IN THE MATTER OF BRET D. LANDRITH BRIEF OF … the Matter of Bret D...1 no. 05-94333 in the supreme court of the state of kansas in the matter of bret d. landrith brief of the respondent,

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No. 05-94333

IN THE SUPREME COURT OF THE STATE OF KANSAS

IN THE MATTER OF BRET D. LANDRITH

BRIEF OF THE RESPONDENT, BRET D. LANDRITH

ANSWER TO DISCIPLINARY COMMITTEE RECOMMENDATION OF DISBARMENT

IN CASE NOS. DA8893 and DA9076

Bret D. Landrith Kansas Supreme Court ID # 20380 2961 SW Central Park, Apt. # G33, Topeka, KS 66611 1-785-267-4084 [email protected] Appearing Pro Se Oral Argument: 25 Minutes

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TABLE OF CONTENTS Introduction 8 Statement of Facts 8 Statement of Issues 18 Arguments And Authorities 18 I. Whether the sovereign interest in disciplining the respondent does not outweigh the state interest in the respondent’s first amendment protected conduct. 18 Goldsmith, Jack Landman and Posner, Eric A., "A Theory of Customary International Law" (November 1998). University of Chicago Law School, John M. Olin Law & Economics Working Paper No. 63 pg.s 83-84. 19 Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 at 1309 (Kan., 1974). 20 Williams v. City of Wichita, 190 Kan. 317, 374 P.2d 578 20 In re Troy, 43 R.I. 279, 291, 111 A. 723, 727-728 20 State v. Walker, 252 Kan. 279, 845 P.2d 1, 11 (1993) 21 State v. Gadelkarim, 256 Kan. 671, 887 P.2d 88, 95 (1994) 21 Lassiter v. Dept. of Social Serv. of Durham Cty., N. Carolina (1981), 452 U.S. 18, 27, 101 S.Ct. 2153 21 Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208 21 In re Hayes (1997), 79 Ohio St.3d 46, 48, reconsideration denied, 79 Ohio St.3d 1492, 21 In re Smith (1991), 77 Ohio App.3d 1, 16 21 In re Babbs, 2004 Ohio 583 at ¶53 (Ohio App. 2/10/2004), 22 K.S.A. 60-2101 22 K.S.A. 20-3018 22 In the Matter of the Adoption of Baby Girl T, 21 P.3d 581 at syl. 6 (Kan. App., 2001) 23

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D.B.S. by and through P.S. v. M.S., 888 P.2d 875 at 884-885, 20 Kan.App.2d 438 (Kan. App., 1995) 23 Rhyne v. State, 38 P.3d 163, 167 (Nev. 2002). 23 McCabe v. R.A. Manning Const. Co., Inc., 674 P.2d 699, 708 (Wyo. 1983). 24 In re Hammermaster, 139 Wash.2d 211, 985 P.2d 924, 936 (1999). 24 State v. Bible, 175 Ariz. 549, 858 P.2d 1152 at 1198 (Ariz., 1993). 24 Ryan v. Commission On Judicial Performance, 45 Cal.3d 518, 247 Cal.Rptr. 378 (Cal., 1988). 25 In re Cox, 164 Kan. 160 AT 167, 188 P.2d 652. 25 Nelson v. Miller, 607 P.2d 438, 227 Kan. 271 at page 451 (Kan., 1980) 26 Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). 26 Griffiths 8212 1336, 37 L.Ed.2d 910, 93 S.Ct. 2851, 413 U.S. 717 dissent at 732-733 (1973). 26 Ramos v. Lamm, 713 F.2d 546 (C.A.10 (Colo.), 1983) 27 In Re Sawyer 19, 20 1959, 360 U.S. 622 at 669, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959) 28 First Amendment 28 42 USC § 1981 28 42 USC § 1985(2) 28 Sixth Amendment 28 Fourteenth Amendment 28 42 USC § 1983 28 Gentile v. State Bar of Nevada, 501 U.S. 1030,1054 (1991) 28

Cambiano v. Neal (Ark., 2000). 28

DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990) 28

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Matzker v. Herr, 748 F.2d 1142, 1150 (7th Cir. 1984)). 28 Worrell v. Henry, 219 F.3d 1197 at 1212 to 1215 (10th Cir., 2000). 28 Brotherhood of Railroad Trainmen v. Virginia Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964). 29 NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 29 Worrell v. Henry, 219 F.3d 1197 (10th Cir., 2000) 29 Rosewood Services, Inc. v. Sunflower Diversified Services, Inc. at 34-35 (Kan., 2003). 29 First Amendment 30

Smith v. Plati, 258 F.3d 1167, 1177 (10th Cir. 2001) 30

Worrell v. Henry, 219 F.3d 1197 at 1212 to 1213 (10th Cir., 2000). 30

Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996) 30 FRCiv.P Rule 4 32 In re Quarles and Butler, 158 U.S. 532, 535-36, 15 S.Ct. 959, 960-61, 39 L.Ed. 1080 (1895). 33 Lachman v. Sperry-Sun Well Surveying Company, 457 F.2d 850, 853 (10th Cir.1972). 33 K.S.A. 60-436 33 State v. Cohen, 229 Kan. 65, 69, 622 P.2d 1002 (1981). 33 K.S.A. 21-3806 33 State v. Reed, 213 Kan. 557, 559, 516 P.2d 913 (1973) 33 Palmer v. Brown, 752 P.2d 685 at 689, 242 Kan. 893 (Kan., 1988) 33

