Petition for Writ of Certiorari — Smith v. Supreme Court of Colorado
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PIL&D
(GRBS 27 Ary | 21998
No. OFFICE OF THE CLERK
1) Bupreme Court, ln
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1997
DAVID L. SMITH,
Petitioner,
_£
SUPREME COURT OF THE STATE OF COLORADO ,
ae
Respondent.
On Petition for a Writ of Certiorari
to the Supreme Court of the State of
Colorado
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF COLORADO
DAVID L. SMITH
1630 Welton Street, Suite 300
Denver, Colorado 80202
(303) 534-0153
PRO SE ATTORNEY-PETITIONER
QUESTIONS PRESENTED FOR REVIEW
Whether since the federal judiciary
has clearly demonstrated that it has no
intention of reviewing, rehearing,
reconsidering, amending, modifying,
vacating, or correcting the harsh and
unjustified sanctions and discipline
previously imposed against Mr. Smith by
the Tenth Circuit, the District Court and
their disciplinary panels, it is
impossible for him to demonstrate prior
to reinstatement that all sanctions
imposed against him by the Tenth Circuit
and the District Court have been
“satisfied” and that all federal
suspensions have been lifted, as required
by the Colorado Supreme Court in its
(March 3, 1997) opinion, or to file with
committee counsel the affidavit required
my €.R.C.9.: 241.22 tb):
Whether by issuing its order
summarily denying Mr. Smith’s verified
motion for order reinstating him to the
practice of law in the State of Colorado,
the Colorado Supreme Court arbitrarily
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, in
violation of his Fourteenth Amendment
right to due process of law.
-i-
Whether the Colorado Supreme Court
also arbitrarily deprived Mr. Smith of
his First and Fourteenth Amendment right
to access to the courts to petition the
government for a redress of grievances.
Whether since no other attorney has
been suspended indefinitely from the
practice of law in the State of Colorado
based on his financial inability to pay
more than $50,000.00 in harsh and
unjustified sanctions previously imposed
against him by the federal courts, the
Colorado Supreme Court arbitrarily
deprived Mr. Smith of his Fourteenth
Amendment right to the equal protection
of the laws.
Whether since no legal or factual
basis existed for the Colorado Supreme
Court’s order denying Mr. Smith’s
verified motion for order reinstating him
to the practice of law in the State of
Colorado, it was reasonably questionable
whether the Colorado Supreme Court could
be a fair and impartial decision-maker in
this disciplinary case against him, in
violation of his Fourteenth Amendment
right to due process of law.
-il-
Whether by issuing its order
summarily denying Mr. Smith’s petition
for rehearing of its order summarily
denying his verified motion for order
reinstating him to the practice of law in
the State of Colorado, the Colorado
Supreme Court again deprived him of his
First and Fourteenth Amendment rights.
“Lii-
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW........ i
chase On CORNERS bees ws sees EW ew eS SS iv
Amis UF RCO SOME 5 6s PE Mee ees owes Vv
CITATIONS OF OPINIONS AND ORDERS ...... x
St te ete th er crea wre ae ere ar epee x1
CONSTITUTIONAL PROVISIONS
LVGasv ee? AO SR RA SR Hh oe wee eee es x11
StAtaewms Ce Tee CABS «eke Pi ce eee eee 1
POS 66.5 ee RAS ee bw hee ee 7
AECOMUER 6 HRS REA ORR REEL ORO EER: A-1
TABLE OF AUTHORITIES
CASES
Arnett v. Kennedy, 416 U.S. 134,
94 §.Ct. 1633, 40 L.Ed.2d 15
CR TIES va cles Aha aw ee ae 8 oe od alee 10
Baird v. State Bar of Arizona,
Ot Ud RS Be ree
oT: 2 Ee Gee COTA Wiis 6% 6 we 8 O's 10
Bloom v. Illinois, 391 U.S. 194,
e868 s.ct. 1477, 20 L.Ed.2d 522
Sl OGG) ai asa a ae ee Ca oe a. 3
Bodie v. Connecticut, 401 U.S. 371,
$1 8.ct. 780, 26 L.&8d.2d 113
OT 8 86 Coa tied s Cea a ak ae oe a 10
Burkett v. Chandler, 505 F.2d 217
(10 Cir.), cert. denied, 423 U.S.
876, 96 S.Ct. 149, 46 L.Ed.2d 110
CEOS bs a Chae ao 4 ewe ERC Oe hee eee 8
California Motor Transport Co. v.
Trucking Unltd., 404 U.S. 508,
92 S.Ct. 609, 30 L.Ed.2d 642
CAD T ES: ik vctcecs Cab eRe sb eee 8 wih aK 9
Cleveland v. Board of Education v.
Loudermill, 470 U.S. 494, 105 S.Ct.
L467, 84 1.86.20 O26 TESSS) 0 ovis shen es 2
Crumpacker v. Indiana Supreme Court
Disciplinary Commission, 470 U.S.
SO7S ULPOO) kkk ek ee hea ee Kees 9
Douglas v. California, 372 U.S. 353,
83 S.Ct. 814, 9 L.Ed.2d 811
CTOG RE os 0s aS eae We ee a we ee ee 10
Evans v. Moseley, 455 F.2d 1084
(30 Chex BOTs FV ire ce 9
Goldberg v. Kelly, 397 U.S. 254,
90 §.Ct. 1011, 25 L.Ed.2d 287
CLD7G). onda 600 bce ee Rees OOo ee eee 11
Gompers v. Bucks Stove & Range Co.,
221 U.S. 419, 3s S:Ge. 4067. oe wea.
I3t CESLas: cw cle eee eee ex owes 3, 8
Harbolt v. Alldredge, 464 F.2d 1243,
(10™ Cir.), cert. denied, 409 U.S.
1025, 93 S.Ct. 473, 34 L.Ed.2d 319
(LOTOR ace ci bc ERR Sea TR eck ee 9
Harper v. Virginia State Board of
Elections, 383 U.S. 663, 86 S.Ct.
1079, 16. sR. 2a: SOP Taeeed vaiesiae Cbs 10
Honda Motor Co., Ltd. v. Oberg,
$12 U.S. 415, 1134 @.Ct. 2331,
129 L.EG.20 Bae Teer wa vee har ce we 11
In re David L. Smith, 10 F.3d 723
(10™ Cir.), cert. denied, 513 U.S.
$07, 115 8.Ct. Sa, see 4s BG.26 is
C2 ODE?) ccd Kk OR Aree Owe ere autaweee en 3
In re Ruffalo, 390 U.S. 544,
88 S.Ct. 1222, 20 L.Ed.2d 117
(LOGE) 2... 0c ewes es cde wees rae news 3, 2, 8
International Union v. Bagwell,
psa UU. 8. Gai; 228 8.Ct. .2852,
129 L.Ed.2d Ss WD a a ee Che ew a wee a, 39
In the Matter of David L. Smith,
Disciplinary Action No. 93-DP-28
(D. Colo.), cert. denied, U.s.
eet &. Ct. 2e8, 336 L.. 84.20
ak Sa a bo oe oth ee cee Kk Se Kc 4,:s
Johnson v. Board of County
Commissioners, 85 F.2d 489
EE aude oe UNGER” 3 EN ie, SAO 9 ee, Pe Sa aE g
Liteky v. United States, 510 U.S.
seo; e246 8.08. 1267;-i27 F.EG.2e6
SFG SSE hee be a ws oA oe ek & Ws we 11
Logan v. Zimmerman Brush Co.,
aa U.S. 422;>° 202 BCt. 1166,
Ta ee ee ee ee a ee a ek 0 hk 2
Maggio v. Zeitz, 333 U.S. 56,
68 S.Ct. 401, 92 L.Ed. 476
CAPES ace 8 hae ek oe Eb he ile wie 6 ao HS epoe
Mattox v. Disciplinary Panel of the
United States District Court for the
District of Colorado, 758 F.2d 1362
CR One BE FA Go SEALE who'd ween ea Wee 9
-vVvii-
Mayberry v. Pennsylvania, 400 U.S.
455, 91 S.Ct. 499, 27 L.Ed.2d 532
ESBS) 6 o'c 08 ie Cb ED he ER cies ee a8 10
McKnight v. General Motors
Corporation, 511 U.S. 659, 114 S.Ct.
1626, i2e bb. BG. 20 Ghe Cae er bcc rcveess 1
Morrissey v. Brewer, 408 U.S. 471,
92 §.Ct. 2593, 33 L.Bd.26a 4664
CS PIAS 6 wee CA a ee eee ea 4 68 6 10
NAACP v. Button, 371 U.S. 415,
83 s8.ct. 326, 3 L.&d.2da 405
SEDGE see cate ae ia BSE Ore a Se ea ee ae )
Offut v. United States, 348 U.S. 1l,
i Se Wee, Se © es ee Pe a) eee 11
People v. Smith, 937 P.2d 724
(Colo.), cert. denied, U.Ss.
, 216 8.Ct. 158, 139 L.&a.2d
Lee CARRERE Ca eee ee ake ea kha eee 5
Razatos v. Colorado Supreme Court,
746 F.2d 1429 (10™ Cir.), cert.
Geniad, 473: OAc 2S | Cheese) 6 kee ciesee 8
Schware v. Board of Bar Examiners,
353 U.8. Zanker Sco Teas
bec ees Oe a od ale ee bia ee 10
Silver v. Cormier, 529 F.2d 161,
POs ys” Oa OREO TR Si, 5S aD Ere 9
Talamini v. Allstate Insurance Co.,
£70: U.S, See Ree wwe cab koe 08 8s oe 9
-vilii-
Tinsley v. Mitchell, 804 F.2d 1254,
Pe EP) Ne ee eee eee 8
United States v. Rylander, 460 U.S.
tga, 403 83.Ct. 1846, 75 2.8d.2¢
BE SEE ik OR CARS Oe Bay RECURS Ob ee 8
Wisconsin v. Constantineau, 400 U.S.
