Smith v. Krieger

FILED
United States Court of Appeals
Tenth Circuit
July 27, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
KENNETH L. SMITH,
Plaintiff-Appellant,
v. No. 09-1503
(D.C. No. 1:08-CV-00251-CMA-KMT)
HON. MARCIA S. KRIEGER, in her (D. Colo.)
official capacity as Judge of the
United States District Court for the
District of Colorado; THE UNITED
STATES DISTRICT COURT FOR
THE DISTRICT OF COLORADO;
THE TENTH CIRCUIT COURT OF
APPEALS; THE COLORADO
COURT OF APPEALS; THE
SUPREME COURT OF COLORADO;
JOHN DOES 1-99,
Defendants-Appellees.
KENNETH L. SMITH,
Plaintiff-Appellant,
v. No. 10-1012
(D.C. No. 1:09-CV-01018-PAB)
STEPHEN H. ANDERSON; ROBERT (D. Colo.)
R. BALDOCK; ROBERT E.
BLACKBURN; MARY BECK
BRISCOE; ROBERT H. HENRY;
PAUL J. KELLY, JR.; MARCIA S.
KRIEGER; MICHAEL W.
MCCONNELL; STEPHANIE K.
SEYMOUR; DEANELL REECE
TACHA; JOHN DOES 1-20; WILEY
Y. DANIEL; JUDGE DOE 21, in their
representative capacities; UNITED
STATES DISTRICT COURT FOR
THE DISTRICT OF COLORADO,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HOLMES and PORFILIO, Circuit Judges, and BRORBY, Senior Circuit
Judge.
These appeals are the latest in a series of cases and appeals filed pro se by
Kenneth L. Smith, all of which can be traced to the Colorado Supreme Court’s
denial of his application for admission to the Colorado bar after he refused to
submit to a mental status examination. See Smith v. Mullarkey, 67 F. App’x 535,
536 (10th Cir. 2003) (Mullarkey I) (explaining denial of Mr. Smith’s application);
Smith v. Mullarkey, 121 P.3d 890, 891 (Colo. 2005) (Mullarkey II) (same). In
No. 09-1503, Smith v. Krieger, the district court granted the defendants’ motions
to dismiss and denied Mr. Smith’s post-judgment motion to alter or amend the
judgment. In No. 10-1012, Smith v. Anderson, the district court granted the
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
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defendants’ motions to dismiss, denied Mr. Smith’s post-judgment motion, and
imposed filing restrictions.
This court, on its own motion, has consolidated these appeals for
submission and disposition. Because Mr. Smith proceeded pro se in the district
court and on appeal, we give his filings a liberal construction, but we do not act
as his advocate, and his pro se status does not relieve him of complying with
procedural rules applicable to all litigants. See Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005). In Krieger, we conclude that we
have jurisdiction over only the denial of his post-judgment motion, which we
affirm, deeming that appeal frivolous. In Anderson, we conclude that we have
jurisdiction over the district court’s dismissal of his action and its order imposing
filing restrictions, both of which we affirm. Further, based on Mr. Smith’s
abusive pattern of litigation, we impose a monetary sanction of $3,000 and
appellate filing restrictions.
I. 09-1503, Smith v. Krieger
A. Background
In Smith v. Krieger, Mr. Smith filed a complaint in the United States
District Court for the District of Colorado. He initially named the Honorable
David M. Ebel as a defendant in his official capacity, apparently with an eye to
policing Judge Ebel’s handling of another case Mr. Smith had filed in that
district, Smith v. Bender, No. 1:07-cv-01924-MSK-KMT (filed Sept. 12, 2007).
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See Aplt. Opening Br. at 17 (“this lawsuit was filed with the purpose of
attempting to prevent what happened in [Bender]”). Mr. Smith also named the
district court and this court (the Federal Defendants), the Colorado Court of
Appeals and the Colorado Supreme Court (the State Defendants), and 99 John
Does as defendants. The case was drawn to Judge Ebel, who recused himself, and
reassigned to the Honorable Marcia S. Krieger. After Judge Ebel recused himself
in Bender, that case was assigned to Judge Krieger. Mr. Smith then filed an
amended complaint in this case, substituting Judge Krieger in her official capacity
for Judge Ebel.
