Petition for Writ of Certiorari — Smith v. Supreme Court of Colorado
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98 498 StP 23199
No. _ OFFICE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1998
DAVID L. SMITH,
Petitioner,
v.
SUPREME COURT OF THE STATE OF COLORADO,
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
RECEIVED
SEP 23 1998
OFFICE OF THE CLERK
SUPREME COURT, U.S.
wm
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
by C.R.C.P. 241.22 (b).
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.
att
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.
Te
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.
Whether by indefinitely suspending
Mr. Smith from the practice of law in the
State of Colorado without following the
attorney disciplinary rules it
implements, including C.R.C.P. 241.7(2),
241.14(a), 241.17(d), and 241.22(a) and
(b), the Colorado Supreme Court has
decided an important federal question in
a way that conflicts with the Fifth
Circuit’s decision in Dailey v. Vought
Aircraft Co., 141 F.3d 224 (5™ Cir.
1998).
Whether the disciplinary opinion
issued by the Colorado Supreme Court on
March 3, 1997 is inconsistent with the
Colorado Supreme Court’s order in People
v. Smith, Case No. 96SA306.
Whether by summarily denying Mr.
Smith’s motion to vacate the (March 3,
1997) disciplinary opinion and to expunge
the disciplinary record created by this
opinion, the Colorado Supreme Court again
deprived Mr. Smith of his First and
Fourteenth Amendment rights.
-iii-
Whether the Colorado Supreme Court’s
(March 3, 1997) disciplinary opinion is
null and void, and it is no longer
equitable that this opinion should have
prospective application.
Whether by merely rubber-stamping
the Tenth Circuit disciplinary panel’s
transparently invalid suspension order,
the Colorado Supreme Court deprived Mr.
Smith of his Fourteenth Amendment right
to due process of law.
-iv-
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ......-. i
TABLE OF CONTENTS ...--cceeeescccecsseee V
TABLE OF AUTHORITIES ......eeeeeeeeee+ Wi
CITATIONS OF OPINIONS AND ORDERS .... xii
JURISDICTION ..ccccccccccecccccecscce ALi
CONSTITUTIONAL PROVISIONS
INVOLVED IN THE CASE *eeeeee0ee8e8eee82 84 8 xiv
STATEMENT OF THE CASE eeeoeeeeeeeoeee eee 1
ARGUMENT ...--ceecrecccccceccccceccccces J
DP ILA. .0 06 be 6.0 edmiteeebecesse Attached
TABLE OF AUTHORITIES
CASES
Arnett v. Kennedy, 416 U.S. 134,
94 S.Ct. 1633, 40 L.Ed.2d 15
(1974) eoeeeoeeneeceeeveeeeeeeeeeeseeeeeeeee 8 10
Baird v. State Bar of Arizona,
401 U.S. 1, 91 S.Ct. 702,
27 L.Ed.2d 639 (1971) e*eeeeee#e#eexseee#eeeees?e* u
Baldwin v. Hale, 68 U.S. (1 Wall.)
S83; 27 Tc GRE CM ca cctaecscecs Ea
Bloom v. Illinois, 391 U.S. 194,
88 S.Ct. 1477, 20 L.Ed.2d 522
(1968) eeeeeeseseeneern8nreeeeece#eeeeeseeoeeeneeeee : Pp 8
Bodie v. Connecticut, 401 U.S. 371,
91 S.Ct. 780, 28 L.Ed.2d 113
(1971) ccccccccvccccccccscccccccsccsce AO
Burkett v. Chandler, 505 F.2d 217
(10™ Cir.), cert. denied, 423 U.S.
876, 96 S.Ct. 149, 46 L.Ed.2d 110
(1978) wccccccccccccccccccvccccccccccce 8
California Motor Transport Co. v.
Trucking Unitd., 404 U.S. 508,
92 S.Ct. 609, 30 L.Ed.2d 642
CET ica vc aesk cee ee Actas veccess 8
Cleveland v. Board of Education v.
Loudermill, 470 U.S. 494, 105 S.Ct.
1487, 84 L.Ed.2d 494 (1985) ........... 2
-vi-
Disciplinary Commission, 470 U.S.
1074 (1985) eeeeeveee eo eee eee ee eer vr eeer eee g
’
Dailey v. Vought Aircraft Co.
141 F.3d 224 (5™ Cir. 1998).. 11, 12, 13
Douglas v. California, 372 U.S. 353,
83 S.Ct. 814, 9 L.Ed.2d 811
(1963) ecVeoeeeeeeveeveeoeeeeoe020e02020078999998°°8 9
, 455 F.2d 1084
(10™ Cir. 1972) ...ccccccccccccccssccee 9
Goldberg v. Kelly, 397 U.S. 254,
90 S.Ct. 1011, 25 L.Ed.2d 287
(1970) eseewecoovanveneenene2e0e 0209000000000 08080 10
Gompers v. Bucks Stove & Range Co.,
221 U.S. 418, 31 S.Ct. 492, 55 L.Ed.
POE TEER). chess cb eeesudecccecceces . 3
Harbolt v. Alldredge, 464 F.2d i243,
(10™ cir.), cert. denied, 409 U.S.
1025, 93 S.Ct. 473, 34 L.Ed.2d 319
CESS): 2 cdtainte ed MBA Do Aa 80.9 0aedcceseces 9
Harper v. Virginia State Board of
Elections, 383 U.S. 663, 86 §.Cce.
1079, 16 L.Ed.2d 169 (1966) ........--- 9
’
512 U.S. 415, 114 S.Ct. 2331,
129 L.Ed.2d 336 (1994) .......---. 11, 13
-vii-
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) e*eeeeeneeeeeeeeeeeeeeeeeeeeeneeenne © @ 3
In re Ruffalo, 390 U.S. 544,
88 S.Ct. 1222, 20 L.Ed.2d 117
(1968) eoeeeteeeeeeeeeeeeeeeneeeeee ds 8, 14
international Union v. Bagwell,
512 U.S. 821, 114 S.Ct. 2552,
129 L.Ed.2d 642 (1994) eeceeeeaeeereae eee 3, 8
Johnson v. Board of County
Commissioners, 85 F.2d 489
(10™ cir. 1996) e*eeeee#e#ee#*e#se#ee#e#eee#ee#eee#ee#e#e##e* g
Liteky v. United States, 510 U.S.
540, 114 §.Ct. 1147, 127 L.Ed.2d
474 (1994) eeeneeseceseeeseeeeeeneeeneeneeeneeeeees 11
Logan v. Zimmerman Brush Co.,
455 U.S. 422, 102 S.Ct. 1148,
771i L.Ed.2d 265 (1982) e*eee#*ee#sed#*setfee#see7#e#e*e#e#ee#*# 2
Maggio v. Zeitz, 333 U.S. 56,
68 S.Ct. 401, 92 L.Ed. 476
(1948) wccciestawocc set eccce ee eee e 2 3 ped J
Matter of Thalheim, 853 F.2d 383
Tg Ea ee re. fC
-viii-
, 758 F.2d 1362
(10™ cir. 1985) ccs eecesesereseseseses g
Mayberry v. Pennsylvania, 400 U.S.
455, 91 S.Ct. 499, 27 L.Ed.2d 532
(1971) ecvoeceveeveeeveoeeeeeeeeeoee2 9020999799 8 10
McKnight v. General Motors
Corporation, 511 U.S. 659, 114 B.CG.
1826, 128 L.Ed.2d 655 (1994) ....+-++-- 1
Morrissey v. Brewer, 408 U.S. 471,
92 S.Ct. 2593, 33 L.Ed.2d 484
(1972) eee eteeeeooveoeeveeeeeoeeeneeneeoe eee eo? 10
NAACP v. Button, 371 U.S. 415,
83 S.Ct. 328, 9 L.Ed.2d 405
(1963) espeoceeoaneeevoesegcoaneoaeeoeaeoeeoeeoeeeee? 8
Offut v. United States, 348 U.S. il,
75 §.Ct. 11, 99 L.Ed. 11 (1954) ....-. 10
People v. Smith, 937 P.2d 724
(Colo.), cert. denied, _____ U.S.
_, 118 S.Ct. 158, 139 L.Ed.2d
103 (1997) eseeceoeoeanvneevoeeoevneeeeeeoeeeeaeoeoee® 4
Vv 7
746 F.2d 1429 (10™ Cir.), cert.
denied, 471 U.S. 1016 (1985) ....-.----- 8
353 U.S. 232, 77 S.Ct. 752,
L L.Ed.2d 796 (1957) ..-eeeeceeecereces 9
-ix-
Silver v. Cormier, 529 F.2d 161,
(10™ Cir. Pog pao PEURE DEAE YET OTST CUNT Bo Q
Talamini v. Allstate Insurance Co.,
470 U.S. 1067 (1985) eeee3se+e4e7e3#2seeeeeeeeee#e#€e o
Tinsley v. Mitchell, 804 F.2d 1254,
(D.C. Cir. 1986) e*eeee#s3s3s2xeeeersrfee#e#ee#ee#ee#ee?##e#e¢ 7
United States v. Rylander, 460 U.S.
