Petition for Writ of Certiorari — Smith v. United States (No. 09-303)
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\" 09-303 AUG 26 2009
No. _____GP FICE OF THE CLERK
IN THE
Supreme Court of the Gnited States
IN RE DAVID LEE SMITH,
PETITIONER,
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Tenth
Circuit
PETITION FOR A WRIT OF CERTIORARI
M. JULIA HOOK
ATTORNEY AT LAW
5800 East 6th Avenue Parkway
Denver, Colorado 80220
(303) 321-7403
COUNSEL OF RECORD FOR
PETITIONER DAVID LEE SMITH
August 26, 2009
QUESTIONS PRESENTED
Whether the District Court Disciplinary Panel
failed or refused to follow its own local rules of
practice, which are unconstitutional on their face
and/or as applied to Smith in this case.
Whether the local rules of practice of the United
States District Court for the District of Colorado
providing that an attorney member of the District
Court’s Bar must remain in good standing in the
bars of all state and federal courts to which the ©
attorney member has been admitted in order to be
reinstated or readmitted to the District Court’s Bar
are consistent with “the principles of right and
justice” necessary to prevent arbitrary
discrimination against Smith, as an out-of-state
(Texas) attorney seeking reinstatement or
readmission to the District Court’s Bar.
Whether the local rules of practice of the United
States District Court for the District of Colorado
providing that an attorney member of the District
Court's Bar must remain in good standing in the
bars of all state and federal courts to which the
attorney member has been admitted in order to be
reinstated or readmitted to the District Court’s Bar
constitute an abuse of the District Court’s discretion
to adopt local rules that are necessary to carry out
the conduct of its business under 28 U.S.C. §§ 1654,
2071 and Fed. R. Civ. P. 83.
Whether Chief Judge Nottingham was required
to disqualify himself from the proceeding on Smith's
application for reinstatement or readmission to the
District Court’s Bar in accordance with 28 U.S.C. §
455(a) and (b); whether his conduct constituted a
denial of Fifth Amendment due process of law.
Whether the District Court Disciplinary Panel
abused its discretion and/or committed reversible
error by refusing to disclose items omitted from the
record on appeal, including but not limited to, the
recommendation of the Committee on Conduct on
Smith’s application for reinstatement or readmission
to the District Court’s bar, as well as the underlying
documentation, or to supplement the record on
appeal with the omitted items, which were necessary
for Smith to be able to prepare and submit his brief
and appendix on appeal—in violation of Fed. R. App.
P. 10(e) and the Fifth Amendment to the
Constitution of the United States.
Whether Senior Circuit Judge Brorby was
required to disqualify himself from Smith’s appeal in
accordance with 28 U.S.C. § 455(a) and )); whether
his failure to disqualify himself from serving on the
Tenth Circuit Panel hearing Smith’s appeal (and,
instead, actually authoring the Order and Judgment
denying the appeal) constituted a denial of Fifth
Amendment due process of law.
Whether in approving the District Court
Disciplinary Panel’s refusal to reinstate or readmit
Smith to the District Court’s Bar, the Tenth Circuit
has again grossly abused its inherent power to
impose attorney discipline and other sanctions
against Smith, and has so far departed from the
accepted and usual course of judicial proceedings, or
sanctioned such a departure by the District Court as
to call for an exercise of this Court’s supervisory
power.
TABLE OF CONTENTS
eg i
a Vili
re kia ee cb ae eee bens Xiil
IER ee x1ll
Constitutional Provisions, Statutes,
rr ww wee wnececes XV
CE Cr COG Me wt twee ween 1
Reasons for Granting the Writ................. 6
A. REVIEW IS WARRANTED BECAUSE THE
DISTRICT COURT DISCIPLINARY PANEL,
FAILED OR REFUSED TO FOLLOW ITS OWN
LOCAL RULES OF PRACTICE, WHICH ARE
UNCONSTITUTIONAL ON THEIR FACE AND/OR
AS APPLIED TO SMITH IN THIS CASE......... 7
B. REVIEW IS WARRANTED BECAUSE THE
LOCAL RULES OF PRACTICE OF THE ONITED
STATES DISTRICT COURT FOR THE DISTRICT
OF COLORADO PROVIDING THAT AN
ATTORNEY MEMBER OF THE DISTRICT
COURT'S BAR MUST REMAIN IN GOOD
STANDING IN ‘THE BARS OF ALL STATE AND
FEDERAL COURTS TO WHICH THE ATTORNEY
MEMBER HAS BEEN ADMITTED IN ORDER TO
BE REINSTATED OR READMITTED TO THE
DISTRICT COURT'S BAR ARE INCONSISTENT
WITH “THE PRINCIPLES OF RIGHT AND
JUSTICE” NECESSARY TO PREVENT
ARBITRARY DISCRIMINATION AGAINST
SMITH, AS AN OUT-OF-STATE (TEXAS)
ATTORNEY SEEKING REINSTATEMENT OR
READMISSION TO THE DISTRICT COURT'S
C. REVIEW IS WARRANTED BECAUSE THE
LOCAL RULES OF PRACTICE OF THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT
OF COLORADO PROVIDING THAT AN
ATTORNEY MEMBER OF THE DISTRICT
COURT’S BAR MUST REMAIN IN GOOD
STANDING IN THE BARS OF ALL STATE AND
FEDERAL COURTS TO WHICH THE ATTORNEY
MEMBER HAS BEEN ADMITTED IN ORDER TO
BE REINSTATED OR READMITTED TO THE
DISTRICT COURT’S BAR CONSTITUTE AN
ABUSE OF THE DISTRICT COURT’S
DISCRETION TO ADOPT LOCAL RULES THAT
ARE NECESSARY TO CARRY OUT THE
CONDUCT OF ITS BUSINESS UNDER 28 U.S.C.
§§ 1654, 2071 AND FED. R. CIV. P. 83.......... 18
D. REVIEW IS WARRANTED BECAUSE CHIEF
JUDGE NOTTINGHAM WAS REQUIRED TO
DISQUALIFY HIMSELF FROM THE
PROCEEDING ON SMITH’S APPLICATION FOR
REINSTATEMENT OR READMISSION TO THE
DISTRICT COURT'S BAR IN ACCORDANCE
WITH 28 U.S.C. § 455(A) AND (B); HIS CONDUCT
CONSTITUTED A DENIAL OF FIFTH
AMENDMENT DUE PROCESS OF LAW....... 19
E. REVIEW IS WARRANTED BECAUSE THE
DISTRICT COURT DISCIPLINARY PANEL
ABUSED ITS DISCRETION AND/OR COMMITTED
REVERSIBLE ERROR BY REFUSING TO
DISCLOSE ITEMS OMITTED FROM THE
RECORD ON APPEAL, INCLUDING BUT NOT
LIMITED TO, THE RECOMMENDATION OF THE
COMMITTEE ON CONDUCT ON SMITH’S
APPLICATION FOR READMISSION OR |
REINSTATEMENT TO THE DISTRICT COURT'S
BAR, AS WELL AS THE UNDERLYING
DOCUMENTATION, OR TO SUPPLEMENT THE
RECORD ON APPEAL WITH THE OMITTED
ITEMS, WHICH WERE NECESSARY FOR SMITH
TO BE ABLE TO PREPARE AND SUBMIT HIS
BRIEF AND APPENDIX ON APPEAL—IN
VIOLATION OF FED. R. APP. P. 10(K) AND THE
FIFTH AMENDMENT TO THE CONSTITUTION
So gee EP yy Rg yy yo. ee 22
F. REVIEW [S WARRANTED BECAUSE SENIOR
CIRCUIT JUDGE BRORBY WAS REQUIRED TO
DISQUALIFY HIMSELF FROM SMITH'’S APPEAL
IN ACCORDANCE WITH 28 U.S.C. § 455(A) AND
(B); HIS FAILURE TO DISQUALIFY HIMSELF
FROM SERVING ON THE TENTH CIRCUIT
PANEL HEARING SMITH’S APPEAL (AND,
INSTEAD, ACTUALLY AUTHORING THE ORDER
V
AND JUDGMENT DENYING THE APPEAL)
CONSTITUTED A DENIAL OF FIFTH
AMENDMEN'T DUE PROCESS OF LAW
G. REVIEW IS WARRANTED BECAUSE IN
APPROVING THE DISTRICT COURT
DISCIPLINARY PANEL’S REFUSAL TO
REINSTATE OR READMIT SMITH TO THE
DISTRICT COURT'S BAR, THE TENTH CIRCUIT
HAS AGAIN GROSSLY ABUSED ITS INHERENT
POWER TO IMPOSE ATTORNEY DISCIPLINE
AND OTHER SANCTIONS AGAINST SMITH, AND
HAS SO FAR DEPARTED FROM THE ACCEPTED
AND USUAL COURSE OF JUDICIAL
PROCEEDINGS, OR SANCTIONED SUCH A
DEPARTURE BY THE DISTRICT COURT AS TO
CALL FOR AN EXERCISE OF THIS COURT'S
5g og 8 a 2... Sa rarer 27
APPENDIX:
In re Smith, No. 08-1323 (10% Cir. May 12,
I eke ee ecteners la
In re Smith, No. 08-1323 (10 Cir. May 28,
In re Smith, Disciplinary Action No. 96-DP-4 (D.
a | ra mo ee
In re Smith, Disciplinary Action No. 96-DP-4 (D.
Colo. September 18, 2008)................... 13a
Vi
In re Smith, Disciplinary Action No. 96-DP-4 (D.
ee | re l4a
In re Smith, No. 93-631 (10% Cir. May 4, 2007). . 16a
In re Smith, No. 08-1323 (10 Cir. February 13,
Ee eG Ae Ae ora er en aa eee a 19a
In re Smith, No. 08-1323 (16' Cir. February 20,
Se ak ed eg a ee a eR ee oe ee ee ee 20a
- 23 2a Fe) ere ae ar 2la
Se is os gy scan eld eae ee ee 2la
i ky 4s oO re ee 22a
Pe ee os a eee ee re ed eo eS 23a
ee NN ee ie an hk ed ee ee Ke Oe 23a
Eee ee TE CAS os kc ec a hes wee 25a
ieee es Fe Fe” GS Ve re aera 25a
kee ee Fe Pe 2. ear 26a
iS Oe ee FILLS ) ) 35 t
Shee ee Fu ta’, 2. yh. ee onan 28a
ik ake es Fo SS a) Sip hee na cr ar arma arer 28a
iRGk bt Fx: a. 4 2’ sae ner eae 29a
iXeote t Pela” Fy See Ee re 30a
TABLE OF AUTHORITIES
Cases
Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct.
Bre, Oe Oa: We BE LET. oct ce ee 14, 15
Caperton v. A.T. Massey Coal Co., 129 S.Ct.
I. 6 le al EK Oe 21, 26
Casillan v. Regional Transportation District, 986
F.2d 1426 (10th Cir. 19938), cert. dented, 512 U.S.