II. Whether The Respondent’s Due Process Rights Were Repeatedly Violated. 33

Winston v. Kansas Dept. of SRS, 274 Kan. ___, ___, 49 P.3d 1274, 1283 (2002), cert. denied 123 S. Ct. 700 (2002) 34 Respondent Prevented From Presenting Record 34

Lytle v. City of Haysville, 138 F.3d 857, 862 (10th Cir. 1998)

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Barred From Raising Constitutional Claims

Saunders v. Flanagan, 62 F.Supp.2d 629 at 633 (Conn., 1999). 34

Cumulative Prosecutorial Misconduct

Floyd v. Meachum, 907 F.2d 347 at 357 (2nd Cir.1990), 35

United States v. Rivera, 900 F.2d 1462, 1471 n. 8 (10th Cir.1990) (en banc)] 35

Fero v. Kerby, 39 F.3d 1462 at 1475 (C.A.10 (N.M.), 1994). 35

Bad Faith Participation in Unlawful Motive

In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). 36

Staton v. Mayes, 552 F.2d 908, 913 (10th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977) 36 Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749 (1927) 36

Exculpatory Evidence Withheld

OMI Holdings, Inc. v. Howell, 918 P.2d 1274 at 1299, 260 Kan. 305 (Kan., 1996) 38 Moore v. State Bank of Burden, 240 Kan. 382, 389, 729 P.2d 1205 (1986), cert denied 482 U.S. 906, 107 S.Ct. 2484, 96 L.Ed.2d 376 (1987) 38 Witnesses Named Were Promptly Retaliated Against

Racial Discrimination

42 U.S.C. § 1981 38 Whren v. United States, 517 U.S. 806 (1996) 38 Marshall v. Columbia Lea Regional Hospital, ___ F.3d ___, 2003 WL 22230113 (10th Cir. September 29, 2003). 38 Marshall 2003 WL 22230113 at *8-9, 38 Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 387, 673 P.2d 1126 (1983) 38 Woods v. Midwest Conveyor Co., Inc., 697 P.2d 52 at page 55, 236 Kan. 734 (Kan., 1985)

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McDonnell Douglas Corp. v. Green, 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 688] (1973) Woods v. Midwest Conveyor Co., 231 Kan. 763, 648 P.2d 234 (1982) (Woods I ).

Woods v. Midwest Conveyor Co., Inc., 697 P.2d 52 Dissent at page 63, 236 Kan. 734 (Kan., 1985). 42 Selective Prosecution

United States v. Armstrong, 517 U.S. 456, 468 (1996). 43 Marshall 2003 WL 22230113 at *8-9 44 Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 387, 673 P.2d 1126 (1983). 44 III. Whether This Has Been A Bad Faith Prosecution.

Dombrowski v. Pfister, supra, 380 U.S. at 485, 85 S.Ct. at 1120 44

Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971). 44

Arkebauer v. Kiley, 985 F.2d 1351, 1358 (7th Cir.1993) 44

Wilson v. Thompson, 593 F.2d 1375, 1382 (5th Cir. 1979) 44

State ex rel. Rome v. Fountain, 234 Kan. 943 at 945, 678 P.2d 146 (1984). 45

State v. Berg, 694 P.2d 427 at 432, 236 Kan. 562 (Kan., 1985). 45

State Bar of Michigan v. Woll, 387 Mich. 154, 194 N.W.2d 835 (1972). 45

ABA Code of Professional Responsibility, Canon 7, EC 7-14 46

Jaques, Matter of, 258 N.W.2d 443 at 450, 401 Mich. 516 (Mich., 1977). 4 6

State v. Berg, 694 P.2d 427 at 432, 236 Kan. 562 (Kan., 1985) 47

In Matter of Rumsey at pg. 8 (Kan., 2003) 47

In re Ratner, 399 P.2d 865, 194 Kan. 362 at 872 (Kan., 1965). 48

Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 48

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In re Ratner, 399 P.2d 865, 194 Kan. 362 at 872 at 868 to 869 (Kan., 1965). 48 IV. Whether The Clear And Convincing Standard Has Been Met.

In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1993). 48

Cimarron Feeders v. Bolle, 17 P.3d 957 (Kan. App., 2001) 48 Dalmasso v. Dalmasso, 269 Kan. 752 at syl.5, 9 P.3d 551 (2000) 48

Ortega v. IBP, 255 Kan. 513, Syl. ¶ 2, 874 P.2d 1188 [1994] 49

20 Am.Jur., Evidence, § 183, pp. 188, 189, 190 49

Fowler v. Enzenperger, 77 Kan. 406, 94 P. 995 49

42 USC §1981 52

42 USC §1983 52

Kansas Supreme Court Rule 5.04 53

10 Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d 2675.2 (1998) 54

Flight Attendants v. Zipes, 491 U.S. 754, 759, 105 L. Ed. 2d 639, 109 S. Ct. 2732 (1989) 54

Hensley v. Eckerhart, 461 U.S. 424, 433, n. 7, 76 L. Ed 2d 40, 103 S. Ct. 1933 (1983) 54 Moore v. St. Paul Fire Mercury Ins Co., 3 P.3d 81 (Kan., 2000) 54

Miller v. City of Mission, Kan., 516 F.Supp. 1333, 1338 (D.Kan.1981) 54

Kansas Supreme Court rule 5.04 54 Gumbhir v. Kansas State Bd. of Pharmacy, 231 Kan. 507, 646 P.2d 1078 at 1085 (Kan., 1982) 54 Conclusion 55 42 USC §1981 55 42 USC §1983 55 Bucher & Willis Consulting Engineers v. Smith, 7 Kan.App.2d 467, 643 P.2d 1156 (1982) 55 Appendix Prior Or Related Cases 56

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INTRODUCTION

This is a contested disciplinary proceeding stemming from the respondent’s

ongoing representation of James Bolden, an African American having his property taken

for a public park and Topeka City Homes, Inc. public housing without compensation by

the City of Topeka. The Disciplinary Administrator seeks the respondent’s disbarment for

his now completed representation of Bolden’s chief witness, D.M.P. in the termination of

his parental rights to his newborn son.

