Sieverding v. Colorado Bar Assoc ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 17, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
K A Y SIEV ER DIN G ,
Plaintiff-Appellant,
and No. 06-1465
(D.C. No. 02-cv-1950-EW N-OES)
DA VID SIEVERDING ; ED (D . Colo.)
SIEV ER DIN G ; TO M SIEV ER DING,
Plaintiffs,
v.
C OLO RA D O BA R A SSO CIA TION,
and their insurance company (true
nam e unknow n); C ITY O F
STEAM BOAT SPRIN GS, CO, a
municipality (hereinafter the CITY);
A M ER ICAN BA R A SSO CIA TION,
and their insurance company (true
name unknown); JAN E BENNETT,
private citizen acting in conspiracy
with CITY policy makers; KEN
BRENNER, individually and in his
capacity as a CITY Council
M em ber; JA M ES EN G LEK EN ,
individually and in his capacity as
CITY Council M ember; ART
FIEBING, individually and as
employed as CITY assistant chief of
police; SA N D Y FIEB IN G ,
individually and as the CITY code
enforcement officer; DA NIEL
FOOTE, Attorney, individually and in
his capacity as Assistant CITY
attorney; J. D. HAYS, individually and
in capacity as CITY director of public
safety; JAM ES “SAND Y” HORNER,
individually and as an attorney
working for KLAUZER &
TREM AINE and his insurance
company; CH AR LES LAN CE,
Attorney, individually and in capacity
as former district attorney and his
insurance; A N TH O N Y LETTU NICH,
individually and in capacity as CITY
attorney and his insurance; PAUL R.
M CLIM ANS, individually and in
capacity as a district attorney and his
insurance company; WENDIE
SCHULENBURG, also known as
W endie R ooney, individually and in
capacity as CITY planning services
director; and her insurance;
M ELIN DA SHERM AN, individually
and former Assistant CITY attorney,
and in capacity, and their insurance;
KERRY ST. JAM ES, individually and
in capacity as deputy or assistant
district attorney; and his insurance;
ARIA NTHE STETTNER, individually
and in capacity as CITY council
m em ber; PA U L STR ON G ,
individually and in capacity as CITY
Council M ember; and his insurance
company; RICH AR D TREM AINE,
individually and in capacity as an
attorney; and his insurance company;
JA M ES W EBER, individually and in
capacity as CITY public works
director; and his insurance company;
P. ELIZABETH WITTEM YER,
individually and in capacity as D eputy
District attorney; and her insurance;
JAM ES B.F. OLIPHANT, Bennett’s
attorney and purchaser of plaintiff’s
home; KEV IN B ENN ETT,
individually and in capacity as CITY
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Council member; DAVID
BROUGHAM , individually and in
capacity as apparent CITY insurance
agent (for CIRSA ); CIRSA , insurance
for the CITY; INSURA NC E AG ENT,
other than Brougham and decision
makers for CIRSA (true name
unknown); KA THY CO NN ELL,
individually and as employed as CITY
C ouncil M ember; D A V IS, G RAHAM
& STUBBS, LLC; JAM ES
GARRECHT, in capacity as district
court judge; (for injunctive relief only
since he is immune from suit for
damages); HALL & EVANS, LLC,
and their insurance; PAUL H UGHES,
individually and in capacity as CITY
manager; KLA UZER & TREM AINE,
a law firm, and insurance (true name
unknown); RANDA LL KLAUZER,
individually and in capacity as
an attorney and his insurance
company; SUZANN E SCHLICH T,
individually and in capacity as
newspaper publisher and her
insurance; STEAM BO AT PILOT &
TODAY N EWSPAPER,
(W OR LDW EST LIM ITED
LIABILITY COM PA NY) and
insurance (true name unknown),
Defendants-Appellees.
