Petition for Writ of Certiorari — Smith v. Mail-Well Envelope Co.

Supreme Court, U.S.

FILED

96 571 OCT 8 19%

No. QMMMMR OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

DAVID L. SMITH,

Petitioner,

Vv.

REGIONAL TRANSPORTATION DISTRICT, RICHARD

BAUMAN, ROBERT GARSIDE, RICHARD REYNOLDS,

ELLSWORTH WALKER, JAMES MISEK,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

DAVID L. SMITH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY-PETITIONER

QUESTIONS PRESENTED FOR REVIEW

Whether by issuing her orders imposing

immediately payable attorney fees and costs

of approximately $9,500.00, and other harsh

and unjustified sanctions, against Mr.

Smith, Judge Weinshienk, who is demonstrably

biased, engaged in judicial misconduct which

deprived Mr. Smith 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, in

violation of his Fifth Amendment right to

due process of law.

Whether Mr. Smith was therefore

entitled, as a matter of Fifth Amendment due

process of law, to have his appeal of this

judicial misconduct heard and decided by a

fair and impartial court of appeals.

Whether because of its previous orders

and judgments imposing harsh and unjustified

sanctions and discipline against Mr. Smith,

and its refusal to provide a statement of

reasons, addressing the issues raised and

briefed on appeal, for its order and

judgment affirming the orders issued by

Judge Weinshienk imposing immediately

payable attorney fees and costs of

approximately $9,500.00, and other harsh and

unjustified sanctions, against Mr. Smith,

the Tenth Circuit’s fairness and

impartiality might reasonably be questioned.

Whether the Tenth Circuit was therefore

obligated to disqualify itself from the case

pursuant to 28 U.S.C. § 455(a).

-i-

Whether by failing or refusing to

disqualify itself from the case, the Tenth

Circuit again deprived Mr. Smith 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, in violation of his Fifth Amendment

right to due process of law.

Whether the Tenth Circuit also so far

departed from the accepted and usual course

of judicial proceedings, or so far

sanctioned such procedure by Judge

Weinshienk, as to call for the exercise of

the Supreme Court’s power of supervision.

otic

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

TABLE OF CONTENTS “tr ae

TABLE OF AUTHORITIES a ae

OPINIONS BELOW .. +++ 2 « »

JURISDICTION . . © «© © «© @ «

CONSTITUTIONAL PROVISION

AND STATUTE INVOLVED IN

| Ee ee ee ee ee ee

STATEMENT OF THE CASE °

en oe 65/6 “& Ss 6&8 ©

CONCLUSION .. +. + «© © « »

Dn 6 “2 « » © » 6 © 6

-iii-

iii

10

12

Attached

TABLE OF AUTHORITIES

CASES

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

94 S.Ct. 1633, 40 L.Ed.2d 15

(1974) eae aie ee ee a

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

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

TANT: < caicardaua: oe ate

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

(10th Cir. 1993), cert. denied,

U.S. « 225 8.08. 83,

20 8.08.08 23: (2008)? OSS S Bee

In re: David L. Smith, 76 F.3d 335

(10th Cir. 1996) a oe Gee ee ek ee

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

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

(1972) a i eas ee ee ee

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

91 S.Ct. 499, 27 L.Ed.2da 532

(1971) (eS i ee ee ee

Offut v. United States, 348 U.S. >

#3 &.Ct. 13, 39 L.Ba. 22

(1954) a es ae a et eee ane

STATUTES

a0 DR. 6 See es a

2S U.8.6. 8 ees ee ES .

oe WeGeet 2 cee SS Se sew eo

10

11

11

11

11

28 U.S.C.

28 U.S.C.

Amend. 1,

Amend. 5,

Amend. 7,

ae? > ee ee

§ 1292(a) (1)

OTHER AUTHORITIES

U.S. Consti.

U.S. Consti.

U.S. Consti.

Fed. R. App. P. 46 .

Fed. R. Civ. P. 56

D.C.COLO.LR 83.6P.

-V-

No.

IN THE

SUP'REME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

DAVID L. SMITH,

Petitioner,

Vv.

REGIONAL TRANSPORTATION DISTRICT, RICHARD

BAUMAN, ROBERT GARSIDE, RICHARD REYNOLDS,

ELLSWORTH WALKER, JAMES MISEK,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

David L. Smith hereby files his

petition for a writ of certiorari:

OPINIONS BELOW |

Order issued by the United States Court |

of Appeals for the Tenth Circuit on November |

29, 1993 suspending Mr. Smith from the

weactice of law in the Tenth Circuit until

be Mays more than $50,000.00 in harsh and

unjustified sanctions imposed against him by

the Tenth Circuit and by the United States

District Court for the District of Colorado.

:

.

oe Ce RT Ty ne?

Order issued by the Tenth Circuit on

February 13, 1996 disbarring Mr. Smith from

the practice of law in the Tenth Circuit

based on his alleged violation of its

(November 29, 1993) suspension order.

Order issued by the Tenth Circuit on

February 16, 1996 affirming the order issued

by the United States District Court for the

District of Colorado on February 10, 1995

imposing “simultaneous and identical"

discipline against Mr. Smith as that imposed

against him by the Tenth Circuit in its

(November 29, 1993) suspension order.

Order and judgment issued by the Tenth

Circuit on July 23, 1996 affirming the

orders issued by United States District

Judge Zita L. Weinshienk imposing

immediately payable attorney fees and costs

of approximately $9,500.00, and other harsh

and unjustified sanctions, against Mr.

