source: Caselaw Access Project

author: Chief Justice MULLARKEY

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Brian Adrian GREEN, Defendant-Appellee.
    No. 03SA5.
    Supreme Court of Colorado, En Banc.
    June 16, 2003.
    Jeanne M. Smith, District Attorney, Gordon R. Denison, Deputy District Attorney, Brien D. Cecil, Deputy District Attorney, Colorado Springs, Colorado, Attorneys for Plaintiff-Appellant.
    Anderson & Travis, P.C., Wayne E. Anderson, Colorado Springs, Colorado, Attorneys for Defendant-Appellee.
   Chief Justice MULLARKEY

delivered the Opinion of the Court.,

The People bring this interlocutory appeal, pursuant to C.A.R. 4.1, challenging the trial court's suppression of stolen household goods seized from the residence of the defendant, Brian Adrian Green, pursuant to a search warrant. The trial court found that the affidavit supporting the warrant established probable cause to believe that the defendant had burglarized or attempted to burglarize several houses and had taken various household items including a rare Rolex watch. However, the court concluded that the affidavit failed to establish probable cause to search Green's apartment because it did not establish a sufficient nexus between the alleged crimes and the place to be searched.

We reverse the suppression order. The affidavit established that the owner of the stolen Rolex watch happened to see the defendant wearing the rare watch in a restaurant on the evening of the same day that it was stolen. Given that Green publicly displayed the stolen watch as his own and that the affidavit was executed on the day after the theft, facts in the affidavit and reasonable inferences from those facts created probable cause to believe that the stolen watch could be found among Green's possessions in his apartment.

I. Facts and Proceedings Below

Because the issue before us is a narrow one limited to the nexus between the alleged crimes and the place to be searched, we need not summarize the lengthy affidavit in great detail. As the trial court concluded, there was probable cause to believe that Green committed eight acts of burglary and/or prowling between July 2001 and July 2002 at residences in the Broadmoor area of Colorado Springs.

Two incidents set forth in the affidavit involved completed burglaries. In the most recent incident, occurring just two days before the search warrant was issued, the vie-tim reported that a rare Rolex watch had been stolen from his home. Within a few hours of the burglary, the victim saw an identical Rolex on the arm of a man in a restaurant. The victim learned the man's name from the restaurant bartender and promptly reported the sighting to the police. The Rolex Yacht-Master watch was valued at $20,000. The owner, who was in the jewelry business, estimated that there were probably only five other watches of the same style in the Colorado Springs area.

After the warrant was issued, police officers arrested Green and subsequently searched Green's apartment, seizing several watches-including the Rolex described above-various items of jewelry, apparel, and a laptop computer. Green was charged with four counts of second degree burglary, one count of attempted second degree burglary, one count of second degree criminal trespass, one count of first degree criminal trespass, and five habitual criminal counts.

Green moved to suppress the evidence found at his apartment, arguing that the affidavit did not establish probable cause to believe that evidence of criminal activity would be found at his apartment. The trial court granted the motion to suppress, finding that there was no nexus between the stolen goods and the apartment.

II. Analysis

The trial court's basis for concluding that Officer Turner's affidavit did not establish probable cause to issue a search warrant was that the affidavit failed to present sufficient facts to establish a nexus between the criminal conduct alleged and Green's residence. Specifically, the trial court noted that no facts had been presented directly linking the stolen items to Green's residence. No one had seen the goods being taken to the apartment, and although Green had a prior criminal record, he had no past history of storing stolen property at his residence.

An affidavit need only establish "a fair probability that officers executing [al warrant will find contraband or evidence of crime at the location to be searched." People v. Kazmierski, 25 P.3d 1207, 1211 (Colo.2001) (citing People v. Hakel, 870 P.2d 1224, 1228 (Colo.1994)) (emphasis added). The link between the suspected crime and the place to be searched can be established by cireumstantial evidence and reasonable inferences drawn from such evidence. People v. Hakel, 870 P.2d at 1229 (citations omitted). In other words, although direct evidence in the affidavit connecting evidence of the crime to the place to be searched is helpful in establishing probable cause, it is not necessarily required. Rather, the facts alleged in the affidavit, together with reasonable inferences drawn from those facts, may be enough.

Illustrative of this principle is this court's decision in People v. Hebert, 46 P.3d 473 (Colo.2002). In Hebert, we upheld the issuance of a warrant to search a residence for evidence related to a murder even though the victim's body was found in the trunk of her car several miles away from the residence. Id. at 483. Although there was no direct evidence connecting any criminal activity to the residence, we found that cireumstantial information and commonsense inferences drawn from these facts were sufficient to establish probable cause to search the residence. Id. Specifically, the affidavit showed that 1) the victim and her husband (the defendant) both lived at the residence and that the victim was last seen alive at the residence; 2) the defendant, who normally did not drive his wife's car, had been seen backing the victim's car into the garage attached to the residence on the night before the body was found; and 3) the victim's body appeared to have been placed into her car trunk after the murder. Id. at 488-84. From this information, we concluded that based on "practical and commonsense conclusions about human behavior," it was reasonable to suspect that evidence of eriminal activity would be found at the residence. Id. at 488 (citation omitted).

With respect to the case now before us, the information about the unusual Rolex watch connects the stolen goods to Green's residence. Here, the affidavit states that Green was seen wearing the watch openly in public on the very day that it was stolen. Specifically, the victim of the Rolex theft spotted Green wearing the watch while dining in a local restaurant on the night of the robbery. From these facts, it appears that Green was treating the stolen watch as if it were his own and would be likely to keep the watch at his residence with his other possessions. This information, coupled with the fact that the theft of the watch had occurred only one day prior to the issuance of the warrant, raises the reasonable inference that cireumstances had not changed and that the watch was still under Green's immediate control.

Other jurisdictions have recognized that stolen household items often are kept in the residences of those who stole them because it is convenient and the items are easily concealed in a residential setting. See United States v. Jackson, 1993 WL 54202 *1, *4 (E.D.La. Feb.24, 1993) (reasonable to infer stolen jewelry would be kept at defendant's residence); State v. Guidry, 388 So.2d 797, 800 n. 1 (La.1980) ("it was reasonable to assume that the normal place a criminal dealing in stolen jewelry would keep such items [is] at his house"). See also People v. Super. Ct. (Brown) 49 Cal.App.3d 160, 167-68, 122 Cal.Rptr. 459 (Cal.App.1975) (can infer that stolen antiques and eredit cards would be kept at criminal's residence); United States v. Jackson, 756 F.2d 703, 705 (9th Cir.1985) {reasonable to infer that stolen currency from robbery two months earlier would be at defendant's residence); United States v. Jones, 994 F.2d 1051, 1056 (3d Cir.1993) (cash is the type of stolen item likely to be kept at a secure location like one's home). Because the Rolex watch was expensive and easily stored at a residence, it is equally reasonable to infer that the watch might be found at Green's apartment.

This case is very different from other cases in which we have found an insufficient nexus between the evidence sought and the place to be searched. One example is People v. Kazmierski, 25 P.3d 1207 (Colo.2001), where two defendants were suspected of manufacturing methamphetamine and we upheld the trial court's order suppressing evidence seized from their home under a search warrant. The affidavit recited that the defendants had purchased several chemical precursors to methamphetamine over a five month period but contained no indications that the precursor materials had been transported to the residence or that any illegal drug activity had occurred at the residence. we explained: Id. at 1209. As

[tlhe purchase or possession of precursor items was not a crime. This was not a cireumstance in which the crime occurred off site, and the affidavit had merely to establish a reasonable basis for believing that evidence of the crime would be located at the home. Rather, the crime consisted of the manufacture of methamphetamine-a crime requiring a location. The probable cause to believe a crime had been or was being committed was thus inextricably tied to a location.

