and an official arm

of the Supreme Court of Oklahoma,

through its General Counsel, Dan

Murdock; and (2) PROFESSIONAL

RESPONSIBILITY TRIBUNAL,

through its members, Kenneth L.

Delashaw, Jr., Peggy Stockwell and

Neil William McElderry, Jr.,

Defendants.

Case No.

CIV-03-1538-M

ee

COMPLAINT

(Filed Nov. 5, 2003)

Plaintiff Glenn R. Beustring, as his claim for relief in

this civil action for a declaratory judgment and permanent

injunction, avers:

1. This action arises under the First Amendment to

the Constitution of the United States, the “equal protec-

tion” clause of the Fourteenth Amendment to the Consti-

tution of the United States, and the Civil Rights Act of

1871, 42 U.S.C. § 1983, as hereinafter more fully appears.

App. 31

2. The Court has original jurisdiction of this action

under 28 U.S.C. § 1343(a\(3) and (4), “[tlo redress the

deprivation, under color of any State Law, statute, ordi-

nance, regulation, custom or usage, of any right, privilege

or immunity secured by the Constitution of the United

States or by any Act of Congress providing for equal rights

of citizens ... ” and “[t]o recover damages or to secure

equitable or other relief under any Act of Congress provid-

ing for the protection of civil rights ... ,” and for a declara-

tory judgment and further relief under 28 U.S.C.

§§ 2201(a) and 2202.

3. Plaintiff Glenn R. Beustring is a citizen of the

United States, an attorney licensed to practice law in

Oklahoma, and a member in good standing of the Okla-

homa Bar Association.

4. The Supreme Court of Oklahoma has the constitu-

tionally-invested, nondelegable power to regulate the

practice of law in this State, including the discipline of

legal practitioners.

5. In the exercise of that power, the Oklahoma

Supreme Court adopted Rule 1.1 of the Rules Governing

Disciplinary Proceedings [“RGDP”] which states that “it

possesses original and exclusive jurisdiction in all matters

... to discipline for cause any and all persons licensed to

practice law in Oklahoma. .. .” (Emphasis added).

6. Rule 1.3, RGDP, provides that “[t]he commission

by any lawyer of any act contrary to prescribed standards

of conduct, whether in the course of his professional

capacity, or otherwise, which act would reasonably be

found to bring discredit upon the legal profession, shall be

grounds for disciplinary action. .. .”

App. 32

7. The Oklahoma Rules of Professional Conduct

(“ORPC”], which were adopted on November 21, 1986, and

subsequently modified by the Oklahoma Supreme Court,

constitute the standard of professional conduct of all

lawyers.

8. The Oklahoma Bar Association [“OBA”] is the

agent and an official arm of the Oklahoma Supreme Court.

9. Dan Murdock is, and was at all times relevant to

this action, the Genera! Counsel of the Oklahoma Bar

Association.

10. Powers and duties in the area of discipline that

were conferred and imposed on the General Counsel by the

Oklahoma Supreme Court’s adoption and promulgation of

Rule 3.2, RGDP, include:

(a) the power and duty to investigate all mat-

ters, involving possible misconduct of any

lawyer called to the General Counsel’s at-

tention by complaint or otherwise;

(b) the power and duty to report to the Profes-

sional Responsibility Commission the re-

sults of investigations made by or at the

direction of the General Counsel,

(c) the power and duty to make recommenda-

tions to the Commission concerning the in-

stitution of formal complaints for alleged

misconduct; and

(d) the power and duty to prosecute all proceed-

ings under the RGDP.

11. The Professional Responsibility Commission of

the Oklahoma Bar Association (“PRC”) is a seven-member

commission that was created by Rule 2.1, RGDP.

12.

App. 33

Powers and duties which the Oklahoma Supreme

Court conferred and imposed on the PRC and which Rule

2.8, RGDP, expressly requires the PRC to exercise and

perform include:

(a)

(b)

(ce)

(d)

13.

the power and duty to investigate any al-

leged ground for discipline . . . of any lawyer

. called to its attention, or upon its own

motion, and to take such action with respect

thereto as shall be appropriate to effectuate

the purposes of these Rules;

the power and duty, in its investigations, to

hold hearings, and to administer oaths or af-

firmations, receive testimony and other evi-

dence, and issue and serve or cause to be

served subpoenas requiring testimony or the

preduction of books, records, papers, docu-

ments or other tangible evidence;

the power and duty to require lawyers and

other persons to respond or give testimony

in connection with PRC investigations; and

the power and duty to adopt appropriate

procedural rules governing the manner in

which the PRC discharges its responsibili-

ties.

