Smith v. U.S. Court of Appeals, Tenth Circuit

• Decision Date: 08 May 2007
• Docket Number: No. 04-1468.,No. 04-1470.,04-1468.,04-1470.
• Citation: Smith v. U.S. Court of Appeals, Tenth Circuit, 484 F.3d 1281 (10th Cir. 2007)
• Parties: Kenneth L. SMITH, Plaintiff-Appellant, v. UNITED STATES COURT OF APPEALS, FOR THE TENTH CIRCUIT; the Judicial Council for the United States Court of Appeals for The Tenth Circuit; Edward W. Nottingham, District Judge, in his personal capacity only; Honorable Mary Beck Briscoe, in personal capacity only; Honorable Stephen H. Anderson, in personal capacity only; Honorable James E. Barrett; Honorable H. Jeffrey Bayless, in personal capacity and in his representative capacity as the chief judge of the District Court, City and County of Denver; Ken Salazar, Honorable, in his personal capacity only, and John Does 1-99, Defendants-Appellees. Kenneth L. Smith, Plaintiff-Appellant, v. Mary J. Mullarkey; Rebecca Love Kourlis; Michael L. Bender; Gregory J. Hobbs, Jr.; Alex J. Martinez; Nathan B. Coats; Nancy E. Rice, Hons. in their official capacities as Justices of the Colorado Supreme Court, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

484 F.3d 1281

Kenneth L. SMITH, Plaintiff-Appellant, v.UNITED STATES COURT OF APPEALS, FOR THE TENTH CIRCUIT; the Judicial Council for the United States Court of Appeals for The Tenth Circuit; Edward W. Nottingham, District Judge, in his personal capacity only; Honorable Mary Beck Briscoe, in personal capacity only; Honorable Stephen H. Anderson, in personal capacity only; Honorable James E. Barrett; Honorable H. Jeffrey Bayless, in personal capacity and in his representative capacity as the chief judge of the District Court, City and County of Denver; Ken Salazar, Honorable, in his personal capacity only, and John Does 1-99, Defendants-Appellees.

Kenneth L. Smith, Plaintiff-Appellant, v.Mary J. Mullarkey; Rebecca Love Kourlis; Michael L. Bender; Gregory J. Hobbs, Jr.; Alex J. Martinez; Nathan B. Coats; Nancy E. Rice, Hons. in their official capacities as Justices of the Colorado Supreme Court, Defendants-Appellees.

No. 04-1468.

No. 04-1470.

United States Court of Appeals, Tenth Circuit.

May 8, 2007.

Submitted on the Briefs:^*

Kenneth L. Smith, pro se.

John W. Suthers, Attorney General; and Friedrick C. Haines, First Assistant Attorney General, State of Colorado, Denver, CO, for Defendants-Appellees.

Before HOLLOWAY, SEYMOUR, and BALDOCK, Circuit Judges.

SEYMOUR, Circuit Judge.

Kenneth L. Smith appeals the district court's dismissal of two separate lawsuits stemming from the denial of his application for admission to the Colorado bar.The present litigation focuses on asserted deficiencies he alleges existed in the judicial process provided to him in his previous legal challenges.In particular, Mr. Smith objects to the resolution of cases by non-precedential unpublished decisions, a practice permitted by procedural rules issued and enforced by the Colorado courts and by this circuit.¹As explained below, we agree with the district court that neither of the cases under review can properly proceed in federal district court.We therefore affirm.

IBackground

Mr. Smith graduated from law school, passed the state bar examination, and passed the professional ethics examination, all prerequisites to obtaining a license to practice law in Colorado.When he was ordered to submit to a mental status examination by the Board of Law Examiners' Hearing Panel, however, he refused.Primarily because Mr. Smith refused to submit to that examination, the Hearing Panel recommended to the Colorado Supreme Court that his application be denied.After consideration of the record, including Mr. Smith's application, the Hearing Panel's report and recommendation, Mr. Smith's exceptions to that report, and the responses filed by the Board of Law Examiners, the Colorado Supreme Court denied the application for admission to the State Bar.Mr. Smith then filed an action in federal district court challenging the admission process on constitutional grounds.That action was dismissed pursuant to the Rooker-Feldman doctrine.²On appeal, this court affirmed in an unpublished Order and Judgment, seeSmith v. Mullarkey,67 Fed.Appx. 535(10th Cir.2003), and denied Mr. Smith's request for a rehearing.Mr. Smith unsuccessfully sought a writ of mandamus and/or prohibition from the Supreme Court.

In the meantime, Mr. Smith challenged the bar admission process in state court on state and federal (42 U.S.C. § 1983) grounds.The state trial court summarily dismissed for lack of jurisdiction, citing the state supreme court's exclusive authority over matters pertaining to bar admissions.SeeColo. Sup.Ct. Grievance Comm. v. Dist. Ct.,850 P.2d 150, 152(Colo.1993)(en banc).The state trial court did not mention § 1983 or address whether the invoked jurisdictional limitation was a valid basis for denying enforcement of the federal rights involved.Mr. Smith appealed this decision to the Colorado Court of Appeals.