€33,: 9 8.Ct. 307, 27: &.84a.24 818
ee ee ea ae Rk eae ee an ee ahh ee oie wie 2
OTHER AUTHORITIES
MGs Si SSS SS ee i oki Se. 9. 2a
Pea ss SRE ORCA oa ek wee > a
Pes ea Rhee I S.C a bk ea ee elbwes 2
me. SEY, QS Conets.:,.. 8, 8, 49,34
a ck ee ik ko Wake ee ee ea ee 1
Gs EOE: Aan SE eae ee ek ig ue gas 6
ken eae WF 6. ee GU RAD eh a Se hg 6 ool ion eo 6
mete ss, We REE: wd bese ow biwee ao alee bibe 6
~1x-
a
CITATIONS OF OPINIONS AND ORDERS
In re David L. Smith, 10 F.3d 723 (10th
Cir.), cert. denied, 513 U.S. 807, 115
S.Ct. 53, 130 L.Ed.2d 13 (1994).
In the Matter of David L. Smith,
Disciplinary Action No. 93-DP-28 (D.
Colo.), cert. denied, U.S. ; ae
S.Ct. 359, 136 L.Ed.2d 251 (1996).
ii tac iTS B35 A i i ERY Ca hee
People v. Smith, 937 P.2d 724 (Colo.),
cert. denied, U.S. a? ow es
158, 139 L.Ed.2d 103 (1997).
People v. Smith, Case No. 96SA306 (Colo.)
(Order of Court dated February 11, 1998).
People v. Smith, Case No. S96SA306 (Colo.)
(Order of Court dated February 19, 1998).
JURISDICTION
The orders sought to be reviewed
were entered on February 11, 1998 and
February 19, 1998. Rehearing of the
Colorado Supreme Court’s (February il,
1998) order summarily denying Mr. Smith’s
motion for order reinstating him to the
practice of law in the State of Colorado
Was summarily denied by order dated
February 19, 1998.
The statutory provision believed to
confer jurisdiction on the Supreme Court
of the United States to review on writ of
certiorari the Colorado Supreme Court’s
orders of February 11, 1998 and February
19, 1998 is 28 U.S.C. § 1257.
-xi-
CONSTITUTIONAL PROVISIONS
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 XIV, Section 1 of the
Constitution of the United States
provides in relevant part as follows:
[N]or shall any State deprive
any person of life, liberty, or
property, without due process of
law; nor deny to any person within
its jurisdiction the equal
protection of the laws.
Ve re ay
Pro se attorney-petitioner David L.
Smith ("Mr. Smith”) hereby files his
Petition for a Writ of Certiorari to the
Colorado Supreme Court:
I. STATEMENT OF THE CASE
On November 29, 1993, the three-
judge disciplinary panel of the United
States Court of Appeals for the Tenth
Circuit (composed of Stephanie K.
Seymour, Chief Judge, and Bobby R.
Baldock and Wade Brorby, Circuit Judges)
issued its order indefinitely suspending
Mr. Smith from the practice of law in the
Tenth Circuit for filing alleged
“frivolous” appeals in four federal civil
rights cases,* and for his failure to
Mr. Smith denies that the appeals
he filed from the United States District
Court for the District of Colorado to the
Tenth Circuit were “frivolous.” See
McKnight v. General Motors Corporation,
511 U.S. 659, 114 S.Ct. 1826, 128 L.Ed.2d
655 (1994) (per curiam) (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). By
refusing to hold a hearing, at which Mr.
Smith would have the opportunity to
present expert testimony and other
relevant evidence on this issue--a
blatant and egregious violation of Fed.
R. App. P. 46--the Tenth Circuit
disciplinary panel deprived him of his
liberty and property interests in his
comply with court orders to pay harsh and
unjustified sanctions of more than
$50,000.00 previously imposed against him
by the Tenth Circuit and the District
Court,” all in alleged violation of the
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. See Wisconsin v. Constantineau,
400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d
515 (1971); Logan v. Zimmerman Brush Co.,
4535 U.8. 422, i102 8.Ct. 2406) 7h B.eeeo
265 (1982); Cleveland v. Board of
Education v. Loudermill, 470 U.S. 494,
105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).
*Because the disciplinary sanctions
imposed against Mr. Smith (i.e.,
indefinite suspension from the practice
of law in the Tenth Circuit) were
“punitive, to vindicate the authority of
the court,” rather than “remedial, and
for the benefit of the complainant,” they
were criminal rather than civil in
nature; and he was therefore entitled to
a full criminal process (including his =
Sixth Amendment right to a jury trial)
before being convicted and punished by
the Tenth Circuit disciplinary panel for
his failure to comply with court orders
to pay harsh and unjustified sanctions of
more than $50,000.00 previously imposed
against him by the Tenth Circuit and the
2
ABA Code of Professional Conduct.? See
In re David L. Smith, 10 F.3d 723 (10
Cir.), cert. denied, 513 U.S. 807, 115
S.Ct. $3, 130 L.8d.2d 13 (1994). Mr.
Smith may apply for reinstatement to the
Tenth Circuit bar when he can demonstrate
that each sanction order of the Tenth
Circuit and the District Court has been
“satisfied.”* See id.
District Court. See Gompers v. Bucks
Stove & Range Co., 221 U.S. 418, 31 S.Ct.
492, 55 L.Ed. 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. Illinois, 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). Further, as a matter of equal
protection of the laws, Mr. Smith should
not have fewer constitutional rights
merely because he was convicted and
punished in attorney disciplinary
proceedings rather than in criminal
contempt proceedings.
"Mr. Smith denies that he violated
the ABA Code of Professional Conduct.
‘As a part of his efforts to
persuade the Tenth Circuit disciplinary
panel to review, reconsider and correct
its (November 29, 1993) suspension order,
3
On February 10, 1995, the three-
judge disciplinary panel of the United
States District Court for the District of
Colorado (composed of United States
District Judges Zita L. Weinshienk,
Edward W. Nottingham and Daniel B. Sparr)
issued its order indefinitely suspending
Mr. Smith from the practice of law in the
District Court based on the Tenth Circuit
disciplinary panel’s (November 29, 1993)
suspension order.” See In the Matter of
Mr. Smith submitted affidavits and other
evidentiary materials showing that he was
financially unable to pay all or any part
of the more than $50,000.00 in harsh and
unjustified sanctions previously imposed
against him by the Tenth Circuit and the
District Court. At the time of the
submission of these evidentiary
materials, Mr. Smith had a negative net a
worth of more than $360,000.00.
Currently, Mr. Smith has a negative net
worth of more than $400,000.00. Due to
his indefinite suspension from the
practice of law in the federal and state
courts, Mr. Smith has no income from
which his negative net worth could be i
reduced, or from which harsh and
unjustified sanctions of more than
$50,000.00 could be paid. 3
"By automatically enforcing the
Tenth Circuit disciplinary panel’s
(November 29, 1993) suspension order,
4 3
ee
David L. Smith, Disciplinary Action No.
93-DP-28 (D. Colo.), cert. denied,
U.S. , ear Ce: 359, 136 L.Ed.2d 251
(1996). Mr. Smith may apply for
reinstatement to the District Court bar
“when the United States Court of Appeals
for the Tenth Circuit lifts its
suspension of Mr. Smith.” See id.
On March 3, 1997, the Colorado
Supreme Court issued its opinion
(effective June 6, 1997) Suspending Mr.
Smith from the Practice of law in the
State of Colorado for nine months based
on the Tenth Circuit disciplinary Panel’s
(November 29, 1993) Suspension order.
See People vy. Smith, 937 P.2d 724
(Colo.), cert. denied, tm F ,
118 S.Ct. 158, 139 L.Ed.2d 103 (1997).
Prior to reinstatement, Mr. Smith must
demonstrate that all sanctions imposed
against him by the Tenth Circuit and the
District Court have been “satisfied” and
that all federal Suspensions have been
lifted.° See id.
which is transparently invalid, the
District Court disciplinary panel
violated Mr. Smith’s Fifth Amendment
right to due Process of law. See In re
Ruffalo, 390 U.S. 544, 88 S.ct. kane, 20
L.Ed.2d 117 (1968).
‘Mr. Smith is therefore being
subjected to an indefinite suspension
5
On February 11, 1998, the Colorado
Supreme Court issued its order summarily
denying Mr. Smith’s verified motion for
order reinstating him to the practice of
law in the State of Colorado, despite the
fact that it is impossible for him to
comply with the Colorado Supreme Court’s
(March 3, 1997) opinion or to file with
committee counsel the affidavit required
by C.R.C.P. 241.22(b), which provides
that:
[A] lawyer who has been
suspended for a period of one year
or less shall be reinstated by order
of the Supreme Court, provided the
lawyer files with the Committee
Counsel within 30 days prior to the
expiration of the period of
suspension an affidavit stating that
the lawyer has fully complied with
the order of suspension and with all
from the practice of law in the State of
Colorado, in violation of C.R.C.P.