Pursuant to Rule 6.6 RGDP, a trial panel was

appointed by the Chief Master of the Trial Tribunal

consisting of Kenneth L. Delashaw, Jr.,

and Neil William McElderry, Jr. An answer date and trial

date were set.

14.

Physicians Liability Insurance Company [“PLICO”]

is an Oklahoma corporation licensed to sell professional

liability insurance in this State.

Peggy Stockwell

App. 34

15. Michael P. Atkinson; Walter D. Haskins, William

A. Fiasco, and Marthanda J. Beckworth are attorneys

admitted to practice law in Oklahoma who are partners in

the Atkinson, Haskins, Nellis, Holeman, Phipps, Britting-

ham & Gladd law firm in Tulsa [“the Atkinson-Haskins

lawyers”]. At all times relevant to this action, the Atkin-

son-Haskins lawyers were acting as PLICO’ s agents and

in their individual capacity.

16. On September 30, 2003, the OBA, acting through

the PRC and its attorney, Assistant General Counsel Allen

J. Welch, filed a bar complaint styled “STATE OF OKLA-

HOMA ex rel. Oklahoma Bar Association, Complainant, v.

Glenn R. Beustring, Respondent,” in the Office of the Chief

Justice of the Oklahoma Supreme Court and numbered

“OBAD #1590.” A copy of that Complaint [hereafter “OBA

Complaint”] is annexed hereto as “Exhibit A.”

17. Paragraph 3 of the OBA Complaint states that

“[t]his proceeding is brought pursuant to Rule 6, RGDP.”

18. Rule 6.2, RGDP, states that “[t]he complaint

shall set forth the specific facts constituting the alleged

misconduct... .”

19. Rule 6.12(c), RGDP, provides that “[(t]o warrant a

finding against the Respondent in a contested case, the

charge or charges must be established by clear and con-

vincing evidence . . .”

20. Before it filed the OBA Complaint against

plaintiff, the PRC knew or had reason to know from the

Office of the General Counsel of the OBA (a) that any

pleading based on grievances presented to the General

Counsel’s Office on or about February 5, 2003, would be

“contested” and (b) that to warrant an adverse finding

App. 35

against plaintiff, each charge would have to be established

by clear and convincing evidence.

21. The charges asserted against plaintiff Glenn R.

Beustring in the OBA Complaint are based on “informa-

tion and belief,” not evidence, much less clear and convinc-

ing evidence.

22. The focus of charges asserted against plaintiff

Glenn R. Beustring is the letter he wrote and had deliv-

ered to Justices Opala, Hodges, Lavender, Hargrave,

Boudreau and Winchester on January 7, 2003, immedi-

ately after learning of the Oklahoma Supreme Court’s

summary denial of a petition for rehearing filed in a

mandamus action which raised issues concerning (a) the

trial court’s failure to follow controlling precedent that

authorized plaintiffs, on remand, to expand issues that

had not been settled by the decision of the Court of Civil

Appeals; (b) the trial court’s refusal to allow discovery,

authorized by 12 Okia.Stat. § 3226(B)(1), of “witness

tampering” by PLICO-retained lawyers; (c) its not enforc-

ing subpoenas duces tecum served on PLICO and the

Atkinson-Haskins firm after making specific findings that

the subpoenas had been validly served, but were not

objected to in the manner required by 12 Okla.Stat.

§ 2004.1(D)(2); and (d) its sealing documentary evidence of

“witness tampering” by members of the medical defense

bar, without the required evidentiary showing, contrary to

express provisions of 12 Okla Stat. § 3226(C), the Open

Records Act, 51 Okla.Stat. § 24A.1, and controlling prece-

dent. The text of that letter, copies of which were delivered

to Chief Justice Watt and Justice Summers that same day,

reads as follows:

App. 36

Please accept this letter as my resignation

from the Oklahoma Bar Association effective

sixty (60) days from this date so that I can ar-

range for the orderly transfer of existing clients

to new counsel.

