274
1IN THE SUPREME COURT OF KANSAS
BEFORE
2THE KANSAS BOARD FOR DISCIPLINE OF ATTORNEYS
3
IN THE MATTER OF
4) Case Nos.
PA 8893 and
5BRET P. LANPRITH,) PA 9076
--Respondent.
6
7 VOLUME II
8TRANSCRIPT
9OF
10Proceedings held in the Fatzer
11Courtroom, Kansas Judicial Center, in the City
12of Topeka, County of Shawnee, State of Kansas,
13on the 19th day of January, 2005, beginning at
148:35 a.m., before a Panel appointed by the
15Chairman of the Kansas Board for Discipline of
16Attorneys consisting of, Mr. Randall Orisell,
17Chairman; Ms. Sally Harris, member; and Mr.
18Michael Schmitt, member.
19
20APPEARANCES
The Respondent appeared in person and
21pro Se. Also present was Mr. Samuel LaPari.
22The Disciplinary Administrator’s Office
appeared by Mr. Stanton Hazlett, Disciplinary
23Administrator,Office of Disciplinary
Administrator,701 Southwest Jackson, 1st
24Floor, Topeka, Kansas, 66603-3729.
25
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1I NDE 5<
2Certificate 562
3 WI TNE S SE S
WITNESSES ON BEHALF OF THE
4DISCIPLINARY ADMINISTRATOR’S OFFICE: PAGE
SHERRI PRICE
5Direct Examination by Mr. Hazlett 286
Cross Examination by Mr. Landrith 303
6
BRET LANDRITH
7Direct Examination by Mr. Hazlett 315
Examination by Ms. Harris 397
8Examination by chairman Grisell 401
Examination by Ms. Harris 411
9Redirect Examination by Mr. Hazlett 413
10WITNESSES ON BEHALF OF RESPONDENT:
BRIAN MOLINE
11Direct Examination by Mr. Landrith 446
Cross Examination by Mr. Hazlett 456
12Examination by Mr. Schmitt 457
13JUDGE WILLIAM F. LYLE, JR.
Direct Examination by Mr. Landrith 460
14cross Examination by Mr. Hazlett 475
Redirect Examination by Mr. Landrith 479
15Examination by Chairman Orisell 480
16DAVID PRICE
Direct Examination by Mr. Landrith 486
17Cross Examination by Mr. Hazlett 529
Examination by Chairman Grisell 532
18Examination by Ms. Harris 538
Redirect Examination by Mr. Landrith 542
19Recross Examination by Mr. Hazlett 546
20
EXHIBITS
21RESPONDENT’S:MARKEDOFFEREDRECEIVED
23 443 445
22 24 454 454
23
24
25
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1.CHAIRMAN GRISELL: Is counsel ready
2to proceed?
3MR. HAZLETT: Disciplinary
4Administrator’s Office is ready.
SMR. LANDRITH: Yes, sir.
6CHAIRMAN GRISELL: Okay. The first
7thing submitted to the panel at the end of the
8hearing yesterday was the deposition of Jason
SOldham. And counsel-- or the panel has had an
10opportunity to read that deposition. At least
11from my perspective, even though there were
12some objections, I didn’t see that-- that the
13testimony that came in over the objection was
14anything that’s going to be material or
15substantial. And if it’s satisfactory to
16counsel and they’re willing to waive the
17objections, we’ll just admit the deposition
18into evidence as it was submitted to us.
19MR. HAZLETT:I’m certainly willing
20to waive any objection and would offer it at
21this time.
22MR. LANDRITH:I would do the same,
23sir.
24CHAIRMAN CRISELL: Thank you.
25There-- the deposition of Jason Oldham will be
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1admitted into evidence as if it were testimony
2at this hearing. Mr. Hazlett, you may call
3your next witness.
4MR. LANLRITH: Sir, before we start
5the intervening witness, I did have some
6concerns about some additional objections to
7witnesses appearing, and it relates to whether
8or not this witness testifies. I received--
9CHAIRMAN GRISELL: You might identify
10which witness you’re referring to.