STATEMENT OF FACTS

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 respondent’s representation defending

the liberty interests of a controversial African American client, James Bolden and his

witness David M. Price, who is of American Indian descent. The two client’s controversy

arises from a federal civil rights suit against the City of Topeka for taking Bolden’s two

houses in furtherance of a joint county and city resolution to use one lot for a park and the

other for public housing, both to be developed with federal funds without compensating

Bolden for the takings. Generally Exb. Pgs. 309-351. Despite the US District Court

finding of merit, neither state Human Rights or city Civil Rights Commission attorneys

acted on Bolden’s complaints. Exb. Pg. 351

The neighborhoods where James Bolden’s houses were located have substantial

African American populations. One, Tennessee Town is of historical significance as a

settlement of freed slaves after the Civil War. One home purchased by Bolden was on the

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historic registry. The 2000 US Census and Topeka Planning Department statistics cited

by the Topeka Capital-Journal, in a March 8 th, 2004 article entitled “Tennessee Town;

Central Topeka area seeing benefits of its efforts to rid itself of crime, ‘bad neighborhod’

stigma” show that the neighborhood has 363 non white residents, 230 of which are said

to be “black” compared with 420 white residents. The article quotes a Topeka official

stating that the stigma “may be related to race and socio economic status.”

During the proceedings of a city administrative hearing where the respondent did not

represent Bolden, the Topeka-Shawnee County Planning Commission adopted the

Washburn-Lane Parkway Plan on October 22, 2001, and that this plan was approved by

the Topeka City Council on November 13, 2001, and by the Shawnee County Board of

Commissioners on November 26, 2001.” City’s Admissions Apdx 520-1 ¶ 21. “The

Washburn-Lane Parkway Plan”, consolidates the City of Topeka’s planning for the

neighborhoods James Bolden’s property is located in. Exb. Pgs. 319-320 The City of

Topeka filed a complaint seeking to demolish James Bolden’s house at 1146 Washburn

shortly after the City of Topeka identified a public use for the land Mr. Bolden’s house

sits on:“The Washburn-Lane Parkway Plan Working Group began meeting in May of

2001.” (Apdx., pg. 1030) The West side of the 1100 block on which James Bolden’s

house sits is marked in green and depicted without any structures. See Washburn-Lane

Parkway Plan Map 4 “adopted 6/12/01” (Apdx., pg. 1040)

Shortly after the City of Topeka Planning Departments’ adoption of this plan and

map, Bolden’s House at 1146 SW Washburn was given complaint and notice of hearing

on 79-2001 (see Apdx., pg. 1083, Complaint signed by Meg Perry ). The Washburn-

Lane Parkway Plan was adopted by Topeka City Council on November 13, 2001 (see

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Apdx., pg. 1025) Exb. Pg. 320 and shows Bolden’s property between 11 th and 12th

made into a green way, the map key color is green and states this is “open space.” Exb.

Pg. 130

A hearing was held before the Honorable Eric S. Rosen, District Judge, on October

30, 2002. Bolden was represented by counsel other than the respondent and was

permitted to present evidence and make arguments to the court during this hearing. Judge

Rosen denied Bolden’s request for an injunction and ordered that the City could proceed

with the demolition of the structures located at 1146 S.W. Washburn and 421 S.W.

Tyler in accordance with the previous orders of the administrative hearing officers.

Judge Rosen also found that Bolden had failed to comply with the requirements set

forth by the City’s Department of Housing and Neighborhood Development

(“HND”) to participate in the relevant funding program, and thus he denied

Bolden’s request for an injunction requiring HND to “follow its own rules.” Apdx. PTO

pg. 889-894 # 1-23 Exb. Pg. 323

On November 8, 2002, Bolden filed a pro se request for a new trial, alleging that

Judge Rosen had abused his discretion in a manner that prevented Bolden a reasonable

opportunity to present evidence and to be heard on the merits of the case, that Judge

Rosen had erred in granting the City’s motion for a directed verdict, and that Judge

Rosen’s decision was made under the influence of prejudice. Apdx. PTO pg. 889-894 #

1-23.

On November 21, 2002, the City notified Bolden that his services would only be

retained at 515 S. Kansas Avenue through December 31, 2002. Exb. Pg. 323, 325 On

November 25, 2002, a hearing was held on the motion referred to in the immediately

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preceding paragraph. Bolden’s request for a new trial was denied.On December 18,

2002, Bolden filed a notice of appeal with regard to the above-described rulings by the

District Court of Shawnee County, Kansas. This act was referred to as a retaliation

against Bolden for his protected speech. Jonathan Paretsky used this assertion to justify

retaliating against Bolden and the respondent in the Kansas Court of Appeals.

