Smith v. United States Court of Appeals, for the Tenth Circuit

F I L E D
United States Court of Appeals
Tenth Circuit

May 8, 2007
PUBLISH
Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court

FO R TH E TENTH CIRCUIT

K EN N ETH L. SM ITH ,

Plaintiff-Appellant,

v. No. 04-1468

U N ITED STA TES C OU RT O F
APPEALS, FOR TH E TENTH
CIRCUIT; THE JUDICIAL COUNCIL
FOR THE UNITED STATES COURT
OF A PPEALS FOR TH E TENTH
CIRCUIT; EDW ARD W .
NOTTINGHAM , District Judge, in
his personal capacity only;
HON ORABLE M ARY BECK
BRISCOE, in personal capacity only;
H O N O RA BLE STEPH EN H .
ANDERSON, in personal capacity
only; HO NO RA BLE JAM ES E.
BA RRETT; HO NO RA BLE
H. JEFFR EY 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.
_____________________________
 K EN N ETH L. SM ITH ,

Plaintiff-Appellant,
No. 04-1470
v.

M ARY J. M ULLARKEY; REBECCA
LOV E KO UR LIS; M ICH AEL L.
BENDER; GREGORY J. HOBBS, JR.;
ALEX J. M ARTINEZ; NATHAN B.
COATS; NANCY E. RICE, Hons. in
their official capacities as Justices
of the Colorado Supreme Court,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Colorado
(D.C. Nos. 04-RB-1222(OES) and 04-RB-1223 (OES))

Submitted on the Briefs: *

Kenneth L. Smith, pro se

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

Before H OL LOW A Y, SE YM OUR, and BALDOCK , Circuit Judges.

SE YM O UR, Circuit Judge.

*
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.

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 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In particular, M r. Smith objects to the resolution of cases by non-precedential

unpublished decisions, a practice permitted by procedural rules issued and

enforced by the C olorado courts and by this circuit. 1 As explained below, we

agree with the district court that neither of the cases under review can properly

proceed in federal district court. W e therefore affirm.

1
Because the Tenth Circuit Court of Appeals, several circuit judges, and a
district judge in the circuit are named defendants in the action challenging this
court’s publication practice, plaintiff has moved for recusal of all Tenth Circuit
judges and designation of a hearing panel from another circuit. Given “there are
no pertinent, particularized allegations of bias,” w e apply our general rule that,
notwithstanding the inclusion of Tenth Circuit judges in the caption, “neither this
court nor this panel . . . is disqualified from hearing and resolving this case.”
Switzer v. Coan, 261 F.3d 985, 987 n.1 (10th Cir. 2001) (brackets, quotation
marks and citations omitted). Indeed, it seems peculiarly unfitting for one
circuit’s procedural rules and practices to be governed by judges from another
circuit. Such matters are, of course, subject to the judgment of the Supreme
Court, which has w ide-ranging authority through both case-specific review and its
general supervisory power “to intervene to protect the integrity of the federal
system.” 32 Am. Jur. 2d Federal Courts § 473 (discussing authority regarding
Supreme Court’s supervisory power).

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 I

Background

M r. 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. W hen he was ordered to submit to a mental status

examination by the Board of Law Examiners’ H earing Panel, however, he refused.

Primarily because M r. 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 M r. Smith’s application, the

Hearing Panel’s report and recommendation, M r. 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. M r. 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. 2 On appeal, this court affirmed in an unpublished

Order and Judgment, see Smith v. M ullarkey, No. 02-1481, 2003 W L 21350579

(10th Cir. June 11, 2003), and denied M r. Smith’s request for a rehearing.

2
The Rooker-Feldman doctrine holds that under 28 U.S.C. § 1257, the only
federal court with jurisdiction to review state court judgments is the Supreme
Court. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283 (2005)
(discussing Dist. of Columbia Ct. of App. v. Feldman, 460 U.S. 462, 482 (1983),
and Rooker v. Fid. Trust Co., 263 U.S. 413, 414-16 (1923)).

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M r. Smith unsuccessfully sought a writ of mandamus and/or prohibition from the

Supreme Court.

In the meantime, M r. 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. See Colo. 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. M r. 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 “w herein [the C olorado] 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.

