Petition for Writ of Certiorari — Smith v. US West Direct

4 Suprents Cart, WE

FILED

9 81447 MAR 1 11999

No. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

RENEE MARKS,

Plaintiff,

Vv.

US WEST DIRECT,

Defendant-Appellee-Respondent.

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 alleged

lack of standing to appeal, while

refusing to address the issues \including

those relating to his standing to appeal

independent from that of his former

client, Renee Marks) raised and argued by

him in his appellate briefs, 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.

aks

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CITATIONS OF OPINIONS AND ORDERS

JURLSDICTION . . « «

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THE CASE

STATEMENT OF THE CASE ..

4p 6

COMNGCEUGLON . « 2 © «

Oo Mice ir we ee Sel we

-iii-

iii

ix

Attached

CASES

Board of Regents v. Roth,

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

33. Ra. 2a FES SSeS ee es ew“ Cw ENS

Braley v. Campbell,

632 ¥.24 35046 120" Cie: 2987) oS kw 4

Brewen v. United States,

375 7.24 288.10" Cie. 3eT hs ae eS

Burkett v. Chandler,

508 F.2d 217 (107 Circ.),

cert. denied, 423 U.S. 876,

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

(1975) I Re UME ee eT aay RY acy tae age ch ae

Calif Le ent ~ )

Co, v. Trucking Unitd.,

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

30 2... 36 GOs Tee rai + oe ee ew we ees

Cleveland Board of Education

v. Loudermill, 470 U.S. 494,

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

(1985) Ae al Ng Eta aes Pe eel a Pe a ae al a ae

Coppedge v. United States,

369 U.8. 438, 82 8.Ct. Bales

S cae wa tered: ec ee ce Se ee ee 2

Craig v. Lake Asbestos of

Quebec, Ltd,., 843 F.2d 145

Cr re a Oe Rs a ear uns eae 3

-iv-

En Oem Te |

Crumpacker vy. Indiana Supreme

Court Disciplinary Commission j i i i 7

GTO) Oalac Rare. Tame Gata a) 4h 6%: BRS oe XS

Dail vy ht A; .

Company, 141 F.3d 224

irre II eee ee ae

Dev; Ind; R; : )

School Board, 121 F.3d 576

(23° Cir. 4997) Rae ee ek RS ee fal moran Gites 4

Evans v. Moseley,

455 F.2d 1084 (10™ Cir. Sb yf PE Oe Cag RA 4

Harbolt v. Allredge

464 F.2d 1243 (10° Cir.),

cert. denied, 409 U.S. 1025,

93 &.Ct. 473, 34 L.Ed.2d 319

CRN POL 60 5e late a a ee ee Ee a ee ie ha Oe

Honda Motor Co., Ltd. v. Oberg,

512 U.S. 415, 114 8.ct. 2331,

Ge Mea aoe eee oS 6 SS oSo eS 2

Howard v. Mail-Well Envelope

Company, 150 F.3d 1227 (10° Cir.),

cert. denied, U.S. ’

119 8.Ct. 546, 142 L.Bd.24

SE4 tienes 6 Sos eee eo es a ee ee 1

Johnson vy. Board of County

Commissioners, 85 F.3d 489

(10° Cis. I996s. 47 yest Soe ees

weet Renta ccna

Logan v. Zimmerman Brush Co.,

455 U.S. 422, 102 8.Ct. 1148,

Th meee SER. {epee oes EO HS SE

Matter of McLinn,

728 (9.24 3398. (97 Cig. 3984)... Kos 2

Mat Di pli : ;

€ the Uni 1 Stat Dj ;

Court for the District of

Colorado, 758 F.2d 1362

(407 .Ciz. 1985S) Ser hae ae 6) ee ee ee 4

McKaskle v. Wiggins,

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

79 L.Ed.2d 122 (1984) ee ae ak Pe ae ee ae a

NAACP vy. Button,

37k Usb: S£0s Se ece. Saee

Be ale ge RE Soe RG eat eee Oem 3

Razatos v. Colorado Supreme

Court, 746 F.2d 1429 (10™ Cir.),

cert. denied, 471 U.S. 1016

(B.S NER gO hae aur ane “Ca oer ner aan meenny tee en

Salve Regina College v. Russell,

S99 Usb. 23ks doe Bsus Banat

Se tice ee Be Ce ae ee oe ks 2

Silver v. Cormier,

S39 9.26 368 (20% Che: A976): 6 ke 6% 3

Steiner Corp. v. Johnson &

Higa: e Calif ‘eg

a38 226 G04 (107 Cie. 3997). « <6: 3

-VWi-

Talamini v. Allstate Insurance

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

United States v. Dickstein,

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

United States v. Jose,

pas. U8, 34, -137 8.Ct. 463,

136 L.Ed.2d 364 (1996)

White v. General Motors

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

(10 Cir. 1990)

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

27 L.Ed.2d 515 (1971)

OTHER AUTHORITIES

Amend. I, U.S. Consti.

Amend. V, U.S. Consti.

Amend. VI, U.S. Consti.

Amend. VII, U.S. Consti.

Amend. XIV, U.S. Consti. ..

Be Wales B ARee 6 SS Se

ae O.G+C.: 9 2604 2 6s ee

oe Mees O BSOe 6 a ce KS

42 U.S.C. § 1983

42 U.S.C. § 1985

42 U.S.C. § 1986

-viii-

CITATIONS OF OPINIONS AND ORDERS

Marks v,. U S West Direct, Case No. 98-

1043 (10 Cir. December 11, 1998).

-ix-

JURISDICTION

The order sought to be reviewed was

entered by the United States Court of

Appeals for the Tenth Circuit on December

ii, 1996.

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 11, 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

part 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... .

-xXi-

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. 8§ 1292(c),

(d}., i1295j..

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-

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-

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,

lace ns , 219 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 11, 1998, the Tenth

Circuit issued its_order and judgment

dismissing Mr. Smith’s appeal in the

present case for alleged lack of standing

to appeal, while refusing to address the

issues (including those relating to his

standing to appeal independent from that

ee

of his former client, Renee Marks) raised

and argued by him in his appellate

briefs, which are reproduced in the

appendix to this petition for a writ of

certiorari, along with the Tenth

Circuit’s (December 11, 1998) order and

judgment.

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.2da 21 (1962);

j , 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,

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

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

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 vy.

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

Jo} ; ine 6 ) : ‘ap

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

- Jo} Higai © Calif ta,

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

NAACP vy. Button, 371 U.S. 415, 83 8.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 vy. Constantineau, 400 U.S. 433,

$1 8.Ct. 507, 27 4.84.24 $15 (1972);

ralif a eins ~ EC

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

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

Regents 7. Roth, 408 U.S. 564, 96 S.Ct.

2701, 33 L.Ed.2d 548 (1972); Legan 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 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 District c t £ ;

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 v. Wiggins, 465 U.S. 168,

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

emer Indi Ri : a oa

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

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.

IiIt. 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

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 11, 1998) order.

Respectfully submitted,

Be ean

DAVID L. SMITH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY-APPELLANT-

PETITIONER

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RENEE MARKS, Entered 12/11/98

)

)

Plaintiff-Appellant )

)

Vv. ) No. 98-1043

) (D.C. No. 95-WM-

) 2781)

U S WEST DIRECT, ) (D. Colo.)

)

Defendant-Appellee, )

)

stb i ie a wee ab an dees ee )

DAVID L. SMITH, )

)

)

Attorney-Appellant.

ORDER AND JUDGMENT"

“This order and judgment is not

binding precedent, except under the

doctrines of law of the case, res

judicata, and collateral estoppel. The

court generally disfavors the citation of

orders and judgments; nevertheless, an

order and judgment may be cited under the

terms and conditions of 10“ Cir. R. 36.3.

