Clulow v. State of Okl.
| Decision Date | 01 August 1978 |
| Citation | 700 F.2d 1291 |
| Parties | Ernest E. CLULOW, Jr., Plaintiff-Appellant, v. STATE OF OKLAHOMA; Dr. Joe E. Tyler; Dave Faulkner, Sheriff, Tulsa County, Oklahoma; Oklahoma Bar Association; Stuart B. Strasner, Executive Director; Bill Boswell, General Counsel; William H. Bell, Former President; John M. Luttrell, President; Deryl Lee Gotcher, Former President, and Paul M. Vassar, Former General Counsel, O.B.A.: Kenneth Spears, Former Sheriff, Jackson County, Oklahoma; Finis Smith; Kenneth Wallace; Unknown Members of Board of Mental Health, back to |
| Court | U.S. Court of Appeals — Tenth Circuit |
Ernest E. Clulow, Jr., pro se (Charles A. Whitebrook and Robert Lee Blackwood, Tulsa, Okl., on brief), for plaintiff-appellant.
Bob R. Scarbrough, Altus, Okl., for defendant-appellee Kenneth Spears.
S.M. Fallis, Jr., Dist. Atty., Tulsa, Okl. (Andrew B. Allen and James F. Raymond, Asst. Dist. Attys., Tulsa, Okl., on brief), for defendant-appellee Dave Faulkner, Sheriff of Tulsa, Okl.
Doyle M. Argo, Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, Okl. (James M. Sturdivant and Sidney G. Dunagan of Gable, Gotwals, Rubin, Fox, Johnson & Baker, Tulsa, Okl., on brief), for defendant-appellee Oklahoma Bar Ass'n and its present and former officers.
Finis Smith, defendant-appellee, pro se.
Jan Eric Cartwright, Atty. Gen. of Okla., Oklahoma City, Okl. (Stephen F. Shanbour, Asst. Atty. Gen., Oklahoma City, Okl., on brief), for defendants-appellees State of Okl., Dr. Joe E. Tyler, and Larry Derryberry, former Atty. Gen.
Before HOLLOWAY, McWILLIAMS and BARRETT, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.
This is an appeal from an order of the District Court dismissing all counts of plaintiff-appellant Clulow's amended complaint. 1 Plaintiff Clulow generally alleges that his several involuntary commitments to mental institutions violated his due process rights and that his suspension in 1962 from the Oklahoma Bar Association similarly was wrongful because of alleged due process violations. Clulow further alleges that the defendants, who are various present and former state and Oklahoma Bar Association officers, and other defendants, conspired against him throughout the period covered in his complaint, i.e., from 1960 through 1978.
Clulow asserts that the action is brought under 42 U.S.C. Secs. 1983 and 1985 and 28 U.S.C. Sec. 2201. The district court presumably had jurisdiction under 28 U.S.C. Sec. 1343 since all claims for relief revolve around alleged deprivations of civil rights. Relief is sought in the form of money damages, declaratory judgments and a writ of mandamus against the Oklahoma Bar Association. The amended complaint is in six counts, which now will be set forth in more detail as a backdrop for our discussion.
Count One of the amended complaint alleges that in 1960 Clulow was involuntarily committed to the Veterans' Administration Hospital in Oklahoma City by the Tulsa County Court. Clulow alleges various procedural infirmities in the commitment process: that his notice of the hearing was inadequate; that the Sanity Commission lacked the required "legal member"; that he was not advised of his right to remain silent or of his right to counsel; that he was not allowed to make a telephone call during his detention before the hearing; that he was not allowed to see the complaint, the report of the Sanity Commission, or the commitment order; that the complaint was unsworn; and that witnesses were not sworn and were examined outside of his presence, thus affording no opportunity to confront and cross-examine the witnesses. Clulow further maintains that the state court lacked the power to commit him to the federal facility. The prayer is for declaratory judgments holding that the 1960 commitment was illegal, null and void, etc., and further setting forth in general the procedural due process requirements for involuntary commitments to mental institutions.