EN Be eg eS edo lk ula b hak oo 27
Chambers v. NASCO, 501 U.S. 32, 112 S.Ct. 12,
RE eee Wee CE, ook cca ccccebewscaus’ 28
Conn vu. Gabbert, 526 U.S. 286, 119 S.Ct. 1292,
Si By ee ee Cc cc cece ace c ww kee uce 13
Corbitt v. Anderson, 778 F.2d 1471 (10% Cir.
ul WAG ea 0 rei Ue peo pal a 14
DeHerrera v. City and County of Denver,
89 F.3d 849 (10th Cir. 1996)............... 27, 28
Dent v. West Virginia, 129 U.S. 114,958.Ct. 231,
ee aia kw ackk se ee 14
Dunkin v. Loutsiana-Pacific Corp., 89 F.3d 849
(10% Cir. 1996), cert. denied, 1175.Ct. 435
(1996) 21, 27, 28
i = os a . *) 6 Oe ee 2s 6.8 2 &£ 6 6.6 £1 S. » So oe > -_ *
Dunkin v. Louisiana-Pacific Corp., 120 F.3d 270
(10 Cir. 1997), cert. denied, 118 S.Ct. 884
SS Ss Oikos Soe EEE ena ee 21, 28
Frazier v. Heebe, 482 U.S. 641, 107 S.Ct. 2607,
ey eee. ee OT RAT), ce coke eb eseean 6, 18, 19
Howard v. Mail-Well Envelope Co., 150 F.3d 1227
(10th Cir. 1998) (en banc) (per curtam)....... 27, 28
In re Atlorney Disciplinary Matter, 98 F.3d 1082
Sr ny Se Ss sb ei he eke tee eee 6
In re Dawson, 609 F.2d 1139 (5% Cir. 1980)... . 7, 17
In re Jafree, 759 F.2d 604 (7% Cir. 1985)
SE GUUT TREE. 6 pe cee kee ee sae ee eb eee 6
In re Reinstatement of Leaf, 41 F.3d 281 (7 Cir.
RS os Se E bo © Bb bw ee Dea ae 6
In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222,
Be i.e. oe 117 CLOGS)... ee ee eee
In re Smith, 10 F.3d 723 (10th Cir. 1993), cert.
denied, 513 U.S. 807 (1994). .......... 1, 25, 26, 28
In re Smith, 76 F.3d 335 (10™ Cir. 1996) (per
curtam), cert. dented, 519 U.S. 871
(199GB). . 0. ccc cece ce er ce wn eee acan by ey Ole oO
In re Smith, No. 96-DP-4 (D. Colo. April 26,
os) Pee
In re Smith, 989 P.2d 165 (Colo. 1999) (per
eS a at eee Od oy NE WS oe ia pad 3
In re Smith, No. 08-822 (10* Cir, September 16,
OR ore ere a ae ere ee ae ee 238
Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625,
SO ete b ce ede eenvna 14
Paul v. Davis, 424 U.S. 6938, 96 S.Ct. 2194,
GS. oc.) Sa 14
People v. Smith, 937 P.2d 724 (Colo. 1997) (per
curtam), cerl. dented, 522 U.S. 858 (1997). ....... 3
Qualls v. Regional Transportation District,
No. 05-1385 (10 Cir. July 23, 1996)........ 27,28
Razatos v. The Colorado Supreme Court, 746
Pie 140 (10 Car. 1964)... cc cee ee eee ees 20
Roadway Express v. Piper, 447 U.S. 752, 100 8.Ct.
2455, 65 L.Ed.2d 488 (1980) ee ee 28
Schware v. Board of Bar Examiners of N.M., 353
U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). .... 14
Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377,
Gi £..6G. O65 (1917)....... Le Pane ey ke hy
Smith v. Colorado Supreme Court, No. O8- 1030
(10% Cir. July 24, 2007).......... . ..... 18, 28
Smith v. Commissioner of Internal Revenue,
10 F. App’x 666 (10% Cir. 2005)............... 28
Smith v. Seymour, 229 F.App'x 811 (10th Cir.
NE St OP ers Sere tis SNUG Te es wer Phe BP es i 8 23
Smith v. United States of America, No. 08-1418
(10th Cir. July 6, 2009). ..... ee Pes 27
Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed.
“141: 2. SRP Sere ere rere ee ee 14
Statutes
28 U.S.C. § 45G(e), CD). ww ec ccc cece ens 20, 21, 25, 26
ee Oe ao et niauuaber inex 19
28 U.S.C. $§ 2071......... Ane! a
Other Authorities
US. CONST. amend. | 13,18
U.S. CONST. amend. V.. 1, 12, 20, 21, 22, 24, 25, 26
U.S. CONST. amend. XIV, § | 3, 13,14
Ked. R. App. P. LO(e) | 22
Fed. R. Civ. P. 59(e). . 8
Fed. R. Civ. P. 83 19
D.C.COLO.LCivR 83.3A..... can% Tereceesr
U.C.COLO.LCivR 83.3E.............3, 7, 9, 15, 16
D.C.COLO.LCivR 83.3F......... i, o Li, ia, 26, 1%
be okee Fah te" | ot) See ee ee ee
D.C.COLO.LCrR 57.5A. . . are eee a 18
Rohe s Fase) & es.) _ me ee
LIA) AURA EERSTE: «es nec so oe 24, 12, 16, 17
hoa eo PORTS) Oy By ie L,Y, 11, 12
Xl
OPINIONS BELOW
On May 12, 2009, a three-judge Panel of the
United States Court of Appeals for the Tenth Circuit
entered its Order and Judgment affirming the
District Court Disciplinary Panel's Order Denying
Reinstatement, its Order Denying Motion to Alter or
Amend Judgment, its Order Denying Petition for
Rehef From Rule of Good Standing, and its refusal to
disclose items omitted from the record on appeal, as
well as the underlying documentation, or to
supplement the record on appeal with the omitted
items. The Tenth Circuit Panel’s Order denying
Smith’s Petition for Panel Rehearing and tor
Rehearing #£n Banc was entered on May 28, 2009.
These unreported orders or opinions are included in
the Appendix (App.) attached to this Petition, at la-
15a.
JURISDICTION
Jurisdiction is based on this Court’s supervisory
authority over lower federal courts established in
Frazier v. Heebe, 482 U.S. 641, 107 S.Ct. 2607, 96
L.Ed.2d 557 (1987). The District Court Disciplinary
Panel failed or refused to follow its own local rules of
practice, which are unconstitutional on their face
and/or as applied to Smith in this case. The local
rules of practice of the United States District Court
for the District of Colorado providing that an
attorney member of the District Court’s Bar must
remain in good standing in the bars of all state and
federal courts to which the attorney member has
been admitted in order to be reinstated or
XW
readmitted to the District Court’s Bar are
inconsistent with “the principles of right and justice”
necessary to prevent arbitrary discrimination
against Smith, as an out-of-state (Texas) attorney
seeking reinstatement or readmission to the District
Court’s Bar. The local rules of practice of the United
States District Court for the District of Colorado
providing that an attorney member of the District
Court’s Bar must remain in good standing in the
bars of all state and federal courts to which the
attorney member has been admitted in order to be
reinstated or readmitted to the District Court’s Bar
constitute an abuse of the District Court’s discretion
to adopt local rules that are necessary to carry out
the conduct of its business under 28 U.S.C. §§ 1654,
2071 and Fed. R. Civ. P. 83. Chief Judge
Nottingham was required to disqualify himself from
the proceeding on Smith's application for
reinstatement or readmission to the District Court’s
Bar in accordance with 28 U.S.C. § 455(a) and (b);
his conduct constituted a denial of Fifth Amendment
due process of law. The District Court Disciplinary
Panel abused its discretion and/or committed
reversible error by refusing to disclose items omitted
from the record on appeal, including but not limited
to, the recommendation of the Committee on
Conduct on Smith’s application for reinstatement or
readmission to the District Court’s bar, as well as
the underlying documentation, or to supplement the
record on appeal with the omitted items, which were
necessary for Smith to be able to prepare and submit
his brief and appendix on appeal—in violation of
Fed. R. App. P. 10(e) and the Fifth Amendment to
the Constitutien of the United States. Senior Circuit
Judge Brorby was required to disqualify himself
from Smith’s appeal in accordance with 28 U.S.C. §
455(a) and (b); his failure to disqualify himself from
serving on the Tenth Circuit Panel hearing Smith’s
appeal (and, instead, actually authoring the Order
and Judgment denying the appeal) constituted a
denial of Fifth Amendment due process of law. In
approving the District Court Disciplinary Panel’s
refusal to reinstate or readmit Smith to the District
Court’s Bar, the Tenth Circuit has again grossly
abused its inherent power to impose attorney
discipline and other sanctions against Smith, and
has so far departed from the accepted and usual
course of judicial proceedings, or sanctioned such a
departure by the District Court as to call for an
exercise of this Court’s supervisory power.
Jurisdiction in the Tenth Circuit was based on 28
U.S.C. § 1291. The statutory provision believed to
confer on this Court jurisdiction to review on a writ
of certiorari the Tenth Circuit’s decision is 28 U.S.C.
§ 1254(1), providing that “[c]ases in the courts of
appeals may be reviewed by the Supreme Court by
the following methods: (1) [b]y writ. of certiorari
granted upon the petition of any party to any civil or
criminal case, before or after rendition of judgment
CONSTITUTIONAL PROVISIONS,
STATUTES, AND RULES INVOLVED
The Fifth Amendment to the Constitution of the
United States provides, in pertinent part, that “no
person shall be... deprived of life, liber’ y, or
property, without due process of lew... .” U.S.
CONST. amend V.
XV
The Fourteenth Amendment to the Constitution
of the United States provides, in pertinent part, that
‘“Injo person shall be... deprived of life, liberty, or
property, without due process of law ....” U.S.
CONST. amend. XIV, § 1.
The First Amendment to the Constitution of the
United States provides, in relevant part, that
“Congress shall make no law ...abridging the...
right of the people... to petition the government for
a redress of grievances.” U.S. CONST. amend. I.
Pursuant to this Court’s Rule 14.1(f), the
provisions of 28 U.S.C. §§ 455, 1654, and 2071, Fed.
R. Civ. P. 83, and Fed. R. App. P. 10(e), as well as
the provisions of the District Court’s local rules of
practice involved in this case (including
D.C.COLO.LCivR.83.3A, D.C.COLO.LCivR.83.3E,
D.C.COLO.LCivR 83.3F, D.C.COLO.LCivR 83.5.1,
D.C.COLO.LCrR.57.5A, D.C.COLO.LCrR.57.5E,
D.C.COLO.LCrR 57.5F, and D.C.COLO.LCrR 57.7.1)
are included in the Appendix (App.) to this Petition,
at 2la-3la.
XVI
Pursuant to this Court’s Rule 10, 12, 13 and 14,
David Lee Smith (“Smith”), by and through counsel,
M. Julia Hook, respectfully submits his Petition for a
Writ of Certiorari. In support thereof, Smith alleges
as follows:
STATEMENT OF THE CASE
On May 4, 2007, the United States Court of
Appeals for the Tenth Circuit reinstated or
readmitted Smith to its Bar. (App. at 16a-18a.) The
Tenth Circuit Disciplinary Panel had disbarred
Smith on February 13, 1996, without holding a Fifth
Amendment due process hearing at. which Smith
would have the opportunity to present evidence
(including expert testimony) on his defenses to the
false and defamatory charges being brought against
him, and in mitigation of any punishment to be
imposed—in this case disbarment. See In re Smith,
76 F.3d 335 (10' Cir. 1996) (per curiam), cert.
dented, 519 U.S. 871 (1996); see also In re Smith, 10
k.3d 723 (0th Cir. 1993) Gndefinite suspension),
cert. denied, 513 U.S. 807 (1994). °
On August 13, 2007, Smith filed his Application
for Readmission or Reinstatement to the Bar of the
[United States District Court for the District of
Colorado] Pursuant to D.C.COLO.LCivR 83.5.1 or
D.C.COLO.LCrR 57.7.1. The District Court
Disciplinary Panel had reciprocally disbarred Smith
on April 26, 1996, without holding a Fifth
Amendment due process hearing, based on the ‘Tenth
Cireuit’s February 13, 1996 Order of Disbarment.
See In re Smith, No. 96-DP-4 (D. Colo. April 26,
1996). The Tenth Circuit subsequently affirmed the
District Court Disciplinary Panel’s Order of
Reciprocal Disbarment.
