In re: David Lee Smith ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
May 12, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
In re:
DAVID LEE SMITH, No. 08-1323
(D.C. No. 96-DP-4)
Appellant. (D. Colo.)
ORDER AND JUDGMENT *
Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and
GORSUCH, Circuit Judge.
David Lee Smith appeals from an order denying his petition for
reinstatement to the bar of the United States District Court for the District of
Colorado. He also appeals orders denying his motion to alter or amend and his
petition for relief from the district court’s rule of good standing. He argues that
the district court’s three-judge Disciplinary Panel abused its discretion by denying
him reinstatement to the district court bar; that the Disciplinary Panel denied him
*
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. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
due process by refusing to disclose items from the record; that then Chief Judge
Nottingham should have recused himself pursuant to 28 U.S.C. § 455(a) and (b);
and that the Disciplinary Panel erred in denying his petition for relief from the
rule of good standing. We have jurisdiction to review these orders, see In re
Martin, 400 F.3d 836, 840 (10th Cir. 2005), and we affirm.
On November 29, 1993, we suspended Mr. Smith from practicing law
before this court. In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per curiam),
cert. denied, 513 U.S. 807 (1994). And on February 13, 1996, we converted that
suspension to a disbarment because Mr. Smith continued to practice before this
court despite his suspension. In re Smith, 76 F.3d 335, 336 (10th Cir. 1996) (per
curiam), cert. denied, 519 U.S. 871 (1996). Based on our disbarment, the
Colorado district court disbarred Mr. Smith on April 26, 1996, and the Colorado
Supreme Court disbarred him on October 14, 1999, In re Smith, 989 P.2d 165(Colo. 1999) (per curiam).
On May 4, 2007, we granted Mr. Smith’s motion for reinstatement to
practice before this court, provided that he meet certain conditions. In re Smith,
No. 93-631, 2007 WL 4953041 (10th Cir. May 4, 2007). Mr. Smith met these
conditions. Based on his May 17, 2007, reinstatement, he then applied for
reinstatement to the bar of the Colorado district court. 1 The district court’s
1
The Fifth Circuit and the Northern District of Texas reinstated Mr. Smith to
practice before those courts based on our order of reinstatement.
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three-judge Disciplinary Panel denied reinstatement based on the recommendation
of the Committee on Conduct and on the Panel’s independent review, because
Mr. Smith remained disbarred by the Colorado Supreme Court. The Panel
reasoned that under the district court’s local rules, “an attorney admitted to the
[district court] bar . . . must remain in good standing in all courts where admitted;
that the status of good standing means not being subject to suspension or
disbarment by any court for any reason; and that an attorney not in good standing
is not to practice before [the district] court. D.C.Colo.L.Civ.R. 83.3E and
D.C.Colo.L.Cr.R. 57.5E.” Aplt. App. at 7 (Order Denying Restatement).
Mr. Smith then filed a motion to alter or amend the judgment, asserting that
the Disciplinary Panel’s interpretation of the local rules deprived him of
substantive and/or procedural due process since the Tenth Circuit had reinstated
him and the Colorado Supreme Court’s continued disbarment was improper in
light of the Tenth Circuit’s reinstatement. Additionally, he criticized the
Colorado Supreme Court for failing to hold a due process hearing before
imposing reciprocal discipline. The Disciplinary Panel denied Mr. Smith’s
motion.
Subsequently, Mr. Smith filed a petition for relief from the rule of good
standing on the grounds that (1) the Colorado Supreme Court’s reciprocal
discipline denied him due process because that court’s Hearing Board did not hear
evidence concerning the reciprocal discipline charges; and (2) failure to reinstate
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him would be a grave injustice since the Tenth Circuit had readmitted him. The
Disciplinary Panel reviewed the recommendation of the Committee on Conduct
and the disciplinary file and denied the petition, finding that Mr. Smith failed to
offer clear and convincing evidence to support his petition and that the petition
was merely an attempt to circumvent the Disciplinary Panel’s prior two orders
denying reinstatement. The Disciplinary Committee reiterated that Mr. Smith
remained disbarred by the Colorado Supreme Court.
Mr. Smith appeals from all three of the Disciplinary Panel’s orders denying
him readmission to the Colorado district court bar. We review the denial of
reinstatement under the abuse of discretion standard. See Martin, 400 F.3d at
841. Our review of legal issues, however, is plenary. See id.Mr. Smith first argues that he was not given notice that the Disciplinary
Panel would apply the rule of good standing, see D.C. Colo. L. Civ. R. 83.3E and
D.C. Colo. L. Cr. R. 57.5E, when assessing his petition for reinstatement to the
district court’s bar. To the contrary, the form application for reinstatement that
Mr. Smith submitted to the district court begins with the very notification that the
good-standing rules apply. Aplt. App. at 14. Those rules, as relevant here, state
that
[a]n attorney admitted to the bar of this court must remain in good
standing in all courts where admitted. “In good standing” means not
subject to suspension or disbarment by any court for any reason. An
attorney who is not in good standing shall not practice before the bar
of this court . . . .
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D.C. Colo. L. Civ. R. 83.3E; D.C. Colo. L. Cr. R. 57.5E. Additionally, the form
cited to Local Rules 83.5I and 57.7I in its title and twice in its body. Aplt. App.
at 14-15. These rules state that:
An attorney applying for reinstatement or readmission to this court
following reinstatement or readmission by the original disciplining
court who remains . . . disbarred in a court other than the original
disciplining court or this court is subject to D.C.COLO.LCivR 83.3E
and D.C.COLO.LCrR 57.5E requiring attorneys to be in good
standing where admitted in order to be or remain admitted to the bar
of this court. An attorney . . . disbarred automatically in a court
other than the original disciplining court or this court as a result of
. . . disbarment by the original disciplining court may petition this
court for relief from the rule of good standing pursuant to
D.C.COLO.LCivR 83.3F or D.C.COLO.LCrR 57.5F, stating
appropriate grounds for relief.