241.7(2), which provides that:
Suspension is the temporary
suspension by the Supreme Court of a
lawyer’s license to practice law in
this state, subject to readmission
as provided by C.R.C.P. 241.22(a).
Suspension shall be tor a definite
period of time not to exceed three
years.
6
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a iia ca
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q
ON AE et OE
applicable provisions of this
Chapter.
On February 19, 1998, the Colorado
Supreme Court issued its order summarily
denying Mr. Smith’s petition for
rehearing of its order summarily denying
his verified motion for order reinstating
him to the practice of law in the State
of Colorado.
II. ARGUMENT
In his verified motion for order
reinstating him to the practice of law in
the State of Colorado, Mr. Smith argued
that since the federal judiciary has
clearly demonstrated that it has no
intention of reviewing, rehearing,
reconsidering, amending, modifying,
vacating, or correcting the harsh and
unjustified sanctions and discipline
previously imposed against him by the
Tenth Circuit, the District Court and
their disciplinary panels, it is
impossible for him to demonstrate prior
to reinstatement that all Sanctions
imposed against him by the Tenth Circuit
and the District Court have been
“satisfied” and that all federal
suspensions have been lifted, as required
by the Colorado Supreme Court in its
(March 3, 1997) Opinion, or to file with
committee counsel the affidavit required
oy C.R.C.P. 241.22(b). See Maggio v.
7
Zeitz, 333 U.8. 56, 66 S.Ct. 401, 92
L.Ed. 476 (1948) (impossibility of
performance constitutes a defense to
contempt); United States v. Rylander, 460
U.S. 7352, 103. 6.Ct.: 1548, 75 b&b. BG.2G 321
(1983) (the court must consider present
inability to comply with the order in
question); Tinsley v. Mitchell, 804 F.2d
1254, i256: 46.C... Cir... 1986). (citing
Maggio v. Zeitz). Therefore, by issuing
its order summarily denying Mr. Smith’s
verified motion for order reinstating him
to the practice of law in the State of
Colorado, the Colorado Supreme Court
arbitrarily 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, in violation of his Fourteenth
Amendment right to due process of law.
See Gompers v. Bucks Stove & Range Co.,
221 U.8. 416,. 3% @.Ct.: 402; 30 &.84:. 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.
Illinois, 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); Burkett v.
Chandler, 505 F.2d 217 (10™ Cir.), cert.
denied, 423 U.S. 876, 96 S.Ct. 149, 46
L.Ed.2d 110 (1975); Razatos v. Colorado
Supreme Court, 746 F.2d 1429 (10™ Cir.),
cert. denied, 471 U.S. 1016 (1985);
8
| )
MRT ae
Mattox v. Disciplinary Panel of the
United States District Court for the
District of Colorado, 758 F.2d 1362 (10™
Cir. 1985); Johnson v. Board of County
Commissioners, 85 F.2d 489 (10 Cir.
1996). The Colorado Supreme Court also
arbitrarily deprived Mr. Smith of his
First and Fourteenth Amendment right to
access to the courts 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) ("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"); California Motor Transport
Co. v. Trucking Unltd., 404 U.S. 508, 92
S.Ct. 609, 30 L.Ed.2d 642 (1972);
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,
929 F.2d 161, 163 (10 Cir. 1976), citing
Harbolt v. Alldredge, 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). Since no other attorney
has been suspended indefinitely from the
practice of law in the State of Colorado
based on his financial inability to pay
harsh and unjustified sanctions of more
than $50,000.00 previously imposed
against him by the federal courts, the
9
Colorado Supreme Court arbitrarily
deprived Mr. Smith of his Fourteenth
Amendment right to the equal protection
of the laws. See Schware v. Board of Bar
Examiners, 353 U.8. 232, 77 S.Ct... 752,-.4
L.Ed.2d 796 (1957); Douglas v.
California, 372:0).8: 263, G2: 6.0. 814,° 9
L.Ed.2d 811 (1963); Harper v. Virginia
State Board of Elections, 383 U.S. 663,
86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) ;
Baird v. State Bar of Arizona, 401 U.S.
i, 91. 8.Ce. Tee, 27 4.36.20 639 (1971);
Bodie v. Connecticut, 401 U.S. 371, 91
S.Ct. 780, 28 L.Ed.2d 113 (1971). Since
no legal or factual basis existed for the
Colorado Supreme Court’s order denying
Mr. Smith’s verified motion for order
reinstating him to the practice of law in
the State of Colorado, it was reasonably
questionable whether the Colorado Supreme
Court could be a fair and impartial
decision-maker in this disciplinary case
against him, in violation of his
Fourteenth Amendment right to due process
of law. See Arnett v. Kennedy, 416 U.S.
134, 197, 94 8.Ct. 1633, 640 1.84.26 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 8.Ct. 499, 27 L.84.2€a 332 (1971)
10
(Harlan, J., concurring) ("the appearance
of evenhanded justice ... is at the
core of due process") ; Goldberg v. Kelly,
397 U.S. 254, 271, 90 8.Ct. 1011, 25
L.Ed.2d 287 (1970) (decision-maker bias
is grounds for reversal); Offut v. United
states, 348 U.S. 11, 75 8.Ct. 11, 99
L.Ed. 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); Liteky v. United States, 510
U.S. 540, 114 §.Ct. 1147, 127 L.Ed.2d 474
(1994). Finally, by issuing its order
summarily denying Mr. Smith’s petition
for rehearing of its order summarily
denying his verified motion for order
reinstating him to the practice of law in
the State of Colorado, the Colorado
Supreme Court again deprived him of his
First and Fourteenth Amendment rights.
See Honda Motor Co., Ltd. v. Oberg, 512
U.S. 415, 114 §.Ct. 2331, 129 L.Ed.2d 336
(1994). Under these circumstances, the
Colorado Supreme Court has decided an
important federal question in a way that
conflicts with the decision of a United
States court of appeals, and has decided
an important question of federal law that
has not been, but should be, settled by
this Court, or has decided an important
federal question in a way that conflicts
with relevant decisions of this Court.
Mr. Smith therefore requests this Court
11
to grant his Petition for a Writ of
Certiorari to the Colorado Supreme Court.
Respectfully submitted,
DAVID L. SMITH
1630 Welton Street, Suite 300
Denver, Colorado 80202
(303) 534-0153
PRO SE ATTORNEY-PETITIONER
12
evttgntn OY D DOMIN Mg nd?
6 RE AT IIL NN GATT O08 Md
APPENDIX
In re David L. Smith, 10 F.3d 723
(10th Cir.), cert. denied, 513 U.S.
607, 115 $.Ct. 53,130 L.84aé.24¢d 13
$3 | | ee Se eee ee Pe ee es ee ee A-3
In the Matter of David L. Smith,
Disciplinary Action No. 93-DP-28
(D. Colo.), cert. denied,
U.S. , gar @ies wee, ae
Rip cae eee ee Pe bs oh bo <a wes ao bo ose A-6
People v. Smith, 937 P.2d 724
(Colo.), cert. denied, uU.s.
-<$38:8.66. i506, i206 6.86.26
Be Ree ae 6 oa ha 6 ee eee ea 8 ee A-8
People v. Smith, Case No. 96SA306
(Colo.) (Respondent’s Verified
Motion for Order Reinstating Him
to the Practice of Law in the State
of Colorado Despite the Fact that
it is Impossible for Him to Comply
with the Colorado Supreme Court’s
(March 3, 1997) Opinion or to File
With Committee Counsel the Affidavit
Required by C.R.C.P. 241.22(b),
Gatee Febtuaty 4, 19968) sos ccc wecce A-30
People v. Smith, Case No. 96SA306
(Colo.) (Order of Court dated
yg ge Ss ee ere a ee ee A-45
People v. Smith, Case No. 96SA306
(Colo.) (Petition for Rehearing
dated February 17, 1998) ...........
People v. Smith, Case No. 96SA306
(Colo.) (Order of Court dated
February 19, 1998) ......------eeees
PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
IN RE: )
) No. 93-631
DAVID L. SMITH )
Order
Filed November 29, 1993
Before SEYMOUR, 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, DeHerrera 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. -
A-3
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 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 Cir. 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. 341, 69 $.Ct. i224, Fo Like:
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."
A-4
ow
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
Core. ; U.8. Pee Be Re eg,
(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 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
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Disciplinary Action No. 93-DP-28
IN THE MATTER OF DAVID L. SMITH
DISCIPLINARY ORDER
On February 2, 1995, this matter was
heard before the Disciplinary Panel of
this Court. After hearing arguments and
statements of counsel, reviewing all
transcripts, exhibits and other documents
in this matter, and considering carefully
the issues, it is
ORDERED that identical discipline
will be imposed by the United States
District Court as was imposed by the
United States Court of Appeals for the
Tenth Circuit. It is
FURTHER ORDERED that David L. Smith
is suspended as a member of the Bar of
this Court. It is
FURTHER ORDERED that when the United
States Court of Appeals for the Tenth
Circuit lifts its suspension of Mr.
Smith, he shall be required to apply for
reinstatement in accordance with
D.C.COLO.LR 83.6N. of the Local Rules of
Practice of this court. It is
A-6
FURTHER ORDERED that David L. Smith
shall forward his certificate of
admission to the Clerk of the Court
within ten days from the date of this
Order and that he shall in no way hold
himself out as an attorney admitted to
practice in this court be it by use of
letterhead, business cards, advertisement
or any other manner.