11MR. LANDRITH: Sherri Price is the
12complaining witness on the face of the second
13ethics complaint against me, which is Count 2
14of the Disciplinary Administrator’s action
15against me.
16I received by e-mail a substantial motion
17opposing what I think the de facto-- the in
18fact complaining witness, Magistrate Judge
19O’Hara’s opposition to appearing here as a
20witness. It’s my contention that where Sherri
21Price makes the complaint, one, that I included
22the first ethics complaint against me as an
23exhibit in James Bolden’s trial, and that
24wasn’t a count that I’m charged with, wasn’t a
25charge being made by the Disciplinary
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1Administrator because, in fact, he advised me
2that I could share that complaint with other
3people, and it was material to James Bclden’s
4case.
5Ms. Price made a second non-- she-- she
Cincorporated by reference Magistrate O’Hara’s
7opinion that indicated that I-- I lacked
8competence but she, as I understand the
9document, did not make that allegation herself.
10So if I am to be prosecuted based on Magistrate
11O’Hara’s belief that I was incompetent, a
12belief that wasn’t upheld by the presiding
13judge, the grounds for upholding portions of
14his order did not include that and did not
15include a finding of fact or law on arguments
16whether city officials had to be individually
17served, because it was a clear matter of law
18that all complaints against city officials in
19their official capacity are complaints against
20the city. And the city had appeared in the
21case and it was undisputable.
22So my contention is that Ms. Price is a
23significant witness for the Disciplinary
24Administrator for Count 1. But if she’s going
25to be here in a role of the real, in fact,
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1complaining witness, I will be deprived more
2likely than not of actually being able to face
3and interview the actual witness that we’re
4basing this idea that I’m incompetent on.
5CHAIRMAN CRISELL: Have you
6subpoenaed Judge O’Hara?
7MR. LANDRITH: Yes, sir, I have, and
8he’s not contesting whether he was properly
Sserved. He has a very sophisticated legal
10argument - and he’s represented by a U.S.
11Attorney - that because he’s a federal officer,
12he doesn’t have to appear before the state
13court.I believe that I can brief an argument
14where ultimately you can compel him to appear,
15but I-- I can see where you would be reluctant
16to do so. And that raises a problem for me in
17this case, because both in my federal action to
18enjoin against this so I could work on James
19Boldens trial, which I lost, and in my efforts
20to have this dismissed, I raised the fact that
21when I’m in federal court, I also have the same
22dual role recognized by case law if I’m
23enforcing a federal statute, 42 U.S.C. 1981 and
241983, I’m acting as a private attorney general
25as universally recognized. So I have a-- an
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1equally strong dual federal and state interest.
2CHAIRMAN CRISELL: Okay. Let me ask
3you this, has Judge O’Hara been served with
4your subpoena?
5MR. LANDRITH: Yes, sir.
6CHAIRMAN GRISELL: Properly served--
7MR. LANPRITH: Yes.
8CHAIRMAN CRISELL:-- personal
9service? And he has indicated to you or his
10counsel has indicated that he will not be
11appearing?
12MR. LANDRITH:I understood that,
13that he had a basis for not appearing.
14CHAIRMAN ORISELL: Is his counsel
15going to appear and-- and argue that he
16shouldn’t appear and testify in this hearing?
17MR. LANDRITH: I would-- I guess my--
18I would answer that when I call him and-- and
19he’s not there. I-- I don’t know otherwise,
20sir.
21CHAIRMAN CRISELL: Okay. Well, I-- I
22think you’ve raised a-- a material issue. That
23it Ms. Price is going to testify and-- and
24discuss conversations she might have had with
25Judge O’Hara that it—- and it’s material, that
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1it’s probably hearsay, you don’t have an
2opportunity to cross-examine Judge O’Hara.
3However, his findings, which are-- have been
4admitted into this matter certainly can be
Bconsidered by the panel with or without Judge
6O’Hara here. This may cure the problem at this
7point.