As a lawyer, I am statutorily obligated to re-

spect you. Your denial of the Wilson’s Petition for

Rehearing leaves me without spiritual or physi-

cal 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

victims of medical negligence — in this instance,

the Wilsons — is an embarrassment to the “Rule

of Law” - a repudiation of your duty to safe-

guard the rights of the public under the Okla-

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

area of medical negligence law, evil lawyers and

their “puppet” judges have flourished under your

supervision.

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

cowards of men.”

23. Specific facts constituting plaintiff’s alleged

misconduct were described as follows in the OBA Com-

plaint:

Respondent's “resignation” was a subterfuge de-

signed to secure a continuance of the trial set-

ting. Respondent thereby effected a continuance

which the trial court had denied him.

App. 37

Respondent's conduct thereby violated Rules

3.5(d), 8.4(c) and 8.4(d), ORPC, and constitutes

grounds for professional discipline.

Respondent's conduct ... (specifically his com-

ments that the Supreme Court was engaged in a

game of “three monkeys,” that the Supreme

Court was “choosing to ignore the evil,” that the

Supreme Court should “be impeached and not

honored,” and that “‘puppet’ judges have flour-

ished” under the supervision of the Supreme

Court) violated Rule 8.2(a), ORPC, and Rule 1.3,

RGDP, and constitutes grounds for professional

discipline.

24. Rule 3.5(d), ORPC, provides that “[a] lawyer

shall not ... engage in conduct intended to disrupt a

tribunal.”

25. Kule 8.4(c), ORPC, provides that “[ijt is profes-

sional miss =nduct for a lawyer to ... engage in conduct

involving dishonesty, fraud, deceit or misrepresentation

»”

26. Rule 8.4(d), ORPC, provides that “[ijt is profes-

sional misconduct for a lawyer to ... engage in conduct

that is prejudicial to the administration of justice...”

27. Rule 8.2(a), ORPC, provides that “[a] lawyer

shall not make a statement that the lawyer knows to be

false or with reckless disregard as to its truth or falsity

concerning the qualifications or integrity of a judge,

adjudicatory officer or public legal officer, or of a candidate

for election or appointment to judicial or legal office.”

Provisions of Rule 1.3, RGDP, are quoted in paragraph 6,

supra.

App. 38

28. Statements made in the second and third para-

graphs of plaintiff’s letter to Justices Opala, Hodges,

Lavender, Hargrave, Kauger, Boudreau and Winchester

dated January 7, 2003, constitute speech on vital issues of

self government protected by the First Amendment.

29. Plaintiff’s exercise of protected rights under the

First Amendment, as extended to the State of Oklahoma

by the Fourteenth Amendment, was a substantial or

motivating factor in the acts and omissions of Dan Mur-

dock, members of his staff, and the PRC which led to the

filing of the OBA Complaint, including the report and

recommendation made by the General Counsel’s Office

concerning the institution of formal disciplinary proceed-

ings against plaintiff.

30. At all times relevant to this action, defendants

were acting under color of state law.

31. The Atkinson-Haskins lawyers played a signifi-

cant role in the PRC’s initiating disciplinary proceedings

against plaintiff.

32. Although Dan Murdock saw the letter one

Supreme Court Justice forwarded to him on January 7,

2003, the day it was written, the General Counsel’s Office

did not initiate disciplinary proceedings against plaintiff

on its own motion. Such proceedings were triggered by the

grievance which the Atkinson-Haskins lawyers filed on

February 6, 2003. That grievance was filed without “prob-

able cause” and for an “improper purpose.”

33. The General Counsel’s Office and the PRC

accepted the Atkinson-Haskins lawyers’ conclusory asser-

tions as true instead of conducting appropriate independ-

ent investigations, including sworn statements setting out

App. 39

specific facts that supported the complainants’ collective

conclusions.