Id. at 1212 (citation omitted).

,. Unlike Kagsmierski, the illegal acts in this case were completed when the items were taken from their owners. The Rolex and other stolen household items were not the equivalent of lawful chemicals that could be processed into an illegal drug. All that was necessary in this case was a place to keep the stolen goods. Under the facts alleged in the affidavit and the reasonable inferences drawn from the facts, probable cause existed to search Green's residence.

IIL Conclusion

The trial court's order suppressing the evidence seized from Green's residence was in error. The trial court's order is reversed, and the case remanded for further proceedings consistent with this opinion.

      . The People had gained incriminating information from the laptop which was suppressed by the trial court. The People concede that they did not have probable cause to search the contents of the computer and that issue is not before us.


author: HODGES, J. ¶ 25 OP ALA, J.,

text:
    2003 OK 13
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Jami Lynn STEWART, Respondent.
    SCBD No. 4745.
    Supreme Court of Oklahoma.
    Feb. 11, 2003.
    Rehearing Denied June 10, 2003.
    Loraine Dillinder Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.

      Mack K. Martin, Oklahoma City, OK, for Respondent.
   HODGES, J.

¶ 1 The issues before this Court are: (1) Whether the record before this Court is sufficient for this Court’s review of the charges against the respondent and for disposition, and (2) What is the appropriate discipline. We find that the record is sufficient for a meaningful review and that the appropriate discipline is a four-year suspension.

¶ 2 This disciplinary proceeding is before this Court under rule 7 of the Rules Governing Disciplinary Proceedings (RGDP), Okla. Stat. tit. 5, ch.l, app. 1-A (2001). The respondent, Jami Lynn Stewart, was convicted of a crime in the United States District Court for the Western District, was suspended from the practice of law for five years in the United States Bankruptcy Court for the Western District of Oklahoma, and was suspended from the practice of law for three years in the United States Bankruptcy Court for the Eastern District of Texas. In her objection to the presentencing investigative report, Ms. Stewart states that she has been reciprocally suspended or disbarred from the United States District Courts for the Eastern District, the Northern District, and the Southern District of Texas and from the United States District Court for the Western District of Oklahoma.

¶ 3 Rule 7 of the RGDP provides for summary disciplinary proceedings before this Court. Rules 7.1 through 7.5 deal specifically with discipline of a lawyer who has been convicted of a crime. Rule 7.2 provides for the transmission to this Court of certified copies of the indictment or the information and the judgment and sentence of a lawyer’s conviction. Rule 7.2 further provides: “Such documents, whether from this jurisdiction or any other jurisdiction, shall constitute the charge and be conclusive evidence of the commission of the crime upon which the judgment and sentence is based and shall suffice as the basis for discipline in accordance with these rules.” Pursuant to rule 7.2, the information and the judgment from the conviction in the Western District of Oklahoma have been filed with this Court.

¶ 4 Rule 7.7 of the RGDP addresses reciprocal discipline. Rule 7.7 directs the General Counsel for the Oklahoma Bar Association (OBA) to submit to this Court a certified copy of a lawyer’s adjudication of misconduct in the highest court of another state or a federal court. The certified copy of the adjudication constitutes the charge against the lawyer in this Court and is prima facie evidence that the lawyer committed the acts of misconduct. In addition to the documents submitted from the Western District of Oklahoma, the OBA has submitted a copy of the adjudication of misconduct for the Eastern District of Texas.

¶ 5 Under rules 7.4 and 7.7(b), a lawyer may submit a brief and evidence to explain the conduct and mitigate the severity of discipline. Pursuant to these rules, Ms. Stewart has submitted a brief, a copy of the plea agreement entered into by Ms. Stewart, a presentence investigation report, and Ms. Stewart’s objection thereto. These documents were attached to the joint brief filed by the OBA and Ms. Stewart.

¶ 6 The OBA may not supplement the record in summary proceedings for a criminal conviction with evidentiary materials outside those strictly allowed under rule 7.2, the indictment or information and the judgment and sentence. If the OBA wishes to rely on facts other than those supported by these documents or make additional charges, the Professional Responsibility Commission may initiate proceedings, in which case copies of the record and transcripts of testimony and evidence from the criminal action are admissible pursuant to rule 7.6 of the RGDP.

I. FACTS

¶ 7 In addition to the documents discussed above, the parties stipulated to other facts. On July 13, 2000, the respondent, Jami Lynn Stewart, was suspended from the practice of law for three years in the United States Bankruptcy Court for the Eastern District of Texas. The suspension was based on an agreement between Ms. Stewart and the bankruptcy trustee. Ms. Stewart had failed to disclose her attorney fees in at least four bankruptcy proceedings in the Eastern Dis-triet as required by title 11, section 329 of the United States Code. Although her lawyer discussed the suspension with the OBA’s General Counsel,-Ms. Stewart failed to formally notify the OBA of the suspension. After receiving information from the United States Department of Justice, on September 25, 2001, the General Counsel’s office filed a letter with this Court pursuant to rule 7.7 of the RGDP. Ms. Stewart was ordered to show cause why she should not be disciplined by this Court for her suspension in the bankruptcy court for Texas’ Eastern District and for failing to inform the OBA of her suspension.

¶ 8 Ms. Stewart responded that she was unaware of her obligation to formally notify the OBA of her suspension and that her attorney had discussed the matter with the General Counsel’s office. Ms. Stewart argued that her acts in the bankruptcy proceedings were unintentional and that a similarly situated attorney licensed in Texas would not be further disciplined by the Texas Bar Association.

¶ 9 Then on December 5, 2001, the OBA filed a motion to stay the proceedings. The motion was based on the OBA’s anticipation that it would file additional disciplinary charges against Ms. Stewart. This Court granted the motion.

¶ 10 On August 6, 2002, the OBA’s General Counsel sent a second letter to this Court infonning it of additional charges against Ms. Stewart. Attached to the letter was a certified copy of a judgment and sentence dated May 21, 2002, and entered in the United States District Court for the Western District against Ms. Stewart for failure to file a tax return for 1996 and for contempt for willfully failing to disclose her fees in a bankruptcy proceeding in violation of Bankruptcy Rule 2016(b). Ms. Stewart was sentenced to four years probation and ordered to pay $600.00 in restitution. She was to remain under home confinement until about December 5, 2002. In the plea bargain agreement, Ms. Stewart agreed to a five-year suspension in the United States Bankruptcy Court for the Western District of Oklahoma. The criminal judgment and sentence was entered pursuant to a plea bargain agreement.

¶ 11 On September 20, 2002, this Court entered an order of interim suspension pursuant to rule 7.3 directing Ms. Stewart to show cause, if any, why the order of interim suspension should not be set aside. She did not challenge the interim suspension.

¶ 12 The failure to file a 1996 tax return was the basis of count one of her conviction. Additionally, Ms. Stewart has stipulated that she failed to file an income tax return for 1997 and, as a result, owed the IRS approximately $19,566.00 in taxes. She now has an agreement with the IRS to pay the tax debt.