On August 4, 2008, the District Court
Disciplinary Panel entered the following Order
Denying Reinstatement:
This matter is before the Disciplinary
Panel of the court on the Application for
Reinstatement or Readmission to the Bar
of the Court filed by David Lee Smith
(“Applicant”), which was filed on August
13, 2007. The Panel has also before it a
recommendation of the Committee on
Conduct. Applicant was disbarred by this
court on April 26, 1996. In the United
States Tenth Circuit Court of Appeals,
after having been suspended and then
disbarred, applicant has successfully
sought reinstatement, effective May 4,
2007. He seeks reinstatement in this court
on the basis of his status of readmission in
the Tenth Circuit. However, as of the date
of this order, and as acknowledged by the
applicant, he remains disbarred by the
Colorado Supreme Court. ‘his court’s local
rules of practice provide that an attorney
admitted to the bar of this court must
remain in good standing in all courts where
admitted; and the status of good standing
means not being subject to suspension or
disbarment by any court for any reason;
and that an attorney not in good standing
is not to practice before this court.
i
b
D.C.COLO.LCivR.83.3E and
D.C.COLO.LCrR.57.5E. Accordingly, it is
ORDERED that the Application for
Reinstatement or Readmission to the
Bar of the Court is DENIED. It is
FURTHER ORDERED that the
December 11, 2006 Motion to Rehear,
Reconsider and Vacate the Court’s Order of
December 5, 2006 (an order which denied a
previous request for reinstatement), which
remains pending, is DENIED.
(App. at lla-12a.) The Colorado Supreme Court had
reciprocally disbarred Smith on October 4, 1999,
without holding a Fourteenth Amendment due
process hearing, based on the Tenth Circuit’s
February 13, 1996 Order of Disbarment. See /n re
Smith, 989 P.2d 165 (Colo. 1999) (per curtam),; see
also People v. Smith, 937 P.2d 724 (Colo. 1997) (per
curtam) (reciprocal suspension based on the Tenth
Circuit’s November 29, 1993 Order of Indefinite
Suspension), cert. denied, 522 U.S. 858 (1997).
Notice of Appeal was timely filed on September 3,
2008. On September 18, 2008, the District Court
Disciplinary Panel entered its Order Denying Motion
to Alter or Amend Judgment:
Before the Disciplinary Panel is Motion
to Alter or Amend Judgment filed August
15, 2008 by Respondent, David Lee Smith.
Mr. Smith seeks to alter or amend the
3
order of the Disciplinary Panel, which
denied his application for reinstatement
based on the recommendation of the
Committee on Conduct and the Panel’s
independent review of the record. Having
reviewed the grounds proffered by
Respondent in support of his motion, the
Panel finds no support to disturb its prior
order. Accordingly, it is
ORDERED that the Motion to Alter or
Amend Judgment is DENIED.
(App. at 13a-14a.)
Amended Notice of Appeal was timely filed on
October 17, 2008. On February 20, 2009, the
District Court Disciplinary Panel entered tts Order
Denying Petition for Relief From Rule of Good
Standing:
Before the Disciplinary Panel is the
Petition for Relief From the Rule of Good
Standing filed by David Lee Smith on
November 3, 2008 pursuant to
D.C.COLO.LCivR 83.3F. After reviewing
the recommendation of the Committee on
Conduct and the disciplinary file on this
matter, the Disciplinary Panel finds that
Mr. Smith has failed to offer clear and
convincing cvidence that would support his
petition. The Petition constitutes nothing
more than a thinly veiled attempt to
circumvent the Disciplinary Panel’s two
4
prior orders denying Mr. Smith's
applications for reinstatement to the bar.
For all the reasons stated in the
Disciplinary Panel’s prior orders,
particularly in light of the fact that Mr.
Smith remains disbarred by the Supreme
Court of Colorado, it is
ORDERED that the Application for
Relief from the Rule of Good Standing is
DENIED.
(App. at. 14a-15a.)
Amended Notice of Appeal was timely filed on
March 2, 2009. In Smith’s appeal to the Tenth
Circuit, the District Court Disciplinary Panel
refused to disclose items omitted from the record on
appeal, including but-not limited to, the
recommendation of the Committee on Conduct on
Smith’s Application for Readmission or
Reinstatement to the listrict Court’s Bar, as well as
the underlying documentation, or to supplement the
record on appeal with the omitted items.
On May 12, 2009, a Panel of the Tenth Circuit
entered its Order and Judgment affirming the
District Court Disciplinary Panel’s Order Denying
Reinstatement, its Order Denying Motion to Alter or
Amend Judgment, its Order Denying Petition for
Relief From Rule of Good Standing, and its refusal to
disclose items omitted from the record on appeal, as
well as the underlying documentation, or to
supplement the record on appeal with the omitted
items. (App. at la-9a.) The Tenth Circuit Panel's
Order denying Smith’s Petition for Panel Rehearing
and for Rehearing kn Banc was entered on May 28,
2009. (App. at 10a.)
REASONS FOR GRANTING THE WRIT
Although disbarment by a federal court does not
follow inexorably from disbarment by a state court,
see Frazier v. Heebe, 482 U.S. 641, 648 n.7, 107 S.Ct.
2607, 96 L..Fd.2d 557 (1987); In re Reinstatement of
Leaf, 41 F.3d 281, 284 (7% Cir. 1994), federal courts
have held that they should normally give great
weight to, and rely on, state disbarment proceedings
unless one of the conditions in Selling v. Radford,
243 U.S. 46, 37 S.Ct. 377, 61 L.Iéd. 585 (1917), is
present. See Leaf, 41 F.3d at 284; In re Jafree, 759
F.2d 604, 608 (75 Cir. 1985) (per curtam). “[A]
district court, when determining whether to
discipline a membe: of its bar consistent with a state
disciplinary adjudication, may impose reciproca!]
discipline unless, after an independent consideration
of the record, the court finds (1) a deprivation of due
process; (2) a lack of adequate proof establishing
misconduct; or (3) that the imposition of reciprocal
discipline would result in grave injustice.” Jn re
Attorney Discipline Matter, 98 ¥.3d 1082, 1087-88
(Sth Cir. 1996).
The Selling factors address whether (1) the
disciplining court’s procedure denied the attorney
due process because of an absence of notice or
opportunity to be heard; (2) there was an infirmity of
6
proof; and (3) there is some other grave reason not to
disbar the attorney. Selling, 243 U.S. at 51, 37 S.Ct.
377; see also In re Dawson, 609 F.2d 1139, 1142 (5th
Cir. 1980) (“Supreme Court precedent has
established that a state court disbarment should be
accorded federal effect, unless it appears from ‘an
intrinsic consideration of the state record’ (1) that
the state proceeding was wanting in due process,
(2) that the proof in the state proceeding was so
infirm ‘as to give rise to a clear conviction on our
part that we could not consistently with our duty,
accept’ the state court’s conclusion as final, or
(3) that to do so would ‘that for some other grave
reason... conflict with the duty which rests upon us
not to disbar except upon the conviction that, under
the principles of right and justice, we were
constrained so to do.”’) (quoting Selling, 243 U.S. at
51, 37 S.Ct. 377, and citing cases).
A. REVIEW IS WARRANTED BECAUSE THE
DISTRICT COURT DISCIPLINARY PANEL
FAILED OR REFUSED TO FOLLOW ITS OWN
LOCAL RULES OF PRACTICE, WHICH ARE
UNCONSTITUTIONAL ON THEIR FACE
AND/OR AS APPLIED TO SMITH IN THIS
CASE.
Smith was not notified that the District Court
Disciplinary Panel intended to apply
D.C.COLO.LCivR.83.3E and D.C.COLO.LCrR. 57.515
(“rule of good standing”) to his Application for
Readmission or Reinstatement to the District
Court’s Bar. If he had been so notified and given the
opportunity to respond, Smith would have been able
7
to establish, by clear and convincing evidence, that:
(1) the procedure resulting in discipline by the
Colorado Supreme Court was so lacking 1n notice or
opportunity to be heard as to deny due process,
(2) the application of the rule of good standing would
result in grave injustice, and/or (3) the kind of
misconduct established has been held by the District
Court to warrant substantially less severe discipline.
See D.C.COLO.LCivR 83.3F and D.C.COLO.LCrR
57.5F, adopting a modified version of the Selling
factors as exceptions to the rule of good standing.
In the absence of proper notice and the
opportunity to respond, no application for relief from
the rule of good standing was filed pursuant to
D).C.COLO.LCivR 83.3F and D.C.COLO.LCrR 57.5F
before the District Court Disciplinary Panel denied
Smith's Application for Readmission or
Reinstatement to the District Court’s Bar. When
Smith received the District Court Disciplinary
Panel’s Order Denying Reinstatement, applying the
rule of good standing to his Application, he filed his
Motion to Alter or Amend Judgment, which was
summarily denied:
Pursuant to Fed. R. Civ. P. 59(e), David
Lee Smith (“Smith”) files his Motion to
Alter or Amend Judgment; and, as grounds
therefor, alleges as follows
1. On August 13, 2007, Smith filed his
Application for Readmission or
Reinstatement to the Bar of the Court
Pursuant to D.C.COLO.LCivR 83.5.1 or
D.C.COLO.LCivR57.7.1, a copy of which is
attached hereto as Exhibit 1.
2. On August 4, 2008, the Disciplinary
Panel of the United States District Court
for the District of Colorado (composed of
Chief Judge Edward W. Nottingham, and
District Judges Wiley Y. Daniel and
Walker D. Miller) filed its Order Denying
Reinstatement, a copy of which ts attached
hereto as Exhibit 2. The Disciplinary
Panel held that “|t]his court’s local rules of
practice provide that an attorney admitted
to the bar of this court must remain in good
standing in all courts where admitted; that
the status of good standing means not
being subject to suspension or disbarment
by any court for any reason; and that an
attorney not in good standing is not to
practice before this court,” citing
D.C.COLO.LCivR 83.3E and
D.C.COLO.LCrR 57.5E.
3. Smith submits that this
Inverpretatl ion of the local rules deprives
him of substantive and/or procedural due
process of law, in that he has been
reinstated to practice in the original
disciplining court, the United States Court
of Appeals for the ‘Tenth Circuit. As stated
in his apphcation for readmission or
reinstatement to the bar of the United
States District Court for the District ot
Colorado, the Colorado Supreme Court
Y
continues to refuse to reinstate Smith to its
bar despite the Tenth Circuit’s order of
reinstatement-—a clear violation of the law
of the case estublished by the Tenth
Circuit
1. Other than the United States
District Court for the District of Colorado,
the Colorado Supreme Court is the only
court to continue to refuse to reinstate
Smith to its bar despite the Tenth Circuit's
order of reinstatement. Furthermore, the
Colorado Supreme Court refused to hold a
due process hearing before disbarring
Smith from the practice of law in the State
of Colorado, as the result of which he was
deprived of the opportunity to present
expert testimony and other evidence in
defense and mitigation to the false and
defamatory reciprocal discipline charges
being brought against him. The
Disciplinary Panel failed to address these
issues in its Order Denying Reinstatement.
5. Both the United States Court of
Appeals for the Fifth Circuit and the
United States District Court for the
Northern District of Texas have reinstated
Smith to their bars based on the ‘Tenth
Circuit’s order of reinstatement. The
Supreme Court of Texas and the United
States Court of Appeals for the Federal
Cireun declined to disbar Smith based on
lO
the Tenth Circuit’s transparently invalid
disbarment order.
For these reasons, Smith requests the
Disciplinary Panel to alter or amend its
Order Denying Reinstatement, and to
reinstate Smith to the bar of the United
States District Court for the District of
Colorado. Smith requests expedited
handling of his motion to avoid further
prejudicial delay.
1 declare under penalty of perjury under
the laws of the United States of America
that the foregoing is true and correct.