Smith.

Order issued by the Tenth Circuit on

August 29, 1996 denying Mr. Smith’s petition

for rehearing and suggestion for rehearing

en banc of its (July 23, 1996) order and

judgment.

JURISDICTION

28 U.S.C. § 1254 is the statute

believed to confer jurisdiction on the

Supreme Court of the United States to review

this case on certiorari.

CONSTITUTIONAL PROVISION AND STATUTE

INVOLVED IN THE CASE

The Fifth Amendment to the Constitution

of the United States provides:

- + + (NJor shall any person be

- + - deprived of life, liberty, or

property, without due process of law. .

28 U.S.C. § 455(a) provides:

Any justice, judge, or magistrate

of the United States shall disqualify

himself in any proceeding in which his

impartiality might reasonably be

questioned.

STATEMENT OF THE CASE

On November 29, 1993, the United States

Court of Appeals for the Tenth Circuit |

issued its order suspending Mr. Smith from

the practice of law in the Tenth Circuit

until he pays more than $50,000.00 in harsh

and unjustified sanctions imposed against

him by the Tenth Circuit and by the United

States District Court for the District of |

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

723 (10th Cir. 1993), cert. denied,

U.S. , 445 &.Ct. 53, 130 L. Bd. 2a em

(1994). Mr. Smith may apply for readmission

to the Tenth Circuit bar when he can

demonstrate that each sanction order of the

Tenth Circuit and the District Court has

been satisfied. Id.

On February 13, 1996, the Tenth Circuit

issued its order disbarring Mr. Smith from

the practice of law in the Tenth Circuit

based on his alleged violation of its

(November 29, 1993) suspension order. See

In re: David L. Smith, 76 F.3d 335 (10th

Cir. 1996). Mr. Smith’s petition for a writ

of certiorari contesting, on Fifth Amendment

due process grounds, the validity of this

disbarment order is currently pending in

this Court.' See In re: David L. Smith,

No. 96-212 (filed on August 6, 1996).

On February 16, 1996, the Tenth Circuit

issued its order affirming the disciplinary

order issued by the United States District

Court for the District of Colorado on

February 10, 1995 imposing "simultaneous and

identical" discipline against Mr. Smith as

that imposed against him by the Tenth

Circuit in its (November 29, 1993)

suspension order. Mr. Smith may apply for

readmission to the District Court bar when

he can demonstrate that each sanction order

of the Tenth Circuit and the District Court

has been satisfied. Mr. Smith’s petition

for a writ of certiorari contesting, on

'The Tenth Circuit disbarred Mr.

Smith from the practice of law in the

Tenth -Circuit without giving him the

evidentiary hearing required by Fed. R.

App. P. 46.

Fifth Amendment due process grounds, the

validity of the Tenth Circuit’s (February

16, 1996) order is currently pending in this

Court.’ See

SMITH, No. 96-244 (filed on August 13,

2996).

On July 23, 1996, the Tenth Circuit

issued its order and judgment affirming the

orders issued by United States District

Judge Zita L. Weinshienk imposing attorney

fees and costs of approximately $9,500.00,

and other harsh and unjustified sanctions,

against Mr. Smith, who raised and briefed

the following issues on appeal:

(1) Whether Judge Weinshienk’s

arbitrary, discriminatory and otherwise

improper application of the Rule 56

summary judgment procedure and standard

deprived Mr. Qualls of his First

Amendment right to petition the

government for a redress of grievances,

as well as his Seventh Amendment right

to a jury trial.

‘The Tenth Circuit refused to

reverse the District Court’s (February

10, 1995) disciplinary order indefinitely

suspending Mr. Smith from the practice of

law in the District Court, which was

issued on the basis of the Tenth

Circuit’s (November 29, 1993) order

indefinitely suspending Mr. Smith from

the practice of law in the Tenth Circuit,

even though the Tenth Circuit’s (November

29, 1993) order was issued without giving

Mr. Smith the evidentiary hearing

required by Fed. R. App. 46.

A a i a

(2) Whether Judge Weinshienk

issued her (December 10, 1992) order

without giving Mr. Smith prior notice

that attorney sanctions were being

considered, and without giving him the

opportunity to file a brief or

otherwise respond to her

unsubstantiated attacks on his

professional character, judgment and

reputation.

(3) Whether by participating (as a

. member of the recomposed District Court

disciplinary panel) in the (February 2,

1995) decision to deny Mr. Smith’s

| motion to continue the District Court

disciplinary panel’s (September 21,

1994) disciplinary order, including the

provision of the order staying the

Committee on Conduct’s (December 8,

1993) suspension of Mr. Smith from the

practice of law in the District Court,

nunc pro tunc to November 29, 1993, and

in the decision to issue the (February

10, 1995) disciplinary order imposing

“identical” discipline against Mr.

Smith as that imposed by the Tenth

Circuit disciplinary panel in its

(November 29, 1993) disciplinary order,

and suspending Mr. Smith from the

practice of law in the District Court

pursuant to D.C.COLO.LR 83.6P., Judge

Weinshienk gave effect to a local rule

which is unconstitutional on its face,

and as applied to Mr. Smith in the

District Court disciplinary action, and

to Mr. Smith and his clients in pending

and potential civil rights litigation,

including Qualls.