752, 103 S.Ct. 1548, 75 l.Ed.2d
521 (1983) eeeeeeaeeeeeseeeseeeeeeeeeeeeee 7
Wisconsin v. Constantineau, 400 U.S.
433, 91 S.Ct. 507, 27 L.Ed.2d 515
CASTE) foo ch SUS eS Cee bee he eh hetstieecceas
OTHER AUTHORITIES
Amend. I, U.S. Comsti. ........ 8, 11, 13
Amend. V, U.8. Cagmtds ici cic c ciiesie-@
Amend. VI, U.8. Comsti. ..cccccccccsecce &
Amend. XIV, U.S. Consti. ... 8, 9, 10, 11
13, 14
28 i Fee § 2106 eeeeeneeeensreneeneeeneeeee 14
Fed. R. App. ve 46 eoeeereeeveeeeseneeeeneeees 1
N. DIST. TEX. R. 13.2 (b) eeeeeeeeee eee 12
-x-
C.R.C.P.
CR. CcRi
C.R.C.P.
CcRsci.
C.R.C.P.
241.7 (2) eoeeeeveeoe ee ee eeeee 5,
241.14 (a) eee eveveee ee eee e 5,
SEE. 371G). ose’ Ceecccccs oi Be
BOL 6Oe COs 88 ois S Sie h 00, ON 0% 5,
ee oe err 6, 7,
-xi-
13
13
13
13
13
CITATIONS OF OPINIONS AND ORDERS
People v. Smith, 937 P.2d 724 (Colo.),
cert. denied, U.S. RO eee a 118 BaChe
158, 139 L.Ed.2d 103 (1997).
People v. Smith, Case No. 96SA306 (Colo.)
(unpublished order dated February 11,
1998).
People v. Smith, Case No. 96SA306 (Colo.)
(unpublished order dated February 19,
1998).
People v. Smith, Case No. 96SA306 (Colo.)
(unpublished order dated June 19, 1998).
People v. Smith, Case No. 96SA306 (Colo.)
(unpublished order dated July 1, 1998).
-xii-
JURISDICTION
The orders sought to be reviewed
were entered on June 19, 1998 and July 1,
1998. Rehearing of the Colorado Supreme
Court’s (June 19, 1998) order summarily
denying Mr. Smith’s motion to vacate its
(March 3, 1997) disciplinary opinion and
to expunge the disciplinary record
created by this opinion was summarily
denied by order dated July 1, 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 June 19, 1998 and July 1, 1998
is 28 U.S.C. § 1257.
-xiii-
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.
-xiv-
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
Vv ’
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 United
States District Court for the District of
Colorado,” all in alleged violation of
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.,
455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d
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
2
the ABA Code of Professional Conduct.
See In re David L. Smith, 10 F.3d 723
(10° Cir.), cert. denied, 513 U.s. 807,
115 8.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.
against him by the Tenth Circuit and the
District Court. See Gompers v. Bucks
Stove & Range Co., 221 U.S. 418, 31 a
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);
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
3
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. >
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
its (November 29, 1993) suspension order,
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
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.
4
District Court have been “satisfied and
that all federal suspensions have been
lifted.* See id.
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
“Mr. Smith is therefore being
subjected to an indefinite suspension
from the practice of law in the State of
Colorado, in violation of C.R.cC.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 for a definite
period of time not to exceed three
years.
Furthermore, the Colorado Supreme Court
refused to afford Mr. Smith the notice
and evidentiary hearing required by
C.R.C.P. 241.14(a) and 241.17(d) before
indefinitely suspending him from the
practice of law in the State of Colorado.
5
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
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 (February 11, 1998)
order.
On June 19, 1998, the Colorado
Supreme Court issued its order summarily
denying Mr. Smith’s motion to vacate the
disciplinary opinion it issued on March
3, 1997 and to expunge the disciplinary
record created by this opinion.
On July 1, 1998, the Colorado
Supreme Court issued its order summarily
denying Mr. Smith’s petition for
rehearing of its (June 19, 1998) order.
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
by C.R.C.P. 241.22 (b). See Maggio v.
Zeitz, 333 U.S. 56, 68 S.Ct. 401, 92
L.Ed. 476 (1948) (impossibility of
performance constitutes a defense to
contempt); United States v. Rylander, 460
U.S. 752, 103 S.Ct. 1548, 75 L.Ed.2d 521
(1983) (the court must consider present
inability to comply with the order in
question); Tinsley v. Mitchell, 804 F.2d
1254, 1256 (D.C. Cir. 1986) (citing
Maggio v. Zeitz). Therefore, by issuing
its order summarily denying Mr. Smith’s
7
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 goou 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.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); 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);
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, ®5 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.Bd.2d 642 (1972);
» 470
Talamini v. Allstate Insurance Co.
U.S. 1067 (1985); Crumpacker v. Indiana
na,
470 U.S. 1074 (1985); ’
529 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, 10687
(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
Colorado Supreme Court arbitrarily
deprived Mr. Smith of his Fourteenth
Amendment right to the equal protection
of the laws. See
Examiners, 353 U.S. 232, 77 S.Ct. 752, 1
L.Ed.2d 796 (1957); Douglas v.
California, 372 U.S. 353, 83 S.Ct. 814, 9
L.Ed.2d 811 (1963);
, 383 U.S. 663,
86 S.Ct. 1079, 16 L.Ed.2d 169 (1966);
’ 401 U.S.
1, 91 &.Ct. 702, 27 L.Ed.2d 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 S.Ct. 1633, 40 L.Ed.2d 15
(1974) (White, J., concurring in part and
dissenting in part) ("the right to an
impartial decision-maker is required by
due process" in every case); Morrissey v.
Brewer, 408 U.S. 471, 485-86, 92 S.Ct.
2593, 33 L.Ed.2d 484 (1972) (decision-
maker bias is grounds for reversal) ;
Mayberry v. Pennsylvania, 400 U.S. 455,
469, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971)
(Harlan, J., concurring) ("the appearance
of evenhanded justice ... is at the
core of due process"); Goldberg v. Kelly,
397 U.8. 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 S.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
10
ee sai tenst .
decision); Liteky v. United States, 510
U.S. 540, 114 S.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 S.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.
In Dailey v. Vought Aircraft Co.,
141 F.3d 224 (5™ Cir. 1998), an attorney
was disbarred from practice in the United
States District Court for the Northern
District of Texas for her failure to
comply with an order to pay Re REY of
$8,478.92 within 11 days.°® On appeal,
the United States Court of Appeals for
‘the Fifth Circuit’s opinion in
Dailey is reproduced in the appendix to
this petition for a writ of certiorari.
11
the Fifth Circuit reversed and vacated
the district court’s order of disbarment,
holding that the district court had
deprived the attorney of her right to due
process of law as she was not afforded
notice and an opportunity to be heard
prior to being expelled from the bar.
The Fifth Circuit said:
Federal district courts are
bound by the disciplinary rules they
implement. Matter of Thalheim, 853
F.2d 383, 386, 388 (5 Cir. 1988).
Although we conclude that the only
logical reading of [N. DIST. TEX. R.
13.2(b) (1996)] requires notice and
an opportunity to be heard before an
attorney is disciplined by the
court, any ambiguity in the rule
must be construed in favor of the
attorney charged with behavior
warranting discipline. Brown, 72
F.3d at 29. Cf. Baldwin v. Hale,
68 U.S. (1 Wall.) 223, 233, 17 L.Ed.
531 (1864) (“Parties whose rights
are to be affected are entitled to
be heard; and in order that they may
enjoy this right they must first be
notified.”)
See Dailey at 230. Therefore, by
indefinitely suspending Mr. Smith from
the practice of law in the State of
Colorade without following the attorney
disciplinary rules it implements,
12
including C.R.C.P. 241.7(2), 241.14(a),
241.17(d), and 241.22(a) and (b), the
Colorado Supreme Court has decided an
important federal question in a way that
conflicts with the Fifth Circuit’s
decision in Dailey.
The disciplinary opinion issued by
the Colorado Supreme Court on March 3,
1997 is not only inconsistent with the
Fifth Circuit’s opinion in Dailey. This
disciplinary opinion is also inconsistent
with the order issued by the Colorado
Supreme Court in People v. Smith, Case
No. 97SA169.’ Furthermore, by summarily
denying Mr. Smith’s motion to vacate the
(March 3, 1997) disciplinary opinion, and
to expunge the disciplinary record
created by this opinion, the Colorado
Supreme Court again deprived Mr. Smith of
his First and Fourteenth Amendment
rights. See Honda Motor Co., Ltd. v.