¶ 13 Count two of the conviction was for contempt for violating section 329 of title 11 of the United State Code which required that Ms. Stewart disclose her fees in bankruptcy proceedings. In the plea bargain agreement, Ms. Stewart admitted to knowingly and willfully disobeying section 329. The facts underlying the contempt conviction are Ms. Stewart took $360.00 as a retainer from Mr. and Mrs. McElroy. She paid the $160.00 filing fee, kept the remaining $200.00 for legal fees, and reported to the bankruptcy court that she had received $0.00 in legal fees. The evidence shows that Ms. Stewart’s failed to disclose fees in at least three other bankruptcy proceedings in the Western District of Oklahoma. This is the same misconduct which precipitated her suspension in the bankruptcy court in Texas. In the joint response brief filed by the OBA and Ms. Stewart, she admits that federal agents investigating the matter estimated that she had received approximately $30,000.00 in undisclosed fees. She has made restitution of about $30,000.00 to her bankruptcy clients.

II. MITIGATING FACTORS

¶ 14 The following factors are offered for purposes of mitigation of discipline. Ms. Stewart has acknowledged her wrongful conduct by pleading guilty to the charges against her, understands the seriousness of the misconduct, and has expressed remorse. She voluntarily made restitution of about $30,000.00 to her clients. Ms. Stewart cooperated with the OBA’s investigation and has not been previously disciplined.

¶ 15 Ms. Stewart also offers other factors for purposes of mitigation. Ms. Stewart complied with the order of the United States Bankruptcy Court for the Eastern District of Texas to sell her law practice in Texas. She voluntarily closed her office in Oklahoma after adversarial proceedings were initiated against her in the bankruptcy court in Oklahoma. We consider this last two factors as evidence that Ms. Stewart has accepted responsibility for her misconduct. We also note the letters of support presented to the federal court during the criminal proceedings and Ms. Stewart’s loss of income.

III. FAILURE TO COMPLY WITH RULE 7.7(a)

¶ 16 Rule 7.7(a) requires a lawyer to inform the OBA’s General Counsel within twenty days of a final order of discipline imposed by another jurisdiction. Rule 7.7(a) does not require any particular mechanism for conveying the information. Ms. Stewart contends, and there is no evidence otherwise, that her lawyer talked to the General Counsel concerning her discipline in the Eastern District of Texas. There is likewise no evidence that this was not done within the twenty-day period. The record is insufficient to discipline Ms. Stewart for a violation of rule 7.7(a). However, the better practice is to inform the General Counsel in writing of discipline by another jurisdiction.

TV. DISCIPLINE

¶ 17 Ms. Stewart argues that the appropriate discipline is a public censure or, in the alternative, a suspension of no more than six months backdated to September of 2000, the time when she states that she had “effectively closed her law practice.” In support of her position, Ms. Stewart cites State ex rel. Oklahoma Bar Ass’n v. Allder, 2002 OK 33, 48 P.3d 794 (public censure for failure to disclose expenses in a bankruptcy), State ex rel. Oklahoma Bar Ass’n v. Gann, 1995 OK 48, 895 P.2d 726 (public censure for failure to file a income tax return), State ex rel. Oklahoma Bar Ass’n v. Livshee, 1994 OK 12, 870 P.2d 770 (interim suspension sufficient to serve disciplinary goals), and State ex rel. Oklahoma Bar Ass’n v. Badger, 1995 OK 113, 912 P.2d 312 (suspension backdated to date attorney closed practice). The cases cited by Ms. Stewart are distinguishable in that they do not involve both reciprocal discipline based on a pattern of misconduct and discipline based on a criminal conviction.

¶ 18 The OBA recommends at least a six-month suspension as the proper discipline. The OBA relies on State ex rel. Oklahoma Bar Ass’n v. Graham, 1989 OK 133, 781 P.2d 829 (one-year suspension for fraudulent conduct involving a tribunal and other misconduct), and State ex rel. Oklahoma Bar Ass’n v. Todd, 1992 OK 81, 833 P.2d 260 (six-month suspension for failing to inform the court that damages had been paid).

¶ 19 Because a license to practice law is conferred for the benefit of the public, the goal of the discipline is to safeguard the public’s interest, the judiciary, and the legal profession and to promote the integrity of the judicial system and process. State ex rel. Oklahoma Bar Ass’n v. Patterson, 2001 OK 51, ¶ 29, 28 P.3d 551, 560. With this purpose in mind, we must weigh all relevant factors including those that mitigate the severity of discipline and those that justify severe sanctions. State ex rel. Oklahoma Bar Association v. Tweedy, 2000 OK 37, ¶ 48, 52 P.3d 1003, 1012-13. The discipline imposed should be consistent with that imposed for similar acts of misconduct. Patterson, 2001 OK 51 at ¶ 29, 28 P.3d at 560.

¶ 20 Because the facts before this Court are particularly unique, we find little guidance from our past decisions. Ms. Stewart has entered into agreed suspensions in other jurisdictions, one for three years and the other for five years. She is currently serving a four-year probation. Being mindful that one of the purposes of discipline is to promote the integrity of the judicial system, we find that the appropriate discipline is a four-year suspension. Allowing a lawyer to engage in the practice of law during a criminal sentence would severely undermine the integrity of the judicial system.

¶ 21 Based on Ms. Stewart’s misconduct, the criminal conviction, and the mitigating circumstances, we find that disciplinary goals are best met by the imposition of a four-year suspension from the practice of law to begin retroactive to September 20, 2002, the date of her temporary suspension. The OBA has not sought the payment of costs in this disciplinary action. It is therefore ordered that Jami Lynn Stewart is suspended from the practice of law for four years, to be retroactive from September 20, 2002.

RESPONDENT SUSPENDED FOR FOUR YEARS RETROACTIVE TO SEPTEMBER 20, 2002.

¶ 22 WATT, C.J., HARGRAVE, BOUDREAU and WINCHESTER,⅛, concur.

¶ 23 LAVENDER, J., concurs in part; dissents in part.

I would suspend respondent for two years and one day effective with the finality of this opinion.

¶ 24 SUMMERS, J., with whom KAUGER, J. join, concur in part; dissent in part.

I would make respondent’s suspension to run concurrent with her probation in the Federal District Court to end May 22, 2006.

¶ 25 OP ALA, J.,

dissents.

I dissent from making respondent’s suspension run from September 20, 2002. I would disbar the respondent effective from the date today’s pronouncement becomes final.


author: BOUDREAU, Justice.

text:
    2003 OK 27
    FINE AIRPORT PARKING, INC., Appellant, v. The CITY OF TULSA; The Tulsa Airport Authority; The Tulsa Airports Improvement Trust, Appellees.
    No. 96,748.
    Supreme Court of Oklahoma.
    March 11, 2003.
    Rehearing Denied June 10, 2003.

      Michael Hayes Freeman and Jon David Wyatt, Tulsa, OK, and Michael Paul Kir-schner and Patricia D. Macguigan, Oklahoma City, OK, for appellant.
    J. Richard Studenny and James L. Kin-caid, Tulsa, OK, Martha Rupp Carter, City Attorney, R. Nancy McNair, Senior Assistant City Attorney, and Andrew T. Rees, Assistant City Attorney, Tulsa, Oklahoma, and D. Kent Meyers, Paige S. Bass and Carrie Keating Leonard, Oklahoma City, OK, for appellees.
   BOUDREAU, Justice.