5

(4) Whether Judge Weinshienk gave

effect to this unconstitutional local

rule even though the procedure followed

by the Tenth Circuit disciplinary panel

was so lacking in notice or opportunity

to be heard that it denied due process

to Mr. Smith; even though imposition by

the recomposed District Court

disciplinary panel of the same

discipline as that imposed by the Tenth

Circuit disciplinary panel has resulted

in grave injustice to Mr. Smith; even

established against mr. Smith has been

held by the District Court to warrant

Substantially less discipline; and even

though Mr. Smith’s attorney, Mr. Figa,

has refused to represent him

competently in connection with the

Tenth Circuit and District Court

Gisciplinary actions.

(S) Whether by issuing her (May

15, 1995) orders in Qualls removing Mr.

Smith as Mr. Qualls’ attorney and

lifting the stay in his civil rights

case, Judge Weinshienk acted beyond the

scope of the recomposed District Court

disciplinary panel’s (February 10,

1995) disciplinary order, which did not

permit removal of Mr. Smith as attorney

for his clients in pending civil rights

litigation.

(6) Whether such permission would

constitute an impermissible ex post

facto or retroactive application of

D.C.COLO.LR 83.6P.; would impermissibly

interfere with Mr. Smith’s right to

represent his clients in accordance

with the terms of their

Eo

ete

ST AID ela AAA ae PR

contingent fee agreements; and would

impermissibly interfere with Mr.

Smith’s clients’ First Amendment rights

to pursue federal civil rights

litigation.

(7) Whether this was especially

true for Mr. Qualls, who was

financially unable to hire substitute

counsel, and was incompetent to proceed

pro se against experienced defense

counsel.

(8) Whether even if the District

Court disciplinary panel’s (February

10, 1995) disciplinary order permitted

Judge Weinshienk to remove Mr. Smith as

attorney for his clients in pending

federal civil rights litigation, this

could not be done without affording

procedural due process of law.

(9) Whether Mr. Qualls and Mr.

Smith were denied procedural due

process of 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 prior notice of the

contemplated removal of Mr. Smith as

Mr. Qualls’ attorney and without an

opportunity to file a brief.

(10) Whether Judge Weinshienk

grossly abused her discretion or

otherwise acted improperly or in a

manner detrimental to the fair and

impartial administration of justice by

issuing her (June 16, 1995) order

refusing to disqualify herself from the

case pursuant to 28 U.S.C. § 455(a).

-8-

(11) Whether by rubber-stamping

Magistrate Judge Abram’s sanction

order, Judge Weinshienk again grossly

abused her discretion or otherwise

acted improperly or in a manner

detrimental to the fair and impartial

administration of justice.

(12) Whether Mr. Qualls and Mr.

Smith were entitled to an immediate

appeal or writ of mandamus or

prohibition under the exception to the

final judgment rule established by the

Tenth Circuit in Vv .

(13) Whether Judge Weinshienk’s

orders were also appealable under the

"plain language" of 28 U.S.c. §

1292(a) (1), which permits immediate

appeals of rulings relating to

injunctions, including stays.

(14) Whether Judge Weinshienk’s

orders were appealable under 28 U.S.C.

§ 1291.

(15) Whether the contradiction

between the (September 29, 1995)

Stipulation of Dismissal With Prejudice

and the (September 29, 1995) Settlement

Agreement and Full and Final Release

evidenced a fraud on Mr. Smith and/or

the Court.

(16) Whether Judge Weinshienk’s

(October 10, 1995) Order of Dismissal]

is null and void.

(17) Whether 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

-9-

Weinshienk grossly abused her

discretion or otherwise acted

improperly or in a manner detrimental

to the fair and impartial

administration of justice.

ct NA. tr treating —

| (18) Whether Judge Weinshienk also

engaged in judicial misconduct pursuant

| to 28 U.S.C. § 372(Cc).

However, the Tenth Circuit refused to

provide a statement of reasons, addressing

the issues raised and briefed on appeal, for

its (June 12, 1996) order and judgment.

ARGUMENT

H

/ By issuing her orders imposing

immediately payable attorney fees and costs

| of approximately $9,500.00, and other harsh

and unjustified sanctions, against Mr.

| Smith, Judge Weinshienk, who is demonstrably

. biased, engaged in judicial misconduct which

deprived Mr. Smith 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, in

violation of his Fifth Amendment right to

due process of law.’ Mr. Smith was

therefore entitled, as a matter of Fifth

Amendment due process of law, to have his

appeal of this judicial misconduct heard and

decided by a fair and impartial court of

appeals. See Arnett v. Kennedy, 416 U.S.

-10-

‘The harsh and unjustified sanctions

imposed against Mr. Smith by Judge

Weinshienk were part of the alleged basis |

for suspending and disbarring Mr. Smith

from the practice of law in the Tenth

Circuit and in the District Court.

Li

134, 197, 94 S.Ct. 1633, 40 L.Ed.2da 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) (decisionmaker bias is

grounds for reversal); Mayberry v.

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

499, 27 L.Ed.2da 532 (1971) (Harlan, J.,

concurring) ("the appearance of evenhanded

justice... is at the core of due

process"); Goldberg v. Kel , 397 U.S. 254,

271, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)

(decisionmaker bias is grounds for

reversal); oO t v. United States, 348 U.S.