8It seems to me that Ms.-- that Ms. Price
9can testify concerning her personal knowledge
10and her involvement in, I think it’s the Bolden
11case. About discussions with Judge O’Hara; if,
12in fact, he will not appear would be
13inadmissible-- inadmissible at this point.
14Counsel-- or panel, do you have any--
15MS. HARRIS: No, but I would say that
15if she’s going to testify about what was stated
17in pleadings, that pleadings are a matter of
18public record. And so we have pleadings that--
19in which he made statements. Those would be
20and already are admitted. But I agree that if
21she’s just going to talk about any conversation
22that she had, that would appear to be excluded
23unless we have a commitment by Judge O’Para to
24appear, then that would not be hearsay.
25CHAIRMAN CRISELL: And the-NOPA LYON & ASSOCIATES, INC.
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1MR. HAZLETT: Maybe I can help.
2CHAIRMAN CRISELL: The other aspect
3of it, too, is if she testifies, the proffer is
4that Judge O’Hara is subpoenaed, then we would
Sallow the testimony. But if he ultimately does
5not appear, then we would have to strike the
7testimony and that-- and that somehow is
8abhorrent to me that we’ve already heard it and
9then we strike it later, it’s just like after a
10jury has heard it it’s pretty hard to cure.
11MR. HAZLETT: I don’t even intend to
12ask any questions that would elicit any sort of
13information about a conversation Ms. Price had
14with the judge. To the extent that she may
15comment on-- or tell us about a judge-- the
16judge’s decision and direct us to that, to a
17document that’s already in the record, that--
18that may occur, but no conversation between Ms.
19Price and the judge.
20MR. LANPRITH: I would observe that
21that’s not your real problem. Your real
22problem is In the Matter of Schwartz. What
23will happen is Ms. Price probably will not add
24to or substitute her judgment for Magistrate
25C’Hara’s determination on that pretrial order.
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1what Ms. Price does have a lot of information
2on is not her conversations with Magistrate
3O’Hara - I presume she did not have any ex
4parte conversations - she has other information
5related to whether or not I’m-- show competence
Cor didn’t show competence in James Bolden’s
7federal case. And the problem with that is
8that these are facts that were not part of the
9Disciplinary Administrator’s thing.
10So your In the Matter of Schwartz
11disciplinary case recognized that that exceeds
12the due process notice requirements of a
13disciplinary complaint and that-- when we go
14outside of that to look for new facts.
15CHAIRMAN GRISELL: And I don’t know
16what she’s going to testify to, but I think the
17Disciplinary Administrator is well aware of the
18restrictions that he has that he can’t raise
19new issues at this hearing that haven’t been
20pled in the complaint, because it is a
21violation of due process if you haven’t been
22given notice of-- of the basis of the
23complaint. Correct, Mr. Fiazlett?
24MR. HAZLETT: Correct. I’m surprised
25Mr. Landrith knew what I was going to ask her,
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1what the testimony was about. I haven’t had
2any discussion with him about it. I assume he
3can object to it if he thinks it’s
4objectionable at the time. I will say that I
5just received this objection to the subpoena
6this morning. Apparently it was faxed to my
7office last night.
8Mr. Landrith says it’s a complicated
9argument made by Judge O’I-Iara’s attorney, but
10the document states, “In this case, the
11Respondent has failed to comply with the
12judicial regulations of issuing a subpoena to a
13federal official. The regulations require the
14Respondent to request the testimony of
15production of records, including a written
16statement, at least 15 working days in advance
17of the hearing.” So I mean, Tm not sure how
18complicated it is, but--
19MR. LANDRITH: Again, sir, the
20complication there is that that’s the-- a
21federal jurisdictional requirement imposed on a
22state procedure here where actually I think you
23have supremacy over determining the conditions
24that Magistrate CHars is a Kansas lawyer
25under. So I-- I believe I could brief that.
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1could see, ultimately, where this panel would
2not want to go there.
3I do have - and it’s the only record that
4I ever had any resistance getting in the
Sfederal system - the tape recording of that
6hearing, because there was no court reporter.
7And I could-- I would offer that as a exhibit
8that supplements the actual transcript, which
9is already admitted. I have some problems with
10that, but that may be one-- one solution here.