¶ 1 Fine Airport Parking, Inc. (Fine) appealed the district court’s dismissal of its state antitrust cause of action against the City of Tulsa and its public authorities, the Tulsa Airport Authority and the Tulsa Airports Improvement Trust (collectively Tulsa). The dispositive issue in this appeal is whether the district court erred in dismissing Fine’s petition. The appeal presents two underlying questions: 1) Is the federal doctrine of state action immunity incorporated into the Oklahoma Antitrust Reform Act, 79 O.S.2001, §§ 201, et seq. and 2) Is Tulsa’s operation of an airport parking facility as authorized by the Municipal Airports Act, 3 O.S.2001, §§ 65.1, et seq. subject to the Oklahoma Antitrust Reform Act. We answer both questions in the negative. We vacate the opinion of the Court of Civil Appeals and affirm the district court’s dismissal order.

I. Background

¶ 2 Tulsa, through its Airport Authority, operates Tulsa International Airport and various related facilities and services on the airport grounds, including parking facilities for use by the airport customers. Fine operates an off-airport parking business and competes with the Airport Authority to provide parking to the airport customers.

¶ 3 In May 2001, Fine filed suit in the state district court in Tulsa County alleging that Tulsa violated the state antitrust statutes by its exclusionary practices in operating its parking facilities at the Tulsa Airport. Specifically, Fine alleged that Tulsa excluded competition by setting and maintaining parking prices with unreasonably low profit expectation, a practice that has prevented Fine’s off-airport parking business from successfully competing for airport parking customers. Tulsa moved to dismiss Fine’s petition for failure to state a claim on the grounds that it is immune from antitrust liability for the conduct at issue under the federal doctrine of state action immunity because its conduct is specifically authorized by state statute. Tulsa also sought dismissal because Fine failed to allege a relevant market and specific intent to monopolize.

¶ 4 The trial court determined that the federal doctrine of state action immunity, as enunciated in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943) and its progeny, is incorporated into the Oklahoma Antitrust Reform Act. The trial court found that the doctrine immunized Tulsa from antitrust liability because its conduct was authorized by the Municipal Airports Act. Accordingly, the trial court dismissed Fine’s petition.

¶ 5 The Court of Civil Appeals affirmed the trial court. It determined that Tulsa is immune from liability under the state antitrust law by virtue of the federal doctrine of state action immunity. It also affirmed the trial court on an independent ground that Tulsa’s conduct was immunized because the operation of the airport parking facility is within the city’s police powers. We previously granted Fine’s petition for certiorari review.

II. Standard of Review

¶ 6 The function of a dismissal motion is to test the law’s support for a claim, not the sufficiency of the facts. Zaharias v. Gammill, 1992 OK 149, ¶ 6, 844 P.2d 137, 138. In this case, the trial court dismissed Fine’s petition for want of any legal liability on the part of the Tulsa defendants. The order dismissing Fine’s petition for failure to state a claim upon which relief may be granted is reviewed de novo. Lockhart v. Loosen, 1997 OK 103, ¶ 4, 943 P.2d 1074, 1077.

¶ 7 Further, the underlying questions presented on certiorari call for interpretation and construction of the Oklahoma Antitrust Reform Act and the Municipal Airports Act. Statutory construction presents a question of law that is subject to an appellate court’s plenary, independent and nondeferential reexamination. Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 6, 16 P.3d 1120, 1122-23.

III. The Federal Antitrust State Action Immunity Doctrine

¶ 8 The Sherman Antitrust Act, 15 U.S.C. § 1, expresses our national policy against concerted activity that results in monopolies and restraints of trade. However, in our federal system of dual sovereigns, federal law against anti-competitive conduct is not applied to governmental activities of the sovereign states. Parker v. Brown, supra, enunciated the doctrine of state action immunity from federal antitrust liability. Analyzing and interpreting the federal antitrust statute, Parker found no suggestion of congressional intent to restrain state action directed by state statute. 317 U.S. at 350-51, 63 S.Ct. at 313. Relying on fundamental principles of federalism and preemption, Parker concluded that the federal antitrust statute did not undertake to prohibit restraint on competition imposed by a sovereign state as an act of government. 317 U.S. at 352, 63 S.Ct. at 314. See also, Milton Handler, Antitrust, 78 Columbia L.R. 1363, 1374-80 (1978).

¶ 9 For purposes of federal antitrust law, a sovereign state can also immunize a municipality’s conduct. However, to afford immunity to a municipality, the state must do something more than simply direct the municipality’s conduct. City of Lafayette, La. v. Louisiana Power & Light Co., 435 U.S. 389, 414-15, 98 S.Ct. 1123, 1137-38, 55 L.Ed.2d 364 (1978). The state action immunity doctrine will protect a municipality’s anti-competitive conduct from federal antitrust liability only where 1) there is a clearly expressed state policy to displace competition with municipal regulation and 2) the anti-competitive regulation is supervised by the state. California Retail Liquor Dealers Assoc. v. Midcal Aluminum, Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 943, 63 L.Ed.2d 233 (1980). The first prong of this two-prong analysis is satisfied if the restraint on competition is a foreseeable result of the activity authorized by state statute. City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 373, 111 S.Ct. 1344, 1350, 113 L.Ed.2d 382 (1991). The second prong is satisfied if the municipality actively supervises the regulation. Town of Hallie v. City of Eau Claire, 471 U.S. 34, 47, 105 S.Ct. 1713, 1720, 85 L.Ed.2d 24 (1985).

IY. In the Oklahoma Antitrust Reform Act, 79 O.S.2001, §§ 201, et seq., the Legislature has made unlawful those restraints on trade that prejudice the public.

¶ 10 Our constitution expresses this state’s policy against monopolies and restraints of trade. It forcefully provides that “monopolies are contrary to the genius of a free government”. Okla. Const., art. 2, § 32. It also mandates that the “Legislature shall define what is an unlawful combination, monopoly, trust, act, or agreement, in restraint of trade, and enact laws to punish persons engaged in” such unlawful activity. Okla. Const., art. 5, § 44.

¶ 11 Pursuant to that constitutional mandate, our earliest statutes prohibited conduct in restraint of trade. In 1998, the Legislature enacted the most recent version of our antitrust statutes, the Oklahoma Antitrust Reform Act. In addition to the general prohibition against restraints of trade in § 203(A), the Act specifically makes it unlawful for a person1) to monopolize or attempt to monopolize any part of trade or commerce in a relevant market in § 203(B), or 2) to unreasonably refuse access to an essential facility in § 203(C), or 3) to discriminate in the price of a commodity between different purchasers in § 204.

¶ 12 Because nearly every regulation of trade and every agreement concerning trade constitutes a restraint of trade to some extent, the courts have rejected a literal reading of the antitrust statutes. Teleco, Inc. v. Ford Industries, Inc., 1978 OK 159, ¶ 7, 587 P.2d 1360, 1362-63. Similar to the Sherman Antitrust Act, the state antitrust law has been interpreted to prohibit only those acts that unreasonably restrain trade or commerce. Id.