Ms. Marybeth Mudrick, counsel for the City telephoned Bolden’s counsel upon

Mayor Felker’s receipt of the December 11, 2002 demand letter stating James Bolden

would seek an injunction in federal court and damages if the city continued its actions to

injure Mr. Bolden and Ms. Mudrick told Bolden’s counsel that he should not represent

Mr. Bolden because of “who he is.” Exb. Pg. 149 She also recounted that he had many

other attorneys representing him, that had withdrawn from the case. Magistrate O’Hara

questioned both Mr. Bolden and the plaintiff’s counsel about these circumstances during

the November 20th pretrial hearing. Mr. Bolden’s previous attorney is still missing.

Bolden filed a docketing statement in the Kansas Court of Appeals on January 21,

2003. Exb. Pg. 137-138 He alleged that the statutory authority for the appeal was

“violations of constitutional rights and due process” and that the appeal challenged

the constitutionality of a statute or ordinance. Bolden further stated that the issues raised

by the appeal were that he “challenges trial court’s criteria for evaluating the

lawfulness of city ordinances allowing demolition on a 15% basis. [Bolden] believes

city agency made determination on invalid ordinance and defective due process.

[Bolden] challenged the validity of legal assertions made to trial court about the

validity of the city ordinance under state statute requirements. Finally, [Bolden]

challenges the constitutional validity of the city ordinance, even if it had been properly

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enacted.” Bolden also stated that a “determination of lawfulness of city action is required

for federal civil rights action.” Apdx. PTO pg. 889-894 # 1-23 The Kansas Court of

Appeals rejected the docketing statement because the certified Shawnee District Court

documents were deemed insufficient to establish Kansas Appeals Court jurisdiction. A

show cause order was issued. Apdx. Pg. 602 “”Bolden has with reluctance been forced to

choose withdraw over the threatened dismissal or continued bad faith prosecution of this

appeal…”, See also ¶¶ 1-3 pg. 603-4.

The unsafe structures at 1146 S.W. Washburn were demolished on January 7th

2003. The unsafe structures at 421 S.W. Tyler were demolished on February 12th 2003

before Bolden could have a chance to have his appeal heard. Apdx. Pg. 605-6 ¶ 9., Apdx.

Pg. 526 ¶38 Exb. Pg. 138

On April 21, 2003, Bolden moved to “withdraw” the above-described

appeal. On May 5, 2003, the Kansas Court of Appeals granted Bolden’s motion for

voluntary dismissal and dismissed his appeal. An ethics complaint was filed by Judge G.

Joseph Pierron, Jr., Judge David S. Knudson, Judge Lee A. Johnson and Jonathan M.

Paretsky against Bolden’s counsel, the respondent in this action on May 9, 2003 for

representing Bolden and his witness David Price, two controversial clients SEE

AFFIDAVIT OF BIAS before the Kansas Court of Appeals. The conduct complained of

appeared to be performance as required by the KRPC, under sections 1.1, 1.2,1.3, 2.1 1.4,

6.1. Exb. Pg. 131

The complaining witnesses accused the respondent 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” Exb. Pg. 122-127 to describe the actions in

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carrying out an appeal as in to prosecute an appeal1 Exb. Pg. 155 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).

The respondent withdrew the appeal of the African American client James Bolden

Exb. Pg. 122 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 respondent sought a clarification of a motion order, the Kansas Court of

Appeals took what Mr. Paretsky described were informal sanctions against the

respondent for raising due process and equal protection concerns in appellate court

motions.

In his motion to voluntarily withdraw the appeal and to assign costs, the

respondent 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. Exb. Pg.

126, 139, Final Hearing Report The complaining witnesses made the costs part of this

motion into an attempt to “sanction the court” (sic) one of the most serious ethics

“violations” alleged against the respondent.

1 Prosecute is not used in this context by the State of Kansas, but is used in this

context by the Clerk of the Tenth Circuit Court of Appeals, Partrick J. Fischer Jr. in a memo enclosed in every packet of instructions for counsel entitled “Prosecuting Appeal.” The American Heritage Dictionary of the English Language: Fourth Edition, 2000 has as its first definition of prosecute as an intransitive verb “1. To initiate and conduct legal proceedings.”Neither the KRPC nor any ethics case describe a penalty for use of this verb.

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The witness against the City of Topeka who the respondent 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

respondent observed that none of the adoption and child custody statutes had been

complied with, that interstate compact adoption records had been visibly altered to

fraudulently represent the adopting parents as residing in Kansas when they lived in

Colorado. Exb. Pg. 55-157, 210-214, 213 (document defects) Judge Pierron, despite

filing the prejudicial ethics complaint and serving as a director of one of the state’s

largest adoption contractor corporations2, strongly admonished the respondent for raising

concerns about the legitimacy of the adoption. The appellate opinion inaccurately stated

that the respondent sought only SRS records the father was not entitled to despite

numerous appellate motions for many kinds of court records the respondent and his client

had been denied access to. Despite this new issue giving the respondent an appeal by

right under K.S.A. 60-2101(b), the Kansas Supreme Court denied review.