The District Court Disciplinary Panel also
summarily denied Smith’s Petition for Relief From
the Rule of Good Standing Pursuant to
D.C.COLO.LCivR 83.3F or D.C.COLO.LCrR 57.5F:
David Lee Smith (“Smith”), by and
through counsel, M. Julia Hook,
respectfully submits his Petition for Rehef
From the Rule cf Good Standing Pursuant
to D.C.COLO.LCivR 83.3F or
D.C.COLO.LCrR 57.5F:
1. On August 13, 2007, Smith filed his
Application for Readmission or
Reinstatement to the Bar of the Court
Pursuant to D.C.COLO.LCivR 83.5.1
or £.C. COLO. LUr® 57.7.1.
2. On August 4, 2008, the Disciplina:
Panel of the United States District Court
for the District of Colorado denied
reinstatement because of Smith’s lack of
good standing in the bar of the Colorado
Supreme Court. Smith was automatically
suspended or disbarred by the Colorado
Supreme Court as the result of the
suspension or disbarment by the original
disciplining court, in this case the United
States Court of Appeals for the Tenth
Circuit. !
3. Under D.C.COLO.LCivR 83.5.1 and
D.C.COLO.LCrR 57.7.1, “[a]n attorney
suspended or disbarred automatically in a
court other than the original disciplining
court or this court as a result of suspension
or disbarment by the original disciplining
court may petition this court for relief from
the rule of good standing pursuant to
D.C.COLO.LCivR 83.3F or
D.C.COLO.LCrR 57.5F, stating appropriate
grounds for such relief.” Accordingly,
‘A footnote in the original provided as follows:
The Tenth Circuit Disciplinary Panel summartly
denied Smith’s written requests for a Fifth Amendment
due process hearing at which he would have the
opportunity to present evidence (including expert
testimony) on his defenses to the false and defamatory
charges being brought against him, and in mitigation of
any punishment to be imposed —--in this case
disbarment.
i>
<—
Smith states the following grounds for
relief:
a. The procedure resulting in reciprocal
discipline by the Colorado Supreme Court
was so lacking in notice or opportunity to
be heard as to deny due process.
Specifically, the Chairman of the Colorado
Supreme Court's Hearing Board refused to
require the disciplinary prosecutor to
present any evidence to prove the
reciprocal discipline charges or to permit
Smith to present any evidence in defense to
these charges, including expert testimony
from Smith’s out-of-state expert witness
flown in from New Jersey for that
purpose—all in violation of the Colorado
Rules of Disciplinary Procedure, which
require a hearing to be held hefore
disbarring an attorney from the practice of
law in the State of Colorado. In the absence
of a due process hearing, the Colorado
Supreme Court was not in any position to
agree with the Hearing Board’s finding
that Smith was accorded due process in the
Tenth Circuit’s disciplinary proceeding.
The Colorado Supreme Court merely
rubber-stamped the Tenth Circuit’s
transparently invalid disbarment order,
while ignoring Smith’s arguments tn
defense, in further violation of Smith’s
Fourteenth Amendment right to due
process of law and his First Amendment
right to access te the courts. See Conn v.
13
Gabbert, 526 U.S. 286 (1999), citing Board
of Regents v. Roth, 408 U.S. 564, 572 (1972)
(the liberty guaranteed by the Fourteenth
Amendment “denotes not merely freedom
from bodily restraint but also the right of
the individual to contract, to engage in any
of the common occupations of life... and
generally to enjoy those privileges long
recognized ...as essential to the orderly
pursuit of happiness of free men,” quoting
Mever v. Nebraska, 262 U.S. 390, 399
(1923); Schware v. Board of Bar Examiners
of N.M., 353 U.S. 232, 238-239 (1957) (“a
State cannot exclude a person from the
practice of law or from any other
occupation in a manner or for reasons that
contravene the Due Process or Equal
Protection Clause of the Fourteenth
Amendment,” citing Dent v. West Virginia,
129 U.S. 114 (4889) and Truax v. Raich,
239 U.S. 33, 41 (1915)). See also Corbitt v.
Anderson, 778 F.2d 1471 (10% Cir. 1985),
stating that “the right to pursue one’s
chosen profession unfettered by state
action which does not comport with the 14°
Amendment, is referred to in Schware uv.
Board of Bar Examiners, 353 U.S. 232
(1957),” and holding that a damaged
reputation plus “stigma” that forecloses
“freedom to take advantage of other
employment opportunities” makes out a
prima facie case that a liberty interest has
been violated, citing Paul v. Davis, 424
U.S. 693 (1975) and Board of Regents v.
14
Roth, 408 U.S. 564 (1972). See also
Razatos v. The Colorado Supreme Court,
746 F.2d 1429 (10' Cir. 1984), stating that
“Razatos asserts an important liberty
interest,” and holding that “it is clear that
attorney discipline, although designed to
protect the public, necessarily imposes a
punishment or penalty on a lawyer that
entitles him to procedural due process,”
citing In re Ruffalo, 390 U.S. 544, 550
(1968) (attorney discipline proceedings are
“quasi-criminal” in nature).
b. The application of D.C.COLO.LCivR
83.3E would result in grave injustice. For
more than nine years, the Colorado
Supreme Court has refused to reinstate or
readmit Smith to its bar despite the fact
that its disharment order was null and void
ab inttio, has been superseded by the Tenth
Circuit’s order reinstating or readmitting
Smith to the Tenth Circuit bar, and/or is
moot.? Under these circumstances,
?A footnote in the original provided as follows:
In May of 2007, the Tenth Circuit reinstated
Smith to its bar, and subsequently, the United
States Court of Appeals for the Fifth Circuit and the
United States District Court for the Northern
District of Texas reinstated Smith to their bars
based on the Tenth Circuit’s order of reinstatement
(the law of the case). Only the Colorado Supreme
Court and the United States District Court for the
District of Colorado have declined to reinstate
Smith based on the Tenth Circuit's order of
reinstatement. The United States Court of Appeals
15
D.C.COLO.LCivR 83.3E is unconstitutional
on its face and as applied to Smith in this
case.
Kor the foregoing reasons, Smith
requests relief from the rule of good
standing pursuant to D.C.COLO.LCivR
83.3F or D.C.COLO.LCrR 57.5F, including
unconditional readmission or
reinstatement to the bar of the United
States District Court for the District of
Colorado.
I declare under penalty of perjury that
the foregoing is true and correct. Executed
on November 3, 2008.
Contrary to the District Court Disciplinary
Panel’s findings, Smith did not fail to offer clear and
convincing evidence that would support his Petition
for Relief From the Rule of Good Standing Pursuant
to D.C.COLO.LCivR 83.3F or D.C.COLO.LCrR
57.5F, and did not attempt to circumvent the
Disciplinary Panel’s two prior orders denying his
applications for reinstatement to the District Court’s
Bar. However, the District Court Disciplinary Panel
failed or refused to conduct. an independent
consideration of the Colorado Supreme Court's
reciprocal discipline record to determine whether or
for the Federal Circuit and the Texas Supreme
Court declined to disbar Smith based on the Tenth
Circuit’s transparently invalid disbarment order.
16
not Smith fit within any of the exceptions to the rule
of good standing. Selling, 243 U.S. at 51, 37 S.Ct.
377; see also In re Dawson, 609 F.2d 1139, 1142 (5th
Cir. 1980). Under these circumstances, the District
Court Disciplinary Panel failed or refused to follow
its own local rules of practice, including
D.C.COLO.LCivR 83.3F and D.C.COLO.LCrR 57.5F,
thus depriving Smith of his Fifth Amendment right
to substantive and procedural due process of law.
B. REVIEW IS WARRANTED BECAUSE THE
LOCAL RULES OF PRACTICE OF THE
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLORADO PROVIDING THAT
AN ATTORNEY MEMBER OF THE DISTRICT
COURT’S BAR MUST REMAIN IN GOOD
STANDING IN THE BARS OF ALL STATE AND
FEDERAL COURTS TO WHICH THE
ATTORNEY MEMBER HAS BEEN ADMITTED
IN ORDER TO BE REINSTATED OR
READMITTED TO THE DISTRICT COURT'S
BAR ARE INCONSISTENT WITH “THE
PRINCIPLES OF RIGHT AND JUSTICE”
NECESSARY TO PREVENT ARBITRARY
DISCRIMINATION AGAINST SMITH, AS AN
OUT-OF-STATE (TEXAS) ATTORNEY
SEEKING REINSTATEMENT OR
READMISSION TO THE DISTRICT COURT'S
BAR.
Even if the District Court Disciplinary Panel followed its
own local rules of practice and even if these local rules of
practice pass constitutional muster, it was inconsistent with
“the principles of right and justice” to require readmission to
the Colorado Bar before readmission to the District Court’s
17
Bar. See Frazier v. Heebe, 482 U.S. 641, 107 S.Ct. 2607, 96
L.Ed.2d 557 (1987). Smith is an attorney licensed by the
Supreme Court of Texas, on active status in the State of
Texas, as required by D.C.COLO.LCivR 83.3A and
D.C.COLO.LCrR 57.5A. To also require Smith to be a
member in good standing tn the Colorado Bar constitutes
arbitrary discrimination against Smith, as an out-of-state
(Texas) attorney secking reinstatement or readmission to the
District Court’s Bar. Furthermore, the Tenth Circuit’s May
4, 2007 Order of Reinstatement is the law of the case which
the United States District Court for the District of Colorado
was bound to follow notwithstanding its own local rules of
practice. (App. at 16a-18a.) By affirming the District
Court’s wrongful dismissal of Smith’s lawsuit seeking to
challenge the Colorado Supreme Court’s continuing refusal
to readmit or reinstate Smith to its Bar, see Smith v.
Colorado Supreme Court, No. 08-1030 (10" Cir. July 24,
2007), the Tenth Circuit deprived Smith of his First
Amendment right to access to the federal courts to litigate
the constitutionality of the Colorado Supreme Court's
conduct, for which Smith was seeking declaratory and
injunctive relief.
C. REVIEW IS WARRANTED BECAUSE THE
LOCAL RULES OF PRACTICE OF THE
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLORADO PROVIDING THAT
AN ATTORNEY MEMBER OF THE DISTRICT
COURT'S BAR MUST REMAIN IN GOOD
STANDING IN THE BARS OF ALL STATE AND
FEDERAL COURTS TO WHICH THE
ATTORNEY MEMBER HAS BEEN ADMITTED
IN ORDER TO BE REINSTATED OR
READMITTED TO THE DISTRICT COURT'S
BAR CONSTITUTE AN ABUSE OF THE
18
DISTRICT COURT’S DISCRETION TO ADOPT
LOCAL RULES THAT ARE NECESSARY TO
CARRY OUT THE CONDUCT OF ITS
BUSINESS UNDER 28 U.S.C. §§ 1654, 2071 AND
FED. R. CIV. P. 83.
Even if the District Court Disciplinary Panel was
not required to follow circuit precedent and even if it
was not inconsistent with “the principles of right and
justice” to require readmission to the Colorado Bar
before readmission to the District Court’s Bar, the
local rules of practice of the United States District
Court for the District of Colorado providing that an
attorney member of the District Court’s Bar must
remain in good standing in the bars of all state and
federal courts to which the attorney member has
been admitted in order to be reinstated or
readmitted to the District Court’s Bar constitute an
abuse of the District. Court’s discretion to adopt local
rules that are necessary to carry out the conduct of
its business under 28 U.S.C. §§ 1654, 2071 and Fed.
R. Civ. P. 83. See Frazier v. Heebe, 482 U.S. 641, 107
S.Ct. 2607, 96 L.Ed.2d 557 (1987). The District
Court’s loca] rules of practice are not rationally
related to any legitimate business purpose, and, in
fact, discriminate arbitrarily against Smith, as an
out-of-state (Texas) attorney seeking reinstatement
or readmission to the District Court’s Bar. For this
reason, the District Court has exceeded the scope of
the discretion delegated to it by the Congress and
this Court.