Oberg, 512 U.S. 415, 114 S.Ct. 2331, 129
L.Ed.2d 336 (1994). Under these
circumstances, the Colorado Supreme
Court’s (March 3, 1997) disciplinary
opinion is null and void, and it is no
longer equitable that this opinion should
have prospective application.
"This order, as well as the findings
of fact and recommendations of the
hearing board which this order affirmed,
is reproduced in the appendix to this
petition for a writ of certiorari.
13
By merely rubber-stamping the Tenth
Circuit disciplinary panel’s
transparently invalid suspension order,
the Colorado Supreme Court deprived Mr.
Smith of his Fourteenth Amendment right
to due process of law. See In re
Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20
L.Ed.2d 117 (1968). Mr. Smith therefore
requests this Court to grant his Petition
for a Writ of Certiorari to the Colorado
Supreme Court, and such other and further
relief as may be just under the
circumstances, including an order under
28 U.S.C. § 2106 reversing and vacating
the disciplinary opinion issued by the
Colorado Supreme Court on March 3, 1997,
and expunging the disciplinary record
created by this opinion.
Respectfully submitted,
IS FT Aa
DAVID L. S
1630 Welton Street, Suite 300
Denver, Colorado 80202
(303) 534-0153
PRO SE ATTORNEY -PETITIONER
14
APPENDIX
SUPREME COURT OF COLORADO
No. 96SA306 March 3, 1997
THE PEOPLE OF THE STATE OF COLORADO,
Complainant,
Vv.
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-2
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.
Louisiana-Pacific Corporation, Nos.
92-1230 & 92-1381 (10% Cir. February
11, 1993), [cert. denied, 114 S.Ct. j
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.
Regionai 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%
Ci. R. 46.5.
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. Im it, he asked “to be heard in
person in defense and in mitigation with
respect to the charges being brought
against him... .”
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-4
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-5
Accordingly, the court of appeals ordered
that respondent “is suspended from the
practice of law bef »re 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.
Il.
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-6
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-7
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 hin.
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-8
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.2d 1, 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.
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-9
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-10
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-11
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 to 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-12
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.
A-13
We find, as did the hearing board,
that the Tenth Circuit disciplinary
proceedings did not violate due process.
Cu
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
C.R.C.P. 241.17(d) (2).
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-14
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.
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 in a
judicial investigation into his alleged
A-15
Mf
7
4
:
i
j
3
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);
gee generally Andrea G. Nadel,
Annotation, Extent and Determination of
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-16
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-17
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.
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).
F.
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-18
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
suspension. The definite period of
suspension, in this case nine months, is
mandated by requirement that all
suspension be of definite length in
A-19
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 C.R.C.P.
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-20
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]he 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-21
warn Te
we Fae re Ie
accept the hearing panel’s and hearing
board’s recommendations.
Iit.
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.
SUPREME COURT, STATE OF COLORADO
CASE NO. 96SA306
RECIPROCAL PROCEEDING IN DISCIPLINE
ORDER OF COURT
THE PEOPLE OF THE STATE OF COLORADO,
Complainant,
Vv.
DAVID LEE SMITH,
Respondent.
Upen 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 shall be,
and the same hereby is, DENIED.
A-23
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 s.
Denver, CO 80202-5435
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-25
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
SUPREME COURT, STATE OF COLORADO
CASE NO. 96SA306
ORIGINAL PROCEEDING IN DISCIPLINE
ORDER OF COURT
THE PEOPLE OF THE STATE OF COLORADO,
Complainant,
Ve
DAVID LEE SMITH,
Respondent.
Upon consideration of the Motion to
Vacate Disciplinary Opinion and to
Expunge the Disciplinary Record Created
by this Opinion, and the Response thereto
filed in the above captioned matter, and
now being sufficiently advised in the
premises,
IT IS THIS DAY ORDERED that said
Motion to Vacate Disciplinary Opinion and
to Expunge the Disciplinary Record
Created by this Opinion shall be, and the
same hereby is, DENIED.
BY THE COURT, JUNE 19, 1998.
A-27
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-28
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 of Order Denying Motion to
Vacate Disciplinary Opinion and to
Expunge the Disciplinary Record Created
by this Opinion filed in the above
-Captioned matter, and now being
sufficiently advised in the premises,
IT IS THIS DAY ORDERED that the
Petition for Rehearing of Order Denying
Motion to Vacate Disciplinary Opinion and
to Expunge the Disciplinary Record
Created by this Opinion shall be, and the
same hereby is, DENIED.
. BY THE COURT, JULY 1, 1998.
A-29
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
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-31
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. 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."
A-32
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., U.S. , 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 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
A-33
Ollie DAILEY, Plaintiff,
Noemi Alessandra Collie, Appellant,
Vv.
VOUGHT AIRCRAFT COMPANY,
Defendant.
Noemi Alessandra Collie, Appellant,
Ve
International Union, United Aerospace
Workers, Local 848, Defendant.
No. 96-11180.
United States Court of Appeals,
Fifth Circuit.
May 12, 1998.
Frank P. Hernandez, Dallas, TX, for
Appellant.
Appeal from the United States District
Court for the Northern District of Texas.
Before JOLLY, SMITH and DENNIS, Circuit
Judges.
DENNIS, Circuit Judge.
Noemi Alessandra Collie, an
attorney-at-law, appeals from an order by
the district court disbarring her from
practice in the United States District
Court for the Northern District of Texas
until the payment of monetary sanctions
imposed upon her and her client for
violations of Federal Rule of Civil
Procedure 11. Subsequent to filing this
appeal, Collie paid the sanctions and was
reinstated to practice by the district
court. We reverse and vacate the
district court’s disbarment order. This
appeal is not moot because the disbarment
on the attorney’s record may affect her
status as a member of the bar and have ;
other collateral consequences. Because ;
the attorney was not given notice of the
charges made or opportunity for
explanation and defense prior to
disbarment, she was deprived of
procedural due process required by the
United States Constitution and the
district court’s own local rules.
I.
Appellant attorney Noemi Collie fe
filed three separate lawsuits on behalf
of plaintiff Ollie Dailey against
Dailey’s employer, Vought Aircraft
Company (Vought). The first lawsuit s
concerned claims of race discrimination :
and retaliation in violation of Title
A-35
VII. After a bench trial, the district
court rejected Dailey’s claims and
entered final judgments for Vought. on
motion by Vought, after considering
written responses of the parties, the
district court found that Collie and
Dailey violated Federal Rule of Civil
Procedure 11(b) (1) and (b) (3) by
repetitiously asserting essentially the
same Claims in two other lawsuits. The
district court imposed sanctions by
ordering Collie and Dailey to pay the
costs and attorney's fees Vought incurred
in defending the actions. Dailey
appealed the sanctions order. This Court
affirmed. See Dailey v. LTV Aerospace &
Defense Co., Nos. 95-10156 & 95-10437 (5°
Cir. 1996).
Subsequently, on June 18, 1996, the
district court ordered Collie and Dailey
to pay the imposed sanctions of $8,478.92
within eleven days. After the sanctions
were not paid timely, the district court,
on July 18, 1996, disbarred Collie
pending their payment, without giving
Collie notice or an opportunity to be
heard with respect to her disbarment.
Collie moved the district court for
reconsideration and petitioned the chief
judge of the district for relief under
local rules. The district court denied
reconsideration but amended its order to
allow Collie to continue representing
clients in five particular cases. The
chief judge denied Collie’s appeal.
A-36
Collie appealed to this court from
the decisions of the district court and
the chief judge of the district on
September 19, 1996. The next day Collie
moved this court to stay the district
court orders. This court denied the
stay. Collie paid the monetary sanctions
on September 23, 1996. The district
court, after receiving notice of the
payment, issued an order reinstating
Collie to practice in the Northern
District of Texas on October 7, 1996.
II.
Because Collie paid the monetary
sanctions in full and was reinstated to
practice before the Northern District of
Texas, we consider first whether her
appeal is moot. Matter of Commonwealth
Oil Refining Co., 805 F.2d 1175, 1180-81
(5 Cir. 1986), cert. denied, 483 U.S.
1005, 97 L.Ed.2d 734, 107 S.Ct. 3228
(1987). The grant of subject matter
jurisdiction to the federal courts found
in Article III of the United States
Constitution extends only to actual
“cases” and “controversies.” U.S.
Const., art. III, sect. 2; Lewis v.