34. Because the PRC had no evidentiary support for

allegations quoted in paragraph 23, supra, its members

knew or should have known that the OBA could not make

a prima facie showing on charges that plaintiff was subject

to professional discipline because he had engaged in

fraudulent and disrespectful conduct that was prejudicial

to the administration of justice, with intent to disrupt a

tribunal, and brought discredit upon the legal profession,

in violation of five separate Supreme Court Rules, by

“speaking out” as he did on January 7, 2003.

35. Dan Murdock and other members of the General

Counsel’s staff knew or should have known of the Supreme

Court’s holding in State ex rel. Oklahoma Bar Association

v. Tweedy, 2000 OK 37, J 30, 52 P.3d 1003, 1009, that “liJn

the absence of a showing of falsity, the statements [that

Tweedy made] must be held to be speech on vital issues of

self government protected by the first amendment” and

that without proof that statements in the January 7, 2003

letter were “false,” the PRC was foreclosed from prosecut-

ing plaintiff on grounds he violated Rule 8.2(a), ORPC.

Nonetheless, the General Counsel’s Office recommended

that the PRC file formal charges against plaintiff.

_36. Before the PRC filed the OBA Complaint, its

members knew or should have been informed by the

General Counsel’s Office that in the face of controlling

precedent enunciated in Tweedy and State ex rel. Okla-

_homa Bar Association v. Porter, 1988 OK 114, 766 P.2d

958, the PRC was foreclosed, as a matter of law, from

charging plaintiff with violating Rule 8.2(a), ORPC,

without proof that statements made in his January 7,

App. 40

2003 letter were false. Moreover, when the Oklahoma

Supreme Court adopted the “actual malice” standard

enunciated in New York Times v. Sullivan, 376 U.S. 254

(1964), in Porter, as the standard to be used in attorney

discipline cases that raised First Amendment issues, it

implicitly recognized that Oklahoma has “a profound

commitment to the principle that debate on public issues

should be uninhibited, robust, and wide-open, and that it

may well include vehement, caustic and sometimes un-

pleasant sharp attacks on government and public offi-

cials.” New York Times, 376 U.S. at 270.

37. Given the Oklahoma Supreme Court’s holding in

State ex rel. OBA v. Porter, 1988 OK 114, 9 11, 766 P.2d

958, 964, that “a disciplinary inquiry must concern itself

with the issue of the factual basis for the criticism,” the

failure of the PRC and the General Counsel’s Office to do

so, e.g., the PRC’s basing its charge that plaintiff violated

Rule 8.2(a), ORPC, on nothing more than “information and

belief,” reflects a callous disregard for and deliberate

indifference to plaintiff’s constitutional rights and consti-

tutes evidence that the disciplinary proceedings instituted

against plaintiff were brought in “bad faith” without

“probable cause” for constitutionally impermissible rea-

sons, in this case suppression of protected speech.

38. The General Counsel’s Office and the PRC knew

or had reason to know, before the OBA Complaint was

filed, that plaintiff had denied and would continue to deny

that his January 7, 2003 letter was written, with fraudu-

lent intent, for the purpose of securing a continuance of

the January 13, 2003 trial setting in Wilson v. Russell,

Tulsa County Dist Ct. No. CJ-95-2154.

App. 41

39. The General Counsel’s Office and the PRC knew

or should have known, before the OBA Complaint was

filed, that the judge presiding over Wilson v. Russell in the

Tulsa County District Court allowed plaintiff to re-enter

his appearance in that case, after he was unable to find

competent counsel who were willing to appear as successor

counsel for the Wilsons following a diligent effort to do so,

and that the judge’s doing so constitutes substantial

evidence that she did not view plaintiff’s “‘resignation’

[as] a subterfuge designed to secure a continuance of the

trial setting,” as the PRC alleged.

40. The OBA Complaint was filed without “probable

cause” and in “bad faith,” with no real hope of ultimate

success, under facially valid disciplinary rules for constitu-

tionally impermissible reasons — that is, to retaliate

against plaintiff for exercising his First Amendment right

to criticize the Oklahoma Supreme Court’s summary

denial of the petition for rehearing filed in the mandamus

action.

41. Plaintiff made the following statements in

papers filed on August 20, 2003 in an original action, filed

three weeks earlier, that asked the Oklahoma Supreme

Court to vacate its decision in the mandamus action for

“fraud on the court”:

“Admission to the bar does not create a li-

cense to act maliciously, fraudulently, or know-

ingly tread upon the legal mghts of others.”