1

Before PORFILIO, BARRETT, and KELLY,

Circuit Judges.

After examining the briefs and

appellate record, this panel has

determined unanimously that oral argument

would not materially assist the

determination of this appeal. See Fed.

R...Ape. Bu 34(0)-@)s 10" Cizs: BR. 34.3.9.

The case is therefore ordered submiteed

without oral argument.

Plaintiff Renee Marks, pro se, and

David L. Smith, a disbarred attorney, see

In re Smith, 76 F.3d 335, 336 (10“ Cir.

1996), appeal following th district

court’s grant of summary judgment to Ms.

Marks. We dismiss the appeal.

Ms. Marks and Mr. Smith filed and

signed a joint notice of appeal to this

court. See 10 Cir. R. 3.1. Counsel for

US West Direct has notified this court

that Ms. Marks is deceased. We

determined that Ms. Marks’ action would

survive her death. See, e.g., Slade ex

952 F.2d 357, 360 (10“™ Cir. 1991)

(looking to state law to determine

whether Title VII action will survive

party’s death); Colo. Rev. Stat. § 13-20-

101(1) (all actions, except those for

slander or libel, survive party’s death

though certain identified damages may not

be awarded); Smith v. Department of Human

Servs., 876 F.2d 832, 836-37 (10™ Cir.

1989) (ADEA action seeking certain

identifed remedies may survive party’s

death). Therefore, we entered an order

directing Ms. Marks’ next of kin or

personal representative to enter an

appearance and file a brief on behalf of

her estate. See Fed. R. App. P. 43(a).

No response to this order has been filed.

Therefore, we consider Ms. Marks’ appeal

abandoned and dismiss it. Cf,

Abercrombie v. City of Catoosa, 896 F.2d

1228, 1231 (10% Cir. 1990) (any issue not

briefed is considered waived); Phillips

vy. Calhoun, 956 F.2d 949, 953-54 (10™

Cir. 1992) (court may dismiss claims not

properly argued).

Mr. Smith appeals the district

court’s denial of his motion to intervene

in Ms. Marks’ action in that court. The

court denied that motion June 21, 1996.

Mr. Smith filed his notice of appeal from

that order February 2, 1998. Mr. Smith’s

notice of appeal is untimely as to that

issue and the appeal must be dismissed.

See Concorde Resources, Inc. v. Woosley

(In re Woosley), 855 F.2d 687 (10™ Cir.

1988) (nonparty lacks standing to appeal

absent most extraordinary circumstances) ;

cf. Uselton vy. Commercial Lovelace Motor

Freight, Inc., 9 F.3d 849, 854 (10™ Cir.

1993) (counsel have standing to appeal

i

orders issued directly against them, but

not from those applicable only to their

clients).

This appeal is DISMISSED.

Defendant’s motion for sanctions is

DENIED. Mr. Smith’s motion to transfer

this case to the United States Court of

Appeals for the Federal Circuit is

DENIED. All remaining outstanding

motions are DENIED. The mandate shall

issue forthwith.

Entered for the Court

John C. Porfilio

Circuit Judge

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

) Filed 5/18/98

RENEE MARKS, )

)

Plaintiff-Appellant, )

)

Vv. ) Case No. 98-1043

) (D.C. No. 95-WM-

) 2781)

U S WEST DIRECT, ) (Dist. of Colo.)

)

Defendant-Appellee. )

)

DAVID L. SMITH,

Attorney-Appellant.

OPENING BRIEF FOR PRO SE ATTORNEY-

APPELLANT DAVID L. SMITH

Attorney-appellant David L. Smith

(“Mr. Smith”) hereby files his opening

brief:

I. STATEMENT OF SUBJECT MATTER AND

APPELLATE JURISDICTION

Subject matter jurisdiction of the

UE

United States District Court for the

District of Colorado is based on 29

U.S.C. §§ 206(d) and 621-634, and 42

U.S.C. §§ 198la and 2000e et seq.

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 REVIEW

Whether by issuing her minute orders

of November 6, 1995 and December 19,

1995, Judge Weinshienk disqualified Mr.

Smith from further representation of Ms.

Marks for allegedly violating the

Colorado Rules of Professional Conduct.

Whether since these minute orders

rested on grounds that could (and did)

harm Mr. Smith’s professional reputation,

dismissal of the underlying case did not

preclude appellate review of these minute

orders, which exceeded the scope of the

District Court disciplinary panel’s

Disciplinary Order of February 10, 1995.

Whether by issuing her minute orders

disqualifying Mr. Smith from further

representation of his client, Ms. Marks,

in accordance with the terms of their

contingent fee agreement, Judge

Weinshienk deprived him of his liberty

and property interests in his good name,

reputation, honor and integrity, and in

his right to practice law and make a

living.

Whether since these minute orders

were issued without affording Mr. Smith

proper notice, or an opportunity to file

a brief or otherwise be heard before

entry of a final judgment, Judge

Weinshienk deprived him of his Fifth

Amendment right to due process of law.

Whether Mr. Smith has Article III

standing to appeal this blatant and

egregious violation of his Fifth

Amendment right to due process of law.

Whether even if Mr. Smith has

Article III standing to appeal Judge

Weinshienk’s minute orders disqualifying

him from further representation of his

client, Ms. Marks, in accordance with the

terms of their contingent fee agreement,

he is precluded from prevailing on appeal

because of the application of the

doctrines of res judicata and collateral

estoppel.

Whether these doctrines are

inapplicable where the appellant did not

have a full and fair opportunity to

litigate his federal claims.

Whether by issuing its Disciplinary

Order of February 10, 1995 without

addressing Mr. Smith’s defenses to the

charges being brought against him in the

District Court disciplinary proceedings,

and without giving any reasons for its

decision, the District Court disciplinary

panel deprived him of his Fifth Amendment

right to due process of law.

Whether because of the refusal by

Mr. Smith’s attorneys to follow the

instructions contained in his letter of

September 4, 1994, their refusal to

follow his additional instructions to

make a motion to disqualify United States

District Judges Edward W. Nottingham and

Daniel B. Sparr from the District Court

disciplinary proceedings pending against

him, and their refusal to follow the

instructions contained in his letter of

February 17, 1995, he was left with an

inadequate record upon which to base the

filing of post-trial motions and an

appeal, and was forced to proceed pro se

before clearly biased federal judges,

who, predictably, denied his post~hearing

motions and appeal.

Whether under these circumstances,

Mr. Smith did not have a full and fair

opportunity to litigate his defenses to

the charges being brought against him in

the District Court disciplinary

proceedings, including his defense that

he was deprived of his Sixth Amendment

right to the effective assistance of

counsel.

Whether Mr. Smith is therefore not

precluded from prevailing on appeal

because of the application of the

doctrines of res judicata and collateral

estoppel.

Whether in their Verified Response

in Opposition to Motion to Dismiss Appeal

of David L. Smith, and Motion for Mr.

Smith to Intervene and/or to Represent

Ms. Marks on a Hardship Basis (filed on

March 4, 1998), Ms. Marks and Mr. Smith

argue that by issuing (on January 5,

1998) his Order on Defendant’s Motion for

Summary Judgment, in which he granted U S

West Direct’s motion for summary judgment

and dismissed Ms. Marks’ federal civil

rights case with prejudice, Judge Miller

deprived Ms. Marks of her First Amendment

right to pursue federal civil rights

litigation, her Fifth Amendment right to

due process of law, and her Seventh

Amendment right to a jury trial.

Whether Ms. Marks’ enjoyment of

these constitutional rights is

inextricably bound up with Mr. Smith’s

wish to pursue these constitutional

rights on her behalf.

Whether Mr. Smith is fully, or very

nearly, as effective a proponent of these

constitutional rights as Ms. Marks.