Dated at Denver, Colorado this 10™
day of February, 1995.
BY THE DISCIPLINARY PANEL OF
THE COURT:
ZITA L. WEINSHIENK, Judge
Edward W. Nottingham, Judge
Daniel B. Sparr, Judge
SUPREME COURT OF COLORADO
No. 96SA306 March 3, 1997
THE PEOPLE OF THE STATE OF COLORADO,
Complainant,
ws
DAVID LEE SMITH,
Attorney-Respondent.
Original Proceeding in Discipline
EN BANC ATTORNEY SUSPENDED
Linda Donnelly, Disciplinary Counsel
James C. Coyle, Assistant Disciplinary
Counsel
Denver, Colorado
Attorneys for Complainant
David Lee Smith, Pro Se
Denver, Colorado
PER CURIAM
This is a reciprocal discipline
proceeding arising from the respondent’s
discipline by the United States Court of
Appeals for the Tenth Circuit (court of
appeals). The court of appeals suspended
the respondent from practicing before it
for an indefinite period, with
reinstatement contingent on the
respondent’s paying sanctions imposed
against him by the court of appeals and
the United States District Court for the
District of Colorado (district court). A
hearing panel of the supreme court
grievance committee approved the findings
and recommendation of a hearing board
that the respondent be suspended from the
practice of law for nine months; that
prior to reinstatement he demonstrate
that all sanctions imposed by the court
of appeals and the district court have
been satisfied that all federal
suspensions have been lifted; and in the
event that the respondent meets those
conditions prior to the expiration of the
nine-month suspension, that this court
give favorable consideration to the
respondent’s immediate reinstatement.
The respondent has filed exceptions to
the panel’s action. We accept the
hearing panel’s and hearing board’s
recommendations.
The respondent was admitted to
practice law in Colorado in 1975. Based
on the respondent’s testimony and the
A-9
record, which included the record of the
proceedings in the court of appeals, the
hearing board concluded that the
following had been proven by clear and
convincing evidence.
On September 15, 1993, the court of
appeals issued an order to the respondent
to
show cause in writing why he should
not be fined, disbarred or otherwise
disciplined for his actions in
numbers 93-1070 and 93-1139,
Deherrera v. Denver, [7 F.3d 1044
(10™ Cir. 1993)] after the entry of
this court’s orders in Sandlin v.
Canady (In re Canady), [993 F.2d
1551 (10 Cir. 1993)] and Dunkin v.
Loulsiana-Pacific Corporation, Nos.
92-1230 & 92-1381 (10 Cir. February
11, 1993), [cert. denied, 114 S.Ct.
87 (1993)]. The Panel in Deherrera
referred this matter to this
Discipline Panel because the appeal
and petition for writ of mandamus
were frivolous. In Casillan v.
Regional Transportation District,
[986 F.2d 1426 (10 Cir. 1993)], the .
court also found the appeal to be
frivolous. Filing a frivolous
appeal is a ground for discipline
because it is a violation of 10™
Caf. Ri. 46.2.
The crux of the Deherrera matter was
that the respondent had filed a number of
interlocutory appeals to the court of
appeals on the issue of the validity of
sanctions imposed against him by the
district court in that case and earlier
cases. The law in the Tenth Circuit is
that an order imposing sanctions on a
lawyer is not a final appealable
decision, but is interlocutory so an
immediate appeal is not permitted. See
G.J.B. & Assocs. V. Singleton, 913 F.2d
824, 827 (10 Cir. 1990). The
respondent’s twenty-two page answer to
the show cause order was filed on October
4, 1993. In it, he asked “to be heard in
person in defense and in mitigation with
respect to the charges being brought
against iim... 6%
The court of appeals set the matter
down for a hearing on November 12, 1993,
allowing fifteen minutes for oral
argument, and directed the respondent to
file a supplemental response to the order
to show cause addressing why he should
not be disciplined for filing a frivolous
appeal in Casillan, as referred to in the
original show cause order. (The
respondent’s October 4 response only
alluded to the DeHerrera case.)
On October 22, the respondent filed
a motion to vacate the November 12
hearing and asked for additional time to
file the supplemental response. He also
A-11
requested an “evidentiary hearing or
designation of a special master for
purposes of conducting an evidentiary
hearing” (emphasis added), merely stating
that his “case in defense and in
mitigation will require presentation of
extensive evidentiary materials,
including expert testimony ... .” The
respondent did not elaborate further on
the nature of the evidence he wished to
present, nor did he make an offer of
proof. He filed a thirty-one page
supplemental response to the order to
show cause on November 2, 1993, together
with another request for an evidentiary
hearing without, however, any indication
of the nature of the evidence he wished
to present. The court of appeals
accepted the supplemental response but
denied the respondent’s motion to vacate
the November 12 hearing and his request
for an evidentiary hearing.
Oral argument was held as scheduled
on November 12, and on November 29, 1993,
the court of appeals panel issued its
order recognizing that it was bound by
the findings of the other court of
appeals panels in Deherrera and Casillan
that the respondent’s appeals in those
cases were frivolous, and noting that
“[a]t oral argument, respondent admitted
that he had not paid any of the sanctions
that have been imposed on him by this
court or the district court.” In re
Smith, 10 F.3d 723, 724 (10 Cir. 1993).
A-12
Accordingly, the court of appeals ordered
that respondent “is 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.” Id.
zt.
We usually impose the same
discipline that was imposed in the other
jurisdiction in a reciprocal discipline
proceeding unless certain exceptions
exist. People v. Meyer, 908 P.2d 123,
124 (Colo. 1995). C.R.C.P. 241.17(d)
provides in relevant part:
At the conclusion of the
proceedings brought under this Rule,
the hearing panel shall refer the
matter to the Supreme Court with the
recommendation that the same
discipline be imposed by the Supreme
Court as was imposed by the foreign
jurisdiction unless it is determined
by the hearing panel that:
(1) The procedure followed in
the foreign jurisdiction did not
comport with the requirements of due
process of law;
(2) The proof upon which the
foreign jurisdiction based its
determination of misconduct is so
A-13
infirm that the Supreme Court
cannot, consistent with its duty,
accept as final the determination of
the foreign jurisdiction;
(3) The imposition by the
Supreme Court of the same discipline
as was imposed in the foreign
jurisdiction would result in grave
injustice; or
(4) The misconduct proved
warrants that a substantially
different form of discipline be
imposed by the Supreme Court.
The respondent challenges the
reciprocal application of the court of
appeals order on all four of the above
grounds as well as others. In his brief,
he raises ten issues that we will address
in order.
A.
In his first issue, the respondent
claims that the procedure followed in the
court of appeals was deficient because he
was entitled to a full criminal
process (including his Sixth
Amendment right to a jury trial)
before being convicted and punished
by the Tenth Circuit for failing to
pay harsh and unjustified sanctions
of more than $50,000.00 previously
imposed against him by the Tenth
Circuit and by the U.S. District
Court.
A-14
In the first place, we do not read
the court of appeals order as
disciplining the respondent for failure
to pay the sanctions imposed against him.
The respondent was suspended for filing
frivolous appeals, as set forth in the
show cause order. After admitting at
oral argument that he had not paid any of
the sanctions imposed against him,
however, the court of appeals made
satisfaction of the sanctions he had been
previously ordered to pay as a condition
for reinstatement. See Smith, 10 F.3d at
724. One of the respondent’s premises is
therefore false.
Second, the complainant points out
that the respondent did not raise this
precise argument in either the court of
appeals or before the hearing board and
that it is therefore waived. We
nevertheless elect to address it in the
context of whether the respondent’s due
process rights were violated because of
the absence of a jury in the court of
appeals discipline proceedings, for the
purpose of C.R.C.P. 241.17(d) (1).
By its own terms, the Sixth
Amendment right to trial by jury applies
only to criminal proceedings: “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 ....” U.S. Const.
- A-15
amend. VI. “A lawyer discipline
proceeding is not a criminal proceeding
: .“ People v. Morley, 725 P.2d 510,
514 (Colo. 1986) (citation omitted); see
also People v. Varallo, 913 P.2d1, 3
(Colo.) (same), cert. denied, 117 S. Ct.
80 (1996). The respondent has referred
us to no authority in Colorado or
elsewhere that the Sixth Amendment right
to trial by jury applies to lawyer
discipline proceedings, and we are aware
of none. In fact, other jurisdictions
have held that federal and state
constitutional provisions regarding the
right to trial by jury do not apply to
lawyer discipline proceedings. See,
e.g., In re Cornelius, 520 P.2d 76, 83
(Alaska 1974); Attorney Grievance Comm’n
v. Kerpelman, 420 A.2d 940, 947 (Md.
1980); Mississippi State Bar v. Young,
509 So. 2d 210, 212-13 (Miss. 1987). Our
own Rules of Procedure Regarding Lawyer
Discipline and Disability Proceedings,
C.R.C.P. 241.1 to 241.6, do not authorize
trial by jury. The fact that the
respondent was not afforded a jury trial
in the court of appeals did not violate
either the Sixth Amendment or due
process.
B.
The respondent’s next issue is that
the procedure employed by the Tenth
Circuit in the disciplinary proceedings
did not comport with the requirements of
A-16
due process. In particular, the
respondent claims that he did not receive
fair notice of the charges against him
and he was not given an adequate
opportunity to be heard in his defense.