12, 75 8.Ct. ll, 99 L.Ed. 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). However, because of

its previous orders and judgments imposing

harsh and unjustified Sanctions and

discipline against mr. Smith, and its

refusal to provide a statement of reasons,

addressing the issues raised and briefed on

appeal, for its order and judgment affirming

the orders issued by Judge Weinshienk

imposing immediately payable attorney fees

and costs of approximately $9,500.00, ana

other harsh and unjustified sanctions,

against Mr. Smith, the Tenth Circuit’s

fairness and impartiality might reasonably

be questioned. id. The Tenth Circuit was

therefore obligated to disqualify itself

from the case pursuant to 28 U.S.C. §

455(a).

By failing or refusing to disqualify

itself from the case, the Tenth Circuit

again deprived Mr. Smith of his liberty ana

Property interests in his good name,

-li-

reputation, honor and integrity, and in his

right to practice law and make a living, in

violation of his Fifth Amendment right to

due process of law. The Tenth Circuit also

so far departed from the accepted and usual

course of judicial proceedings, or so far

sanctioned such procedure by Judge

Weinshienk, as to call for the exercise of

the Supreme Court’s power of supervision.

V. CONCLUSION

Mr. Smith requests this Court to grant

his petition for a writ of certiorari, and

such other and further relief as may be just

under the circumstances, including an order

declaring the orders imposing harsh and

unjustified sanctions and discipline against

him void ab initio.

Respectfully submitted,

SMITH

DAVID L.

1630 Welton Street, #300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY-PETITIONER

-12-

APPENDIX

Order issued by the United States

Court of Appeals for the Tenth

Circuit on November 29, 1993

suspending Mr. Smith from the

practice of law in the Tenth

Circuit until he pays more than

$50,000.00 in harsh and unjustified

sanctions imposed against him by

the Tenth Circuit and by the

United States District Court for

the District of Colorado ....-.s. -

Order issued by the Tenth Circuit

on February 13, 1996 disbarring

Mr. Smith from the practice of law

in the Tenth Circuit based on his

alleged violation of its (November

29, 1993) suspension order ...-.+ +s. +

Order issued by the Tenth Circuit

on February 16, 1996 affirming the

order issued by the United States

District Court for the District of

Colorado on February 10, 1995 imposing

"simultaneous and identical" discipline

against Mr. Smith as that imposed

against him by the Tenth Circuit

in its (November 29, 1993)

suspension order ...++ ++ + +s »

Order and judgment issued by the

Tenth Circuit on July 23, 1996

affirming the orders issued by

United States District Judge Zita

L. Weinshienk imposing immediately

payable attorney fees and costs of

approximately $9,500.00, and other

harsh and unjustified sanctions,

against Mr. Smith ey i he hn uy ay See BES

Mr. Smith’s petition for rehearing

and suggestion for rehearing en banc

(filed on August 5, 1996) of the Tenth

Circuit’s (July 23, 1996) order and

SAGO 2 se 2h 8 ee Se ea eS Se A-15

Order issued by the Tenth Circuit

on August 29, 1996 denying Mr. Smith’s

petition for rehearing and suggestion

for rehearing en banc of its (July

23, 1996) order and judgment... . A

23

United States Court of Appeals

for the Tenth Circuit

[November 29, 1993]

In re:

No. 93-631

David L. Smith

~_—" —

Order

Before Seymour, Chief Judge,

Baldock and Brorby, Circuit Judges

Respondent was ordered to show cause

why he should not be fined, disbarred or

otherwise disciplined for filing frivolous

appeals in numbers 93-1070 and 93-1139,

eHerre v. Denver, after the entry of this

court’s orders in Sandlin v. Canady (In re

Canady), No. 92-1169 (10th Cir. April 27,

1993) and Dunkin v. Louisiana-Pacific Corp.,

Nos. 92-1230 & 92-1381 (10th Cir. February

11, 1993), cert. denied, 114 S.Ct. 87

(October 4, 1993) (No. 92-1994) and for

filing a frivolous appeal in Casillan v.

Regional Transportation District, Nos. 92-

1009 & 92-1039 (10th Cir. January 15, 1993).

Respondent maintains the appeals were not

frivolous. We disagree.

The appeals were found to be frivolous

by the panels who decided them. We cannot

overrule the judgment of another panel of

this court. We are bound by the precedent

of prior panels absent en banc

reconsideration or a superseding contrary

decision by the Supreme Court. United

A-1

States v. Killion, No. 92-3130, 1993 WL

408150 (10th Cir. October 13, 1993); United

States v. Spedalieri, 910 F.2d 707, 710 n. 3

(10th Cir. 1990) (a three-judge panel cannot

overrule circuit precedent); United States

v. Berryhill, 880 F.2d 275, 277 (10th Gir.

1989), cert. denied, 493 U.S. 1049 (1990).

Respondent filed a petition for

certiorari in Dunkin. The question

presented for review was,

"Whether an order sanctioning

counsel currently of record is

immediately appealable under the

collateral order exception rule

established by this Court in Cohen v.

Beneficial Indus. Loan Corp., 337 U.S.

541, 69 S.Ct. 1221, 93 L.Ed. 1528

(1949).

Whether sanctions may be imposed

against counsel for filing appeals

warranted by existing law or by a good

faith argument for the extension,

modification or reversal of existing

law."

Petition for certiorari, attached to

appellant’s motion to recall and stay the

mandate filed July 12, 1993, in Dunkin v.