11CHAIRMAN CRISELL: Well, I can
12indicate to you, Mr. Landrith, that if-- if
13it’s an obligation on the part of Judge O’Hara
14to appear, that I have no problem with finding
15that he should appear, whether or not he’s a
16federal district court judge or not.I think
17we set the parameters of-- of this witness’
18testimony within what we’ve heard so far. And
19we certainly will not allow testimony of
20discussions between she and the witness that is
21unavailable. But at this point I would say
22wait to see what her testimony is and if-- if
23there’s a proper contemporaneous objection,
24then we’ll consider it.
25I-- you still have an issue with respect
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to the federal district court judge, and we will have to deal with that at the time that you call him as a witness. I guess he’s a magistrate, I think, isn’t he?
MR. HAZLETT:Right.
CHAIRMAN CRISELL:
MR. LANDRITH:Yes.
CHAIRMAN GRISELL:
Okay, so--
You may proceed,
Mr. Hazlett.
MR. HAZLETT:
Call Sherri Price.
SHERRI PRICE,
called as a witness on behalf of the Disciplinary Administrator’s Office, was sworn, and testified as follows:
DIRECT EXAMINATION
BY MR. HAZLETT:
State your name, please.
Sherri Price.
Your business address?
215 southeast Seventh Street, Topeka, Kansas.
Your occupation there?
I’m an Assistant City Attorney for the City of
Topeka.
Your responsibilities in that position?
287
1A.I am-- I’m classified as a litigation attorney,
2that means that I handle any litigation filed
3against the city. I also handle arbitrations
4and discrimination complaints.
5Q.You were a complainant against Mr. Landrith,
6were you not?
7A.Yes, I did file a complaint.
8C.With the Disciplinary Administrator’s Office?
9A.Yes, I did.
10EQ.And why did you file the complaint?
11A.I filed the complaint because I was aware from
12earlier pleadings in the case that a complaint
13had already been filed against Mr. Landrith.
14And there was additional evidence in the
15federal case to show that Mr. Landrith was
16having difficulty at the very least of
17understanding basic principles of law.
18You’re familiar with the litigation of James
19Bolden versus City of Topeka?
20A.Intimately.
21EQ.Would you give us just kind of a brief history
22of that case which I believe started out in
23Shawnee County District Court; is that right?
24A.Actually it started in an administrative
25hearing in Topeka, the City of Topeka. Mr.
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1Bolden purchased two homes at a tax sale in, I
2believe, August of 2001 in Shawnee County. One
3of the homes had already been ordered to be
4demolished by the city, the other home was
5ordered to be demolished not-- maybe six or
6eight months later. He asked for additional
7hearings before the administrative hearing
8officer in Topeka, got it for the one home that
Bhad already been ordered. He then, when he
10lost that, appealed to the Shawnee County
11District Court.
12 At that time he had-- he was represented
13by counsel. We tried to negotiate a settlement
14with regard to that, it didn’t work out. That
15counsel withdrew. And eventually Mr. Bolden
16filed the second appeal when the second house
17was ordered demolished. That case was held
18before Judge Rosen, had a hearing in October of
192002, I believe.
20C.Judge Rosen is a district court judge here in
21Shawnee County?
22A.He is, he’s a Shawnee County District Court
23judge. A hearing was held. Mr. Eolden was
24represented by counsel, not Mr. Landrith,
25another counsel. He presented evidence. And
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1at the close of his evidence, the judge entered
2a directed verdict in-- in the city’s favor
3because Mr. Bolden failed to present evidence
4to overturn the administrative hearing officer.
5An appeal was then filed and the Court of
6Appeals-- and that’s where Mr. Landrith entered
7the picture representing Mr. Bolden in the
8appeal. Obviously there were some problems
Bwith the appeal. The brief-- there was never
10any record at all provided for the appeal.
11When Mr. Landrith attempted to file his brief,
12it included numerous facts that weren’t in the
13record, in addition to which they had never
14cited to the record because there wasn’t a
15record.