Mr. Smith certified in the reinstatement application that he had read and was
familiar with these local rules. Aplt. App. at 15.
Without question, “the federal district court has a right to establish its own
standards for admission to practice.” Mattox v. Disciplinary Panel of U.S. Dist.
Ct. for Dist. of Colo., 758 F.2d 1362, 1364 (10th Cir. 1985); see also Chambers v.
NASCO, Inc., 501 U.S. 32, 43 (1991) (deciding district court has inherent
authority to control admission to its bar). The Disciplinary Panel adhered to the
court’s own rules in denying Mr. Smith readmission. See Mattox, 758 F.2d at
1364 (stating that proper question on appeal is “whether the district court has
adhered to its own rules”). Mr. Smith has not been reinstated to the Colorado
Supreme Court and his membership in that bar is required before he can be
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reinstated to the district court’s bar. The district court therefore did not abuse its
discretion in denying his petition for reinstatement. Cf. In re Kandekore,
460 F.3d 276, 280 (2d Cir. 2006) (per curiam) (holding “that the district court
could properly deny [attorney’s] readmission on the ground that he had not been
readmitted to the bar of the state of New York”). Nor did the district court abuse
its discretion in denying his motion to alter or amend the judgment.
Mr. Smith next argues that he was denied his Fifth Amendment right to due
process because the Disciplinary Panel either erred in refusing to disclose items
from the record on appeal, including the Committee on Conduct’s
recommendation on his application for reinstatement and the underlying
documentation, or erred in refusing to supplement the record on appeal with the
omitted items. Mr. Smith’s argument is conclusory, and he cites no authority
requiring the Disciplinary Panel to disclose these items. Because this issue is not
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adequately briefed, we deem it waived. 2 See Utahns for Better Transp. v. U.S.
Dep’t of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002).
Mr. Smith also argues that former Chief Judge Nottingham should have
disqualified himself from the Disciplinary Panel under 28 U.S.C. § 455(a) and (b)
due to his bias against Mr. Smith. Mr. Smith, however, never asserted a bias
argument before the Disciplinary Panel. Thus, this argument is waived. See
Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1167
(10th Cir. 2005).
Even if we considered this argument, we would conclude that Mr. Smith
did not show bias. Contrary to Mr. Smith’s contention, the judge’s sanctioning
him during prior district court proceedings and reciprocally disbarring him
without holding a due process hearing on the reciprocal discipline charges are
insufficient to suggest partiality requiring recusal. These bias accusations are
2
Mr. Smith’s total discussion of the issue consists of the following:
The Disciplinary Panel also abused its discretion and/or committed
reversible error by refusing to disclose items omitted from the record
on appeal, including but not limited to, the recommendation of the
Committee on Conduct on Smith’s Application for reinstatement to
the District Court’s bar, as well as the underlying documentation, or
to supplement the record on appeal with the omitted items, which
were necessary for Smith to be able to prepare and submit his brief
and appendix on appeal. Therefore, in the absence of the omitted
items, Smith was deprived of his Fifth Amendment right to due
process of law.
Aplt. Br. at 11 (footnote citing to appendix omitted).
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grounded primarily in prior judicial rulings against Mr. Smith, which almost
never show partiality requiring a judge’s recusal. See Liteky v. United States,
510 U.S. 540, 555 (1994). Also, Mr. Smith contends that former Chief Judge
Nottingham’s bias tainted the proceedings making it impossible for Mr. Smith to
receive a fair and impartial decision on his application for reinstatement. This
contention is wholly conclusory and therefore deemed waived. See Utahns for
Better Transp., 305 F.3d at 1175. In any event, there were two other judges on
the Disciplinary Panel deciding whether to reinstate Mr. Smith, Mr. Smith does
not argue that either of those judges was biased, and the Panel’s decision against
reinstatement was unanimous.
Lastly, Mr. Smith argues that he presented clear and convincing evidence
that the Disciplinary Panel should have granted his petition for relief from the
rule of good standing and that he was not merely attempting to circumvent the
Disciplinary Panel’s two prior orders denying reinstatement. To support his
argument, he merely quotes from his petition. But the quote does not address the
Disciplinary Panel’s order and reasoning. Cf. Semsroth v. City of Wichita,
555 F.3d 1182, 1186 n.5 (10th Cir. 2009) (deciding that where appellate brief was
verbatim copy of summary judgment response, brief “inherently fail[ed] to
address in a direct way the decision under review and, as a result, does not
effectively come to grips with the district court’s analysis of the deficiencies in
[appellants’] case”). Thus, he fails to show by clear and convincing evidence that
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he should be relieved from the rule of good standing. See, e.g., In re Oliveras
Lopez de Victoria, 561 F.3d 1, 4 (1st Cir. 2009) (per curiam); In re Kramer,
282 F.3d 721, 724, 725 (9th Cir. 2002). Nor does he show that he was not merely
trying to circumvent the Disciplinary Panel’s first two orders.
Because Mr. Smith has failed to show any defect in the Disciplinary
Panel’s proceedings denying him reinstatement or relief from the good standing
requirement, we AFFIRM the district court’s orders.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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