Louisiana-Pacific Corp., Nos. 92-1230 & 92-

1381 (10th Cir. February 11, 1993).

Certiorari was denied without comment.

Dunkin and Smith v. Louisiana-Pacific Corp.,

2 ae , 114 S.Ct. 87 (October 4,

1993) (No. 92-1994).

At oral argument, respondent admitted

that he has not paid any of the sanctions

that have been imposed on him by this court

or the district court. David L. Smith is

A-2

suspended from the practice of law before

this court until all sanctions are paid. He

may apply for reinstatement to our bar when

he can demonstrate that each sanction order

of this court or the district court has been

satisfied.

The clerk shall provide a copy of this

order to all courts before which Mr. Smith

has been admitted to practice.

Entered for the Court

Per Curiam

United States Court of Appeals

for the Tenth Circuit

) [February 13, 1996]

In re: )

) No. 93-631

David L. Smith )

)

Order

Before Seymour, Chief Judge,

Baldock and Brorby, Circuit Judges

On December 14, 1995, this panel

entered an order requiring respondent David

L. Smith to show cause why he should not be

disbarred for violating this court’s

November 1993 suspension order and for

practicing in this court without

authorization. On December 20, Mr. Smith

filed his response. In ruling

in this matter, the court has carefully

reviewed that response, as well as the other

pleadings filed to date in this disciplinary

action. The court has determined that Mr.

Smith’s transgressions warrant disbarment.

Mr. Smith’s name was referred for

attorney discipline after more than one

panel of this court determined he was filing

frivolous appeals and failing to pay court

ordered sanctions. Following briefing and

oral argument, this panel suspended Mr.

Smith from practicing in the Tenth Circuit.

In re Smith, 10 F.3d 723 (10th Cir.

1993) (per curiam), cert. denied, 115 S.Ct.

A-4

53 (1994). Approximately one year later,

Mr. Smith filed a request for reinstatement.

This panel denied that request. See Order

Denying Reinstatement, No. 93-631, (10th

Cir. July 18, 1995).

During the course of his suspension,

Mr. Smith continued to file briefs in this

court. In particular, the court has

identified four appeals in which Mr. Smith

appears to have drafted briefs on behalf of

the allegedly pro se appellants. Those

appeals are 94-1127, Qualls v. Regional

Transportation District, 94-1130, Dunkin v.

Louisiana~-Pacific Corporation, 94-1317,

Howard v. Mail-Well Envelope Company, and

95-1198, Seales v. Jefferson County School

District R-1. The December 14 show cause

order was the culmination of this court’s

efforts to have Mr. Smith explain his

involvement in these appeals.

In his response, Mr. Smith readily

admits, as he has before, that he wrote and

submitted the briefs in this court following

the issuance of our suspension order. He

maintains, however, that those submissions

are not in violation of this court’s order

because he signed two of the briefs in

question and included footnotes admitting

his involvement in the other two. He

suggests that these admissions absolve him

of any allegations of “ghost-writing." See

Vv m -, 868 F.

Supp. 1226, 1231-32 (D. Colo.

1994) (discussing elements of ghost-writing).

The argument follows that because he admits

his assistance, he cannot be subject to

Giscipline. Mr. Smith’s arguments

misperceive the nature of the problem.

a Saseenianiniaaa Aiea acetic ae rains iii,

Mr. Smith was advised, in very clear

terms, that he no longer had permission to

practice law in this court. He was told he

could not act as an attorney for his clients

or former clients. In writing and filing

briefs on behalf of otherwise pro se

litigants, he violated that order. This

breach existed regardless of whether he

signed the briefs or inserted footnotes.

Following the suspension order, Mr. Smith

was prohibited from helping his clients with

their briefs.

Contrary to assertions made in the

response, the court has been very careful to

distinguish between efforts made on behalf

of clients and Mr. Smith’s right to appeal

sanctions issues on his own behalf. The

briefs in the four cases identified asked

for relief which went far beyond Mr. Smith

as an individual. In 94-1127, for example,

the alleged "pro se" brief requests relief

in the form of reversing the district

court’s dismissal of certain claims and

remand for an expedited jury trial on the

merits. The front cover of that brief

asserts it is being submitted by Mr. Qualls,

not David Smith. We find it disingenuous

for Mr. Smith to urge that these briefs only

contained arguments personal to him.

Despite repeated warnings, Mr. Smith

has chosen not to heed the orders of this

court. He is, therefore, disbarred. His

name will be stricken from the list of

attorneys allowed to practice in this court.

In addition, in accordance with Fed. R. App.

P. 35(b), Mr. Smith’s suggestion for hearing

en banc was circulated to all judges of the

court in regular active service. No member

of the panel or the court has requested a

poll. Therefore, the suggestion for en banc

A-6

hearing is denied. The request for

evidentiary hearing is likewise denied.

Smith is referred to the office of the

Circuit Executive to file any desired

judicial misconduct complaint.

Entered for the Court

Per Curiam

Mr.

United States Court of Appeals

for the Tenth Circuit

) [February 16, 1996}

)

IN THE MATTER OF ) Nos. 95-1091 &

DAVID L. SMITH, ) 95-1119

) (D.C. No. 93-DP-28)

Attorney~-Appellant. ) (D. Colo.)

