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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