Continental Bank Corp., 494 U.S. 472,
477, 108 L.Ed.2d 400, 110 S.Ct. 1249
(1990). These terms serve to limit the
federal judicial power in two ways. 15
A-37
JAMES W. MOORE ET AL., MOORES FEDERAL
PRACTICE, § 101.01, 101-14 (3d ed. 1997).
First, federal courts may only address
questions presented in an adversary
context and in a form amenable to
resolution through the judicial process.
Id. Second, the judiciary’s role is
constrained to the extent necessary to
prevent intrusion upon areas which are
more appropriately handled by the other
two branches of the federal government.
Id. The term justiciability serves to
give expression to this dual limitation
imposed upon the federal courts by the
case or controversy requirement. Id.
The justiciability of an issue, in
turn, is determined by the doctrines of
standing, mootness, and ripeness. Id. §
101.01, 101-13. The Supreme Court has
explained that “mootness [is] the
‘doctrine of standing set in a
timeframe[{.] The requisite personal
interest that must exist at the
commencement of the litigation (standing)
must continue throughout its existence
(mootness).’” United States Parole
Comm'n v. Geraghty, 445 U.S. 388, 397, 63
L.Ed.2d 479, 100 S.ct. 1202
(1980) (citation omitted); see also
Arizonans For Official English v.
Arizona, 137 L.Ed.2d 170, 117 S.ct. 1055,
1068 (1997); Lewis, 494 U.S. at 477-78.
A-38
Under this doctrine, although a
justiciable controversy may have existed
at the time litigation was commenced, the
action must be dismissed for want of
jurisdiction if the controversy ceases to
exist at some point in the litigation.
Calderon v. Moore, 518 U.S. 149, 116
S.Ct. 2066, 2067, 135 L.Ed.2d 453
(1996) (per curiam); Church of Scientology
of California v. United States, 506 U.S.
9, 12, 121 L.Ed.2d 313, 113 S.Ct. 447
(1992); 15 MOORE ET AL., § 101.90, 101-
165. Furthermore, a federal court is
obligated to raise the issue, sua sponte,
if the facts suggest mootness
notwithstanding the silance of the
parties with respect to the issue.
United States v. Rice, 404 U.S. 244, 245,
30 L.Ed.2d 413, 92 S.Ct. 402 (1971);
MOORE ET AL., § 101.92, 101-168.
A case may become moot for several
reasons. One such reason can be an
intervening factual event which causes
the plaintiff to mo longer have a present
right to be vindicated or a stake or
interest in the outcome. Calderon, 116
S.Ct. at 2067; MOORE ET AL., § 101.92,
101-169. An intervening event, however,
will only render a plaintiff’s action
moot if the plaintiff is divested of all
personal interest in the result or the
effect of the alleged violation is
A-39
* “,
completely eradicated and the event will
not occur again. MOORE ET AL., §
101.93[2], 101-170. The availability of
even partial relief is enough to prevent
mootness. Id.; Church of Scientology,
506 U.S. at 450; 13A WRIGHT, MILLER &
COOPER, FEDERAL PRACTICE AND PROCEDURE §
3533.2 (2d ed. 1984).
Even if the plaintiff’s primary
injury has been resolved, the collateral
consequences doctrine serves to prevent
mootness when the violation in question
may cause continuing harm and the court
is capable of preventing such harm.
Sibron v. New York, 392 U.S. 40, 53-59,
20 L.Ed.2d 917, 88 S.Ct. 1889 (1968); 1
ROTUNDA & NOWAK, TREATISE OF
CONSTITUTIONAL LAW § 2.13 (2d ed. 1992);
Moore et al., § 101.99[3], 101-190. As
long as the parties maintain a “concrete
interest in the outcome” and effective
relief is available to remedy the effect
of the violation, the size of the dispute
is irrelevant. Firefighters Local Union
No. 1784 v. Stotts, 467 U.S. 561, 571, 81
L.Ed.2d 483, 104 S.Ct. 2576 (1984).
Although the collateral consequences
doctrine is most often used to enable
review of expired criminal sentences, it
frequently has been applied in the civil
context. WRIGHT ET AL., § 3533.3; MOORE
ET AL., § 101.00[3], 101-190.
A-40
In Connell _v. Shoemaker, 555 F.2d
483, 486-487 (5™ Cir. 1977), the
Commanding Officer at Fort Hood
prohibited military personnel from
renting residential property owned or
managed by the appellants, the Connells,
for 180 days in response to allegations
that appellant Ted Connell had
discriminated against black military
personnel in renting apartments. The
appellants filed suit in December 1974
seeking declaratory and injunctive relief
from the 180 day prohibition. The
district court granted summary judgment
in favor of the appellee on the ground of
mootness as the appellee had lifted the
prohibition after the 180 day time period
had expired and Ted Connell had given his
assurance that there would be no future
acts of discrimination.
This Court reversed because the
“continuing practical consequences of the
Army’s determination of discrimination
. [were] sufficient to negate mootness.”
Id. at 486. Specifically, the
“imputation of bigotry implicit in the
Army’s widely publicized sanctions” could
not but harm the appellants’ reputations
and concomitantly their livelihoods as
the success of the businesses in which
the appellants held interests depended on
the maintenance of a favorable public
A-41
image. Id. at 487. The moral stigma of
the sanction imposed by the appellee
harmed the aspirations of Ted Connell as
a local politician. Id.
This Court applied the collateral
consequences doctrine to defeat a claim
of mootness in Umanzor v. Lambert, 782
F.2d 1299 (5™ Cir. 1986). Umanzor, a
citizen of El Salvador, was deported from
the United States on October 14, 1983.
Before his deportation, Umanzor had
applied for political asylum; his request
was denied. This Court relied on the
collateral consequences doctrine in
rejecting the argument that Umanzor’s
release from the custody of the airline
transporting him to Central America
mooted the appeal of his habeas corpus
claim. Specifically, we noted that
aliens who have been arrested and
deported are ineligible for visas for
purposes of readmission into the United
States for five years and are guilty of a
felony if entry, or an attempted entry,
into the United States does occur. Id.
at 1301.
As the “mere possibility of adverse
collateral consequences is sufficient to
preclude a finding of mootness,” Collie’s
case was not rendered moot by her payment
of the sanctions and reinstatement to
A-42
practice in the Northern District of
Texas. Id. (quoting Sibron v. New York,
392 U.S. at 55). Because admission to
the appropriate bar is an absolute
prerequisite to the practice of law, it
is hardly inconceivable that disbarment,
even if only temporary, can be
detrimental to an attorney’s professional
reputation, well-being, and success.
Collie explains in her brief that the
nature of her practice results in the
majority of her cases being litigated in
federal court. Although she now able to
practice in the Northern District of
Texas, her professional record continues
to be tarnished. The order disbarring
Collie remains of record and open to
perusal by the judges and attorneys of
any court before which she seeks to
practice. It is reasonably foreseeable
that the disbarment on Collie’s record
may have a detrimental impact on her
professional career.
Our decision in United States v.
Schrimsher (In re Butts), 493 F.2d 842
(5™ Cir. 1974), strongly supports this
conclusion by analogy. Butts, an
attorney, was found to be in contempt of
court and ordered incarcerated for two
hours. On appeal, the government argued
that Butts’s appeal was moot as he had
already served his period of confinement.
A-43
We disagreed holding that collateral
legal consequences rendered the mootness
doctrine inapplicable. Id. at 844. This
Court pointed out the collateral
consequences of Butt’s criminal
conviction, i.e. its availability for
impeachment and future sentencing
purposes. Moreover, this Court
continued:
Conviction for contempt of court
could also have serious adverse
career consequences for Butts. His
conviction could provide a basis for
disciplinary action by a bar
association. Opportunities for
appointment to the bench or to other
high office might be foreclosed as a
result of this blot upon his record.
The conviction might damage Butts’
reputation in the legal community,
and this in turn might affect his
ability to attract clients and to
represent them effectively,
especially in open court. In light
of these possible collateral
consequences, Butts’ appeal is not
‘abstract, feigned, or hypothetical’
so as to justify dismissal for
mootness. See Sibron, supra, 392
U.S. at 57.
Schrimsher (Butts), 493 F.2d 844.
A-44
The potential collateral
consequences of a criminal contempt
conviction that prevented mootness in
Butts’ case are identical or quite
similar to the serious adverse career
consequences of disbarment that threaten
Collie.
Because of its inapposite and
distinctive context, In re Taylor, 916
F.2d 1027 (5™ Cir. 1990) (per curiam),
does not persuade us that the present
appeal is moot. The district court
sanctioned Taylor for use of an
unprescribed substance outside of court
and apparently unrelated to his law
practice, ordering him to undergo drug
monitoring, provide and advertise free
legal services to indigents, secure
professional liability insurance, and
provide an accounting of the work done
and cost incurred. The court stated that
Taylor would be subjected to further
sanctions, including disbarment, if he
failed to comply with these conditions.