In the second count plaintiff alleges that he was unlawfully committed in 1961. In this count he alleges that his private psychiatrist, defendant Dr. Joe E. Tyler, initially caused him to be detained by telephoning defendant Kenneth Spears, then Sheriff of Jackson County. Clulow was allegedly held in jail without cause for four days, then taken to the Oklahoma City V.A. Hospital where he was "coerced" into voluntarily admitting himself because the deputy sheriff would not release him from custody otherwise. The next day Clulow was taken to Oklahoma County District Court and committed to the V.A. Hospital. Clulow alleges again that the commitment proceedings violated due process in several particulars. On this count he seeks money judgments against Kenneth Spears ($100,000 in damages plus costs and attorney's fees) for false arrest, false imprisonment, and kidnapping, and against Dr. Tyler ($450,000 actual damages, $100,000 punitive damages, plus costs and attorney's fees).
Count Three deals with Clulow's involuntary commitment in 1966 in Tulsa County. Clulow again alleges that Dr. Tyler "caused" the initiation of proceedings; in this instance a petition for commitment was filed by Clulow's daughter. Due process violations are alleged once again, basically consisting of failure to allow contact with an attorney and failure to advise plaintiff of his rights; in this instance plaintiff further complains that the Sanity Commission was "illegally constituted" because his own physician, Dr. Tyler, served thereon. Clulow alleges that he demanded a jury trial at court and that a compromise was arranged with Dr. Tyler and defendant Finis Smith, the latter being the attorney on the Sanity Commission. Under this agreement Clulow dropped his demand for jury trial and "agreed" to be committed to St. John's Hospital in Tulsa for up to six weeks. Clulow alleges, however, that two weeks later he was transferred by deputy sheriffs against his will to the V.A. Hospital in North Little Rock, Arkansas. Clulow alleges that this transfer was "without court permission or knowledge or approval" and violated unspecified constitutional rights. Further, he alleges that the transfer was the work of a conspiracy among Dr. Tyler, defendant Kenneth Wallace (an administrator at St. John's Hospital), 2 defendant Sheriff Dave Faulkner, John Lovejoy (a V.A. "contact officer," not a party to this action), and defendant Finis Smith. Clulow prays for judgment, first against Tyler, Smith and Wallace for $200,000, and second against Faulkner for $100,000 plus costs and attorney's fees against these four defendants.
In the fourth count Clulow seeks only declaratory judgments. He alleges that in 1972 another commitment proceeding was initiated against him in Tulsa. Although he had contacted his attorney when the petition was first filed, he was interviewed by the Sanity Commission in Hillcrest Hospital, where he apparently had been under treatment as a voluntary patient, without prior notice and so without having counsel present. Clulow persisted in his demands for a jury trial this time, and was eventually released when the jury found in his favor. However, he complains that he was locked in solitary confinement in the Tulsa County Jail for four hours just prior to the trial. Clulow contends that such incarceration of persons not charged with any crime violates due process and equal protection and "constitutes false arrest and false imprisonment." The declaratory relief sought includes these judgments: that an "accused mentally ill person" should be advised of specific constitutional rights prior to a commitment hearing, including the right to written notice a reasonable time prior to the proceedings, the right to remain silent, the right to counsel, and the right to be presumed to be sane, thus placing the burden of proof on the state; that evidence of prior mental illness of an "accused" or of any relative is inadmissible in a sanity hearing; and that the spouse of the defendant cannot be a state's witness in a sanity hearing.
Clulow's suspension from practice by the Oklahoma Bar Association is the focus of Count Five of the amended complaint. This suspension, which has never been lifted, occurred against the background of yet another involuntary commitment for psychiatric treatment. Clulow was committed in Virginia in December 1961. In 1962 the Oklahoma Bar Association, acting pursuant to the rules promulgated by the Oklahoma Supreme Court, suspended Clulow from practice because of the Virginia commitment. (Clulow had been suspended two times prior to 1962 but had been reinstated after each of those suspensions.) Clulow alleges that he was not notified of this suspension at the time and did not learn certain details of the process until 1974. Clulow attacks the entire process of attorney discipline that existed in 1962, particularly alleging that attorneys were summarily suspended upon their commitment to mental institutions with none of the due process protections that were afforded to attorneys accused of misconduct. He argues that the Oklahoma Supreme Court could not delegate its authority in such matters to the Bar Association. He alleges that the rule under which he was suspended wrongfully equated a commitment for treatment with a judicial finding of incompetence and so allowed the Bar Association to presume his incompetency from the fact that he had been committed. He complains that in response to his unsuccessful efforts to be reinstated, the O.B.A. officials have refused access to their files and refused to...
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