First, the respondent asserts that
the court of appeals’ show cause order
did not adequately apprise him of the
charges. Integral to his argument is the
respondent’s position that he was
disciplined for failing to pay the
sanctions imposed against him and not for
filing frivolous appeals. Again,
however, we reject the respondent’s
characterization of the court of appeals
action. The order suspending him
indefinitely was for filing frivolous
appeals in the two cases mentioned in the
show cause order and not for failing to
pay the sanctions imposed against him.
See Smith, 10 F.3d at 724.
Second, the respondent complains
that he was given only ten days in which
to file his supplemental response to the
part of the show cause order pertaining
to Casillan. Implicit in this argument
is that the original September 15, 1993
order to show cause did not encompass the
Casillan appeal as well as the Deherrera
appeal. See People v. Emeson, 638 P.2d
293, 294 (Colo. 1981) (noting that In re
Ruffalo, 390 U.S. 544 (1968) “clearly
states that the consideration of charges
not made in the formal complaint
A-17
constitutes a violation of the
respondent’s rights to procedural due
process of law.”) A fair reading of the
September 15 show cause order, however,
set out in section (I) above, discloses
that the respondent was to answer to the
charges that the appeals in both
Deherrera and Casillan were frivolous.
We therefore conclude that the show cause
order did not violate the respondent’s
due process rights and there was not
error in permitting the respondent less
than twenty days to supplement his
response to address the Casillan appeal.
The respondent also alleges that he
was entitled to an evidentiary hearing
before the court of appeals disciplinary
panel at which he could “present expert
testimony and other relevant evidence
." The court of appeals allowed the
respondent fifteen minutes of oral
argument to respond to its show cause
order. The respondent cites Fed. R. App.
P. 46 to support his claim that he was
entitled to an evidentiary hearing before
the disciplinary panel:
(b) Suspension or Disbarment.
When it is shown to the court that
any member of its bar .. . has been
guilty of conduct unbecoming a
member of the bar of the court, the
member will be subject to suspension
or disbarment by the court. The
member shall be afforded an
A-18
opportunity to show cause, within
such time as the court shall
prescribe, why the member should not
be suspended or disbarred. Upon the
member’s response to the rule to
show cause, and after hearing, if
requested, .. . the court shall
enter an appropriate order.
(c) Disciplinary Power of the
Court Over Attorneys. A court of
appeals may, after reasonable notice
and an opportunity to show cause to
the contrary, and after hearing, if
requested, take any appropriate
disciplinary action against any
attorney who practices before it for
conduct unbecoming a member of the
bar or for failure to comply with
these rules or any rule of the
court.
Fed. R. App. P. 46(b), (c). This rule
does not grant the respondent the right
to the kind of evidentiary hearing that
he requested. The respondent was given
the right te argue in person why he
should not be disciplined. In the first
place, his responses to the order to show
cause did not identify any reasons for
the testimony of any witnesses, much less
expert witnesses. Insofar as the
respondent’s expert evidence and
testimony was intended to be relevant to
whether the respondent’s appeals in
Deherrera and Casillan were frivolous or
A-19
not, that issue had already been
determined by the court of appeals panels
deciding those respective appeals, and
the disciplinary panel was without the
power to reverse or overrule the findings
of the other panels in those cases. See
Smith, 10 F.3d at 724. The same analysis
resolves the appropriateness of the
sanctions the respondent was ordered to
pay by the court of appeals and the
district court. Expert testimony was
either irrelevant to the issues before
the disciplinary panel or unnecessary
because the disciplinary panel was
certainly capable of determining and
applying the law to the respondent’s case
without it.
Finally, the respondent advances no
relevant or valid reasons why he was
denied his right to be heard before a
fair and impartial decisionmaker. The
questions before the court of appeals
disciplinary panel were limited to
whether the respondent had filed
frivolous appeals in Deherrera and
Casillan, and if so, what the appropriate
disciplinary sanction should be. The
legality and validity of the monetary
sanctions previously imposed had been
conclusively determined in the previous
cases and could not be collaterally
attacked in the disciplinary proceeding.
See Smith, 10 F.3d at 724.
2-20
We find, as did the hearing board,
that the Tenth Circuit disciplinary
proceedings did not violate due process.
Cc.
The respondent next contends that
the proof upon which the court of appeals
based its determination of misconduct was
so infirm that this court cannot,
consistent with its duty, accept as final
the court of appeals’ determination. See
CRC... 262-32 C3 C23
In this exception, the respondent
focuses on the insufficiency of the proof
to show that he willfully failed to pay
the sanctions imposed against him and to
rebut the defenses presented in his
response and supplemental response to the
order to show cause. These defenses
included that he had been sanctioned for
making arguments either warranted under
existing law or good faith attempts to
extend, modify, or reverse existing law;
and that his failure to pay the sanctions
imposed against him was not grounds for
discipline, especially since he is unable
to pay them.
As we said above, the court of
appeals disciplinary panel was foreclosed
from redetermining whether the
respondent’s appeals in Deherrera and
Casillan were frivolous. See Smith, 10
F.3d at 724. The respondent was not
A-21
disciplined for failing to pay the
sanctions imposed against him. His
defenses were not relevant to the issues
before the panel, and we conclude that
the proof relied on by the Tenth Circuit
was not so infirm to justify this court’s
disregarding the disciplinary panel’s
action.
a
D.
Moving to the reciprocal discipline
proceedings below, the respondent charges
that these proceedings did not comport
with due process of law, and that the
assistant disciplinary counsel engaged in
prosecutorial misconduct.
First, the respondent argues that
the assistant disciplinary counsel had no
right to take the respondent’s deposition
in the reciprocal discipline proceeding
because requiring the respondent to be
deposed violated his Fifth Amendment
right against self-incrimination.
In Spevack v. Klein, 385 U.S. 511
(1967), the Supreme Court held that the
Fifth Amendment privilege against self-
incrimination afforded protection to the
accused lawyer in a disciplinary
proceeding. The lawyer in Spevack was
deprived of his rights under the Fifth
Amendment when he was disbarred solely
because he refused to testify ina
judicial investigation into his alleged
A-22
improper solicitation of clients. 385
U.S. at 514. We noted in People v.
Robnett, 859 P.2d 872, 875 (Colo. 1993),
that Spevack did not specifically hold,
however, that attorney disciplinary
proceedings were criminal in nature for
purposes of the Fifth Amendment privilege
against self-incrimination. Accordingly,
most courts and commentators after
Spevack have tended to read the decision
narrowly, concluding that disciplinary
proceedings are not themselves criminal
in nature for purposes of the privilege,
and have “limit[ed] the scope of the
privilege in disciplinary proceedings to
only those disclosures that could be used
in a criminal prosecution, or that could
lead to other evidence that might be so
used.” II ABA/BNA Lawyers’ Manual on
Professional Conduct at 101:2402 (1984) ;
see generally Andrea G. Nadel,
Annotation, Extent and Determination of
Attorney’s Right or Privilege Against
Self-Incrimination in Disbarment or Other
Disciplinary Proceedings - Post-Spevack
Cases, 30 A.L.R.4™ 243 (1984 & Supp.
1992).
Consistent with this view of
Spevack, the California Supreme Court
stated:
An attorney in a State Bar
disciplinary matter does not possess
the same immunity from being called
to testify as a criminal defendant;
A-23
the attorney “may be called upon to
testify but may decline to answer
questions on the ground that his
testimony would tend to incriminate
him.” (Black v. State Bar (1972) 7
Cal. 3d 676, 688, 103 Cal. Rptr.
288, 499 P.2d 968.)
In re Utz, 769 P.2d 417, 422 (Cal. 1989).
Analogously, the hearing board could
properly require the respondent to attend
his own deposition, at which time he
could decline to answer specific
questions if invocation of the privilege
against self-incrimination was
appropriate. The presiding officer of
the hearing board was acting within his
proper sphere when he ruled on the
assistant disciplinary counsel’s motions.
See C.R.C.P. 241.14(b). Moreover, from
the record before us, the respondent did
not raise his privilege against self-
incrimination in the Tenth Circuit
disciplinary proceedings, nor is it
obvious why the charges against him for
filing frivolous appeals raised the fear
of criminal prosecution. Requiring the
respondent to attend his own deposition
was not an error.
The respondent’s second contention
is that the assistant disciplinary
counsel was guilty of prosecutorial
misconduct by asking for sanctions in the
event the respondent refused to be
A-24
deposed. This objection is baseless and
will not be addressed further.
The respondent’s final claim is that
the board denied him due process when it
did not permit the many witnesses,
including expert witnesses, to testify at
the respondent’s hearing. The respondent
was not able to justify the calling of
these witnesses by means of an offer of
proof that they would testify to matters
relevant to the reciprocal proceeding.
We find that the hearing board quite
properly refused to allow the respondent
to call these witnesses.
E.
Because the respondent’s reciprocal
disciplinary proceeding was not a
criminal proceeding for purposes of the
Sixth Amendment right to a speedy trial,
that right was not violated in this case.
See In re Briggs, 502 N.E.2d 879, 886
(Ind. 1987).
ee.
In his next issue, the respondent
argues that the proof before the hearing
board was so infirm that this court
cannot accept it. While this is a basis
for not accepting the determinations of
another jurisdiction as to lawyer
misconduct and the appropriate sanction,
C.R.C.P. 241.17(d) (2), it does not apply
to the findings and recommendations of a
A-25
hearing board and the supreme court
grievance committee hearing panel to this
court. Through this exception the
respondent attempts to raise the same
objections he has already raised, and we
have rejected, with regard to the Tenth
Circuit disciplinary panel proceedings.