(Appeal No. 04-1470), vol. I, doc. 1 at 2. Specifically, he alleges the state trial

court failed to follow controlling precedent, and the state’s non-publication rules

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enable an affirmance of that decision without legal accountability. 3 He argues the

“continued enforcement and operation of these rules” would deny him various

constitutional protections. Id. at 7.

In a separate action, M r. Smith made similar allegations regarding this

circuit’s use of non-precedential decisions, citing our unpublished resolution of

his first federal suit. See Rec. (A ppeal N o. 04-1468), vol. I, doc. 1 at 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. W e address each of his claims

in turn.

II

Challenge to State Court Non-Publication Practice

The district court invoked Article III and held that M r. 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

3
M r. Smith does not claim the state practice has prevented him from relying
on any unpublished decisions supporting a favorable result in his case, which was
the basis for a similar challenge to a federal non-publication rule in Anastasoff v.
United States, 223 F.3d 898, vacated as moot, 235 F.3d 1054 (8th Cir. 2000).

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of that w ill likely be redressed by a favorable decision in the case. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The district court concluded

that M r. Smith could not relate the practice he challenges to any cognizable injury

to himself. In its view , M r. 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. (Appeal

No. 04-1470), vol. I, doc. 8 at 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). M r. 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.

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Id. at 1155 (quotation marks, ellipses and citations omitted). M r. Smith cannot

make this required showing because the manner of resolution of his future appeals

is entirely speculative.

M r. Smith advances tw o alternative arguments for standing that we briefly

address. Invoking the First Amendment and citing Broadrick v. Oklahoma,

413 U.S. 601 (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 (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.

M r. 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 otherw ise 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

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were permissible here. See Nova Health Sys., 416 F.3d at 1155 (“[A]n injury in

fact must be actual or imminent, not conjectural or hypothetical.”). M r. Smith has

not cited any authority applying Broadrick’s First A mendment standing analysis

in similar circumstances, and we decline to take that step.

M r. 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 (1973). W hile 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 M r. Smith lacked

standing to challenge his mere anticipation of being affected by the state appellate

courts’ practice of issuing unpublished decisions. Indeed, we note that

M r. Smith’s state appeal was eventually heard by the C olorado Supreme Court

and resolved by published decision. Smith v. M ullarkey, 121 P.3d 890 (Colo.

2005) (en banc), cert. denied, 126 S. Ct. 1792 (2006). W e affirm the district

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court’s order dismissing M r. Smith’s challenge to Colorado’s non-publication

practice.

III

Challenge to Federal Non-publication Practice

W hen M r. Smith filed suit against the federal defendants, he had no

litigation pending in the Tenth Circuit. The focus of his challenge to this court’s

use of unpublished decisions was the unfavorable disposition, by unpublished

order and judgment, of his prior appeal regarding the constitutionality of the state

bar admission process. The proper means for objecting to the non-publication of

that decision would have been by petition for rehearing in this court and/or

petition for certiorari review by the Supreme Court. 4 Instead, he has sought our

review of this prior action by generating an entirely new stream of litigation.

Although it is possible that this present case could ultimately result in an

unpublished decision, this mere possibility is too speculative to support

jurisdiction under A rticle III. Nova Health Sys., 416 F.3d at 1155; Essence, Inc.

4
In fact, M r. Smith filed a petition for rehearing in which he argued that this
court had deviated from precedent in its decision and then stated, in passing, that
“he ha[d] a right to insist that it do so in a published opinion with precedential
value,” Smith v. M ullarkey, No. 02-1481, Petition for Rehearing, at 1. He also
noted the unpublished nature of this court’s decision in the petition for mandamus
and/or prohibition he filed in the Supreme Court. In neither instance, however,
did he argue that the use of unpublished decisions w as unconstitutional.

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v. City of Fed. Heights, 285 F.3d 1272, 1282 (10th Cir. 2002); Hutchinson v.

Pfeil, 211 F.3d 515, 520-21 (10th Cir. 2000). Thus, we conclude, neither a

collateral challenge relating to M r. Smith’s prior unsuccessful appeal, nor an

anticipatory challenge relating to a potential unpublished disposition in this

litigation suffices to establish an actual injury that would permit review and

redress. Accordingly, the district court properly dismissed M r. Smith’s claims for

lack of standing.

