Petition for Writ of Certiorari — In re Smith

Supreme Court, U.S

‘'LepD

98 1411 mar3- 199

OFFICE OF THE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

JOHN CASILLAN,

Plaintiff,

Vv.

REGIONAL TRANSPORTATION DISTRICT,

AMALGAMATED TRANSIT UNION, Local 1001,

MICHAEL GARCIA, RICHARD BAUMAN, ROBERT

GARSIDE, ED RHATICAN, PETE PEREA, BERNIE

SNYDER, GEORGE STANKO, GREG FISHER,

Defendants-Appellees-Respondents.

DAVID L. SMITH,

Attorney-Appellant-Petitioner.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

DAVID L. SMITH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY -APPELLANT- PETITIONER

QUESTIONS PRESENTED FOR REVIEW

Whether by dismissing Mr. Smith’s

appeal in the present case for failure to

follow the filing restrictions set forth

in its (June 29, 1998) opinion in Howard,

infra, while refusing to grant a hearing

or to address the issues raised and

argued by him in his appellate brief, the

Tenth Circuit deprived Mr. Smith of his

First Amendment right to petition the

government for a redress of grievances

and his Fifth Amendment right to due

process of law, including his right to

appeal a final decision by a district

court and to receive meaningful review of

that decision under 28 U.S.C. § 1291.

Whether the Tenth Circuit also —

violated Mr. Smith’s Sixth Amendment

right to self-representation, including

his right to proceed pro se under 28

U.S.C. § 1654.

Whether unless this Court grants Mr.

Smith’s petition for a writ of

certiorari, the Tenth Circuit’s threat to

prosecute him for criminal contempt will

chill (or freeze) the exercise of these

constitutional and statutory rights in

other cases being pursued by him.

Whether the United States Court of

Appeals for the Tenth Circuit has entered

a decision in conflict with the decision

of another United States court of appeals

on the same important matter; has so far

departed from the accepted and usual

course of judicial proceedings, or

sanctioned such a departure by a lower

court, as to call for an exercise of this

Court’s supervisory power; 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.

-ii-

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .... i

ZABLE OF CONTENTS . . ++ «© « «© S44

TABLE OF AUTHORITIES ......... iv

CITATIONS OF OPINIONS AND ORDERS .. viii

Nut Be ich toy oie Si ee ©

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THE CASE .... x

STATEMENT OF THE CASE .......e.. il

Co. Pe a a a a a a, a ae a a

RUCEOWEEGD 6 ft le ltl tl tl tl hl tl hl hl tl thle! CU

APPENDIX .... +. +o « « « . Attached

-iii-

CASES

408 U.S. 564, 96 S.Ct. 2701,

33 L.Ed.2d 548 (1972) ...

Braley v. Campbell,

832 F.2d 1504 (10% Cir. 1987)

Brewen v. United States,

375 F.2d 285 (5 Cir. 1967)

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) ~ <= @ & Slrko & oe oe

nalif ia Mo!

Co, v. Trucking Uniltd.,

404 U.S. 508, 92 8.Ct. 609,

30 L.Ed.2d 642 (1972) .. .

Cleveland Board of Education

v. Loudermill, 470 U.S. 494,

105 S.Ct. 1487, 84 L.Ed.2d 494

(1985) a ee ee er ee ee ee

Coppedge v. United States,

369 U.8. 436; G2 8.€t. Fats

6 &.86.28 2a tiseay« « « « «

Craig v. Lake Asbestos of

Quebec, Ltd., 843 F.2d 145

(a™ Cie. 2968) . « «'% « +

-iv-

Crumpacker v. Indiana Supreme

: Di ‘pli : : yoy

GeO Wis 2676 CBOE) eis kc ws 2 Ss 3

Dail Vv “er :

Company, 141 F.3d 224

(5™ Cir. Bn & Sea ee a ee ee eee 4

, Indi Ri -

School Board, 121 F.3d 576

(13° Gis. 3997) te a ee ae or et a re

Evans v. Moseley,

455 7.20 1084 (10° Cir. 1972)....:4#. @

Harbolt v. Allredge

464 F.2d 1243 (10™ Cir.),

cert. denied, 409 U.S. 1025,

93 $.Ct. 473, 34 1.84.24 319

CREA? oe fa oR thle Cee eee 4

Honda Motor Co., Ltd, v. Oberg,

>i2 U.S. 415, 114 8.Ct. 2331,

bae, heman ae 2a6 CO se ale aoe. 2

Howard v,. Mail-Well Envelope

Company, 150 F.3d 1227 (10° Cir.),

cert. denied, U.8. P

119 S.Ct. 546, 142 L.Ed.2d

Oma S200es « st x SOS 1

Johnson v, Board of County

Commissioners, 85 F.3d 489

(10% Cir. 1996) he sk Ae ee er 3

Logan vy. Zimmerman Brush Co.,

455 U.S. 422, 102 §8.Ct. 1148,

71 L.Ed.2d 265 (1982) <« «8 « & oe oe 3

Matter of McLinn,

739 F.24 1395 (97 Cir. 19864) .. «+e 2

Mat Di .

€ the Uni ; - | -

: . £ he Dietriot ;

Colorado, 758 F.2d 1362

(10% Cir. 1985) ae ae Le eee eee 4

McKaskle v. Wiggins,

465 U.S. 168, 104 S.Ct. 944,

79 L.Ed.2d 122 (1984) aT eer oe ee wee 4

NAACP vy. Button,

371 U.S. 415, 83 8.Ct. 328,

> &..8d.246 405 (1963) . «© «© « ew wee we 8

Razatos v. Colorado Supreme

Court, 746 F.2d 1429 (10™ Cir.),

cert. denied, 471 U.S. 1016

‘eh |: .. \ a a ee a ar ae

Salve Regina College v. Russell,

493 U.8. 2347 12a 8.Ce. Aaii,

113 L.Ed.2d 190 (1991) .... . & 2 2

Silver v. Cormier,

529 F.2¢4 163 (10 Gir. 1976) ...«-s 3

Steiner Corp, v. Johnson &

Hi , © Calif bi

135 F.3d 684 (10% Cir. 1997) ..... 3

-vi-

Talamini v. Allstate Insurance

Co,., 470 U.S. 1067 (1985)

Uni is Dic} Ln

971 F.2d 446 (10% Cir. 1992)

United States vy. Jose,

Sa3 U.8. S36, 4247 8.CGe. 463,

136 L.Ed.2d 364 (1996)

White v. General Motors

Corp., Inc., 908 F.2d 675

(10™ Cir. 1990) —

Wisconsin v. Constantineau j j ’

400 U.S. 433, 91 S.Ct. 507,

27 L.Ed.2d 515 (1971)

OTHER AUTHORITIES

|” a ee ee ee eer rs i

Amend. V, U.S. Consti.