This contention is without merit.
G.
The respondent’s following two
exceptions do not require extended
discussion. First, the hearing panel
accepted the board’s recommendation that
the respondent be suspended from the
practice of law for nine months; that
prior to reinstatement he demonstrate
that all sanctions imposed by the court
of appeals and the district court have
been satisfied and that all federal
suspensions have been lifted; and in the
event that the respondent meets those
conditions prior to the expiration of the
nine-month suspension, that this court
give favorable consideration to the
respondent’s immediate reinstatement.
Contrary to the respondent’s claim, this
recommendation does not violate C.R.C.P.
241.17(d) because it does not recommend a
harsher discipline against the respondent
than the Tenth Circuit’s indefinite
Ssuspenion. The definite period of
suspension, in this case nine months, is
mandated by requirement that all
suspension be of definite length in
A-26
Colorado, not to exceed three years. See
C.R.C.P. 241.7(2). The board’s provision
that the court give favorable
consideration to the respondent’s
immediate reinstatement if he meets the
conditions imposed by the Tenth Circuit,
prevents the recommendation from even
theoretically violating C.R.C.P.
241.17(d).
Second, the respondent asserts that
his due process rights were violated
because one of the members of the hearing
panel that reviewed the board’s action
was the presiding officer of the board.
We rejected the identical contention in
People v. Fitzgibbons, 909 P.2d 1098,
1100-01 (Colo. 1996).
H.
According to the respondent,
imposition by the supreme court of the
same discipline against him as was
imposed by the Tenth Circuit would result
in a grave injustice. See ¢.2.C.?.
241.17(d) (3). The respondent advances no
reasons for this proposition, except that
under Colorado law a suspension from the
practice of law may not be for an
indefinite period. This is probably
inconsistent with his argument that the
sanction recommended by the hearing board
is invalid because it is harsher than
that imposed by the Tenth Circuit. In
any event, the hearing board’s
A-27
recommendation that the respondent’s
nine-month suspension be lifted in the
event he satisfies the federal sanctions
and the Tenth Circuit suspension has been
lifted does not violate C.R.C.P. 241.7 at
all.
In conclusion, the respondent
alleges that “[t]Jhe misconduct proved
warrants that a substantially different
form of discipline be imposed by the
Supreme Court.” C.R.C.P. 241.17(d) (4).
It is true that we cannot impose an
indefinite suspension on the respondent
under our rules. The hearing board
attempted therefore to fashion a sanction
authorized by our rules and which has an
effect similar if not identical to the
Sanctions imposed by the court of
appeals.
We note that in People v. Hartman,
744 P.2d 482 (Colo. 1987), we suspended a
lawyer for six months in a reciprocal
discipline matter for filing frivolous
pleadings in three cases in the United
States Tax Court. We conclude that the
hearing board’s recommendation is a
reasonable solution to the problem of the
minor incompatibility between federal and
State disciplinary procedures. We
decline the respondent’s invitation to
retry the reasonableness of the monetary
Sanctions imposed by the district court
and the court of appeals in cases other
than the one before us. Accordingly, we
A-28
accept the hearing panel’s and hearing
board’s recommendations.
Iil.
It is hereby ordered that David Lee
Smith be suspended from the practice of
law for nine months, effective thirty
days after the opinion is issued. It is
also ordered that the respondent pay the
costs of these proceedings in the amount
of $1,863.43 within ninety days from the
date on this opinion. It is further
ordered that prior to reinstatement the
respondent demonstrate that all sanctions
imposed by the court of appeals and the
district court have been satisfied and
that all federal suspensions have been
lifted; and in the event that the
respondent meets these conditions prior
to the expiration of the nine-month
suspension, the respondent may petition
this court for immediate reinstatement.
A-29
SUPREME COURT, STATE OF COLORADO
CASE NO. 96SA306
RECIPROCAL PROCEEDING IN DISCIPLINE,
GC 94B-80
RESPONDENT’S VERIFIED MOTION FOR ORDER
REINSTATING HIM TO THE PRACTICE OF LAW IN
THE STATE OF COLORADO DESPITE THE FACT
THAT IT IS IMPOSSIBLE FOR HIM TO COMPLY
WITH THE COLORADO SUPREME COURT’S (MARCH
3, 1997) OPINION OR TO FILE WITH
COMMITTEE COUNSEL THE AFFIDAVIT REQUIRED
BY C.R.C.P. 241.22 (b)
THE PEOPLE OF THE STATE OF COLORADO,
Complainant,
Vv.
DAVID LEE SMITH,
Respondent.
COMES NOW the respondent, David Lee
Smith (“Mr. Smith”), and files his
Verified Motion for Order Reinstating Him
to the Practice of Law in the State of
Colorado Despite the Fact that it is
Impossible for Him to Comply With the
Colorado Supreme Court’s (March 3, 1997)
Opinion or to File With Committee Counsel
the Affidavit Required by C.R.C.P.
A-30
241.22(b); and as grounds therefor,
states as follows:
1. On November 29, 1993, the three-
judge disciplinary panel of the United
States Court of Appeals for the Tenth
Circuit (composed of Chief Tenth Circuit
Judge Stephanie K. Seymour and Tenth
Circuit Judges Bobby R. Baldock and Wade
Brorby) issued its order indefinitely
suspending Mr. Smith from the practice of
law in the Tenth Circuit for filing
alleged “frivolous” appeals of sanction
orders issued by the United States
District Court for the District of
Colorado to the Tenth Circuit in four
federal civil rights cases, and for his
failure to comply with court orders to
pay harsh and unjustified sanctions of
more than $50,000.00 previously imposed
against him by the Tenth Circuit and the
District Court. See In re David L.
Smith, 10 F.3d 723 (10™ Cir.), cert.
denied, 513 U.S. 807, 115 S.Ct. 53, 130
L.Ed.2d 13 (1994). Mr. Smith may apply
for reinstatement to the Tenth Circuit
bar when he can demonstrate that each
sanction order of the Tenth Circuit and
the District Court has been “satisfied.”
See id. On January 3, 1994, the Tenth
Circuit and its disciplinary panel issued
their order denying Mr. Smith’s petition
for rehearing and suggestion for
rehearing en banc of the Tenth Circuit
disciplinary panel’s (November 29, 1993)
suspension order without addressing the
A-31
arguments raised by him therein or giving
any reasons for their decision. On July
18, 1995, the Tenth Circuit disciplinary
panel issued its order denying Mr.
Smith’s motion to vacate its (November
29, 1993) suspension order without
addressing the arguments raised by him
therein or giving any reasons for its
decision. Mr. Smith’s petition for
rehearing and suggestion for rehearing en
banc (filed on August 1, 1995) of the
Tenth Circuit disciplinary panel’s (July
18, 1995) order is still pending before
the Tenth Circuit disciplinary panel. As
a part of his efforts to persuade the
Tenth Circuit and its disciplinary panel
to review, reconsider and correct the
Tenth Circuit disciplinary panel’s
(November 29, 1993) suspension order, Mr.
Smith submitted affidavits and other
evidentiary materials showing that he is
financially unable to pay all or any part
of the more than $50,000.00 in harsh and
unjustified sanctions previously imposed
against him by the Tenth Circuit and the
District Court.’
A-32
"At the time of the submission of
these evidentiary materials, Mr. Smith
had a negative net worth of more than
$360,000.00. Currently, Mr. Smith has a
negative net worth of more than
$400,000.00. Due to his indefinite
suspension from the practice of law in
the federal and state courts, Mr. Smith
has no income from which his negative net
worth could be reduced.
2. On January 17, 1995, United
States District Judge Edward W.
Nottingham issued his memorandum opinion
and order refusing to dismiss Dunkin v.
Louisiana-Pacific Corporation, et al.,
Civil Action No. 92-N-243 (D. Colo.) on
the terms and conditions agreed to by the
parties and their attorneys in their
settlement and stipulation of dismissal,
including their agreement that the harsh
and unjustified sanctions of more than
$25,000.00 previously imposed against Mr.
Smith by Judge Nottingham would be
vacated and/or dismissed with prejudice
nunc pro tunc to the date of their
imposition. On June 12, 1996, the Tenth
Circuit issued its order and judgment
affirming Judge Nottingham’s (January 17,
1995) memorandum opinion and order
without addressing the arguments made by
Mr. Smith in his opening brief or giving
any reasons for its decision. On August
19, 1996, Judge Nottingham issued his
order requiring Mr. Smith “to pay the
sanctions imposed in this case within ten
days of the date of this order.” This
order was issued despite the fact that
these sanctions had already been settled
by the parties and their attorneys in a
legally binding settlement agreement in
which Mr. Smith had been released from
payment of these sanctions to the
opposing parties as a part of the
consideration for the settlement of the
underlying case. On July 28, 1997, the
Tenth Circuit issued its order and
A-33
judgment affirming Judge Nottingham’ s
(August 19, 1996) order without
addressing the arguments made by Mr.
Smith in his opening brief or giving any
reasons for its decision. On September
24, 1997, the Tenth Circuit issued its
order denying Mr. Smith’s petition for
rehearing and suggestion for rehearing en
banc of its (July 28, 1997) order and
judgment without addressing the arguments
raised by him therein or giving any
reasons for its decision.
3. On January 30, 1995, United
States District Judge Lewis T. Babcock
issued his order refusing to dismiss
DeHerrera v. City and County of Denver,
et al., Civil Action No. 90-B-2260 (D.
