Petition for Writ of Certiorari — In re Smith

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

LINDA C. HOWARD,

Vv.

MAIL-WELL ENVELOPE COMPANY, BUTLER PAPER

COMPANY, GEORGIA-PACIFIC CORPORATION,

GREAT NORTHERN NEKOOSA CORPORATION

EMPLOYEE PROTECTION PLAN,

DAVID L. SMITH,

Petitioner.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

DAVID L. SMITH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY-PETITIONER

QUESTIONS PRESENTED FOR REVIEW

Whether by refusing to address the

issues raised and argued by Mr. Smith in

his appellate briefs, the Tenth Circuit

violated his First Amendment right to

access to the courts to petition the

government for a redress of grievances

and his Fifth Amendment right to due

process of law, including his right to

appeal a final decision by a district

court and to receive meaningful review of

that decision under 28 U.S.C. § 1291.

Whether by enjoining Mr. Smith from

proceeding as an appellant, or as a

petitioner in an original proceeding,

without the representation of a licensed

attorney admitted to practice in the

Tenth Circuit, unless he first obtains

permission to proceed pro se, the Tenth

Circuit further violated his First and

Fifth Amendment rights.

Whether the Tenth Circuit also

violated Mr. Smith’s Sixth Amendment

right to self-representation, including

his right to proceed pro se under 28

U.S.C. § 1654.

Whether the record was devoid of any

evidence upon which the Tenth Circuit

could base imposing its injunction

against Mr. Smith.

Whether by charging Mr. Smith with

violating the Tenth Circuit’s previous

orders, the Tenth Circuit was charging

him with what amounted to criminal

contempt; and he was therefore entitled

to a full criminal process, including his

Sixth Amendment right to a trial by jury

on these charges.

Whether at the very least, Mr. Smith

was entitled to an evidentiary hearing at

which he would have the opportunity to

present expert testimony and other

relevant evidence on his affirmative

defenses and mitigating circumstances to

the charges being brought against him.

Whether the Tenth Circuit committed

reversible error by denying Mr. Smith’s

request for an evidentiary hearing.

Whether since the Tenth Circuit has

demonstrated that it is incapable of

rendering a fair and impartial decision

with respect to any matter involving Mr.

Smith, the Tenth Circuit also committed

reversible error by denying his request

for the cases under review to be

‘transferred to the United States Court of

Appeals for the Federal Circuit for

decision.

«its

Whether the Tenth Circuit committed

reversible error by denying Mr. Smith’s

request for an order dismissing with

prejudice the frivolous and groundless

charges it brought against him for the

improper purpose of depriving him of his

First and Fifth Amendment rights to

litigate meritorious issues the Tenth

Circuit and the District Court have

steadfastly refused to decide on their

merits.

Whether the Tenth Circuit committed

reversible error by issuing a false and

defamatory opinion that is unsupported by

the law or the facts.

Whether the United States Court of

Appeals for the Tenth Circuit has entered

a decision in conflict with the decision

of another United States court of appeals

on the same important matter; has so far

departed from the accepted and usual

course of judicial proceedings, or

sanctioned such a departure by a lower .

court, as to call for an exercise of this

Court's supervisory power; or has decided

an important question of federal law that

has not been, but should be, settled by

this Court, or has decided an important

federal question in a way that conflicts

with relevant decisions of this Court.

-iii-

zaman aie iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ......... i

TABLE OF CONTENTS ...cccccccccccccccece AV

i es OF OT Peer ened eT ee

CITATIONS OF OPINIONS AND ORDERS ..... xii

CUANDO 660 bic ewe ewes cdee cdés oS

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THE CASE ........ xiv

Sraseeeee- GP SHB CASR oi ae esi i oti. 1

AEE. <6'6's 000 Wek NewS CES 6S HRSG <2

RPT 60 0060 ceed ecvisdeieddesse “Reteemes

-iv-

TABLE OF AUTHORITIES

CASES

Allen v. McCurry, 449 U.S. 90,

(1980) eee eeeeeeeeeeeeeeeeaeeseeeeseeeeees 6

Arnett v. Kennedy, 416 U.S. 134,

(1974) eeweoeeeeeeeeeeeeeeeeeeeeeseeneeeeee 10

401 U.S. ie 91 S.Ct. 702,

BY Mec RO OONe CADE i hi din de hh Cex 8

Bloom v. Illinois, 391 U.S. 194,

88 S.Ct. 1477, 20 L.Ed.2d 522

(ARGR) «0. < cued d dae Kd ble Zell's 000.0 0s 8

Board of Regents v. Roth, 408 U.S.

564, 96 S.Ct. 2701, 33 L.Ed.2d 548

CEUTA) cbr 6055 6 Ind eee Mi 6 S5554455% 4

Bodie v. Connecticut, 401 U.S. Bias

91 S.Ct. 780, 28 L.Ed.2d 113

Ce en a 8 2G a eh cas bee Se 8 est. 8

Braley v. Campbell, 832 F.2d 1504

CON RS Oa obese, B22 poe 5d. 5, 9

Brewen v. United States, 375 F.2d

285 as SU a a a a 3

» 505 F.2d 217

Burkett v. Chandler

(10™ Cir.), cert. denied, 423 U.s.

876, 96 S.Ct. 149, 46 L.Ed.2d 110

(SUTE) vcecdccvébsudeseatbsbdvecsecococs Be 9

California Motor Transport Co. v.

Trucking Unitd., 404 U.S. 508,

92 S.Ct. 609, 30 L.Ed.2d 642

(1972) eeereeeeeeeeeeeeeeeeeeeeeeeeees

Cleveland Board of Education v.

Loudermill, 470 U.S. 494, 105 s.ct.

1487, 84 L.Ed.2d 494 (1985) .........

Coppedge v. United States, 369 U.S.

438, 82 §.Ct. 917, 8 L.Ed.2d 21

(1962) 5 9 6.462.808 @& ee eeeeeeeeeeeeeeeeeee

Crumpacker v. Indiana Supreme Court

bisciplinary Commission, 470 U.S.

ROTE: CANONS ob a bre dd doe eee ok cc écn

Vv ‘

143 9.30. 396. 1B Ga, BO vo ioééwce

School Board, 121 F.3d 576

(ES Gide Gee vac oc eck ec

-vi-

Douglas v. California, 372 U.S. 353,

83 S.Ct. 814, 9 L.Ed.2d 811

(1963) sre ee eeeeeeneeeeeeeee se eee eeeeeeee &

Evans vy. Moseley, 455 F.2d 1084

2 SESE | a eee 6

Goldberg v. Kelly, 397 U.S. 254,

90 S.Ct. 1011, 25 L.Ed.2d 287

(1970) eee ee ee eee eee e ee eee eeeeeeeeeee 10

221 U.S. 418, 31 S.Ct. 492, 55 L.Ed.

POE PURPOSE + Whe de dedb edible Gdeus crcccecceccce 8

Harbolt v. Alldredge, 464 F.2d 1243,

(190™ =. OO cert. denied, 409 U.S.

1025, 93 S.Ct. 473, 34 L.Ed.2d 319

COTES 6c cchewed eed ne bawdebbsibdeccikance 5

Harper v. Virginia State Board of

Elections, 383 U.S. 663, 86 S.Ct.

1079, 16 L.Ed.2d 169 (1966) ............ 8

¥v ’

512 U.S. 415, 114 S.Ct. 2331,

BOP Memmeee BEG: (BOOE) cess o dcccldwc dic osc 3

in re David L. Smith, 10 F.3d 723

(10 Cir.), cert. denied, 513 U.S.

807, 115 S.Ct. 53, 130 L.Ed.2d 13

CROOOD Mee iai Fira ss eel die ee a 2

in_re David L. Smith, 76 F.3d 335

(10 Cir.), cert. denied, U.S.

, 117 S.Ct. 186, 136 L.Ed.2da 125

feicececeecdeccaws TUttebetheataceecth 2

in re Ruffalo, 390 U.S. 544,

88 S.Ct. 1222, 20 L.Ed.2d 117

GEPEOD Ss ees cows weed ewes vcWecescccoece 8

512 U.S. 821, 114 S.Ct. 2552,

Ser Mommas GES (2996) foc cdccccccccccce 8

Nos. 95-1091 and 95-1119 (10™ cir.),

cert. denied, iad pe

117 S.Ct. 359, 136 L.Ed.2d 251

(2906) Sede FS ASS, FUR Seas heb tsb cece 2

Johnson v. Board of County

Commissioners, 85 F.2d 489

(207 Cis. :2096)* . aici FA ree Ves ch v's ke ve 4

Liteky v. United States, 510 U.S.

540, 114 S.Ct. 1147, 127 L.Ed.2d

S74 (29964) icc ise COSCE SC SCCHT ECE CEE Ere cee 10

455 U.S. 422, 102 S.Ct. 1148,

72. & BG. 26 26S: 4SDESS 05s 66-6 06 oi CoS 4

Matter of McLinn, 739 F.2d 1395

Sie Gs i ie a 3

District of Colorado, 758 F.2d 1362

(Aa Saas Se oe oc ra eS. 5, 9

Mayberry v. Pennsylvania, 400 U.S.

455, 91 S.Ct. 499, 27 L.Ed.2d 532

(1971) eeeeeneaeoeoeeoeseeoeesecseoeeeeeee ee ee eee 10

-viii-

McKaskle v. Wiggins, 465 U.S. 168,

104 S.Ct. 944, 79 L.Ed.2d 122

(1984) cere eee e ewww eee eee eeeeseeee eeeneeeees 7

McKnight v. General Motors

Corporation, 511 U.S. 659, 114 s.ct.

1826, 128 L.Ed.2d 655 (1994) ........... 6

Morrissey v. Brewer, 408 U.S. 471,

92 S.Ct. 2593, 33 L.Ed.2d 484

(1972) " "2:42 ©O4 OCOD SC6E OCG CCC BE OKO OCC EC CO 10

NAACP v. Button, 371 U.S. 415,

Bie sees vee eawrae bbe tis cic. oS... 4

Vv , 348 U.S. 11,

75 &.Ct. 11, 99 L.Ed. 11 SE OGP *. esc es 10

Vv r urt,

746 F.2d 1429 (10 Cir.), cert.

denied, 471 U.S. 1016 (1985) ........ 5, 9

Salve Regina College v. Russell,

499 U.8.:231,: 111 @.ce. 1217,

eae SecmG.am 290: (2091). ce. ca eck .. 3

w vy, 2» B Examiners,

353 U.8. 232, 77° 8.Ct. 752,

Oe Be ge ee 8

Silver v. Cormier, 529 F.2d 161,

eee ee OO igo OY ©

-~ix-

i iii |

et al., No. 98-1030 (10 cir.),

cert. pending in Supreme Court

No. 98-265 Seeeeeaeeeeaeeoeoea een eee se eeeee es

of California, 135 F.3d 684

(10% Cir. 1997) eseeeeeeeeseeeeeese eeeeeee#es. 4

Vv 27

CFR Das MOO GAN ie to ida cco = ,

Vv o 971 F.2d

SOR TS Os BOONE hii ek kn céx an (th 4

Vv » S19 U.a. 54,

117 S.Ct. 463, 136 L.Ed.2d 364

in cng Me, PU ee eS ea 3

Vv =

Inc., 908 F.2d 675 (10 cir.

os eS tn oe ce 5, 9

Wisconsin v. Constantineau, 400 U.s.

433, 91 S.Ct. 507, 27 L.Ed.2d 515 |

SOFAS 240d vig es Okdis PAM EEDL i occ le 4

OTHER AUTHORITIES

Amend. I, U.S. Consti. ...... te Rie FF, 39

Amend. V, U.S. Consti. ....... ae @, Fe

Amend. VI, U.S. Consti. ............. : PS

-xX-

OO WeeGi 8 SOR bre to ee eo ici 9

28. U.8.C.: 8 2291 sscee.. Pe Dees Sedece 6 3

me eee Gin SBCO pcik. Ci vskviksews cece h 7

BO BOCs. R106 es casinidssieiiicciad. 11

-Xi-

iw Vv -W Vv

Pe F.3d (10 Cir. June 29,

v. Regional Transportation

District, et al., F.3d (10>

Cir. June 29, 1998).

Howard v. Mail-Well Envelope Company, et

al., Case No. 97-1297 (10 Cir. July 14,

1998).

-xii-

;

JURISDICTION

The opinion sought to be reviewed

was entered by the United States Court of

Appeals for the Tenth Circuit on June 29,

1998. Rehearing of this opinion was

summarily denied by order dated July 14,

1998.

The statutory provision believed to

confer jurisdiction on the Supreme Court

of the United States to review on writ of

certiorari the Tenth Circuit’s opinion of

June 29, 1998 is 28 U.S.C. § 1254.

-xiii-

seeticiaiiiia i

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THE CASE

Amendment I of the Constitution of

the United States provides in relevant

part as follows:

Congress shall make no law.

- abridging . .. the right of the

people to petition the Government

for a redress of grievances.

Amendment V of the Constitution of

the United States provides in relevant

part as follows:

- + + [N]or shall any person be

- deprived of life, liberty or

property, without due process of law

Amendment VI of the Constitution of

the United States provides in relevant

part as follows:

In all criminal prosecutions,

the accused shall enjoy the right to

a speedy and public trial, by an

impartial jury of the State and

district wherein the crime shall

have been committed .

-xiv-

28 U.S.C. § 455(a) provides as

follows:

Any justice, judge, or

magistrate of the United States

shall disqualify himself in any

proceeding in which his impartiality

might reasonably be questioned.

28 U.S.C. § 1291 provides as

follows:

The courts of appeals (other

than the United States Court of

Appeals for the Federal Circuit)

shall have jurisdiction of appeals

from all final decisions of the

district courts of the United

States, the United States District

Court for the District of the Canal

Zone, the District Court of Guam,

and the District Court of the Virgin

Islands, except where a direct

review may be had in the Supreme

Court. The jurisdiction of the

United States Court of Appeals for

the Federal Circuit shall be limited

to the jurisdiction described in

sections 1292(c) and (d) and 1295 of

this Title [28 U.S.C. §§ 1292(c),

(d), 1295).

28 U.S.C. § 1654 provides as

follows:

In all courts of the United

States the parties may plead and

conduct their own cases personally

or by counsel as, by the rules of

such courts, respectively, are

permitted to manage and conduct

causes therein.

28 U.S.C. § 2106 provides as

follows:

The Supreme Court or any other

court of appellate jurisdiction may

affirm, modify, vacate, set aside or

reverse any judgment, decree, or

order of a court lawfully brought

before it for review, and may remand

the cause and direct the entry of

such appropriate judgment, decree,

or order, or require such further

proceedings to be had as may be just

under the circumstances.

-<xvi-

Pro se attorney-petitioner David L.

Smith (“Mr. Smith”) hereby files his

Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Tenth Circuit:

I. STATEMENT OF THE CASE

On June 29, 1998, the United States

Court of Appeals for the Tenth Circuit

issued its opinion denying Mr. Smith’s

appeals in two federal civil rights cases

without addressing the issues raised and

argued by him in his appellate briefs.?

The Tenth Circuit then enjoined Mr. Smith

from proceeding as an appellant, or as a

petitioner in an original proceeding,

without the representation of a licensed

attorney admitted to practice in the

Tenth Circuit, unless he first obtains

permission to proceed pro se. The Tenth

Circuit gave Mr. Smith ten days from the

date of its opinion to file written

objections, limited to fifteen pages, to

these proposed filing restrictions.

On July 14, 1998, the Tenth Circuit

issued its order summarily denying Mr.

Smith’s Petition for Rehearing,

Suggestion for Rehearing En Banc, and

Objections to Prospective Filing

"Mr. Smith’s appellate briefs are

reproduced in the appendix to this

petition for a writ of certiorari at

pages A-21 through A-73.

Restrictions and Injunction.?

II. ARGUMENT

In its (June 29, 1998) opinion, the

Tenth Circuit found and concluded that by

filing and pursuiug his appeals, Mr.