Amend. VI, U.S. Consti.

Amend. VII, U.S. Consti.

Amend. XIV, U.S. Consti.

ae 0.8.C. § dave

28 U.S.C. § 1654

28 U.S.C. § 2106

-vii-

42 U.S.C. § 1983...

42 U.S.C. § 1985...

42 U.S.C. § 1986 .. .

-viii-

CITATIONS OF OPINIONS AND ORDERS

Casill Regi LT —T

District, et al., Case No. 98-1397 (107

Cir. December 3, 1998).

-ix-

JURISDICTION

The order sought to be reviewed was

entered by the United States Court of

Appeals for the Tenth Circuit on December

3, 1998.

The statutory provision believed to

confer jurisdiction on the Supreme Court

of the United States to review on writ of

certiorari the Tenth Circuit’s order of

December 3, 1998 is 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THE CASE

Amendment I of the Constitution of

the United States provides in relevant

Dart as follows:

Congress shall make no law

- abridging . . . the right of the

people to petition the Government

for a redress of grievances.

Amendment V of the Constitution of

the United States provides in relevant

part as follows:

([N]or shall any person be

- « deprived of life, liberty or

property, without due process of law

.

Amendment VI of the Constitution of

the United States provides in relevant

part as follows:

In all criminal prosecutions,

the accused shall enjoy the right to

a speedy and public trial, by an

impartial jury of the State and

district wherein the crime shall

have been committed . .

-Xi-

28 U.S.C. § 1291 provides as

follows:

The courts of appeals (other

than the United States Court of

Appeals for the Federal Circuit)

shall have jurisdiction of appeals

from all final decisions of the

district courts of the United

States, the United States District

Court for the District of the Canal

zone, the District Court of Guam,

and the District Court of the Virgin

Islands, except where a direct

review may be had in the Supreme

Court. The jurisdiction of the

United States Court of Appeals for

the Federal Circuit shall be limited

to the jurisdiction described in

sections 1292(c) and (d) and 1295 of

this Title [28 U.S.C. §§ 1292(c),

(d), 1295].

28 U.S.C. § 1654 provides as

follows:

In all courts of the United

States the parties may plead and

conduct their own cases personally

or by counsel as, by the rules of

such courts, respectively, are

permitted to manage and conduct

causes therein.

-xii-

"Oa

28 U.S.C. § 2106 provides as

follows:

The Supreme Court or any other

court of appellate jurisdiction may

affirm, modify, vacate, set aside or

reverse any judgment, decree, or

order of a court lawfully brought

before it for review, and may remand

the cause and direct the entry of

such appropriate judgment, decree,

or order, or require such further

proceedings to be had as may be just

under the circumstances.

-xiii-

RRS

Pro se attorney-appellant-

petitioner David L. Smith (“Mr. Smith”)

hereby files his Petition for a Writ of

Certiorari to the United States Court of

Appeals for the Tenth Circuit:

I. STATEMENT OF THE CASE

On June 29, 1998, the United States

Court of Appeals for the Tenth Circuit

issued its opinion denying Mr. Smith’s

appeals in two federal civil rights cases

without addressing the issues raised and

argued by him in his appellate briefs.

See Howard v,. Mail-Well Envelope Company,

150 F.3d 1227 (10 Cir.), cert. denied,

es ee » 119 8.Ct. 546, 142

L.Ed.2d 454 (1998). The Tenth Circuit

then enjoined Mr. Smith from proceeding

as an appellant, or as a petitioner in an

original proceeding, without the

representation of a licensed attorney

admitted to practice in the Tenth

Circuit, unless he first obtains

permission to proceed pro se. See id.

The Tenth Circuit gave Mr. Smith ten days

from the date of its opinion to file

written objections, limited to fifteen

pages, to these proposed filing

restrictions. See id.

On December 3, 1998, the Tenth

Circuit issued its order dismissing Mr.

Smith’s appeal in the present case for

failure to follow the filing restrictions

set forth in its (June 29, 1998) opinion

in Howard, while refusing to grant a

hearing or to address the issues raised

and argued by him in his appellate brief.

II. ARGUMENT

Under the foregoing circumstances,

the Tenth Circuit deprived Mr. Smith of

his First Amendment right to petition the

government for a redress of grievances

and his Fifth Amendment right to due

process of law, including his right to

appeal a final decision by a district

court and to receive meaningful review of

that decision under 28 U.S.C. § 1291.

See Coppedge v. United States, 369 U.S.

438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962);

Salve Regina College vy. Russell, 499 U.s.

231, 111 S.Ct. 1217, 113 L.Ed.2d 190

(1991) (“the obligation of responsible

appellate jurisdiction implies the

requisite authority to review

independently a lower court’s

determinations”) ; Honda Motor Co., Ltd,

v. Oberg, 512 U.S. 415, 114 S.ct. 2331,

129 L.Ed.2d 336 (1994); United States yv.

Jose, 519 U.S. 54, 117 S.Ct. 463, 136

L.Ed.2d 364 (1996) (“finality, not

ripeness, is the doctrine governing

appeals from District Court to Circuit

Court”); Brewen v. United States, 375

F.2d 285 (5 Cir. 1967); Matter of

McLinn, 739 F.2d 1395 (9 Cir. 1984)

(“every party is entitled to a full,

considered, and impartial review of the

decision of the trial court”); Craig v.

Lake Asbestos of Quebec, Ltd., 843 F.2d

145 (3*° Cir. 1988); United States v.

Dickstein, 971 F.2d 446 (10% Cir. 1992);

Jo} 2 lof C Ey C ;

85 F.3d 489 (10% Cir. 1996); Steiner

: Jo} - Hi c Calif a

135 F.3d 684 (10% Cir. 1997). See also

NAACP v. Button, 371 U.S. 415, 83 S.Ct.

328, 9 L.Ed.2d 405 (1963) (“and under the

conditions of modern government,

litigation may well be the sole

practicable avenue open to a minority to

petition for redress of grievances”) ;

Wisconsin v. Constantineau, 400 U.S. 433,

91 8.Ct. 507, 27 &.Bd.24@ 515 (1971);

Calif a Ses * EC

Trucking Unltd., 404 U.S. 508, 92 S.Ct.

609, 30 L.Ed.2d 642 (1972); Board of

Regents v. Roth, 408 U.S. 564, 96 S.Ct.