Whether Ms. Marks is extremely

limited in her ability to assert her own

constitutional rights because of her lack

of financial resources, her lack of legal

expertise and her lack of physical

health.

Whether under these circumstances,

Mr. Smith has Article III standing to

assert Ms. Marks’ constitutional claims

on appeal.

Whether failure to take an available

collateral order appeal forfeits the

right to review the order on appeal from

a final judgment.

Whether Mr. Smith’s failure to

appeal within thirty days after Judge

Weinshienk issued her Minute Order of

June 21, 1996 denying his Motion to

Intervene Pursuant to Fed. R. Civ. P. 24

forfeited the right to review this

collateral order on appeal from a final

judgment.

Whether the Clerk’s (April 8, 1998)

Order stating that “Mr. Smith’s brief

Shall not address the propriety of the

district court’s grant of summary

judgment to the defendant” is not only

contrary to 10“ Cir. R. 31.4, which

provides that “[iJn civil cases involving

more than one appellant or appellee,

including cases consolidated for purposes

of the appeal, all parties on a side

(including intervenors), except a

government entity, must join in a single

brief to the greatest extent

practicable”; it makes the unwarranted

assumption that the panel assigned to

hear this appeal on the merits will

reject the argument made by Ms. Marks and

Mr. Smith in their Verified Response in

Opposition to Motion to Dismiss Appeal of

David L. Smith, and Motion for Mr. Smith

to Intervene and/or to Represent Ms.

Marks on a Hardship Basis (filed on March

4, 1998) that Mr. Smith has Article III

standing to assert Ms. Marks’

constitutional claims on appeal.

Whether if the panel assigned to

hear this appeal on the merits rules in

Ms. Marks’ and Mr. Smith’s favor on the

foregoing argument, or permits Mr. Smith

to intervene and/or to represent Ms.

Marks on a hardship basis, there will be

no reason for Ms. Marks and Mr. Smith not

to file a joint brief on all issues on

appeal, as required by 10“ Cir. R. 31.4.

Whether by issuing (on April 22,

1998) their Order denying Ms. Marks’ and

Mr. Smith’s Motion for Consideration,

Vacation and/or Modification of Clerk’s

[April 8, 1998] Order, and stating that

“appellant’s brief remains due May 18,

1998,” Circuit Judges Porfilio and

Briscoe deprived Mr. Smith of his right

to appeal the propriety of the district

court’s grant of summary judgment to the

defendant, in violation of his First

Amendment right to access to the courts

to petition the government for a redress

of grievances, his Fifth Amendment right

to due process of law, and 28 U.S.C. §

1291.

III. STATEMENT OF THE CASE

On October 10, 1995, plaintiff-

appellant Renee Marks (“Ms. Marks”) filed

suit against defendant-appellee U S West

Direct in the District Court of Larimer

County, Colorado alleging four claims for

relief: (1) a claim for intentional and

willful violations of the Age

Discrimination in Employment Act of 1967,

29 U.S.C. §§ 621-634, as amended by the

Civil Rights Act of 1991, 42 U.S.c. §§

198la; (2) a claim for intentional

violations of Title VII of the Civil

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

Seq., as amended by the Civil Rights Act

of 1991, 42 U.S.C. § 198la; (3) a claim

for intentional and willful violations of

the Equal Pay Act of 1963, 29 U.S.c. §

206(d); and (4) a claim for breach of Ms.

Marks’ employment contract created by

personnel policies, procedures and

practices in effect at U S West Direct.

Ms. Marks requested to be promoted to

Telephone Directory Advertising

Consultant with all lost salary, back

pay, front pay, benefits and seniority;

to be awarded all actual and compensatory

damages, including future pecuniary

losses and emotional pain and suffering,

inconvenience, mental anguish, loss of

enjoyment of life, damage to personal and

professional reputation, and other

nonpecuniary losses; to be awarded

punitive or exemplary damages since U S$

West Direct acted with reckless

indifference to her federally protected

rights; to be awarded liquidated damages

for willful violations of the Age

Discrimination in Employment Act of 1967

and the Equal Pay Act of 1963; to be

awarded interest (pre- and post-judgment)

from the date the action accrued; to be

awarded costs (including expert witness

fees) and attorney fees; and to be

awarded such other and further legal and

equitable relief as may be just under the

circumstances. Ms. Marks demanded a

trial by jury of all issues so triable.

A copy of Ms. Marks’ Complaint is

attached hereto as Exhibit 1.

On November 2, 1995, U S West Direct

filed its Notice of Removal removing Ms.

Marks’ federal civil rights case from the

District Court of Larimer County,

Colorado to the United States District

Court for the District of Colorado.

(Record, Volume I., Document 1.)

On November 6, 1995, United States

District Judge Zita L. Weinshienk issued

her Minute Order (a copy of which is

attached hereto as Exhibit 2) stating

that “[b]ecause plaintiff’s attorney is

not allowed to practice in U.S. District

Court, it is ORDERED that plaintiff may

have 30 days to obtain substitute

counsel.” (Record, Volume I., Document

4.) Judge Weinshienk’s reference to the

fact that “plaintiff’s attorney is not

allowed to practice in U.S. District

Court” is a reference to the fact that on

February 10, 1995, the three-judge

disciplinary panel of the United States

District Court for the District of

Colorado (composed of United States

District Judges Zita L. Weinshienk,

Edward W. Nottangham, and Daniel B.

Sparr) issued its Disciplinary Order (a

copy of which is attached hereto as

Exhibit 3) indefinitely suspending Mr.

Smith from the practice of law in the

Poebeete hepa eae

District Court based on the Order (a copy

of which is attached hereto as Exhibit 4)

issued on November 29, 1993 by the three-

judge disciplinary panel of the United

States Court of Appeals for the Tenth

Circuit (composed of Stephanie kK.

Seymour, Chief Judge, and Bobby R.

Baldock and Wade Brorby, Circuit

Judges).' See In the Matter of David L. |

'In its (November 29, 1993) Order,

the Tenth Circuit disciplinary panel

indefinitely suspended Mr. Smith from the

practice of law in the Tenth Circuit for

filing alleged “frivolous” appeals in

four federal civil rights cases, and for

his failure to comply with court orders

to pay more than $50,000.00 in harsh and

unjustified sanctions previously imposed

against him by the District Court

(including Judges Weinshienk, Nottingham

and Sparr) and the Tenth Circuit, all in

alleged violation of the ABA Code of

Professional Conduct. See In re David L.

Smith, 10 F.3d 723 (10 Cir.), cert.

denied, 513 U.S. 807, 115 S.ct. 53, 130

L.Ed.2d 13 (1994). Mr. Smith may apply

for reinstatement to the Tenth Circuit

bar when he can demonstrate that each

sanction order of the District Court and

the Tenth Circuit has been “satisfied.”

See id. However, Mr. Smith denies that

the appeals he filed from the District

Court to the Tenth Circuit were

“frivolous.” See McKnight v. General

Motors Corporation, 511 U.S. 659, 114

S.Ct. 1826, 128 L.Ed.2d 655 (1994) (per

10

curiam) (appeal not “frivolous” where the

only basis for the order imposing

sanctions on petitioner’s attorney was

that his argument was foreclosed by

circuit precedent). Further, because the

disciplinary sanctions imposed against

Mr. Smith (i.e., indefinite suspension

from the practice of law in the Tenth

Circuit) were “punitive, to vindicate the

authority of the court,” rather than

“remedial, and for the benefit of the

complainant,” they were criminal rather

than civil in nature; and he was

therefore entitled to a full criminal

process (including his Sixth Amendment

right to a jury trial) before being

convicted and punished on the charges

being brought against him by the Tenth

Circuit disciplinary panel. See Gompers

v. Bucks Stove & Range Co,., 221 U.S. 418,

31 §8.Ct. 492, 55 L.Bd.2d 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 fair

notice of the charges being brought

against him and an adequate opportunity

to be heard with respect to those charges

before entry of a final judgment. See

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

Cir.), cert. denied, 423 U.S. 876, 96

11

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

v. Colorado Supreme Court, 746 F.2d 1429

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

(1985); Mattox v. Disciplinary Panel of

he United Sta! heaton f 7" 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). Therefore, by denying Mr.