Mr. Smith’s amended complaint was based on allegations that
“[d]efendants’ practices of issuing ‘designer law’ (opinions applicable to one and
only one set of defendants), issuing so-called ‘unpublished’ opinions (opinions
declared to be devoid of precedential effect), and issuing opinions that fabricate
and/or elide key facts” exceeded judicial power as defined in Article III of the
Constitution and deprived him and similarly situated citizens of their right of
access to the courts and to due process under the First, Fifth, and Fourteenth
Amendments. R., Vol. 1 at 488-89, ¶¶ 104, 108. He also alleged that defendants
violated his right to equal protection by treating “all pro se cases . . . shabbily and
superficially.” Id. at 488, ¶ 106 (internal quotation marks omitted). He requested
a declaration that defendants violated these rights as alleged, and preliminary and
permanent injunctions prohibiting them from issuing orders or decisions
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(1) without addressing all legal arguments or factual contentions in a manner
sufficient to facilitate adequate appellate (and, in this court, en banc) review;
(2) without providing a rationale for any deviation from controlling precedent
“sufficient to ensure that an appellate court and the general public will be aware
of the variance”; and (3) “designated as being without precedential effect.” Id.
at 490-91.
After being named as a defendant in this case, Judge Krieger recused
herself and filed a motion to dismiss. The Federal Defendants and the State
Defendants also filed motions to dismiss. A magistrate judge issued a
recommendation that defendants’ motions be granted for a variety of reasons and
that Mr. Smith’s motion for injunctive and declaratory relief be denied.
Mr. Smith filed objections. The district court modified the recommendation and
adopted it, granting defendants’ motions, denying Mr. Smith’s motion, and
dismissing the case in its entirety. With respect to Judge Krieger and the Federal
Defendants, the district court determined that they were protected by sovereign
immunity, a “concept [that] has long been firmly established by the Supreme
Court, see, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 411-12 (1821),”
Smith v. Krieger, 643 F. Supp. 2d 1274, 1280 (D. Colo. 2009). The court also
concluded Mr. Smith had failed to show a waiver of the Federal Defendants’ or
Judge Krieger’s sovereign immunity. The court further explained that to the
extent Mr. Smith’s complaint could be read as requesting relief against those
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defendants under the mandamus provision of 28 U.S.C. § 1361, this court had
determined in Trackwell v. United States Government, 472 F.3d 1242, 1245-46
(10th Cir. 2007), that § 1361 does not confer district-court jurisdiction over the
federal courts or their judicial officers.
As to the State Defendants, the court concluded it lacked power to direct
them in the performance of their judicial duties, see Van Sickle v. Holloway,
791 F.2d 1431, 1436 n.5 (10th Cir. 1986), and that Mr. Smith’s allegation that the
Colorado Supreme Court’s adverse decision in Mullarkey II was rendered without
jurisdiction was no bar to the application of the Rooker-Feldman doctrine 1 to his
present claims because “‘there is no procedural due process exception to the
Rooker-Feldman rule.’” Krieger, 643 F. Supp. 2d at 1283 (quoting Snider v. City
of Excelsior Springs, Mo., 154 F.3d 809, 812 (8th Cir. 1998)).
The district court’s order was filed on August 3, 2009, and its separate
judgment on August 4, 2009. On August 21, 2009, Mr. Smith filed a motion
titled “Rule 59(e) Motion to Alter or Amend Judgment” (the Post-Judgment
Motion), and he later moved for a hearing on the motion. The district court
denied both motions on September 9, 2009, concluding that in his Post-Judgment
1
“The Rooker-Feldman doctrine prevents the lower federal courts from
exercising jurisdiction over cases brought by state-court losers challenging
state-court judgments rendered before the district court proceedings commenced.”
Lance v. Dennis, 546 U.S. 459, 460 (2006) (quotation omitted). This court
previously relied on the Rooker-Feldman doctrine in rejecting Mr. Smith’s
challenge to the Colorado Supreme Court’s denial of his bar application. See
Mullarkey I, 67 F. App’x at 538.
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Motion, Mr. Smith had simply reargued his case, which was not an appropriate
basis for relief under Rule 59(e), and that a hearing was unnecessary.
Mr. Smith filed his notice of appeal (NOA) on November 6, 2009. In its
substantive entirety, the NOA read:
NOTICE IS HEREBY GIVEN that Kenneth L. Smith, Plaintiff
in the above-captioned case, hereby appeals to the United States
Court of Appeals for the Tenth Circuit from the Final Judgment
entered herein on August 4, 2009 (post-judgment motions disposed
of on September 9, 2009).
R., Vol. 2 at 451.