Colo.) on the terms and conditions agreed
to by the parties and their attorneys in
their settlement and stipulation of
dismissal, including their agreement that
the harsh and unjustified sanctions of
more than $10,000.00 previously imposed
against Mr. Smith by Judge Babcock would
be vacated and/or dismissed with
prejudice nunc pro tunc to the date of
their imposition. On June 12, 1996, the
Tenth Circuit issued its order and
judgment affirming Judge Babcock’s
(January 30, 1995) order without
addressing the arguments raised by Mr.
Smith in his opening brief or giving any
reasons for its decision. On August 8,
1996, the Tenth Circuit issued its order
denying Mr. Smith’s petition for
A-34
rehearing and suggestion for rehearing en
banc of its (June 12, 1996) order and
judgment without addressing the arguments
raised by him therein or acpi any
reasons for its decision.
4. On February 10, 1995, the three-
judge disciplinary panel of the United
States District Court for the District of
Colorado (composed of United States
District Judges Zita L. Weinshienk,
Edward W. Nottingham and Daniel B. Sparr)
issued its order indefinitely suspending
Mr. Smith from the practice of law in the
District Court based on the Tenth Circuit
disciplinary panel’s (November 29, 1993)
suspension order. On February 16, 1996,
the Tenth Circuit issued its order
denying Mr. Smith’s appeal of the
District Court disciplinary panel’s
(February 10, 1995) suspension order
without addressing the arguments raised
by him in his opening brief or giving any
reasons for its decision. On April 2,
1996, the Tenth Circuit issued its order
denying Mr. Smith’s petition for
rehearing and suggestion for rehearing en
banc of its (February 16, 1996) order
affirming the District Court disciplinary
panel’s (February 10, 1995) suspension
order without addressing the arguments
raised by him therein or giving any
reasons for its decision.
5. On December 7, 1995, Mr. Smith
filed an independent action in the United
States District Court for the District of
A-35
Colorado, naming the Regional
Transportation District (“RTD”) and three
attorneys associated with the RTD as
defendants, and seeking relief from final
judgments, orders and/or proceedings in
Casillan v. Regional Transportation
District, et al., Civil Action No. 90-S-
1722 (D. Colo.) and In re David L. Smith,
Disciplinary Action No. 93-DP-28 (D.
Colo.).° Specifically, Mr. Smith
®The three attorneys (Patricia A.
Coan, Sally Z. Wheeler, and Lynne L.
Hicks) named in the lawsuit were the
personal beneficiaries of more than
$15,000.00 in harsh and unjustified
sanctions previously imposed against Mr.
Smith in Casillan. Mr. Smith’s inability
to pay these harsh and unjustified
sanctions was part of the alleged basis
for the discipline (i.e., indefinite
suspension from the practice of law in
the District Court) imposed against him
in In re David L. Smith.
On December 19, 1995, Ms. Coan (now
employed as a United States Magistrate
Judge) wrote a letter to the Office of
Disciplinary Counsel of the Colorado
Supreme Court, alleging inter alia that
by filing his (December 7, 1995) lawsuit,
Mr. Smith had violated Rule 241.25(e) of
the Colorado Rules of Procedure Regarding
requested an order or judgment declaring
that the final judgments, orders and/or
proceedings in Casillan and in re David
L. Smith were null and void ab initio;
declaring that after McKnight v. General
Motors Corp., 511 U.S. 659, 114 S.Ct.
1826, 128 L.Ed.2d 655 (1994) (per
curiam), it was no longer equitable that
the final judgments, orders and/or
proceedings in Casillan and In re David
L. Smith should have prospective
application; and granting an injunction
prohibiting United States District Judge
Daniel B. Sparr from proceeding in excess
of the jurisdiction delegated to him by -
the hearing panel of the United States
Court of Appeals for the Tenth Circuit in
its (January 3, 1993) order remanding
Casillan to him “for a determination of
reasonable attorney fees for each
defendant for defending this appeal,” and
from proceeding in excess of the
jurisdiction delegated to him by Rule
105A of the Local Rules of Practice of
the United States District Court for the
District of Colorado. Mr. Smith
requested his costs and attorney fees
(including expert witness fees), and such
other and further legal and equitable
A-37
Lawyer Discipline and Disability
Proceedings. This clearly frivolous and
groundless matter is currently pending
before the Colorado Supreme Court in
People v. Smith, Case No. 97SA344.
relief as may be just under the
circumstances, including an order
granting an expedited jury trial on the
merits of plaintiff John Casillan’s
improperly dismissed civil rights case.
Jurisdiction was based on Fed. R. Civ. P.
57 and 60(b), and 28 U.S.C. §§ 1331, 1367
and 2201. Mr. Smith demanded a trial by
jury of all issues so triable. This case
is still pending before United States
District Judge William F. Downes, who has
failed or refused to rule on pending
matters and set the case for trial.’
6. On February 18, 1997, Chief
Tenth Circuit Judge Stephanie K. Seymour
issued her order denying Mr. Smith’s
petition for a writ of habeas corpus, and
motion to vacate, set aside or correct
sentence with respect to the Tenth
Circuit disciplinary panel’s (November
29, 1993) suspension order without
granting a hearing, addressing the
arguments raised by him therein, or
giving any reasons for her decision. On
May 8, 1997, Tenth Circuit Judges David
M. Ebel and Mary Beck Briscoe issued
their order denying Mr. Smith’s petition
A-38
°On January 31, 1997, Judge Downes
held a telephone status conference at
which he promised to rule on pending
matters “within a week to ten days.”
However, as of the date (February 4,
1998) of the filing of this motion, no
ruling has been made.
for a writ of mandamus or prohibition
with respect to the letter refusal by
Patrick Fisher, Clerk of the Tenth
Circuit, and Elisabeth A. Shumaker, Chief
Deputy Clerk, to accept for filing his
notice of appeal of Chief Tenth Circuit
Judge Seymour’s (February 18, 1997) order
without addressing the arguments raised
by him therein or giving any reasons for
their decision.
7. On March 3, 1997, the Colorado
Supreme Court issued its opinion
(effective June 6, 1997) suspending Mr.
Smith from the practice of law in the
State of Colorado for nine months based
on the Tenth Circuit disciplinary panel’s
(November 29, 1993) suspension order.
See People v. Smith, 937 P.2d 724
(Colo.), cert. denied, U.S. ’
116: 6.Ct. i158, L.Ed.2d (1997).
Prior to reinstatement, Mr. Smith must
demonstrate that all sanctions imposed
against him by the Tenth Circuit and the
District Court have been “satisfied” and
that all federal suspensions have been
lifted. See id. In its (March 3, 1997)
opinion, the Colorado Supreme Court
rejected inter alia Mr. Smith’s argument
that the discipline imposed against him
constitutes an indefinite suspension from
the practice of law in the State of
Colorado, in violation of C.R.C.P.
241.7(2).
8. On January 21, 1998, United
States District Judge Wiley Y. Daniel
issued his order of dismissal dismissing
Mr. Smith’s petition for a writ of habeas
corpus, and motion to vacate, set aside
or correct sentence with respect to the
Tenth Circuit disciplinary panel’s
(November 29, 1993) suspension order
without granting a hearing, addressing
the arguments raised by him therein, or
giving any reasons for his decision.
This order of dismissal is currently on
appeal to the Tenth Circuit.
9. Since it is clear from the facts
set forth in the foregoing paragraphs 1-8
that despite the fact that Mr. Smith’s
arguments are meritorious, the federal
judiciary has no intention of reviewing,
rehearing, reconsidering, amending,
modifying, vacating, or correcting the
harsh and unjustified sanctions and
discipline imposed against him by the
Tenth Circuit, the District Court and
their disciplinary panels, it is
impossible for him to demonstrate prior
to reinstatement that all sanctions
imposed against him by the Tenth Circuit
and the District Court have been
“satisfied” and that all federal
suspensions have been lifted, as required
by the Colorado Supreme Court in its
(March 3, 1997) opinion. It therefore
follows that it is impossible for Mr.
A-40
Smith to comply with the Coloradc Supreme
Court’s (March 3, 1997) opinion or to
file with Committee Counsel the affidavit
required by C.R.C.P. 241.22(b) .*°
WHEREFORE, Mr. Smith requests the
Colorado Supreme Court to grant his
Verified Motion for Order Reinstating Him
to the Practice of Law in the State of
Colorado Despite the Fact that it is
Impossible for Him to Comply with the
Colorado Supreme Court’s (March 3, 1997)
Opinion or to File With Committee Counsel
the Affidavit Required by C.R.C.P.
241.22(b), and such other and further
relief as may be just under the
circumstances.
Dated this 4 day of February, 1998.
A-41
“eee C.R.C.P. 241. 22tb) , *. . 8
lawyer who has been suspended for a
period of one year or less shall be
reinstated by order of the Supreme Court,
provided the lawyer files with the
Committee Counsel within 30 days prior to
the expiration of the period of
suspension an affidavit stating that the
lawyer has fully complied with the order
of suspension and with all applicable
provisions of this Chapter.”
Respectfully submitted,
David L. Smith, #6934
Pro Se Attorney-Respondent
1630 Welton Street, Suite 300
Denver, Colorado 80202
(303) 534-0153
VERIFICATION
STATE OF COLORADO
ss.