Taylor appealed but resigned from the bar
prior to this Court’s consideration of
the case.
This Court in Taylor concluded that
the appeal was moot and vacated the
judgment below for several reasons.
Taylor's practice related conditions and
A-45
obligations under the district court’s
order ended upon his resignation from the
bar. This Court would not condone a
self-help type stay which would allow
Taylor to avoid the order while
challenging it. In addition, this Court
concluded that the possible collateral
consequences in Taylor’s case were too
remote, characterizing his argument on
this subject as “insufficient.” Taylor,
916 F.2d at 1028. Moreover, the Court
apparently excepted the controversy from
mootness in the event that Taylor sought
readmission and the district court
reinstated its sanctions order. Id., n.
1; Id. (Rubin, J. concurring).
The circumstances of the present
case distinguish it categorically from
Taylor. Collie did not resign from the
bar. She is an active practitioner who
suffers from the stigma of a recorded
disbarment. Rather than attempt to avoid
the district court’s order to pay
monetary sanctions, Collie complied with
it and now seeks relief from the real and
significant threat of adverse
consequences to her law practice and
career.
A-46
rit.
Having decided that Collie’s appeal
is not moot, we consider whether her
disbarment must be set aside because the
district court deprived her of procedural
due process as she was not afforded
notice and an opportunity to be heard
prior to being expelled from the bar.
Although disbarment is intended to
protect the public, it is a “punishment
or penalty imposed on the lawyer.” In re
Ruffalo, 390 U.S. 544, 550, 20 L.Ed.2d
117, 88 S.Ct. 1222 (1968). Disbarment or
suspension proceedings are adversarial
and quasi-criminal in nature. Id. at
551; United States v. Brown, 72 F.3d 25,
29 (5™ Cir. 1995); In re Medrano, 956
F.2d 101, 102 (5™ Cir. 1992). As such,
an attorney is entitled to procedural due
process which includes notice and an
opportunity to be heard in disbarment or
suspension proceedings. Ruffalo, 390
U.S. at 550; Ex Parte Bradley, 74 U.S. (7
Wall.) 364, 375, 19 L.Ed.214 (1868);
Medrano, 956 F.2d at 102; NASCO, Inc v.
Calcasieu Television and Radio, Inc., 894
F.2d 696, 706-07 (5™ Cir. 1990), aff'd
sub nom., Chambers v. NASCO, 501 U.S. 32,
115 L.Ed.2d 27, 111 S.Ct. 2123 (1991);
see also Standing Comm. On Discipline v.
Ross, 735 F.2d 1168, 1170 (9™ Cir.),
cert. denied, 469 U.S. 1081 (1984) (at a
minimum, an attorney subject to
discipline is entitled to procedural due-
A-47
process, including notice and an
Opportunity to be heard). The burden of
proving all of the elements of a
violation rests with the moving party.
Medrano, 956 F.2d at 102. A federal
court may only disbar an attorney upon
clear and convincing evidence of a
violation warranting this extreme
sanction. Id.; NASCC, 894 F.2d at 699.
Moreover, Local Rule 13.2(b) affords
an attorney similar procedural due
process protections as part of any
disciplinary action taken by a district
court. The rule provides:
(b) Grounds for Disciplinary Action.
This Court may, after the member has
been given an opportunity to show
cause to the contrary, take any
appropriate disciplinary action
against any member of its Bar.
N. DIST. TEX. R. 13.2(b) (1996) (Emphasis
added).
Federal district courts are bound by
the disciplinary rules they implement.
Matter of Thalheim, 853 F.2d 383, 386,
388 (5™ Cir. 1988). Although we conclude
that the only logical reading of this
rule requires notice and an opportunity
to be heard before an attorney is
A-48
disciplined by the court, any ambiguity
in the rule must be construed in favor of
the attorney charged with behavior
warranting discipline. Brown, 72 F.3d at
29. Cf. Baldwin v. Hale, 68 U.S. (1
Wall.) 223, 233, 17 L.Ed. 531
(1864) (“Parties whose rights are to be
affected are entitled to be heard; and in
order that they may enjoy this right they
must first be notified.”)
The record unequivocally shows that
the district court did not provide Collie
with notice or an opportunity to be heard
before disbarring her. The court, on
June 18, 1996, ordered Collie and her
client to pay the imposed sanctions
within 11 days. Without notifying Collie
that the failure to timely pay the
sanctions constituted grounds for
disbarment, and without affording her an
opportunity to be heard on the subject,
the district court, on July 18, 1996,
disbarred Collie until such time as the
sanctions were paid.
Collie’s unsuccessful appeal of the
disbarment order to the chief judge of
the district did not repair the district
court’s violation of her rights to due
process under the Constitution and the
court rules. Prior to an attorney’s
A-49
disbarment, he or she is entitled to
notice of the charges made and an
opportunity to explain or defend (except
ror extreme misconduct occurring in open
court, in the presence of the judge).
Ruffalo, 390 U.S. at 550. This principle
has been clearly and consistently
expressed by the Supreme Court. Theard
v. United States, 354 U.S. 278, 282, 1
L.Ed.2d 1342, 77 S.Ct. 1274
(1957) (“Disbarment beg the very serious
business that it is, ample opportunity
must be afforded to show cause why an
accused practitioner should not be
disbarred.”); Ex parte Robinson, 86 U.S.
(19 Wall.) 505, 511, 22 L.Ed. 205
(1873) (“Before a judgment disbarring an
attorney is rendered he should have
notice of the grounds of complaint
against him and ample opportunity of
explanation and defence.”); Ex parte
Garland, 71 U.S. (32 How.) 333, 378, 18
L.Ed. 366 (1866) (“They hold their office
during good behavior, and can only be
deprived of it for misconduct ascertained
and declared by the judgment of the court
after opportunity to be heard has been
afforded.”). See also Burkett v.
Chandler, 505 F.2d 217, 222, n.5 (10™
Cir. 1974), cert. denied, 423 U.S. 876,
46 L.Ed.2d 110, 96 S.Ct. 149
(1975) (disbarment proceeding void due to
A-50
absence of prior notice or opportunity to
be heard notwithstanding provision in
local rule for review of disbarment
judgment.). There may be cases of such
gross and outrageous conduct in open
court as to justify very summary
proceedings for an attorney’s suspension
or removal from office, “but even then he
should be heard before he is condemned.”
Robinson, 86 U.S. (19 Wall.) at 513, n. 6
(citing Ex parte Bradley, 74 U.S. (7
Wall.) 364, 19 L.Ed. 214 (1868); Bradley
v. Fisher, 80 U.S. (13 Wall.) 335, 354,
20 L.Ed. 646 (1871)). C£. Ruffalo, 390
U.S. at 354 (White, J. concurring) (“A
relevant inquiry in appraising a decision
to disbar is whether the attorney
stricken from the rolls can be deemed to
have been on notice that the courts would
condemn the conduct for which he was
removed.”). See also Johnson v. Waddell
& Reed, Inc., 74 F.3d 147 (7™ Cir.
1996) (Rule 11(c) (1) (B)’‘s requirement that
court imposing sanctions on its own
initiative describe the specific conduct
that appears to be a violation and direct
the alleged violator to show cause to the
contrary was intended to insure due
process; court’s procedure of giving
attorney after-the-fact opportunity to
convince court to set aside rule
violation it had already determined and
A-51
imposed sanctions for did not comply with
either the letter or spirit of the rule);
v . ne
29 F.3d 1018, 1027 (5™ Cir. 1994) (due
process requires notice and an
opportunity to be heard before Rule 11
sanctions are imposed).
Moreover, the Supreme Court in
Vv ill,
470 U.S. 532, 542-548, 84 L.Ed.2d 494,
105 S.Ct. 1487 (1985), held that, in the
termination of a public employee,
dischargeable only for cause, a post-
termination hearing cannot satisfy the
requirements of due process except when
it is coupled with pretermination notice
and pretermination opportunity to
respond. Accord Clements v. Airport
, 69 F.3d 321,
333-334 (9™ Cir. 1995) ("In the context of
process due a terminated public employee,
a full post-deprivation hearing does not
substitute for the required pre-
termination hearing.”); Chaney v.
Suburban Bus Division of the RTA, 52 F.3d
623 (7° Cir. 1995); Cotnoir v. University
of Maine Systems, 35 F.3d 6, 12 (1** Cir.