2701, 33 L.Ed.2d 548 (1972); Legan v.

Zimmerman Brush Co., 455 U.S. 422, 102

S.Ct. 1148, 71 L.Ed.2d 265 (1982);

Cleveland Board of Education v.

Loudermill, 470 U.S. 494, 105 S.Ct. 1487,

84 L.Ed.2d 494 (1985); Talamini v.

Allstate Insurance Co., 470 U.S. 1067

(1985); Crumpacker vy. Indiana Supreme

Court Disciplinary Commission, 470 U.S.

1074 (1985); Burkett v,. Chandler, 505

F.2d 217 (10% Cir.), cert. denied, 423

U.S. 876, 96 S.Ct. 149, 46 L.Ed.2d 110

(1975); Silver vy. Cormier, 529 F.2d 161,

163 (10™ Cir. 1976) (“a public official’s

threats to a citizen to withhold monies

due and owing, should legal proceedings

be instituted, burdens or chills

constitutional rights of access to the

courts”), citing Harbolt v. Allredge, 464

F.2d 1243, 1244 (10% Cir.), cert. denied,

409 U.S. 1025, 93 S.Ct. 473, 34 L.Ed.2d

319 (1972 and Evans v. Moseley, 455 F.2d

1084, 1087 (10™ Cir. 1972); 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 Stat it aed ; ; ;

District of Colorado, 758 F.2d 1362 (10%

Cir. 1985); Braley v. Campbell, 832 F.2d

1504 (10 Cir. 1987); White v. General

Motors Corp., Inc., 908 F.2d 675 (10™

Cir. 1990); Dailey v. Vought Aircraft

Company, 141 F.3d 224 (5™ Cir. 1998).

The Tenth Circuit also violated Mr.

Smith’s Sixth Amendment right to self-

representation, including his right to

proceed pro se under 28 U.S.C. § 1654.

See McKaskle vy, Wiggins, 465 U.S. 168,

104 S.Ct. 944, 79 L.Ed.2d 122 (1984);

Dev; Indi Ri ; 36] 1

Board, 121 F.3d 576 (11™ Cir. 1997).

Unless this Court grants Mr. Smith’s

petition for a writ of certiorari, the

Tenth Circuit’s threat to prosecute him

for criminal contempt will chill (or

freeze) the exercise of these

constitutional and statutory rights in

other cases being pursued by him.’

‘Mr. Smith is pro se attorney-

plaintiff in three lawsuits pending in

the United States District Court for the

District of Colorado seeking damages and

4

III. CONCLUSION

The United States Court of Appeals

for the Tenth Circuit has entered a

decision in conflict with the decision of

another United States court of appeals on

the same important matter; has so far

other legal and equitable relief against

the Regional Transportation District

(“RTD”), as well as attorneys and

officials associated with the RTD who

engaged in a conspiracy to procure,

initiate, and continue criminal or quasi-

criminal proceedings against him without

probable cause and primarily for a

purpose other than that of securing the

proper adjudication of the charges,

claims and allegations on which the

proceedings were based, all in violation

of 42 U.S.C. §§ 1983, 1985, 1986, the

First, Seventh, and Fourteenth Amendments

to the Constitution of the United States,

and Colorado common law. In addition,

Mr. Smith is pro se attorney-plaintiff in

a fourth lawsuit pending in the United

States District Court for the District of

Colorado seeking damages and other legal

and equitable relief against his former

attorneys for legal malpractice based on

negligent or intentional breach of their

fiduciary duties of effective assistance

of counsel, undivided loyalty, and

candor, honesty, and fair dealing.

departed from the accepted and usual

course of judicial proceedings, or

sanctioned such a departure by a lower

court, as to call for an exercise of this

Court’s supervisory power; and has

decided an important question of federal

law that has not been, but should be,

settled by this Court, or has decided an

important federal question in a way that

conflicts with relevant decisions of this

Court. Mr. Smith therefore requests this

Court to grant his Petition for a Writ of

Certiorari to the United States Court of

Appeals for the Tenth Circuit, 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 Tenth Circuit’s

(December 3, 1998) order.

Respectfully submitted,

DAVID L. SMITH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY -APPELLANT -

PETITIONER

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOHN CASILLAN,

Plaintiff-Appellee,

REGIONAL TRANSPORTATION

DiStmseer, 6C Oils,

Defendants-Appellees, No. 98-1397

and

DAVID L. SMITH,

Movant-Appellant.

ORDER

Filed December 3, 1998

Before Seymour, Chief Judge.

This matter is before the court

following receipt of appellant David L.

Smith’s response to our October 26, 1998

show cause order. In that order, we

directed Mr. Smith to show cause why this

appeal should not be dismissed for

A-1

failure to comply with the filing

restrictions set forth in this court’s

opinion in Howard v. Mail-Well Envelope

Company, 150 F.3d 1227 (10% Cir. 1998).

On November 2, Mr. Smith filed his

response to the court’s order. After

carefully reviewing that pleading, as

well as the other materials on file, the

court concludes Mr. Smith has not shown

cause why this matter should not be

dismissed. Mr. Smith has not followed

the restrictions and has not provided

cause for continuing this appeal.

Consequently, the matter is dismissed. A

certified copy of this order shall stand

as and for the mandate of the court.

Entered for the Court

PATRICK FISHER, Clerk of Court

by:

Elisabeth A. Shumaker

Chief Deputy Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOHN CASILLAN,

Plaintiff,

Vv. No. 98-1397

REGIONAL TRANSPORTATION

DISTRICT, et al.,

Defendants-Appellees.

DAVID L. SMITH,

Attorney-Appellant.

VERIFIED RESPONSE TO ORDER TO SHOW CAUSE

WHY THIS APPEAL SHOULD NOT BE DISMISSED

COMES NOW attorney-appellant David

L. Smith (“Mr. Smith”) and files his

Verified Response to Order to Show Cause

Why This Appeal Should Not be Dismissed:

1. On June 29, 1998, the United

States Court of Appeals for the Tenth

A-3

Circuit issued its opinion (a copy of

which is attached hereto as Exhibit 1)

denying Mr. Smith’s appeals in two

federal civil rights cases without

addressing the issues raised and argued

by him in his appellate briefs. The

Tenth Circuit then enjoined Mr. Smith

from proceeding as an appellant, or as a

petitioner in an original proceeding,

without the representation of a licensed

attorney admitted to practice in the

Tenth Circuit, unless he first obtains

permission to proceed pro se. The Tenth

Circuit gave Mr. Smith ten days from the

date of its opinion to file written

objections, limited to fifteen pages, to

these proposed filing restrictions.