B. Discussion
1. Appellate Jurisdiction
Although none of the appellees have expressed concern about the effect
that the timing of Mr. Smith’s Post-Judgment Motion or the substance of his NOA
has on our jurisdiction over this appeal, we have an obligation to analyze our
jurisdiction sua sponte. See Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271,
1274 (10th Cir. 2001). Under Rule 4 of the Federal Rules of Appellate Procedure,
“the timely filing of a notice of appeal in a civil case is a jurisdictional
requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). And under
Rule 3(c)(1) of those Rules, a “notice of appeal must . . . specify the party
or parties taking the appeal,” “designate the judgment, order, or part thereof
being appealed,” and “name the court to which the appeal is taken.”
Fed. R. App. P. 3(c)(1). “Rule 3’s dictates are jurisdictional in nature, and their
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satisfaction is a prerequisite to appellate review. Although courts should construe
Rule 3 liberally when determining whether it has been complied with,
noncompliance is fatal to an appeal.” Smith v. Barry, 502 U.S. 244, 248 (1992).
Thus, to confer jurisdiction on this court, a document must be filed within the
time specified by Rule 4 and provide the notice required by Rule 3.
Although it is clear from his NOA that Mr. Smith intended to appeal to this
court, the NOA is not timely with respect to the district court’s underlying
judgment, and it is debatable whether he adequately designated the order denying
his Post-Judgment Motion as an object of his appeal. We first address timeliness.
Because Mr. Smith did not file his Post-Judgment Motion within ten days
of the district court’s judgment, excluding intervening weekend days and
holidays, see Fed. R. Civ. P. 6(a)(2) (2009), 2 we treat it as a motion brought under
Rule 60(b) rather than one brought under Rule 59(e). See Price v. Philpot,
420 F.3d 1158, 1167 n.9 (10th Cir. 2005). Thus construed, the motion did not toll
the time for filing a notice of appeal because it was not filed within ten days of
2
Amendments to the Federal Rules of Civil and Appellate Procedure
took effect December 1, 2009, and provide longer time periods under
Fed. R. Civ. P. 59(e) and Fed. R. App. P. 4(a)(4)(vi) that would likely lead to the
conclusion that we have jurisdiction over Mr. Smith’s appeal from the district
court’s underlying judgment. However, in this appeal, we apply the version of
those rules in effect at the time Mr. Smith filed his Post-Judgment Motion and his
NOA because the filing deadlines those rules contain expired prior to the
effective date of the revisions. See Ysais v. Richardson, 603 F.3d 1175, 1178 n.3
(10th Cir. 2010) (applying prior version of Rule 59 because ten-day period for
filing Rule 59 motion had expired prior to effective date of the 2009
amendments), petition for cert. filed (U.S. June 10, 2010) (No. 09-11225).
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the district court’s judgment. See Fed. R. App. P. 4(a)(4)(A). In order to
timely appeal the underlying judgment, therefore, Mr. Smith had to file his
NOA “within 60 days after the judgment or order appealed from is entered,”
Fed. R. App. P. 4(a)(1)(B), the time limit applicable when the United States, its
officers, or one of its agencies is a party. The district court’s judgment was filed
August 4, 2009, so Mr. Smith’s NOA was due by October 3, 2009, but he did not
file it until November 6, 2009. As such, the NOA was clearly untimely as to the
district court’s underlying judgment, and we lack jurisdiction to review that
judgment. See Bowles, 551 U.S. at 214.
With respect to the district court’s September 9 order denying the
Post-Judgment Motion, Mr. Smith’s NOA is timely but arguably noncompliant
with the requirement that it “designate the judgment, order, or part thereof being
appealed.” Fed. R. App. P. 3(c)(1)(B). The NOA clearly designates the
underlying judgment as an object of the appeal, but makes only parenthetical
reference to the date on which the district court denied the Post-Judgment Motion.
Furthermore, in his opening appellate brief, Mr. Smith has not specifically
addressed the district court’s denial of his Post-Judgment Motion, suggesting that
he did not intend to appeal it. Given Mr. Smith’s pro se status, however, and the
liberal construction we are to give Rule 3, Smith, 502 U.S. at 248, we will
construe the NOA as sufficiently designating the order denying his Post-Judgment
Motion for purposes of Rule 3(c)(1)(B) because it refers to the fact that the order
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was issued, and we will construe the arguments in his appellate brief as arguments
that the district court should have granted post-judgment relief because it
committed clear error in issuing its order of dismissal, which is a valid basis for
such relief, see Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000).
2. Merits
We review the district court’s denial of Mr. Smith’s Post-Judgment Motion
for an abuse of discretion. See Jennings v. Rivers, 394 F.3d 850, 854 (10th Cir.