¶ 13 This Court has followed the interpretation of the federal antitrust statute in deciding what is an unreasonable restraint of trade under the Oklahoma antitrust statutes. Id. at ¶8, 1363. See also, Beville v. Curry, 2001 OK 1, ¶ 12, 39 P.3d 754, 759. Restraint of trade that has a pernicious effect on competition is conclusively presumed unreasonable and a per se violation of the antitrust statutes. Teleco, Inc. v. Ford Industries, Inc., 1978 OK 159 at ¶ 8, 587 P.2d at 1363. Other restraints are tested by a rule of reason to determine if the activity unduly restricted competition and unreasonably prejudiced public interest. Board of Regents v. National Collegiate Athletic Association, 1977 OK 17, ¶ 15, 561 P.2d 499, 505-6. “The fundamental test of the reasonableness of an action, which, by its nature, restrains trade, is its effect on the public.” Krebsbach v. Henley, 1986 OK 58, ¶ 29, 725 P.2d 852, 858.

Y. Municipalities are not immune from the Oklahoma Antitrust Reform Act, 79 O.S.2001, §§ 201, et seq., under the federal doctrine of state action immunity.

¶ 14 While the Oklahoma Antitrust Reform Act is inapplicable to the state itself, the Act clearly expresses a legislative intent to subject municipalities to its proscriptive reach. The Act defines “Person” to include a “municipal corporation, including any public trust which has a municipal corporation as its beneficiary,” and to exclude the “State of Oklahoma, its departments, and its administrative agencies,” with some exceptions. 79 O.S. 2001, § 202(3).

¶ 15 The Act also commands that it be interpreted and applied consistent with the federal antitrust law. Title 79 O.S.2001, § 212 provides: “The provisions of this act shall be interpreted in a manner consistent with Federal Antitrust Law 15 U.S.C., Section 1 et seq. and the case law applicable thereto.” Tulsa argues that § 212 compels the conclusion that the Legislature intended to adopt the federal doctrine of state action immunity and that it is immune from state antitrust liability under the circumstances of this case. We disagree.

¶ 16 Parker concluded that the federal antitrust statute did not undertake to prohibit restraint on competition imposed by a sovereign state as an act of government. 317 U.S. at 352, 63 S.Ct. at 314. Parker fashioned the state action immunity doctrine to protect the sovereign states’ power to regulate commerce with respect to matters of state concern not preempted by Congress. 317 U.S. at 359-60, .63 S.Ct, at 317-18. Under the Parker doctrine, a municipality may also be clothed with the state’s immunity from federal antitrust liability where the state has delegated its regulatory power to the municipality. City of Lafayette, La. v. Louisiana Power & Light Co., 435 U.S. at 414, 98 S.Ct. at 1137. Application of the Parker doctrine to a municipality when it is carrying out state policy allows the states to use their municipalities to administer state regulatory policies free from federal antitrust liability. Id., 435 U.S. at 415-16 and 98 S.Ct. at 1138.

¶ 17 The Parker immunity doctrine rests on principles of federalism and comity in the realm of trade regulation as a means of protecting the delicate relationship between the federal and state governments, both of which are sovereign. 317 U.S. at 359-60, 63 S.Ct. at 317-18. The principles of federalism that govern the relationship between the two sovereigns, the federal and state governments, do not apply to the relationship between a state and a municipality acting pursuant to state law.

¶ 18 In the relationship between Oklahoma and its municipalities, the state is the sovereign and the municipality is a political subdivision of the state. The state delegates power to the municipality and the municipality exercises that power subject to the control of the state. City of Sapulpa v. Land, 1924 OK 92, 101 Okla. 22, 223 P. 640, 646. The principles of federalism supporting the Parker doctrine are meaningless in an analysis of municipal liability under the Oklahoma Antitrust Reform Act.

¶ 19 We agree with the reasoning expressed by the Wisconsin Supreme Court in Town of Hallie v. City of Chippewa Falls, 105 Wis.2d 533, 314 N.W.2d 321 (1982). In rejecting the federal state action immunity doctrine, the Wisconsin court said:

... The Parker decision rested on general principles of federalism involving the relationship of the federal government to the sovereign states, and on the specific constitutional limits on federal power contained in the tenth- and eleventh amendments. (Footnote omitted.) These principles are not present in this case. The relationship between the federal government and the states is not parallel to the relationship between the state government and the cities. Cities are creatures of the state, derive their power from it, and are not recognized as independent sovereigns. (Citation omitted.) The concern in Parker and recent United States Supreme Court cases applying it (Footnote omitted.) has to do with potential conflicts between the laws of two different sovereigns — federal and state governments.
By contrast, the present case involves a conflict between the state laws dealing with municipalities and the state antitrust law. The rationale behind the Parker exemption is not applicable to this type of case....

314 N.W.2d at 324.

¶ 20 The Oklahoma Antitrust Reform Act expressly includes municipalities in the definition of “person” subject to its provisions in § 202(3). Nevertheless, Tulsa argues that § 212, which requires that our antitrust statutes be interpreted consistent with federal law, implicitly adopts the federal doctrine of state action immunity as applied to municipalities. We disagree. We will not apply a rule of construction to render meaningless express provisions of the Act, such as the definition of “person” in § 202(3). Accordingly, we reject Tulsa’s argument. We conclude that municipalities are not immune from the Oklahoma Antitrust Reform Act under the federal doctrine of state action immunity.

VI. The Municipal Airports Act, 3 O.S. 2001, §§ 65.1, et seq., authorizes municipalities to operate and regulate parking facilities and fix the rates for the parking services at municipal airports for the benefit of the public and as a public necessity without regard to the anti-competitive effects.

¶ 21 More than half a century ago, the Legislature authorized municipalities to plan, develop, and operate public airports by enacting the Municipal Airports Act. In comprehensive terms, the Act authorizes every municipality to plan, develop, construct, maintain, equip, operate, regulate, protect and police public airports, “including the construction, installation, equipment, maintenance and operation at such airports of buildings and other facilities for the servicing of aircraft or for the comfort and accommodation of air travelers”. 3 O.S.2001, § 65.2(a). The Act recognizes that air travel is imbued with public purpose and airports are a public necessity by declaring that the exercise of “powers herein granted to municipalities” are “public and governmental functions, exercised for a public purpose, and matters of public necessity”. 3 O.S.2001, § 65.16.

¶ 22 One of the powers the Act grants to municipalities is the power to regulate airport parking. The Act provides that in making airport facilities and services available, a “municipality may establish the terms and conditions and fix the charges, rentals or fees for the privileges or services, which shall be reasonable and uniform for the same class of privilege or service and shall be established with due regard for the property and improvements used and the expenses of operation to the municipality.” 3 O.S.2001, § 65.5(a)(3). It also provides in specific terms that a municipality may adopt such regulations as it deems necessary for the management, government and use of the municipal airport, 3 O.S.2001, § 65.8(a).

¶ 23 In enacting the Municipal Airports Act, the Legislature vested municipalities with broad regulatory and administrative powers in operating public airports. Among those powers, the Act authorizes municipalities to establish the terms and conditions and fix the charges for airport facilities and services. It follows logically that such regulation may have anti-competitive effects. In other words, the Act allows a municipality to operate parking facilities at its public airport and to fix reasonable rates for the parking services without regard to.the anti-competitive effects.

VII. Because the Legislature intended to allow a municipality to operate parking facilities at a municipal airport as an arm of the state for the public good, a municipality may, like the state itself, fix the rate for airport parking service even though it may have anti-competitive effects.