Smith’s requests to hold a hearing, at

which he would have the opportunity to

present expert testimony and other

relevant evidence on his defenses to the

charges being brought against him--a

blatant and egregious violation of Fed.

R. App. P. 46--the Tenth Circuit

disciplinary panel deprived him of his

liberty and property interests in his

good name, reputation, honor and

integrity, and in his right to practice

law and make a living, in violation of

his Fifth Amendment right to due process

of law. See Wisconsin v. Constantineau,

400 U.S. 433, 91 8.Ct. 507, 27 L.Ed.2d

515 (1971); Logan v. Zimmerman Brush Co.,

455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d

265 (1982); Cleveland Board of Education

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

1487, 84 L.Ed.2d 494 (1985). Finally,

the Tenth Circuit and its disciplinary

panel deprived Mr. Smith of his Fifth

Amendment right to due process of law by

refusing to reinstate him to the practice

of law in the Tenth Circuit despite the

fact that he has submitted affidavits and

12

Smith, Disciplinary Action No. 93-DP-28

(D. Colo.), cert. denied, U.S. ’

117 S.Ct. 359, 136 L.Ed.2d 251 (1996).

Mr. Smith may apply for reinstatement to

the District Court bar “when the United

States Court of Appeais for the Tenth

Circuit lifts its suspension of Mr.

Smith.” See id.

On November 20, 1995, Ms. Marks and

Mr. Smith filed Plaintiff’s and Her

Attorney’s Motion to Clarify Status of

Legal Representation, and Notice of

Plaintiff’s Inability to Comply With

Minute Order Dated November 6, 1995, in

which they said:

other evidentiary materials showing that

he is financially unable to pay all or

any part of the more than $50,000.00 in

harsh and unjustified sanctions

previously imposed against him by the

District Court and the Tenth Circuit.

See Maggio v. Zeitz, 333 U.S. 56, 68

S.Ct. 401, 92 L.Ed. 476 (1948)

(impossibility of performance constitutes

a defense to contempt); United States v.

Rylander, 460 U.S. 752, 103 S.Ct. 1548,

75 L.Ed.2d 521 (1983) (the court must

consider present inability to comply with

the order in question); Tinsley v.

Mitchell, 804 F.2d 1254, 1256 (D.C. Cir.

1986) (citing Maggio v. Zeitz).

13

mh they + ok ag i

2. Ms. Marks and Mr. Smith do

not interpret Judge Weinshienk’s

(November 6, 1995) minute order as a

removal of Mr. Smith as Ms. Marks’

attorney in this case. If, however,

Judge Weinshienk is considering such

a removal, Ms. Marks and Mr. Smith

request proper notice, an

opportunity to file a brief and a

hearing so that they will have a

full and fair opportunity to

litigate the constitutional and

jurisdictional issues before a

decision is made on removal.

3. Notice is hereby given that

Ms. Marks is financially unable to

hire substitute counsel, and is

incompetent to proceed pro se

against experienced defense counsel.

Ms. Marks is therefore unable to

comply with Judge Weinshienk’s

(November 6, 1995) minute order to

obtain substitute counsel within 30

days.

(Record, Volume I., Document 7.)

On December 19, 1995, Judge

Weinshienk issued the following Minute

Order, a copy of which is attached hereto

as Exhibit 5:

FURTHER ORDERED that

plaintiff’s motion to clarify is

granted, and the Court will consider

plaintiff pro se until she obtains

counsel who is permitted to practice

14

in the United States District Court.

David Smith cannot appear in the

United States District Court, and

therefore he does not have to be

"removed." Because Mr. Smith’s

status will not be relitigated in

this action, plaintiff’s request

concerning Mr. Smith is moot.

(Record, Volume I., Document 10.)

On March 21, 1996, a three-judge

panel of the United States Court of

Appeals for the Tenth Circuit issued the

following Order (a copy of which is

attached hereto as Exhibit 6) with

respect to Ms. Marks’ and Mr. Smith’s

appeal of Judge Weinshienk’s Minute Order

of December 19, 1995:

This appeal is jurisdictionally

defective because the order being

appealed is not immediately

appealable. See 28 U.S.C. § 1291;

Richardson-Merrell, Inc, v. Koller,

472 U.S. 424 (1985); United States

v. Dickstein, 971 F.2d 446 (10 Cir.

1992).

The appellee’s motion for

sanctions is denied.

The appellants’ motion for stay

is denied.

APPEAL DISMISSED.

(Record, Volume I., Document 21.)

15

i a Lhe atte wg Os

biiasi eta ndlt eotnet ehenis>,

On April 30, 1996, Judge Weinshienk

issued her Minute Order (a copy of which

is attached hereto as Exhibit 7) denying

Ms. Marks’ Motion for a Protective Order,

and Motion to Permit Mr. Smith to

Represent Ms. Marks on a Hardship Basis.

(Record, Volume I., Document 23.)

On June 21, 1996, Judge Weinshienk

issued her Minute Order (a copy of which

is attached hereto as Exhibit 8) denying

Mr. Smith’s Motion to Intervene Pursuant

to Fed. R. Civ. P. 24. (Record, Volume

I., Document 37.)

On January 5, 1998, United States

District Judge Walker D. Miller issued

his Order on Defendant’s Motion for

Summary Judgment (a copy of which is

attached hereto as Exhibit 9), in which

he granted U S West Direct’s motion for

summary judgment and dismissed Ms. Marks’

federal civil rights case with

prejudice.* (Record, Volume I., Document

?7In response to U S West Direct’s

motion for summary judgment, Ms. Marks

filed the Affidavit of Renee Marks in

Opposition to Motion for Summary Judgment

(including Plaintiff’s Deposition

Exhibits 1-50) identifying numerous

genuine issues of material fact to be

resolved by the jury. (Record, Volume

I., Document 50.) Ms. Marks’ affidavit

also identified documents requested from

U S West Direct which she was not

permitted to discover.

16

104.)

On January 6, 1998, the Clerk of the

United States District Court for the

District of Colorado issued its Judgment

(a copy of which is attached hereto as

Exhibit 10) in favor of U S West Direct

and against Ms. Marks, and dismissed the

Complaint and cause of action, with each

party to bear its own costs. (Record,

Volume I., Document 105.)

On February 2, 1998, Ms. Marks and

Mr. Smith filed their joint Notice of

Appeal from the final Judgment entered on

January 6, 1998, and all orders merged

therein, including but not limited to,

the following: (1) Minute Order issued

on November 6, 1995; (2) Minute Order

issued on December 19, 1995; (3) Minute

Order issued on January 10, 1996; (4)

Minute Order issued on April 30, 1996;

(5) Minute Order issued on June 21, 1996;

and, (6) Order on Defendant’s Motion for

Summary Judgment issued on January 5,

1998. (Record, Volume I., Document 106.)

On April 8, 1998, the Clerk of the

United States Court of Appeals for the

Tenth Circuit issued the following Order,

a copy of which is attached hereto as

Exhibit 11:

The court reserves judgment on

the defendant’s motion to dismiss

the appeal of David L. Smith. The

matter is referred to the panel

assigned to hear this appeal on the

a7

merits.

Briefing on the merits shall

proceed as follows:

(1) Plaintiff Renee Marks

shall serve and file her

opening brief within 40 days of

the date of this order.