The Clerk of the Supreme Court ordered that the respondent’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

2 “Judge Pierron has served as President of the Kansas Committee for the Prevention of Child Abuse and on the board of directors of the Kansas Children's Service League.” Kansas Court of Appeals Home Page http://www.kscourts.org/ctapp/gjp_coaj.htm

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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 field3. SEE AFFIDAVIT OF BIAS When asked

why by the client, Carol Green stated she had never had any problems with the client. On

December 7th 2004, Jason Oldham testified that he had never experienced any problem

behavior from the client.

On December 3, 2003, Sherri Price, counsel representing the City of Topeka.

filed an ethics complaint against Bolden’s counsel for including as an exhibit in this

action the prior ethics complaint filed by a state agency against Bolden’s counsel for

representation in Bolden’s federal case.

On July 24th, 2003, Bolden’s janitorial van was firebombed as it sat parked next

to his single wide mobil home.The assistant city counsel, Sherri Price was made aware of

the failure of the police to make a report of the incident despite Bolden’s request during

Bolden’s deposition on the October 16, 2003 and no report was ever made. Bolden

testified that he was in fear that next his trailer would be burned while he was sleeping.

Transcript of James Bolden Deposition pgs. 190, 191, 195, AFFIDAVIT OF BIAS

On November 6th, 2003, James Bolden’s two witnesses David M. Price and Janice

Lynn King took evidence they had collected for James Bolden to the District Attorney’s

Office Exb. Pg. 438 showing the misappropriation of federal housing funds by City

3 An interesting case, the client defendant was prosecuted for failing to yield the right of way, though having stopped to avoid an inattentive oncoming driver. The state prosecuted him for driving the lead bus in a military convoy despite the clear language of the statute that even private vehicles in a military convoy have right of way over all vehicles except emergency vehicles and postal vehicles. See 48-252a. Movement of state and national military forces; exemption from traffic regulations; priority of right-of-way, exceptions and 48-252b covering private vehicles including the defendants contract carrier under Army orders.

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government and the role of the City Attorney’s office in assisting the mayor by creating

ordinances not complying with state statute that were not signed by the City Attorney

Brenden Long as required by statute. The District Attorney’s investigator remarked that

Brenden Long should be disbarred. Exb. Pg. 438

On November 7th, 2003 Mayor Harry Luckert Felker announced his resignation

and an agreement with the District Attorney Robert Hecht not to prosecute Mayor Harry

Luckert Felker was also announced. See Topeka Capital Journal 11/07/03.

During a Pre Trial order Conference held on November 20th, 2003,Magistrate

O’Hara suggested Bolden sue his counsel for malpractice. In the Magistrate’s report and

recommendation he stated “the court is deeply troubled with Mr. Landrith’s apparent

incompetence.” And that Bolden ”appears more articulate than Mr. Landrith. Plaintiff

may be better served by representing himself without any attorney if indeed Mr. Landrith

is the only attorney willing to take the case.” Apdx. Pg. 711

On November 25th, 2003 Sherri Price, attorney for the City of Topeka entered the

property of Bolden’s American Indian witness Fred Sanders with two police cars, a fire

department car and a code compliance officer alleging the failure to have a privacy fence

though no statute requirement for one could be named. Sherri Price threatened to

criminally prosecute Fred Sanders in what Bolden’s fellow African American witness

Frank Kirdoll described was an attempt to intimidate him into not giving testimony

against the City. See affidavit of Frank Kirtdoll Apdx. Pg. 1022

The Disciplinary Administrator wrote the respondent stating he would be

“formally prosecuted” immediately after the respondent called an African American

witness to testify about Topeka officials retaliating against protected courtroom speech in

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an unrelated federal case. The City of Topeka Housing Authority issued an eviction

notice against another of the respondent’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.

The Disciplinary administrator omitted affidavits of City of Topeka retaliation

against process servers and the respondent’s federal witnesses Exb. Pg. 438-440 used to

explain the decision not to subject volunteer process servers to substantial risk which

were included in the respondent’s timely answer to the second ethics complaint and

obtained a “probable cause” finding to prosecute the respondent for a second ethics

complaint brought by the city attorney for including the first ethics complaint in the

evidentiary attachments of the respondent’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.

The complaint also alleged that the respondent 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. Exb. Pg. 440 The respondent 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

respondent utilized this alternative state basis for effecting process under Federal Rule of

Civil Procedure, Rule 4 (e)(1) and Rule 4(h)(1). Exb. Pg. 440

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The Chief Judge of the Tenth Circuit, Deanell R. Tacha reviewed evidence

submitted by the respondent regarding Hon. Judge O’Hara’s conduct in the Bolden case

and in a confidential order dated March 23, 2005 determined the conduct described to be

in the nature of bias.

On April1 14th, 2005, the Kansas Disciplinary Administrator filed in the Kansas

Supreme Court the recommendation of a tribunal that James Bolden’s attorney, the

respondent be disbarred. The respondent is still representing James Bolden before the

Tenth Circuit, appealing the City of Topeka’s argument it is immune for acts of

discrimination against African Americans because 42 U.S.C. §1981 no longer provides

rights enforceable under 42 § 1983.

On Wednesday, April 20 th, 2005 the Federal Bureau of Investigation raided

Topeka City Homes, Inc., described on the fourth page of the second amended federal

complaint as one of the instrumentalities created by the city to self deal HUD funds and

seized its records. The April 21st and 22nd, 2005 Topeka Capital Journal article

described the agency’s problems for the time period of James Bolden’s complaint.

STATEMENT OF ISSUES

I. Whether the sovereign interest in disciplining the respondent does not outweigh the

state interest in the respondent’s first amendment protected conduct. II. Whether the

respondent’s due process rights were repeatedly violated. III. Whether this has been a bad

faith prosecution. IV. Whether the clear and convincing standard has been met.

ARGUMENTS I. Whether the sovereign interest in disciplining the respondent does not outweigh the state interest in the respondent’s First Amendment protected conduct.

19

When federal and state statutes specifically protect the conduct charged against

the respondent and the Kansas Rules of Professional Conduct require the actions

complained of, the Disciplinary Committee’s recommendation cannot be described as

based upon state interest. Similarly, courts have resolved issues regarding conduct

charged against the respondent as protected by constitutional law and state statute. The

state officials complaining against the respondent were able to cause the respondent to be

investigated and prosecuted by the state and it cannot be refuted that these state actions

were taken pursuant to state policies, however this does not mean that the governmental

interests being exerted were legitimate interests, or even public or state interests. In fact,

excluded testimony and evidence proffered by the respondent indicated the actions were

in furtherance of impermissible private interests.

An analysis of Kansas governmental interests necessitates the examination of

competing legislative, judicial and administrative branch interest, including the actions of

the branch’s various agencies and the motives of state officials. In Customary

International Law (“CIL”), the concept of a unitary state interest is a recognized over

simplification.”…this strategy oversimplifies, for political leadership is in many contexts

not unitary. For example, the United States divides the determination of the national

interest in foreign relations along several dimensions among the President, the Congress,

and the Senate. In addition, of course, agency problems remain… a nation’s political

figures—usually but not always in the national executive branch—determine a nation’s

views about the content of CIL and order national actions that either contribute to or defy

the behavioral regularities that are said to constitute CIL.” See Goldsmith, Jack Landman

and Posner, Eric A., "A Theory of Customary International Law" (November 1998).

20

University of Chicago Law School, John M. Olin Law & Economics Working Paper No.

63 pg.s 83-84.

The interests of powerful state officials, the Disciplinary Administrator Stanton

Hazlett whose brother is an adoption attorney and whose agency has disclosed a conflict

of interest when a natural parent complainant knows of the relationship and conceals it

otherwise; Hon. Judge Pierron who was on the board of directors for the corporation that

was Kansas largest adoption contractor during the period of the respondent’s

representation of D.M.P. in the Baby C case; the interest of Sherri Price as Topeka

Assistant City Attorney and Magistrate O’Hara a former Kansas State Disciplinary

Official who’s law firm was and is at serious risk, embroiled in an unrelated matter with

the respondent all would cause an impartial observer to conclude that the respondent and

his two clients were subject to conflicts of interest preventing impartiality. The private or

agency interests of the complaining witnesses and prosecutor were in conflict with the

actual state interest of Kansas.

Courts look to the legislating authority to determine the public policy. “We

conclude the threshold limitation is a determination by the Legislature of public policy”

Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 at 1309 (Kan., 1974). This court does

not decide nor weigh the beneficial results flowing from any particular legislative policy.'

(Williams v. City of Wichita, 190 Kan. 317, 374 P.2d 578.)

The public policy interest is clearly in the respondent representing James Bolden

and David Price lawfully to accomplish their goals. The public policy is against the

respondent representing D.M.P. in the way approved of by Austin K. Vincent, the

opposing adoption counsel or even to the ends of approved of by Hon. Judge Pierron,

21

now a former director to Kansas’ sole adoption contractor under newspaper, Shawnee

District judges and legislative criticism for failing to process children efficiently. “We

will understand that an independent bar, as well as an independent court, is always a

vigilant defender of civil rights.' “ In re Troy, 43 R.I. 279, 291, 111 A. 723, 727-728.

In the 5 page ethics complaint Exb. Pg. 413 timed to be served on the respondent

a newly licensed attorney at the time he was to write D.M.P.’s adoption brief and in the

opinion’s admonishment of the respondent , Hon. Judge Pierron was clearly acting with

impermissible bias designed to injure D.M.P. and the respondent, contrary to clear

Kansas public policy. The trial judge must exercise restraint over his conduct and

utterances, must suppress his personal predilections, and must control his temper and

emotions, and when it becomes necessary during trial for the judge to comment upon the

conduct of witnesses, spectators, counsel, or others, he should do so in a firm, dignified

and restrained manner. State v. Walker, 252 Kan. 279, 845 P.2d 1, 11 (1993). The trial

judge should be the exemplar of dignity and impartiality, should avoid repartee, should

avoid any conduct that tends to demean the proceedings, and should not permit any

person in the courtroom to embroil him in conflict. State v. Gadelkarim, 256 Kan. 671,

887 P.2d 88, 95 (1994).

The legitimate state interest is in upholding the constitution and the rights of

natural parents was embodied in the respondent’s conduct creating so much reproach

from Hon. Judge Pierron:

"[A] parent's desire for and right to `the companionship, care, custody and management of his or her children' is an important interest that `undeniably warrants deference and, absent a powerful countervailing interest, protection.' "Lassiter v. Dept. of Social Serv. of Durham Cty., N. Carolina (1981), 452 U.S. 18, 27, 101 S.Ct. 2153, quoting Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208. Therefore, "[a] parent's interest in the accuracy and injustice of the decision

22

to terminate his or her parental status is, therefore a commanding one." Lassiter, at 27. (Footnote omitted.) See, also, In re Hayes (1997), 79 Ohio St.3d 46, 48, reconsideration denied, 79 Ohio St.3d 1492, quoting In re Smith (1991), 77 Ohio App.3d 1, 16 (observing that in cases pertaining to permanent termination of parental rights "parents `must be afforded every procedural and substantive protection the law allows'").