¶ 24 The overriding issue in this case is the reconciliation of two ostensibly conflicting enactments of a single sovereign — the State of Oklahoma. The Oklahoma Antitrust Reform Act makes it unlawful for a person, including a municipality, to monopolize or attempt to monopolize any part of trade or commerce in a relevant market. 79 O.S. 2001, § 203(B). On the other hand, the Municipal Airports Act allows a municipality to operate and regulate parking facilities and fix the rate for parking services at the municipal airport without regard to the anti-competitive effects. 3 O.S.2001, § 65.5(a)(3). In resolving this apparent inconsistency between a state law dealing with municipalities and the state antitrust law, the job quite simply is to ascertain and give effect to legislative intent. City of Durant v. Cicio, 2002 OK 52, ¶ 13, 50 P.3d 218, 221. See also, Milton Handler, Antitrust, 78 Columbia L.R. 1363, 1378 (1978).

¶ 25 In resolving this statutory conflict, we are mindful that the exercise of municipal authority is subject to the general laws of the state. City of Sapulpa v. Land, 223 P. at 646. Where municipal conduct is challenged under a general statute, the statutory grant of municipal authority must be strictly construed in favor of the general statute. Y & Y Cab Service v. City of Oklahoma City, 1933 OK 547, 167 Okla. 134, 28 P.2d 551, 552-53. Absent an express exemption, a municipality’s conduct cannot be exempted from the proscriptive reach of a general statute unless the express provisions of a conflicting state statute permits or authorizes the municipality to engage in conduct that is inconsistent with or contrary to the general statute.

¶ 26 The Oklahoma Antitrust Reform Act is a general statute of statewide concern that uniformly applies to every municipality. It is designed to prohibit anti-competitive conduct that is harmful to the public. Board of Regents v. National Collegiate Athletic Association, supra,, and Krebsbach v. Henley, supra. Accordingly, unless it can be said that the Municipal Airport Act authorizes Tulsa to fix parking rates for the good of the public, Tulsa has, if Fine’s allegations are proved, violated Oklahoma’s antitrust law.

¶ 27 Prior to enactment of the Municipal Airports Act, municipalities with 2000 inhabitants had statutory authority to engage in the operation of an airport. We viewed the operation of a municipal airport as a proprietary function. In enacting the Municipal Airports Act, the Legislature authorized municipalities to plan, develop and operate public airports and declared these activities to be “public and governmental functions”. 3 O.S.2001, § 65.16. It also granted municipalities various powers, including the power to “fix the charges, rentals or fees for the privileges or services” at a municipal airport, 3 O.S.2001, § 65.5(a)(3), and declared these powers to be exercised “for a public purpose, and matters of public necessity”. 3 O.S.2001, § 65.16. A reading of these provisions leads us to but a single conclusion — When a municipality operates an airport pursuant to the Municipal Airports Act, it is acting in a governmental capacity as an arm of the state to meet a public need and not solely for its own benefit.

¶ 28 Because the Legislature intended to allow a municipality to operate parking facilities at a municipal airport as an arm of the state for the public good, a municipality may, like the state itself, fix the rate for the airport parking service even though it may have anti-competitive effects. Accordingly, we determine that Tulsa’s operation of an airport parking facility as authorized by the Municipal Airports Act, 3 O.S.2001, §§ 65.1, et seq. is not subject to the Oklahoma Antitrust Reform Act, 79 O.S.2001, §§ 201, et seq.

VIII. Conclusion

¶ 29 The Oklahoma Antitrust Reform Act, while expressly excluding the state from antitrust liability, clearly subjects municipalities to liability for anti-competitive conduct. Municipalities are not immune from the Act under the federal doctrine of state action immunity. The Municipal Airports Act authorizes municipalities to operate and regulate parking facilities and fix the rates for the parking services at municipal airports for the benefit of the public and as a public necessity. Because the Legislature intended to allow a municipality to operate parking facilities at a municipal airport as an arm of the state for the public good, a municipality may, like the state itself, fix the rate for airport parking service even though it may have anti-competitive effects. We hold that the district court did not err when it dismissed Fine’s petition for want of any legal liability on the part of Tulsa under the state antitrust statutes, even though the district court based its dismissal on incorrect legal conclusions.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; DISMISSAL ORDER OF THE DISTRICT COURT AFFIRMED.

WATT, C.J., OPALA, V.C.J., and LAVENDER, HARGRAVE, SUMMERS, and WINCHESTER, JJ., concur.

HODGES, J., concurs in result.

KAUGER, J., recused.

      . Because we resolve this appeal on other grounds, we do not address the relevant market and intent to monopolize issues.

        . 15 U.S.C. § 1 reads:
      Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.

      . The following language, similar to that used in the federal statute set out in footnote 2, has been a part of our statutes since statehood: "Every act, agreement, contract, or combination in the form of a trust, or otherwise, or conspiracy in restraint of trade or commerce within this state is hereby declared to be against public policy and illegal.” Laws of 1907-8, p. 750, Complied Laws of 1909, § 8800, now codified at 79 O.S.2001, § 203(A).

      .1998 Okla.Sess.Laws, ch. 356, created the Oklahoma Antitrust Reform Act and repealed the existing antitrust statutes.

      . The state antitrust statutes expressly prohibit every unilateral "act” of anti-competitive conduct. However, restraint of trade or commerce imposed unilaterally by government officials is not a violation of the federal antitrust statute which requires an element of concerted action. Fisher v. City of Berkeley, 475 U.S. 260, 266-67, 106 S.Ct. 1045, 1049, 89 L.Ed.2d 206 (1986).

      . The constitution also prohibits discrimination in the sale of commodities. Okla. Const., art. 9, § 45.

      . Pursuant to the Oklahoma Constitution, the Legislature must provide for the incorporation and organization of cities and towns by general laws (art. 18, § 1); municipalities are subject to the general laws of this state (art. 18, §§ 2 and 3,); and, municipalities may engage in any business which the municipality has the power to franchise (art. 18, § 6). Under these provisions, municipalities are corporate bodies capable of many acts of private corporations as well as acts of government. City of Blackwell v. Lee, 1936 OK 767, ¶ 5, 62 P.2d 1219, 1220.
      In City of Lafayette, La. v. Louisiana Power & Light Co., supra., the city argued that its status as a municipality automatically afforded it state action immunity. The U.S. Supreme Court refused to afford the city the same deference it afforded the states, explaining that cities are not sovereign and they are not free to pursue their parochial interests via anti-competitive conduct. City of Lafayette, La. v. Louisiana Power & Light Co., 435 U.S. at 411-13, 98 S.Ct. at 1136.

      . For the most part, the decisions of other sister jurisdictions considering application of the Parker doctrine are inapposite because of their respective state statutes. Three states have rejected the federal state action immunity doctrine. Massachusetts did so because its antitrust statutes explicitly provided that the law did not apply to any activities subject to regulation or supervision by state agencies, Monsanto Co. v. Dept. of Public Utilities, 412 Mass. 25, 586 N.E.2d 982 (1992). New Jersey did so because its antitrust statutes specified that the law shall not apply to any activity directed or authorized or permitted by any conflicting or inconsistent statute, Fanelli v. City of Trenton, 135 N.J. 582, 641 A.2d 541 (1994). New York, at least by implication, determined that its state antitrust statutes did not provide for state action immunity comparable to the federal doctrine. Capital Telephone v. New York Telephone, 146 A.D.2d 312, 540 N.Y.S.2d 895 (3 Dept.1989). However, three states have followed the federal state action immunity analysis. Louisiana did so because its antitrust statute did not expressly include or exclude municipalities, Reppond v. City of Denham Springs, 572 So.2d 224 (La.App. 1 Cir.1990). Colorado did so because its antitrust statute specifically provided that persons and activities immune from federal law are immune from state law, City of Colorado Springs v. Mountain View Electric Association, Inc., 925 P.2d 1378, 1387 (Colo.App.1996). Illinois held that an airport authority is protected by the state action immunity doctrine in Du Page Aviation Corp. v. Du Page Airport Authority, 229 Ill.App.3d 793, 594 N.E.2d 1334, 171 Ill.Dec. 814 (1992), but subsequently decided that its antitrust statutes expressly provide that no provision of the antitrust statutes shall be construed to make activities of a unit of local government illegal, Alarm Detection Systems, Inc. v. Village of Hinsdale, 326 Ill.App.3d 372, 761 N.E.2d 782, 260 Ill.Dec. 599 (2001).

      . 1947 Okla. Sess. Laws, p. 22, is the original enactment.

      . 1931 Oklahoma Compiled Statutes, § 6350.

      . City of Blackwell v. Lee, 1936 OK 767, 178 Okla. 338, 62 P.2d 1219. A 1958 amendment to Tulsa's municipal charter created the Airport Authority to operate the airport as a financially independent utility of the city. City of Tulsa by and through Tulsa Airport Authority v. Air Tulsa, Inc., 1992 OK 146, ¶ 2 and ¶ 14, 851 P.2d 519, 520 and 522. This perception of a municipal airport as a proprietary function was changed in the 1947 Municipal Airports Act when the Legislature, in § 65.16, characterized the operation of a municipal airport as a governmental function, finding public purpose and public necessity.
      Generally, all functions of a municipality are public in nature whether the municipality acts in a proprietary capacity or a governmental capacity. When a municipality acts in a proprietary capacity, it does so as a private corporation for its own purposes and benefits separate from the duties and powers imposed upon by the state, however, when a municipality acts in a governmental capacity, it does so as an arm of the state for the convenient administration of the government within territorial bounds of the municipality, for the public good on behalf of the state rather than for itself. Public Service Co. of Oklahoma v. City of Tulsa, 1935 OK 904, 174 Okla. 58, 50 P.2d 166, Syllabus, No. 2.
      Fine does not challenge the Legislature’s "public purpose and public necessity” perception of municipal airports. Even though the question might ultimately become a judicial one, what constitutes a public purpose and public necessity is a legislative matter. In re Initiative Petition No. 319, 1984 OK 23, ¶ 14, 682 P.2d 222, 224. Where there is no allegation or evidence challenging the legislative characterization of the public nature of a particular subject matter, the courts will not interfere with a legislative declaration of public purposes. Democratic Party of Oklahoma v. Estep, 1982 OK 106, ¶ 14, 652 P.2d 271, 276, footnote 19.

      . The Court of Civil Appeals also created a sweeping immunity from antitrust liability for a municipality if the challenged conduct is within the "police power.” Police power is an inherent attribute of sovereignty possessed by every state. State ex rel. Roth v. Waterfield, 1933 OK 546, 29 P.2d 24. The police power pertains to such rules and regulations relating to personal and property rights as affect the public health, safety and welfare. 16A C.J.S. Constitutional Law § 432. Tulsa is not exercising municipal "police power” when it fixes the price of airport parking because such regulation does not affect personal or property rights. The case relied on by the Court of Civil Appeals, Ex Parte Houston, 1950 OK CR 93, 93 Okla.Crim. 26, 224 P.2d 281, does not support the proposition that fixing the price of parking at a municipal airport is an exercise of police power.

      . A trial court will be affirmed on appeal where it reaches the correct result although its decision is based upon erroneous legal conclusions. Shelley v. Kiwash Electric Coop., 1996 OK 44, ¶ 16, 914 P.2d 669, 674.


text:
    2003 OK 54
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. R. Scott SCROGGS, Respondent.
    S.C.B.D. No. 4759, O.B.A.D. No. 1557.
    Supreme Court of Oklahoma.
    May 20, 2003.
   ¶ 0 Order Approving Resignation Pending Disciplinary Proceedings.

¶ 1 Upon consideration of the complainant’s, Oklahoma Bar Association (Bar Association), application pursuant to Rule 8.2 of the Rules Governing Disciplinary Proceedings (5 O.S.2001 Ch. 1, App. 1-A), for an order approving the resignation of the respondent, R. Scott Scroggs, pending disciplinary proceedings, the application and resignation reveal the following.

¶ 2 On May 6, 2003, the respondent filed with this Court his Affidavit of Resignation from membership in the Bar Association pending disciplinary proceedings.

¶ 3 The respondent’s Affidavit of Resignation reflects that: a) it was freely and voluntarily rendered; b) he was not subject to coercion or duress; and c) he was fully aware of the consequences of submitting the resignation.

¶ 4 The respondent’s affidavit notes that he was suspended from the practice of law for one year by an opinion of this Court in State ex rel. Oklahoma Bar Association v. R. Scott Scroggs, 2003 OK 21, 70 P.3d 821, (March 4, 2003), (petition for rehearing pending), (S.C.B.D. No. 4602).

¶ 5 The respondent’s affidavit notes that a complaint was filed in this Court in State ex rel. Oklahoma Bar Association v. R. Scott Scroggs, S.C.B.D. No. 4759, O.B.A.D. No. 1557. A summary of the allegations in the twenty-five-page Complaint is that:

Count 1. Robert Brooks paid respondent him $700.00 for legal representation. It is alleged that respondent failed to communicate with Brooks, obtain service on a defendant, to take the necessary steps to advance the litigation, and other matters. It is alleged that respondent violated Rules 1.1, 1.3,1.4, 3.2, and 8.4(e) of the Rules of Professional Conduct.
Count 2. Robert Raska paid respondent $725.00 for legal representation. It is alleged that respondent failed to communicate with his client, terminated an action without his client’s consent, agreed to a settlement without the consent of the client, and other matters. It is alleged that respondent violated Rules 1.1, 1.2, 1.3,1.4, and 3.2, of the Rules of Professional Conduct.
Count 3. Jerry Durham paid respondent $650.00 for legal representation. It is alleged that the contingency fee agreement was not in writing. Further, that respondent failed to communicate with his client, misrepresented the proceedings to the client, neglected a legal matter, failed to return the client’s property, and other matters. It is alleged that respondent violated Rules 1.1,1.3,1.4,1.15(a), 1.16(d), and 8.4(c) of the Rules of Professional Conduct. Count 4. Patricia Hurst paid respondent $650.00 for legal representation. It is alleged that respondent neglected a legal matter, failed to communicate with his client, and other matters. It is alleged that respondent violated Rules 1.1, 1.3,1.4, 1.5(a), 1.5(c), 3.2, and 8.4(c) of the Rules of Professional Conduct.
Count 5. It is alleged that respondent informed the Bar Association that he had accounted for his work to Hurst, and provided Hurst with a partial refund, when he did not, that he made misrepresentations to the Bar, and other matters. It is alleged that respondent violated Rules 1.15(a), 8.1(a) and 8.4(c) of the Rules of Professional Conduct, and Rule 5.2 of the Rules Governing Disciplinary Proceedings. Count 6. Mindi Boston paid respondent $650.00 for legal representation. It is alleged that respondent neglected a legal matter, failed to properly communicate with the client, and several other matters. It is alleged that respondent violated Rules 1.1, 1.3,1.4, 1.5(c) and 3.2 of the Rules of Professional Conduct.
Count 7. Respondent is alleged to have provided the Bar Association with false information. It is alleged that Respondent violated Rules 8.1 and 8.4(c) of the Rules of Professional Conduct.
Count 8. Brett Thompson paid respondent $650.00 for legal representation. It is alleged that respondent neglected a legal matter, failed to communicate with his client, failed to properly terminate the relationship when directed to do so, and other matters. It is alleged that respondent violated Rules 1.1, 1.3,1.4, 1.5(c), 1.16(d), and 8.4(c) of the Rules of Professional Conduct.
Count 9. Darrell Doyle paid respondent $650.00 for legal representation. It is alleged that the fee agreement was not in writing, and that respondent neglected a legal matter, failed to communicate properly, and other matters. It is alleged that respondent violated Rules 1.1, 1.3,1.4, 1.5(c), 1.15(c), 1.16(d), and 8.4(c) of the Rules of Professional Conduct.
Count 10. Natalie Nelson paid respondent $650.00 for legal representation. It is alleged that respondent neglected a legal matter, failed to communicate with his client, made a misrepresentation, and other matters. It is alleged that respondent violated Rules 1.1, 1.2, 1.3, 1.4, 1.5(a), 1.15(b), and 8.4(c) of the Rules of Professional Conduct.
Count 11. Remona Saleh paid respondent $650.00 for legal representation. It is alleged that the contingency fee agreement was not in writing, and the respondent neglected a legal matter, failed to communicate with his client, and other matters. It is alleged that respondent violated Rules 1.1, 1.3, 1.4, 1.5(c), 3.2, and 8.4(c) of the Rules of Professional Conduct.