Smith was attempting to re-litigate

issues already determined by the Tenth

Circuit or foreclosed by previous

determinations of the Tenth Circuit, in

violation of orders issued by the Tenth

Circuit in previous cases. However, the

issues raised and argued by Mr. Smith in

these previous cases were different from

those raised and argued by him in the

cases under review. The parties were

also different. In at least four of

these previous cases, the standard or

burden of proof was different.’ In all

*Mr. Smith’s petition, suggestion

and objections are reproduced in the

appendix to this petition for a writ of

certiorari at pages A-74 through A-92.

*See In re David L. Smith, 10 F.3d

723 (10 Cir.), cert. denied, 513 U.s.

807, 115 S.Ct. 53, 130 L.Ed.2d 13 (1994);

in re David L. Smith, 76 F.3d 335 (10™

Cir.), cert. denied, U.S. » Bat?

S.Ct. 186, 136 L.Ed.2d 125 (1996); In the

Vv , Nos. 95-1091

and 95-1119 (10° Cir.), cert. denied,

o.8. , 117 S.Ct. 359, 136

of these previous cases, the Tenth

Circuit refused to address the issues

raised and argued by Mr. Smith--a blatant

and egregious violation of his First

Amendment right to access to the courts

to petition the government for a redress

of grievances and his Fifth Amendment

right to due process of law, including

his right to appeal a final decision by a

district court and to receive meaningful

review of that decision under 28 U.S.C. §

1291. See , 369

U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21

(1962); Vv :

499 U.S. 231, 111 S.ct. 1217, 113 L.Ed.2d

190 (1991) (“the obligation of

responsible appellate jurisdiction

implies the requisite authority to review

independently a lower court’s

determinations”); Honda Motor Co... Ltd.

v. Oberg, 512 U.S. 415, 114 S.ct. 2331,

129 L.Ed.2d 336 (1994); United States v.

Jose, 519 U.S. 54, 117 S.Ct. 463, 136

L.Ed.2d 364 (1996) (“finality, not

ripeness, is the doctrine governing

appeals from District Court to Circuit

Court”); Brewen v. United States, 375

F.2d 285 (5 Cir. 1967);

McLinn, 739 F.2d 1395 (9™ Cir. 1984)

L.Ed.2d 251 (1996); Smith v. United

States Court of Appeals for the Tenth

Circuit, et al., No. 98-1030 (10% cir.),

cert. pending in Supreme Court No. 98-

265.

(“every party is entitled to a full,

considered, and impartial review of the

decision of the trial court”); Craig v.

, 843 F.2d

Lake Asbestos of Quebec, Ltd.

145 (3°° Cir. 1988); United States v.

Dickstein, 971 F.2d 446 (10™ Cir. 1992);

’

85 F.3d 489 (10 Cir. 1996); Steiner

135 F.3d 684 (10 Cir. 1997). Nor did

the Tenth Circuit give any independent

reasons for its decisions. See id. The

Tenth Circuit merely affirmed the orders

issued by the United States District

Court for the District of Colorado, which

also refused to address the issues raised

and argued by Mr. Smith--another blatant

and egregious violation of his First and

Fifth Amendment rights. See id.; see

also NAACP v. Button, 371 U.S. 415, 83

S.Ct. 328, 9 L.Ed.2d 405 (1963) (“and

under the conditions of modern

government, litigation may well be the

sole practicable avenue open to a

minority to petition for redress of

grievances”); Wisconsin v. Constantineau.

400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d

515 (1971);

California Motor Transport

Co. v. Trucking Unitd., 404 U.S. 508, 92

S.Ct. 609, 30 L.Ed.2d 642 (1972); Board

of Regents v. Roth, 408 U.S. 564, 96

S.Ct. 2701, 33 L.Ed.2d 548 (1972); Logan

v. Zimmerman Brush Co., 455 U.S. 422, 102

S.Ct. 1148, 71 L.Ed.2d 265 (1982);

Cleveland Board of Education v.

Loudermill, 470 U.S. 494, 105 s.ct. 1487,

84 L.Ed.2d 494 (1985); Talamini v.

Allstate Insurance Co., 470 U.S. 1067

Court Disciplinary Commission, 470 U.S.

1074 (1985); Burkett v. Chandler, 505

F.2d 217 (10™ Cir.), cert. denied, 423

U.S. 876, 96 S.Ct. 149, 46 L.Ed.2da 110

(1975); Silver v. Cormier, 529 F.2d 161,

163 (10™ Cir. 1976) ("a public official’s

threats to a citizen to withhold monies

due and owing, should legal proceedings

be instituted, burdens or chills

constitutional rights of access to the

courts”), citing Harbolt v. Allredge, 464

F.2d 1243, 1244 (10 Cir.), cert. denied,

409 U.S. 1025, 93 S.Ct. 473, 34 L.Ed.2d

319 (1972) and Evans v. Moseley, 455 F.2d

1084, 1087 (10 Cir. 1972); Razatos v.

, 746 F.2d 1429

(10 Cir.), cert. denied, 471 U.s. 1016

(1985); Mattox v. Disciplinary Panel of

District of Colorado, 758 F.2d 1362 (10™

Cir. 1985); Braley v. Campbell, 832 F.2d

1504 (10™ Cir. 1987); White v. General

Motors Corp., Inc., 908 F.2d 675 (10™

Cir. 1990); Vv

Company, 141 F.3d 224 (5™ Cir. 1998).

Therefore, by filing and pursuing his

appeals, Mr. Smith was not attempting to

re-litigate issues already determined by

the Tenth Circuit or foreclosed by

previous determinations of the Tenth

Circuit, in violation of orders issued by

the Tenth Circuit in previous cases.‘

Instead, Mr. Smith was attempting to

litigate meritorious issues that the

Tenth Circuit and the District Court have

steadfastly refused to decide on their

merits.° By refusing to address these

issues in its (June 29, 1998) opinion,

the Tenth Circuit again deprived Mr.

“In other words, Mr. Smith was not

attempting to litigate issues barred by

the doctrines of res judicata and

collateral estoppel, which have no

application where the appellant did not

have a full and fair Opportunity to

litigate his federal claims. See Allen

vy. McCurry, 449 U.S. 90, 101 S.Ct. 4l1i,

66 L.Ed.2d 308 (1980).

*Since the issues Mr. Smith was

attempting to litigate were well grounded

in fact and were warranted by existing

law or a good faith argument for the

extension, modification or reversal of

existing law, or to establish new law,

the Tenth Circuit’s charge that these

issues were “frivolous” was false. See

Vv ’

S11 U.S. 659, 114 S.ct. 1826, 128 L.Ed.2d

655 (1994) (appeal not “frivolous” where

the only basis for the order imposing

Sanctions on petitioner’s attorney was

that his argument was foreclosed by

circuit precedent).

Smith of his First and Fifth Amendment

rights.

By enjoining Mr. Smith from

proceeding as an appellant, or as a

petitioner in an original proceeding,

without the representation of a licensed

attorney admitted to practice in the

Tenth Circuit, unless he first obtains

permission to proceed pro se, the Tenth

Circuit not only further violated his

First and Fifth Amendment rights. See

id. The Tenth Circuit also violated Mr.

Smith’s Sixth Amendment right to self-

representation, including his right to

proceed pro se under 28 U.S.C. § 1654.

See McKaskle v. Wiggins, 465 U.S. 168,

104 S.Ct. 944, 79 L.Ed.2d 122 (1984) ;

Vv Vv. Vv

Board, 121 F.3d 576 (11™ cir. 1997). wt

should also be recognized that the record

was devoid of any evidence upon which the

Tenth Circuit could base imposing its

injunction against Mr. Smith.

The Tenth Circuit gave Mr. Smith ten

days from the date of its Opinion to file

written objections, limited to fifteen

pages, to its proposed filing

restrictions. However, by charging Mr.

Smith with violating the Tenth Circuit’s

previous orders, the Tenth Circuit was

charging him with what amounted to

criminal contempt; and he was therefore

entitled to a full criminal process,

SS eee

including his Sixth Amendment right to a

trial by jury on these charges.* See

4 Vv. e 221

U.S. 418, 31 S.Ct. 492, 55 L.Ed.2da 797

(1911); In re Ruffalo, 390 U.S. 544, 88

S.Ct. 1222, 20 L.Ed.2d 117 (1968)

(attorney disciplinary proceedings are

quasi-criminal in nature) ; Bloom v.

Zllinois, 391 U.S. 194, 88 S.ct. 1477, 20

L.Ed.2d 522 (1968);

v. Bagwell, 512 U.S. 821, 114 S.ct. 2552,

129 L.Ed.2d 642 (1994). At the very

least, Mr. Smith was entitled to an

evidentiary hearing at which he would

have the opportunity to present expert

‘As a matter of the equal protection

of the laws, Mr. Smith should not have

fewer constitutional rights merely

because the Tenth Circuit brought charges

against him sua sponte rather than in an

order to show cause why he should not be

held in contempt for allegedly violating

the Tenth Circuit’s previous orders. See

Schware v. Board of Bar Examiners, 353

SEieste vV. board of Bar Examiners

U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796

(1957); Douglas v. California, 372 U.s.

353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963);

Harper v. Virginia State Board of

Elections, 383 U.S. 663, 86 S.Ct. 1079,

16 L.Ed.2d 169 (1966); Baird v. State Bar

of Arizona, 401 U.S. 1, 91 §.ct. 402,27

L.Ed.2d 639 (1971); Bodie v. Connecticut,

401 U.S. 371, 91 S.ct. 780, 28 L.Ed.2d

113 (1971).

testimony and cther relevant evidence on

his affirmative defenses and mitigating

circumstances to the charges being

brought against him. See Burkett v.

Chandler, 505 F.2d 217 (10 cir.), cert.

denied, 423 U.S. 876, 96 S.ct. 149, 46

L.Ed.2d 110 (1975); Razatos v. Colorado

Supreme Court, 746 F.2d 1429 (10° cir.),

cert. denied, 471 U.S. 1016 (1985);

District of Colorado, 758 F.2d 1362 (10%

Cir. 1985); Br Vv

1504 (10 Cir. 1987); White v. General

Motors Corp., Inc., 908 F.2d 675 (10°

Cir. 1990); Dailey v. Vought Aircraft

Company, 141 F.3d 224 (5* cir. 1998).

Under these circumstances, the Tenth

Circuit committed reversible error by

denying Mr. Smith’s request for an

evidentiary hearing.

Since the Tenth Circuit has

demonstrated that it is incapable of

rendering a fair and impartial decision

with respect to any matter involving Mr.

Smith, the Tenth circuit also committed

reversible error by denying his request

for the cases under review to be

transferred to the United States Court of

Appeals for the Federal Circuit for

decision.’ See 28 U.S.C. § 455(a);

"Mr. Smith is a member in good

standing of the bar of the Federal

Liteky v. United States, 510 U.S. 540,

114 S.Ct. 1147, 127 L.Ed.2d 474 (1994);

Arnett v. Kennedy, 416 U.S. 134, 197, 94

S.Ct. 1633, 40 L.Ed.2d 15 (1974) (White,

J., concurring in part and dissenting in

part) (“the right to an impartial

decision-maker is required by due

process” in every case); Morrissey v.

Brewer, 408 U.S. 471, 485-86, 92 S.Ct.

2593, 33 L.Ed.2d 484 (1972) (decision-

maker bias is grounds for reversal) ;

Mayberry v. Pennsylvania, 400 U.S. 455,

469, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971)

(Harlan, J., concurring) (“the appearance

of evenhanded justice ... is at the

core of due process”); Goldberg v. Kelly,

397 U.S. 254, 271, 90 S.Ct. 1011, 25

L.Ed.2d 287 (1970) (decision-maker bias

is grounds for reversal); Offut v. United

States, 348 U.S. 11, 75 S.Ct. 11, 99

L.Ed.2d 11 (1954) (nor may a judge or

other ostensibly impartial decision-maker

“give vent to personal spleen or respond

to a personal grievance” in reaching a

decision). Further, the Tenth Circuit

committed reversible error by denying Mr.

Smith’s request for an order dismissing

with prejudice the frivolous and

groundless charges it brought against him

for the improper purpose of depriving him

Circuit, and he believes that the judges

of the Federal Circuit could have and

would have rendered a fair and impartial

decision in the cases under review.

i cceeeemerreeeateemeenmiineiiiiaiiiaiiaiitiiiiiiiiaaiiaal

of his First and Fifth Amendment rights

to litigate meritorious issues the Tenth

Circuit and the District Court have

steadfastly refused to decide on their

merits. Finally, the Tenth Circuit

committed reversible error by issuing a

false and defamatory opinion that is

unsupported by the law or the facts.

Under the foregoing circumstances,

the United States Court of Appeals for

the Tenth Circuit has entered a decision

in conflict with the decision of another

United States court of appeals on the

same important matter; has so far

departed from the accepted and usual

course of judicial proceedings, or

sanctioned such a departure by a lower

court, as to call for an exercise of this

Couxt's supervisory power; and has

decided an important question of federal

law that has not been, but should be,

settled by this Court, or has decided an

important federal question in a way that

conflicts with relevant decisions of this

Court. Mr. Smith therefore requests this

~ Court to grant his Petition for a Writ of

Certiorari to the United States Court of

Appeals for the Tenth Circuit, and such

other and further relief as may be just

under the circumstances, including an

order under 28 U.S.C. § 2106 reversing

and vacating the Tenth Circuit’s (June

29, 1998) opinion.

Respectfully submitted,

pees

tw rs

DAVID L. SM\TH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY-PETITIONER

APPENDIX

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LINDA C. HOWARD,

Plaintiff,

Vv. No. 97-1297

MAIL-WELL ENVELOPE

COMPANY, BUTLER PAPER

COMPANY, GEORGIA-PACIFIC

CORPORATION, GREAT

NORTHERN NEKOOSA

CORPORATION EMPLOYEE

PROTECTION PLAN,

Defendants-Appellees,

DAVID L. SMITH,

Attorney-Appellant.

JAMES EDWARD QUALLS,

Plaintiff,

Vv.

REGIONAL TRANSPORTATION

DISTRICT; RICHARD BAUMAN

ROBERT GARSIDE; RICHARD

REYNOLDS; ELLSWORTH

WALKER; and JAMES MISEK,

Defendants-Appellees.

DAVID L. SMITH

Attorney-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLORADO

(D.C. Nos. 93-D-1895 & 91-Z-989)

Submitted on the briefs:

David L. Smith, Pro se

Attorney-Appellant.

Brian M. Mumaugh, Jeffrey T. Johnson, of

Holland & Hart, Denver, Colerado, for

Defendants-Appellees Mail-Well Envelope

Co., Butler Paper Co., and Georgia

Pacific Corp., and Randall A.

Constantine, of Elrod & Thompson,

A-2

Atlanta, Georgia, for Great Northern

Nekoosa Corporation Employee Protection

Plan.

Dana N. Mumey, Associate General Counsel,

and Erica A. Weber, Assistant General

Counsel, Regional Transportation

District, Denver, Colorado, for

Defendant-Appellee Regional

Transportation District.

Before BALDOCK, EBEL, and MURPHY.

PER CURIAM.

Attorney-appellant David L. Smith

appeals from adverse decisions in two

separate district court proceedings in

which he served for a time as plaintiff’s

counsel. Because these appeals concern

interrelated orders and similar issues,

the hearing panel has combined them for

disposition.* We also announce, -with the

full participation of the en banc court,

. After examining the briefs and

appellate record, this panel has

determined unanimously that oral argument

would not materially assist the

determination of these appeals. See Fed.

R. App. P. 34(a); 10th Cir. R. 34.1.9.

The cases are therefore ordered submitted

without oral argument.

general restrictions on Mr. Smith's

future appellate filings based on his

history of repetitive, meritless

litigation in this court.

These appeals may be put in

perspective with some factual and

procedural background common to both.