Newburger, Loeb & Co. v. Gross, 563 F.2d 1057,

1080 (2d Cir. 1977), cert. denied, 434 U.S. 1035

(1978). Nor did the State’s issuance of a Certifi-

cate of Incorporation to Physicians’ Liability In-

surance Company [“PLICO”] authorize that

indemnity company to inject itself so deeply

App. 42

into the administration of justice as to re-

peatedly cause treating physicians who have

a fiduciary relationship with their patients

to change previously-stated opinions that

are “critical” of PLICO insureds then, in

derogation of express pro-visions in 12 OS.

§ 2501, actively conceal[] such facts though

they are relevant to the main issue in every

malpractice action.

Record evidence before this Court in Wilson

v. Shallcross, Okla. Sup. Ct. No. [“98,220” or “the

mandamus action”) established a 17-year history of

... PLICO-retained lawyers’ modifying or signifi-

cantly altering, through “pressure” and “influ-

ence,” non-party treating physicians’ opinions on

the main issues of his/her patient’s injury claim,

beginning with the affidavit of Oklahoma attor-

ney George Braley. PLICO said nothing about

this incontrovertible fact nor any allegation that

pertains to “changes” in the stories told by physi-

cians who treated the plaintiff-patients in Con-

terez, Dyer, and Renfroe, as well as in this case,

following ex parte conferences with PLICO-

retained lawyers. Instead, PLICO began its brief

with the following cynical remark: “Counsel’s

latest - but most assuredly not last... filing

is a ‘Petition’ seeking to [vacate] this Court’s

order in... 98,220, on grounds that this or-

der was procured by ‘corrupt means.’” See

PLICO Motion at 1 (emphasis added). Although

- this two-pronged assertion is a focus-altering tac-

tic designed to derail the principle thrust of this

equitable proceeding, at least each assertion is

true.

Petitioners’ counsel has resisted his clients’

request to take their case, as well as pertinent

evidence of “witness tampering” in Conterez,

App. 43

Dyer, Renfroe, and Vandawalker, to the “court of

public opinion” via 60 Minutes, Prime Time,

20/20, and the “No-Spin” zone on Fox News.

Lead counsel will continue to resist the Wilsons’

request until all avenues of judicial relief have

been exhausted, given the fact that the “pattern

and practice” of witness tampering engaged

in by PLICO and its agents is a matter of judicial

cognizance and should be dealt with within the

confines of the judicial process.

In pursuing this quest, petitioners’ lawyers

will continue to make factually supported, legally

warranted arguments in good faith, mindful of

the fact that “[t]ampering with the admini-

stration of justice ... involves far more than

an injury to a single litigant. It is a wrong

against the institution set up to protect and

safeguard the public.” Chambers v. NASCO,

Inc., 501 [U.S.] 32, 44 (1991).

If courts fail to investigate allegations of

witness tampering or recognize “corrupt endeav-

ors to manipulate the administration of justice”

for what they are and sanction lawyers for un-

ethiea} or otherwise inappropriate or criminal

conduct,” the result would be the same: ... the

weaxening of an ethical adversarial system and

the undermining of just administration of the

law.” Cf. United States v. Cueto, 151 F.3d 620,

632 (7th Cir. 1998) (affirming lawyer’s conviction

of obstruction of justice under 18 U.S.C. § 1503).

42. On September 15, 2003, the Oklahoma Supreme

Court dismissed the “fraud on the court” action, without

explanation.

43. The General Counsel’s Office knew or had reason

to know of the filing of the “fraud on the court” action, the

App. 44

brief filed in opposition to PLICO’s motion to dismiss, the

fact that virtually every “avenue[] of judicial relief ha[d]

been exhausted,” and the fact that plaintiff stated, in

papers filed in the “fraud on the court” action on August

20, 2003, that once that happened, he would no longer

“resist{] his clients’ plan to take their case, as well as

pertinent evidence of ‘witness tampering’ in Conterez,

Dyer, Renfroe and Vandawalker, to the ‘court of public

opinion’ via 60 Minutes, Prime Time, 20/20 and the “No-

Spin” zone on Fox News.”

