IN THE SUPREME COURT OF THE STATE OF KANSAS
Bret D. Landrith)
Petitioner )Case No.
)
Carol G. Green,)
Respondent.)
______)
ORIGINAL ACTION SEEKING WRIT OF MANDAMUS
Comes now the petitioner, Bret D. Landrith, a Kansas licensed attorney, appearing pro se and makes the present original action seeking a writ of mandamus for an order directing the Supreme Court Clerk, Ms. Carol G. Green to issue two business records subpoenas for records required by the petitioner to defend himself in the attorney disciplinary proceeding captioned In the matter of Bret D. Landrith, Case No. DA8893 and DA9076. The petitioner respectfully requests the court grant this urgently required special writ in time for the subpoenas to be complied with in advance of the state’s prosecution of the respondent on January 18th, 2005.
JURISDICTION
Art. 3, § 3 of the Kansas Constitution.
K.S.A. 60-801
K.S.A. 60-802
Kansas Supreme Court Rule 9.01
PARTIES
Mr. Bret D. Landrith, both resides and has his law office at Apt. G33, 2961 SW Central Park Ave, Topeka KS 66611.
Ms. Carol Green is the Clerk of the Supreme Court and believed to be the Kansas state official identified as the “Clerk of the Appellate Courts” in Kansas Supreme Court Rule 216(a).
STATEMENT OF FACTS
1.The petitioner sought records crucial to defending the liberty interest in his occupational license as a Kansas attorney in motions and a pretrial conference with the Disciplinary Administrator Stanton Hazlett and the Disciplinary Panel comprised of Michael Schmitt and Sally Harris with Randall Grisell presiding. Stanton Hazlett objected to subpoenaing the witnesses and records sought by the petitioner. Randall Grisell consulted with the panel and referred the petitioner to either the Shawnee District Court or the Kansas Supreme Court. The Shawnee District court’s denial of records required by the petitioner in the underlying litigation and the reasons Shawnee Court officials denied access as described in the petitioner’s disciplinary answer and motions to dismiss is a significant controversy to be resolved in the disciplinary trial and Mr. Grisell ended by suggesting the petitioner consult with the Supreme Court Clerk’s office on how to obtain the records through the Supreme Court.
2.On December 8th, 2004 the petitioner submitted two praecipes for business record subpoenas to the Office of the Supreme Court Clerk in the person of Jason Oldham for consultation about how to obtain records through the court as instructed by Mr. Randall Grisell, the panel chairman hearing the petitioner’s disciplinary proceeding. Mr. Oldham stepped into an adjoining office and returned stating the clerk would not issue the subpoenas because it was not the procedure under in Kansas Supreme Court Rule 216(a).
3.The petitioner continued his independent research and determined that the Supreme Court Clerk, Ms. Carol Green had a clear duty under Kansas Supreme Court Rule 216(a) to issue subpoenas conforming to K.S.A. Chapter 60, requested in a disciplinary proceeding.
4.On December 20th, 2004, after the ten day period for objections to the issuance of the business records subpoenas had expired, the petitioner returned to the Office of the Supreme Court Clerk with the business records subpoenas and a cover letter addressed to Ms. Carol Green stating a demand for the issuance of the business records subpoenas as case law requires[1] or in the alternative a memorandum why the request was denied. Exb 1
5.Attached to the cover letter was a letter to the petitioner from the Disciplinary Administrator describing an ex parte communication from the Office of the Supreme Court Clerk to him, but not objecting to the records being sought. Exb. 2
6.Also attached to the cover letter was a letter to the petitioner from Randall Grisell, the president of the tribunal stating he would delay ruling on the release of the records until they had been produced to the Office of the Clerk. Mr. Grisell raised no objection to the records being sought. Exb 3
7.The Clerk of the Supreme Court did not issue the business record subpoenas and Jason Oldham, the Deputy clerk had testified in a deposition on December 7th, that the Office of the Clerk of the Supreme court does not make a written letter or memorandum stating the office’s denial of an action unless there is an established procedure as in the case of a deficient pleading.
8.The first disciplinary complaint forming the action In the matter of Bret D. Landrith, Case No. DA8893 is based on the May 9, 2003 ethics complaint made by Judge G. Joseph Pierron, Jr., Judge David S. Knudson, Judge Lee A. Johnson and Jonathan M. Paretsky, Carol Green’s motions attorney for the petitioner’s representation defending the liberty interests of a controversial African American client and his witness, who is of American Indian descent. The two client’s controversy arises from a federal civil rights suit matter with the City of Topeka.