Much of the information particularly

relevant to these proceedings is recited

in prior related decisions of this court.

See generally Howard v. Mail-Well

Envelope Co., 90 F.3d 433 (10th Cir.

1996); is _v. Regional T sp. Dist.,

Nos. 95-1385, 95-1459, 95-1489, 1996 WL

412414 (10th Cir. July 23, 1996). A

broader discussion of Mr. Smith's

litigious history in this court is

included in the last section of this

opinion, relating to the proposed filing

restrictions.

Mr. Smith was suspended from

practice before this court in November of

1993. Thereafter, the district judge

entered orders in both of these cases

Staying proceedings pending a

determination of his practice status in

the United States District Court for the

District of Colorado. Mr. Smith

immediately appealed from the stay

orders, but this court dismissed his

A-4

interlocutory appeals for lack of

jurisdiction, awarded appellate sanctions

to appellees, and remanded for a

determination of an appropriate amount.

In the meantime, Mr. Smith was

suspended from practice in the district

court. Consequently, the district judge

lifted the extant stays, acknowledged

that Mr. Smith was no longer authorized

to appear as counsel, and directed the

plaintiffs to secure new legal

representation or notify the court of

their intention to prosecute their cases

pro se. Mr. Smith immediately appealed

again, challenging these actions as well

as various sanctions imposed against him.

These interlocutory appeals were also

dismissed for lack of jurisdiction.’

Ultimately, the parties settled

their differences by written stipulation,

A-5

: Eventually Mr. Smith did secure

appellate review of certain orders issued

District, D.C. No. 91-Z-989, by

repeatedly filing notices of appeal, some

of which were received, properly, after

entry of final judgment in the case. See

Qualls 1996 WL 412414, at **1.

and the district court entered judgments

of dismissal in both cases. mr. Smith,

who personally takes issue with these

stipulated dispositions, subsequently

filed the instant appeals. Further

details relating to the proceedings are

included in the discussion of each appeal

below.

In Vv -W Vv

Company, No. 97-1297, Mr. Smith directly

appeals from the district court's

judgment dismissing the case pursuant to

the parties’ stipulation following his

withdrawal as plaintiff’s counsel. Mr.

Smith raises a host of issues. Some of

these he lacks standing to assert, many

more are simply redundant, and all are,

ultimately, meritless,

First of all, asa general matter,

Mr. Smith argues that the district court

lacked jurisdiction to enter any of the

challenged orders after he had taken two

interlocutory appeals to this court in

the case. It is axiomatic that an

effective notice of appeal transfers

jurisdiction from the district court to

the court of appeals. See Stewart v.

Donges, 915 F.2d 572, 575 (10th Cir.

A-6

1990). However, there are pertinent

limitations on this transfer of

jurisdiction.

First, no transfer occurs if the

appeal is taken from a nonappealable

order.

of Land, 692 F.2d 688, 693 (10th Cir.

1982); Riggs v. Scrivner, Inc., 927 F.2d

1146, 1148 (10th Cir. 991); see also

Stewart, 915 F.2d at 575 (noting transfer

of jurisdiction by appeal "from true

final judgment or from a decision within

the collateral order exception").

Second, the transfer affects only those

aspects of the case involved in the

appeal. See Stewart, 915 F.2d at 575.

Thus, when an appeal is taken from a

limited interlocutory ruling, as opposed

to one that affects the litigation as a

whole, the district court may proceed

with the case. Compare Colorado v.

Idarado Mining Co., 916 F.2d 1486, 1490 &

n.2 (10th Cir. 990), with Stewart, 915

F.2d at 576. Conversely, even a general

appeal does not divest the district court

of jurisdiction over peripheral,

collateral matters such as attorneys’

fees. See, Stewart, 915 F.2d at 575 n.3

(following Garcia v. Burlington N. R.R.,

818 F.2d 713, 721 (10th Cir. 1987)).

It is evident from a review of the

interlocutory appeals cited by Mr. Smith

that these exceptions to the

jurisdictional rule he relies on are

Clearly operative here. As the district

court has already explained, the cited

appeals challenged matters that were of

limited scope relative to the litigation

as a whole and were, in any event, not

immediately appealable--indeed, this

court has already confirmed the latter

conclusion by its disposition of the

appeals. See Howard, 90 F.3d at 435-37

(dismissing appeal No. 95-1428 for lack

of an appealable order, and noting

previous jurisdictional dismissal of

Ww Vv -Wel velope Co., No.

94-1317 (10th Cir. Nov. 15, 1994)).

Thus, the district court properly

proceeded with the case.

Turning now to more specific

objections, Mr. Smith contends that by

disqualifying him, the district court

deprived the plaintiff of her First and

Seventh Amendment rights. However, Mr.

Smith has standing to raise only issues

which concern his own personal interests;

grievances he perceives and attributes to

a former client are not properly within

the scope of this appeal. Compare

Vv i Ovelace Motor

A-8

Freight, Inc., 9 F.3d 849, 854-55 (10th

Cir. 1995) (attorney cannot personally

appeal orders applicable only to party),

with Riggs, 927 F.2d at 1149 (attorney

may appeal orders issued directly against

him). Mr. Smith's next claim, that the

parties' stipulation and the judgment

entered thereon deprived him of the

benefit of attorneys' fees under 42

U.S.C. § 1988, suffers from a related

standing deficiency:

The Supreme Court has made it clear

that, in general, statutes bestow

fees upon parties, not upon

attorneys. Those fees can,

therefore, be waived by the party

himself. As the Court has said,

"just as we have recognized that it

is the party's entitlement to

receive the fees in the appropriate

case, so have we recognized that as

far as [42 U.S.C. § 1988] is

concerned, it is the party's right

to waive, settle, or negotiate that

eligibility." Thus, the attorney

remains at the mercy of the client,

who can either demand attorneys'

fees from the defendant, or not as

he chooses. If the client chooses

not to ask for the fees, the

attorney has no standing to request

them.

A-9

United States ex rel. Virani v. Jerry M.

Lewis Truck Parts & EquiR., Inc., 89 F.3d

574, 577 (9th Cir. 1996) (citations

omitted; alteration in original) ; see

Benitez v. Collazo-Collazo, 888 F.2d 930,

933 (lst Cir. 1989) ("The 'prevailing

party’ language [of § 1988] mzkes it

patently obvious that it is the

prevailing party, not the party's

counsel, who is entitled to be awarded

fees[,]" and, hence, "only the party, and

not the attorney, has standing to appeal

any such grant or denial."); gee also

Uselton, 9 F.3d at 854-55 (citing

"client's entitlement to attorneys' fees

from opposing party" as example of order

client, but not counsel, may appeal).

Under these same principles, Mr.

Smith may challenge the sanctions imposed

against him. See, e.g., Riggs, 927 F.2d

at 1149. However, his objections to the

legal basis for sanction is precluded by

this court's prior decision directing the

district court to take such punitive

action. See Howard, 90 F.3d at 435.

Thus, the only sanction issue before us

at this point is whether the district

court's calculation of the amount was

proper. See id. Mr. Smith's argument in

this regard that the district court's

reliance on the defendants’ application

A-10

and supporting documentation was somehow

improper--when he had filed no objection

to these materials--is meritless.

Mr. Smith also complains that he was

not given an adequate opportunity to be

heard with respect to his

disqualification as plaintiff's counsel.

Given his formal Suspension from practice

necessitating the disqualification, this

objection is frivolous. Similarly

meritless is his completely

unsubstantiated accusation of bias on the

part of the trial judge.

As noted at the outset, Mr. Smith

raises a host of overlapping,

repetitious, and conclusory objections.

Whether or not each has been express]v

included in the above discussion, we have

considered all of the issues raised in

this appeal and have concluded that mr.

Smith is not entitled to any relief.

Defendants have requested that they

be dismissed from further proceedings in

this case, asserting that thay "have no

interest in the outcome of this appeal by

Smith." Defendants' Br. at 2. As Mr.

Smith's appeal involves a sanction

payable to defendants, who have not

formally settled or released the

A-1l

Sey mee”

Sep yay ne a many Se om

TO Ser REE Ei

obligation, we deny their request, but

hereby direct that they need not respond

to any further filings herein absent an

order from this court.

In 4 ion

District, No. 97-1392, Mr. Smith appeals

from the district court's denial of a

Fed. R. Civ. P. 60(b) motion he filed on

his own behalf. As described above, the

district court entered judgment on

Stipulation of the Parties at a time

when, due to professional discipline, mr.

Smith no longer represented the

plaintiff. Notwithstanding this formal

dissociation from the case, Mr. Smith

later attempted, unsuccessfully, to

Challenge the judgment under Rule 60(b).

We review the district court's decision

solely for abuse of discretion, see

s Leld v. Windsor c ital Group, 74

F.3d 990, 994 (10th Cir.1996), and

affirm.

There is no need to delve into

detail here. Although appealing from the

denial of his Rule 60(b) motion, mr.

Smith devotes a substantial portion of

his brief to rehashing complaints about

his previous Sanctions, disqualification,

A-12

and discipline. (Indeed, the argument

actually directed at the Rule 60(b)

ruling is so perfunctory that he never

even discusses the substantive basis for

the motion.) Much of what we have

already said above, and decided in Qualls

v , Nos.

95-1385, 95-1459, 95-1489, 1996 WL 412414

(10th Cir. July 23, 1996), applies also

to these stale and conclusory objections.

Mr. Smith has clearly not demonstrated

any abuse of the district court's

discretion. Furthermore, we note that

his Rule 60(b) motion was patently out of

time. The cause of action was dismissed

with prejudice on October 10, 1995, but

Mr. Smith did not file his motion until

September 26, 1997. Nothing he has

argued on appeal would justify invocation

of those grounds in Rule 60(b) (4) - (6)

which permit filing beyond the one-year

deadline otherwise imposed by the Rule.

For the foregoing reasons, the judgments

of the United States District Court for

the District of Colorado are AFFIRMED.

A-13

}

Prospective Filing Restrictions

Before SEYMOUR, Chief Judge, PORFILIO,

ANDERSON, TACHA,BALDOCK, BRORBY, EBEL,

KELLY, HENRY, BRISCOE, LUCERO,

and MURPHY, Circuit Judges.

Mr. Smith has a long history with

this court marred by repetitive,

frivolous filings and general abuse of

the judicial process. This

well-documented course of misconduct

began during his tenure as a practicing

attorney, prompting the imposition of

numerous monetary sanctions, his

suspension from Tenth Circuit practice,

and ultimately his disbarment by this

court .?° e generally In re David L.

Smith, 76 F.3d 335 (10th Cir. 1996)

(ordering disbarment); In re David L.

Smith, 10 F.3d 723 (10th Cir. 1993)

(ordering suspension); DeHerrera v. City

& County of Denver ex rel. Bd. of Water

Commrs, Nos. 93-1070, 93-1139, 1993 WL

A-14

ees The United States Supreme Court

has also disbarred Mr. Smith, See In re

Disb Vv - Smith, 516 U.S.

984, 116 S. Ct. 510 (1995).

359691 (10th Cir. Sept. 3, 1993)

(imposing monetary sanction); Casillan v.

Regional Transp. Dist. Amalgamated

Transit Union, Local 1001, Nos. 92-1009,

92-1039, 1993 WL 8732 (10th Cir. Jan. 5,

1993) (same). While such disciplinary

steps have curtailed Mr. Smith's

professional misfeasance, they do not

address his similar abuse of the judicial

process as a litigant in his own right.

Since his suspension and disbarment,

Mr. Smith has pressed on as a litigant

with the same pattern of meritless,

repetitive litigation that led to his

professional censure. Jurisdictional

dismissals and summary affirmances in

this regard, often in successive appeals

from the same litigation which prompted

his professional discipline, have become

commonplace. See, e.g., Howard, 90 F.3d

433; Qualls, Nos. 95-1385, 95-1459,

95-14899 1996 WL 412414; DeHerrera v.

City & County of Denver ex rel. Bd. of |

Water Comm'rs, No. 95-1110, 1996 WL

316473 (10th Cir. June 12, 1996);

Casillan v. Regional Transp. Dist., No.

93-1158, 1993 WL 521053 (10th Cir. Dec.

14, 1993). Further, Mr. Smith's pro se

filings have involved the same

substantive redundancy as his

professional efforts. See, e.g., Dunkin

ARNE ENR NR GR RY

A-15

= » No. 96-1411,

1997 WL 447327 (10th Cir. July 28, 1997),

cert. denied, 118 S. Ct. 884 (1998);

— ’ No .

95-1087, 1996 WL 316467 (10th Cir. June

12, 1996); , Nos.

95-1119, 95-1091, 1996 WL 67191 (10th

Cir. Feb. 16, 1996). This court has on

previous occasions warned Mr. Smith that

his continued engagement in repetitious

pro se litigation could lead to =

additional personal sanctions. See,

-* No.

95-1206, 1996 WL 294211 (loth Cir. June

4, 1996); In re David L. Smith, 1996 wL

67191. Indeed, a panel of this court has

already ordered the clerk not to accept

any more successive filings by Mr. Smith

contesting his disbarment. See Smith v.

» No. 98-1030

(Orders filed April 9 and May 13, 1998).

Evidently, neither professional

discipline nor personal sanction has

impressed upon Mr. Smith the essential

underlying problem. Initially as

counsel, and now as pro se litigant, he

has engaged in a pattern of litigation

activity which is manifestly abusive" and

thereby "strained the resources of this

court." wW Vv

Winslow), 17 F.3d 314, 315 (10th Cir.

A-16

1994) (quotation omitted). Accordingly,

"based on [Mr. Smith's] appellate filings

history and abuse of the appellate

process, we have sua sponte decided to

impose restrictions on [his] future

filings in this court commensurate with

our inherent power to enter orders

necessary and appropriate in aid of our

jurisdiction under [28 U.S.C.] § 1651."

Werner v. Utah, 32 F.3d 1446, 1448 (16th

Cir. 1994) (quotations omitted); see also

Cauthon v. Rogers, 116 F.3d 1334, 1337

(10th Cir. 1997); Schlicher v. Thomas,

111 F.3d 777, 780-81 (10th Cir. 1997).

Mr. Smith is hereby enjoined from

proceeding as an appellant, or as a

petitioner in an original proceeding,

without the representation of a licensed

attorney admitted to practice in this

court, unless he first obtains permission

to proceed pro se. To do so, he must

take the following steps:

1. File a petition with the clerk

of this court requesting leave to file a

pro se proceeding;

2. Include in the petition the

following information:

¥.

PAPA ETE I ELT ON NN

a. A list, by case name,

number, and citation where applicable, of

all proceedings currently pending or

filed previously in this court, with a

statement indicating the nature of his

involvement in, and the current status or

disposition of, each proceeding;

b. A list, by case name,

number, and citation where applicable, of

all assessments of attorneys' fees,

costs, or other monetary sanction against

him arising out of any federal court

matter, with a brief explanation of the

circumstances surrounding each assessment

and a statement apprising this court

whether and when the assessment was paid;

c. A list, by case name,

number, and citation where applicable, of

all outstanding injunctions, contempt

orders, or other judicial direction-

limiting his access to any state or

federal court, including injunctions,

orders, or other directions requiring him

to be represented by an attorney or seek

leave to file matters pro se.

3. File with the clerk a notarized

affidavit, in proper legal form, which

recites the issues he seeks to present,

including a particularized description of

A-18

the order or ruling being challenged and

a short statement of the legal basis

asserted for the challenge. The

affidavit must also certify, to the best

of his knowledge, that the legal

arguments advanced are not frivolous or

made in bad faith; that they are

warranted by existing law or a good faith

argument for the extension, modification,

or reversal of existing law; that the

appeal or other proceeding is not

interposed for any improper purpose; and

that he will comply with all federal

appellate rules and local rules of this

court.

These documents shall be submitted

to the clerk of the court, who shall

forward them to the chief judge for

review to determine whether to permit the

pro se appeal or other proceeding.

Without the chief judge's approval, the

matter will not proceed. If the chief

judge approves the submission, an order

will be entered indicating that the

matter shall proceed in accordance with

the Federal Rules of Appellate Procedure

and the Tenth Circuit Rules. Only at

that juncture will the appeal or other

proceeding formally be filed in this

court.

A-19

Mr. Smith shall have ten days from

the date of this opinion to file written

objections, limited to fifteen pages, to

these proposed restrictions. Unless this

court orders otherwise upon review of any

objections, the restrictions shall take

effect thirty days from the date of this

opinion and shall apply to any matter

filed by Mr. Smith with this court after

that time.

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LINDA C. HOWARD,

Plaintiff,

Vv. No. 97-1297

MAIL-WELL ENVELOPE COMPANY,

BUTLER PAPER COMPANY,

GEORGIA-PACIFIC CORPORATION,

GREAT NORTHERN NEKOOSA

CORPORATION EMPLOYEE

PROTECTION PLAN,

Defendants-Appellees,

DAVID L. SMITH,

Attorney - Appellant.

ORDER

Filed July 14, 1998

A-21

Before BALDOCK, EBEL, and MURPHY, Circuit

Judges.

David L. Smith's petition for

rehearing is denied.

The suggestion for rehearing en banc

was transmitted to all of the judges of

the court who are in regular active

service as required by Fed. R. App. P.

35. As no member of the Panel and no

judge in regular active service on the

court requested that the court be polled,

the suggestion is also denied.

The filing restrictions announced by

the en banc court in our prior opinion

shall take effect immediately upon entry

of this order.

Entered for the Court

PATRICK FISHER, Clerk of Court

By: [Fred Garcia]

Deputy Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LINDA C. HOWARD,

Plaintiff,

No. 97-1297

Vv. (D.C. No. 93-D-1895

(Dist. of Colo.)

MAIL-WELL ENVELOPE

COMPANY, BUTLER PAPER

COMPANY, GEORGIA-

PACIFIC CORPORATION,

GREAT NORTHERN NEKOOSA

CORPORATION EMPLOYEE

PROTECTION PLAN,

Defendants-Appellees.

DAVID L. SMITH,

Attorney-Appellant.

OPENING BRIEF FOR PRO SE ATTORNEY-

APPELLANT DAVID L. SMITH

Attorney-appellant David L. Smith

(“Mr. Smith”) hereby files his opening

orief:

I. STATEMENT OF SUBJECT MATTER AND

- APPELLATE JURISDICTION

Subject matter jurisdiction of the

United States District Court for the

District of Colorado is based on 28

U.S.C. §§ 1331 and 1343, 29 U.S.C. §§

621-634 and 1001 et seg., and 42 U.S.c.

§§ 1981, 198la and 2000e et seg.

Appellate jurisdiction of the United

States Court of Appeals for the Tenth

Circuit is based on 28 U.S.C. § 1291.

II. ISSUES PRESENTED FOR REVIEW

Whether by issuing their orders of

June 17, 1994, May 15, 1995, July 21,

1995, September 7, 1995, October 6, 1995,

January 22, 1996, August 4, 1997 and

August 11, 1997, Judges Weinshienk and

Daniel disqualified Mr. Smith from

further representation of the plaintiff

for allegedly violating the Colorado

Rules of Professional Conduct.

Whether since these orders rested on

grounds that could (and did) harm Mr.

Smith’s professional reputation,

settlement of the underlying case did not

preclude appellate review of these

orders, which exceeded the scope of the

District Court disciplinary panel’s

disciplinary order of February 10, 1995.

Whether by issuing their orders

disqualifying Mr. Smith from representing

his client in accordance with the terms

of their contingent fee agreement, Judges

Weinshienk and Daniel deprived him of his

liberty and property interests in his

good name, reputation, honor and

integrity, and in his right to practice

law and make a living.

Whether since these orders were

issued without affording Mr. Smith proper

notice, or an opportunity to file a brief

or otherwise be heard before entry of a

final judgment, Judges Weinshienk and

Daniel deprived him of his Fifth

Amendment right to due process of law.

A-25

PGE EMAL AES OTE LE LAA ODE LS I ROG HT AM BE AMPA TAG KAT sD

MIATA

Whether this disqualification of

counsel also deprived the plaintiff, who

was financially unable to hire substitute

counsel, and was incompetent to proceed

pro se, of her First Amendment right to

pursue federal civil rights litigation.

Whether as the direct and proximate

result of this constitutional

deprivation, the plaintiff was forced to

forego her Seventh Amendment right to a

jury trial and settle her case at beneath

nuisance value.

Whether an attorney has standing to

appeal the denial of attorney fees.

Whether by issuing his orders of

August 4, 1997 and August 11, 1997,

dismissing plaintiff’s federal civil

rights case with prejudice, each party to

bear her or its own costs and attorney

fees, Judge Daniel denied the attorney

fees he was required to award pursuant to

42 U.S.C. § 1988.

Whether since these orders deprived

Mr. Smith of his property interests

created by his contingent fee agreement

with the plaintiff, he has standing to

seek appellate review of these orders.

A-26

Whether Judge Weinshienk’s

perfunctory statement that “[nlo

objections were filed to defendants’

application” and “[t]he Court has

reviewed defendants’ application and

supporting documentation and finds the

request reasonable,” is clearly

insufficient as a meaningful judicial

decision under Article III of the

Constitution of the United States.

Whether this statement is also

insufficient to give proper notice as to

whether the standards for imposing

sanctions set forth in Braley v.

Campbell, 832 F.2d 1504 (10 Cir. 1987)

have been followed for purposes of review

on appeal.

WhetlF.er Mr. Smith’s conduct in

filing an immediate appeal of Judge

Weinshienk’s order of June 17, 1994

manifested an intentional or a reckless

disregard of his duties to the Court.

Whether Mr. Smith’s appeal presented

colorable claims based on the facts and

law at issue, as required by White v.

General Motors Corp., Inc., 908 F.2d 675

(10 Cir. 1990).

Whether Judge Weinshienk imposed

harsh and unjustified sanctions of

$8,640.00 against Mr. Smith for the

improper purpose of driving him out of

federal civil rights practice and

chilling (or freezing) federal civil

rights litigation in general.

Whether by refusing to rule on

plaintiff’s and Mr. Smith’s request for

proper notice, an opportunity to file a

brief and a hearing after the Tenth

Circuit had disposed of their appeal in

this case (including their petition for

rehearing and suggestion for rehearing en

banc), and had issued its mandate

pursuant to Fed. R. App. P. 41(a), Judge

Weinshienk deprived them of their Fifth

Amendment right to due process of law.

Whether Judge Weinshienk grossly

abused her discretion or otherwise acted

improperly or in a manner detrimental to

the fair and impartial administration of

justice.

Whether the filing of a timely and

sufficient notice of appeal immediately

transfers jurisdiction of all matters

relating to the appeal from the jiistrict

court to the court of appeals, ard

divests the district court of authority

to proceed further with respect to such

matters, except in aid of jurisdiction.

Whether when Judges Weinshienk and

Daniel issued their orders of May 15,

1995, July 21, 1995, September 7, 1995,

October 6, 1995, and January 22, 1996,

this case was still on appeal to the

Tenth Circuit, which had exclusive

jurisdiction over the case.

Whether Judges Weinshienk and Daniel

were proceeding without or in excess of

their jurisdiction.

Whether under all the circumstances,

it was reasonably questionable whether

Judges Weinshienk and Daniel could be

fair and impartial decisionmakers in this

case, or in any case involving Mr. Smith.

Whether Judges Weinshienk and Daniel

were obligated by 28 U.S.C. § 455(a) and

Canon 3 of the ABA Code of Judicial

Conduct to disqualify themselves from

this case.

A-29

8 Dearne Soni pata te ee

Whether by failing or refusing to

disqualify themselves from this case,

Judges Weinshienk and Daniel deprived Mr.

Smith of his Fifth Amendment due process

right to a fair and impartial

decisionmaker.

Whether Judges Weinshienk and Daniel

also engaged in a pattern of judicial

misconduct, in violation of 28 U.S.C. §

372(c).

Iii. STATEMENT OF THE CASE

On June 17, 1994, United States

District Judge Zita L. Weinshienk issued

her order Staying plaintiff’s federal

civil rights case “until final action is

taken on the Committee on Conduct’s

recommendation concerning plaintiff's

counsel’s status,” and vacating the jury

trial scheduled to commence on August 1,

1994. (R. Vol. I., Doc. 38, all pages

and lines.) Judge Weinshienk’s reference

to “the Committee on Conduct’s

recommendation concerning plaintiff's

counsel’s status” was a reference to the

recommendation made by the Committee on

Conduct of the United States District

Court for the District of Colorado to the

three-judge (including Judge Weinshienk)

disciplinary panel of that Court that mr.

A-30

Smith be indefinitely suspended from the

practice of law in that Court based on

the order issued on November 29, 1993 by

the three-judge disciplinary panel of the

United States Court of Appeals for the

Tenth Circuit. In its order of November

29, 1993, the Tenth Circuit disciplinary

panel indefinitely suspended Mr. Smith

from the practice of law in the Tenth

Circuit for filing alleged “frivolous”

appeals from the District Court to the

Tenth Circuit in four federal civil

rights cases,** and for failing to comply

with court orders to pay more than

$50,000.00 in harsh and unjustified

sanctions previously imposed against him

by the District Court (including Judge

Weinshienk) and the Tenth Circuit,” all

llmr. Smith denies that the appeals

he filed from the District Court to the

Tenth Circuit were “frivolous,” and

requests a hearing at which he would have

the opportunity to present expert

testimony and other relevant evidence on

this issue. No such hearing was held by

the Tenth Circuit disciplinary panel

before indefinitely suspending Mr. Smith

from the practice of Iaw in the Tenth

Circuit, in violation of Fed. R. App. P.

46 and his Fifth Amendment right to due

process of law.

l2mr. Smith was (and is) financially

unable to pay the more than $50,000.00 in

Pencil EK ey SAM GP TV

eae i a as Nc iD Lea a al Rall het alta ala

RRS 9PM ELAN NI I TAT NE scisad

in alleged violation of the Colorado

Rules of Professional Conduct.*? See In

re David L. Smith, 10 F.3d 723 (10°

Cir.), cert. denied, 513 U.S. 807, 115

S.Ct. 53, 130 L.Ed.2d 13 (1994). mr.

Smith may apply for reinstatement to the

Tenth Circuit bar when he can demonstrate

that each sanction order of the District

Court and the Tenth Circuit has been

“satisfied.”** See id.

harsh and unjustified sanctions

previously imposed against him by the

District Court (including Judge

Weinshienk) and the Tenth Circuit. Mr.

Smith is therefore being excluded from

the practice of law in the Tenth Circuit

on an impermissible basis, i.e., on the

basis of his inability to Pay more than

$50,000.00 in harsh and unjustified

sanctions.

“Mr. Smith denies that he violated

‘the Colorado Rules of Professional

Conduct.

““Mr. Smith has previously submitted

information to the Tenth Circuit

disciplinary panel showing that he was

financially unable to “satisfy” each

Sanction order of the District Court and

the Tenth Circuit.

aaa

On May 15, 1995, Judge Weinshienk

issued her minute order announcing that

“plaintiff shall have until June 15,

1995, to secure new counsel in this case

or notify the Court that she will

represent herself in this matter”; that

“Defendant’s Motion to Lift Stay and Set

Status Conference is granted, and the

stay in this case shall be lifted on June

15, 1995”; and that “a status conference

in this case will be set shortly after

new counsel enters on behalf of

plaintiff.” (R. Vol. I., Doc. 45, all

pages and lines.) This order was issued

“in light of the fact that David L. Smith

is no longer authorized to practice law

in the United States District Court for

the District of Colorado.” (Id.) Judge

Weinshienk’s reference to “the fact that

David L. Smith is no longer authorized to

practice law in the United States

District Court for the District of

Colorado” was a reference to the fact

that on February 10, 1995, the District

Court disciplinary panel (including Judge

Weinshienk) issued its iisciplinary order

indefinitely suspending Mr. Smith from

the practice of law in the District Court

based on the order issued on November 29,

1993 by the Tenth Circuit disciplinary

A-33

panel. Mr. Smith may apply for

reinstatement to the District Court bar

when he can demonstrate that each

sanction order of the District Court and

the Tenth Circuit has been “satisfied.”

On July 21, 1995, Judge Weinshienk

issued her amended minute oréer

acknowledging the fact that her minute

order of May 15, 1995 had not been mailed

to plaintiff, and announcing that

“plaintiff shall have until August 15,

1995, to secure new counsel in this case

or notify the Court that she will

represent herself in this matter”; that

“the stay in this case shall be lifted on

August 15, 1995”; and that “a status

A-34

“Mr. Smith has previously submitted

information to the District Court

disciplinary panel (including Judge

Weinshienk) showing that he was

financially unable to “satisfy” each

Sanction order of the District Court and

the Tenth Circuit. Mr. Smith is

therefore being excluded from the

practice of law in the District Court on

an impermissible basis, i.e., on the

basis of his financial inability to pay

more than $50,000.00 in harsh and

unjustified sanctions.

conference in this case will be set

shortly after new counsel enters on

behalf of plaintiff.” (R. Vol. I., Doc.

48, all pages and lines.) This amended

minute order was not mailed to Mr. Smith,

who learned of its contents from the

plaintiff.

On September 7, 1995, Judge

Weinshienk issued her order granting

defendants’ application for attorney fees

and imposing attorney fee sanctions of

$8,640.00 against Mr. Smith exclusively

for filing and pursuing an immediate

appeal of her order of June 17, 1994

Staying plaintiff’s federal civil rights

case “until final action is taken on the

Committee on Conduct’s recommendation

concerning plaintiff’s counsel’s status,”

and vacating the jury trial scheduled to

commence on August 1, 1994. (R. Vol. I.,

Doc. 51, all pages and lines.) Judge

Weinshienk treated plaintiff’s and Mr.

Smith’s motion to clarify status of legal

representation, and notice of plaintiff’s

inability to comply with the (July 21,

1995) amended minute order as a pro se

motion for extension of time to secure

new counsel, and granted the motion to

September 22, 1995. (Id.) Judge

Weinshienk announced that “([p]laintiff

will be presumed to be handling this case

A-35

NE Ba et MORE OS Mie IIR

eS PN RR RTI LN

7. wae St, SSE te hoe

pro se until new counsel enters an

appearance,” and that “this Court will no

longer accept any papers which have been

signed by Mr. Smith.” (Id.) Judge

Weinshienk refused to rule on plaintiff’s

and Mr. Smith’s request for proper

notice, an Opportunity to file a brief

and a hearing after the Tenth Circuit had

disposed of their appeal in this case

(including their petition for rehearing

and suggestion for rehearing en banc),

and had issued its mandate pursuant to

Fed. R. App. P. 41(a). (Id.)

On October 6, 1995, United States

District Judge Wiley Y. Daniel issued his

order announcing that “[b]ased on the

Court’s review of the entire file,

including the Court’s May 15, 1995 Order

indicating that David L. Smith is no

longer authorized to practice law before

this Court, Plaintiff’s Motion to Permit

Mr. Smith to Continue to Represent Ms.

Howard on a Hardship Basis is DENIED.”

(R. Vol. I., Doc. 56, all pages and

dines.) In addition to denying

Plaintiff’s Motion to Permit Mr. Smith to

Continue to Represent Ms. Howard on a

Hardship Basis, Judge Daniel filed a

complaint against Mr. Smith with the

District Court Committee on Conduct

alleging that due to the fact that

A-36

footnote 2 of plaintiff’s motion states

that “this motion was prepared by Ms.

Howard with the assistance of Mr. Smith,”

Mr. Smith “apparently” represented Ms.

Howard “notwithstanding the fact that he

is unauthorized to practice law before

this Court.”*® On this basis, Judge

Daniel alleged that “David L. Smith may

have acted in an unprofessional,

unethical, or otherwise improper

manner.”*’ In an order issued on May 2,

1995, the District Court disciplinary

panel (including Judge Weinshienk)

“strongly admonished” Mr. Smith that “he

shall not practice law in this District

whether in a case filed in the Court or

removed from state to federal court,” and

warned him “that if he continues to

practice law in this District, he may be

cited for contempt of Court in an

appropriate proceeding.” This order was

issued on the basis of Judge Daniel’s

unsubstantiated complaint against Mr.

A-37

mr. Smith denies that he

represented Ms. Howard “notwithstanding

the fact that he is unauthorized to

practice law before this court.”

‘Mr. Smith denies that he “acted in

an unprofessional, unethical, or

otherwise improper manner.”

SAORI ee ARSE Ap ell ani bbe

BA GRAIN Faas

Smith, without holding a hearing at which

he would have the opportunity to present

evidence in defense and mitigation, in

violation of his Fifth Amendment right to

due process of law.

On January 22, 1996, Judge Daniel

issued hie order denying plaintiff’s

motion to stay the proceedings in the

District Court pending her appeal of

Judge Weinshienk’s order of September 7,

1995. (R. Vol. I., Doc. 62, all pages

and lines.) This order was issued

despite the fact that the Tenth Circuit

had exclusive jurisdiction over the case.

On August 4, 1997 and August 11,

1997, Judge Daniel issued his orders

dismissing plaintiff’s federal civil

rights case with prejudice, each party to

bear her or its own costs and attorney

fees. (R. Vol. I., Docs. 121 and a3,

all pages and lines.) These orders were

issued without awarding the attorney fees

required by 42 U.S.C. § 1988.

IV. ARGUMENT

In Johnson v. Board of County

Commissioners, 85 F.3d 489 (10° cir.

1996), the Tenth Circuit said:

A-38

We will dismiss an appeal as

moot if it is impossible for this

court to grant the appellant any

effectual relief whatsoever. In re

a W W , UT

F.3d 1277, 1279 (10™ Cir..1996).

We held in G.J.B. & Assocs.,

Inc. v. Singleton, 913 F.2d 824, 827

(10 Cir. 1990), that a sanctions

order against an attorney currently

of record is not immediately

appealable as a final judgment where

the underlying controversy is

unresolved. Further, such an order

is not appealable under the

collateral order exception to the

final judgment rule because it could

be appealed by the attorney at the

conclusion of the underlying case,

even if the parties settle or elect

not to appeal. Id. at 827-29.

In United States v. Dickstein,

971 F.2d 446 (10° Cir. 1992), we

addressed whether an attorney who no

longer was involved in the

underlying action because his pro

hac vice status had been revoked

could take an immediate appeal from

the revocation order, even though

the underlying case had not been

A-39

concluded. We held the attorney

could not because the order was not

a final judgment. Id. at 448.

Further, because the attorney was

seeking an appeal only to vindicate

his reputation, rather than to be

allowed to continue representing his

client, we saw no reason why the

order could not effectively be

reviewed on appeal from the final

judgment. Id. at 451. Even the

former client’s acquittal would not

render the revocation order

unreviewable at the conclusion of

the case. Id. Thus, the order was

not appealable under the collateral

order exception to the final

judgment rule. Id.

These cases establish that

settlement of an underlying case

does not preclude appellate review

of an order disqualifying an

attorney from further representation

insofar as that order rests on

grounds that could harm his or her

professional reputation.?® we

therefore conclude the appeal is not

**An attorney would lack standing to

challenge the order insofar as it

affected only his or her client’s rights.

on v. C rcial Lovelace Motor

Freight, Inc., 9 F.3d 849, 854 (10° cir.

1993).

moot insofar as the district court’s

order found that Attorney Greer had

violated the Colorado Rules of

Professional Conduct. See Kirkland

v. National Mortgage Network, Inc.,

884 F.2d 1367, 1370 (11™ Cir. 1989)

(holding challenge to order

disqualifying attorney was not moot,

despite dismissal of underlying

case, where order’s ‘brand of

disqualification’ on grounds of

dishonesty and bad faith could hang

over attorney’s name and career for

years). That the underlying cases

were dismissed pursuant to a

stipulation for dismissal with

prejudice has no effect on the

attorneys’ right to appeal because

they were not parties to the

stipulation. Cf. Mock v. T.G. & Y.

Stores Co., 971 F.2d 522, 526 (10°

Cir. 1992).

See id. at 492-93. By issuing their

orders of June 17, 1994, May 15, 1995,

July 21, 1995, September 7, 1995, October

6, 1995, January 22, 1996, August 4, 1997

and August 11, 1997, Judges Weinshienk

and Daniel disqualified Mr. Smith from

further representation of the plaintiff

for allegedly violating the Colorado

A-41

Binney shy SN RISA RIPPON SELLER ARS rer NOP REE PRU Deer a EMER Meer Ee

Rules of Professional Conduct. Since

these orders rested on grounds that could

(and did) harm Mr. Smith’s professional

reputation,*® settlement of the underlying

case did not preclude appellate review of

these orders, which exceeded the scope of

the District Court disciplinary panel’s

disciplinary order of February 10, 1995.

By issuing their orders

disqualifying Mr. Smith from representing

his client in accordance with the terms

of their contingent fee agreement, Judges

Weinshienk and Daniel deprived him of his

liberty and property interests in his

good name, reputation, honor and

integrity, and in his right to practice

law and make a living. See Board of

Regents v. Roth, 408 U.S. 564, 96 S.Ct.

2701, 33 L.Ed.2d 548 (1972); Perry v.

Sindermann, 408 U.S. 593, 92 S.Ct. 2694,

A-42

9See Howard v. Mail-Well Envelope

Company, et al., 90 F.3d 433 (10™ Cir.),

cert. denied, fy # giant O.Ct.

484, 136 L.Ed.2d 378 (1996); see also

Howard v. Mail-Well Envelope Company, et

al., 164 F.R.D. 524 (D. Colo. 1996). As

the direct and proximate result of these

officially reported opinions, Mr. Smith

has suffered irreparable harm to his

personal and professional reputations.

33 L.Ed.2d 570 (1972); Arnett v. Kennedy,

416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d

15 (1974); Paul _v. Davis, 424 U.S. 693,

96 S.Ct. 1155, 47 L.Ed.2d 405 (1976);

Bishop v. Wood, 426 U.S. 341, 96 S.Ct.

2074, 48 L.Ed.2d 684 (1976); Cleveland

Board of Education v. Loudermill, 470

U.S. 494, 105 S.Ct. 1487, 84 L.Ed.2d 494

(1985). Since these orders were issued

without affording Mr. Smith proper

notice, or an opportunity to file a brief

or otherwise be heard before entry of a

final judgment, Judges Weinshienk and

Daniel deprived him of his Fifth

Amendment right to due process of law.

See id.; see also In re Ruffalo, 390

U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117

(1968); Wolff v. McDonnell, 418 U.S. 539,

94 S.Ct. 2963, 41 L.Ed.2d 935 (1974);

Mathews v. Eldridge, 424 U.S. 319, 96

S.Ct. 893, 47 L.Ed.2d 18 (1976); Logan v.

Zimmerman Brush Co., 455 U.S. 422, 102

S.Ct. 1148, 71 L.Ed.2d 265 (1982); Honda

Motor Co., Ltd. v. Oberg, 512 U.S. 415,

114 S.Ct. 2331, 129 L.Ed.2d 336 (1994);

Burkett v. Chandler, 505 F.2d 217 (10™

Cir. 1974), cert. denied, 423 U.S. 876,

96 S.Ct. 149, 46 L.Ed.2d 110 (1975);

Razotos v. Colorado Supreme Court, 746

F.2d 1429 (10 Cir. 1984), cert. denied,

471 U.S. 1016 (1985); Mattox v.

Disciplinary Panel of the United States

A-43

IN HE ee erp Kove

aah be oath 3

DS suee Garp Mp yr te

ese

bee Sy Sg

OC Oe ER

ets

;

>»

Colorado, 758 F.2d 1362 (10 cir. 1985);

, 832 F.2d 1504 (10%

Cir. 1987);

White v. General Motors

Corp., Inc., 908 F.2d 675 (10™ cir.

1990).

This disqualification of counsel

also deprived the plaintiff, who was

financially unable to hire substitute

counsel, and was incompetent to proceed

pro s@, of her Fir Amendment right to

pursue federal civil rights litigation.

See NAACP v. Button, 371 U.S. 415, 83

S.Ct. 328, 9 L.Ed.2d 405 (1963) (“[a]nd

under the conditions of modern

government, litigation may well be the

sole practicable avenue open to a

minority to petition for redress of

grievances”); Brotherhood of Railroad

Trainmen v. Virginia, 377 U.S. 1, 84

S.Ct. 1113, 12 L.Ed.2da 89 (1964); United

Mine Workers v. Illinois, 389 U.S. 217,

88 S.Ct. 353, 19 L.Ed.2d 426 (1967);

e r ion Un v. State Bar

of Michigan, 401 U.S. 576, 91 S.Ct. 1076,

28 L.Ed.2d 339 (1971); California Motor

Tr or e - ckin nitd., 404

U.S. 508, 92 S.ct. 609, 30 L.Ed.2d 642

(1972); Bi hn ‘8 Restaurants v.

NLRB, 461 U.S. 731, 103 S.Ct. 2161, 76

L.Ed.2d 277 (1983); Sure-Tan, Inc. v.

A-44

NLRB, 467 U.S. 883, 104 s.Ct. 2803, 81

-L.Ed.2d 732 (1984); Talamini v. Allstate

Insurance Co., 470 U.S. 1067 (1985);

Crumpacker v. Indiana Supreme Court

Disciplinary Commission, 470 U.S. 1074

(1985); Silver v. Cormier, 529 F.2d 161,

163 (10 Cir. 1976) (“{a] public

official’s threats to a citizen to

withhold monies due and owing, should

legal proceedings be instituted, burdens

or chills constitutional rights of access

to the courts”), citing Harbolt v.

Allredge, 464 F.2d 1243, 1244 (10™ Cir.),

cert. denied, 409 U.S. 1025, 93 S.Ct.

473, 34 L.Ed.2d 319 (1972) and Evans v.

Moseley, 455 F.2d 1084, 1087 (10™ cir.

1972); Henriksen v. Bentley, 644 F.2d

852, 855 (10 Cir. 1981); Shaw v. Neece,

727 F.2d 947, 948 (10 Cir. 1984); McKay

v. Hammock, 730 F.2d 1367, 1375 (10™ Cir.

1984); Nordgren v. Milliken, 762 F.2d 851

(10™ Cir. 1985); Ward v. Fort, 762 F.2d

856, 858 (10° Cir. 1985). As the direct

and proximate result of this

constitutional deprivation, the plaintiff

was forced to forego her Seventh

Amendment right to a jury trial and

settle her case at beneath nuisance

value.

i sh » beatae ac aiaalD ch ne at ae a ne Laat Na CT ice aaa ih aaa ee

MEEPS eras * FUSER IY ;

Midian eruta lieth attedies aR ie EPA

inal in, aed aie ibe tke

yl ciate ah AGO eel

An attorney has standing to appeal

the denial of attorney fees. See

, 596

F.2d 422 (10 Cir. 1979); Lipscomb v.

Wise, 643 F.2d 319, 320-21 (5° cir.

1981); Vv

Corp., 969 F.2d 573, 576 (7™ cir. 1992);

U.S. Tippett, 975 F.2d 713, 718 (10% cir.

1992) (a nonparty witness has standing to

appeal denial of an application for

statutory witness fees, just as an

attorney has standing to appeal the

denial of attorney fees). By issuing his

orders of August 4, 1997 and August 11,

1997, dismissing plaintiff’s federal

civil rights case with prejudice, each

party to bear her or its own costs and

attorney fees, Judge Daniel denied the

attorney fees he was required to award

pursuant to 42 U.S.C. § 1988. Therefore,

since these orders deprived Mr. Smith of

his property interests created by his

contingent fee agreement with the

plaintiff, he has standing to seek

appellate review of these orders.

In her order of September 7, 2995,

Judge Weinshienk granted defendants’

application for attorney fees and imposed

attorney fee sanctions of $8,640.00

against Mr. Smith exclusively for filing

and pursuing an immediate appeal of her

A-46

order of June 17, 1995 staying

plaintiff’s federal civil rights case

“until final action is taken on the

Committee on Conduct’s recommendation

concerning plaintiff’s counsel’s status,”

and vacating the jury trial scheduled to

commence on August 1, 1994. As the

purported basis for her order, Judge

Weinshienk stated that “[n]o objections

were filed to defendants’ application”

and “(t]he Court has reviewed defendants’

application and supporting documentation

and finds the request reasonable,” citing

Ramos v. Lamm, 713 F.2d 546, 552 (10™

Cir. 1983). However, this perfunctory

statement is clearly insufficient as a

meaningful judicial decision under

Article III of the Constitution of the

United States. This statement is also

insufficient to give proper notice as to

whether the standards for imposing

sanctions set forth in Braley v.

Campbell, 832 F.2d 1504 (10™ Cir. 1987)

have been followed for purposes of review

on appeal. As is clear from the record,

Mr. Smith’s conduct in filing an

immediate appeal of Judge weinshienk’s

order of June 17, 1994 manifested neither

an intentional nor a reckless disregard

of his duties to the Court. Sse id. Mr.

Smith’s appeal presented colorable claims

based on the facts and law at issue, as

A-47

required by White v. General Motors

Corp., Inc., 908 F.2d 675 (10° cir.

1990). Judge Weinshienk impesed harsh

and unjustified sanctions of $8,640.00

against Mr. Smith for the improper

purpose of driving him out of federal

civil rights practice and chilling (or

freezing) federal civil rights litigation

in general. See id. By refusing to rule

on plaintiff’s and Mr. Smith’s request

for proper notice, an opportunity to file

a brief and a hearing after the Tenth

Circuit had disposed of their appeal in

this case (including their petition for

rehearing and suggestion for rehearing en

banc), and had issued its mandate

pursuant to Fed. R. App. P. 41(a), Judge

Weinshienk deprived them of their Fifth

Amendment right to due process of law.

Under these circumstances, Judge

Weinshienk grossly abused her discretion

or otherwise acted improperly or in a

manner detrimental to the fair and

ampartial administration of justice.

The filing of a timely and

sufficient notice of appeal immediately

transfers jurisdiction of all matters

relating to the appeal from the district

court to the court of appeals, and

divests the district court of authority

to proceed further with respect to such

A-48

matters, except in aid of jurisdiction.

See Petuskey v. Rampton, 431 F.2d 378

(10™ Cir. 1970), cert. denied, 401 U.S.

913, 91 S.Ct. 882, 27 L.Ed.2d 812 (1971).

When Judges Weinshienk and Daniel issued

their orders of May 15, 1995, July 21,

1995, September 7, 1995, October 6, 1995,

and January 22, 1996, this case was still

on appeal to the Tenth Circuit, which had

exclusive jurisdiction over the case.

Judges Weinshienk and Daniel were

therefore proceeding without or in excess

of their jurisdiction.

Under all the circumstances, it was

reasonably questionable whether Judges

Weinshienk and Daniel could be fair and

impartial decisionmakers in this case, or

in any case involving Mr. Smith. Judges

Weinshienk and Daniel were therefore

obligated by 28 U.S.c. § 455(a) and Canon

3 of the ABA Code of Judicial Conduct to

disqualify themselves from this case.

See Liteky v. United States, 510 U.S.

540, 114 S.Ct. 1147, 127 L.Ed.2d 474

(1994). By failing or refusing to

disqualify themselves from this case,

Judges Weinshienk and Daniel deprived Mr.

Smith of his Fifth Amendment due process

right to a fair and impartial

decisionmaker. See Arnett v. Kennedy,

416 U.S. 134, 197, 94 S.Ct. 1633, 40

A-49

New xd hh cteEe

—_— a a eT ee a ne Re ee

L.Ed.2d 15 (1974) (White, J., concurring

in part and dissenting in part) (“the

right to an impartial decision-maker is

required by due process” in every case);

Morrissey v. Brewer, 408 U.S. 471, 485-

86, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1971)

(Harlan, J., concurring) (“the appearance

of evenhanded justice ... is at the

core of due process”) ; Goldberg v. Kelly,

397 U.S. 254, 271, 90 S.Ct. 1011, 25

L.Ed.2d 287 (1970) (decisionmaker bias is

grounds for reversal); Offut v. United

States, 348 U.S. 11, 75 S.Ct. 11, 99

L.Ed.2d 11 (1954) (nor may a judge or

; other ostensibly impartial decisionmaker

“give vent to personal spleen or respond

to a personal grievance” in reaching a

decision). Judges Weinshienk and Daniel

also engaged in a pattern of judicial

misconduct, in violation of 28 U.8.¢C. 8

372(c).

i EIS Gi CHE Ry Taf

V. CONCLUSION

f Reversal of Judges Weinshienk’s and

y Daniel’s orders of June 17, 1994, May 15,

} 1995, July 21, 1995, September 7, 1995,

October 6, 1995, January 22, 1996, August

i 4, 1997 and August 11, 1997 is requested,

: as well as such other and further relief

é as may be just under the circumstances,

: A-50

including a full investigation of the

charges made against Judges Weinshienk

and Daniel in this brief.

VI. REQUEST FOR ORAL ARGUMENT

Oral argument is requested to

address the important issues of first

impression raised by this appeal.

Dated this 2™ day of January, 1998.

Respectfully submitted,

DAVID L. SMITH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY-APPELLANT

Re ie ee en tik

PR ee eb 2S LUO E SM. ose me

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JAMES EDWARD QUALLS,

Plaintiff,

No. 97-1392

Vv. (D.C. No. 91-Z-989)

(Dist. of Colo.)

REGIONAL TRANSPORTATION

DISTRICT, RICHARD BAUMAN,

ROBERT GARSIDE, RICHARD

REYNOLDS, ELLSWORTH

WALKER, and JAMES MISEK,

Defendants-Appellees.

DAVID L. SMITH,

Attorney-Appellant.

OPENING BRIEF FOR PRO SE ATTORNEY-

APPELLANT DAVID L. SMITH

Pro se attorney-appellant David L.

Smith ("Mr. Smith") hereby files his

opening brief:

A-52

I. STATEMENT OF SUBJECT MATTER AND

APPELLATE JURISDICTION

Subject matter jurisdiction of the

United States District Court for the

District of Colorado is based on Fed. R.

Civ. P. 60(b).

Appellate jurisdiction of the United

States Court of Appeals for the Tenth

Circuit is based on 28 U.S.C. § 1291.

II. ISSUES PRESENTED FOR REVIEW

Whether by issuing her (October 8,

1997) Minute Order denying Mr. Smith's

(September 26, 1997) Motion Pursuant to

Fed. R. Civ. P. 60(b) for Relief From

Judgments, Orders and/or Proceedings, and

Motion to Take Depositions and Conduct

Other Discovery, Judge Weinshienk

deprived him of his liberty and property

interests in his good name, reputation,

honor and integrity, and in his right to

practice law and make a living.

Whether since this Minute Order was

issued without affording Mr. Smith proper

notice or an Opportunity to file a brief

or otherwise be heard before entry of a

final judgment, without considering the

Claims, issues and arguments raised by

him in his motions, and without giving

any reasons for her decision, Judge

Weinshienk deprived him of his Fifth

Amendment right to due process of law.

Whether Judge Weinshienk also

deprived Mr. Smith of his First Amendment

right to petition the government for a

redress of grievances.

Whether since it was reasonably

questionable whether Judge Weinshienk

could be a fair and impartial

decisionmaker in this case, or in any

case involving Mr. Smith, she was

obligated to disqualify herself from this

case pursuant to 28 U.S.c. § 455(a).

Whether by failing or refusing to

disqualify herself from this case, Judge

Weinshienk deprived Mr. Smith of his

Fifth Amendment due process right to a

fair and impartial decisionmaker.

Whether under all the circumstances,

Judge Weinshienk engaged in a pattern of

judicial misconduct, in violation of 28

U.S.C. § 372(c) and Canon 3 of the ABA

Code of Judicial Conduct.

III. STATEMENT OF THE CASE

On December 10, 1992, United States

District Judge Zita L. Weinshienk issued

her order severely attacking,

reprimanding and warning Mr. Smith for

seeking dismissal with prejudice of

plaintiff's remaining Title VII claim so

that an appeal of his improperly

dismissed claims under 42 U.S.C. §§ 1981,

1983, 1985(3) and 1986 could be taken to

the United States Court of Appeals for

the Tenth Circuit. {(R. Vol. I.; Doc.

272, page 1.) Judge Weinshienk's

unsubstantiated attacks on Mr. Smith's

professional character, judgment and

reputation improperly interfered with his

relationship with his client, who chose

to ignore his attorney's advice and to

continue with his remaining Title VII

claim in the United States District Court

for the District of Colorado. (R. Vol.

I., Doc. 272, pages 1-2.) Since Judge

Weinshienk's order was issued without

affording Mr. Smith proper notice of her

contemplated actions or an opportunity to

A-55

file a brief or otherwise be heard before

entry of a final judgment, he was

deprived of his Fifth Amendment right to

due process of law. (R. Vol. Is, Doc.

272, page 2.)

On February 16, 1994, Judge

Weinshienk issued her order completely

reversing her (January 25, 1994) ruling

that "the case will continue with Mr.

Smith representing the plaintiff until

such time as there is a ruling by this

court that he may not appear"; granting

defendant Regional Transportation

District's (February 4, 1994) motion to

Stay the proceedings and to vacate the

trial scheduled to commence on April 25,

1994; and staying plaintiff's federal

civil rights case "pending the Committee

on Conduct's determination of plaintiff's

counsel's status." (R. Vol. +> Dee.

272, page 2.) This order was based on a

constitutionally defective or otherwise

unlawful disciplinary order or opinion

issued against Mr. Smith by the Committee

on Conduct of the United States District

Court for the District of Colorado. (R.

VOL. Zc—. Ree. 1292; page 2.)

On June 17, 1994, Judge Weinshienk

issued her order staying plaintiff's

Civil rights case for a second time

A-56

BEST AVAILABLE COPYE

"until final action is taken by the

District Court on the Committee on

Conduct's recommendation concerning

plaintiff's counsel's status." (R. Vol.

I., Doc. 272, page 2.) This order was

based on a constitutionally defective or

otherwise unlawful disciplinary order or

opinion issued against Mr. Smith by the

Committee on Conduct of the United States

District Court for the District of

Colorado. (R. Vol. I., Doc. 272, pages

1-2.)

By issuing her (May 15, 1995) orders

removing Mr. Smith as plaintiff's

attorney and lifting the stay in

plaintiff's federal civil rights case,

Judge Weinshienk acted beyond the scope

of the constitutionally defective or

otherwise unlawful disciplinary order

issued against Mr. Smith by the three-

judge (including Judge Weinshienk)

disciplinary panel of the United States

District Court for the District of

Colorado on February 10, 1995. (R. Vol.

I., Doc. 272, page 3.) This disciplinary

order did not permit removal of Mr. Smith

as attorney for his clients in pending

civil rights litigation. (R. Vol. I.,

Doc. 272, page 3.) Further, plaintiff

and Mr. Smith were deprived of their

Fifth Amendment right to due process of

A-57

law by Judge Weinshienk's refusal to

allow Mr. Smith to argue on their behalf

before issuing her (May 15, 1995) orders,

which were issued without giving them

prior notice of the contemplated removal

of Mr. Smith as plaintiff's attorney, and

without affording them an opportunity to

file a brief or otherwise be heard before

entry of a final judgment. (R. Woes Zis

Doc. 272, page 3.)

Under all the circumstances, Judge

Weinshienk's impartiality might

reasonably be questioned. (R. Vol. Ris

Doc~ 272, page 3.) Judge Weinshienk was

therefore obligated to disqualify herself

from plaintiff's federal civil rights

case pursuant to 28 U.S.C. § 455(a) and

Canon 3 of the ABA Code of Judicial

Conduct. (R. Vol. I., Doc. 272, page 3.)

By issuing her (June 16, 1995) order

refusing to disqualify herself from

Plaintiff's federal civil rights case,

Judge Weinshienk grossly abused her

discretion or otherwise acted impruperly

or in a manner detrimental to the fair

and impartial administration of justice.

(R. Vol. I., Doc. 272, pages 3-4.) Judge

Weinshienk also engaged in a pattern of

judicial misconduct, in violation of 28

U.S.C. § 372(c). (R. Vol. I., Doc. 272,

page 4.)

A-58

)

By issuing her (July 31, 1995) order

denying plaintiff's and Mr. Smith's

motion for reconsideration of United

States Magistrate Judge Donald E. Abram's

(January 28, 1994) order imposing harsh

and unjustified sanctions of $8,187.50

against Mr. Smith for filing alleged

"frivolous" discovery motions, and

requiring him to pay this amount to

defendant Regional Transportation

District ("RTD") by no later than

February 28, 1994, Judge Weinshienk again

grossly abused her discretion or

otherwise acted improperly or in a manner

detrimental to the fair and impartial

administration of justice. (R. Vol. wes

Doc. 272, page 4.) Mr. Smith did not

file any "frivolous" discovery motions in

tais case. (R. Vol. I., Doc. 272, page

4.) Magistrate Judge Abram imposed harsh

and unjustified sanctions of $8,187.50

against Mr. Smith for the improper

purpose of driving him out of federal

civil rights practice and chilling (or

freezing) civil rights litigation in

general. (R. Vol. I., Doc. 272, page 4.)

On August 10, 1995, Judge Weinshienk

held an in-chambers status conference, at

which she granted defendants' motion for

attorney fees; determined that the

reasonable amount of attorney fees for

A-59

filing the appeal of her (June 17, 1994)

order to the United States Court of

Appeals for the Tenth Circuit was

$1,187.50; and ordered Mr. Smith (but not

Plaintiff) to pay this amount to

defendants pursuant to the order issued

by the three-judge disciplinary panel of

the United Svates Court of Appeals for

the Tenth Circuit on July 18, 1995. (rR.

Vol. I., Doc. 272, page 4.) Judge

Weinshienk announced these orders without

Giving Mr. Smith prior notice of her

contemplated actions or an Opportunity to

file a brief or otherwise be heard before

entry of a final judgment, thus depriving

him of his Fifth Amendment right to due

process of law. (R. Vol. I., Doc. 272,

pages 4-5.)

When Judge Weinshienk issued or

announced her (May 15, 1995, June 16,

1995, July 31, 1995 and August 10, 1995)

orders, plaintiff's federal civil rights

case was already on appeal to the United

States Court of Appeals for the Tenth

Circuit, which had exclusive jurisdiction

over the case. (R. Vol. Zee Doc. 272,

page 5.) Judge Weinshienk was therefore

proceeding without or in excess of her

jurisdiction when she issued or announced

A-60

her (May 15, 1995, June 16, 1995, July

31, 1995 and August 10, 1995) orders.

(R. Vol. I., Doc. 272, page 5.)

In their (September 29, 1995)

Stipulation of Dismissal With Prejudice,

Plaintiff and defendant RTD alleged that

"(t]he parties have reached full and

final settlement of all claims in this

proceeding," and purported to stipulate

to dismiss plaintiff's federal civil

rights action with prejudice, "with each

party to bear its own attorney fees,

expenses and costs." (R. Vol. I., Doc.

272, page 5.) However, Mr. Smith, who

had been forced to proceed pro se in this

case because of the disciplinary orders

or opinions improperly suspending him

from the practice of law in the United

States District Court for the District of

Colorado, and removing him as plaintiff's

counsel of record, did not sign this

Stipulation, as required by Fed. R. Civ.

P. 41(a)(1) (ii). (R. Vol. Z., Doc. 272,

page 5.) Further, there was a

significant discrepancy between this

stipulation and the (September 29, 1995)

Settlement Agreement and Full and Final

Release, in which Plaintiff and defendant

RTD agreed that defendant RTD reserved

its rights, if any, to obtain recovery of

attorney fees, costs or other sanctions

A-61

imposed against Mr. Smith. (R. Vol. I.,

Doc. 272, pages 5-6.) Presumably, this

reservation included the harsh and

unjustified sanctions of $8,187.50

imposed against Mr. Smith on July 31,

1995, and those of $1,187.50 imposed

against him on August 10, 1995. (R. vol.

I., Doc. 272, page 6.) This significant

discrepancy between the (September 29,

1995) Stipulation of Dismissal With

Prejudice and the (September 29, 1995)

Settlement Agreement and Full and Final

Release constituted an intentional fraud

on Mr. Smith and/or Judge Weinshienk, who

issued her (October 10, 1995) Order of

Dismissal based on the (September 29,

1995) stipulation. (R. Vol. I., Doc.

272, page 6.)

In her (October 10, 1995) Order of

Dismissal, Judge Weinshienk dismissed

Plaintiff's federal civil rights case

with prejudice, "the parties to pay their

Own attorney's fees, expenses and costs."

(R. Vol. I., Doc. 272, page 6.) Judge

Weinshienk issued her (October 10, 1995)

Order of Dismissal based on the

(September 29, 1995) Stipulation of

Dismissal With Prejudice. (R. Vol. Res

Doc. 272, page 6.) However, because Mr.

Smith did not sign this stipulation, as

required by Fed. R. Civ. Pp. 41 (a) (1) (ii),

A-62

and because of the intentional fraud on

Mr. Smith and/or Judge Weinshienk

described in the preceding paragraph,

Judge Weinshienk's (October 10, 1995)

Order of Dismissal was null and void ab

initio. (R. Vol. I., Doc. 272, page 6.)

Finally, by issuing her (October 10,

1995) Order of Dismissal without awarding

the attorney fees required by 42 U.S.C. §

1988, Judge Weinshienk deprived Mr. Smith

of his property interests created by his

contingent fee agreement with plaintiff,

in violation of his Fifth Amendment right

to due process of law. (R. Vol. I., Doc.

272, pages 6-7.)

On November 21, 1995, Judge

Weinshienk issued her Minute Order

announcing that "Mr. Smith was never made

a party to this case by the Court," and

on this alleged basis, returned to Mr.

Smith his (October 10, 1995) Motion to

Reopen the Time for Appeal of Order

Issued by United States District Judge

Zita L. Weinshienk on August 10, 1995,

and for Notice of Any Order Dismissing

the Case; his (October 11, 1995) Motion

to Alter or Amend Judgment; his (November

15, 1995) Motion for Relief From

Judgments, Orders and/or Proceedings; and

his (November 17, 1995) Motion for Leave

to Take Depositions and Conduct Other

A-63

Discovery. (R. Vol. I., Doc. 258, all

pages and lines.) However, Mr. Smith hac

been proceeding pro se in this case since

at least May 15, 1995, when Judge

Weinshienk issued her orders removing him

as plaintiff's attorney and lifting the

stay in plaintiff's civil rights case.

These orders, as well as the other

judgments, orders and/or proceedings in

this case, conferred Article III standing

on Mr. Smith to proceed pro se and/or as

a non-party attorney entitled to file the

motions returned to him by Judge

Weinshienk on November 21, 1995. By

returning Mr. Smith's motions to him on

the alleged basis that "Mr. Smith was

never made a party to this case by the

Court," Judge Weinshienk grossly abused

her discretion or otherwise acted

improperly or in a manner detrimental to

the fair and impartial administration of

justice. Judge Weinshienk also engaged

in a pattern of judicial misconduct, in

violation of 28 U.S.C. § 372(c).

On October 8, 1997, Juage Weinshienk

issued her Minute Order denying Mr.

Smith's (September 26, 1997) Motion

Pursuant to Fed. R. Civ. P. 60(b) for

Relief From Judgments, Orders and/or

Proceedings, and Motion to Take

Depositions and Conduct Other Discovery,

A-64

without affording him proper notice or an

opportunity to file a brief or otherwise

be heard before entry of a final

judgment, without considering the claims,

issues and arguments raised by him in his

motions, and without giving any reasons

for her decision. (R. Vol. I., Doc. 275,

all pages and lines.)

IV. ARGUMENT

Fed. R. Civ. P. 60(b) provides as

follows:

On motion and upon such terms

as are just, the court may relieve a

party or a party's legal

representative from a final

judgment, order, or proceeding for

the following reasons: (1) mistake,

inadvertence, surprise, or excusable

neglect; (2) newly discovered

evidence which by due diligence

could not have been discovered in

time to move for a new trial under

Rule 59(b); (3) fraud (whether

heretofore denominated intrinsic or

extrinsic), misrepresentation, or

other misconduct of an adverse

party; (4) the judgment is void; (5)

the judgment has been satisfied,

released, or discharged, or a prior

A-65

judgment upon which it is based has

been reversed or otherwise vacated,

or it is no longer equitable that

the judgment should have Prospective

application; or (6) any other reason

justifying relief from the operation

of the judgment. The motion shall

be made within a reasonable time,

and for reasons (1), (2), and (3)

not more than one year after the

judgment, order, or proceeding was

entered or taken. A motion under

this subdivision (b) does not affect

the finality of a judgment or

Suspend its operation. This rule

does not limit the power of a court

to entertain an independent action

to relieve a party from a judgment,

order, or proceeding, or to grant

relief to a defendant not actually

personally notified as provided in

Title 28, U.S.c. § 1655, or to set

aside a judgment for fraud upon the

court. Writs of coram nobis, coram

vobis, audita querela, and bills of

review and bills in the nature ofa

bill of review, are abolished, and

the procedure for obtaining any

relief from a judgment shall be by

motion as prescribed in these rules

or by an independent action.

A-66

By issuing her (October 8, 1997) Minute

Order denying Mr. Smith's (September 26,

1997) Motion Pursuant to Fed. R. Civ. P.

60(b) for Relief From Judgments, Orders

and/or Proceedings, and Motion to Take

Depositions and Conduct Other Discovery,

Judge Weinshienk deprived him of his

liberty and property interests in his

good name, reputation, honor and

integrity, and in his right to practice

law and make a living. See Board of

Regents v. Roth, 408 U.S. 564, 96 S.Ct.

2701, 331 L.Ed.2d 548 (1972); Perry v.

Sindermann, 408 U.S. 593, 92 S.Ct. 2694,

33 L.Ed.2d 570 (1972); Armett v. Kennedy,

416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2ad

15 (1974); Paul _v. Davis, 424 U.S. 693,

96 S.Ct. 1155, 47 L.Ed.2d 405 (1976);

Bishop v. Wood, 426 U.S. 341, 96 S.Ct.

2074, 48 L.Ed.2d 684 (1976); Cleveland

Board of Education v. Loudermill, 470

U.S. 494, 105 S.Ct. 1487, 84 L.Ed.2d 494

(1985); Johnson v. Board of County

Commissioners, 85 F.2d 489, 492-93 (10th

Cir. 1996) ("(t])hese cases establish that

settlement of an underlying case does not

preclude appellate review of an order

disqualifying an attorney from further

representation insofar as that order

rests on grounds that could harm his or

her professional reputation"), citing In

re M WwW WwW rade

A-67

F.3d 1277, 1279 (10th Cir. 1996), G.J.B.

» 913 F.2d

824, 827 (10th Cir. 1990),

Vv. Dickstein, 971 F.2d 446 (10th Cir.

1992),

» 9 F.3d 849, 854

(10th Cir. 1993),

» 884 F.2d 1367,

1370 (llth Cir. 1989), and

Mock v. T.G. &

ZY. Stores Co., 971 F.2d 522, 526 (10th

Cir. 1992);

Dietrich Corp. v. King

Resources Co., 596 F.2d 422 (10th Cir.

1979) (an attorney has standing to appeal

the denial of attorney fees); Lipscomb v.

Wise, 643 F.2d 319, 320-321 (5th Cir.

1981) (same); Samuels v. American Motors

Sales Corp., 969 F.2d 573, 576 (7th Cir.

1992) (same); U.S. v. Tippett, 975 F.2d

713, 718 (10th Cir. 1992) (a nonparty

witness has Standing to appeal denial of

an application for statutory witness

fees, just as an attorney has standing to

appeal the denial of attorney fees).

Since this Minute Order was issued

without affording Mr. Smith proper notice

Or an opportunity to file a brief or

otherwise be heard before entry of a

final judgment, without considering the

Claims, issues and arguments raised by

him in his motions, and without giving

any reasons for her decision, Judge

Weinshienk deprived him of his Fifth

A-68

Amendment right to due process of law.

See id.; gee also In re Ruffalo, 390 U.S.

544, 88 S.Ct. 1222, 20 L.Ed.2d 117

(1968); Wolff v. McDonnell, 418 U.S. 539,

94 S.Ct. 2963, 41 L.Ed.2d 935 (1974);

Mathews v. Eldridge, 424 U.S. 319, 96

S.Ct. 893, 47 L.Ed.2d 18 (1976); Razatos

v. Colorado Supreme Court, 746 F.2d 1429

(10th Cir. 1984), cert. denied, 471 U.S.

1016 (1985); Mattox v. Disciplinary Panel

of the United States District Court for

the District of Colorado, 758 F.2d 1362

(10th Cir. 1985); Braley v. Campbell, 832

F.2d 1504 (10th Cir. 1987); White v.

General Motors Corp., Inc., 908 F.2d 675

(10th Cir. 1990). Judge Weinshienk also

deprived Mr. Smith of his First Amendment

right to petition the government for a

redress of grievances. See NAACP v.

Button, 371 U.S. 415, 83 S.Ct. 328, 9

L.Ed.2d 405 (1963) ("[a]nd under the

conditions of modern government,

litigation may well be the sole

practicable avenue open to a minority to

petition for redress of grievances") ;

Brotherhood of Railroad Trainmen v.

Virginia, 377 U.S. 1, 84 S.Ct. 1113, 12

L.Ed.2d 89 (1964); United Mine Workers v.

Illinois, 389 U.S. 217, 88 S.Ct. 353, 19

L.Ed.2d 426 (1967); United Transportation

Union v. State Bar of Michigan, 401 U.S.

A-69

(1971); California Motor Transport Co. v.

Trucking Unitd., 404 U.S. 508, 92 S.Ct.

609, 30 L.Ed.2d 642 (1972); Bill

Johnson's Restaurants v. NLRB, 461 U.S.

731, 103 S.Ct. 2161, 76 L.Ed.2d 277

(1983); Sure-Tan, Inc. v. NLRB, 467 U.S.

883, 104 S.Ct. 2803, 81 L.Ed.2d 732

(1984); Talamini v. Allstate Insurance

Co., 470 U.S. 1067 (1985); Crumpacker v.

Indiana Supreme Court Disciplinary

Commission, 470 U.S. 1074 (1985); Silver

v. Cormier, 529 F.2d 161, 163 (10th Cir.

1976) ("[a]) public official's threats to

a citizen to withhold monies due and

owing, should legal proceedings be

instituted, burdens or chills

constitutional rights of access to the

courts"), citing Harbolt v. Allredge, 464

F.2d 1243, 1244 (10th Cir.), cert.

denied, 409 U.S. 1025, 93 S.Ct. 473, 34

L.Ed.2d 319 (1972) and Evans v. Moseley,

455 F.2d 1084, 1087 (10th Cir. 1972);

Henriksen v. Bentley, 644 F.2d 852, 855

(10th Cir. 1981); Shaw v. Neece, 727 F.2d

947, 948 (10th Cir. 1984); McKay v.

Hammock, 730 F.2d 1367, 1375 (10th Cir.

1984); Nordgren v. Milliken, 762 F.2d 851

(10th Cir. 1985); Ward v. Fort, 762 F.2d

856, 858 (10th Cir. 1985). Further,

since it was reasonably questionable

whether Judge Weinshienk could be a fair

and impartial decisionmaker in this case,

A-70

or in any case involving Mr. Smith, she

was obligated to disqualify herself from

this case pursuant to 28 U.S.C. § 455(a).

See Liteky v. United States, 510 U.S.

540, 114 S.Ct. 1147, 127 L.Ed.2d 474

(1994). By failing or refusing to

disqualify herself from this case, Judge

Weinshienk deprived Mr. Smith of his

Fifth Amendment due process right to a

fair and impartial decisionmaker. See

Arnett v. Kennedy, 416 U.S. 134, 197, 94

S.Ct. 1633, 40 L.Ed.2d 15 (1974) (White,

J., concurring in part and dissenting in

part) ("the right to an impartial

decision-maker is required by due

process" in every case); Morrissey v.

Brewer, 408 U.S. 471, 485-86, 92 S.Ct.

2593, 33 L.Ed.2d 484 (1971) (Harlan, J.,

concurring) ("the appearance of

evenhanded justice ... is at the core

of due process"); Goldberg v. Kelly, 397

U.S. 254, 271, 90 S.Ct. 1011, 25 L.Ed.2a

287 (1970) (decisionmaker bias is grounds

for reversal); £ Vv °

348 U.S. 11, 75 S.Ct. 11, 99 L.Ed.2d 11

(1954) (nor may a judge or other

ostensibly impartial decisionmaker "give

vent to personal spleen or respond to a

personal grievance" in reaching a

decision). Finally, under all the

circumstances, Judge Weinshienk engaged

A-71

in a pattern of judicial misconduct, in

violation of 28 U.s.c. § 372(c) and Canon

3 of the ABA Code of Judicial Conduct.

V. CONCLUSION

Reversal of Judge Weinshienk's

(October 8, 1997) Minute Order is

requested, as well as such other and

further relief as may be just under the

circumstances, including a full

investigation of the charges made against

Judge Weinshienk in this brief.

Oral argument is requested to

address the important issues of first

impression raised by this appeal.

Dated this 28th day of November,

1997.

Respectfully submitted,

DAVID L. SMITH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY-APPELLANT

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LINDA C. HOWARD,

Plaintifé£,

Vv. No. 97-1297

MAIL-WELL ENVELOPE COMPANY,

BUTLER PAPER COMPANY, GEORGIA-

PACIFIC CORPORATION, GREAT

NORTHERN NEKOOSA CORPORATION

EMPLOYEE PROTECTION PLAN,

Defendants-Appellees.

DAVID L. SMITH,

Attorney-Appellant.

JAMES EDWARD QUALLS,

Plaintiff,

Vv. No. 97-1392

REGIONAL TRANSPORTATION

DISTRICT; RICHARD BAUMAN;

ROBERT GARSIDE; RICHARD

REYNOLDS; ELLSWORTH WALKER;

and JAMES MISEK,

Defendants-Appellees.

Attorney-Appellant.

PETITION FOR REHEARING, SUGGESTION FOR

REHEARING EN BANC, AND OBJECTIONS TO

FROSPECTIVE FILING RESTRICTIONS AND

INJUNCTION

In its (June 29, 1998) opinion, a

copy of which is attached hereto as

Exhibit 1, this court charges that by

filing and pursuing these appeals, Mr.

Smith is attempting to re-litigate issues

already determined by this court or

foreclosed by previous determinations of

this court, in violation of orders issued

by this court in previous cases.

However, the issues raised and argued by

Mr. Smith in these previous cases were

different from those raised and argued by

A-75

him in the present cases. The parties

were also different. In two of these

previous cases, the burden of proof was

adifferent. In all of these previous

cases, this court refused to address the

issues raised and argued by Mr. Smith--a

blatant and egregious violation of his

First Amendment right to access to the

courts to petition the government for a

redress of grievances and his Fifth

Amendment right to due process of law,

including his right to appeal a final

decision by a district court and to

receive meaningful review of that

decision pursuant to 28 U.S.C. § 1291.

See Coppedge v. United States, 369 U.S.

438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962);

Salve Regina College v. Russell, 499 U.S.

231, 111 S.Ct. 1217, 113 L.Ed.2d 190

(1991) (“the obligation of responsible

app’ llate jurisdiction implies the

requisite authority to review

independently a lower court’s

determinations”); Honda Motor Co., Ltd.

v. Oberg, 512 U.S. 415, 114 S.Ct. 2331,

129 L.Ed.2d 336 (1994); United States v.

Jose, 519 U.S. 54, 117 S.Ct. 463, 136

L.Ed.2d 364 (1996) (“finality, not

ripeness, is the doctrine gceverning

appeals from District Court to Circuit

Court”); Brewen v. United States, 375

F.2d 285 (5™ Cir. 1967); Matter of

A-76

McLinn, 739 F.2d 1395 (9™ cir. 1984)

(“every party is entitled to a full,

considered, and impartial review of the

decision of the trial court”); Craig v.

, 843 F.2d

145 (3™* Cir. 1988);

Dickstein, 971 F.2d 446 (10™ Cir. 1992);

’

85 F.3d 489 (10™ Cir. 1996); Steiner

135 F.3d 684 (10™ Cir. 1997). Nor did

this court give any independent reasons

for its decisions. See id. This court

merely affirmed the orders issued by the

district court, which also refused to

address the issues raised and argued by

Mr. Smith--another blatant and egregious

violation of his First and Fifth

Amendment rights. See id.; gee also

NAACP v. Button, 371 U.S. 415, 83 S.ct.

328, 9 L.Ed.2d 405 (1963) (“and under the

conditions of modern government,

litigation may well be the sole

practicable avenue open to a minority to

petition for redress of grievances”) ;

Wi » 400 U.S. 433,

91 S.Ct. 507, 27 L.Ed.2da 515 (1971);

Trucking Unitd., 404 U.S. 508, 92 s.ct.

609, 30 L.Ed.2d 642 (1972); Board of

Regents v. Roth, 408 U.S. 564, 96 S.ct.

2701, 33 L.Ed.2d 548 (1972); Logan v.

A-77

» 455 U.S. 422, 102

Loudermill, 470 U.s. 494, 105 8.ct. 1487,

84 L.Ed.2d 494 (1985); Talamini v.

Allstate Insurance Co., 470 U.S. 1067

(1985);

Court Disciplinary Commission, 470 U.S.

1074 (1985); Burkett v. Chandler, 505

F.2d 217 (10 Cir.), cert. denied, 423

U.S. 876, 96 S.Ct. 149, 46 L.Ed.2d 110

(1975); Silver v. Cormier, 529 F.2d 161,

163 (10™ Cir. 1976) (“a public official’s

threats to a citizen to withhold monies

due and owing, should legal proceedings

be instituted, burdens or chills

constitutional rights of access to the

courts”), citing Vv » 464

F.2d 1243, 1244 (10 Cir.), cert. denied,

409 U.S. 1025, 93 S.ct. 473, 34 L.Ed.2d

319 (1972) and Ev , 455 F.2d

1084, 1087 (10 cir. 1972); Razotos v.

, 746 F.2d 1429

(10 Cir.), cert. denied, 471 U.S. 1016

(1985); Mattox v. Disciplinary Panel of

» 758 F.2d 1362 (10°

Cir. 1985); 4 , 832 F.2d

1504 (10 Cir. 1987); White v. General

» 908 F.2d 675 (10°

Cir. 1990); Vv

Company, U.S. App. LEXIS 9479 (5™ cir.

A-78

May 12, 1998), a copy of which is

attached hereto as Exhibit 2. Therefore,

by filing and pursuing these appeals, Mr.

Smith is not attempting to re-litigate

issues that have already been determined

by this court or foreclosed by previous

determinations of this court, in

violation of orders issued by this court

in previous cases.*° Instead, Mr. Smith

is attempting to litigate meritorious

issues that this court and the district

court have steadfastly refused to decide

on their merits.** Further, since this

*°In other words, Mr. Smith is not

attempting to litigate issues barred by

the doctrines of res judicata and

collateral estoppel, which have no

application where, as in the present

cases, the appellant did not have a full

and fair opportunity to litigate his

federal claims. See Allen v. McCurry,

449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2a

308 (1980).

“Since the issues Mr. Smith is

attempting to litigate are well grounded

in fact and are warranted by existing law

or a good faith argument for the

extension, modification or reversal of

existing law, or to establish new law,

this court’s charge that these issues are

“frivolous” is cleazly false. See

Sil U.S. 659, 114 S.Ct. 1826, 128 L.Ed.2a

court is charging Mr. Smith with

violating this court’s previous orders,

it is charging him with what amounts to

criminal contempt; and he is therefore

entitled to a full criminal process,

including his Sixth Amendment right to a

trial by jury on these charges. 2 See

A-80

655 (1994) (appeal not “frivolous” where

the only basis for the order imposing

Sanctions on petitioner’s attorney was

that his argument was foreclosed by

circuit precedent).

**As a matter of the equal protection

of the laws, Mr. Smith should not have

fewer constitutional rights merely

because he is being charged sua sponte by

this court rather than in an order to

show cause why he should not be held in

contempt for allegedly violating this

court’s orders. See Vv. Board of

Bar Examiners, 353 U.S. 232, 77 S.Ct.

752, 1 L.Ed.2d 796 (1957); Douglas v.

California, 372 U.S. 353, 83 S.Ct. 814, 9

L.Ed.2d 811 (1963); Harper v. Virginia

, 383 U.S. 663,

86 S.Ct. 1079, 16 L.Ed.2da 169 (1966);

B v i , 401 U.S.

1, 91 8.Ct. 702, 29 L.Ed.2d 639 (1971);

B v e £02 U.8. 371, 91

S.Ct. 780, 28 L.Ed.2d 113 (1971).

Gompers _v. Bucks Stove & Range Co., 221

U.S. 418, 31 S.Ct. 492, 55 L.Ed.2d 797

(1911); In re Ruffalo, 390 U.S. 544, 88

S.Ct. 1222, 20 L.Ed.2d 117 (1968)

(attorney disciplinary proceedings are

quasi-criminal in nature); Bloom v.

Zilinois, 391 U.S. 194, 88 S.Ct. 1477, 20

L.Ed.2d 522 (1968); International Union

v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552,

129 L.Ed.2d 642 (1994). At the very

least, Mr. Smith is entitled to an

evidentiary hearing at which he would

have the opportunity to present expert

testimony and other relevant evidence on

his affirmative defenses and mitigating

circumstances to the charges being

brought against him, including evidence

of his financial inability to pay the

harsh and unjustified sanctions of more

than $50,000.00 previously imposed

against him by this court and the

district court.*® See Burkett v.

Mr. Smith has a current negative

net worth of more than $400,000.00. Due

to his disbarment from the practice of

law in this court and the district court,

and his indefinite suspension from the

practice of law in these courts and the

courts of the State of Colorado, Mr.

Smith has no income from which his

negative net worth could be reduced, or

from which the harsh and unjustified

sanctions of more than $50,000.00 imposed

against him by this court and the

Chandler, 505 F.2d 217 (10™ Cir.), cert.

denied, 423 U.S. 876, 96 S.Ct. 149, 46

L.Ed.2d 110 (1975);

Razatos v. Colorado

Supreme Court, 746 F.2d 1429 (10™ cir.),

cert. denied, 471 U.S. 1016 (1985);

Mattox v. Disciplinary Panel of the

United States District Court for the

District of Colorado, 758 F.2d 1362 (10™

Cir. 1985); Braley v. Campbell, 832 F.2d

1504 (10 Cir. 1987); White v. General

Motors Corp., Inc., 908 F.2d 675 (10™

Cir. 1990);

Company, U.S. App. LEXIS 9479 (5 cir..

May 12, 1998). Mr. Smith hereby

specifically requests an evidentiary

hearing on these matters if this court

denies his request for a trial by jury.

However, since this court is incapable of

rendering a fair and impartial decision

A-82

district court could be paid. See Maggio

v. Zeitz, 333 U.S. 56, 68 S.Ct. 401, 92

L.Ed. 476 (1948) (impossibility of

performance constitutes a defense to

contempt); United States v. Rylander, 460

U.S. 752, 103 S.Ct. 1548, 75 L.Ed.2d 521

(1983) (the court must consider present

inability to comply with the order in

question); Tinsley v. Mitchell, 804 F.2d

1254, 1256 (D.C. Cir. 1986) (citing

Maggio v. Zeitz).

with respect to any matter involving Mr.

Smith, he requests that these matters be

transferred to the United States Court of

Appeals for the Federal Circuit for

decision.** See 28 U.S.C. § 455(a);

Liteky v. United States, 510 U.S. 540,

114 S.Ct. 1147, 127 L.Ed.2d 474 (1994);

Arnett v. Kennedy, 416 U.S. 134, 197, 94

S.Ct. 1633, 40 L.Ed.2d 15 (1974) (White,

J., concurring in part and dissenting in

part) (“the right to an impartial

decision-maker is required by due

process” in every case); Morrissey v.

Brewer, 408 U.S. 471, 485-86, 92 S.Ct.

2593, 33 L.Ed.2d 484 (1972) (decision-

maker bias is grounds for reversal) ;

Mayberry v. Pennsylvania, 400 U.S. 455,

469, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971)

(Harlan, J., concurring) (“the appearance

of evenhanded justice ... is at the

core of due process”); Goldberg v. Kelly,

397 U.S. 254, 271, 90 S.Ct. 1011, 25

L.Ed.2d 287 (1970) (decision-maker bias

is grounds for reversal); Offut v. United

States, 348 U.S. 11, 75 S.Ct. 11, 99

A-83

“Mr. Smith is a member in good

standing of the bar of the Federal

Circuit, and he believes that the judges

of the Federal Circuit could and would

render a fair and impartial decision in

these matters.

L.Ed.2d 11 (1954) (nor may a judge or

other ostensibly impartial decision-maker

“give vent to personal spleen or respond

to a personal grievance” in reaching a

decision). Mr. Smith requests such other

and further relief as may be just under

the circumstances, including an order

dismissing with prejudice the clearly

frivolous and groundless charges this

court is bringing against him for the

clearly improper purpose of depriving him

of his First and Fifth Amendment rights

to litigate meritorious issues that this

court and the district court have

steadfastly refused to decide on their

merits.

Mr. Smith hereby specifically

objects to this court’s prospective

filing restrictions and injunction, which

would not only further violate his First

Amendment right to access to the courts

to petition the government for a redress

of grievances and his Fifth Amendment

right to due process of law, including

his right to appeal a final decision by a

district court and to receive meaningful

review of that decision pursuant to 28

U.S.C. § 1291. This court’s prospective

filing restrictions and injunction would

also violate Mr. Smith’s Sixth Amendment

right to self-representation, inciuding

A-84

his right to proceed pro se under 28

U.S.C. § 1654. See McKaskle v. Wiggins,

465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d

122 (1984);

School Board, 121 F.3d 576 (11™ Cir.

1997). Further, the record is devoid of

any evidence upon which this court could

base imposing its prospective filing

restrictions and injunction against Mr.

Smith.

I express a belief based on a

reasoned and studied professional

judgment that the panel decision is

contrary to the following decisions of

the Supreme Court or of the United States

Court of Appeals for the Tenth Circuit,

and consideration by the full court is

necessary to secure and maintain

uniformity of decisions in this court:

Gompers _v. Bucks Stove & Range Co., 221

U.S. 418, 31 S.Ct. 492, 55 L.Ed.2d 797

(1911); Maggio v. Zeitz, 333 U.S. 56, 68

S.Ct. 401, 92 L.Ed. 476 (1948); Offut v.

United States, 348 U.S. 11, 75 S.Ct. 11,

99 L.Ed.2d 11 (1954); Coppedge v. United

States, 369 U.S. 438, 82 S.Ct. 917, 8

L.Ed.2d 21 (1962); NAACP v. Button, 371

U.Ss. 415, 83 S.6t. 328, 9 L.Ed.2d 405

(1963); In re Ruffalo, 390 U.S. 544, 88

S.Ct. 1222, 20 L.Ed.2d 117 (1968); Bloom

v. Illinois, 391 U.S. 194, 88 S.Ct. 1477,

A-85

20 L.Ed.2d 522 (1968); Goldberg v. Kelly,

397 U.S. 254, 271, 90 S.ct. 1011, 25

L.Ed.2d 287 (1970); Wisconsin v.

Constantineau, 400 U.S. 433, 91 S.Ct.

507, 27 L.Ed.2d 515 (1971); Mayberry v.

Pennsylvania, 400 U.S. 455, 469, 91 S.ct.

499, 27 L.Ed.2d 532 (1971); Morrissey v.

Brewer, 408 U.s. 471, 485-86, 92 §.Cct.

2593, 33 L.Ed.2d 484 (1972); California

404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d

642 (1972); Board of Regents v. Roth, 408

U.S. 564, 96 S.Ct. 2701, 33 L.Ed.2d 548

(1972); Arnett v. Kennedy, 416 U.S. 134,

197, 94 8.Ct. 1633, 40 L.Ed.2d 15 (1974);

Allen v. McCurry, 449 U.S. 90, 101 S.ct.

411, 66 L.Ed.2d 308 (1980); Logan v.

Zimmerman Brush Co., 455 U.S. 422, 102

S.Ct. 1148, 71 L.Ed.2d 265 (1982); United

States v. Rylander, 460 U.S. 752, 103

S.Ct. 1548, 75 L.Ed.2d 521 (1983);

McKaskle v. Wiggins, 465 U.S. 168, 104

S.Ct. 944, 79 L.Ed.2d 122 (1984);

Loudermill, 470 U.S. 494, 105 S.ct. 1487,

84 L.Ed.2d 494 (1985); Talamini v.

» 470 U.S. 1067

Court Disciplinary Commission

1074 (1985); Salve Regina College v.

Russell, 499 U.S. 231, 111 S.Ct. 1217,

113 L.Ed.2d 190 (1991); Liteky v. United

A-86

States, 510 U.S. 540, 114 S.Ct. 1147, 127

L.Ed.2d 474 (1994); McKnight v. General

Motors Corporation, 511 U.S. 659, 114

S.Ct. 1826, 128 L.Ed.2d 655 (1994); Honda

Motor Co., Ltd. v. Oberg, 512 U.S. 415,

114 S.Ct. 2331,-129 L.Ed.2d 336 (1994);

International Union v. Bagwell, 512 U.S.

821, 114 S.Ct. 2552, 129 L.Ed.2d 642

(1994); United States v. Jose, 519 U.S.

54, 117 S.Ct. 463, 136 L.Ed.2d 364

(1996); Harbolt v. Allredge, 464 F.2d

1243 (10 Cir.), cert. denied, 409 U.S.

1025, 93 S.Ct. 473, 34 L.Ed.2d 319

(1972); Evans v. Moseley, 455 F.2d 1084

(10™ Cir. 1972); United States v.

Dickstein, 971 F.2d 446 (10™ Cir. 1992);

Burkett v. Chandler, 505 F.2d 217 (10™

Cir.), cert. denied, 423 U.S. 876, 96

S.Ct. 149, 46 L.Ed.2d 110 (1975); Silver

v. Cormier, 529 F.2d 161, 163 (10™ Cir.

1976); Razatos v. Colorado Supreme Court,

746 F.2d 1429 (10™ Cir.), cert. denied,

471 U.S. 1016 (1985); Mattox v.

Disciplinary Panel of the United States

District Court for the District of

Colorado, 758 F.2d 1362 (10™ Cir. 1985);

Braley v. Campbell, 832 F.2d 1504 (10™

Cir. 1987); White v. General Motors

Corp., Inc., 908 F.2d 675 (10™ Cir.

1990); Johnson v. Board of County

Commissioners, 85 F.3d 489 (10™ Cir.

A-87

1996);

of California, 135 F.3d 684 (10 Cir.

1997).

I express a belief based on a

reasoned and studied professional

judgment that this appeal involves one or

more questions of exceptional importance:

(1) whether by filing and pursuing these

appeals, Mr. Smith is attempting to re-

litigate issues already determined by

this court or foreclosed by previous

determinations of this court, in

violation of orders issued by this court

in previous cases; (2) whether the issues

raised and argued by Mr. Smith in these

previous cases were different from those

raised and argued by him in the present

cases; (3) whether the parties were also

different; (4) whether in two of these

previous cases, the burden of proof was

different; (5) whether in all of these

previous cases, this court refused to

address the issues raised and argued by

Mr. Smith--a blatant and egregious

violation of his First Amendment right to

access to the courts to petition the

government for a redress of grievances

and his Fifth Amendment right to due

process of law, including his right to

appeal a final decision by a district

court and to receive meaningful review of

A-88

that decision pursuant to 28 U.S.C. §

1291; (6) whether this court gave any

independent reasons for its decisions;

(7) whether this court merely affirmed

the orders issued by the district court,

which also refused to address the issues

raised and argued by Mr. Smith--another

blatant and egregious violation of his

First and Fifth Amendment rights; (8)

whether Mr. Smith is attempting to

litigate issues barred by the doctrines

of res judicata and collateral estoppel,

which have no application where, as in

the present cases, the appellant did not

have a full and fair Opportunity to

litigate his federal claims; (9) whether

Mr. Smith is attempting to litigate

meritorious issues that this court and

the district court have steadfastly

refused to decide on their merits; (10)

whether since the issues Mr. Smith is

attempting to litigate are well grounded

in fact and are warranted by existing law

or a good faith argument for the

extension, modification or reversal of

existing law, or to establish new law,

this court’s charge that these issues are

“frivolous” is clearly false; (11)

whether since this court is charging Mr.

Smith with violating this court’s

previous orders, it is charging him with

what amounts to criminal contempt; and he

A-89

is therefore entitled to a full criminal

process, including his Sixth Amendment

right to a trial by jury on the charges

being brought against him; (12) whether

as a matter of the equal protection of

the laws, Mr. Smith should not have fewer

constitutional rights merely because he

is being charged gua sponte by this court

rather than in an order to show cause why

he should not be held in contempt for

allegedly violating this court’s orders;

(13) whether at the very least, Mr. Smith

is entitled to an evidentiary hearing at

which he would have the opportunity to

present expert testimony and other

relevant evidence on his affirmative

defenses and mitigating circumstances to

the charges being brought against him,

including evidence of his financial

inability to pay the harsh and

unjustified sanctions of more than

$50,000.00 previously imposed against him

by this court and the district court;

(14) whether due to his disbarment from

the practice of law in this court and the

district court, and his indefinite

suspension from the practice of law in

these courts and the courts of the State

of Colorado, Mr. Smith has no income from

which his negative net worth could be

reduced, or from which the harsh and

unjustified sanctions of more than

A-90

$50,000.00 imposed against him by this

court and the district court could be

paid; (15) whether since this court is

incapable of rendering a fair and

impartial decision with respect to any

matter involving Mr. Smith, he is _

entitled to have these matters

transferred to the United States Court of

Appeals for the Federal Circuit for

decision; (16) whether this court’s

prospective filing restrictions and

injunction would further violate Mr.

Smith’s First Amendment right to access

to the courts to petition the government

for a redress of grievances and his Fifth

Amendment right to due process of law,

including his right to appeal a final

decision by a district court and to

receive meaningful review of that

decision pursuant to 28 U.S.C. § 1291;

(17) whether this court’s prospective

filing restrictions would also violate

Mr. Smith’s Sixth Amendment right to

self-representation, including his right

to proceed pro se under 28 U.S.C. § 1654;

(18) whether the record is devoid of any

evidence upon which this court could base

imposing its prospective filing

restrictions and injunction against Mr.

Smith.

Dated this 6™ day of July, 1998.

Respectfully submitted,

David L. Smith

Pro Se Attorney-Appellant

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

‘

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.