2. On July 14, 1998, the Tenth

Circuit issued its order (a copy of which

is attached hereto as Exhibit 2)

summarily denying Mr. Smith’s Petition

for Rehearing, Suggestion for Rehearing

En Banc, and Objections to Prospective

Filing Restrictions and Injunction.

3. In its (June 29, 1998) opinion,

the Tenth Circuit found and concluded

that by filing and pursuing his appeals,

Mr. Smith was attempting to re-litigate

issues already determined by the Tenth

Circuit or foreclosed by previous

determinations of the Tenth Circuit, in

violation of orders issued by the Tenth

Circuit in previous cases. However, the

issues raised and argued by Mr. Smith in

these previous cases were different from

those raised and argued by him in the

cases under review. The parties were

A-4

also different. In at least four of

these previous cases, the standard or

burden of proof was different.” In all

of these previous cases, the Tenth

Circuit refused to address the issues

raised and argued by Mr. Smith--a blatant

and egregious violation of his First

Amendment right to access to the courts

to petition the government for a redress

of grievances and his Fifth Amendment

right to due process of law, including

his right to appeal a final decision by a

district court and to receive meaningful

review of that decision under 28 U.S.C. §

1291. See Coppedge v. United States, 369

U.8. 436, 82 8.Ct. 917, 8 L.EBd.2d 21

(1962); Salve Regina College vy. Russell,

4995 U.8. 234, 143 8.Ct. 1247, 113 4.84.24

190 (1991) (“the obligation of

responsible appellate jurisdiction

implies the requisite authority to review

independently a lower court’s

A-5

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

723 (10 Cir.), cert. denied, 513 U.S.

807, 115 S.Ct. 53, 130 L.Ed.2d 13 (1994);

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

Cir.), cert. denied, ¢ £27

S.Ct. 186, 136 L.Ed.2d 125 (1996); In the

Matter of David L. Smith, Nos. 95-1091

and 95-1119 (10 Cir.), cert. denied,

U.S. » aoa? B.C. 339, iss

L.Ed.2d 251 (1996); Smith v. United

States Court of Appeals for the Tenth

Circuit, et al., No. 98-1030 (10 Cir.),

cert. pending in Supreme Court No. 98-

265.

determinations”); Honda Motor Co,., Ltd,

vy. Oherg, 512 U.S. 415, 114 8.Ct. 2331,

129 L.Ed.2d 336 (1994); United States v.

Jose, 519 U.S. 54, 117 S.Ct. 463, 136

L.Ed.2d 364 (1996) (“finality, not

ripeness, is the doctrine governing

appeals from District Court to Circuit

Court”); Brewen v. United States, 375

F.2d 285 (5™ Cir. 1967); Matter of

McLinn, 739 F.2d 1395 (9™ Cir. 1984)

(“every party is entitled to a full,

considered, and impartial review of the

decision of the trial court”); Craig v.

Lake Asbestos of Quebec, Ltd., 843 F.2d

145 (3*° Cir. 1988); United States v.

Dickstein, 971 F.2d 446 (10% Cir. 1992);

Johnson v. Board of County Commissioners,

85 F.3d 489 (10% Cir. 1996); Steiner

; Jo] Higa: cE Calif ba’

135 F.3d 684 (10% Cir. 1997). Nor did

the Tenth Circuit give any independent

reasons for its decisions. See id. The

Tenth Circuit merely affirmed the orders

issued by the United States District

Court for the District of Colorado, which

also refused to address the issues raised

and argued by Mr. Smith--another blatant

and egregious violation of his First and

Fifth Amendment rights. See id.; see

also NAACP vy. 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”); Wisconsin v. Constantineau,

400 U.S. 433, 91 8.Ct. 507, 27 L.Ed.24

515 (1971); California Motor Transport

Co, v. Trucking Unltd., 404 U.S. 508, 92

A-6

S.Ct. 609, 30 L.Ed.2d 642 (1972); Board

of Regents v. Roth, 408 U.S. 564, 96

S.Ct. 2701, 33 L.Ed.2d 548 (1972); Logan

vy. Zimmerman Brush Co., 455 U.S. 422, 102

S.Ct. 1148, 71 L.Ed.2d 265 (1982);

Cleveland Board of Education v.

Loudermill, 470 U.S. 494, 105 S.ct. 1487,

84 L.Ed.2d 494 (1985); Talamini v.

Allstate Insurance Co,, 470 U.S. 1067

(1985); Crumpacker vy. Indiana Supreme

Court Disciplinary Commission, 470 U.S.

1074 (1985); Burkett v. Chandler, 505

F.2d 217 (10% Cir.), cert. denied, 423

U.S. 876, 96 S.Ct. 149, 46 L.Ed.2d 110

(1975); Silver v. Cormier, 529 F.2d 161,

163 (10% Cir. 1976) (“a public official’s

threats to a citizen to withhold monies

due and owing, should legal proceedings

be instituted, burdens or chills

constitutional rights of access to the

courts”), citing Harbolt v. Allredge, 464

F.2d 1243, 1244 (10 Cir.), cert. denied,

409 U.S. 1025, 93 S.Ct. 473, 34 L.Ed.2da

319 (1972) and Evans v. Moseley, 455 F.2d

1084, 1087 (10 Cir. 1972); Razatos v,.

Colorado Supreme Court, 746 F.2d 1429

(10 Cir.), cert. denied, 471 U.S. 1016

(1985); Mattox v. Disciplinary Panel of

ne tnited 2 District ¢ : ;

District of Colorado, 758 F.2d 1362 (10%

Cir. 1985); Braley v. Campbell, 832 F.2d

1504 (10 Cir. 1987); White v. General

Motors Corp., Inc., 908 F.2d 675 (10°

Cir. 1990); Dailey v. Vought Aircraft

Company, 141 F.3d 224 (5 Cir. 1998).

Therefore, by filing and pursuing his

appeals, Mr. Smith was not attempting to

re-litigate issues already determined by

the Tenth Circuit or foreclosed by

A-7

previous determinations of the Tenth

Circuit, in violation of orders issued by

the Tenth Circuit in previous cases.’