1994) (Constitutional deprivation complete
when employee fired without pre-
termination protections; therefore, post-
termination grievance proceedings could
A-52
not compensate for absence of
pretermination process.); Kercado-
Melendez v. Aponte-Roque, 829 F.2d 255,
262-263 (1°* Cir. 1987), cert. denied, 486
U.S. 1044 (1988) (opportunity to appeal
after notification of action is
constitutionally inadequate). This Court
has recognized that Loudermill clearly
established that post-termination
proceedings can satisfy due process
requirements only when coupled with
adequate pretermination process in public
employment termination cases. See Price
v. Brittain, 874 F.2d 252, 260-261 (5™
Cir. 1989).
Even if we were to consider this
case improperly under the Loudermill
standards, instead of appropriately under
the Supreme Court’s attorney disciplinary
cases, we would still conclude that
Collie was not afforded the process that
she was due for two reasons. First, she
was not given notice and an opportunity
.to respond prior to her disbarment.
Second, the review of her disbarment by
the chief judge was insufficient even for
Loudermill due process purposes, not only
because it was not coupled with a pre-
disbarment notice and opportunity to
respond, but also because of its own
inherent deficiencies. The mere
A-53
opportunity unsuccessfully to bring due
process violations to the attention of a
discretionary appellate-type forum does
not constitute the notice and opportunity
to be heard that is guaranteed by the Due
Process Clause. See Cole v. Arkansas,
333 U.S. 196, 201-202, 92 L.Ed. 644, 68
S.Ct. 514 (1948).
Moreover, the hearing with the chief
judge did not afford ample opportunity to
show cause why Collie should not be
disbarred: Collie’s attorney was given
only two days’ or less notice of the
hearing; the attorney objected to
conducting a hearing on such short
notice; and the attorney was not granted
adequate time to fully prepare and defend
his client.
Iv.
The district court’s only objective
in disbarring Collie was to enforce its
order that she or her client pay monetary
sanctions to reimburse Vought its costs
and attorney’s fees in defending
unwarranted actions. The district
court’s disbarment order expressly stated
that, in order to enforce its monetary
sanctions order, it was necessary to bar
Collie from practice until the sanctions
A-54
had been paid in full. The district
court did not expressly or implicitly
find that Collie was unfit to practice
law. On the contrary, the court
specifically permitted Collie to continue
to represent clients in five particular
cases. Moreover, the court fully
reinstated Collie to practice when it
received notice that she had paid the
sanctions in full. Consequently, because
the only goal of the district court’s
disbarment order has been fully attained,
and all of the underlying litigation has
been finally resolved, the proper
disposition of this case is to reverse
and vacate the district court’s order
disbarring Collie. See Ruffalo, 390 U.S.
at 551-52; Robinson, 86 U.S. (19 Wall.)
at 512; Thalixeiz 853 F.2d at 389-90;
Schrimsher (Butts;, 493 F.2d at 845.
Conclusion
Accordingly, this court renders
judgment that the district court’s order
disbarring Noemi Alessandra Collie is
REVERSED and VACATED.
A-55
JERRY E. SMITH, Circuit Judge,
dissenting:
I respectfully dissent from the
majority’s reversal of the suspension
order.® Although the district court
initially violated Collie’s procedural
due process rights by failing to give her
.a hearing before ordering her suspension,
that violation was cured by the
subsequent hearing before the chief
judge. Moreover, I would find that the
chief judge did not abuse his discretion
by ordering Collie suspended from
practice before that court until her
sanctions were paid.
I.
I agree with the majority that the
district court’s failure to give Collie a
hearing prior to her suspension was
constitutionally infirm because due
A-56
®*Although I am uncomfortable with
the majority’s justiciability analysis,
the issue is foreclosed py binding
circuit precedent, and thus we are
obliged to reach the merits. See Walker
v. City of Mesquite, 129 F.3d 831, 832
(5™ cir. 1997).
process requires that an attorney be
given notice and an opportunity to be
heard before he is suspended or
disbarred, not after. The majority and I
part company, however, when it comes to
whether the district court successfully
cured that violation through the
subsequent hearing before the chief
judge. It is well established that “a
procedural due process violation is not
complete ‘unless and until the State
fails to provide due process.’ In other
words, the state may cure a procedural
deprivation by providing a later
procedural remedy; only when the state
refuses to provide a process sufficient
to remedy the procedural deprivation does
a constitutional violation” become
actionable. McKinney v. Pate, 20 F.3d
1550, 1557 (11 Cir. 1994) (quoting
Zinermon v. Burch, 494 U.S. 113, 126, 110
S.Ct. 975, 983-84, 108 L.Ed.2d 100
(1990)).°
~ In the usual manifestation of the
“cure doctrine,” not present in this
case, the plaintiff would be able to
recover damages from the governmental
actor only for the period between his
deprivation without due process and the
subsequent sufficient due process
hearing. See, e.g., Wheeler v. Mental
Health & Mental Retardation Auth., 752
F.2d 1063, 1070 (5™ Cir. 1985). Because
Collie alleges only the harm of “stigma”
The relevant question, therefore,
becomes whether the “subsequent due
process hearing was sufficient to cure
the defect.” Best v. Boswell, 696 F.2d
1282, 1288 (11™ Cir. 1983). The majority
offers two reasons for answering this
question in the negative. First and
foremost, it relies on cases holding that
procedural due process requires an
antecedent hearing to deprivation. _
Secondarily, the majority finds that the
chief judge’s hearing was flawed because
Collie did not receive adequate notice.
Unfortunately, the majority’s
primary justification for rejecting the
later nearing has nothing to do with the
cure doctrine. Rather, it concerns what
constitutes a procedural due process
violation in the first instance. I
reiterate that I do not disagree with the
majority that Collie was entitled to a
hearing before suspension. Had she, for
A-58
F.2d 1063, 1070 (5 Cir. 1985). Because
Collie alleges only the harm of “stigma”
(the monetary sanction having been
affirmed in an earlier appeal), and
because I find the chief judge’s
suspension order--and any accompanying
“stigma”--were properly imposed, no
relief is warranted.
instance, suffered some distinct,
quantifiable harm for the period between
deprivation and hearing, she would be
entitled to a remedy. But see supra not
ae
But the majority appears to hold
that a hearing subsequent to suspension
can never act as a cure because the cure
comes after the deprivation. The very
definition a “cure,” however, is a
procedurally sufficient hearing that
comes after a procedural due process
violation has occurred, that is, after
the deprivation has taken place. For
this reason, the cases that the majority
cites, see, e.g., Cleveland Bd. of Educ.
V. Loudermill, 470 U.S. 532, 542-48, 105
s$.Ct. 1487, 1493-97, 84 L.Ed.2d 494
(1985), are inapposite, for they deal
with what constitutes a procedural due
process violation in the first instance
and do not implicate the analytically
distinct doctrine of a cure for such a
violation once it has occurred.
The majority’s secondary
justification for rejecting the chief
judge’s hearing--lack of notice--does not
go to the adequacy of the cure.
Unfortunately, here, the majority’s
conclusion is unsupported by the facts.
A-59
Collie was given more than adequate
notice of the September 6, 1996, hearing
before the chief judge. By July 18,
Collie knew of the charges against her
and the fact that suspension was being
considered. On July 29, she filed a
request for a hearing before the chief
judge, and she did so again on September
4. He granted her request that day and
held the hearing on September 6.
Collie raised no objection prior to
the hearing. She obviously knew it to be
an evidentiary hearing, as she brought
witnesses and asked to enter testimony.
At that point, Collie had fifty days
to prepare for an evidentiary hearing and
to consider the nature of the charges
against her and the appropriateness of
the suspension. Under our caselaw, this
amount of time is more than adequate
notice for such proceedings. See Childs
v. State Farm Mut. Auto. Ins. Co., 29
F.3d 1018, 1027 (5™ Cir. 1994) (attorney
given seven hours notice prior to FED. R.
CIV. P. 11 hearing.).
The hearing before the chief judge
was also procedurally sufficient. Collie
was able to present witnesses and to
develop a record. At that point, the
A-60
chief judge had “absolute discretion”
either to follow the district judge’s
order or to chart a different course
given his independent findings. See N.
DIST. TEX. R. 13.2(b). In short, Collie
was given an “effective opportunity to
rebut” the charges against her. Glenn v.
Newman, 614 F.2d 467, 472 (5™ Cir. 1980).
II.
The majority’s analysis seems to be
driven by its view that this suspension
order was unwarranted. I disagree.
When a court imposes sanctions based
on its inherent powers, they must be
“essential to preserve the authority of
the court” and must be the least severe
sanctions adequate to achieve that end.
Scaife v. Associated Air Ctr. Inc., 100
F.3d 406, 411 (5™ Cir. 1996) (internal
citation and quotation marks omitted).
“If there is a reasonable probability
that a lesser sanction will have the
desired effect, the court must try the
less restrictive measure first.” Natural
Gas Pipeline Co. of Am. v. Energy
Gathering, Inc., 86 F.3d 464, 467 (5™
Cir. 1996).