In re Babbs, 2004 Ohio 583 at ¶53 (Ohio App. 2/10/2004). The In re Babbs, 2004

Ohio 583 at ¶¶57-60, a later case than the respondent’s coincidentally examined the same

lack of sufficient notice of name and courtroom experienced by D.M.P. as described by

the respondent in the appellant briefs with citations to the record and voided the

termination of the appellant's parental rights out of Due Process concerns. In re Babbs,

2004 Ohio 583 at ¶53 (Ohio App. 2/10/2004),

Hon. Judge Pierron declined to acknowledge a liberty interest putting the term in

quotations and failing to apply the required heightened standard to the appellees. Kansas

has a state interest in recognizing the constitutional rights of D.M.P. and his liberty

interest in parenthood. Kansas has an expressly stated state policy embodied in K.S.A.

60-2101, Appellate jurisdiction of court of appeals and supreme court; to an appeal by

right to the Kansas Supreme Court from Hon. Judge Pierron’s decision contradicting this

constitutional right under section (b):

“(b) The supreme court shall have jurisdiction to correct, modify, vacate or reverse any act, order or judgment of a district court or court of appeals in order to assure that any such act, order or judgment is just, legal and free of abuse. “…and any decision of the court of appeals shall be subject to review by the supreme court as provided in subsection (b) of K.S.A. 20-3018, and amendments thereto, except that any party may appeal from a final decision of the court of appeals to the supreme court, as a matter of right, whenever a question under the constitution of either the United States or the state of Kansas arises for the first time as a result of such decision.” [emphasis added]

The tribunal mocked the respondent’s pleadings citing this statute and accord this

legislated public policy no honor or consideration as they similarly treated our state’s

23

mandamus statue , believing that conforming to a state statute and Kansas Supreme Court

decisions provides no basis for an attorney’s conduct when that attorney represents James

Bolden, an African American or his witness David Price.

In fact, a liberty interest is clearly the law for nonputative fathers. “Without

question, the Fourteenth Amendment protects the parent/child relationship as a

fundamental liberty interest which cannot be abrogated by the state without compelling

interest.” In the Matter of the Adoption of Baby Girl T, 21 P.3d 581 at syl. 6 (Kan. App.,

2001) and Kansas has failed to recognize it for natural fathers outside of marriage. See

D.B.S. by and through P.S. v. M.S., 888 P.2d 875 at 884-885, 20 Kan.App.2d 438 (Kan.

App., 1995): “Instead, if G.F., in fact, has a liberty interest, which we do not hold herein,

the proper procedure would be to identify with particularity what the State's interests are

so that they can be balanced against G.F.'s interests.” However In the Matter of Bay C

involved an intact married family’s decision to put up for adoption an infant where blood

test had identified D.M.P. as the father. As such it was a case of first impression on this

constitutional issue. The outcome of Baby C was that the commercial interest of the

private adoption attorney outweighed the constitutionally protected interest of the natural

father.

Similarly, the Kansas public policy is not in the respondent declining to represent

James Bolden when replacement counsel could not and still cannot be found. Public

policy requires the respondent to represent James Bolden’s opposition to the City of

Topeka’s taking property for public purposes without compensation or regard for

minority rights or even the terms of the federal funds the City is misappropriating.

24

Extraordinary and worthy of remark are the two communications Magistrate

O’Hara made directly to the respondent stating he should sue the respondent for legal

malpractice. The trial judge must not interject himself into the attorney-client relationship

between the defendant and counsel. Rhyne v. State, 38 P.3d 163, 167 (Nev. 2002). The

trial judge must allow counsel freedom to present their respective cases, regardless of

whether the trial judge may feel the case is proceeding on the wrong theory or that the

trial judge would try the case differently. McCabe v. R.A. Manning Const. Co., Inc., 674

P.2d 699, 708 (Wyo. 1983). Of course, Magistrate O’Hara knew as a matter of lesser

public policy there is no insurable interest where there is no difference in recovery

against a municipality or its named officers in their official capacity. See Magistrate

O’Hara’s footnote infra.

There is no public policy interest in Magistrate O’Hara using his federal position

to teach the respondent a lesson at the cost of James Bolden, either to avenge the

perceived sleight to Kansas Judicial branch officials at the inclusion of the ethics

complaint as an attachment to Bolden’s federal case or to retaliate against the respondent

for the ongoing Medical Supply Chain. Inc. matter with the law firm he was a managing

partner of. The concept of judicial independence does not equate to unbridled discretion

on the part of the judge to bully and threaten. In re Hammermaster, 139 Wash.2d 211,

985 P.2d 924, 936 (1999).

The prosecutor and the tribunal had no business continuing a bad faith

investigation or prosecution against the respondent to further the private interests of state

officials that conflict with Kansas public policy and the recognized clear constitutional

interests of citizens subject to state actions with the potential to impair a liberty interest.

25

“The judge then stated, "I can tell you the judges of this court thought that would teach you a lesson." Contrary to this statement, deciding whether to grant a continuance involves "the interests of justice." Ariz.R.Crim.P. 8.5(b). The stakes are high in criminal cases, and critical decisions should not rest, in whole or in part, on an attempt to somehow teach an attorney a lesson.”