)

ORDER AND JUDGMENT*

Before Tacha, Logan, and Kelly,

Circuit Judges

After examining the briefs and

appellate record, this panel has determined

unanimously that oral argument would not

materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

‘This order and judgment is not

binding precedent, except under the

doctrine of law of the case, res

judicata, and collateral estoppel. The

court generally disfavors the citation of

orders and judgments; nevertheless, an

order and judgment may be cited under the

terms and conditions of 10th Cir. R.

36.3.

This appeal is from an order of the

three-judge disciplinary panel of the United

States District Court for the District of

Colorado. Appellant Smith appeals pro se on

numerous grounds relating to his suspension

from the practice of law before this court

and before the United States District Court

for the District of Colorado. Appellant

raises numerous grounds for his appeal

relating to the application of local rules

of the district court, the denial of due

process in the procedures of that court and

this court, and various allegations relating

to the proceedings that resulted in

suspension from the practice of law before

the district court and this court.

This disciplinary matter has a long

history in this court and in the district

court. In November of 1993, a three-judge

disciplinary panel of this court issued an

order suspending appellant from the practice

of law before the Tenth Circuit. In re

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

curiam), cert. denied, 115 S.Ct. 53 (1994).

Following his suspension before the Tenth

Circuit, the United States District Court

for the District of Colorado conducted

hearings, took evidence, and reviewed

records related to the actions underlying

the disciplinary proceedings. The arguments

that Mr. Smith makes again on appeal are,

in large measure, a renewed effort to bring

before this court matters that were

determined previously in the original

disciplinary proceeding. Appellant further

alleges on appeal that various district

court judges from the United States District

Court in Colorado have imposed unjust and

harsh sanctions against him. Finally,

appellant urges that his counsel Mr. Figa,

who has withdrawn from this case, failed to

A-9

represent appellant competently in

connection with all of the disciplinary

actions. We find no merit in any of the

arguments made on appeal. We approve the

disciplinary order issued by the district

court for substantially the reasons given in

its post-hearing order. This court recently

disbarred Mr. Smith for his failure to abide

by previously entered orders. In re Smith,

No. 93-631 (10th Cir. Feb. 13, 1996) (per

curiam). Continued attempts by this

appellant to further litigate matters

already determined by this court or

foreclosed by previous determinations could

result in the imposition of sanctions.

AFFIRMED.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Deanell Reece Tacha

Circuit Judge

»

'

10

United States Court of Appeals

for the Tenth Circuit

) [July 23, 1996]

JAMES EDWARD QUALLS, )

)

Plaintiff-Appellant, )

)

Vv. ) Nos. 95-1385

) 95-1459

) 95-1489

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

TRANSPORTATION ) (D. Colorado)

DISTRICT, )

)

Defendant~-Appellee, )

)

)

)

DAVID L. SMITH, )

)

Attorney~-Appellant. )

)

ORDER AND JUDGMENT®

‘This order and judgment is not

binding precedent, except under the

doctrine of law of the case, res

judicata, and collateral estoppel. The

court generally disfavors the citation of

orders and judgments; nevertheless, an

order and judgment may be cited under the

terms and conditions of 10th Cir. R.

36.3.

ESS SE

Before Brorby, Ebel and Henry,

Circuit Judges

After examining the briefs and

appellate record, this panel has determined

unanimously that oral argument would not

materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff James Edward Qualls and his

attorney David L. Smith brought four

appeals, Nos. 95-1246, 95-1385, 95-1459, and

95-1489, asserting the district court

committed a litany of errors in Qualls v.

Regional Transp. Dist., D. Colo. No. 91-Z=-

989. We have summarized Mr. Smith’s history

of misconduct before the United States

District Court for the District of Colorado,

the Tenth Circuit, and the United States

Supreme Court in Howard v. Mail-Well

Envelope Co., 10th Cir. No. 95-1428, and we

need not repeat that summary here. A Tenth

Circuit jurisdictional panel has (1)

dismissed appeal No. 95-1246; (2) dismissed

all of Mr. Smith’s contentions in appeal No.

95-1385 except his challenge to the district

court’s order imposing sanctions on him; (3)

consolidated appeal Nos. 95-1385, 95-1459,

and 95-1489. ualls v. Regiona ans

Dist., Nos. 95-1246, 95-1385, 95-1459, & 95=-

1489 (10th Cir. Apr. 12, 1996). Because Mr.

Qualls has settled his case on the district

court level and voluntarily dismissed his

appeals, we conclude all of Mr. Smith’s

contentions on appeal are moot except his

challenge to the district court’s May 15,

1995, order terminating his representation

of Mr. Qualls in light of the fact a

disciplinary panel had suspended him from

A-12

practicing law before the United States

District Court for the District of Colorado

and his challenge to the many district court

orders imposing sanctions against Mr. Smith

personally.

We have recently exercised jurisdiction

over an attorney’s appeal from a district

court’s order disqualifying her from

representing a party, even though she

brought her appeal after the parties had

dismissed the underlying case with prejudice

pursuant to a settlement agreement, Johnson

v. Board of County Comm’rs, 85 F.3d 489, 492

(10th Cir. 1996), and we see no reason to

apply a different rule when, as in this

case, the attorney-appellant challenges a

sanction award assessed against him

personally. Accordingly, provided Mr. Smith

filed a timely notice of appeal after the

entry of final judgment, we conclude we have

the authority to review the merits of his

appeal from the disqualification and

sanctions orders.