Instead, Mr. Smith was attempting to

litigate meritorious issues that the

Tenth Circuit and the District Court have

steadfastly refused to decide on their

merits.‘ By refusing to address these

A-8

*In other words, Mr. Smith was not

attempting to litigate issues barred by

the doctrines of res judicata and

collateral estoppel, which have no

application where the appellant did not

have a full and fair opportunity to

litigate his federal claims. See Allen

v. McCurry, 449 U.S. 90, 101 S.Ct. 411,

66 L.Ed.2d 308 (1980).

‘Since the issues Mr. Smith was

attempting to litigate were well grounded

in fact and were warranted by existing

law or a good faith argument for the

extension, modification or reversal of

existing law, or to establish new law,

the Tenth Circuit’s charge that these

issues were “frivolous” was false. See

McKnight v. General Motors Corporation,

511 U.S. 659, 114 &8.Ct. 1826, 128 L.Bd.2d

655 (1994) (appeal not “frivolous” where

the only basis for the order imposing

sanctions on petitioner’s attorney was

that his argument was foreclosed by

circuit precedent).

issues in its (June 29, 1998) opinion,

the Tenth Circuit again deprived Mr.

Smith of his First and Fifth Amendment

rights.

4. By enjoining Mr. Smith from

proceeding as an appellant, or as a

petitioner in an original proceeding,

without the representation of a licensed

attorney admitted to practice in the

Tenth Circuit, unless he first obtains

permission to proceed pro se, the Tenth

Circuit not only further violated his

First and Fifth Amendment rights. See

id. The Tenth Circuit also violated Mr.

Smith’s Sixth Amendment right to self-

representation, including his right to

proceed pro se under 28 U.S.C. § 1654.

See McKaskle v. Wiggins, 465 U.S. 168,

104 S.Ct. 944, 79 L.Ed.2d 122 (1984);

Dew Indi Ri ; Sc} 1

Board, 121 F.3d 576 (11% Cir. 1997). It

should also be recognized that the record

was devoid of any evidence upon which the

Tenth Circuit could base imposing its

injunction against Mr. Smith.

5. The Tenth Circuit gave Mr. Smith

ten days from the date of its opinion to

file written objections, limited to

fifteen pages, to its proposed filing

restrictions. However, by charging Mr.

Smith with violating the Tenth Circuit’s

previous orders, the Tenth Circuit was

charging him with what amounted to

criminal contempt; and he was therefore

entitled to a full criminal process,

including his Sixth Amendment right to a

trial by jury on these charges.°® See

Gompers v. Bucks Stove & Range Co,., 221

U.8. 418, 31 S.Ct. 492, 53 4.Ba.24 797

(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). At the very

least, Mr. Smith was entitled to an

evidentiary hearing at which he would

have the opportunity to present expert

testimony and other relevant evidence on

his affirmative defenses and mitigating

A-10

"As a matter of the equal protection

of the laws, Mr. Smith should not have

fewer constitutional rights merely

because the Tenth Circuit brought charges

against him sua sponte rather than in an

order to show cause why he should not be

held in contempt for allegedly violating

the Tenth Circuit’s previous orders. See

Schware v. Board of Bar Examiners, 353

U.S. 232, 77 8.Ct. 752, 1 b.e.2e 796

(1957); Douglas v. California, 372 U.S.

353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963);

Harper v. Virginia State Board of

Elections, 383 U.S. 663, 86 S.Ct. 1079,

16 L.Ed.2d 169 (1966); Baird v. State Bar

of Arizona, 401 U.S. 1, 913 @.Ce. FO2. 27

L.Ed.2d 639 (1971); Bodie v. Connecticut,

401 U.8. 371, 313 8.Ct. 7E@, 26 t.ma.a2e

113 (1971).

circumstances to the charges being

brought against him. See 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);

Matt Di aod) 4 L L of ¢)

United st Riateing - -" b}

District of Colorado, 758 F.2d 1362 (10

Cir. 1985); Braley v. Campbell, 832 F.2d

1504 (10 Cir. 1987); White v. General

Motors Corp,., Inc., 908 F.2d 675 (10™

Cir. 1990); Dailey v. Vought Aircraft

Company, 141 F.3d 224 (5™ Cir. 1998).

Under these circumstances, the Tenth

Circuit committed reversible error by

denying Mr. Smith’s request for an

evidentiary hearing.

6. Since the Tenth Circuit has

demonstrated that it is incapable of

rendering a fair and impartial decision

with respect to any matter involving Mr.

Smith, the Tenth Circuit also committed

reversible error by denying his request

for the cases under review to be

transferred to the United States Court of

Appeals for the Federal Circuit for

decision.® See 28 U.S.C. § 455(a);

Liteky v. United States, 510 U.S. 540,

A-11

‘Mr. Smith is a member in good

standing of the bar of the Federal

Circuit, and he believes that the judges

of the Federal Circuit could have and

would have rendered a fair and impartial

decision in the cases under review.

114 S.Ct. 1147, 127 L.Ed.2d 474 (1994);

Arnett v. Kennedy, 416 U.S. 134, 197, 94

S.Ct. 1633, 40 L.Ed.2d 15 (1974) (White,

J., concurring in part and dissenting in

part) (“the right to an impartial

decision-maker is required by due

process” in every case); Morrissey v.

Brewer, 408 U.S. 471, 485-86, 92 S.Ct.

2593, 33 L.Ed.2d 484 (1972) (decision-

maker bias is grounds for reversal);

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

469, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971)

(Harlan, J., concurring) (“the appearance

of evenhanded justice .. . is at the

core of due process”); Goldberg v. Kelly,

397 U.S. 254, 271, 90 &.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.2d 11 (1954) (nor may a judge or

other ostensibly impartial decision-maker

“give vent to personal spleen or respond

to a personal grievance” in reaching a

decision). Further, the Tenth Circuit

committed reversible error by denying Mr.

Smith’s request for an order dismissing

with prejudice the frivolous and

groundless charges it brought against him

for the improper purpose of depriving him

of his First and Fifth Amendment rights

to litigate meritorious issues the Tenth

Circuit and the District Court have

steadfastly refused to decide on their

merits. Finally, the Tenth Circuit

committed reversible error by issuing a

false and defamatory opinion that is

unsupported by the law or the facts.

7. Under the foregoing

circumstances, the Tenth Circuit’s (June

29, 1998) opinion was void ab initio, and

it is no longer equitable that this

opinion should have prospective

application.

WHEREFORE, Mr. Smith submits that

this appeal should not be dismissed, and

requests such other and further relief as

may be just under the circumstances,

including an order granting his Motion

(filed on October 14, 1998) to Vacate

Opinion Imposing an Injunction and Filing

Restrictions Against David L. Smith, or

transferring this matter to the United

States Court of Appeals for the Federal

Circuit for hearing and decision.

Dated this 2nd day of November,

1998.

Respectfully submitted,

David L. Smith

Pro Se Attorney-Appellant

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

>

'

13

VERIFICATION

STATE OF COLORADO )

CITY AND COUNTY OF DENVER )

I, David L. Smith, hereby verify

that the information set forth in the

foregoing Verified Response to Order to

Show Cause Why This Appeal Should Not be

Dismissed is true and correct to the best

of my knowledge, information and belief.