______________________________
K A Y SIEV ER DIN G ,
Plaintiff,
and
DA VID SIEVERDING ; ED
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SIEV ER DIN G ; TO M SIEV ER DING,
Plaintiffs-Appellants.
v. No. 06-1466
(D.C. No. 02-cv-1950-EW N-OES)
C OLO RA D O BA R A SSO CIA TION, (D . Colo.)
and their insurance company (true
nam e unknow n); C ITY O F
STEAM BOAT SPRIN GS, CO, a
municipality (hereinafter the CITY);
A M ER ICAN BA R A SSO CIA TION,
and their insurance company (true
name unknown); JAN E BENNETT,
private citizen acting in conspiracy
with CITY policy makers; KEN
BRENNER, individually and in his
capacity as a CITY Council
M em ber; JA M ES EN G LEK EN ,
individually and in his capacity as
CITY Council M ember; ART
FIEBING, individually and as
employed as CITY assistant chief of
police; SA N D Y FIEB IN G ,
individually and as the CITY code
enforcement officer; DA NIEL
FOOTE, Attorney, individually and in
his capacity as Assistant CITY
attorney; J. D. HAYS, individually and
in capacity as CITY director of public
safety; JA M ES “SA N D Y ”
HORNER, individually and as an
attorney working for KLA UZER
& TREM AINE and his insurance
company; CH AR LES LAN CE,
Attorney, individually and in capacity
as former district attorney and his
insurance; A N TH O N Y LETTU NICH,
individually and in capacity as CITY
attorney and his insurance; PAUL R.
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M CLIM ANS, individually and in
capacity as a district attorney and his
insurance company; WENDIE
SCHULENBURG, also known as
W endie R ooney, individually and in
capacity as CITY planning services
director; and her insurance;
M ELIN DA SHERM AN, individually
and former Assistant CITY attorney,
and in capacity, and their insurance;
KERRY ST. JAM ES, individually and
in capacity as deputy or assistant
district attorney; and his insurance;
ARIA NTHE STETTNER, individually
and in capacity as CITY council
m em ber; PA U L STR ON G ,
individually and in capacity as CITY
Council M ember; and his insurance
company; RICH AR D TREM AINE,
individually and in capacity as an
attorney; and his insurance company;
JA M ES W EBER, individually and in
capacity as CITY public works
director; and his insurance company;
P. ELIZABETH WITTEM YER,
individually and in capacity as D eputy
District attorney; and her insurance;
JAM ES B.F. OLIPHANT, Bennett’s
attorney and purchaser of plaintiff’s
home; KEV IN B ENN ETT,
individually and in capacity as CITY
Council member; DAVID
BROUGHAM , individually and in
capacity as apparent CITY
insurance agent (for C IR SA ); C IRSA,
insurance for the CITY; INSURANCE
AGENT, other than Brougham and
decision makers for CIRSA (true name
unknown); KA THY CO NN ELL,
individually and as employed as CITY
C ouncil M ember; D A V IS, G RAHAM
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& STUBBS, LLC; JAM ES
GARRECHT, in capacity as district
court judge; (for injunctive relief only
since he is immune from suit for
damages); HALL & EVANS, LLC,
and their insurance; PA U L
HUGHES, individually and in capacity
as CITY manager; KLAUZER &
TREM AINE, a law firm, and
insurance (true name unknown);
RANDALL KLAUZER, individually
and in capacity as an attorney and his
insurance company; SU ZA N N E
SCHLICHT, individually and in
capacity as newspaper publisher and
her insurance; STEA M B OA T PILOT
& TODA Y NEW SPAPER,
(W OR LDW EST LIM ITED
LIABILITY COM PA NY) and
insurance (true name unknown)
Defendants-Appellees.
_______________________________
K A Y SIEV ER DIN G ,
Petitioner-A ppellant,
No. 06-1524
v. (D.C. No. 06-cv-2245-ZLW )
(D . Colo.)
EDW ARD W . NOTTINGHAM ,
District Judge,
Respondent.