W e point out that the alleged injury caused by our circuit publication rules

need not consistently evade review. Other circuits have addressed the validity of

their non-publication rules in cases where the question of the rule’s validity arose

in the context of litigation presently before the court. For example, courts have

considered the constitutionality of publication rules where an unpublished

decision relevant to the merits of an appeal was pressed by a litigant who insisted

it be deemed binding precedent contrary to the circuit rule, see Symbol Techs.,

Inc. v. Lemelson M ed., 277 F.3d 1361, 1366-67 (Fed. Cir. 2002), or was opposed

by a litigant who insisted it be disregarded pursuant to the circuit rule, see

Anastasoff v. United States, 223 F.3d 898, 899 (8th Cir. 2000), vacated as moot

on reh’g en banc, 235 F.3d 1054 (8th Cir. 2000). Such rules have also been

scrutinized where an attorney violated a circuit rule prohibiting citation to

non-precedential decisions and sought to avoid proposed disciplinary action by

challenging the validity of the rule. See Hart v. M assanari, 266 F.3d 1155,

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1159-60 (9th Cir. 2001). As demonstrated in these cases, a circuit

non-publication rule may be challenged in the circuit court when application of

the rule in a live proceeding before that court directly implicates the interest of a

party or counsel in that proceeding. Such is not the case here.

IV

M andam us Relief against State Trial Judge

The state trial court held it lacked jurisdiction to consider constitutional

claims stemming from the denial of M r. Smith’s admission to the bar because

jurisdiction to hear such claims was lodged exclusively with the Colorado

Supreme Court. M r. Smith sought mandamus relief from the federal district court

to compel the state trial judge’s consideration of his constitutional claims. The

district court summarily rejected his claim for lack of jurisdiction under Olson v.

Hart, 965 F.2d 940, 942 (10th Cir. 1992), which held that “[f]ederal courts have

no authority to issue a writ of mandamus to a state judge.” Although he

acknowledges this limitation on the authority of federal courts, M r. Smith argues

the district court erred in not construing his mandamus request as a claim for

injunctive relief under 42 U.S.C. § 1983. See Olson, 965 F.2d at 943 (“W e may

also construe a pro se petition for a writ of mandamus as an action for . . .

declaratory relief under 42 U.S.C. § 1983.”). W e noted in Olson, however, that

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“section 1983 injunctive relief is available” only if “appellant can show he was

deprived of a federal right.” Id.

In Olson, the plaintiff alleged the state court judge, out of spite, refused to

sign a journal entry necessary to the exercise of his right to appeal. We held, if

the allegation were true, the judge’s arbitrary and capricious action would violate

the plaintiff’s due process rights and present a cognizable § 1983 claim. Id.

Here, M r. Smith has requested mandamus relief claiming that the state trial court

erred by limiting its jurisdiction in accordance with state law precedent, see

People v. Buckles, 453 P.2d 404 (Colo. 1968); Colo. Sup. Ct. Grievance Comm. v.

Dist. Ct., 850 P.2d 150, 154 (Colo. 1993), and failing to consider claims that his

denial of admission to the bar violated his constitutional rights. Although he

contends the state court has refused to entertain his federal claims in violation of

the Supremacy Clause, we note that the state courts have not shut their doors to

federal claims but have simply restricted challenges to individual bar admission

decisions to Colorado Supreme Court jurisdiction. M r. Smith directs us to no

precedent establishing that Colorado violated his federal rights by vesting

exclusive jurisdiction of the regulation of lawyers in its Supreme Court.

Accordingly, we decline to recast his request for mandamus as a § 1983 claim and

we adhere to our general prohibition on issuing a writ of mandamus to a state

court judge.

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 Based on the foregoing analysis, we hold that the district court properly

dismissed all of the claims asserted in the actions consolidated in this appeal. 5

Finally, we D EN Y the several motions that remain pending because none of them

affects our analysis of either case or w arrants relief in any collateral respect.

W e A FFIR M the judgments of the district court.

5
There are vague and conclusory references in M r. Smith’s briefing to an
asserted tort liability of defendant Salazar, former Colorado Attorney General.
Neither these references nor the underlying pleadings in the case remotely
establish the existence of a cognizable claim.

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