(2) David L. Smith shall

serve and file his opening

brief within 40 days of the

date of this order. Mr.

Smith's brief shall address

only the issues of the district

court’s refusal to allow Mr.

Smith to represent Ms. Marks

and the denial of Mr. Smith’s

motion to intervene. Mr.

Smith’s brief shall not address

the propriety of the district

court’s grant of summary

judgment to the defendant.

(3) The defendant shall

file one answer brief to both

Ms. Marks’ and Mr. Smith’s

briefs within 30 days of the

later date of service of the

opening briefs.

(4) Ms. Marks may serve

and file a reply brief within

14 days of the date of service

of the defendant’s answer

brief.

18

(5) Mr. Smith may serve

and file a reply brief within

14 days of the date of service

of the defendant’s answer

brief. Mr. Smith’s reply brief

shall address only those issues

pertaining to the refusal of

the district court to allow him

to represent Ms. Marks and the

denial of his motion to

intervene. Mr. Smith’s reply

brief shall not address the

merits of the district court’s

grant of summary judgment to

the defendant.

On April 22, 1998, Circuit Judges

Porfilio and Briscoe issued their Order

(a copy of which is attached hereto as

Exhibit 12) denying Ms. Marks’ and Mr.

Smith’s Motion for Consideration,

Vacation and/or Modification of Clerk’s

[April 8, 1998] Order, and stating that

“appellant’s brief remains due May 18,

1998.”

IV. ARGUMENT

In its Motion to Dismiss Appeal of

David L. Smith and brief in support

thereof (filed on February 19, 1998), US

West Direct asserts that Mr. Smith lacks

Article III standing to appeal Judge

Weinshienk’s minute orders of November 6,

1995 and December 19, 1995. However, In

Johnson v. Board of County Commissioners,

85 F.3d 489 (10 Cir. 1996), the Tenth

Circuit said:

19

Ae, Petia a part

We will dismiss an appeal as

moot if it is impossible for this

court to grant the appellant any

effectual relief whatsoever. In re

Material Witness Warrant Nichols, 77

F.3d 1277, 1279 (10% Cir. 1996).

We held in G.J.B. & Assocs.,

Inc. v. Singleton, 913 F.2d 824, 827

(10 Cir. 1990), that a sanctions

order against an attorney currently

of record is not immediately

appealable as a final judgment where

the underlying controversy is

unresolved. Further, such an order

is not appealable under the

collateral order exception to the

final judgment rule because it could

be appealed by the attorney at the

conclusion of the underlying case,

even if the parties settle or elect

not to appeal. Id. at 827-29.

In United States v. Dickstein,

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

addressed whether an attorney who no

longer was involved in the

underlying action because his pro

hac vice status had been revoked

could take an immediate appeal from

the revocation order, even though

the underlying case had not been

concluded. We held the attorney

could not because the order was not

a final judgment. Id. at 448.

Further, because the attorney was

seeking an appeal only to vindicate

his reputation, rather than to be

20

allowed to continue representing his

client, we saw no reason why the

order could not effectively be

reviewed on appeal from the final

judgment. Id. at 451. Even the

former client’s acquittal would not

render the revocation order

unreviewable at the conclusion of

the case. Id. Thus, the order was

not appealable under the collateral

order exception to the final

judgment rule. Id.

These cases establish that

settlement of an underlying case -

does not preclude appellate review

of an order disqualifying an

attorney from further representation

insofar as that order rests on

grounds that could harm his or her

professional reputation.’We

therefore conclude the appeal is not

moot insofar as the district court’s

order found that Attorney Greer had

violated the Colorado Rules of

Professional Conduct. See Kirkland

vy. National Mortgage Network, Inc.,

884 F.2d 1367, 1370 (11 Cir. 1989)

(holding challenge to order

3An attorney would lack standing to

challenge the order insofar as it

affected only his or her client’s rights.

Uselton v,. Commercial Lovelace Motor

Freight, Inc., 9 F.3d 849, 854 (10™ Cir.

1993).

21

2 a Ath Mla tet i < eed

‘disqualifying attorney was not moot,

despite dismissal of underlying

case, where order’s ‘brand of

disqualification’ on grounds of

dishonesty and bad faith could hang

over attorney’s name and career for

years). That the underlying cases

were dismissed pursuant to a

stipulation for dismissal with

prejudice has no effect on the

attorneys’ right to appeal because

they were not parties to the

Stipulation. Cf. Mock v. T.G, & Y.

Stores Co,, 971 F.2d 522, 526 (10™

Caz. 2992) «

See id. at 492-93. By issuing her minute

orders of November 6, 1995 and December

19, 1995, Judge Weinshienk disqualified

Mr. Smith from further representation of

Ms. Marks for allegedly violating the

Colorado Rules of Professional Conduct.‘

‘This is not the only time that a

judge of the United States District Court

for the District of Colorado has issued

orders disqualifying Mr. Smith from

further representation of his client for

allegedly violating the Colorado Rules of

Professional Conduct. Similar

disqualification orders were issued by

United States District Judge Zita L.

Weinshienk in Qualls vy. Regional

Transportation District, et al., Civil

Action No. 91-Z-989 (D. Colo.) and Howard

v. Mail-Well Envelope Company, et al.,

Civil Action No. 93-Z-1895 (D. Colo.); by

22

Since these minute orders rested on

grounds that could (and did) harm Mr.

Smith’s professional reputation,

dismissal of the underlying case did not

preclude appellate review of these minute

orders, which exceeded the scope of the

District Court disciplinary panel’s

Disciplinary Order of February 10, 1995.

By issuing her minute orders

disqualifying Mr. Smith from further

representation of his client, Ms. Marks,

in accordance with the terms of their

contingent fee agreement (a copy of which

is attached hereto as Exhibit 13), Judge

Weinshienk deprived him of his liberty

and property interests in his good name,

reputation, honor and integrity, and in

his right to practice law and make a

United States District Judge Edward W.

Nottingham in Seales vy. Jefferson County

School District, et al., 95-N-189 (D.

Colo.); by United States District Judge

Daniel B. Sparr in Casillan v. Regional

Transportation District, et al., Civil

Action No. 90-S-1722; and by United

States District Judge Lewis T. Babcock in

Saathoff v. FileNet Corporation, Civil

Action No. 93-B-2396 (D. Colo.). These

orders’ “brand of disqualification” on

grounds of dishonesty and bad faith could

hang over Mr. Smith’s name and career for

years.

23

living.* See Wisconsin v. Constantineau,

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

515 (1971); Board of Regents v. 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); 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); Cleveland Board of Education v.

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

84 L.Ed.2d 494 (1985). Since these

minute orders were issued without

affording Mr. Smith proper notice, or an

opportunity to file a brief or otherwise

"At the time Judge Weinshienk issued

her orders disqualifying Mr. Smith from

further representation of Ms. Marks, he

was a member in good standing of the bar

of the State of Colorado, and was

entitled to pursue Ms. Marks’ federal

civil rights case in the District Court

of Larimer County, Colorado. It was not

until March 3, 1997, that the Colorado

Supreme Court issued its order (effective

June 6, 1997) indefinitely suspending Mr.

Smith from the practice of law in the

State of Colorado based on the Tenth

Circuit disciplinary panel’s suspension

Order of November 29, 1993. See People

vy. Smith, 937 P.2d 724 (Colo. 1997),

cert. denied, U.S. ¢ aan B.Ce.

158, 139 L.Ed.2d 103 (1997) (two cases).

24

be heard before entry of a final

judgment, Judge Weinshienk deprived him

of his Fifth Amendment right to due

process of law. See id.; see also In re

Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20

L.Ed.2d 117 (1968); 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) ;

Logan v. Zimmerman Brush Co., 455 U.S.