On October 10, 1995, the district court

entered its order dismissing the case with

prejudice pursuant to the settlement

agreement between Mr. Qualls and the

Regional Transportation District. Mr. Smith

subsequently filed a timely notice of

appeal--in fact, he filed several. We

therefore conclude we have jurisdiction to

review the disqualification and sanctions

orders. Having done so, we find no error

and affirm for substantially the same

reasons stated by the district court.

The disqualification and sanction

orders challenged in appeals No. 95-1385,

95-1459, and 95-1489 are AFFIRMED, and the

>

!

13

ee ne

remaining contentions in those appeals are

DISMISSED. The petitions for writ of

mandamus or prohibition in Nos. 95-1385, 95-

1459, and 95-1489 are DENIED.

Entered for the Court

Wade Brorby

United States Circuit

Judge

Ar a OE al 0 te Be Fo

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JAMES EDWARD QUALLS,

Plaintiff-Appellant-

Petitioner,

and,

DAVID L. SMITH,

Attorney~-Appellant-

Petitioner,

Vv.

REGIONAL

TRANSPORTATION

DISTRICT, et al.,

Defendants~Appellees-

Respondents,

and,

ZITA L. WEINSHIENK,

United States

District Judge,

Respondent.

{August 5, 1996}

Nos. 95-1246

95-1385

95-1459

95-1489

(D.C. No. 91-2-989)

(Dist. of Colo.)

PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

David L. Smith hereby files his

Petition for Rehearing and Suggestion for

Rehearing En Banc:

I. PETITION FOR REHEARING

On July 23, 1996, a three-judge hearing

panel of the United States Court of Appeals

for the Tenth Circuit (composed of Brorby,

Ebel and Henry, Circuit Judges) issued its

(unpublished) order and judgment (copy

attached hereto) affirming the

"disqualification and sanction orders"

challenged in appeals No. 95-1385, 95-1459,

and 95-1489 "for substantially the same

reasons stated by the district court."

However, no reasons were stated by the

district court for issuing the following

“disqualification and sanction orders":

1. Judge Weinshienk’s (December

10, 1992) order which severely

attacked, reprimanded and warned Mr.

Smith for seeking dismissal with

prejudice of Mr. Qualls’ 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, and which was issued without

giving Mr. Smith prior notice that

attorney sanctions were being

considered, and without giving him the

opportunity to file a brief or

otherwise respond to Judge Weinshienk’s

unsubstantiated attacks on his

professional character, judgment and

reputation;

2. Judge Weinshienk’s (February

2, 1995) order denying Mr. Smith’s

A-16

motion to continue her (September 21,

1994) disciplinary order, including the

provision of the order staying the

Committee on Conduct’s (December 8,

1993) suspension of Mr. Smith from the

practice of law in the District Court,

nunc pro tunc to November 29, 1993;

3. Judge Weinshienk’s (February

10, 1995) disciplinary order imposing

"identical" discipline against Mr.

Smith as that imposed against him by

the Tenth Circuit disciplinary panel in

its (November 29, 1993) disciplinary

order, and suspending him from the

practice of law in the District Court

pursuant to D.C.COLO.LR 83.6P.;

4. Judge Weinshienk’s (May 15,

1995) orders which removed Mr. Smith as

Mr. Qualls’ attorney and lifted the

stay in Mr. Qualls’ civil rights case,

and which were issued without prior

notice of the contemplated removal of

Mr. Smith as Mr. Qualls’ attorney and

without an opportunity for them to file

a brief;

5. Judge Weinshienk’s (July 31,

1995) order denying Mr. Qualls’ and Mr.

Smith’s motion for reconsideration of

Magistrate Judge 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-Appellee Regional

Transportation District by no later

than February 28, 1994;

A-17

6. Judge Weinshienk’s (August 10,

1995) order granting Defendants’ Motion

for Attorney Fees, determining that the

reasonable amount of attorney fees for

filing the interlocutory appeal in

Qualls was $1,187.50, and ordering Mr.

Smith to pay this amount to Defendants-

Appellees pursuant to the Tenth Circuit

disciplinary panel’s (July 18, 1995)

order.

By relying on the district court’s

nonexistent reasons for issuing the

foregoing “disqualification and sanction

orders," the hearing panel deprived Mr.

Smith of his First and Fifth Amendment right

to access to the Tenth Circuit to review

these orders pursuant to 28 U.S.C. § 1291.

The hearing panel dismissed as moot the

“remaining contentions" in appeals No. 95-

1385, 95-1459, and 95-1489. Apparently, the

hearing panel is referring to the following

“remaining contentions":

1. Judge Weinshienk’s arbitrary,

discriminatory and otherwise improper

application of the Rule 56 summary

judgment procedure and standard

deprived Mr. Qualls of his First

Amendment right to petition the

government for a redress of grievances,

as well as his Seventh Amendment right

to a jury trial;

2. Judge Weinshienk grossly

abused her discretion or otherwise

acted improperly or in a manner

detrimental to the fair and impartial

administration of justice by issuing

her (June 16, 1995) order refusing to

A-18

disqualify herself from the case

pursuant to 28 U.S.C. § 455(a);

3. Mr. Qualls and Mr. Smith were

entitled to an immediate appeal or writ

of mandamus or prohibition under the

exception to the final judgment rule

established by the Tenth Circuit in

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

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

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

4. Judge Weinshienk’s orders were

also appealable under the "plain

language" of 28 U.S.C. § 1292(a)(1),

which permits immediate appeals of

rulings relating to injunctions,

including stays;

5. Judge Weinshienk’s orders were

appealable under 28 U.S.C. § 1291;

6. The contradiction between the

(September 29, 1995) Stipulation of

Dismissal With Prejudice and the

(September 29, 1995) Settlement

Agreement and Full and Final Release

evidenced a fraud on Mr. Smith and/or

the Court;

7. Judge Weinshienk’s (October

10, 1995) Order of Dismissal is null

and void;

8. 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

A-19

to the fair and impartial

administration of justice;

9. Judge Weinshienk also engaged

in judicial misconduct pursuant to 28

U.S.C. § 372(c).