David L. Smith

Subscribed and sworn to before me by

David L. Smith on this 2™ day of

November, 1998.

Witness my hand and official seal.

Notary Public

CERTIFICATE OF SERVICE

I hereby certify that on this 2™ day

of November, 1998, true and correct

copies of the foregoing Verified Response

to Order to Show Cause Why This Appeal

Should Not be Dismissed were placed in

the United States mail, postage prepaid,

addressed as follows:

John Casillan

7916 Sherman Street

Denver, Colorado 80221

Rolf G. Asphaug, Esq.

Sally Zack Wheeler, Esq.

Regional Transportation District

1600 Blake Street

Denver, Colorado 80202

Patricia A. Coan

United States Magistrate Judge

United States Courthouse

1929 Stout Street

Denver, Colorado 80294

Lynne L. Hicks, Esq.

1600 Broadway, Suite 1600

Denver, Colorado 80202

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOHN CASILLAN,

Plaintiff,

No. 98-1397

Vv. (D.C. No. 90-S-1722)

(Dist. of Colo.)

REGIONAL TRANSPORTATION

DISTRICT, AMALGAMATED TRANSIT

UNION, Local 1001, MICHAEL

GARCIA, RICHARD BAUMAN,

ROBERT GARSIDE, ED RHATICAN,

PETE PEREA, BERNIE SNYDER,

GEORGE STANKO, GREG FISHER,

Defendants-Appellees.

DAVID L. SMITH,

Attorney-Appellant.

OPENING BRIEF FOR PRO SE ATTORNEY -

APPELLANT DAVID L. SMITH

Pro se attorney-appellant David L.

Smith hereby files his opening brief:

I. STATEMENT OF SUBJECT MATTER AND

APPELLATE JURISDICTION

Subject matter jurisdiction of the

United States District Court for the

District of Colorado is based on 28

U.S.C. §§ 1331 and 1343; 42 U.S.c. §§

1981 and 1983; Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e et

seq-; § 301 of the Labor Management

Relations Act of 1947, 29 U.S.C. § 185;

and the First, Fourth, Fifth, Ninth, and

Fourteenth Amendments to the Constitution

of the United States.

Appellate jurisdiction of the United

States Court of Appeals for the Tenth

Circuit is based on 28 U.S.C. § 1291.

Ii. ISSUES PRESENTED FOR APPEAL

Whether by issuing his order of

September 18, 1998 denying plaintiff’s

and his attorney’s Motions without

affording them the opportunity to file a

brief or otherwise be heard before entry

of a final judgment, and without

addressing the issues raised and argued

by them, Judge Sparr deprived them of

their First Amendment right to access to

the courts to petition the government for

a redress of grievances and their Fifth

Amendment right to due process of law.

Whether the holding in Elam

: : I Regi ;

Transportation District, 129 F.3d 1343,

1346 (10% Cir. 1997) that the RTD is a

suable “person” within the meaning of 42

u.S.C. § 1983 is contrary to Judge

Sparr’s previous orders dismissing

plaintiff’s federal civil rights case,

imposing attorney fee sanctions of more

than $15,000.00 against the plaintiff and

his attorney for filing an alleged

“frivolous” appeal, indefinitely

suspending plaintiff’s attorney from the

practice of law in the United States

District Court for the District of

Colorado, and disqualifying plaintiff’s

attorney from further representation of

his client.

Whether it therefore follows that

these previous orders were void ab

initio, and that it is no longer

equitable that these orders should have

prospective application.

Whether the same is also true for

Judge Sparr’s order of September 18,

1998, which merely reaffirms his previous

orders.

III. STATEMENT OF THE CASE

On May 15, 1995, the plaintiff and

his attorney filed their Motion to

Disqualify United States District Judge

Daniel B. Sparr; Response to Motions for

Attorney Fees and/or Sanctions; Motion

for Attorney Fees and/or Sanctions

Against Defendants’ Attorneys Pursuant to

A-18

(RI i

Fed. R. Civ. P. 11 and 28 U.S.c. § 1927;

and Motion to Vacate Judge Sparr’s orders

Dated December 10, 1991, January 3, 1992,

and April 15, 1993 (“Motions”) . (Record,

Volume I., Document 201, all pages.) A

copy of plaintiff’s and his attorney’s

Motions is attached hereto as Exhibit 1

and is incorporated herein by reference

for all purposes.

On September 18, 1998, Judge Sparr

issued his order denying plaintiff’s and

his attorney’s Motions without affording

them the opportunity to file a brief or

otherwise be heard before entry of a

final judgment, and without addressing

the issues raised and argued by them.

(Record, Volume I., Document 212, all

pages.) A copy of Judge Sparr’s order of

September 18, 1998 is attached hereto as

Exhibit 2 and is incorporated herein by

reference for all purposes.

IV. ARGUMENT

In their Motions, the plaintiff and

his attorney argued as follows:

By participating (as a member

of the District Court disciplinary

panel) in the decision to issue the

(February 10, 1995) disciplinary

order imposing “identical”

discipline against Mr. Smith as that

imposed against him by the Tenth

Circuit disciplinary panel in its

(November 29, 1993) disciplinary

order, and suspending Mr. Smith from

the practice of law in the District

A-19

Court pursuant to D.C.COLO.LR

83.6.P., Judge Sparr gave effect to

a local rule which is

unconstitutional on its face, and as

applied to Mr. Smith in the District

Court disciplinary action, and to

Mr. Smith and his clients in pending

and potential civil rights

litigation, including the Casillan

case. Judge Sparr gave effect to

this local rule even though the

procedure followed by the Tenth

Circuit disciplinary panel was so

lacking in notice or opportunity to

be heard that it denied due process;

even though the kind of misconduct

(if any) established against Mr.

Smith has been held to warrant

substantially less severe

discipline; even though imposition

by the District Court disciplinary

panel of the same discipline as that

imposed against Mr. Smith by the

Tenth Circuit disciplinary panel has

resulted in grave injustice; and

even though Mr. Smith’s attorney has

refused to represent him competently

in connection with the Tenth Circuit

and District Court disciplinary

actions.

By lifting the stay in Mr.

