Opinion
Civil Action No. 07-cv-490-AP.
May 1, 2007
ORDER
This bankruptcy appeal is before me on Defendant David L. Smith's Request for Amendment of Interlocutory Order to Grant Permission to File an Immediate Appeal to the United States Court of Appeals for the Tenth Circuit (Doc. 20) and Defendant M. Julia Hook's Verified Request for Appointment and Authority to Pay Court Appointed Counsel and Request for Continuance of Hearing on Order to Show Cause (Doc. 21), both filed on April 30, 2007. Both requests arise out of my April 27 Order (Doc. 18), which (1) denied Defendants' Emergency Motion for Continuation of Automatic Stay Pending Appeal of Bankruptcy Judge's Order Granting Relief from Stay (Doc. 11) (which I treated as an emergency motion to stay the bankruptcy court's Order(s) granting Plaintiff Phase One relief from the automatic stay); (2) denied Defendants' Request for Expedited Handling; and (3) set my previously issued Order to Show Cause (which directed Defendants to show cause why they should not be sanctioned under 28 U.S.C. § 1927 for unreasonably and vexatiously multiplying the proceedings between them and Plaintiff Phase One Landscapes) for hearing. Smith asks that I certify my April 27 Order for interlocutory appeal, and Hook seeks the appointment of counsel from the Court's Criminal Justice Act registry to represent her on the sanctions issue. I deny both requests.
The instant appeal is one of four filed by Defendants since March 12, 2007. All arise out of bankruptcy proceedings they initiated in the wake of a state court lawsuit brought against them by Phase One Landscapes, Inc., a contractor hired to landscape their home on Sixth Avenue Parkway who claims never to have been paid. Both Smith and Hook are attorneys, although Defendant Smith has been disbarred from the practice of law at least twice, by the Tenth Circuit Court of Appeals and by the Colorado Supreme Court. See In re David Lee Smith, 989 P.2d 165, 167 (Colo. 1999) (en banc) (listing cases and describing disciplinary proceedings involving Smith). Defendants have a history of litigious and contumacious conduct in these courts, and in the instant bankruptcy proceedings alone have filed multiple appeals both in this court and to the Bankruptcy Appellate Panel (BAP) and the Tenth Circuit Court of Appeal.
In addition to the instant 07-cv-00490-AP, Defendants filed appeal number 07-cv-00631-AP on March 29, 2007; 07-cv-00648-AP on March 30, 2007; and 07-cv-00876 on April 27, 2007. Other appeals may or may not be pending before the Bankruptcy Appellate Panel (BAP).
Smith offers no compelling basis for certifying my denial of Defendants' Emergency Motion for Stay for interlocutory appeal and I deny that request. As for Hook's request the David Powell of the law firm of Brownstein, Hyatt, Farber Schreck be appointed counsel for her at the sanctions hearing, I note that hearing is not a criminal proceeding but a civil one under 28 U.S.C. § 1927, in which monetary sanctions to compensate harm caused by vexatious and frivolous litigation tactics are at issue. Only in criminal or contempt proceedings in which the possibility of incarceration or the punitive imposition of fines without any curative intent or purpose are involved does the right to counsel obtain. In those circumstances, the applicant does not choose her own counsel. Rather, the Federal Public Defender or a member of the Criminal Justice Act Panel is appointed, and then only upon proof, by affidavit, of indigency.
Defendant Smith's April 30, 2007 motion to certify my April 27 Order for interlocutory appeal (Doc. 20) is DENIED, as is Defendant Hook's April 30, 2007 request for appointment of counsel (Doc. 21). Hook's request to continue the May 16 sanctions hearing for 60 days after the appointment of counsel is DENIED as MOOT.