9.The complaining witnesses accused the petitioner of conduct required by the Kansas Rules of Professional Conduct and he is now being prosecuted for citing to a Mississippi case, using the word “prosecute” to describe the actions in carrying out an appeal as in to prosecute an appeal[2] and discussing the application for mandamus as redress for denying a parent access to SRS records required to defend against the termination of parental rights as this court stated was appropriate in Nunn v. Morrison, 608 P.2d 1359, 227 Kan. 730 syl. 1-4 (Kan., 1980).
10.The petitioner withdrew the appeal of the African American client who had been denied access to his Shawnee County court records, retaliated against by the City of Topeka for his Shawnee District Court testimony, the city canceled his janitorial contract and prevented him from bidding on federal contracts and the Shawnee District Court also denied copies of records required to docket the appeal. When the petitioner sought a clarification of a motion order, the Kansas Court of Appeals took what Mr. Paretsky described were informal sanctions against the petitioner for raising due process and equal protection concerns in appellate court motions.
11.In his motion to voluntarily withdraw the appeal and to assign costs, the petitioner provided the appellate court information regarding the costs to date, believing this was required by the express language of Kansas Supreme Court Rule 5.04. The complaining witnesses made the costs part of this motion one of the most serious ethics “violations” alleged against the respondent.
12.The witness against the City of Topeka who the petitioner represented as appellate counsel in defending against the termination of parental rights had his son taken and placed in adoption in another state in retaliation for his protected speech before the Topeka City council about the misuse of federal housing funds which was leading to heightened crime in his neighborhood. During the appeal pre-hearing motion process, the petitioner observed that none of the adoption and child custody statutes had been complied with, that interstate compact adoption records had been altered to fraudulently represent the adopting parents as residing in Kansas when they lived in Colorado. Judge Pierron, despite filing the prejudicial ethics complaint and serving as a director of one of the state’s largest adoption contractor corporations[3], strongly admonished the petitioner for raising concerns about the legitimacy of the adoption. The appellate opinion inaccurately stated that the petitioner sought only SRS records the father was not entitled to despite numerous appellate motions for many kinds of court records the petitioner and his client had been denied access to. Despite this new issue giving the petitioner an appeal by right under K.S.A. 60-2101(b), the Kansas Supreme Court denied review.
13.The Clerk of the Supreme Court ordered that the petitioner’s American Indian client, the above putative father, be denied entry to the Kansas Judicial Center and specifically the offices of the Clerk of the Supreme Court and the Attorney General of Kansas. The Capitol Police and the Kansas Highway Patrol told the client that Carol Green had ordered the denial of access when the client had tried to enter and obtain a copy of a mandate in his pro se appeal of a case where he was driving busloads of soldiers embarking for Iraq to Forbes field[4]. When asked why by the client, Carol Green stated she had never had any problems with the client. On December 7th Jason Oldham testified that he had never experienced any problem behavior from the client.
14.The Disciplinary Administrator wrote the petitioner stating he would be “formally prosecuted” immediately after the petitioner called an African American witness to testify about Topeka officials retaliating against protected courtroom speech in an unrelated federal case. The City of Topeka Housing Authority issued an eviction notice against another of the petitioner’s clients seen in the federal courtroom (a disabled veteran that was forced out on the street, homeless, despite never missing a payment or being untimely and having prepaid the following month’s rent) later that week against the testifying witness.
15.The Disciplinary administrator deleted affidavits of City of Topeka retaliation against process servers and the petitioner’s federal witnesses used to explain the decision not subject volunteer process servers to substantial risk which were included in the petitioner’s timely answer to the second ethics complaint and obtained a “probable cause” finding to prosecute the petitioner for a second ethics complaint brought by the city attorney for including the first ethics complaint in the evidentiary attachments of the petitioner’s African American client’s federal civil rights action defending against the demolition of his two homes to take his land for a planned city and county public use without compensation.
16.The complaint also alleged that the petitioner had harmed his client by not serving process on individual city officials when clearly at law (and even case law later cited by the city attorney), officials cannot be held individually liable for acts in their official capacity. The petitioner had obtained jurisdiction over the city by the voluntary appearance of its counsel per K.S.A. 60-203(c) where the city attorney failed to make a timely challenge to jurisdiction as required by K.S.A. 60-212(h). The petitioner utilized this alternative state basis for effecting process under Federal Rule of Civil Procedure, Rule 4 (e)(1) and Rule 4(h)(1).
MEMORANDUM IN SUPPORT OF MANDAMUS ORDER
The petitioner has suffered injury and has an interest in obtaining the performance of the issuance of business record subpoenas. The petitioner seeks a mandamus order to facilitate the just resolution of a justiciable case or controversy and the petitioner is unable to obtain meaningful relief by appeal.
