# Petition for Writ of Certiorari — In re Smith

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 1019

## Text

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.
Cir. June 29, 1998).

Howard v. Mail-Well Envelope Company, et

al., Case No. 97-1297 (10 Cir. July 14,
1998).

-xii-

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ee

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.

-

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

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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.

»
'

45

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,
3

: 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.

54

Hd
'

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

)
Ss

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);

Vv

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
h
» 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

TE

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

w
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

AE

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);
Vv

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.

91

»
'

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

Hd
‘

92

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0986%3A1. Public record. Not legal advice.