Casillan’s civil rights case and

removing Mr. Smith as Mr. Casillan’s

attorney, Judge Sparr has acted

beyond the scope of the District

Court disciplinary panel’s (February

10, 1995) disciplinary order, which

does not permit removal of Mr. Smith

A-20

— OE |

a8 attorney for his clients in

pending federal civil rights

litigation. Such permission would

constitute an ex post facto or

retroactive application of

D.C.COLO.LR 83.6.P., and would

interfere with Mr. Smith’s right to

represent his clients in accordance

with the terms of their contingent

fee agreements. See United States

v. Dickstein, 971 F.2d 446, 451 (10%

Cir. 1992). Such permission would

also interfere with mr. Smith’s

clients’ First Amendment rights to

pursue federal civil rights

litigation. See NAACP vy. Button,

371 U.S. 415, 83 S.Ct. 328, 9

L.Ed.2d 405 (1963) (“[a]nad under the

conditions of modern government,

litigation may well be the sole

practicable avenue open to a

minority to petition for redress of

grievances”); Brotherhood of

irginia, 377

U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89

(1964);

Illinois, 389 u.s. 217, 88 S.Ct.

353, 19 L.Ed.2d 426 (1967); United

Michigan, 401 U.S. 576, 91 S.Ct.

1076, 28 L.Ed.2d 339 (1971); Bill

: , 461

U.S. 731, 103 S.ct. 2161, 76 L.Ed.2a

277 (1983); : ’

467 U.S. 883, 104 Ss.ct. 2803, 81

L.Ed.2d 732 (1984). This is

especially true for mr. Casillan,

who is financially unable to hire

substitute counsel, and is

A-21

incompetent to proceed pro se

against experienced defense counsel.

Even if the District Court

disciplinary panel’s (February 10,

1995) disciplinary order permits

Judge Sparr to remove Mr. Smith as

attorney for his clients in pending

federal civil rights litigation,

this could not be done without

affording procedural due process of

law. See Braley v. Campbell, supra;

White v. General Motors Corp., Inc.,

908 F.2d 675 (10% Cir. 1990). Mr.

Casillan and Mr. Smith were denied

procedural due process of law by

Judge Sparr’s refusal to allow Mr.

Smith to argue on their behalf at

the (April 7, 1995) Status

Conference, which was held without

prior notice of the contemplated

removal and stay, and without an

opportunity to file a brief.

Judge Sparr is proceeding in

excess of the jurisdiction delegated

to him by the Tenth Circuit hearing

panel in its (January 15, 1993)

order remanding Mr. Casillan’s case

to Judge Sparr “for a determination

of reasonable attorney fees for each

defendant for defending this

appeal.” Judge Sparr is also

proceeding in excess of the

jurisdiction delegated to him by

Local rule 105A, which requires

motions for attorney fees to be

filed within ten days after entry of

judgment. Defendants’ attorneys

A-22

failed to file their motions for

attorney fees for defending Mr.

Casillan’s case in the District

Court until more than a year after

entry of judgment. Furthermore,

under Local Rule 105A, "[n]o

attorney fees supplementary to a

judgment will be awarded for any

services rendered after the date of

issuance of these rules unless the

requesting party submits clear,

meticulous, contemporaneous time and

expense records reflecting all hours

for which compensation is requested

and the allotment of those hours to

the specific tasks performed.” See

also White v

Inc., 908 F.2d 675 (10™ Cir. 1990),

citing Ramos v. Lamm, 713 F.2d 546

(10 Cir. 1983). Defendants’

attorneys failed to submit time and

expense records meeting the

stringent requirements of Local Rule

105A, White and Ramos.

In addition, Defendants’

attorneys filed their motions for

attorney fees and/or Sanctions, even

though Mr. Casillan’s second amended

complaint presented colorable claims

based on the facts and law at issue.

White, supra. These motions for

attorney fees and/or sanctions were

filed for the improper purpose of

chilling Mr. Casillan’s First

Amendment right to access to the

federal courts, and of attempting to

drive Mr. Smith out of federal civil

rights practice. White, Supra. The

A-23

amounts of attorney fees and/or

sanctions requested are greatly in

excess of any amounts that would be

necessary to deter any undesirable

behavior. White, supra. Judge

Sparr therefore erred by denying Mr.

Casillan’s and Mr. Smith’s motion

for sanctions against Defendants’

attorneys for filing frivolous

motions for attorney fees and/or

sanctions.

The foregoing matters are

controlling issues of law upon which

there is substantial room for

dispute. Judge Sparr therefore

abused his discretion or otherwise

acted improperly or in a manner

detrimental to the fair and

impartial administration of justice

by denying Mr. Smith’s request for

certification of his (April 7, 1995)

bench ruling or order for purposes

of an immediate appeal to the Tenth

Circuit under 28 U.S.C. § 1292(b).

Under all the circumstances,

Judge Sparr’s impartiality might

reasonably be questioned, and he was

therefore obligated to disqualify

himself pursuant to 28 U.S.C. §

455(a). By refusing to do so, Judge

Sparr again grossly abused his

discretion or otherwise acted

improperly or in a manner

detrimental to the fair and

impartial administration of justice.

Furthermore, where an attorney is

disbarred by a biased judge during

A-24

ee

the course of litigation, he is

entitled to an a immediate appeal or

writ of mandamus or prohibition.

Burkett v. Chandler, 505 F.2d 217

(10™ Cir. 1974), cert. denied, 423

U.S. 876, 96 S.Ct. 149, 46 L.Ed.2d

110 (1975).

(Record, Volume I., Document 201, pages

28-32.) By issuing his order of

September 18, 1998 denying plaintiff’s

and his attorney’s Motions without -

affording them the Opportunity to file a

brief or otherwise be heard before entry

of a final judgment, and without

addressing the issues raised and argued

by them, Judge Sparr deprived them of

their First Amendment right to access to

the courts to petition the government for

a redress of grievances and their Fifth

Amendment right to due process of law.

See NAACP vy. Button, 371 U.S. 415, 83

S.Ct. 328, 9 L.Ed.2d 405 (1963) (“[a]nad

under the conditions of modern

government, litigation may well be the

sole practicable avenue open to a

minority to petition for redress of

grievances”); Brotherhood of Railroad

Trainmen v. Virginia, 377 U.S. 1, 84

S.Ct. 1113, 12 L.Ed.2d 89 (1964); United

Mine Workers v. Illinois, 389 U.S. 217,

88 S.Ct. 353, 19 L.Ed.2d 426 (1967); In

re Ruffalo, 390 U.S. 544, 88 S.ct. 1222,

20 L.Ed.2d 117 (1968) ;_Goldberg v. Kelly,

397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d

287 (1970); Wisconsin v. Constantineau,

400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d

sae (i971) > United Transportation Union

v. State Bar of Michigan, 401 U.S. 576,

A-25

91 S.Ct. 1076, 28 L.Ed.2d 339 (1971); .

nalif ia M rt ;

Trucking Unltd., 404 U.S. 508, 92 S.Ct.