422, 102 8.Ct. 1148, 71 &.EBd.2d 265

(1982); Honda Motor Co,, Ltd. v. Oberg,

512 U.8. 415, 114 8.Ct. 2331, 129 L.Ba.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);

Razotos vy. Colorado Supreme Court, 746

F.2d 1429 (10™ Cir.), cert. denied, 471

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

: 1 nf bbe Yntbed bhai ek cheikh 0 )

for the 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). Mr. Smith clearly has

Article III standing to appeal this

blatant and egregious violation of his

Fifth Amendment right to due process of

law. See Dietrich Corp, v. King

Resources Co., 596 F.2d 422 (10™ Cir.

1979) (an attorney has Article III

standing to appeal the denial of attorney

fees); Lipscomb v. Wise, 643 F.2d 319,

320-21 (5™ Cir. 1981) (same); Samuels v.

American Motors Sales Corp., 969 F.2d

573, 576 (7™ Cir. 1992) (same); U.S.

Tippett, 975 F.2d 713, 718 (10™ Cir.

1992) (a nonparty witness has Article III

ene aa alalael

standing to appeal denial of an

application for statutory witness fees,

just as an attorney has standing to

appeal the denial of attorney fees).

U S West Direct asserts that even if

Mr. Smith has Article III standing to

appeal Judge Weinshienk’s minute orders

disqualifying him from further

representation of his client, Ms. Marks,

in accordance with the terms of their

contingent fee agreement, he is precluded

from prevailing on appeal because of the

application of the doctrines of res

judicata and collateral estoppel.

However, these doctrines are inapplicable

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). By issuing its Disciplinary

Order of February 10, 1995 without

addressing Mr. Smith’s defenses to the

charges being brought against him in the

District Court disciplinary proceedings,

and without giving any reasons for its

decision, the District Court disciplinary

panel deprived him of his Fifth Amendment

right to due process of law. See In re

Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20

L.Ed.2d 117 (1968); 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).

Further, because of the refusal by Mr.

Smith’s attorneys to follow the

instructions contained in his letter (a

26

copy of which is attached hereto as

Exhibit 14) of September 4, 1994, their

refusal to follow his additional

instructions to make a motion to

disqualify United States District Judges

Edward W. Nottingham and Daniel B. Sparr

from the District Court disciplinary

proceedings pending against him, and

their refusal to follow the instructions

contained in his letter (a copy of which

is attached hereto as Exhibit 15) of

February 17, 1995, he was left with an

inadequate record upon which to base the

filing of post-trial motions and an

appeal, and was forced to proceed pro se

before clearly biased federal judges,

who, predictably, denied his post-hearing

motions and appeal.*® Under these

‘Prior to or during the attorney

disciplinary proceedings pending against

Mr. Smith in the United States District

Court for the District of Colorado,

Judges Weinshienk, Nottingham and Sparr

: imposed harsh and unjustified sanctions

against Mr. Smith and his clients in

federal civil rights cases pending before

them. Judges Weinshienk, Nottingham and

Sparr then used Mr. Smith’s failure to

comply with their orders to pay these

harsh and unjustified sanctions as part

of their alleged basis for suspending him

indefinitely from the practice of law in

the United States District Court for the

District of Colorado. Judges Weinshienk,

Nottingham and Sparr suspended Mr. Smith

indefinitely from the practice of law in

27

the United States District Court despite

the fact that he was (and is) financially

unable to pay these harsh and unjustified

sanctions. During his representation of

Mr. Smith in the attorney disciplinary

proceedings pending against him in the

United States District Court for the

District of Colorado, Phillip S. Figa

(one of Mr. Smith’s attorneys) repeatedly

told Mr. Smith and his wife (Denver

lawyer M. Julia Hook) that Judges

Weinshienk, Nottingham and Sparr

“despise” Mr. Smith, his clients, and his

federal civil rights cases, and that they

hoped he (Mr. Smith) would “take a flying

leap off the nearest building.” Mr. Figa

also repeatedly told Mr. Smith and his

wife that he was staying awake nights

worrying about whether he would be able

to convince biased judges of Mr. Smith’s

innocence to the charges being brought

against him, and that for this reason,

Mr. Smith’s case was the most “troubling”

case he had ever handled. Under these

circumstances, it was reasonably

questionable whether Judges Weinshienk,

Nottingham and Sparr could be fair and

impartial decision-makers in the attorney

disciplinary proceedings pending against

Mr. Smith in the United States District

Court for the District of Colorado. See

28 U.S.C. §§ 372(c) and 455(a); Liteky v.

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

28

circumstances, Mr. Smith did not have a

full and fair opportunity to litigate his

defenses to the charges being brought

against him in the District Court

disciplinary proceedings, including his

defense that he was deprived of his Sixth

Amendment right to the effective

assistance of counsel. See Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984). Mr. Smith is

therefore not precluded from prevailing

on appeal because of the application of

the doctrines of res judicata and

collateral estoppel.

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 8.Ct. 1011, 25

L.Ed.2d 287 (1970) (decision-maker bias

is grounds for reversal); Offut v. United

States, 348 U.S. 11, 75 8.Ct. 11, 99

L.Ed.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).

Ordinarily, an appellant may assert

only his own constitutional claims. See

Singleton v. Wulff, 428 U.S. 106, 96

S.Ct. 2868, 49 L.Ed.2d 826 (1976).

However, in describing the exceptions to

this jus tertii rule, Justice Blackmun

said:

[T]he Court has looked primarily to

two factual elements .... The

first is the relationship of the

litigant to the person whose right

he seeks to assert. If the

enjoyment of the right is

inextricably bound up with the

activity the litigant wishes to

pursue, the Court at least can be

sure that its construction of the

right is not unnecessary ...

Furthermore, .. . the litigant

- May be... . fully, or very

nearly, as effective a proponent of

the right as the [third] party.

- The other factual element ‘

is the ability of the third party to

assert his own right.

Id. at 428 U.S. 114-116. In their

Verified Response in Opposition to Motion

to Dismiss Appeal of David L. Smith, and

Motion for Mr. Smith to Intervene and/or

to Represent Ms. Marks on a Hardship

Basis (filed on March 4, 1998), Ms. Marks

and Mr. Smith argue that by issuing (on

January 5, 1998) his Order on Defendant’s

Motion for Summary Judgment, in which he

granted U S West Direct’s motion for

summary judgment and dismissed Ms. Marks’

30

federal civil rights case with prejudice,

Judge Miller deprived Ms. Marks of her

First Amendment right to pursue federal

civil rights litigation, her Fifth

Amendment right to due process of law,

and her Seventh Amendment right to a jury

trial, citing NAACP v. Button, 371 U.S.

415, 83 S.Ct. 328, 9 L.Ed.2da 405 (1963)

(“[a]nd 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. L, 84

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

Mine Workers v. Illinois, 389 U.S. 2i7,

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

of Michigan, 401 U.S. 576, 91 S.Ct. 1076,

28 L.Ed.2d 339 (1971); California Motor

Transport Co, vy. Trucking Unltd., 404

U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642

(1972); Allen vy. McCurry, 449 U.S. 90,

101 S.Ct. 411, 66 L.Ed.2d 308 (1980);

Logan v,. Zimmerman Brush Co,, 455 U.S.