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OR D ER AND JUDGM ENT *
Before BR ISC OE, M cKA Y, and GORSUCH, Circuit Judges.
Kay, David, Ed and Tom Sieverding are all parties in at least one of the
three appeals that we have consolidated for procedural purposes. These appeals
arise out of contempt proceedings that were instituted as a result of
M s. Sieverding’s alleged violations of two filing restrictions orders that were
entered by the district court in M arch 2004 and January 2006. On September 25,
2006, after a hearing on the defendants’ motion for an order to show cause against
M s. Sieverding for new contempt of court, the district court issued a warrant for
M s. Sieverding’s arrest. After this hearing and the issuance of the arrest w arrant,
M s. Sieverding and her husband and sons filed the appeals in case Nos. 06-1465
and 06-1466. M s. Sieverding also filed a petition for habeas corpus relief in the
district court, which was dismissed. That dismissal is the subject of the appeal in
case No. 06-1524.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Nos. 06-1465/06-1466
In these two appeals, M s. Sieverding filed a notice of appeal and then the
next day M r. Sieverding and the Sieverdings’ children, Ed and Tom, filed a notice
of appeal. The Sieverdings have filed a motion seeking to consolidate the appeals
for the purpose of paying a single filing fee. All four of the Sieverdings were
parties in the underlying district court action. The second notice of appeal
indicates that M r. Sieverding, Ed and Tom are filing a joint appeal and joint
briefings with M s. Sieverding. After two separate appeals were docketed,
M s. Sieverding filed a notice of errata in the district court indicating that the
appeals should be combined. The Sieverdings argue that the appeals should be
consolidated pursuant to Fed. R. App. P. 3(c)(2), which states: “A pro se notice
of appeal is considered filed on behalf of the signer and the signer’s spouse and
minor children (if they are parties), unless the notice clearly indicates otherwise.”
Given these circumstances, we grant the motion to consolidate the appeals solely
for the purpose of paying a single filing fee.
The Sieverdings assert that they are appealing an oral order by the district
court to “terminate all litigation against ‘these’ defendants.” Aplt. Br. at 1. It is
not clear to this court what exactly the Sieverdings are appealing, but the
Sieverdings did attach to their brief a copy of a transcript from a September 22,
2006 hearing. The hearing was in response to the defendants’ motion for an order
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to show cause for new contempt based on two alleged violations by
M s. Sieverding of the district court’s written filing restrictions orders.
Defendants argued that M s. Sieverding had violated the orders by filing
motions to reconsider in her federal cases pending in the D.C. Circuit and by
filing an appeal to this court from the dismissal of her D istrict of Kansas case.
See R., Doc. 862 at 2-3. During the hearing, the district court implicitly found
M s. Sieverding in contempt and instructed her court-appointed attorney that, in
order to purge her contempt, M s. Sieverding had to dismiss all outstanding
litigation that she had filed against these defendants. W e therefore construe the
Sieverdings’ appeal as an appeal from the district court’s oral finding of contempt
on September 22, 2006.
On November 14, 2006, we issued an opinion in which we determined that
the district court could not restrict M s. Sieverding’s filings in federal district
courts outside of this circuit, could not restrict her filings in state courts, and
could not restrict M s. Sieverding’s appellate filings in this court or any other
court of appeal. See Sieverding v. Colo. Bar Ass’n, 469 F.3d 1340, 1344
(10th Cir. 2006). As a result, we modified the January 2006 filing restrictions
order and affirmed that order as modified. W e also instructed the district court
under our supervisory powers that it could not enforce the filing restrictions in its
M arch 2004 order to the extent that they were contrary to our opinion. Id. at
1344-45.
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In light of this court’s decision modifying the filing restrictions,
M s. Sieverding’s court-appointed attorney filed a motion to reconsider the civil
contempt proceedings, requesting that the district court reconsider the contempt
matter, vacate the show cause order, and cancel the arrest w arrant issued in
September. In M ay 2007, M s. Sieverding was arrested and taken into custody.