2005). Mr. Smith has advanced three main disagreements with the district court’s
underlying dismissal order: (1) that sovereign immunity lacks constitutional
grounding; (2) that judicial immunity is no bar to relief in the nature of
mandamus under 28 U.S.C. § 1361 against judges and courts; and (3) that the
Colorado Supreme Court acted without jurisdiction in Mullarkey II, so its
judgment is void, the Rooker-Feldman doctrine is inapplicable, and, apparently,
the district court should have issued a declaration to that effect.
First, as the district court observed, the jurisdictional implications of the
United States’ sovereign immunity are firmly entrenched in Supreme Court
jurisprudence. See, e.g., United States v. Mitchell, 463 U.S. 206, 212 (1983)
(“It is axiomatic that the United States may not be sued without its consent and
that the existence of consent is a prerequisite for jurisdiction.”); Cohens, 19 U.S.
at 411-12 (“The universally received opinion is, that no suit can be commenced or
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prosecuted against the United States[.]”). And we are not at liberty to cast aside
applicable Supreme Court precedent. United States v. Harris, 447 F.3d 1300,
1303 n.1 (10th Cir. 2006). The judiciary, which necessarily includes the Federal
Defendants and Judge Krieger in her official capacity, forms one branch of the
United States government, see generally U.S. Const. art. III, and therefore is
protected by the sovereign immunity accorded the United States. Congress may
waive the United States’ sovereign immunity, but waiver must be express, United
States v. Mitchell, 445 U.S. 535, 538 (1980), and the burden is on Mr. Smith to
identify a specific waiver of sovereign immunity as it applies to his claims against
the Federal Defendants or Judge Krieger, see Normandy Apartments, Ltd. v. U.S.
Dep’t of Housing and Urban Dev., 554 F.3d 1290, 1295 (10th Cir. 2009). He has
failed to do so, arguing instead that sovereign immunity itself lacks a
constitutional basis, a notion wholly incompatible with the long-standing Supreme
Court precedent noted above.
Regarding the district court’s denial of relief in the nature of mandamus, a
panel of this court has held that such relief does not lie against the federal courts
under 28 U.S.C. § 1361, Trackwell, 492 F.3d at 1246, and another panel has held
that federal courts lack mandamus power to order state courts or their judicial
officers to perform their judicial duties, Van Sickle, 791 F.2d at 1436. There was
no error in the district court’s application of these holdings. Mr. Smith’s
argument that judicial immunity is no bar to relief under § 1361 is irrelevant, as
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the district court specifically did not base its dismissal in any respect on judicial
immunity.
Finally, Mr. Smith’s argument that Mullarkey II was rendered in the
absence of jurisdiction and is therefore void, nullifying the application of
Rooker-Feldman doctrine, lacks an arguable basis. We have already informed
Mr. Smith once that “the Rooker-Feldman doctrine bars [him] from relitigating
the refusal of the Justices of the Colorado Supreme Court to recuse from his
appeal in . . . Mullarkey [II].” Smith v. Bender, 350 F. App’x 190, 193 (10th Cir.
2009), cert. denied, 130 S. Ct. 2097 (2010). His recourse was to seek review in
the United States Supreme Court, which he did, albeit without success. See Smith
v. Mullarkey, 547 U.S. 1071 (2006) (order denying certiorari). And his due
process challenge to the Colorado Supreme Court’s exercise of jurisdiction, on
the ground that it ran afoul of Colorado’s statutory scheme for appeals, falls
squarely within the Rooker-Feldman doctrine. See Doe v. Mann, 415 F.3d 1038,
1042 n.6 (9th Cir. 2005) (“Rooker-Feldman applies where the plaintiff in federal
court claims that the state court did not have jurisdiction to render a judgment.”).
In sum, we conclude that this appeal is legally frivolous because “it lacks
an arguable basis in either fact or law,” Thompson v. Gibson, 289 F.3d 1218, 1222
(10th Cir. 2002). The district court properly followed controlling precedent.
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II. 10-1012, Smith v. Anderson
A. Background
In Smith v. Anderson, Mr. Smith named as defendants the United States
District Court for the District of Colorado, three of that court’s judges plus one
“Judge Doe,” and eight judges of this court plus twenty “Judge Does.” He raised
two claims. The first was “in the nature of a writ of scire facias,” 3 R., Vol. 1 at 5,
¶ 6, seeking to remove the defendant judges from their seats due to their alleged
failure to maintain the “good Behaviour” required for continued tenure under
Article III, section 1, clause 2 of the United States Constitution. In his second
claim, he sought to prosecute crimes allegedly committed by the defendant judges
against the United States. Mr. Smith claimed he had “inherent authority” to raise
his first claim under “the Ninth and Tenth Amendments of the United States
Constitution.” Id. at 51, ¶ 255. With respect to his second claim, he contended
he was “authorized to prosecute crimes committed against the United States by
virtue of his inherent authority as co-sovereign, pursuant to powers reserved
3
Scire facias, meaning “‘you are to make known, show cause,’” was “[a]
writ requiring the person against whom it issued to appear and show cause why
some matter of record should not be annulled or vacated, or why a dormant
judgment against that person should not be revived.” Black’s Law Dictionary
1464 (9th ed. 2009). Although the writ is now abolished, “[r]elief previously
available through [it] may be obtained by appropriate action or motion under
these rules.” Fed. R. Civ. P. 81(b).