A-61
To impose such sanctions, the court
must make a specific finding that the
attorney acted in “bad faith.” Elliott
v. Tilton, 64 F.3d 213, 217 (5™ Cir.
1995). We review such a finding for
abuse of discretion. See Dawson v.
United States, 68 F.2d 886, 895 (5™ Cir.
1995).
A.
Collie’s conduct meets the legal
standard for imposing suspension. The
chief judge, after a full and fair
hearing, found that Collie “had willfully
ignored [the district judge’s] orders.”
The chief judge found Collie’s statement
that she had “overlooked” the deadline
unbelievable, because, “it was a critical
deadline,” and “[s]he met one of those
deadlines but not another.” I see no
ground for finding this factual
determination clearly erroneous.*° See
United States v. Jackson, 19 F.3d 1003,
1007 (5™ Cir. 1994) (citation omitted)
(holding that credibility judgments are
particularly within the province of the
factfinder).
A-62
°rn her brief, Collie admits that
her failure to pay the fine was willful:
Having insufficient funds, she never
intended to satisfy the fine.
The chief judge, moreover, was
justified in finding that suspension was
the least severe action available to
preserve the court’s authority; forcing
attorneys to comply with orders
sanctioning them is essential to
maintaining that authority. If an
attorney fails to pay assessed sanctions,
it is difficult to see how any sanction
less than suspension can satisfy that
end. Certainly, more monetary sanctions
would be useless, especially when the
attorney lacks the funds to pay then.
The majority’s failure to recognize
that before imposing suspension, the
district court did “find that Collie was
unfit to practice law,” is also
incongruent with the existing
jurisprudence. Collie’s failure to pay
the sanctions made her unfit per se to
practice law before the district court.
We have authorized the practice of
forbidding a litigant from filing
pleadings until he has satisfied a
sanction, even if he is unable to pay.”
“See, e.g., Smith v. Legg (In re
United Markets Int’l, Inc.), 24 F.3d 650,
655-56 (5™ Cir. 1994) (customary
litigant); Coane v. Ferrara Pan Candy
Co., 898 F.2d 1030, 1034 (5™ Cir. 1990)
We now should follow the Seventh and
Tenth Circuits and hold that “[a] lawyer
who is unwilling, or unable, to pay
accumulated sanctions must desist from
practice until he can follow the ccurt’s
orders.” In re Maurice, 69 F.2d 830, 835
(7 cir. 1995).7* Attorneys practicing
before a court should be held to a
higher, not lower, standard than are pro
ge litigants.
Unfortunately, the majority charts a
different course. In doing so, its
ruling has the effect both of imposing
stricter disciplinary requirements upon
pro se litigants than upon attorneys, and
of removing the only effective deterrent
to an indigent attorney’s flaunting of
the district court’s authority.
Accordingly, I respectfully dissent.
(attorney litigant); Gelabert v. Lynaugh,
894 F.2d 746, 748 (5™ Cir. 1990) (per
curiam) (prisoner litigant).
12S5ee Cleveland Hair Clin.c. Inc. v-
Puig, 106 F.3d 165, 168 (7 Cir. 1997);
In re Smith, 10 F.2d 723, 724 (10™ Cir.
1993) (per curiam). In Maurice and Puig,
the attorney was given an opportunity to
show cause why he should not be
suspended. In Smith, the attorney
already had had such an opportunity at
oral argument.
SUPREME COURT, STATE OF COLORADO
Case No. GC 95B-124
ORIGINAL PROCEEDING IN DISCIPLINE BEFORE
THE GRIEVANCE COMMITTEE
FINDINGS OF FACT AND RECOMMENDATIONS OF
THE HEARING BOARD
THE PEOPLE OF THE STATE OF COLORADO,
Complainant,
vs.
DAVID LEE SMITH,
Respondent.
This matter was heard on November 25
and 26, 1996 in Denver, Colorado, before
a hearing board (“board”) composed of
Mark D. Korman and Bethiah Beale Crane,
enlisted members of the Bar, and John F.
Gallagher, Presiding Officer. The People
were represented by James C. Coyle,
Assistant Disciplinary Counsel, and the
respondent appeared pro se.
A-65
The Complaint charged the respondent
with violations of Rule 241.6 of the
Colorado Supreme Court Rules Concerning
discipline of Attorneys, the Colorado
Rules of Professional Conduct, R.P.C.
Rule 8.4(a) (violation of a rule of
professional conduct), Rule 8.4(d)
(engaging in conduct that is prejudicial
to the administration of justice); and
Rule 8.4(h) (engaging in any other _
conduct that adversely reflects on the
lawyer’s fitness to practice law).
The board heard testimony from the
respondents’ witnesses (Robert Atkinson,
Jr., Julia Hook, James E. Qualls and
Bennett J. Wasserman) and considered
statements and arguments by Mr. Coyle and
Mr. Smith.
The complainant’s exhibit 1 was
received into evidence. The
complainant’s exhibit 5, the alleged
Certificate of Service, was offered into
evidence, but not admitted. The
respondent’s exhibits A, B, Q and r were
received into evidence. The respondent’s
exhibits C through P, and S and T, were
offered into evidence, but not admitted.
On November 22, 1996, the respondent
filed the following:
A-66
(1) A Motion to Dismiss Complaint
With Prejudice For Lack of Independent
Prosecutor with the Supreme Court of the
United States. A ruling on that motion
was deferred, and said motion is hereby
denied.
(2) A document styled “Respondent’s
Suggestion that the Supreme Court of
Colorado Lacks Jurisdiction of the
Subject Matter of the Complaint,” which
requested relief of an order dismissing
the complaint. Ruling on that request
was deferred and is hereby denied.
At the outset of hearing, the
following motions were made:
1. The complainant orally moved to
sequester witnesses. The motion was
granted as to fact witnesses, excluding
Julia Hook and the expert witnesses.
2. The respondent orally moved for
Gismissal of the complaint on grounds of
the complainant’s failure to provide a
speedy trial and that the disciplinary
counsel’s office was aware of
respondent’s disbarment by the United
States Supreme Court on November 7, 1995,
yet it did not serve the complaint on
respondent until December 29, 1995.
Ruling on that motion was deferred and is
hereby denied.
A-67
At the close of testimony, the
parties were requested to file by
December 5, 1996 additional information
or position statements addressing the
meaning and impact of disbarment by the
United States, Supreme Court, and that
Court’s requirement for reinstatement to
practice before it. The complainant
submitted additional information,
including an affidavit from Deborah L.
Ortiz, Disciplinary Counsel Investigator,
stating that an attorney disbarred by the
United States Supreme Court may petition
for readmission to that court after
completing three years of good standing
in the jurisdiction where the lawyer is
licensed, and the petition is subject to
review by the full court.
On December 4, 1996, respondent
filed his “Motion for an Expedited
Determination of His Guilt or Innocence
on the Charges of the Complaint, and
Statement of Position on the Issue of the
Duration of a Disbarment by the Supreme
Court of the United States.” Respondent
stated that he had been unable to find
any authority on the issue of the
duration of a disbarment by the United
States Supreme Court, and requested an
expedited decision by this board.
On December 4, 1996, respondent
filed his “Verified Supplement to Record
A-68
Concerning Certificate of Service
Obtained by Assistant Disciplinary
Counsel James C. Coyle from Rolf G.
Asphaug.” Respondent therein recited his
recollections of fact concerning a
question addressed to him at hearing as
to the filing with this board of certain
documents.
filed a Supplement to its Response to
Respondent’s Verified Statement to Record
Concerning Certificate of Service which
presented a set of certified copies
received from the United States Supreme
Court on January 7, 1997 of a motion for
just damages and double costs and
certificate of service regarding such
motions received by the United States
Supreme Court on February 15, 1995.
On January 13, 1997, respondent
filed a “Motion to Strike Response and
Supplement to Response filed by Assistant
Disciplinary Counsel James C. Coyle,”
which requests the striking of the
document presented by complainant as a
certified copy of the certificate of
service. Given the conclusion below,
ruling on this motion is moot.
A-69
PINDINGS OF FACT
Based on the evidence presented, the
board finds that the following facts are
established by clear and convincing
evidence:
1. The respondent was licensed to
practice law in the State of Colorado on
——Oetober-6,-1975, registration number
6934. The respondent is subject to the
disciplinary and disability jurisdiction
of the Colorado Supreme Court and its
Grievance Committee in these disciplinary
proceedings. C.R.C.P. 241.1(b), et seq.
2. The respondent was disbarred
from the Supreme Court of the United
States on November 27, 1995 for failing
to comply with a March 6, 1995 order of
that Court (copy attached and marked as
complainant’s exhibit A).
