STATE OF WISCONSIN

IN THE MATTER OF THE DISCIPLINARY

PROCEEDING AGAINST:

            STUART M. SUSTER, M.D., Respondent                  CASE NO. 00 MED 272

RESPONDENT’S EMERGENCY MOTION TO QUASH THE COMPLAINT

      NOW COMES Stuart M. Suster, M.D., Respondent, in the above mentioned cause of action to file this motion to quash and would show the Court the following, to wit:

      The Complaint or Information in this case has several missing legal and factual essential elements concerning the overt acts and law in this case.  Since violations of the Medical Practice Act are specific intent crimes, the Complaint or Information must allege that the Respondent willfully and knowingly violated some specific law, regulation or rule.  The legal terms willfully or knowingly or their equivalents are totally missing from the Complaint or Information for both the overt acts and legal aspects.

      Also, a Complaint or Information is not legally sufficient unless it has all the specifics or particulars concerning the facts concerning the alleged violation.

      Since the Complaint is totally deficient of the necessary and required essential material elements, the Complaint is unconstitutionally void and does not charge any offense.  Thus, the Administrative Court lacks jurisdiction to legally proceed in this case and must quash the Complaint.

      The key purpose of a Complaint is notification.  Respondent in this case has not been notified of the mens rea elements of willfulness or knowingly as related to any overt act.  The Complaint fails because it does not charge each of the essential elements of the alleged offenses.

      In addition, Counts I thru XI only has a reference to the statutory citations and do not include the necessary elements found in each of the statutes, regulations and rules.  A statutory citation does not cure the lack of essential elements in a complaint, U.S. v. Daniels, 973 F.2d 272; United States v. Hooker, 841 F.2d 1225; United States v. Pupo, 841 F.2d 1235, Cert. Denied 102 L.Ed. 2d 87 (1988).

      Again, failure of a Complaint to state an offense is a fatal defect which causes the Complaint to be insufficient and void.

      THEREFORE, IT IS Prayed that the original Complaint against Respondent be quashed.

Respectfully submitted,

                                                                                    _____________________________

Stuart M. Suster, M.D.

                                                                                    P.O. Box 26507

                                                                                    10125 W. North Avenue

                                                                                    Wauwatosa, Wisconsin

                                                                                    414-443-6432

CERTIFICATE OF SERVICE

IT IS HEREBY Certified that a true and correct copy of the foregoing Motion to Quash has been served in compliance with the State Office of Administrative Hearing Rules of Procedure on the following individuals at the locations and in the manner indicated below on the _____ day of November, 2003, to wit:

                                                                                    _____________________________

                                                                                    Stuart M. Suster, M.D.

VIA FIRST CLASS MAIL

Docket Clerk

Dept. of Regulation and Licensing

Board of Legal Services

P.O. Box 8935

Madison, Wisconsin 53708

VIA FIRST CLASS MAIL

Mr. Wayne Austin, Legal Counsel

P.O. Box 8935

Madison, Wisconsin 53208-8935

VIA FIRST CLASS MAIL

Mr. Arthur Thexton-Prosecuting Attorney

P.O., Box 8935

Madison, Wisconsin 53708-8935