JUDGMENT DAY

DENVER ATTORNEY DAVID L. SMITH HAS MADE LIFE A LIVING HELL FOR HIS ADVERSARIES. NOW HE'S FEELING THE HEAT HIMSELF.OUT OF ORDER DAVID L. SMITH SAYS COLORADO'S FEDERAL JUDGES ARE OUT TO GET HIM. HE'S RIGHT.

One such underdog is James Edward Qualls, a bus driver fired from his job with the Regional Transportation District in September 1989. According to court records, Qualls was discharged after getting into an altercation with a bus passenger outside the Northglenn Mall. Qualls allegedly brandished a knife and threatened to slice off the man's testicles.

Both the EEOC and a federal labor arbitrator found that Qualls's dismissal was justified, but Qualls remained convinced that he was fired because he is black. He searched the Yellow Pages for an attorney and came across Smith's name. Smith agreed to take his case and in 1992 sued RTD in federal court for racial discrimination.

"His tenacity was what impressed me most," says Qualls. "He's much like me in that respect. If I feel like I'm being wronged by you, I'm going to raise a boatload of hell about it."

As in the Dunkin and DeHerrera cases, however, Smith quickly ran into trouble with the judges assigned to hear the suit. At a hearing in August 1992, Zita Weinshienk chided Smith for failing to read a relevant case she'd cited in an order a few months before. Afterward, she incorporated her criticisms into a judicial order. Instead of apologizing, Smith filed a motion objecting to Weinshienk's "false, defamatory and/or inappropriate comments" and requested they be stricken from the record.

Later, RTD attorney Rolf Asphaug became incensed when Smith failed to show up for a court-ordered deposition in Smith's own offices. Asphaug had spent most of the previous day preparing the witness and going over documents that took up almost six feet of shelf space. Today, Asphaug calls Smith's actions "infuriating."

"I think deep down, the man is sincere," Asphaug says. "I don't get the sense he's out to harm his clients, or anyone else for that matter." But Asphaug was sufficiently disturbed with Smith to ask the court to impose sanctions for canceling the deposition. A magistrate supervising the case complied, saying Smith had "taken attorney congeniality, cooperation and civility to a new low."

Because of Smith's suspension from the Tenth Circuit and other disciplinary problems, Qualls's claim against RTD is now in legal limbo. Still, Qualls says he has no complaints about Smith. "He's pissed a few people off because he won't stand still for them to run roughshod over him," Qualls says. "I'm totally in his corner, as he is in mine."

Other clients appear to share Qualls's faith in Smith. Says John Casillan, whom Smith has represented in another discrimination suit against RTD, "I'm sticking by him now."

Casillan, a former RTD maintenance technician, was fired from his job in 1989 following an incident in which he allegedly tried to run over a co-worker with a golf cart. Casillan claimed he was dismissed because of his national origin, which is Filipino and Hispanic.

Casillan says he asked several attorneys to take his case, but all of them wanted a retainer he couldn't afford. Finally he called on Smith. "He seemed like he was a fighter," Casillan says. "That's what I liked about him."

In December 1991 a judge dismissed the Casillan suit. Smith appealed the dismissal, but the Tenth Circuit denied the motion and, saying the case had been "groundless from the day of filing," fined Smith more than $14,000 to offset RTD's costs in defending itself. RTD, the court said, was "entitled to some form of compensation for having been dragged so pointlessly through the courts."

Smith says the reason his clients remain loyal to him despite his many problems is that he has been willing to risk such sanctions on their behalf. "My clients like me," he says, "because nobody else is going to go out on these limbs for them."

If Smith had simply paid off the fines he has received over the last few years, he would be in much better shape. Instead, he has immediately appealed each of the fines to the federal circuit court, doggedly pursuing a legal strategy that has both infuriated a whole new round of judges and brought the ACLU and the U.S. Supreme Court into the picture.

The problem is that so-called interlocutory appeals are not allowed in the Tenth Circuit. Instead, attorneys must wait until the underlying suit has concluded before asking the appellate court to review fines imposed in the lower court. Smith's appeals, the Tenth Circuit has consistently ruled, are themselves frivolous and deserving of additional sanctions; of his $50,000 in total fines, well over half comes from sanctions imposed by the appellate court. Last November a circuit court panel suspended him until he pays off the fines completely. And in February, as Smith continued to fight the sanctions, the court ordered him to show cause why he should not be held in contempt.

Both the ACLU and Smith's attorney, Phillip Figa, say the court's suspension of Smith is unfair. They note that other circuits around the country--the second, the seventh, the ninth--specifically allow interlocutory appeals. How, then, can they be called "frivolous" by another court?

In March Figa petitioned the U.S. Supreme Court on Smith's behalf, asking the justices to review the issue. Figa, the president-elect of the Colorado bar, argued in his petition that interlocutory appealability is the subject of a "sharp split" among the circuits that only the high court can resolve.

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