¶ 6 Respondent states in his affidavit the following grievances pending before complainant:

(a) DC 02-358. A grievance was lodged with the Office of General Counsel alleging that due to respondent’s neglect and misrepresentation a cause of action is now barred by a statute of limitations.
(b) DC 02-413. A grievance was lodged with the Office of General Counsel that respondent received payment for, but did no work on, a legal matter, except to prepare a “fill-in-the-blank” petition.
(c) DC 03-44. A grievance was lodged with the Office of General Counsel that respondent neglected a client’s case and failed to file a response pursuant to Rule 5.2 of the Rules Governing Disciplinary Proceedings.
(d) DC 03^16. A grievance was lodged with the Office of General Counsel alleging that respondent performed little, if any, work on a legal matter during seven months he represented his client. Further, that he failed to file a response pursuant to Rule 5.2 of the Rules Governing Disciplinary Proceedings.
(e) DC 03-68. A grievance was lodged with the Office of General Counsel alleging that a client paid respondent $650.00 and respondent mailed two months later a draft petition to the client with many mistakes therein. Further, that he failed to file a response pursuant to Rule 5.2 of the Rules Governing Disciplinary Proceedings.
(f) DC 03-78. A grievance was lodged with the Office of General Counsel alleging incompetence, neglect, dishonesty, and poor communication during respondent’s representation of a client. Further, that respondent ignored requests for a response form the Office of the General Counsel, and that respondent failed to file a response pursuant to Rule 5.2 of the Rules Governing Disciplinary Proceedings.
(g) DC 03-86. A grievance was lodged with the Office of the General Counsel alleging neglect, lack of communication, and incompetence during respondent’s one-year representation of a client. Further, that he failed to file a response pursuant to Rule 5.2 of the Rules Governing Disciplinary Proceedings.

¶ 7 The resignation states that respondent is aware that the burden of proof rests upon the Bar Association, and that he waives any and all right to contest the allegations.

¶ 8 The resignation states that the respondent is aware that the allegations concerning his conduct, if proven, would constitute violations of Rule 5.2, of the Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A, and Rules 1.1, 1.2, 1.3, 1.4, 1.5(a), 1.5(c), 1.15(a), (b), & (c). 1.16(d), 3.2, 8.1(a), and 8.4(c) of the Rules of Professional Conduct, 5 O.S.2001 Ch.l, App. 3 A, and his oath as a lawyer.

¶ 9 The resignation states that respondent is aware that approval of his resignation is in the discretion of this Court.

¶ 10 The resignation states that the respondent is aware of the requirements of Rule 9.1, of the Rules Governing Disciplinary Proceedings, and shall comply with that Rule.

¶ 11 We have said that “A resignation pending disciplinary proceedings is tantamount to disbarment.” State ex rel. Oklahoma Bar Association v. Bourland, 2001 OK 12, ¶ 15, 19 P.3d 289, 291. Thus, a lawyer resigning pending disciplinary proceedings may not make application for reinstatement prior to the expiration of five years from the date of the order approving the resignation. State ex rel. Oklahoma Bar Association v. Grunewald, 2001 OK 65, ¶ 2, 27 P.3d 482, 483; State ex rel. Oklahoma Bar Association v. Redell, 2001 OK 112, ¶ 2, 38 P.3d 227, 228.

¶ 12 The resignation states that the respondent is aware that he may make no application for reinstatement prior to the expiration of five (5) years from the effective date of the order approving the resignation. It states that the respondent is aware that compliance with Rule 11, Rules Governing Disciplinary Proceedings, is required for reinstatement to the practice of law.

¶ 13 The resignation states that the respondent is aware that the Clients’ Security Fund may receive claims from his former clients, and that he shall pay to the Oklahoma Bar Association, prior to reinstatement, those funds, including principal and interest, expended by the Clients’ Security Fund for claims against him. See 5 O.S.2001 Ch. 1, App. 1-A, Rule 11.1(b), Rules Governing Disciplinary Proceedings. We have required payment of interest at the statutory rate for repayment to he Client’s Security Fund. State ex rel. Oklahoma Bar Association v. Glover, 2002 OK 54, ¶ 4, 49 P.3d 738.

¶ 14 The resignation states that the Oklahoma Bar Association incurred costs in 2003 OK 21, 70 P.3d 821 (S.C.B.D. No. 4602), in the amount of $3,334.61, and that those costs were previously awarded by this Court. It states that respondent is aware that he must pay those costs within ninety days of the date the opinion in 2003 OK 21, 70 P.3d 821 is final.

¶ 15 The Bar Association’s application for approval of respondent’s resignation waives its costs in proceeding S.C.B.D. 4759.

¶ 16 The official roster name, address, and Bar Association number, of the respondent is R. Scott Scroggs, 8438 S. 36th West Avenue, Tulsa, OK 74132, O.B.A. No. 16,889.

¶ 17 IT IS THEREFORE ORDERED that the application by the Bar Association and the resignation of R. Scott Scroggs are approved.

¶ 18 IT IS FURTHER ORDERED that Respondent’s name be stricken from the Roll of Attorneys and that he make no application for reinstatement to membership in the Oklahoma Bar Association prior to five years from the effective date of this order.

¶ 19 IT IS FURTHER ORDERED that if any funds of the Clients’ Security Fund of the Oklahoma Bar Association are expended on behalf of respondent, he must show the amount paid and that the same has been repaid, with interest, to the Oklahoma Bar Association to reimburse such Fund prior to reinstatement.

¶ 20 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE TUTS 19th DAY OF MAY, 2003.

¶ 21 All Justices concur.