By ruling that these "remaining contentions"

are moot, the hearing panel deprived Mr.

Smith of his First and Fifth Amendment right

to access to the Tenth Circuit to review

these contentions pursuant to 28 U.S.C. §

1291.

The hearing panel denied the petitions

for a writ of mandamus or prohibition in

Nos. 95-1385, 95-1459, and 95-1489, but

failed to give its reasons (if any) for the

denial. However, Mr. Smith had an

indisputable right to a writ of mandamus or

prohibition under the Tenth Circuit’s

holding in Burkett v. Chandler, 505 F.2d 217

(10th Cir. 1974), cert. denied, 423 U.S.

876, 96 S.Ct. 149, 46 L.Ed.2d 110 (1975).

Therefore, in the absence of any reasons for

denying the petitions for a writ of mandamus

or prohibition, the hearing panel deprived

Mr. Smith of his First and Fifth Amendment

right to access to the Tenth Circuit to

review the actions of the district court

pursuant to 28 U.S.C. § 1651 and Fed. R.

App. P. 21.

II. SUGGESTION FOR REHEARING EN BANC

I express a belief based on a reasoned

and studied professional judgment that the

panel decision is contrary to the following

decision of the United States Court of

Appeals for the Tenth Circuit, and

consideration by the full court is necessary

A-20

to secure and maintain uniformity of

decisions in this court: Burkett v.

Chandler, 505 F.2d 217 (10th Cir. 1974),

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

L.Ed.2d 110 (1975).

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

relying on the district court’s nonexistent

reasons for issuing the "disqualification

and sanction orders" challenged in appeals

No. 95-1385, 95-1459, and 95-1489, the

hearing panel deprived Mr. Smith of his

First and Fifth Amendment right to access to

the Tenth Circuit to review these orders

pursuant to 28 U.S.C. § 1291;

(2) Whether by ruling that the “remaining

contentions" in these appeals are moot, the

hearing panel deprived Mr. Smith of his

First and Fifth Amendment right to access to

the Tenth Circuit to review these

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

(3) Whether Mr. Smith had an indisputable

right to a writ of mandamus or prohibition

under the Tenth Circuit’s holding in Burkett

v. Chandler, 505 F.2d 217 (10th Cir. 1974),

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

L.Ed.2da 110 (1975); (4) Whether in the

absence of any reasons for denying the

petitions for a writ of mandamus or

prohibition, the hearing panel deprived Mr.

Smith of his First and Fifth Amendment right

to access to the Tenth Circuit to review the

actions of the district court pursuant to 28

U.S.C. § 1651 and Fed. R. App. P. 21.

Dated this 5th day of August, 1996.

Respectfully submitted,

DAVID L. SMITH

1630 Welton Street

Suite 300

Denver, Colorado 80202

(303) 534-0153

ATTORNEY-APPELLANT-

PETITIONER

CERTIFICATE OF SERVICE

I hereby certify that on this 5th day

of August, 1996, true and correct copies of

the foregoing Petition for Rehearing and

Suggestion for Rehearing En Banc were placed

in the United States mail, postage prepaid,

addressed as follows:

Zita L. Weinshienk, United States

District Judge

United States Courthouse

1929 Stout Street

Denver, Colorado 80294

James Edward Qualls

5373 Blackhawk Way

Denver, Colorado 80239

Sally Zack Wheeler, Esq.

Rolf G. Asphaug, Esq.

Regional Transportation District

1600 Blake Street

Denver, Colorado 80202

A-22

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JAMES EDWARD QUALLS, {August 29, 1996]

Plaintiff-Appellant,

Nos. 95-1385

Vv.

95-1459

REGIONAL 95-1489

TRANSPORTATION

Defendant-Appellee,

)

)

)

)

)

)

)

DISTRICT, )

)

)

)

.

DAVID L. SMITH, )

)

)

Attorney-Appellant.

ORDER

Entered August 29, 1996

— she

Before BRORBY, EBEL AND HENRY,

Circuit Judges

: This matter comes on for consideration

: of attorney-appellant’s petition for

rehearing and suggestion for rehearing in

banc.

.

Upon consideration whereof, the

petition for rehearing is denied by the

panel that rendered the decision.

In accordance with Rule 35(b), Federal

Rules of Appellate Procedure, the suggestion

A-23

for rehearing in hanc was transmitted to all

of the judges of the court who are in

regular active service. No member of the

panel and no judge in regular active service

on the court having requested that the court

be polled on rehearing in banc, Rule 35,

Federal Rules of Appellate Procedure, the

suggestion for rehearing in banc is denied.

Entered for the Court

PATRICK FISHER, Clerk

By:

Deputy Clerk