D. REVIEW IS WARRANTED BECAUSE
CHIEF JUDGE NOTTINGHAM WAS
19
REQUIRED TO DISQUALIFY HIMSELF FROM
THE PROCEEDING ON SMITH’S
APPLICATION FOR REINSTATEMENT OR
READMISSION TO THE DISTRICT COURT'S
BAR IN ACCORDANCE WITH 28 U.S.C, § 455(A)
AND (B); HIS CONDUCT CONSTITUTED A
DENIAL OF FIFTH AMENDMENT DUE
PROCESS OF LAW.
Under 28 U.S.C. § 455(a), “{a]ny justice, judge,
or magistrate judge of the United States shall
disqualify himself in any proceeding in which his
impartiality might reasonably be questioned,” and,
under § 155(b), “[h]e shall also disqualify himself. . .
(1) |[w]here he has a personal bias or prejudice
concerning a party....” In addition to imposing
harsh and unjustified sanctions leading to Smith’s
suspension and disbarment from practice in the
Tenth Circuit, the District Court, and the Colorado
Supreme Court, Chief Judge Nottingham authored
the District Court Disciplinary Panel’s order
disbarring Smith without holding a due process
hearing on the false and defamatory reciprocal
discipline charges being brought against him. See In
re Smith, No. 96-DP-4 (D. Colo. April 26, 1996).
Under these circumstances, Chief Judge
Nottingham’s impartiality might reasonably be
questioned, and he was required to disqualify
himself from the proceeding on Smith’s Application
for Readmission or Reinstatement to the District
Court’s Bar. Furthermore, Chief Judge
Nottingham’s personal bias or prejudice against
Smith tainted or poisoned the proceeding, making it
impossible for Smith to receive a fair and impartial
20
decision on his Application.* Under all] the facts and
circumstances, Chief Judge Nottingham was
required to disqualify himself from the proceeding on
Smith’s Application in accordance with 28 U.S.C. §
455(a) and (b). Smith also submits that Chief Judge
Nottingham’s conduct constituted a denial of Fifth
Amendment due process of law. See Caperton v. A.T.
Massey Coal Co., 129 S.Ct. 2252 (2009) (the
probability of actual bias on the part of the judge or
decisionmaker is too high to be constitutionally
tolerable where a judge had no pecuniary interest in
the case but had determined in an earlier proceeding
whether criminal charges should be brought and
then proceeded to try and convict the petitioner).
Attorney discipline proceedings are quasi-criminal in
nature. See In re Ruffalo, 390 U.S. 544, 550 (1968).
Chief Judge Nottingham’s participation in the
proceeding on Smith’s Application for Readmission
or Reinstatement to the District Court’s Bar after
participating in Smith’s reciprocal discipline
proceeding, in which Smith was disbarred by the
District Court Disciplinary Panel without holding a
due process hearing on the false and defamatory
reciprocal discipline charges being brought against
him, was constitutionally intolerable because of the
probability of actual bias on the part of Chief Judge
Nottingham, who had imposed harsh and unjustified
sanctions of more than $35,000 against Smith in
Dunkin v. Louisiana-Pacifie Corp., 89 F.3d 849 (10%
Cir. 1996), cert. dented, 117 S.Ct. 435 (1996); see also
Dunkin v. Loutstana-Pacific Corp., 120 F.3d 270
IChief Judge Nottingham has resigned from the District
Court bench in connection with other charges of judicial
misconduct.
2 |
“—
(10% Cir. 1997) (refusal to vacate monetary sanctions
after case settlement), cerl. dented, 118 S.Ct. 884
(1998).
EK. REVIEW IS WARRANTED BECAUSE 'THE
DISTRICT COURT DISCIPLINARY PANEL
ABUSED ITS DISCRETION AND/OR
COMMITTED REVERSIBLE ERROR BY
REFUSING TO DISCLOSE ITEMS OMITTED
FROM THE RECORD ON APPEAL,
INCLUDING BUT NOT LIMITED TO, THE
RECOMMENDATION OF THE COMMITTER
ON CONDUCT ON SMITH’S APPLICATION
FOR READMISSION OR REINSTATEMENT TO
THE DISTRICT COURT'S BAR, AS WELL AS
THE UNDERLYING DOCUMENTATION, OR
TO SUPPLEMENT THE RECORD ON APPEAL
WITH THE OMITTED ITEMS, WHICH WERE
NECESSARY FOR SMITH TO BE ABLE TO
PREPARE AND SUBMIT HIS BRIEF AND
APPENDIX ON APPEAL—IN VIOLATION OF
FED. R. APP. P. 10(E) AND THE FIFTH
AMENDMENT TO THE CONSTITUTION OF
THE UNITED STATES.
In his Motion for Disclosure of Omitted Items and
for Supplementation of the Record on Appeal, Smith
said:
Pursuant to Fed. R. App. P. 10(e),
Appellant David Lee Smith (“Smith”), by
and through counsel, respectfully submits
his Motion for Disclosure of Omitted [tems
and for Supplementation of the Record on
Appeal:
Notice of appeal was filed in the United
States District Court for the District of
Colorado on September 3, 2008.
Preliminary record (sealed) was filed in
the United States Court of Appeals for the
‘Tenth Circuit on September 9, 2008.
Supplemental preliminary record
(sealed) was filed in the Court of Appeals
on September 22, 2008.
Notice that the record is completed was
filed by the Clerk of the District Court on
January 28, 2009
Upon contacting the Office of the Clerk
of the United States District Court for the
District of Colorado, Smith’s counsel was
advised that no stipulation would be made
with respect to items omitted from the
record on appeal, including but not limited
to, the recommendation of the Committee
on Conduct on Smith’s Application for
Reinstatement or Readmission to the Bar
of the Court, filed August 13, 2007, as well
us the underlying documentation. Smith’s
counsel was advised that due to the
confidential or privileged nature of the
23
—
omitted items, disclosure would not be
made and the record on appeal would not
be supplemented in the absence of an order
from the Tenth Circuit.
No due process hearing was held before
denying Smith’s Application for
Reinstatement or Readmission to the Bar
of the Court, and Smith does not know the
legal or factual basis for the denial of his
application. Smith’s counsel cannot file
Smith's brief and appendix (due March 9,
2009) unless the omitted items are
promptly disclosed and the record on
appeal is supplemented.
Smith is not aware of any
confidentiality or privilege that would be
breached by the disclosure of the omitted
items. Smith hereby waives any
confidentiality or privilege that applies to
the omitted items
lor the foregoing reasons, Smith
requests an order requiring disclosure of
the omitted items and supplementation of
the record on appeal. If any claim of
confidentiality or privilege is being made
Smith requests the ‘lenth Circuit to
conduct an in camera inspection of the
omitted items.
In the absence of the omitted items, Smith was
deprived of his Fifth Amendment right to due
process of law.
F. REVIEW IS WARRANTED BECAUSE SENIOR
CIRCUIT JUDGE BRORBY WAS REQUIRED TO
DISQUALIFY HIMSELF FROM SMITH’S APPEAL IN
ACCORDANCE WITH 28 U.S.C. § 455(A) AND (B);
HIS FAILURE TO DISQUALIFY HIMSELF FROM
SERVING ON THE THREE-JUDGE PANEL
HEARING SMITH’S APPEAL (AND, INSTEAD,
ACTUALLY AUTHORING THE ORDER AND
JUDGMENT DENYING THE APPEAL)
CONSTITUTED A DENIAL OF FIFTH AMENDMENT
DUE PROCESS OF LAW.
Considering the fact that Senior Circuit Judge
Wade Brorby (the author of the Tenth Circuit
Panel’s Order and Judgment) was a member of the
Tenth Circuit Disciplinary Panel that disbarred
Smith in 1996 without holding a Fifth Amendment
due process hearing on the false and defamatory
attorney discipline charges being brought against
him, Circuit Judge Brorby’s impartiality might
reasonably be questioned, and, as a result, he was
required to disqualify himself from Smith’s appeal.
See In re Smith, 76 F.3d 335 (10 Cir. 1996) (per
curtam), cert. denied, 519 U.S. 871 (1996); see also In
re Smith, 10 F.3d 723 (10th Cir. 1993) (indefinite
suspension), cert. denied, 513 U.S. 807 (1994).
Furthermore, based on Circuit Judge Brorby’s
involvement in the Tenth Circuit Disciplinary
Panel’s constitutionally defective disbarment of
Smith, it is not unreasonable to conclude that
Circuit Judge Brorby’s personal bias or prejudice
25
against Smith tainted or poisoned the appellate
proceeding, making it impossible for Smith to receive
a fair and impartial decision. Id. Therefore, Circuit
Judge Brorby was required to disqualify himself
from Smith’s appeal in accordance with 28 U.S.C. §
455(a) and (b). Jd. Under all the facts and
circumstances, Circuit Judge Brorby’s failure to
disqualify himself from serving on the Tenth Circuit
Panel hearing Smith’s appeal (and, instead, actually
authoring the Order and Judgment denying the
appeal) constituted a denial of Fifth Amendment due
process of law under this Court’s decision in
Caperton v. A.T. Massey Coal Co., 129 S.Ct. 2252
(2009) (the probability of actual bias on the part of
the judge or decisionmaker is too high to be
constitutionally tolerable where a judge had no
pecuniary interest 1n the case but had determined in
an earlier proceeding whether criminal charges
should be brought and then proceeded to try and
convict the petitioner). Attorney discipline
proceedings are “quasi-criminal” in nature. See In re
Ruffalo, 390 U.S. 544, 550 (1968). Senior Circuit
Judge Brorby’s participation in the proceeding on
Smith’s appeal after participating in Smith’s
attorney discipline proceeding, in which Smith was
disbarred by the Tenth Circuit Disciplinary Panel
without holding a Fifth Amendment due process
hearing at which Smith would have the opportunity
to present evidence (including expert testimony) on
his defenses to the false and defamatory charges
being brought against him, and in mitigation of any
punishment to be imposed—in this case disbarment,
was constitutionally intolerable because of the
probability of actual bias on the part of Senior
26
Circuit Judge Brorby, who had participated in
numerous proceedings imposing harsh and
unjustified sanctions and discipline against Smith.
See, e.g., In re Smith, 10 F.3d 723 (10th Cir. 1993)
(indefinite suspension), cerl. dented, 513 U.S. 807
(1994); In re Smith, 76 F.3d 335 (10% Cir. 1996) (per
curiam) (disbarment), cert. denied, 519 U.S. 871
(1996); DeHerrera vu. City and County of Denver, 89
F.3d 849 (10 Cir. 1996) (monetary sanctions);
Dunkin v. Louistana-Pacific Corp., 89 F.3d 849 (10%
Cir. 1996) (monetary sanctions), cert. denied, 117
S.Ct. 435 (1996); Qualls v. Regional Transportation
District, No. 05-1385 (10 Cir. July 23, 1996)
(monetary sanctions); Howard v. Mail-Well Envelope
Co., 150 F.3d 1227 (10th Cir. 1998) (en banc) (per
curiam) (prospective filing restrictions after case
dismissal); Smith v. United States of America, No.
08-1418 (10% Cir. July 6, 2009) (case dismissal).
G. REVIEW IS WARRANTED BECAUSE IN
APPROVING THE DISTRICT COURT
DISCIPLINARY PANEL’S REFUSAL TO
REINSTATE OR READMIT SMITH TO THE
DISTRICT COURT'S BAR, THE TENTH
CIRCUIT HAS AGAIN GROSSLY ABUSED ITS
INHERENT POWER TO IMPOSE ATTORNEY
DISCIPLINE AND OTHER SANCTIONS
AGAINST SMITH, AND HAS SO FAR
DEPARTED FROM THE ACCEPTED AND
USUAL COURSE OF JUDICIAL
PROCEEDINGS, OR SANCTIONED SUCH A
DEPARTURE BY THE DISTRICT COURT AS
TO CALL FOR AN EXERCISE OF THIS
COURT’S SUPERVISORY POWER.