On June 1, a hearing was held in the district court. At the close of the hearing,
the district court granted the motion to reconsider, vacated the order directing the
marshals to take M s. Sieverding into custody and ordered the marshals to release
M s. Sieverding.
On June 13, we ordered the parties to file supplemental briefs on the issue
of w hether the proceedings in the district court on June 1 mooted the Sieverdings’
appeals. “Generally, a case becomes moot when the issues presented are no
longer live or the parties lack a legally cognizable interest in the outcome.” Oyler
v. Allenbrand, 23 F.3d 292, 294 (10th Cir. 1994) (quotation omitted). If this case
is moot, then we lack jurisdiction to consider it. See id.M s. Sieverding argues that there continues to be a live controversy for this
court to resolve on appeal, but she does not present a legally reasoned argument
to support this position. She fails to address the fact that there are currently no
outstanding contempt proceedings against her, that her arrest warrant has been
vacated, and that she has been released from custody. W e note that the district
court did indicate that the defendants could continue to seek contempt sanctions
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against M s. Sieverding if she continues to violate the modified filing restrictions
orders, but that does not make this appeal a live controversy. If defendants seek
further contempt sanctions against M s. Sieverding and the district court imposes
further contempt sanctions against M s. Sieverding then she can appeal from any
such sanctions at that time.
Because the district court has granted the motion to reconsider its
September 2006 contempt order, has vacated the September 2006 arrest w arrant,
and has ordered M s. Sieverding released, there is no longer an active controversy
for this court to consider. Accordingly, M s. Sieverding’s appeal in No. 06-1465
is dismissed as moot. Because none of the other Sieverdings were the subject of
the September 2006 contempt order, they lack standing to challenge that order
and their appeal in No. 06-1466 is dismissed for lack of standing. See generally
Buchwald v. Univ. of New M exico Sch. of M edicine, 159 F.3d 487, 493 (10th Cir.
1998) (outlining factors for establishing standing).
No. 06-1524
On November 8, 2006, M s. Sieverding filed an “Independent Action for
Habeas Corpus” in the district court seeking to challenge the arrest warrant issued
by the district court on September 25, 2006. The district court construed
M s. Sieverding’s application as a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 and dismissed the petition, concluding that M s. Sieverding was
not in custody for purposes of the habeas statute.
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W hen M s. Sieverding filed her habeas petition, she was subject to the
pending arrest warrant, but it had not yet been executed. During the pendency of
her appeal, she was taken into custody pursuant to the warrant, but the warrant
was subsequently vacated and she was released. Because we conclude, as
discussed below, that this appeal is now moot, we do not need to decide whether
M s. Sieverding was in custody at the time she filed her habeas petition.
In the June 13 order discussed earlier, we invited M s. Sieverding to brief
the question of w hether this appeal was mooted by the district court’s
proceedings. As discussed previously, there must be a live controversy in order
for this court to have jurisdiction over this appeal. In her supplemental brief,
M s. Sieverding does not present any reasoned argument regarding the issue of
mootness, rather she continues to challenge the validity of the September 2006
warrant. Because the arrest warrant that is the subject of the habeas action has
been vacated, M s. Sieverding has been released, and she has not argued that there
are any collateral consequences that would prevent this court from applying the
mootness doctrine, see Oyler, 23 F.3d at 294, there is no longer a live controversy
for this court to resolve. Accordingly, this appeal is dismissed as moot.
Conclusion
In cases N o. 06-1465 and No. 06-1466, we GRANT the motion to
consolidate for the sole purpose of paying a single filing fee. W e DISM ISS the
appeal in No. 06-1465 as moot. W e DISM ISS the appeal in No. 06-1466 for lack
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of standing. In No. 06-1524, we DISM ISS the appeal as moot. We DENY all
other outstanding motions.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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