609, 30 L.Ed.2d 642 (1972); Board of

Regents vy. Roth, 408 U.S. 564, 96 S.Ct.

2701, 33 L.Ed.2d 548 (1972); Perry v.

Sindermann, 408 U.S. 593, 92 S.Ct. 2694,

33 L.Ed.2d 570 (1972); Arnett v. Kennedy,

416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d

15 (1974); Wolff v. McDonnell, 418 U.S.

539, 94 S.Ct. 2963, 41 L.Ed.2d 935

(1974); Mathews v. Eldridge, 424 U.S.

319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976);

Paul v. Davis, 424 U.S. 693, 96 S.Ct.

1155, 47 L.Ed.2d 405 (1976); Bishop v.

Wood, 426 U.S. 341, 96 S.Ct. 2074, 48

L.Ed.2d 684 (1976); Allen v. McCurry, 449

U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308

(1980); Legan v. Zimmerman Brush Co., 455

U.S. 422, 102 8.Ct. 12148, 7a &.Ba.24 265

(1982) ;_Bill Johnson’s Restaurants v.

NLEB, 4613 U.8. 731, i103 8.C&. 2i61, 76

L.Ed.2d 277 (1983); Sure-Tan, Inc, v.

NLRB, 467 U.S. 883, 104 S.Ct. 2803, 81

L.Ed.2d 732 (1984); Cleveland Board of

Education v. Loudermill, 470 U.S. 494,

105 S.Ct. 1487, 84 L.Ed.2d 494 (1985);

Talamini v. Allstate Insurance Co., 470

U.S. 1067 (1985); Crumpacker v. Indiana

3 ~ E Discinli : er peng

470 U.S. 1074 (1985); Honda Motor Co.,

Ltd. vy. Oberg, 512 U.S. 415, 114 S.Ct.

2331, 129 L.Ed.2d 336 (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); Silver v,. Cormier,

529 F.2d 161 (107 Cir. 1976) (“[a] public

official’s threats to a citizen to

withhold monies due and owing, should

A-26

legal proceedings be instituted, burdens

or chills constitutional rights of access

to the courts”), citing Harbolt v.

Allredge, 464 F.2d 1243 10 Cir.), cert.

denied, 409 U.S. 1025, 93 S.ct. 473, 34

L.Ed.2d 319 (1972) and Evans v. Moseley,

455 F.2d 1084 (10% Cir. 1972); Dietrich

Corp, v. King Resources Co., 596 F.2d 422

(10% Cir. 1979); Henriksen v. Bentley,

644 F.2d 852 (10% Cir. 1981); Shaw v.

Neece, 727 F.2d 947 (10 Cir. 1984);

McKay v. Hammock, 730 F.2d 1367 (10% Cir.

1984); ’

746 F.2d 1429 (10% Cir.), cert. denied,

471 U.S. 1016 (1985); Mattox v.

Dieoinis bene, nt the Sates i |

ninhetak aa tee eh oka :

Colorado, 758 F.2d 1362 (10“ Cir. 1985);

Nordgren v. Milliken, 762 F.2d 851 (10%

Cir. 1985); Ward v. Fort, 762 F.2d 856

(10 Cir. 1985); Braley v. Campbell, 832

F.2d 1504 (10 Cir. 1987); White v.

General Motors Corp,, Inc., 908 F.2d 675

(10™ Cir. 1990); United States v.

Dickstein, 971 F.2d 446 (10™ Cir. 1992);

85 F.3d 489 (10™ Cir. 1996); Dailey v.

Vought Aircraft Company, 141 F.3d 224 (5%

Cir. 1998). Furthermore, in Elam

Construction, Inc. v. Regional

Transportation District, 129 F.3d 1343,

1346 (10% Cir. 1997), the court held that

the Regional Transportation District

(“RTD”) is a suable “person” within the

meaning of 42 U.S.C. § 1983. This

holding is contrary to Judge Sparr’s

previous orders dismissing plaintiff’s

federal civil rights case, imposing

attorney fee sanctions of more than

A-27

a

$15,000.00 against the plaintiff and his

attorney for filing an alleged

“frivolous” appeal, indefinitely

suspending plaintiff’s attorney from the

practice of law in the United States

District Court for the District of

Colorado, and disqualifying plaintiff’s

attorney from further representation of

his client. (Record, Volume I.,

Documents 127, 130, 133, 155, 157, 188,

189, and 204, all pages.)’ It therefore

follows that these previous orders were

null and void ab initio, and that it is

no longer equitable that these orders

should have prospective application. See

Fed. R. Civ. P. 60(b). The same is also

true for Judge Sparr’s order of September

18, 1998, which merely reaffirms his

previous orders. See id.

"Copies of Judge Sparr’s previous

orders are attached hereto as Exhibits 3,

4, 5, 6, 7, 8, 9, and 10, respectively,

and are incorporated herein by reference

for all purposes. Also attached hereto

as Exhibit 11 and incorporated herein by

reference for all purposes is a copy of

the disciplinary order issued on February

10, 1995 by the three-judge (including

Judge Sparr) disciplinary panel of the

United States District Court for the

District of Colorado indefinitely

suspending Mr. Smith from the practice of

law in the United States District Court

for the District of Colorado.

oO

V. CONCLUSION

Mr. Smith requests an order

declaring null and void ab initio, and

vacating, Judge Sparr’s previous orders,

as well as his order of September 18,

1998, and granting such other and further

relief as may be just under the

circumstances.

VI. REQUEST FOR ORAL ARGUMENT

Mr. Smith hereby requests oral

argument in order to address the

important issues of first impression

raised by this appeal.

Dated this 30“ day of November,

1998.

Respectfully submitted,

DAVID L. SMITH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY-APPELLANT

CERTIFICATE OF SERVICE

I hereby certify that on this 30

day of November, 1998, true and correct

copies of the foregoing Opening Brief for

Pro Se Attorney-Appellant David L. Smith

were placed in the United States mail,

postage prepaid, addressed as follows:

John Casillan

7916 Sherman Street

Denver, Colorado 80221

Rolf G. Asphaug, Esq.

Sally Zack Wheeler, Esq.

Regional Transportation District

1600 Blake Street

Denver, Colorado 80202

Patricia A. Coan

United States Magistrate Judge

United States Courthouse

1929 Stout Street

Denver, Colorado 80294

Lynne L. Hicks, Esq.

1600 Broadway, Suite 1600

Denver, Colorado 80202