PE
The Tenth Circuit has a long history of imposing
harsh and unjustified attorney discipline and other
sanctions against Smith without due process of law.
See, e.g., Casillan v. Regional Transportation
District, 986 F.2d 1426 (10th Cir. 1993) (monetary
sanctions after case dismissal), cerl. denied, 512 U.S.
1221 (1994); In re Smith, 10 F.3d 723 (10th Cir.
1993) (indefinite suspension), cert. denied, 513 U.S.
807 (1994); In re Smith, 76 F.3d 335 (10th Cir. 1996)
(per curiam) (disbarment), cert. denied, 519 U.S. 871
(1996) (1996); DeHerrera v. City and County of
Denver, 89 F.3d 849 (10 Cir. 1996) (monetary
sanctions); Dunkin v. Louisiana-Pacific Corp., 89
I’.3d 849 (10" Cir. 1996) (monetary sanctions), cert.
dented, 117 S.Ct. 435 (1996); Qualls v. Regional
Transportation District, No. 05-1385 (10 Cir. July
23, 1996) (monetary sanctions); Dunkin v.
Loutstana-Pacific Corp., 120 F.3d 270 (10t Cir.
1997) (refusal to vacate monetary sanctions after
case settlement), cert. denied, 118 S.Ct. 884 (1998);
Howard vu. Mail-Well Envelope Co., 150 F.3d 1227
(10th Cir. 1998) (en banc) (per curiam) (prospective
filing restrictions after case dismissal). More
recently, see Smith v. Commissioner of Internal
Revenue, 10 F.App’x 666 (10% Cir. 2005) (monetary
sanctions after case dismissal); Smith v. Seymour,
229 F.App'x 811 (LOth Cir. 2007) (case dismissal);
Smith v. Colorado Supreme Court, No. 08-1030 (10'
Cir. July 24, 2007) (case dismissal); Zn re Smith, No.
08-822 (10 Cir. September 16, 2008) (admonition);
Smith v. United States of America, No. 08-1418 (10
Cir. July 6, 2009) (case dismissal). In these cases,
the Tenth Circuit grossly abused its inherent power
28
to impose attorney discipline and other sanctions
against Smith. See Chambers v. NASCO, 501 U.S.
82,1128. Ct. 12, 115 L..Ed.2d 1097 (1991); Roadway
Express v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65
L.Ed.2d 488 (1980). In approving the District Court
Disciplinary Panel’s refusal to reinstate or readmit
Smith to the District Court’s Bar, the Tenth Circuit
has again abused its inherent power to impose
attorney discipline and other sanctions against
Smith, and has so far departed from the accepted
and usual course of judicial proceedings, or
sanctioned such a departure by the District Court as
to call for an exercise of this Court’s supervisory
power. /d.
Respectfully submitted,
isi M. Julia Hook.
M. JULIA HOOK
Attorney at Law
5800 E. 6th Avenue
Denver, CO 80220
(303) 321-7403
COUNSEL OF RECORD
FOR PETITIONER
DAVID LEE SMITH
APPENDIX
UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
[n re: No. 08-1323
(D.C. No. 96-DP-4)
DAVID LEE SMITH, (D. Colo.)
Appellant.
Filed May 12, 2009
ORDER AND JUDGMENT!
Before O’Brien, Circuit Judge, Brorby, Senior
Circuit Judge, and Gorsuch, Circuit Judge
David Lee Smith appeals from an order denying
his petition for reinstatement to the bar of the
United States District Court for the District of
Colorado. He also appeals orders denying his motion
to alter or amend and his petition for relief from the
district court’s rule of good standing. He argues that.
'A footnote in the original provided as follows:
After examining the bricfs and appellate record,
this panel has determined unanimously that oral
argument would not materially assist the
determination of this appeal. See Fed. R. App. P.
34(a)(2); 10" Cir. R. 34.1(G). The case is not binding
precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be
cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10* Cir. R. 32.1.
la
the district court’s three-judge Disciplinary Panel
abused its discretion by denying him reinstatement
to the district court bar; that the Disciplinary Panel
denied him due process by refusing to disclose items
from the record; than then Chief Judge Nottingham
should have recused himself pursuant to 28 U.S.C. §
455(a) and (b); and that the Disciplinary Panel erred
in denying his petition for relief from the rule of good
standing. We have jurisdiction to review these
orders, see In re Martin, 400 F.3d 836, 840 (10 Cir.
2005), and we affirm.
On November 29, 1993, we suspended Mr. Smith
from practicing law before this court. Jn re Smith, 10
F.3d 723, 724 (10 Cir. 1993) (per curiam), cert.
dented, 513 U.S. 807 (1994). And on February 13,
1996, we converted that suspension to a disbarment
because Mr. Smith continued to practice before this
court despite his suspension. /n re Smith, 76 F.3d
335, 336 (10 Cir. 1996) (per curiam), cert. denied,
519 U.S. 871 (1996). Based on our disbarment, the
Colorado district court disbarred Mr. Smith on April
26, 1996, and the Colorado Supreme Court disbarred
him on October 14, 1999, /n re Smith, 989 P.2d 165
(Colo. 1999) (per curiam).
On May 4, 2007, we granted Mr. Smith’s motion
for reinstatement to practice before this court,
provided that he meet certain conditions. /n re
Smith, No. 93-631, 2007 WL, 4953041 (10' Cir. May
4, 2007). Mr. Smith met these conditions. Based on
his May 17, 2007, reinstatement, he then applied for
reinstatement to the bar of the Colorado district
5
Za
court.2 The district court’s three-judge Disciplinary
Panel denied reinstatement based on the
recommendation of the Committee on Conduct and
on the Panel’s independent review, because Mr.
Smith remained disbarred by the Colorado Supreme
Court. The Panel reasoned that under the district
court’s local rules, “an attorney admitted to the
[district court] bar... must remain in good standing
in all courts where admitted; that the status of good
standing means not being subject to suspension or
disbarment by any court for any reason; and that an
attorney not in good standing is not to practice before
{the district] court. D.C.Colo.L.Civ.R. 83.3E and
D.C.Colo.L..Cr.R. 57.5E.” Aplt. App. at 7 (Order
Denying Reinstatement).
Mr. Smith then filed a motion to alter or amend
judgment, asserting that the Disciplinary Panel’s
interpretation of the local rules deprived him of
substantive and/or procedural due process since the
Tenth Circuit had reinstated him and the Colorado
Supreme Court’s continued disbarment was
improper in hght of the Tenth Circuit’s
reinstatement. Additionally, he criticized the
Colorado Supreme Court for failing to hold a due
process hearing before imposing reciprocal discipline.
The Disciplinary Panel denied Mr. Smith’s motion.
————— — ee
’A footnote in the original provided as follows:
The Fifth Circuit and the Northern District of
Texas reinstated Mr. Smith to practice before those
courts based on our order of reinstatement.
3a
Subsequently, Mr. Smith filed a petition for relief
from the rule of good standing on the grounds that
(1) the Colorado Supreme Court’s reciprocal
discipline denied him due process because the court’s
Hearing Board did not hear evidence concerning the
reciprocal discipline charges; and (2) failure to
reinstate him would be a grave injustice sir ce the
Tenth Circuit had readmitted him. The Disciplinary
Panel reviewed the recommendation of the
Committee on Conduct and the disciplinary file and
denied the petition, finding that Mr. Smith failed to
offer clear and convincing evidence to support his
petition and that the petition was merely an attempt
to circumvent the Disciplinary Panel’s priory two
orders denying reinstatement. The Disciplinary
Committee reiterated that Mr. Smith remained
disbarred by the Colorado Supreme Court.
Mr. Smith appeals from all three of the
Disciplinary Panel’s orders denying him readmission
to the Colerado district bar. We review the denial of
reinstatement under the abuse of discretion
standard. See Martin, 400 F.3d at 841. Our review
of legal issues, however, is plenary. See id.
Mr. Smith first argues that he was not given
notice that the Disciplinary Panel would apply the
rule of good standing, see D.C.Colo.L.Civ.R. 83.3E
and D.C.Colo.L.Cr.R. 57.5E, when assessing his
petition for reinstatement to the district court’s bar.
To the contrary, the form application for
reinstatement that Mr. Smith submitted to the
district court begins with the very notification that
4a
the good-standing rules apply. Aplt. App. at 14.
Those rules, as relevant here, state that
[a]n attorney admitted to the bar of this
court must remain in good standing tn all
courts where admitted. “In good standing”
means not subject to suspension or
disbarment by any court for any reason.
An attorney who is not tn good standing
shall not practice before the bar of this
court .
D.C.Colo.L.Civ.R.83.3E; D.C.Colo.L.Cr.R 57.5E.
Additionally, the form cited to Local Rules 83.5] and
57.71 its title and twice in its body. Aplt. App. at 14-
15. These rules state that:
An attorney applying for reinstatement or
readmission to this court. following
reinstatement or readmission by the
original disciplining court who remains...
disbarred in a court other than the original!
disciplining court or this court is subject to
D.C.COLO.LCivR 83.3E and
D.C.COLO.LCrR 57.5E requiring attorneys
to be in good standing where admitted in
order to be or remain admitted to the bar of
this court. An attorney... disbarred
automatically in a court other than the
original disciplining court or this court as a
result of ... disbarment by the original
disciplining court may petition this court
for rehef from the rule of good standing
pursuant to D.C.COLO.LCIvR 83.3F or
Sa
D.C.COLO.LCrR 57.5F, stating
appropriate grounds for relief.
Mr. Smith certified in the reinstatement application
that he had read and was familiar with these local
rules. Aplt. App. at L5.
Without question, “the federal district court has a
right to establish its own standards for admission to
practice.” Mattox v. Disciplinary Panel of U.S. Dist.
Ct. for Dist. of Colo., 758 F.2d 1362, 1364 (10' Cir.
1985); see also Chambers v. NASCO, Ine., 501 U.S.
32, 43 (1991) deciding district court has inherent
authority to control admission to its bar). The
Disciplinary Panel adhered to the court’s own rules
in denying Mr. Smith readmission. See Mattox, 758
F.2d at 1364 (stating that proper question on appeal
is “whether the district court has adhered to its own
rules”). Mr. Smith has not been reinstated to the
Colorado Supreme Court and his membership in that
bar is required before he can be reinstated to the
district court’s bar. The district court therefore did
not abuse its discretion in denying his petition for
reinstatement. Cf. Jn re Kandekore, 460 F.3d 276,
280 (2d Cir. 2006) (per curiam) (holding “that the
district court could properly deny [attorney’s}
readmission on the ground that he had not been
readmitted to the bar of the state of New York”). Nor
did the district court abuse its discretion in denying
his motion to alter or amend the judgment.
Mr. Smith next argues that he was denied his
hifth Amendment right to due process because the
Disciplinary Panel either erred in refusing to disclose
6a
items from the record on appeal, including the
Committee on Conduct’s recommendation on his
application for reinstatement and the underlying
documentation, or erred in refusing to supplement
the record on appeal with the omitted items. Mr.
Smith's argument is conclusory, and he cites no
authority requiring the Disciplinary Panel to disclose
the items. Because this issue is not adequately
briefed, we deem it waived.? See Utahns for Better
Transp. v. U.S. Dep't of Transp., 305 F.3d 1152, 1175
(10% Cir. 2002).
Mr. Smith also argues that former ( luef Judge
Nottingham should have disqualified himself from
‘A footnote in the original provided as follows:
Mr. Smith’s tota! discussion of the issue consists
of the following
The Disciplinary Panel also abused its
discretion and/or committed reversible error
by sefusing to disclose items omitted from
the record on appeal, including but not
limited to, the recommendation of the
Committee on Conduct on Smith's
Application tor reinstatement to the District
Court’s bar, as well as the underlying
documentation, or to supplement the record
on appeal with the omitted items, which
were necessary for Smith to be able to
prepare and submit his bricf and appendix
on appeal. Therefore, in the absence ot the
omitted items, Smith was deprived of his
Fifth Amendment right to due process of
law
Aplt. Br. At 11 (footnote citing to appendix omitted)
Ja
the Disciplinary Panel under 28 U.S.C. § 455(a) an
(b) due to his bias against Mr. Smith. Mr. Smith,
however, never asserted a bias argument before the
Disciplinary Panel. Thus, this argument ts waived.