44. The OBA Complaint was filed in “bad faith” with

no real hope of ultimate success, under facially valid

disciplinary rules for constitutionally impermissible

reasons - that is, to intimidate, deter and suppress plain-

tiff and other similarly situated Oklahoma lawyers from

exercising their constitutionally-protected rights, in the

future, to make the injustice that is occurring in our courts

visible, by utilizing the “court of public opinion,” and

thereby protect the public’s First Amendment right to be

informed on issues of public concern by those in daily

contact with the juc icial system.

45. The Oklahoma Bar Association, by and through

its General Counsel and staff, deprived plaintiff of Equal

Protection and Due Process, guaranteed by the Fourteenth

Amendment, by recommending that the PRC file a formal

complaint against plaintiff when the General Counsel’s

Office had no evidence, much less clear and convincing

evidence, to support charges that plaintiff had violated

Rules 3.5(d), 8.2(a), 8.4(c), and 8.4(d), ORPC, and Rule 1.3,

RGDP.

46. Plaintiff has been deprived of his right to Equal

Protection and Due Process under the Fourteenth

App. 45

Amendment by accepting the unsubstantiated report and

recommendation of the General Counsel’s Office then,

without conducting a proper “independent” investigation,

voting to file a formal complaint against plaintiff without

having “probable cause” to do so.

47. The probability that plaintiff will suffer irrepa-

rable harm from the OBA’s “bad faith” prosecution, regard-

less of its outcome, if injunctive relief is not granted, is

established by the PRC’s failure to allege, much less show

that statements plaintiff made in the “offending” letter

were false, in the face of the Oklahoma Supreme Court’s

holdings in Porter and Tweedy. The filing of the OBA

Complaint and scheduled prosecution of plaintiff has had

and will continue to have a significant chilling effect on

speech that cannot be avoided by proceedings before the

PRT and the Oklahoma Supreme Court. Given the fact

that those holdings are sufficiently clear for reasonable

officials who serve in the General Counsel’s Office or on

the PRC to understand that filing the OBA Complaint

would violate plaintiffs First Amendment right, their

doing so constitutes evidence that the PRC and the Gen-

eral Counsel’s Office have used facially valid disciplinary

- rules as instruments to suppress protected speech.

48. By invoking this Court’s equitable jurisdiction

under § 1983, plaintiff is seeking te protect his federal

right not to be subjected to a “bad faith” prosecution or a

prosecution brought for purposes of retaliation and intimi-

dation, a right that cannot be vindicated by plaintiff’s

undergoing the prosecution Until injunctive relief is

granted, the prosecution itself will have a significant

chilling effect on plaintiffs right of free speech and that of

other Oklahoma lawyers.

App. 46

49. As a result of defendants’ violation of his consti-

tutionally-protected right to freedom of speech and Equal

Protection under the law, plaintiff has been required to

retain counsel to defend the action against him and to seek

the protection of this Court from an unconstitutional, “bad

faith” prosecution. He seeks fees and such other relief as is

proper under 42 U.S.C. § 1988.

WHEREFORE, plaintiff Glenn R. Beustring prays for

a judgment (1) declaring the disciplinary proceedings

against him in “bad faith” and without “probable cause”

under color of state law — Rules 3.5(d), 8.2(a), 8.4(c) and (d)

of the Oklahoma Rules of Professional Conduct and Rule

1.3 of the Rules Governing Disciplinary Proceedings,

subjected or caused him to be subjected to the deprivation

of rights secured by First Amendment and due process

clause of the Fourteenth Amendment to the United States

Constitution, (2) permanently enjoining the Oklahoma Bar

Association, the General Counsel and other members of

his staff and the Professional Responsibility Tribunal from

taking any further action in OBAD #1590, including the

Trial Panel’s submitting a report or recommendation to

the Oklahoma Supreme Court; and (3) awarding his fees

and costs in this action pursuant to 42 U.S.C. §1988.

/s/ Murray E. Abowitz

Murray E. Abowitz,

OBA No. 000117

ABOWITZ, TIMBERLAKE

& DAHNKE, P.-C.