422, 102 S.Ct. 1148, 71 L.Ed.2da 265

(1982); Bi “

NLRE, 461 U.S. 731, 103 S.Ct. 2161, 76

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

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

L.Ed.2d 732 (1984); Talamini v. Allstate

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

Crumpacker v. Indiana Supreme Court

Disciplinary Commission, 470 U.S. 1074

(1985); ’

512 U.S. 415, 114 S.ct. 1331, 129 L.Ed.2d

336 (1994); Silver v. Cormier, 529 F.2d

161, 163 (10™ Cir. 1976) (“[a] public

31

it ee wpe coy

satan ivtivecgaciion Shaka

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 y. i

Allredge, 464 F.2d 1243, 1244 (10™ Cis.),

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); Henriksen v. Bentley, 644 F.2d

852, 855 (10™ Cir. 1981); Shaw v. Neece,

727 F.2d 947, 948 (10™ Cir. 1984); McKay

v._Hammock, 730 F.2d 1367, 1375 (10% Cir.

1984); Nordgren v. Milliken, 762 F.2d 851

(10 Cir. 1985); and Ward v. Fort, 762

F.2d 856, 858 (10% Cir. 1985). Ms.

Marks’ enjoyment of these constitutional

rights is inextricably bound up with Mr.

Smith’s wish to pursue these

constitutional rights on her behalf. Mr.

Smith is fully, or very nearly, as

effective a proponent of these

constitutional rights as Ms. Marks. Ms.

Marks is extremely limited in her ability

to assert her own constitutional rights

because of her lack of financial

resources, her lack of legal expertise

and her lack of physical health. Under

these circumstances, Mr. Smith has

Article III standing to assert Ms. Marks’

constitutional claims on appeal.

U S West Direct asserts that Mr.

Smith was required to appeal within

thirty days after Judge Weinshienk issued

(on June 21, 1996) her Minute Order

denying his Motion to Intervene Pursuant

32

to Fed. R. Civ. P. 24.’ However, failure

to take an available collateral order

appeal does not forfeit the right to

review the order on appeal from a final

judgment. See U.S. v. Martin, 620 F.2d

237, 239 n.1 (10 Cir.), cert. denied,

449 U.S. 890, 101 S.Ct. 248, 66 L.Ed.2d

116 (1980); U.S. v. Padilla, 589 F.2d

481, 483 (10% Cir. 1978). “[A]n absolute

denial of intervention is a collateral

order and, therefore, is appealable

immediately.” See Arney v. Finney, 967

¥.24 418, 421 (10% cir. 1992), citing

Strinafell : i Neigh}

Action, 480 U.S. 370, 377, 107 &.Ct.

1177, 1182, 94 L.Ed.2d 389 (1987),

Rail i Trai Renter! oe

Baltimore & Ohio R. Co., 331 U.S. 519,

524-25, 67 S.Ct. 1387, 1390, 91 L.Ed.

1646 (1947), and Gerstle vy. Continental

Airlines, Inc., 466 F.2d 1374, 1377-78

"Mr. Smith’s Motion to Intervene

Pursuant to Fed. R. Civ. P. 24 (filed on Z

May 10, 1996) requested intervention of

right under Fed. R. Civ. P. 24(a) and

permissive intervention under Fed. R.

Civ. P. 24(b). (Record, Volume I.,

Document 26.) This motion was filed

after a three-judge panel of the Tenth

Circuit issued (on March 21, 1996) its

Order dismissing Ms. Marks’ and Mr.

Smith’s appeal of Judge Weinshienk’s

Minute Order of December 19, 1995

disqualifying him from further

representation of his client.

33

fo5 Sees

ee ee Te Ua

eps He sama TE. ‘

sellin aD LE lei ia tsa

eT Me te een feet

(10 Cir. 1972). In the present case,

Mr. Smith did not appeal within thirty

days after Judge Weinshienk issued her

Minute Order of June 21, 1996 denying his

Motion to Intervene Pursuant to Fed. R.

Civ. P. 24. However, due to the fact

that this failure did not forfeit the

right to review this collateral order on

appeal from a final judgment, Mr. Smith

was not required to appeal within thirty

days after Judge Weinshienk issued this

collateral order.

The Clerk’s (April 8, 1998) Order

stating that “Mr. Smith’s reply brief

shall not address the propriety of the

district court’s grant of summary

judgment to the defendant” is not only

contrary to 10 Cir. R. 31.4, which

provides that “[i]n civil cases involving

more than one appellant or appellee,

including cases consolidated for purposes

of the appeal, all parties on a side

(including intervenors), except a

government entity, must join in a single

brief to the greatest extent

practicable”; it makes the unwarranted

assumption that the panel assigned to

hear this appeal on the merits will

reject the argument made by Ms. Marks and

Mr. Smith in their Verified Response in

Opposition to Motion to Dismiss Appeal of

David L. Smith, and Motion for Mr. Smith

to Intervene and/or to Represent Ms.

Marks on a Hardship Basis (filed on March

4, 1998) that Mr. Smith has Article III

standing to assert Ms. Marks’

constitutional claims on appeal. If the

34

panel assigned to hear this appeal on the

merits rules in Ms. Marks’ and Mr.

Smith’s favor on the foregoing argument,

or permits Mr. Smith to intervene and/or

to represent Ms. Marks on a hardship

basis, there will be no reason for Ms.

Marks and Mr. Smith not to file a joint

brief on all issues on appeal, as

required by 10“ Cir. R. 31.4. Therefore,

by issuing (on April 22, 1998) their

Order denying Ms. Marks’ and Mr. Smith’s

Motion for Consideration, Vacation and/or

Modification of Clerk’s [April 8, 1998]

Order, and stating that “appellant’s

brief remains due May 18, 1998,” Circuit

Judges Porfilio and Briscoe deprived Mr.

Smith of his right to appeal the

propriety of the district court’s grant

of summary judgment to the defendant, in

violation of his First Amendment right to

access to the courts to petition the

government for a redress of grievances,

his Fifth Amendment right to due process

of law, and 28 U.S.C. § 1291. See

California Motor Transport Co. v.

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

609, 30 L.Ed.2d 642 (1972); Legan v.

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

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

Cleveland Board of Education vy.

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

84 L.Ed.2d 494 (1985); Honda Motor Co.,

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

2331, 129 L.Ed.2d 336 (1994).

35

sande

V. CONCLUSTON

The only condition that has changed

since Ms. Marks and Mr. Smith filed (on

November 20, 1995) Plaintiff’s and Her

Attorney’s Motion to Clarify Status of

Legal Representation, and Notice of

Plaintiff’s Inability to Comply With

Minute Order Dated November 6, 1995 is

that Ms. Marks has been diagnosed with

bone cancer. Her prognosis for recovery

is poor. Mr. Smith therefore requests

the Tenth Circuit to grant his and Ms.

Marks’ joint Motion for Mr. Smith to

Intervene and/or to Represent Ms. Marks

on a Hardship Basis, and such other and

further relief as may be just under the

circumstances, including an order

declaring void ab initio the Tenth

Circuit disciplinary panel’s (November

29, 1993) suspension Order and the

District Court disciplinary panel’s

(February 10, 1995) Disciplinary Order,

and granting an expedited resolution of

this appeal on its merits.

VI. REQUEST FOR ORAL ARGUMENT

Oral argument is requested to

address the important issues of first

impression raised by this appeal.

Dated this 18“ day of May, 1998.

36

Respectfully submitted,

David L. Smith

Pro Se Attorney-Appellant

1630 Welton Street, #300

Denver, Colorado 80202

(303) 534-0153

37

CERTIFICATE OF SERVICE

I hereby certify that on this 18”

day of May, 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:

Renee Marks

4300 Hummingbird Drive

Fort Collins, Colorado 80526

Raymond W. Martin, Esq.

Nancy E. Berman, Esq.

PARCEL, MAURO & SPAANSTRA, P.C.

1801 California Street, Suite 3600

Denver, Colorado 80202

38

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

U S WEST DIRECT, (Dist. of Colo.)

Defendant-Appellee.