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under the Ninth and Tenth Amendments, and crimes committed against his person
and/or property in particular.” Id. at 51-52, ¶ 259. 4
As the factual basis for his claims, Mr. Smith alleged that defendants
Anderson, Briscoe, Blackburn, Baldock, McConnell, Seymour, Tacha, Henry, and
Kelly had either (1) intentionally and criminally disregarded binding Supreme
Court and Tenth Circuit precedent; (2) delayed issuing a decision in one of his
earlier appeals for 26 months; (3) failed to exercise de novo review of magistrate
judge recommendations and district court judgments; or, (4) motivated by “undue
guild favoritism,” R., Vol. 1 at 50, ¶ 245 (quotation marks omitted), summarily
dismissed three complaints of judicial misconduct he had filed in the Tenth
Circuit and one complaint filed by the plaintiff in a case in which Mr. Smith tried
to file an amicus brief.
With regard to defendant Krieger, Mr. Smith alleged that prior to her
recusal in Krieger, she violated his due process rights by not permitting him to
file an amended complaint as of right and by not enforcing a deadline against his
opponents. He also alleged that in Bender, Judge Krieger’s failure to recuse
herself because of her alleged personal friendship and professional collaboration
4
The Ninth Amendment provides: “The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others retained by the
people.” The Tenth Amendment provides: “The powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.”
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with one of the defendants was felonious, and that she had fabricated or elided
facts in order to exercise jurisdiction. 5
For substantive relief, Mr. Smith sought an order (1) removing the
defendant judges from their offices; (2) convening a grand jury to hear evidence
of federal crimes those judges and others allegedly committed; (3) compelling the
Attorney General to provide supervisory counsel under 28 U.S.C. § 519; and
(4) granting him leave to prosecute any indictments returned by the grand jury in
the event the local United States Attorney refused to prosecute. He also asked for
reasonable fees, expenses, and costs, including attorney fees.
The defendants filed two motions to dismiss, which the district court
granted under Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction, concluding that
“[r]emoving judges from office . . . is the sole province of Congress. U.S. Const.,
art. I, § 2,3.” R., Vol. 4 at 60. Regarding Mr. Smith’s second claim, the district
court determined that he lacked authority to proceed as a private attorney general
on behalf of the United States because 28 U.S.C. § 519 vests that authority solely
in the Attorney General and his delegates.
The district court next proposed filing restrictions based in part on
Mr. Smith’s series of pro se lawsuits against the judges who had adversely
5
Although Mr. Smith named the Honorable Wiley Y. Daniel as a defendant,
he made no allegations regarding Judge Daniel other than to note that defendant
“Judge Doe” would likely succeed Judge Daniel upon the latter’s recusal from
another case Mr. Smith had filed.
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decided cases against him, all stemming from the Colorado Supreme Court’s
order denying his application for admission to the Colorado bar. The court also
noted Mr. Smith’s penchant for making duplicative arguments in the same case,
such as an emergency motion for relief in the nature of mandamus and two
emergency motions for declaratory relief, all of which raised the same arguments
found in his complaint and his responses to defendants’ motions to dismiss. The
court further observed that his filings had “become increasingly abusive. In at
least one prior case in this Court, as well as in the two cases still pending before
[the district court], Mr. Smith suggests that violence against federal judges may
be justified if a litigant, such as himself, does not get the relief he requests.” Id.
at 65. Based on this history, and over Mr. Smith’s objections, the district court
prohibited him from filing any new actions pro se in the United States District
Court for the District of Colorado unless he first receives permission from that
court to do so. The court also treated a post-judgment motion Mr. Smith had filed
under Rule 59(e) as a Rule 60(b) motion and denied it. 6
B. Discussion
1. Appellate Jurisdiction
The district court issued its dismissal order in this case on November 19,
2009, and its separate judgment on November 23, 2009. On January 5, 2010,
6
Mr. Smith has not taken issue with the denial of his Rule 60(b) motion, so
we do not consider it any further.