P.O. Box 1937

Oklahoma City, Oklahoma 73101

Telephone : (405) 236-4645

Facsimile : (405) 239-2843

Attorney for Plaintiff

App. 47

EXHIBIT A

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

STATE OF OKLAHOMA ex rel. )

Oklahoma Bar Association, )

Complainant, ) OBAD #15 90

V: : SCBD #

GLENN R. BEUSTRING, )

Respondent )

COMPLAINT

(Filed SEP 30, 2003)

Complainant, State of Oklahoma ex rel. Oklahoma

Bar Association, for its claim against Respondent, Glenn

R. Beustring, alleges and states:

1. Respondent is a member of the Oklahoma Bar

Association and is licensed to practice law by the Supreme

Court of the State of Oklahoma. Respondent was so

licensed at all times relevant to this Complaint.

2. To the best knowledge, information and belief of

Complainant, Respondent has committed specific acts

which constitute professional misconduct in violation of

the Oklahoma Rules of Professional Conduct (““ORPC”), 5 -

O.S. ch. 1, App. 3-A (Supp. 1997), and are cause for profes-

sional discipline as provided in the Rules Governing

Disciplinary Proceedings (“RGDP”), 5 O.S. ch. 1, App. 1-A

(Supp. 1997). This standard of conduct, adopted and

enforced by the Supreme Court of the State of Oklahoma,

provides guidelines by which all attorneys are to practice

law in Oklahoma.

App. 48

3. This proceeding is brought pursuant to Rule 6,

RGDP.

4. The official Oklahoma Bar Association roster

address of Respondent is: Glenn R. Beustring, OBA # 768,

Suite 1, 2624 East 21st Street, Tulsa, Oklahoma 74114.

COUNT I

5. Respondent represented plaintiffs in an action

entitled LaDonna Wilson and Eddie Wilson vs. S. Melanie

Russell, M.D., et al., CJ-1995-2154, District Court of Tulsa

County, Oklahoma.

6. On November 5, 1997, Respondent filed a Motion

to Withdraw because the plaintiffs could not “receive a fair

trial based on pretrial rulings made by the Court.”

7. On November 18, 1997, the assigned Judge, the

Honorable David Peterson, entered an Order allowing

Respondent to withdraw. The Court also stayed the pro-

ceeding, for a period not to exceed sixty (60) days, until

new counsel could make an Entry of Appearance.

8. On February 17, 1998, Respondent filed an Entry

of Appearance thereby, in effect, re-entering his appear-

ance.

9. The matter was subsequently tried to a jury which

on June 18, 1999, entered a verdict for the defendants.

10. On July 12, 1999, Respondent filed a Motion for

a New Trial.

11. On August 27, 1999, the trial court entered an

Order denying the Motion for a New Trial.

: App. 49

12. On September 20, 1999, Respondent appealed

that Order to the Supreme Court of Oklahoma (Case No.

93631).

13. The case was assigned to the Oklahoma Court of

Civil Appeals, Division II, which on August 21, 2001,

reversed the decision of the trial court and remanded the

matter back to District Court.

14. Upon remand, the matter was assigned to the

Honorable Deborah Shallcross of the District Court of

Tulsa County, Oklahoma.

15. On November 17, 2003, the trial court entered an

Order setting the matter for jury trial to commence on

January 13, 2003.

16. Respondent objected to the trial setting and

repeatedly sought to have the trial continued.

17. On December 16, 2002, Respondent filed with

the trial court an Emergency Application to Strike the

trial scheduled January 13, 2003.

18. On December 26, 2002, Respondent filed with.

the trial court a Second Motion to Strike Trial.

19. On January 3, 2003, Respondent filed with the

trial court a Third Motion to Strike Trial.

20. Contemporaneous with those efforts, Respondent

also sought a continuance of the trial setting from the

Supreme Court of Oklahoma. On December 31, 2002,

Respondent filed with the Supreme Court an Application

to Strike the trial setting and to stay all District Court

proceedings in the Wilson matter (Case No. MA-98650).

App. 50

21. Respondent had also filed on September 6, 2002,

an Application to Assume Original Jurisdiction and

Petition for Writ of Mandamus with the Supreme Court of

Oklahoma (Case No. MA-98220).

22. On November 12, 2002, the Supreme Court

issued a Writ of Mandamus commanding Judge Shallcross

to vacate a portion of her Order which concerned discovery.