See Rosewood Servs., Inc. v. Sunflower Diversified
Serus., Inc., 413 F.3d 1163, 1167 (10% Cir. 2005).
Even if we considered this argument, we would
conclude that Mr. Smith did not show bias. Contrary
to Mr. Smith’s contention, the judge’s sanctioning
him during prior district court proceedings and
reciprocally disbarring him without holding a due
process hearing on the reciprocal discipline charges
are insufficient to suggest partiality requiring
recusal. These bias accusations are grounded
primarily in prior judicial rulings against Mr. Smith,
which almost never show partiality requiring a
judge’s recusal. See Liteky v. United States, 510 U.S.
540, 555 (1994). Also, Mr. Smith contends that
former Chief Judge Nottingham’s bias tainted the
proceedings making it impossible for Mr. Smith to
receive a fair and impartial decision on his
application for reinstatement. This contention is
wholly conclusory and therefore deemed waived. See
Utahns for Better Transp., 305 F.3d at 1175. In any
event, there were two other judges on the
Disciplinary Panel deciding whether to reinstate Mr.
Smith, Mr. Smith does not argue that either of those
judges was biased, and the Panel's decision against
reinstatement was unanimous.
Lastly, Mr. Smith argues that he presented clear
and convincing evidence that the Disciplinary Panel
should have granted his petition for relief from the
Sa
rule of good standing and that he was not merely
attempting to circumvent the Disciplinary Panel's
two prior orders denying reinstatement. To support
his argument, he merely quotes from his petition.
But the quote does not address the Disciplinary
2anel’s order and reasoning. Cf. Semsroth v. City of
Wichita, 555 F.3d 1182, 1186 n. 5 (10 Cir. 2009)
(deciding that where appellate brief was verbatim
copy of summary judgment response, brief
“inherently failfed] to address in a direct way the
decision under review and, as a result, does not
effectively come to grips with the district court’s
analysis of the deficiencies in [appellants’] case’).
Thus, he fails to show by clear and convincing
evidence that he should be relieved from the rule of
good standing. See, e.g., In re Oltveras Lopez de
Victoria, 561 F.3d 1, 4 (15 Cir. 2009) (per curiam); Jn
re Kramer, 282 F.3d 721, 724, 725 (9 Cir. 2002).
Nor does he show that he was not merely trying to
circumvent the Disciplinary Panel's first two orders.
Because Mr. Smith has failed to show any defect
in the Disciplinary Panel’s proceedings denying him
reinstatement or relief from the good standing
requirement, we AFFIRM the district court’s orders.
Entered for the Court
Wade Brorby
Senior Circuit Judge
Qu
UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
in re: No. 08-1323
DAVID LEE SMITH,
Appellant.
Kiled May 28, 2009
ORDER
Before O°BRIEN, Circuit Judge, BRORBY, Senior
Circuit Judge, and GORSUCH, Circuit Judge
Appellant’s petition for rehearing is denied.
The petition for rehearing en banc was
transmitted to all of the judges of the court who are
in regular active service. As no member of the panel
and no judge in regular active service on the court
requested that the court be polled, that petition is
also denied.
Entered for the Court.
Elisabeth A. Shumaker,
Clerk
1Ou
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
IN ‘THE MATTER OF Disciplinary Action
DAVID LEE SMITH No. 96-DP-4
Filed August 4, 2008
ORDER DENYING REINSTATEMENT
This matter is before the Disciplinary Panel of the
court on the Application for Reinstatement or
Readmission to the Bar of the Court filed by David
Lee Smith (“Applicant”), which was filed on August
13, 2007. The Panel has also before it a
recommendation of the Committee on Conduct.
Applicant was disbarred by this court on April 26,
1996. Inthe United States Tenth Circuit Court of
Appeals, after having been suspended and then
disbarred, applicant has successfully sought
reinstatement, effective May 4, 2007. He seeks
reinstatement in this court on the basis of his status
of readmission in the Tenth Cireuit. However, as of
the date of this order, and as acknowledged by the
applicant, he remains disbarred by the Colorado
Supreme Court.
This court’s local rules of practice provide that an
attorney admitted to the bar of this court must
remain in good standing in all courts where admitted:
and the status of good standing means not being
subject to suspension or disbarment by any court for
any reason; and that an attorney not in good
standing ts not to practice before this court.
lla
D.C.COLO.LCivR.83.3E and D.C.COLO.LCrR.57.5E.
Accordingly, it is
ORDERED that the Application for
Reinstatement or Readmissi°n to the Bar of the
Court is DENIED. It is
FURTHER ORDERED that the December i1,
2006 Motion to Rehear, Reconsider and Vacate the
Court’s Order of December 5, 2006 (an order which
denied a previous request for reinstatement), which
remains perding, is DENIED.
Dated at Denver, Colorado on this 4" day of
August, 2008
BY THE DISCIPLINARY
PANEL OF THE COURT
Edward W. Nottingham, Judge
Wiley Y. Daniel, Judge
Walker D. Miller, Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
IN THE MATTER OF Disciplinary Action
DAVID LEE SMITH No. 96-DP-4
Kiled September 18, 2008
ORDER DENYING MOTION TO ALTER OR
AMEND JUDGMENT
Before the Disciplinary Panel is Motion to Alter
or Amend Judgment filed August 15, 2008 by
Respondent, David Lee Smith. Mr. Smith seeks to
alter or amend the order of the Disciplinary Panel,
Which denied his application for reinstatement based
on the recommendation of the Committee on Conduct
and the Panel’s independent review of the record.
Having reviewed the grounds proffered by
Respondent in support of his motion, the Panel finds
no support to disturb its prior order. Accordingly, it
is
ORDERED that the Motion to Alter or Amend
Judgment its DENIED.
Dated at Denver, Colorado, this 18th day of
September, 2008.
BY THE DISCIPLINARY
PANEL OF THE COURT
Edward W. Nottingham, Chief
Judge
Wiley Y. Daniel, Judge
Walker D. Miller, Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
IN THE MATTER OF Disciplinary Action
DAVID LEE SMITH No. 96-DP-4
Filed February 20, 2009
ORDER DENYING PETITION FOR RELIEF
FROM RULE OF GOOD STANDING
Before the Disciplinary Panel is the Petition for
Relief From the Rule of Good Standing filed by David
Lee Smith on November 3, 2008 pursuant to
D.C.COLO.LCivR 83.3F. After reviewing the
recommendation of the Committee on Conduct and
the disciplinary file on this matter, the Disciplinary
Panel finds that Mr. Smith has failed to offer clear
and convincing evidence that would support his
petition. The Petition constitutes nothing more than
14a
a thinly veiled attempt to circumvent the
Disciplinary Panel’s two prior orders denying Mr.
Smith’s applications for reinstatement to the bar.
For all the reasons stated in the Disciplinary Panel’s
prior orders, particularly in hght of the fact that Mr
Smith remains disbarred by the Supreme Court of
Colorado, it is
ORDERED that the Application for Reliet from
the Rule of Good Standing is DENIED.
Dated at Denver, Colorado this 20 day of
February, 2009.
BY ‘THE DISCIPLINARY
PANEL OF THE COURT
Kdward W. Nottingham, Chief
Judge
Wiley Y. Daniel, Judge
Walker D. Miller, Judge
UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
In re: No. 93-631
DAVID LEE SMITH,
Appellant
ORDER
Kiled May 4, 2007
Before KELLY, TYMKOVICH, and GORSUCH,
Circuit Judges
David L. Smith has tendered by counsel a
“Verified Petition for Reinstatement to the Tenth
Circuit Bar.” Mr. Smith was previously suspended
from practicing before this court and that suspension
was later converted into disbarment when Mr. Smith
continued to practice before the court despite the
suspension. See In re Smith, 76 F.3d 335 (10" Cir.
1996), cert. denied, 519 U.S. 871, reh'g denied, 519
U.S. 988 (1996); In re Smith, 10 F.3d 723 (10% Cir.
1993), cert. dented, 513 U.S. 807, reh’g denced, 513
U.S. 1033 (1994). Mr. Smith seeks reinstatement to
again practice before the U.S. Court of Appeals for
the Tenth Circuit.
The court has previously determined that Mr.
Smith “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.” /n re
l6a
Smith, 10 F.3d at 724. In the pending petition, Mr.
Smith asserts that he has attached documents
demonstrating that each sanction order imposed by
this court or the district court has been satisfied.
The attachments accompanying the motion are: (1) a
copy of a “Motion to Vacate Suspension Order’ filed
in this court on November 29, 1994 in this same
proceeding that was denied July 18, 1995; (2) a three
page “Notice of Settlements” filed in this court on
January 17, 1995 in this same proceeding in which
Mr. Smith asserted that he had reached settlements
in half of the cases which underlie his suspension; (3)
an “Accounting” filed in this court on February 2,
1995 in connection with this same proceeding; and
(4) two 2007 letters to the U.S. Bankruptey Court for
the District of Colorado, one from the General
Counsel for the Regional Transportation District of
Denver and the other from Patricia A. Coan, relating
to a bankruptcy proceeding captioned as Jn re M.
Julia Hook and David L. Smith, in which the
senders state they are electing not to file proofs of
claims. Mr. Smith asserts these letters are from
attorneys awarded sunctions against him in Casillan
v. RTD, 986 F.2d 1426 (10' Cir. 1993), cert. denied,
512 U.S. 1221 (1994).
We find the documentation, together with Mr.
Smith’s representations, sufficient to demonstrate
that the sanctions previously imposed by this court
and the U.S. District Court for the District of
Colorado have been satisfied und accordingly permit
the application for reinstatement to be filed and
considered on the merits. The clerk is directed to
17a
show the “Verified Petition for Reinstatement to the
Tenth Circuit Bar’ as filed as of the date of tender.
Mr. Smith has been suspended from practicing
law in this court since November 29, 1993 and has
been disbarred from practicing here since February
13, 1996. We are inclined to give Mr. Smith the
benefit of the doubt that he is now capable of
practicing in an ethical and professionally
responsible manner in this court, and that he will
abide by this court's rules and directives.
Accordingly, the “Verified Petition for Reinstatement
to the Tenth Circuit Bar” is granted as follows.
David L. Smith may reapply for admission to
practice before this court, conditioned on the
payment of a new registration fee (see Plan Section
10.7) and certification by the bar examiners of a
state or other jurisdiction of his admission to practice
in that jurisdiction (see Fed. R. App. P. 46(a)(1); Plan
Section 10.6). An application form wall be provided
to Mr. Smith with this order.
IEentered for the Court
ELIZABETH A
SHUMAKER
Clerk of Court
by:
Douglas E. Cressler
Chief Deputy Clerk
| Sa
UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
In re: No. 08-1323
DAVID LEE SMITH,
Appellant.
Filed February 13, 2009
ORDER
‘This matter 1s before the court on Appellant's
Motion for Disclosure of Omitted Items and for
Supplementation of the Record on Appeal (the
“Motion”).
Because Appellant is represented by retained
counsel, he must file an appendix with his brief. See
Fed. R. App. P. 30; 10% Cir. R. 10.2(B), 30. The
district court will not forward a “record on appeal” to
this court; rather, the record is retained in the
district court. See 10% Cir. R. 11.1. Because no
record on appeal exists that could be supplemented
with any document, the Motion ts denied.