16My understanding is the Court of Appeals
17rejected that brief, ordered him to file a
18second brief that complied with the rules. He
19refused to do that and eventually dismissed his
20appeal.
21In the meantime, he had filed a action in
22federal court for temporary injunction. Mr.
23Bolden, unbeknownst to me, was providing
24janitorial work to the city. And in December,
252002 his contract was terminated. So the
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1grounds of the temporary hearing were to stop
2the demolition of his homes and to stop the--
3the contract from being cancelled.
40.Ultimately, did he file a lawsuit in federal
5court?
6A.He did. That was the lawsuit. He was given
7until-- he was given three or four months later
8after the injunction was denied to file an
9amended complaint, and he did file an amended
10complaint, I believe, in March or April of
112003.
12EQ.Would you turn to Exhibit 8 in those documents
13there in front of you.
14A.Yes.
15EQ.And identify that document, please.
16A.This is the amended complaint that Mr. Landrith
17filed on behalf of Mr. Bolden in federal court.
18I should say the first amended complaint.
19There were two or three others.
20EQ.Okay. But basically this contains allegations
21against the City of Topeka regarding the
22demolition of the homes and the janitorial
23contract situation?
24A.That’s correct.
25QSo you defended the city in this action?
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1A.I did.
2EQ.rid you file an answer to the lawsuit?
3A.I filed an answer as well as a motion to
4dismiss the claims regarding the demolition,
5because they had already been litigated in
6state court. And I do have to add I filed an
7answer on behalf of the City of Topeka, as the
SCity of Topeka was the only party that was ever
9served.
10EQ.You were actually served in the lawsuit?
11A.Yes.
12EQ.And how many-- do you remember how many other
13defendants there were in the lawsuit?
14A.He has them listed here. There were Mayor
15Felker, Jay Oyler, Mike McGee, Kevin Rooney,
16Meg Perry, Jeff White and two other parties.
17The previous people were all either employees
18at the time of the city or former city
19employees.
200.In federal court you have a case management
21plan; is that correct?
22A.That’s correct, uh-huh.
23C.Tell me if I’ve misstated the names of these
24things because I’m not in federal court or have
25never been in federal court. And the purpose
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1of that is to do what?
2A.The purpose is to set forth the claims and the
3defenses and then to basically set-- it’s like
4a scheduling order that you often have in
5county district court. But it sets forth
6discovery deadlines, other kinds of deadlines
7for motions, amended complaint, adding parties,
8that type of thing.
SEQ.Did you submit discovery to Mr. Landrith?
10A.I did. In fact, in federal court you have
11mandatory Rule 26 disclosures that you just
12have to disclose the documents that you believe
13would support your case. I did that and I
14believe Mr. Landrith eventually did it, it took
15some time, but yes.
16EQ.Did-- was your discovery answered by Mr.
17Landrith?
18A.Yes, it was.
19EQ.Okay. But did you at some point make a request
20for sanctions against Mr. Landrith?
21A.It was-- his response wasn’t timely. And if I
22recall correctly, I don’t have the dates in
23front of me, but it took him at least 90 to 120
24days to respond to that. And I eventually had
25to file a motion to compel. The motion to
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1compel answers to the discovery was granted and
2sanctions were also ordered.
30.Do you remember the amount of sanctions?
4A.I don’t, I’m sorry.
SEQ.Were they ever paid?
6A.No.
7EQ.Did you have a pretrial co~ference in this
Scase?
9A.Yes, the pretrial conference was held in
10November of 2003.
11EQ.Did you-- did the issue of service of the
12various defendants other than the City of
13Topeka come up?
14A.It did. Prior to the pretrial hearing, there’s
15a pretrial order that you draft, the two
16parties draft and exchange copies and provide
17to the judge prior to the hearing. And in that
18draft of the pretrial order, I admitted that
19there was jurisdiction as to the City of
20Topeka, but denied that there was jurisdiction
21as to any of the other parties because they had
22never been served. After Mr. Landrith received
23that, all of the individual defendants were
24then served either one or two days before that
25pretrial hearing.