The Supreme Court denied all other requests for relief.

23. On December 2, 2002, Respondent filed a Peti-

tion for Rehearing regarding the Order of November 12,

2002.

24. On January 7, 2003, the Supreme Court entered

an Order denying Respondent’s Petition for Rehearing.

25. That afternoon, Respondent hand-delivered a

letter addressed to the Supreme Court of Oklahoma.

Therein, Respondent tendered his 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 counsel.” Respondent continued:

“As a lawyer, I am statutorily obliged 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 can not indulge yourselves

in the “three monkeys” game of choosing to ig-

nore the evil. You should be impeached and not

honored. (The Supreme Court’s Order) is an em-

barrassment to the “Rule of Law” — a repudiation

of your duty to safeguard the rights of the public

... In the area of medical negligence law, evil

lawyers and their “puppet” judges have flour-

ished under your supervision.”

App. 51

26. On January 8, 2003, Respondent appeared before

a referee of the Supreme Court at a hearing on his appli-

cation in Case No. MA-98650, for an emergency stay of the

trial setting in Tulsa County District Court. At that time,

Respondent advised the Referee and opposing counsel that

he had tendered a letter resigning from the practice of law.

27. That afternoon, the Chief Justice of the Supreme

Court of Oklahoma entered the following Order: “Based

upon the representation of Glenn R. Beustring, counsel for

the plaintiffs, (1) that he has filed an application to with-

draw as attorney in this case, No. CJ-95-2154, La Donna

Wilson and Eddie Wilson, plaintiffs, v. S. Melanie Russell,

M.D., et al. defendants, and (2) that he has sent a letter to

this Court withdrawing from the practice of law, this

Court grants an emergency stay of the trial scheduled to

begin January 13, 2003.”

28. On January 22, 2003, Respondent hand-

delivered to the Supreme Court of Oklahoma his “request

to withdraw (his) resignation dated January 7, 2003.”

29. Qn February 28, 2003, Respondent filed an

Entry of Appearance in the Tulsa County action thereby, in

effect, re-entering his appearatice.

30. Respondent served as counsel for the plaintiffs in

the Tulsa County action which proceeded to trial on July 7,

2003.

31. Respondent’s “resignation” was a_ subterfuge

designed to secure a continuance of the trial setting.

Respondent thereby effected a continuance which the trial

court had denied him.

App. 52

32. Respondent’s conduct thereby violated Rules

3.5(d), 8.4(c) and 8.4(d), ORPC, and constitutes grounds

for professional] discipline.

33. Respondent’s conduct thereby (specifically his

comments that the Supreme Court was engaged in a game

of “three monkeys,” that the Supreme Court was “choosing

to ignore the evil,” that the Supreme Court should be

“impeached and not honored,” and that “‘puppet’ judges

have flourished” under the supervision of the Supreme

Court) violated Rule 8.2(a), ORPC, and Rule 1.3, RGDP,

and constitutes grounds for professional discipline.

WHEREFORE, premises considered, Complainant,

Oklahoma Bar Association, prays that Respondent, Glenn

R. Beustring, be disciplined as this Court finds equitable

and proper, and that this Court enter such other relief as

it finds appropriate.

Done by the direction of the Professional Responsibil-

ity Commission this 30th day of September 2003.

/s/ Louise Brown

Louise Brown

Chairperson

Professional Responsibility

Commission

/s/ Allen J. Welch

Allen J. Welch, OBA #11187

Assistant General Counsel

Oklahoma Bar Association

1901 N. Lincoln, P.O. Box 53036

Oklahoma City, Oklahoma 73152

(405) 416-7007

App. 53

CERTIFICATE OF MAILING

The undersigned hereby certifies that on the 30th day

of September, 2003, a true and correct copy of the forego-

ing Complaint was mailed, by certified mail and restricted

delivery to: Glenn R. Beustring, Suite 1, 2624 East 21st

Street, Tulsa, Oklahoma 74114; and by regular mall to J.

Daniel Morgan, Suite 1100, 100 W. Fifth Street, Tulsa,

Oklahoma 74103-4219.

/s/ Allen J. Welch

Allen J. Welch

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