December 20th, 2004
Bret D. Landrith
Kansas Supreme Court ID # 20380
Apt. # G33,
2961 SW Central Park,
Topeka, KS 66611
1-785-267-4084
RE: Attorney Disciplinary Case In the Matter of Bret D. Landrith, No. DA8893 and DA9076 demand for the issuance of business record subpoenas
Dear Ms. Green,
On December 8th, I served copies of two proposed business record subpoenas on the Disciplinary Administrator and the members of the disciplinary tribunal in the above attorney disciplinary action and have conformed to the requirements of K.S.A. 60-245a. No objection has been made by any party to the action.
On December 9th, 2004 I consulted with James Oldham about the procedure for obtaining the Supreme Court’s issuance of the enclosed two sets of business records subpoenas. I was inaccurately instructed by Jason Oldham that the Supreme Court Clerk would not issue the subpoenas because doing so would not conform to Kansas Supreme Court Rule 216(a) even though the rule clearly states the appellate court clerk is a proper issuer:
“Rule 216 SUBPOENA POWER, WITNESSES AND PRETRIAL PROCEEDINGS
(a) The Disciplinary Administrator, the chairman of the Board, any member of a hearing panel, the Clerk of the Appellate Courts, or any other person authorized by law, acting under these rules, may administer oaths and affirmations and, subject to the Rules of Civil Procedure, compel by subpoena the attendance of witnesses and the production of pertinent books, papers, and documents before a hearing panel. A respondent may, subject to the Rules of Civil Procedure, compel by subpoena the attendance of witnesses and the production of pertinent books, papers, and documents before a hearing panel.” [emphasis added]
I have participated in a pretrial conference in the disciplinary proceeding and the Disciplinary Administrator refused to obtain these documents, though they would have been necessary to find the existence of probable cause that I had committed an ethics violation and were required to be examined by him once issues arose about the motive of complaining witnesses. Your office has also communicated again ex parte to the Disciplinary Administrator about my consultation with Mr. Oldham. Attachment 1 is a letter describing the ex parte communication from the D.A.
The president of the panel instructed me to consult your office, observing that the exact procedure for obtaining these records was unknown. After your office’s suggestion in consultation that you would refuse to accept them based on Kansas Supreme Court Rule 216(a), I researched the rule and found that it is proper for them to be submitted to you as clerk of the appellate courts for your issuance, following the express and clear language of the rule. Attachment 2 is a letter from the president of the tribunal stating that he will wait until the records are produced to determine if they are to be issued.
I evaluated whether I would be able to rely on subpoenas compelling Judge Anderson, the acting Secretary of SRS and the president of Kaw Valley State Bank to attend as witnesses under subpoena and compelled to bring the above requested records. Doing so would harm the rights of these third parties to research objections to disclosure of these requested documents, a procedure the business records subpoena protects and would deprive the respondent and the tribunal of the opportunity to sort through the complex documentation before questioning witnesses over their contents. An additional protection to the rights of third parties exists in the business record subpoena protocol of seeking a court order to obtain access to the requested records once third parties serve them on the court.
I am presently resubmitting both business record subpoenas in a demand that your office issue them as clearly stated in Kansas Supreme Court Rule 216(a). Kansas law requires that I demand your performance of this duty to be eligible for redress:
“As a general rule the relator must have demanded performance of the act or duty which he seeks to enforce . .”
Adams v. Marshall, 212 Kan. 595, 512 P.2d 365 at 373 (Kan., 1973)”
A similar request to have your office accept pleadings it had rejected was itself the substance of the charges in DA 8893 against me. The issue is whether the countertop determination can be reconsidered or if I should seek the legislature’s provided remedy of mandamus to compel your office to perform a clear duty.
“The Supreme Court is granted original jurisdiction in proceedings in mandamus and quo warranto by art. 3, § 3 of the Kansas Constitution. K.S.A. 60-801 defines mandamus as "a proceeding to compel some ... person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law." It has been held mandamus is an appropriate proceeding designed for the purpose of compelling a public officer to perform a clearly defined duty, one imposed by law and not involving the exercise of discretion. Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, Syl. p 2, 643 P.2d 87. Numerous prior decisions have recognized mandamus is a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public business, notwithstanding the fact that there also exists an adequate remedy at law. 231 Kan. 20, Syl. p 4, 643 P.2d 87; Mobil Oil Corporation v. McHenry, 200 Kan. 211, 239, 436 P.2d 982 (1968), and cases cited therein. Where a petition for mandamus presents an issue of great public importance and concern, the court may exercise its original jurisdiction in mandamus and settle the question. Berst v. Chipman, 232 Kan. 180, 183, 653 P.2d 107 (1982).”
State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 687 P.2d 622 (Kan., 1984)
In the past you have resolved this by having Mr. Paretsky write an ethics complaint against me for acting as required by the Kansas Rules of Professional Conduct under the law as interpreted by the Kansas Supreme Court. It may be that by determining this issue of law we could also resolve the existing ethics complaint and all future such complaints.
Please forward the signed and sealed business records subpoenas in the enclosed self addressed stamped envelope so that I may affect their service. In the alternative, please provide a written letter or memorandum explaining your decision not to issue the subpoenas so that I may seek redress.
Sincerely,
Bret D. Landrith
cc: Stanton Hazlett
Randall D. Grisell
Sally Harris
Michael Schmitt
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