3. The March 6, 1995 order with
which the respondent failed to comply
granted a motion by the Regional
Transportation District for award of
damages and double costs related to the
respondent’s filing of a Petition for
Writ of Certiorari with the United States
Supreme Court in the case of James Edward
Qualls and David L. Smith v. Regional
Transportation District, et al. No. 94-
1283, which the Regional Transportation
A-70
District claimed was frivolous. The
respondent was ordered to pay $500.00 to
counsel for the Regional Transportation
District on or before March 27, 1995.
4. The respondent did not pay the
$500.00. The respondent argued at
hearing that he deliberately chose not to
because he wanted the opportunity to
contest the order upon which it was
based.
5. An Order to Show Cause was
entered by the Court on October 2, 1995
ordering the respondent to pay the
$500.00 as previously ordered with 21
days, and to show cause in writing why he
should not be disbarred from the practice
of law in the Court or otherwise
disciplined for failure to comply with
the previous order. The respondent was
suspended from practice before the Court
pending outcome of the matter.
6. The respondent filed a Verified
Response to Rule to Show Cause on October
25, 1995, but did not pay the $500.00
which he had previously been ordered to
pay.
A-71
7. U.S. Supreme Court Rule 8
provides as follows: ~~
Rule 8. Disbarment and Disciplinary
Action
1. Whenever it is shown to the
Court that a member of the Bar of
this Court has been disbarred or
__ suspended from practice in any court —
of record, or has engaged in conduct
unbecoming a member of the Bar of
this Court, that member will be
suspended from practice before this
Court forthwith and will be afforded
the opportunity to show cause,
within 40 days, why a disbarment
order should not be entered. Upon
response, or upon the expiration of
the 40 days if no response is made,
the Court will enter an appropriate
order.
2. The Court may, after
reasonable notice and an opportunity
to show cause why disciplinary
action should not be taken, and
after a hearing if material facts
are in dispute, 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.
A-72
8. The United States Supreme Court
7" did not charge the respondent with
conduct unbecoming a member of the Bar of
the Court, did not allow 40 days in which
he would be afforded the opportunity to
show cause, and did not conduct a hearing
of any sort.
i 9.__-A lawyer disbarred from the ===
pediittin’ of law before the United States
Supreme Court may petition for
readmission after completing three years
ef good standing in the jurisdiction in
which the lawyer is licensed.
10. Failure to pay a court ordered
fine is not, in and of itself, grounds
for disbarment in any jurisdiction.
DISCUSSION
11. This matter was prosecuted as a
reciprocal proceeding based upon Rule
241.17. Independent violations of other
disciplinary rules were also alleged,
although no evidence was presented by
Complainant in support of these
violations other than the fact of the
respondent’s disbarment by the United
States Supreme Court.
A-73
12. Rule 241.17(d) requires this
‘board to refer the matter to our Supreme
Court “with the recommendation that the
same discipline be imposed by the Supreme
Court as was imposed by the foreign
jurisdiction” unless the board determines
one of the following four exceptions has
been met:
(1) The procedure followed in
the foreign jurisdiction did not
comport with requirements of due
process of law;
(2) The proof upon which the
foreign jurisdiction based its
determination of misconduct is so
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.
A-74
13. The complainant’s case relied
entirely upon the fact of the # ©
respondent’s disbarment from the United
States Supreme Court. Exploration of the
basis and procedure related to the
disbarment was made by extensive factual
and expert testimony presented in defense
of the respondent’s actions.
14. The respondent essentially
asserted two defenses. First, he argued
his refusal to pay the $500.00 fine
imposed by the Court was based upon his
good faith belief that his original
Petition for Writ of Certiorari was not
frivolous, and that it had not received
adequate consideration as an argument for
extension or change of existing law. He
believed disobeying the Court’s order was
the only avenue available to obtain
further review of his case, and that the
risk he faced, by not paying the fine,
was a possible further sanction or threat
of contempt. Second, the respondent
contended he was not afforded due process
in his disbarment, and that the conduct
which led to his disbarment did not
amount to an ethical violation which
would warrant professional discipline in
Colorado.
A-75
15. The respondent’s tenacious quest
United States Supreme Court might be
considered by some as ill-conceived,
overzealous, or even bizarre quirkiness.
Many attorneys, including the board
members, would probably have conceded
defeat, or at least paid the Court’s
sanctions while pursuing further review. —_——
The board members believe that the
respondent’s decision to not pay the
Court’s sanctions at least by deposit to
the Court, if not to Mr. Asphaug, was
unwise. The board is nevertheless
persuaded that the respondent’s refusal
to pay the sanction reflected his belief,
albeit also his poor judgment, that this
was a necessary choice in order for his
case to have a chance for additional
review by the Court. The board also
believes the discipline reasonably risked
by pressing further review in such manner
was an additional monetary sanction or a
possible threat of contempt, and not
disbarment.
16. Moreover, the board is extremely
concerned with the process which led to
the respondent’s disbarment. Expert
testimony was presented in the area of
professional responsibility generally,
and practice before the United States
Supreme Court. That evidence
demonstrated that the failure to pay a rs
A-76
court ordered sanction was not the basis —
for disciplinary action in any
juriediction, or the United States
Supreme Court. The complainant presented
no evidence that such a failure was the
basis for disciplinary action in
Colorado.
17. It also appears to the board
that the United States Supreme Court
failed to follow the requirements of its
own Rule 8, set forth above, by failing
to advise the respondent that he was
charged with “conduct unbecoming a
member” of the Court, failing to afford
the respondent a full 40 days within
which to show cause, and failing to
conduct a hearing on the material
disputed fact of the reason behind the
respondent’s refusal to pay the $500.00
sanction. Taken as a whole, the evidence
strongly implies that the majority of the
Court’s Justices did not review and may
not have been aware of the respondent’s
disbarment. It appears to the board that
the disciplinary action was taken by the
Court’s clerk and treated as a
ministerial act.
18. Also troubling is the
information presented in the affidavit of
Deborah L. Ortiz, outlining that a lawyer
disbarred from the practice of law before
the United States Supreme Court may
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_ petition for readmission after completing
three years of good standing in the
jurisdiction in which the lawyer is
licensed. If the respondent’s license to
practice law in Colorado is revoked
because of his disbarment by the United
States Supreme Court, then his ability to
petition for readmission to the United
States Supreme Court after three years
good standing in Colorado is foreclosed.
The United States Supreme Court’s
readmission policy seems to contemplate
the absence of reciprocal discipline in a
lawyer’s licensing jurisdiction.
CONCLUSIONS
19. The board concludes that the
respondent’s inability to be heard in a
meaningful time and manner as required by
the United States Supreme Court’s Rule 8
amounts to a denial of due process, and
that the proof upon which the disbarment
was founded was so infirm that the
Colorado Supreme Court cannot, consistent
with its duty, accept as final the United
States Supreme Court’s determination.
Additionally, the board believes that the
imposition by the Colorado Supreme Court
of the same discipline imposed by the
United States Supreme Court would result
in grave injustice to the respondent.
Hence, the board concludes that the
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exceptions in Rule 241.17(d) have been
satisfied so as to preclude a
recommendation that the Colorado Supreme
Court impose the same discipline as that
imposed by the United States Supreme
Court.
20. The board also concludes that
the respondent’s actions did not
constitute a violation of any of the
Colorado Rules of Professional Conduct
set forth in the complaint (R.P.C. Rules
8.4(a), 8.4(d) or 8.4(h)).
The hearing board recommends to the
hearing panel that the complaint filed in
this disciplinary proceeding be
dismissed.
DATED this 6“ day of March, 1997.
Mark D. Korman
Bethiah Beale Crane
John F. Gallagher
Presiding Officer
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SUPREME COURT, STATE OF COLORADO
CASE NO. 97SA169
RECIPROCAL PROCEEDING IN DISCIPLINE,
GC 95B-124
ORDER OF COURT
THE PEOPLE OF THE STATE OF COLORADO,
Petitioner,
vs.
DAVID LEE SMITH,
Respondent.
Upon consideration of the
Complainant’s Petition for Review
Pursuant to C.R.C.P. 241.15(b) (1) filed
in the above cause, and now being
sufficiently advised in the premises,
IT IS THIS DAY ORDERED that the
Complainant’s Petition for Review
Pursuant to C.R.C.P. 241.15(b) (1) shall
be, and the same hereby is, DENIED.
BY THE COURT, May 16, 1997.
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ce
James C. Coyle
Disciplinary Counsel
600 - 17" Street, #510 South
Denver, CO 80202-5434
David Lee Smith
1630 Welton Street, #300
Denver, CO 80202
James Hollaway
Grievance Committee Counsel
600 - 17™ st., #920 South
Denver, CO 80202-5434
David Lee Smith
5800 E. 6" Avenue Parkway
Denver, CO 80220
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