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Mr. Smith filed a post-judgment motion, which contained his objections to the
court’s proposed filing restrictions. On January 13, 2010, the court overruled his
objections to the filing restrictions and imposed them. The next day, January 14,
2010, Mr. Smith filed his notice of appeal, which read, in its substantive entirety:
NOTICE IS HEREBY GIVEN that the United States of
America, as represented by Kenneth L. Smith in propria persona in a
relational capacity in the above-named cases, hereby appeals to the
United States Court of Appeals for the Tenth Circuit from the Final
Judgment entered herein on November 23, 2009 (motions for
post-judgment relief are still pending).
Id. at 172. The NOA was timely with regard to the underlying judgment and the
order imposing the filing restrictions. However, it does not designate that order
as an object of this appeal, as required by Fed. R. App. P. 3(c)(1)(B), and
Mr. Smith did not file another NOA or an amended NOA designating that order
for appeal. But regardless of whether the NOA was compliant with Rule 3 as to
the order imposing filing restrictions, Mr. Smith challenged the filing restrictions
in his opening brief. See Aplt. Opening Br. at 60-67. That brief was filed on
February 26, 2010, within sixty days of the order imposing the filing restrictions
and therefore timely under Fed. R. App. P. 4(a)(1)(B). Further, it complied with
all three requirements of Rule 3(c)(1). Therefore, we may treat it as the
functional equivalent of an NOA from the order imposing filing restrictions,
conferring jurisdiction on this court over that order. See Smith, 502 U.S.
at 244-48.
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2. Merits
Having established that we have jurisdiction to review the district court’s
underlying judgment and its order imposing filing restrictions, we now turn to
Mr. Smith’s appellate arguments. Our review of a district court’s order
dismissing an action under Fed. R. Civ. P. 12(b)(1) is de novo, Colo. Envtl. Coal.
v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004), and our review of the
imposition of filing restrictions is for an abuse of discretion, Tripati v. Beaman,
878 F.2d 351, 354 (10th Cir. 1989).
Regarding his first claim, Mr. Smith argues that impeachment is not the
sole means of removing Article III judges who no longer exhibit the “good
Behaviour” required for continued tenure under Article III of the Constitution.
Instead, he argues, the Ninth and Tenth Amendments work to reserve to the
people the right to remove such Article III judges. We disagree. Although the
Constitution itself does not expressly limit removal of Article III judges to
Congressional impeachment, the Supreme Court has taken that view. See
N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59 (1982)
(explaining that “[t]he ‘good Behaviour’ Clause guarantees that Art. III judges
shall enjoy life tenure, subject only to removal by impeachment”) (plurality
opinion); United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955) (stating
that “[Article III] courts are presided over by judges appointed for life, subject
only to removal by impeachment”). For those “alleging that a judge has engaged
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in conduct prejudicial to the effective and expeditious administration of the
business of the courts, or alleging that such judge is unable to discharge all the
duties of office by reason of mental or physical disability,” 28 U.S.C. § 351(a),
Congress has established a statutory mechanism for complaints of judicial
misconduct that can culminate in Congressional impeachment proceedings.
See 28 U.S.C. §§ 351-364.
Mr. Smith’s second claim fares no better than his first. Congress has by
statute conferred the power to prosecute crimes in the name of the United States
on the United States Attorney General and his delegates. See 28 U.S.C. §§ 516,
519. The long-standing view of the Supreme Court is that such power is
exclusive. See, e.g., United States v. Nixon, 418 U.S. 683, 693 (1974) (“the
Executive Branch has exclusive authority and absolute discretion to decide
whether to prosecute a case”) (emphasis added); id. at 694 (“Under the authority
of Art. II, [§] 2, Congress has vested in the Attorney General the power to
conduct the criminal litigation of the United States Government. 28 U.S.C.
[§] 516.”); The Confiscation Cases, 74 U.S. 454, 457 (1868) (“Public
prosecutions, until they come before the court to which they are returnable, are
within the exclusive direction of the district attorney . . . .”) (emphasis added).
Therefore, as the district court concluded, Mr. Smith has no right to initiate a
criminal prosecution in the name of the United States under the Ninth or Tenth
Amendments, or otherwise.
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Finally, Mr. Smith contends that the district court’s filing restrictions
violate his First Amendment right of access to the courts and his due process
rights, and he suggests that a finding of frivolousness is essential to the
imposition of filing restrictions. We have rejected these arguments. “[T]he right
of access to the courts is neither absolute nor unconditional, and there is no
constitutional right of access to the courts to prosecute an action that is frivolous
or malicious.” Tripati, 878 F.2d at 353 (citation omitted) (emphasis added).
