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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1113

## Text

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

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1401%3A1. Public record. Not legal advice.