State Ex Rel. Oklahoma Bar Ass'n v. Lobaugh ( 1988 )

SIMMS, Justice,

dissenting:

I must respectfully dissent. The issue which the majority finds controlling was not presented to the trial panel, nor was it raised by the Respondent to this Court. Here he does not challenge the procedure afforded him, but complains only that the discipline imposed is too severe. Assuming, for the sake of argument, that a procedural defect of constitutional dimension is present in the facts of this case, the Respondent has waived any and all objections to it. Constitutional rights, as other rights, are personal and may be waived. See, e.g., D.H. Overmyer Co., Inc. of Ohio v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972); Pierce Oil Corp. v. Phoenix Refining Co., 259 U.S. 125, 42 S.Ct. 440, 66 L.Ed. 855 (1922).

It is axiomatic that issues are not properly before us for consideration when they are not raised at trial and also not raised here. See, e.g., McGlumphy v. Jetero Const. Co., Inc., Okl., 593 P.2d 76 (1979); Peters v. Golden Oil Co., Okl., 600 P.2d 330 (1979). The majority’s reliance on Pettit v. American Nat. Bank of Austin, Okl., 649 P.2d 525 (1982) is misplaced as in that case claims of denial of due process based on a lack of minimum contacts were not made to the trial court; but were raised for the first time on appeal. Here, however, the argument has never been made.

Additionally, I believe the majority is committing the very same purported constitutional error of which it adjudges the trial panel guilty: depriving Respondent of an opportunity to be heard and confront witnesses against him. By refusing to remand this matter so that Respondent can now have the hearing the majority finds he was entitled to, the majority is compounding his so-called constitutional deprivations.

I would suspend Respondent for one year as recommended by the trial panel, to begin one year from the date of this order as urged by the Bar Association.

I am authorized to state that Justice LAVENDER joins with the views expressed herein.

I am further authorized to state that Justice OPALA joins in the views expressed herein insofar as Respondent has waived his constitutional right.