Federal courts have “power under 28 U.S.C. § 1651(a) to enjoin litigants who
abuse the court system by harassing their opponents.” Id. at 352. Thus, federal
courts may “regulate the activities of abusive litigants by imposing carefully
tailored restrictions under the appropriate circumstances.” Id. (quotation
omitted). Although “[l]itigiousness alone will not support an injunction
restricting filing activities,” filing restrictions “are proper where a litigant’s
abusive and lengthy history is properly set forth,” id. at 353, the court provides
guidelines as to what the litigant “must do to obtain the court’s permission to file
an action,” and the litigant receives “notice and an opportunity to oppose the
court’s order before it is instituted,” id. at 354.
Here, the district court complied with all requirements for imposing filing
restrictions. It recounted Mr. Smith’s lengthy, abusive filing history, which we
have alluded to throughout this decision and discuss below in greater detail. The
court also provided Mr. Smith with pertinent guidelines for obtaining the court’s
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permission to file an action and with an opportunity to oppose the restrictions.
Although the district court did not consider the case before it to be frivolous, it
did not need to; abuse of the judicial process suffices. Indeed, having reviewed
Mr. Smith’s litigation history, we conclude that not only should the district
court’s filing restrictions be affirmed, but that a monetary sanction and filing
restrictions in this court are warranted, and we now turn to those.
III. Monetary Sanctions and Filing Restrictions
Mr. Smith has had nine pro se cases decided adversely in courts of this
circuit and the state of Colorado, each of which stemmed directly or indirectly
from the denial of his bar application. In Mullarkey I and II, he sued the
Colorado Supreme Court justices over that court’s denial of his bar application.
Unsuccessful, he then turned his sights on the constitutionality of unpublished
judicial decisions issued by the Colorado Supreme Court and this court,
specifically including our decision in Mullarkey I. See Smith v. U.S. Court of
Appeals for the Tenth Circuit, 484 F.3d 1281, 1284 (10th Cir. 2007) (consolidated
disposition of appeals in two cases). Again unsuccessful, he filed Bender, suing
the Justices of the Colorado Supreme Court along with the attorney general and
an assistant attorney general of the State of Colorado. The dismissal of that case
was affirmed on the basis of sovereign and qualified immunity, the
Rooker-Feldman doctrine, and preclusion doctrine. See Bender, 350 F. App’x
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at 192-94. As discussed above, Mr. Smith also filed Krieger and Anderson,
largely targeting judges who had issued rulings adverse to him in the prior cases.
The same district judge who presided over Anderson has also dismissed two
other cases Mr. Smith filed, and he has appealed one of those. The district
court’s decisions indicate Mr. Smith again challenged the process that the
Colorado Supreme Court used in denying his admission to the Colorado bar and
has continued his pattern of suing judges who have ruled against him. See Smith
v. Arguello, No. 09-cv-02589-PAB, 2010 WL 1781937, at *1 (D. Colo. May 4,
2010), appeal docketed, No. 10-1280 (10th Cir. July 6, 2010); Smith v. Eid,
No. 10-cv-00078-PAB, 2010 WL 1791549, at *1-*2 (D. Colo. May 4, 2010). 7
Not only has Mr. Smith persisted down a futile path, the tenor of his court
filings has turned increasingly abusive. We made note of this in Bender and
warned Mr. Smith of the consequences:
Mr. Smith’s opening and reply briefs are littered with frivolous and
irrelevant arguments and tirades. His briefs also contain scurrilous
allegations and personal attacks regarding alleged wrongdoing by the
named Justices of the Colorado Supreme Court and the district
judge. . . . We admonish and warn Mr. Smith that if he files future
appeals in this court containing similar unsupported claims,
allegations, or personal attacks, we will not hesitate to impose hefty
sanctions and filing restrictions in order to curb his abusive and
disrespectful litigation practices.
7
According to the district court’s decision in Arguello, Mr. Smith also
claimed that opposing counsel in prior suits violated his constitutional rights by
seeking sanctions against him, and he challenged “his inclusion on a ‘threat list’
which prevents him from entering courthouses without ‘harassment’ by U.S.
Marshals.” Arguello, No. 09-cv-02589-PAB, 2010 WL 1781937, at *1.
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Bender, 350 F. App’x at 195. Mr. Smith did not heed our warning, and we
conclude that it is time to impose those “hefty sanctions and filing restrictions”
we warned him about in Bender.
“This court has the . . . inherent power to impose sanctions that are
necessary to regulate the docket, promote judicial efficiency, and . . . to deter
frivolous filings.” Christensen v. Ward, 916 F.2d 1462, 1469 (10th Cir. 1990).