) Filed 7/1/98

RENEE MARKS, )

)

Plaintiff-Appellant, )

)

Vv. ) Case No. 98-1043

) (D.C. No. 95-WM-

) 2781)

)

)

)

)

“ee

DAVID L. SMITH,

Attorney-Appellant.

ee eee Se”

REPLY BRIEF FOR

ATTORNEY-APPELLANT DAVID L. SMITH

In their answer brief, U S West

Direct and its attorneys charge that by

filing and pursuing this appeal, Mr.

Smith is attempting to re-litigate issues

already determined by this court or

foreclosed by previous determinations of

this court, in violation of orders issued

by this court 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 present case. The parties

were also different. In two of these

previous cases, the burden of proof was

different. In all of these previous

cases, this court 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 pursuant to 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 v. 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,

vy. Oberg, 512 U.S. 415, 114 S.Ct. 2331,

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

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

2

decision of the trial court”); Craig v.

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

145 (37° Cir. 1988); United States vy.

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

Johnson v. Board of County Commissioners j ,

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

: Jo} Higai E Calif ba:

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

this court give any independent reasons

for its decisions. See id. This court

merely affirmed the orders issued by the

district court, 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,

$1 8.Ct. 507, 27 &.34.2d 815: (1971);

nalif ia Mo! ~ bc

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); Logan 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 v. Indiana Supreme

Court Disciplinary Commission, 470 U.S.

1074 (1985); Burkett vy. 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.2d

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

1084, 1087 (10 Cir. 1972); Razotos vy.

Colorado Supreme Court, 746 F.2d 1429

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

(1985); Mattox v. Disciplinary Panel of

the United States District Court for the

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

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

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

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

Cir. 1990); Collie v. Vought Aircraft

Company, U.S. App. LEXIS 9479 (5™ Cir.

May 12, 1998), a copy of which is

attached hereto. Therefore, by filing

and pursuing this appeal, Mr. Smith is

not attempting to re-litigate issues that

have already been determined by this

court or foreclosed by previous

determinations of this court, in

violation of orders issued by this court

in previous cases.’ Instead, Mr. Smith is

'In other words, Mr. Smith is not

attempting to litigate issues barred by

the doctrines of res judicata and

collateral estoppel, which have no

application where, as in the present

case, the appellant did not have a full

4

attempting to litigate meritorious issues

that this court and the district court

have steadfastly refused to decide on

their merits.’ Further, since U S West

Direct and its attorneys are charging Mr.

Smith with violating this court’s

previous orders, they are charging him

with what amounts to criminal contempt;

and he is 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

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 is

attempting to litigate are well grounded

in fact and are warranted by existing law

or a good faith argument for the

extension, modification or reversal of

existing law, or to establish new law,

the charge made by U S West Direct and

its attorneys in their answer brief that

these issues are “frivolous” is clearly

false. See McKnight v. General Motors

Corporation, 511 U.S. 659, 114 S.Ct.

1826, 128 L.Ed.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).

°7As a matter of the equal protection

of the laws, Mr. Smith should not have

fewer constitutional rights merely

5

& Range Co., 221 U.S. 418, 31 S.Ct. 492,

55 L.Ed.2d 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 is

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 circumstances to

the charges being brought against him,

including evidence of his financial

inability to pay the harsh and

unjustified sanctions being requested by

U S West Direct and its attorneys in

because he is being charged in an answer

brief rather than in an order to show

cause why he should not be held in

contempt for allegedly violating this

court’s orders. See Schware v. Board of

Bar Examiners, 353 U.S. 232, 77 S.Ct.

752, 1 L.Ed.2d 796 (1957); Douglas v.

California, 372 U.S. 353, 83 S.Ct. 814, 9

L.Ed.2d 811 (1963); 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, 91 &.Ct. 702, 27 L.Ed.2d 639 (1971);

Bodie v. Connecticut, 401 U.S. 371, 91

S.Ct. 780, 28 L.Ed.2d 113 (1971).

6

their answer brief.‘ See Burkett vy.

Chandler, 505 F.2d 217 (10° Cir.), cert.

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

L.Ed.2d 110 (1975); Razotos vy. Colorado

Supreme Court, 746 F.2d 1429 (10™ Cir.),

cert. denied, 471 U.S. 1016 (1985);

M Discipli t ree

United States District Court for the

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); Collie v. Vought Aircraft

“Mr. Smith has a current negative

net worth of more than $400,000.00. Due

to his disbarment from the practice of

law in this court and the United States

District Court for the District of

Colorado, and his indefinite suspension

from the practice of law in these courts

and the courts of the State of Colorado,

Mr. Smith has no income from which his

negative net worth could be reduced, or

from which the harsh and unjustified

sanctions being requested by U S West

Direct and its attorneys could be paid.

See Maggio v. Zeitz, 333 U.S. 56, 68

S.Ct. 401, 92 L.Ed. 476 (1948)

(impossibility of performance constitutes

a defense to contempt); United States vy,

Rylander, 460 U.S. 752, 103 S.Ct. 1548,

75 L.Ed.2d 521 (1983) (the court must

consider present inability to comply with

the order in question); Tinsley v.

Mitchell, 804 F.2d 1254, 1256 (D.c. Cir.

1986) (citing Maggio v. Zeitz).

Company, U.S. App. LEXIS 9479 (5 Cir.

May 12, 1998). Mr. Smith hereby

specifically requests an evidentiary

hearing on these matters if this court

denies his request for a trial by jury.

However, since it is reasonably

questionable whether this court could be

a fair and impartial decision-maker in

any matter involving Mr. Smith, he

requests that this appeal 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, 114 S.Ct. 1147, 127 L.Ed.2da

474 (1994); Armett v. Kennedy, 416 U.S.

134, 197, 94 8.Ct. 1633, 40 L.8d.2a 15

(1974) (White, J., concurring in part and

dissenting in part) (“the right to an

impartial decision-maker is required by

due process” in every case); Morrissey v.

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

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

maker bias is grounds for reversal);

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

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

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

of evenhanded justice ... is at the

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

397 U.S. 254, 271, 90 S.Ct. 1011, 25

L.Ed.2d 287 (1970) (decision-maker bias

is grounds for reversal); Offut v. United

"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 and would

render a fair and impartial decision in

this appeal.

States, 348 U.S. 11, 75 S.ct. i1, 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). Mr. Smith requests such other

and further relief as may be just under

the circumstances, including an order

dismissing with prejudice the clearly

frivolous and groundless charges U S West

Direct and its attorneys are bringing

against him for the clearly improper

purpose of depriving him of his First and

Fifth Amendment rights to litigate

meritorious issues that this court and

the district court have steadfastly

refused to decide on their merits.

While Mr. Smith denies that he has

abandoned his appeal of Judge

Weinshienk’s denial of his Motion to

intervene Pursuant to Fed. R. Civ. P. 24,

this court has pending before it a Motion

for Mr. Smith to Intervene and/or to

Represent Ms. Marks on a Hardship Basis.

Mr. Smith requests an expedited

resolution of this Motion in order to

avoid further prejudice to his and Ms.

Marks’ rights.

Dated this lst day of July, 1998.

Respectfully submitted,

David L. Smith

Pro Se Attorney-Appellant

1630 Welton Street, # 300

Denver, Colorado 80202

(303) 534-0153

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CERTIFICATE OF SERVICE

I hereby certify that on this lst

day of July, 1998, true and correct

copies of the foregoing Reply Brief for

Attorney-Appellant David L. Smith were

placed in the United States mail, postage

prepaid, addressed as follows:

Renee Marks

4300 Hummingbird Drive

Fort Collins, Colorado 80526

Raymond W. Martin, Esq.

Nancy E. Berman, Esq.

PARCEL, MAURO & SPAANSTRA, P.C.

1801 California Street, Suite 3600

Denver, Colorado 80202

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