CITY AND COUNTY OF DENVER )
I, David L. Smith, hereby verify
that the information set forth in the
foregoing Respondent’s Verified Motion
for Order Reinstating Him to the Practice
of Law in the State of Colorado Despite
the Fact that it is Impossible for Him to
Comply with the Colorado Supreme Court’s
(March 3, 1997) Order or to File With
Committee Counsel the Affidavit Required
by C.R.C.P. 241.22(b) is true and correct
to the best of my knowledge, information
and belief.
David L. Smith, #6934
Pro Se Attorney-Respondent
1630 Welton Street, Suite 300
Denver, Colorado 80202
(303) 534-0153
A-42
Subscribed and sworn to before me by
David L. Smith on this 4™ day of
February, 1998.
Witness my hand and official seal.
Notary Public
a ee
A-43
CERTIFICATE OF SERVICE
I hereby certify that on this 4™ day
of February, 1998, true and correct
copies of the foregoing Respondent’ s
Verified Motion for Order Reinstating Him
to the Practice of Law in the State of
Colorado Despite the Fact that it is
Impossible for Him to Comply with the
Colorado Supreme Court’s (March 3, 1997)
Order or to File With Committee Counsel
the Affidavit Required by C.R.C.P.
241.22(b) were hand delivered to:
James P. Hollaway, Esq.
Committee Counsel
600 17™ Street, Suite 920 - South
Denver, Colorado 80202
James C. Coyle, Esq.
Assistant Disciplinary Counsel
600 17™ Street, Suite 510 - South
Denver, Colorado 80202
A-44
SUPREME COURT, STATE OF COLORADO
CASE NO. 96SA306
RECIPROCAL PROCEEDING IN DISCIPLINE
ORDER OF COURT
THE PEOPLE OF THE STATE OF COLORADO,
Complainant,
v.
DAVID LEE SMITH,
Respondent.
Upon consideration of Respondent’s
Verified Motion for Order Reinstating Him
to the Practice of Law in the State of
Colorado Despite the Fact that it is
Impossible for Him to Comply With the
Colorado Supreme Court’s (March 3, 1997)
Opinion or to File With Committee Counsel
the Affidavit Required by C.R.C.P.
241.22(b), and the Complainant’s Response
thereto filed in the above captioned
matter, and now being sufficiently
advised in the premises,
IT IS THIS DAY ORDERED that said
Respondent’s Verified Motion shali be,
and the same hereby is, DENIED.
A-45
cc:
BY THE COURT, FEBRUARY 11, 1998.
James C. Coyle
Asst. Disciplinary Counsel
600 17™ Street, Suite 510 S.
Denver, CO 80202
David Lee Smith
1630 Welton Street, #300
Denver, CO 80202
James P. Hollaway
Grievance Committee Counsel
600 17™ St., Suite 920 Ss.
Denver, CO 80202-5435
SUPREME COURT, STATE OF COLORADO
CASE NO. 96SA306
RECIPROCAL PROCEEDING IN DISCIPLINE,
GC94B-80
PETITION FOR REHEARING
THE PEOPLE OF THE STATE OF COLORADO,
Complainant,
Vv.
DAVID LEE SMITH,
Respondent.
On February 11, 1998, the Colorado
Supreme Court issued its order (a copy of
which is attached hereto) denying
Respondent’s Verified Motion for Order
Reinstating Him to the Practice of Law in
the State of Colorado Despite the Fact
That it is Impossible for Him to Comply
With the Colorado Supreme Court’s (March
3, 1997) Opinion or to File With
Committee Counsel the Affidavit Required
by C.R.C.P. 241.22(b) (filed on February
4, 1998) without addressing the arguments
raised by him therein or giving any
reasons for its decision. [In his
(February 4, 1998) motion, Mr. Smith
said:
A-47
9. Since it is clear from the
facts set forth in the foregoing
paragraphs 1-8 that despite the fact
that Mr. Smith’s arguments are
meritorious, the federal judiciary
has no intention of reviewing,
rehearing, reconsidering, amending,
modifying, vacating, or correcting
the harsh and unjustified sanctions
and discipline imposed against him
by the Tenth Circuit, the District
Court and their disciplinary panels,
it is impossible for him to
demonstrate prior to reinstatement
that all sanctions imposed against
him by the Tenth Circuit and the
District Court have been “satisfied”
and that all federal suspensions
have been lifted, as required by the
Colorado Supreme Court in its (March
3, 1997) opinion. It therefore
follows that it is impossible for
Mr. Smith to comply with the
Colorado Supreme Court’s (March 3,
1997) opinion or to file with
Committee Counsel the affidavit
required by C.R.C.P. 241.22(b).*
“under C-R.C.P. 261.220), *. . . 8
lawyer who has been suspended for a
period of one year or less shall be
reinstated by order of the Supreme Court,
provided the lawyer files with the
Committee Counsel within 30 days prior to
the expiration of the period of
suspension an affidavit stating that the
By denying Mr. Smith’s (February 4, 1998)
motion without addressing the arguments
raised by him therein or giving any
reasons for its decision, the Colorado
Supreme Court has arbitrarily 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 without due process
of law, in violation of the Fourteenth
Amendment to the Constitution of the
United States. See Honda Motor Co., Ltd.
v. Oberg, 512 U.S. 415, 114 S.Ct. 1331,
129 L.Ed.2d 336 (1994); Logan v.
Zimmerman Brush Co., 455 U.S. 422, 102
$.Ct. 1148, 71 L.Ed.2d 265 (1982).
Further, the Colorado Supreme Court has
arbitrarily deprived Mr. Smith of his
First and Fourteenth Amendment right to
access to the courts to petition the
government for a redress of grievances.
See id. Since no other attorney has been
suspended indefinitely from the practice
of law in the State of Colorado based on
his financial inability to pay harsh and
unjustified sanctions imposed against him
by the federal courts,** the Colorado
lawyer has fully complied with the order
of suspension and with all applicable
provisions of this Chapter.”
#7As a part of his efforts to
persuade the Tenth Circuit and its
disciplinary panel to review, reconsider
Supreme Court has also arbitrarily
deprived Mr. Smith of his Fourteenth
Amendment right to the equal protection
of the laws. See id. Finally, since no
legal or factual basis exists for the
Colorado Supreme Court’s (February 11,
1998) order, it is reasonably
questionable whether the Colorado Supreme
Court can be a fair and impartial
decision-maker in this or any other
and correct the Tenth Circuit
disciplinary panel’s (November 29, 1993)
suspension order, Mr. Smith submitted
affidavits and other evidentiary
materials showing that he is financially
unable to pay all or any part of the more
than $50,000.00 in harsh and unjustified
sanctions previously imposed against him
by the Tenth Circuit and the District
Court. At the time of the submission of
these evidentiary materials, Mr. Smith
had a negative net worth of more than
$360,000.00. Currently, Mr. Smith has a
negative net worth of more than
$400,000.00. Due to his indefinite
suspension from the practice of law in
the federal and state courts, Mr. Smith
has no income from which his negative net
worth could be reduced, or from which
harsh and unjustified sanctions of more
than $50,000.00 could be paid.
disciplinary case against Mr. Smith.’*°
See Canon 3 of the Colorado Code of
Judicial Conduct; Liteky v. United
States, 510 U.S. 540, 114 S.Ct. 1147, 127
L.Ed.2d 474 (1994); Arnett v. Kennedy,
416 0.8. -134,; 197, 06 8.ct: i638, 66
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. 1l,
99 L.Ed. 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). Under these circumstances,
Mr. Smith requests the Colorado Supreme
Court to grant his petition for rehearing
of its (February 11, 1998) order, and
Other disciplinary cases against
Mr. Smith are: People v. Smith, Case No.
97SA344 and People v. Smith, Case No.
98SAB.
such other and further relief as may be
just under the circumstances, including
an order disqualifying itself from this
and the other disciplinary cases against
him.
Dated this 17™ day of February,
1998.
Respectfully submitted,
David L. Smith, #6934
Pro Se Attorney-Respondent
1630 Welton Street, Suite 300
Denver, Colorado 80202
(303) 534-0153
A-52
CERTIFICATE OF SERVICE
I hereby certify that on this 17™
day of February, 1998, true and correct
copies of the foregoing Petition for
Rehearing were placed in the United
States mail, postage prepaid, addressed
as follows:
James P. Hollaway, Esq.
Committee Counsel
600 17™ Street, Suite 920 - South
Denver, Colorado 80202
James C. Coyle, Esq.
Assistant Disciplinary Counsel
600 17™ Street, Suite 510 - South
Denver, Colorado 80202
A-53
SUPREME COURT, STATE OF COLORADO
CASE NO. 96SA306
ORIGINAL PROCEEDING IN DISCIPLINE
ORDER OF COURT
THE PEOPLE OF THE STATE OF COLORADO,
Complainant,
Vv.
DAVID LEE SMITH,
Respondent.
Upon consideration of the Petition
for Rehearing filed in the above
captioned matter, and now being
sufficiently advised in the premises,
IT IS THIS DAY ORDERED that said
Petition for Rehearing shall be, and the
same hereby is, DENIED.
BY THE COURT, FEBRUARY 19, 1998.
A-54
cc:
James C. Coyle
Asst. Disciplinary Counsel
600 17 Street, Suite 510 S.
Denver, CO 80202
David Lee Smith
1630 Welton Street, #300
Denver, CO 80202
James P. Hollaway
Grievance Committee Counsel
600 17™ st., Suite 920 S.
Denver, CO 80202-5435
A-55
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