He subsequently filed the two actions currently before us.In the first, he sued the justices of the Colorado Supreme Court, challenging the state court's use of non-precedential unpublished decisions to dispose of appeals.He contends this creates a system "wherein [the Colorado]appellate courts are free to affirm irregular (and even flagrantly unconstitutional) decisions in unpublished opinions-while having no effect upon [the state's]`official' published law."Rec. (AppealNo. 04-1470), vol.I, doc. 1at 2.Specifically, he alleges the state trial court failed to follow controlling precedent, and the state's non-publication rules enable an affirmance of that decision without legal accountability.³He argues the "continued enforcement and operation of these rules" would deny him various constitutional protections.Id. at 7.

In a separate action, Mr. Smith made similar allegations regarding this circuit's use of non-precedential decisions, citing our unpublished resolution of his first federal suit.SeeRec. (AppealNo. 04-1468), vol.I, doc. 1at 2-4, 6-9.He contends this practice violates the same rights he invoked in his challenge to the state practice, as well as the International Covenant on Civil and Political Rights.In addition to seeking relief with respect to this court's rules, he requested a writ of mandamus ordering the state trial judge to address the merits of his challenge to the state bar admission process.We address each of his claims in turn.

IIChallenge to State Court Non-Publication Practice

The district court invoked Article III and held that Mr. Smith lacked standing to challenge the state's non-publication practice.The fundamental requirements of standing are an injury in fact caused by the conduct complained of that will likely be redressed by a favorable decision in the case.Lujan v. Defenders of Wildlife,504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351(1992).The district court concluded that Mr. Smith could not relate the practice he challenges to any cognizable injury to himself.In its view, Mr. Smith "ha[d] alleged nothing more than an interest in the problem concerning the defendants' rules and practices [on publication]," and "[t]hat interest, unaccompanied by a showing that the application of the rule or practice has somehow personally and actually harmed the plaintiff, cannot alone constitute the injury-in-fact contemplated by the standing doctrine."Rec. (AppealNo. 04-1470), vol.I, doc. 8at 7.

"Standing is determined as of the time the action is brought."Nova Health Sys. v. Gandy,416 F.3d 1149, 1154(10th Cir.2005).Mr. Smith had just taken his state appeal when he filed this action.He was in no position to challenge the adequacy of state appellate review in cases culminating in unpublished opinions unless he could show that he would in fact receive such review from the state court of appeals(and from the state supreme court as well, if it took the case on certiorari).As we have explained,

an injury in fact must be actual or imminent, not conjectural or hypothetical.Allegations of possible future injury do not satisfy the requirements of Art[icle] III.A threatened injury must be certainly impending to constitute injury in fact.An Article III injury must be more than a possibility.The threat of injury must be both real and immediate.

Id. at 1155(quotation marks, ellipses and citations omitted).Mr. Smith cannot make this required showing because the manner of resolution of his future appeals is entirely speculative.

Mr. Smith advances two alternative arguments for standing that we briefly address.Invoking the First Amendment and citing Broadrick v. Oklahoma,413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830(1973), he insists every citizen has standing to challenge judicial practices that render the law less certain, based on the chilling effect such uncertainty has on everyone's exercise of free speech rights.Broadrick recognized an exception to the traditional standing requirement of injury personal to the litigant when the litigant challenges a "statute[]attempting to restrict or burden the exercise of First Amendment rights,"id. at 611, 93 S.Ct. 2908(emphasis added), permitting in those circumstances the assertion of a chilling effect on others' constitutionally protected speech to serve as a redressable injury.But the practice at issue here is not directed at the exercise of First Amendment rights.

Mr. Smith contends the uncertainty produced by the use of non-precedential decisions could indirectly affect the exercise of First Amendment rights, asserting one might curtail speech for fear that subsequent litigation will result in an unpublished decision denying constitutional protection in a manner wildly inconsistent with what would have otherwise been decided in a published opinion.That contention is so speculative and riddled with assumptions that it cannot serve as the basis for standing even if the consideration of third-person injury were permissible here.SeeNova Health Sys.,416 F.3d at 1155("[A]n injury in fact must be actual or imminent, not conjectural or hypothetical.").Mr. Smith has not cited any authority applying Broadrick'sFirst Amendment standing analysis in similar circumstances, and we decline to take that step.

Mr. Smith also asks us to rely on the principle typically invoked in cases involving mootness that a dispute "capable of repetition, but evading review" can be heard despite the lack of a presently justiciable case or controversy.See, e.g., Roe v. Wade,410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147(1973).While the state courts' ongoing practice certainly satisfies the repetition requirement, there is no reason to think that the practice must evade review.If the state court of appeals decides a case by unpublished opinion, the losing party can object by way of rehearing and/or certiorari review to the state supreme court, whose own practice in this regard may be reviewed by way of rehearing and/or certiorari review by the United States Supreme Court.

In sum, the district court correctly concluded that Mr. Smith...