‘l'o the extent that Appellant believes that the
record the district court prepared does not disclose
What actually happened there, Appellant should file
a motion in the district seeking correction or
modification of the record under Federal Appellate
Rule 10(e)(1).
19a
Entered for the Court,
ELISABETH A.
SHUMAKER, Clerk
by: Lara Smith
Counsel to the Clerk
UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
In re: No. 08-1323
DAVID LEE SMITH,
Appellant.
Filed February 20, 2009
ORDER
Before KELLY and McCONNELL, Circuit Judges
This matter is before the court on the “Appellant's
Motion for Court Review of Clerk’s Order.”
Appellant seeks review of an order filed on February
13, 2009, denying “Appellant’s Motion for Disclosure
of Omitted Items and for Supplementation of the
Record on Appeal.”
“Appellant’s Motion for Court Review of Clerk’s
Order” is denied. To the extent appellant believes
that the record does not disclose what. actually
happened in the district court, he may file a motion
in the district court seeking correction or
20a
modification of the record in accordance with this
court’s February 13, 2009 order denying his original
motion. See Fed. R. App. P. 1LO0(e)
Kintered for the Court
KMLISABETH
SHUMAKER,
Clerk of Court
by
Christine Van Cone
( ounse! to the Clerk
28 U.S.C. § 455
(a) Any justice, judge, or magistrate judge of the
United States shall disqualify himself in any
proceeding in which his impartiality might
reasonably be questioned
(b) He shall also disqualify himself in the tollowing
circumstances:
(1) Where he has a personal bias o7 prejudn ce
concerning a party, or personal know ledge ol
disputed evidentiary tacts concerning the proceeding
28 U.S.C. § 1654
[In all courts of the United States the parties may
plead and conduct their own cases personally or by
counsel as, by the rules of such courts. re pective
iy
Aare permitted LO muanaye and conduct caus therein
28 U.S.C. § 2071
(a) The Supreme Court and all courts established by
Act of Congress may from time to time prescribe
rules for the conduct of their business. Such rules
shall be consistent with Acts of Congress and rules of
practice and procedure prescribed under section 2072
of this title.
(b) Any rule prescribed by a court, other than the
Supreme Court, under subsection (a) shall be
prescribed only after giving appropriate public notice
and an opportunity for comment. Such rule shall
take effect upon the date specified by the prescribing
court and shall have such effect on pending
proceedings as the prescribing court may order
(Cc)
(1) A rule of a district court prescribed under
‘subsection (a) shall remain in effect unless modified
or abrogated by the judicial council of the relevant
circuit.
(2) Any other rule prescribed by a court other than
the Supreme Court under subsection (a) shall remain
in effect unless modified or abrogated by the Judicial!
Conterence
(d) Copies of rules prescribed under subsection (a) by
a district court shall be furnished to the judicial
council, and copies of all rules prescribed by a court
other than the Supreme Court under subsection (a)
shall be furnished to the Director of the
Administrative Office of the United States Courts
and made available to the public
(e) lf the prescribing court determines that there is
an immediate need for a rule, such court may
proceed under this section without public notice and
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opportunity for comment, but such court shall
promptly thereafter afford such notice and
opportunity for comment.
(f) No rule may be prescribed by a district court other
than under this section.
Fed. R. App. P. 10(e)
(L) If any difference arises about whether the record
truly discloses what occurred in the district court,
the difference must be submitted to and settled by
that court and the record conformed accordingly.
(2) If anything material to either party is omitted
from or misstated in the record by error or accident,
the omission or misstatement may be corrected and a
supplemental record may be certified and forwarded:
(A) on stipulation of the parties;
(B) by the district court before or after the record has
been forwarded; or
(C) by the court of appeals.
(3) All other questions as to the form and content of
the record must be presented to the court of appeals.
Fed. R. Civ. P. 83
(a) Local Rules.
(1) In General.
After giving public notice and an opportunity for
comment, a district court, acting by a majority of its
district judges, may adopt and amend rules
governing its practice. A local rule must be
consistent with — but not duplicate — federal
23a
statutes and rules adopted under 28 U.S.C. §§ 2072
and 2075, and must conform to any uniform
numbering system prescribed by the Judicial!
Conference of the United States. A local rule takes
effect on the date specified by the district court and
remains in effect unless amended by the court or
abrogated by the judicial council of the cireuit
Copies of rules and amendments must, on then
adontion, be furnished to the judicial council and the
Administrative Office of the United States Courts
and be made available to the publi
(2) Requirement of Form.
A local rule imposing a requirement of form must not
be enforced in a way that causes a party to lose any
right because of a nonwillful failure to comply.
(b) Procedures When There is No Controlling
Law.
A judge may regulate practice in any manner
consistent with federal law, rules adopted under 28
U.S.C. §§ 2072 and 2075, and the district's local
rules. No sanction or other disadvantage may be
imposed for noncomplhance with any requirement not
in federal law, federal rules, or the local rules unless
the alleged violator has been furnished in the
particular case with actual notice of the requirement.
24a
D.C.COLO.LCivR 83.3
THE BAR OF THE COURT
A. Applicant Information. An applicant for
admission to the bar of this court must be a person
licensed by the highest court of a state, federal
territory, or the District of Columbia, be on active
status in a state, federal territory or the District of
Columbia, and be a member of the bar in good
standing in all courts and jurisdictions where he or
she has been admitted. Each applicant for admission
shall complete an approved form provided by the
clerk. Kach applicant shall pay to the clerk the fee
prescribed by the court.
KE. Member in Good Standing. An attorney
admitted to the bar of this court must remain in good
standing in all courts where admitted. “In good
standing” means not subject to suspension or
disbarment by any court for any reason. An attorney
who is not in good standing shall not practice before
the bar of this court or continue to be an attorney of
record in any pending case. On notice to this court of
lack of good standing from the suspending or
disbarring jurisdiction, or otherwise, the clerk of this
court. shall make a notation in the court record of
such lack of good standing.
3. Reinstatement or Readmisston ... Application for
reinstatement or readmission following suspension
or disbarment from practice as a member of the bar
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of this court for any reason shall be made in
accordance with the terms of D.C.COLO.LCivR
83.51.
F. Relief From Rule of Good Standing. It is
presumed that discipline by another court against a
member of this court’s bar is appropriate. In order to
obtain relief, the attorney so disciplined has the
burden to establish, by clear and convincing
evidence, that:
1. the procedure resulting in discipline by the court
was so lacking in notice or opportunity to be heard as
to deny due process,
2. the application of D.C.COLO.LCivR 83.3E would
result in grave injustice, or
3. the kind of misconduct established has been held
by this court to warrant substantially less severe
discipline. Applications under this section shall be
filed with or referred to the Committee on Conduct,
which shall proceed in accordance with the
provisions of D.C.COLO.LCivR 83.5D.
D.C.COLO.LCivR 83.5
ATTORNEY DISCIPLINE
I. Application for Reinstatement or
Readmisstion.
26a
1. General Procedure. An attorney who has been
suspended or disbarred may apply for reinstatement
or readmission at the end of the disciplinary period.
Kach applicant for readmission or reinstatement
shall complete an approved form provided by the
clerk. Reinstatement or readmission is neither
automatic nor a matter of right. Every application
for reinstatement or readmission shall be
investigated by one or more members of the
Committee aypointed by the Committee’s
chairperson. Following investigation, the Committee
shall prepare a recommendation on the application.
The recommendation and supporting documents
shall be submitted to the Panel for decision.
Reinstatement or readmission may be subject to
conditions such as monitoring, reporting, testing,
and education.
2. Relationship to D.C.COLO.LCwWR 83.38 and
D.C.COLO.LCrR 57.5E. Suspension or disbarment
of an attorney by any court. may result in suspension
or disbarment in a court other than the original
disciplining court. An attorney applying for
reinstatement or readmission to this court following
reinstatement or readmission by the original
disciplining court who remains suspended or
disbarred in a court other than the original
disciplining court or this court is subject to
D.C.COLO.LCivR 83.3E and D.C.COLO.LCrR 57.5E
requiring attorneys to be in good standing in all
courts where admitted in order to be or remain
admitted to the bar of this court. An attorney
suspended or disbarred automatically in a court
other than the original disciplining court or this
24a
court as a result of suspension or disbarment by the
original disciplining court may petition this court for
relief from the rule of good standing pursuant to
D.C.COLO.LCivR 83.3F or D.C.COLO.LCrR 57.5F,
stating appropriate grounds for such relief.
D.C.COLO.LCrR 57.5
THE BAR OF THE COURT
A. Applicant Information. An applicant for
admission to the bar of this court must be a person
licensed by the highest court of a state, federal
territory, or the District of Columbia, be on active
status in a stace, federal territory or the District of
Columbia, and be a member of the bar in good
standing in all courts and jurisdictions where he or
she has been admitted. Each applicant for admission
shall complete an approved form provided by the
clerk. Each applicant shall pay to the clerk the fee
prescribed by the court.
E. Member in Good Standing. An attorney
admitted to the bar of this court must remain in good
standing in all courts where admitted. “In good
standing” means not subject to suspension or
disbarment by any court tor any reason. An attorney
who is not in good standing shall not practice before
the bar of this court or continue to be an attorney of
record in any pending case. On notice to this court of
lack of good standing from the suspending or
disbarring jurisdiction, or otherwise, the clerk of this
28a
court shall make a notation in the court record of
such lack of good standing.
3. Reinstatement or Readmission ... Application for
reinstatement or readmission following suspension
or disbarment from practice as a member of the bar
of this court for any reason shall be made in
accordance with the terms of D.C.COLO.LCrR 57.71.
F. Relief From Rule of Good Standing. It is
presumed that discipline by another court against a
member of this court’s bar is appropriate. In order to
obtain relief, the attorney so disciplined has the
burden to establish, by clear and convincing
evidence, that:
lL. the procedure resulting in discipline by the court
was so lacking In notice or opportunity to be heard as
to deny due process,
2. the application of D.C.COLO.LCrR 57.5E would
result in grave injustice, or
3. the kind of misconduct established has been held
by this court to warrant substantially less severe
discipline. Applications under this section shall be
filed with or referred to the Committee on Conduct,
which shall proceed in accordance with the
provisions of D.C.COLO.LCrR 57.7
D.C.COLO.LCrR 57.7
ATTORNEY DISCIPLINE
29a
I. Application for Reinstatement or
Readmission.
1. General Procedure. An attorney who has been
suspended or disbarred may apply for reinstatement
or readmission at the end of the disciplinary period.
Kach applicant for readmission or reinstatement
shall complete an approved form provided by the
clerk. Reinstatement or readmission is neither
automatic nor a matter of right. Every application
for reinstatement or readmission shall be
investigated by one or more members of the
Committee appointed by the Committee's
chairperson. Following investigation, the Committee
shall prepare a recominendation on the application.
The recommendation and supporting documents
shall be submitted to the Panel for decision.
Reinstatement or readmission may be subject to
conditions such as monitoring, reporting, testing,
and education.
2. Relationship to D.C.COLO.LCivR 83.38E and
D.C.COLO.LCrR 57.5E. Suspension or disbarment
of an attorney by any court may result in suspension
or disbarment in a court other than the original
disciplining court. An attorney applying for
reinstatement or readmission to this court following
reinstatement or readmission by the original
disciplining court who remains suspended or
disbarred in a court other than the original
disciplining court or this court is subject to
D.C.COLO.LCivR 83.3E and D.C.COLO.LCrR 57.5E
requiring attorneys to be in good standing in all
courts where admitted in order to be or remain
30a
admitted to the bar of this court. An attorney
suspended or disbarred automatically in a court
other than the original disciplining court or this
court as a result of suspension or disbarment by the
original disciplining court may petition this court for
relief from the rule of good standing pursuant to
D.C.COLO.LCivR 83.3F or D.C.COLO.LCrR 57.5F,
stating appropriate grounds for such relief.
31a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.