Thus, we have ordered pro se appellants to make a monetary payment directly to
this court “as a limited contribution to the United States for the cost and expenses
of this action.” Id. (imposing $500 sanction); see also Van Sickle, 791 F.2d
at 1437 (imposing $1,500 sanction). Mr. Smith’s appeal in Krieger is frivolous,
and his appeal in Anderson borders on the frivolous. In both cases, and despite
our warning in Bender, he has persisted in making unsupported allegations of
judicial corruption, baseless claims, and personal attacks on the judges of the
district court, this court, and several Justices of the United States Supreme Court
and the Colorado Supreme Court. His briefs contain vulgar language, threats of
lethal violence against judges rendering decisions he considers tyrannical, and
tirades on a number of irrelevant topics. Accordingly, we order Mr. Smith to
show cause within ten days of the entry of this Order and Judgment why he
should not be ordered to pay $3,000 to the Clerk of the United States Court of
Appeals for the Tenth Circuit as a limited contribution to the United States for the
costs and expenses of these appeals. See Sain v. Snyder, Nos. 09-2153, 09-2175,
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2010 WL 1006589 (10th Cir. Mar. 19, 2010) (sanctioning pro se appellant $3,000
under reasoning of Christensen and Van Sickle), petition for cert. filed,
78 U.S.L.W. 3653 (U.S. Apr. 14, 2010) (No. 09-1332). The response shall not
exceed five pages. If the response is not received by the Clerk within the
specified ten days, the sanction will be imposed.
Finally, as noted above, federal courts have the inherent power to impose
carefully tailored filing restrictions. Tripati, 878 F.2d at 352. Based on
Mr. Smith’s “pattern of litigation activity[,] which is manifestly abusive,”
Winslow v. Hunter (In Re Winslow), 17 F.3d 314, 315 (10th Cir. 1994), we now
impose filing restrictions. Given the contemptuousness and utter lack of
propriety evidenced in his appellate filings, we do not limit the restrictions to any
specific subject matter. Thus, in order to proceed pro se in this court in any
appeal or original proceeding, Mr. Smith must provide this court with:
1. A list of all appeals or original proceedings filed, whether currently
pending or previously filed with this court, including the name, number, and
citation, if applicable, of each case, and the current status or disposition of each
appeal or original proceeding; and
2. A notarized affidavit, in proper legal form, that recites the issues he
seeks to present, including a short discussion of the legal basis asserted therefor,
and describing with particularity the order being challenged. The affidavit must
also certify, to the best of Mr. Smith’s knowledge, that the legal arguments being
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raised are not frivolous or made in bad faith; that they are warranted by existing
law or a good faith argument for the extension, modification, or reversal of
existing law; that the appeal or original proceeding is not interposed for any
improper purpose, such as delay or to needlessly increase the cost of litigation;
and that he will comply with all appellate and local rules of this court.
These filings shall be submitted to the Clerk of the court, who shall forward
them for review to the Chief Judge or her designee, to determine whether to
permit Mr. Smith to proceed with a pro se appeal or original proceeding. Without
such authorization, the matter will be dismissed. If the Chief Judge or her
designee authorizes a pro se appeal or original proceeding to proceed, an order
shall be entered indicating that the matter shall proceed in accordance with the
Federal Rules of Appellate Procedure and the Tenth Circuit Rules.
In addition, Mr. Smith shall not submit any further pleadings or motions in
this court not specifically authorized by the Federal Rules of Appellate Procedure.
In the event that such a motion or pleading is submitted, the Clerk of the court
may return it to Mr. Smith unfiled.
Mr. Smith shall have ten days from the date of this order and judgment to
file written objections, limited to fifteen pages, to these proposed filing
restrictions. If he does not file timely objections, the filing restrictions will take
effect twenty days from the entry of this order and judgment. If he does file
timely objections, these filing restrictions will not take effect unless the court
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overrules his objections, in which case these filing restrictions shall apply to any
filing with this court after that ruling. Although Mr. Smith must comply with the
Federal Rules of Appellate Procedure and the Tenth Circuit Rules in Smith v.
Arguello, No. 10-1280, the filing restrictions shall have no other application to
that matter.
Conclusion
For the foregoing reasons, we AFFIRM the district court’s denial of
Mr. Smith’s Post-Judgment Motion in No. 09-1503. In No. 10-1012, we AFFIRM
the district court’s judgment and its order imposing filing restrictions. Further,
we ORDER Mr. Smith to show cause why he should not be sanctioned and why
filing restrictions should not be imposed, as set forth herein.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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