The Petitioner Has Suffered Injury And Has An Interest
The petitioner meets the requirement of an interest or injury. The petitioner has already been divorced, lost custody of his four children and even the right to bring them to Shawnee County for most of 2004. The petitioner lost his house and has been displaced from several temporary residences, been denied employment and has lost almost all income directly as a result of the state’s ethics prosecution. The petitioner is prevented from being a corporate counsel for a business client in Missouri due to the present ethics prosecution.
As the injury to the petitioner mounts from the stress of sustaining the federal concurrent litigation to stop the ethics prosecution while simultaneously preparing to defend his sizeable investment in college, law school and in becoming a member of the Kansas Bar, the petitioner still is having to prepare a very sizeable appeal in the Tenth Circuit Court of Appeals for his African American client. This appeal is suffering from the uncompensateable toll being placed on his counsel’s ability to research write and fund endless manhours. The petitioner’s contingent compensation wholly depending on success in representation of his client for two years will be forfeited in the appeal if the petitioner cannot sustain this impossible pace.
The petitioner has a strong interest in seeking a just resolution to the claims against him for ethical misconduct. Obtaining the records in time for the scheduled hearing could prevent the need to reschedule it months out or to contest the panel determination. Even in advance of any determination, the ethics complaints have injured the reputation of the petitioner and by doing so harmed the causes of his few clients. Almost no hearing transcript is without the presiding authority demonstrating an unfamiliarity with the petitioner’s pleading (having not read it) and asking the petitioner if he has the mental capacity to understand questions.
The Petitioner Has A Justiciable Case Or Controversy
The petitioner has a justiciable case or controversy squared in the algebraic sense. The petitioner requires documents in the possession of third parties in order to defend his right to practice law. The third parties need to be compelled by a court issued business record subpoena. If the records are not produced, the petitioner will likely be disbarred. Among the supposed KRPC violations he is to be disbarred for is discussing a writ of mandamus as a form of obtaining redress for two clients who were being denied access to justice through the denial of court records required for defending their liberty interests from the state despite clear authority and Kansas statute guaranteeing their right to the same records.
The Clear Duty of Carol Green to Issue the Business Record Subpoenas
The Clerk of the Supreme Court has an important duty to the parties in an attorney disciplinary case. Rule 216 lists the clerk of the appellate court with the disciplinary administrator Stanton Hazlett, the chairman of the hearing panel Randall Grisell or the panel members Michael Schmitt and Sally Harris as possible persons who can compel the production of documents before the hearing panel. Section a describes only the petitioner’s (the respondent in the disciplinary case) discretion in acting:
“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]
Applying the normal rules of statutory construction, the legislature has intended that the petitioner (the disciplinary respondent) choose who issues the business record subpoena under the Kansas Rules of Civil Procedure. The statute excludes the Office of Clerk of the Shawnee District Court who attempted to prevent the petitioner from obtaining the case file for his African American client’s condemnation and demolition case and who repeatedly prevented the putative father acting pro se and later the petitioner from having access to the parental rights termination case file. This statutory construction conforms to the strong constitutional and due process interests in protecting the important liberty interest of an occupational license.
Mandamus is Appropriate To Order A Court Clerk to Perform A Duty
The modern statutory Mandamus has grown to include a role in obtaining guidance for state officials:
"The use of mandamus to secure a speedy adjudication of questions of law for the guidance of state officers and official boards in the discharge of their duties is common in this state. Our conceptions of the proper use of mandamus to expedite the official business of the state have expanded far beyond the ancient limitations of matters justiciable in mandamus. [Citation omitted.] Where a public official's action or refusal to act is based upon a statute whose validity is challenged, mandamus may lie in appropriate cases. [Citations omitted.]"
Stephens v. Van Arsdale, 227 Kan. 676 at 682-83.608 P.2d 972 (1980).
"[m]andamus 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 another adequate remedy at law exists. [Citation omitted.] The burden to show the right to this extraordinary remedy is on the petitioner. [Citation omitted.]"
Legislative Coordinating Council v. Stanley, 264 Kan. 690, 697, 957 P.2d 379 (1998).
"Where an order of the trial court denies a litigant a right or privilege which exists as a matter of law, and there is no remedy by appeal, mandamus may be invoked." State ex rel. Stephan v. O'Keefe, 235 Kan. 1022, 1025, 686 P.2d 171 (1984). In Stephens v. Van Arsdale, 227 Kan. 676, a newspaper reporter and his employer filed a petition for writ of mandamus asking this court to compel the district court clerk to allow him access to certain court files otherwise closed by statute. The reporter and the newspaper claimed to have standing individually and on behalf of the citizens of Kansas. This court agreed in part, stating: