Vaughn v. City of Flint, 83-1368

• Decision Date: 23 January 1985
• Docket Number: No. 83-1368,83-1368
• Parties: Mendell VAUGHN, et al., Plaintiffs, Julius R. Smith, Plaintiff-Appellant, v. The CITY OF FLINT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1160

752 F.2d 1160

Mendell VAUGHN, et al., Plaintiffs, Julius R. Smith, Plaintiff-Appellant, v. The CITY OF FLINT, Defendant-Appellee.

No. 83-1368.

United States Court of Appeals,

Sixth Circuit.

Submitted Nov. 14, 1984.

Decided Jan. 23, 1985.

Julius R. Smith, Flint, Mich., for plaintiff-appellant.

Valdemar L. Washington, Jerome O'Rourke, Flint, Mich., for defendant-appellee.

Before LIVELY, Chief Judge; ENGEL, Circuit Judge; and WEICK, Senior Circuit Judge.

LIVELY, Chief Judge.

This is an appeal by a non-party from a summary adjudication of criminal contempt. The appellant filed a pro se brief in this court and the case was submitted without oral argument. The attorneys who represented the parties in the district court, and who made the motion that appellant be found in contempt, declined to file briefs or appear in this court.

I.

The appellant, Julius R. Smith, is a former councilman of the City of Flint, Michigan. He is not an attorney. During his tenure on the City Council the district court entered a consent decree in an action involving the purchase of real estate by the City from residents of an area known as Oak Park. The Oak Park residents, plaintiffs in that action in which the City of Flint was defendant, were represented by attorneys, Valdemar Washington and Gregory Gibbs. Sometime after entry of the consent decree a number of Oak Park residents concluded that the City was not following the terms of the decree in acquiring property and sought the assistance of Smith, their former councilman.

On August 5, 1982 Smith filed a "Complaint and Request for Temporary restraining order and declaratory judgment" in the district court. This pleading was signed by Smith, "Representing residents," and bore the case number and style of the action in which the consent decree had been entered. At the same time Smith filed a written entry of appearance with the clerk of the district court. On August 26 attorneys Washington and Gibbs filed a motion to "dismiss" all pleadings and papers filed by Smith and to enjoin him from the further practice of law. The motion was accompanied by a notice of hearing and brief. On August 31 Smith filed new pleadings and a notice of hearing on a motion for a temporary restraining order. The new papers, though restructured, made the same basic claim as the ones filed previously. The only substantial change was that two of the Oak Park residents, plaintiffs in the original action, signed this complaint and notice as parties proceeding without representation.

A hearing was set on all motions for September 9 and the clerk notified Smith along with all the attorneys who had appeared in the original action. When the court opened the September 9 hearing by asking if the parties were ready, after the attorneys for the plaintiffs and the defendant identified themselves, Smith announced: "We are ready also. I am here representing the class that has filed." Attorney Washington then requested the court to strike the pleadings prepared by Smith in accordance with the previous motion. In addition, he asked the court to find Smith in contempt of court for engaging in unauthorized practice of law contrary to a Michigan statute. The following colloquy between the court and Smith then took place:

"THE COURT: Well, Mr. Smith, are you an attorney?

"MR. SMITH: No, sir, I am not. I have never purported to be an attorney.

"THE COURT: That is not what I asked you.

"MR. SMITH: No, sir. I am not an attorney, sir.

"THE COURT: Are you a party to this litigation?

"MR. SMITH: I was involved in the--

"THE COURT: (Interposing) Are you a party?

"MR. SMITH: I was a member, Your Honor, of the--

"THE COURT: (Interposing) I say, are you a party to this lawsuit?

"MR. SMITH: No, sir. I am not a party to the suit, sir.

"THE COURT: All right. Well, by what authority do you come before this court saying you represent some of the parties to this lawsuit?

"MR. SMITH: Actually, I filed a pleading with the Court, only as a member of the group that met to ask the Court to consider the grievance.

"THE COURT: What do you mean by that; a member of what group?

"MR. SMITH: The group here that is sitting in the court.

"THE COURT: No. I am asking--Mr. Smith is the only one I am addressing.

"MR. SMITH: I never filed as a plaintiff.

"THE COURT: What?

"MR. SMITH: I never filed papers in this court as any more than a witness.

"THE COURT: You can't file papers in the court.

"MR. SMITH: Yes. I brought them here as a witness to the proceedings. As you might recall, I was there in the Flint Court when you made the ruling. I was also a member of the City Council.

"THE COURT: I don't recall exactly because there were quite a number of people present at that time.

"MR. SMITH: Yes, sir.

"THE COURT: But I think you do look somewhat familiar and I think you were probably present but that doesn't give you any standing to represent anyone in the case, merely because you attended some court proceedings.

"MR. SMITH: I think by the pleadings, sir, you find that I am not represenging [sic] myself as a member of the class or as an attorney, only as an agent who was with the people when we made a decision to address the Court and we have not said that we were attorneys or anything more than a witness to this proceeding.

"I was also, as you might recall, a City Councilman who was involved in the decision that was made in this case and it was on my word as well as the attorney's words that the suit was filed.

"THE COURT: Well, that is another matter now. That isn't before me now. And I do have here--there have been filed in this case a document entitled Complaint and Request for Temporary Restraining Order and Declaratory Judgment. Now, this bears your signature, I presume. Is the name Julius R. Smith who signed this document?

"MR. SMITH: Yes. May I attach it--

"THE COURT: (Interposing) Just a minute, please. Let me address you. Then I will call you if I need to have you say anything.

"MR. SMITH: Thank you.

"THE COURT: This document purports to bear your signature. Does it; is it your signature?

"MR. SMITH: I don't know which one you are looking at, sir.

"THE COURT: Well, I am looking at the document I just referred to, Complaint and Request for Temporary Restraining Order and Declaratory Judgment. It was filed from this court on August 5, 1982. There is a signature on it. Mr. Smith, is that signature-- --come up here, will you please?

"MR. SMITH: Yes, sir.

"THE CLERK: Is that signature yours?

"MR. SMITH: Yes, sir.

"THE COURT: All right, now, that is signed over the statement, representing residents and then it bears an address, I presume as your address, 522 Green, Flint, Michigan. Is that right?

"MR. SMITH: Yes, sir.

"THE COURT: Now, there has also been filed in this case an amendment. I don't have the document in front of me but in the docket sheet it shows that you entered an appearance filed in this court as a representative of Oak Park residents. Did you?

"MR. SMITH: Sir, I don't know which one you are speaking about now.

"THE COURT: I am speaking about the appearance that you-- --I am asking you if you did file an appearance in this case.

"MR. SMITH: I did appear but I think that the pleading that was filed was on behalf of other plaintiffs, not myself. I just filed it for them.

"THE COURT: Well, you signed an appearance, did you, and filed it in this court?

"MR. SMITH: I believe I did, sir, on the first appearance.

"THE COURT: That was August 5.

"MR. SMITH: August 5, yes, sir.

"THE COURT: Well, by what authority do you do this or what legal authority do you have for filing an appearance in this court on behalf of any party to this lawsuit?

"MR. SMITH: Well, I filed the original proceeding subsequent to a meeting that was held by the residents, only as a party to the meeting. Not as a party to the suit. It was decided by the residents that they wanted to file because they were told by the attorneys and by the Court that they could file because you had a continuing jurisdiction in the case and it was not necessary that they had to have an attorney to do that, that any member of the class could.

"THE COURT: By what authority do you say that, that they don't have to have an attorney to represent them?

"MR. SMITH: The attorney, Valdemar Washington, is supposed to be representing these people and he has stated this at the City Council meeting, because the people along with myself did go to the City Council meeting and ask them to hear the grievance prior to coming to this court, and at that time he informed the people that you had a continuing jurisdiction.

"THE COURT: Now you are going to try to get into the merits of what took place or proceeding that took place prior to the entry of the consent judgment, are you?

"MR. SMITH: No, no. This was after the consent judgment, sir. This was just a few days before we filed the Complaint.

"MR. WASHINGTON: Your Honor, if I may address the Court.

"THE COURT: Sit down in back of the attorney. That is reserved inside the railing for parties and their attorneys.

"MR. SMITH: Thank you."

Attorney Washington then stated that he had informed the dissatisfied Oak Park residents that he represented the entire class and could not represent individual residents who felt aggrieved. He said he had advised those class members who were dissatisfied to seek competent counsel to represent them and file a motion in the district court "seeking its direction." Washington thereafter renewed the motion to strike the pleadings and hold Smith in contempt.

In response to attorney Washington's motion the district court then found that Smith had engaged in the unauthorized practice of law by preparing and filing pleadings on behalf of others and by his appearance at the hearing. After noting Michigan statutes governing the practice of law the court read into the record its local rule 12(f):

Any person who, while not duly admitted to the Bar of this Court, or during his...