State v. Bible, 175 Ariz. 549, 858 P.2d 1152 at 1198 (Ariz., 1993). A California

court in Ryan v. Commission, 45 Cal.3d 518 similarly found prehearing threats and

efforts to justify a ruling by adding false allegations to be contrary to public policy in the

extreme:

“The judge stated to Bedore that he would teach Wiggins's attorney a lesson. He also refused to state his reasoning for the sentence to Wiggins's attorney, but admitted to the press that there had to be some incentive to plea bargain. Moreover, the judge privately told Bedore that he could support the sentence by claiming that Wiggins committed perjury during trial, even though the trial had not yet occurred. Then, when the superior court ordered the judge to justify the sentence, Judge Ryan relied on his fabricated allegation of perjury despite the fact that perjury had never been charged or determined.

The misconduct in this matter is especially serious because it indicates that the judge was willing to fabricate justifications for a challenged ruling. This is misconduct of the worst kind, evidencing moral turpitude and dishonesty.”

Ryan v. Commission On Judicial Performance, 45 Cal.3d 518, 247 Cal.Rptr. 378

(Cal., 1988).

The duties of a lawyer as a court officer assisting in the administration of justice

are discussed In re Cox, 164 Kan. 160, 188 P.2d 652, where this court stated as follows:

“The right to practice law is a privilege or franchise subject to the control of the legislature. While functioning by virtue of such privilege a lawyer is a quasipublic official. . . . While he does not hold an office or public trust in the constitutional or statutory sense of that term he is nevertheless an officer of the court and as such has an obligation to the public no less significant than his obligation to his client. . . . His privilege to engage in the practice of law in the courts carries with it a duty to assist in the administration of justice. He is a part of the machinery provided by government in the performance of its functions in administering justice. . . . To the extent he fails to perform that duty he undermines and endangers the true purpose and functions of government.”

In re Cox, 164 Kan. 160 AT 167, 188 P.2d 652.

26

The legal profession, often worrying about negative public perception had cause

to celebrate in the American Film Institute’s announcement this year. “Deeply principled

and idealistic attorney Atticus Finch (portrayed by Gregory Peck), from To Kill A

Mockingbird, was chosen as the greatest hero in 100 years of film history..” The moral

courage of the fictional southern attorney in representing a client scorned by his

community is symbolic to the popular culture of the highest virtue.

The State of Kansas has recognized this strong public policy interest and

commands against discouraging representation by Kansas attorneys:

“The lawyers of Kansas have traditionally represented their clients with zeal and professional competence in accordance with the highest traditions of the legal profession. Without their professional endeavors the basic liberties of the people might well have disappeared long ago. Kansas lawyers have made outstanding contributions in their representation of the poor and underprivileged, and in the development of new principles of law to meet the needs of our changing society. They must not be discouraged in those endeavors.”

Nelson v. Miller, 607 P.2d 438, 227 Kan. 271 at page 451 (Kan., 1980). The

respondent in following this court’s guidance was continuing this profession’s traditions

and values:

“The history of the legal profession is filled with accounts of lawyers who risked careers by asserting their independent status in opposition to popular and governmental attitudes, as John Adams did in Boston to defend the soldiers accused in what we know in our folklore as the 'Boston Massacre.' To that could be added the lawyers who defended John Peter Zenger and down to lawyers in Modern times in cases such as Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The crucial factor in all these cases is that the advocates performed their dual role—officer of the court and advocate for a client—strictly within and never in derogation of high ethical standards.”

Mr. Chief Justice BURGER, with whom Mr. Justice REHNQUIST joins,

dissenting. Griffiths 8212 1336, 37 L.Ed.2d 910, 93 S.Ct. 2851, 413 U.S. 717 dissent at

732-733 (1973).

27

The Kansas state legislature in addition to controlling the privilege of practicing

law also determines the state interest or public policy and ensures that all Kansans have

equal access to justice. The Kansas legislature twice recently created laws attempting to

remedy the targeting of African Americans by state justice officials and during James

Bolden’s case, the legislature changed the statute the City of Topeka used to justify

condemnation of James Bolden’s two houses to prevent Topeka’s abuse of the law in

acquiring property in older minority neighborhoods. Also, during the case,the City of

Topeka’ legislative body, the city council also changed the unconstitutional 15% damage

criteria used as a pre text to take James Bolden’s land to a 30%.

Surprisingly, the tribunal was unfamiliar with the Kansas Rule of Professional

Conduct preventing attorneys from rejecting the representation of controversial potential

clients, denigrating the respondent for a “personal belief” irrelevant to the state interest.

The Tenth Circuit recognizes an attorney is sometimes stigmatized for civil rights work:

“Situations in which great courage is required to undertake a case, like that confronting the fictional lawyer in To Kill a Mockingbird, may still exist. But a bonus for the social stigma assumed by a lawyer participating in civil rights litigation should rarely be given.”

Ramos v. Lamm, 713 F.2d 546 (C.A.10 (Colo.), 1983). It was wrong of the

Kansas Supreme Court Clerk’s office to place more impediments to James Bolden’s

cause being heard in court, certainly with knowledge of the problems obtaining records in

Shawnee Court. Part of the representation of James Bolden in the public interest involved

addressing this wrongness on conclusion of the case with the withdrawl of the appeal. In

1959, the right to do so was not yet clearly established for Harriet B. Sawyer:

“Certainly courts are not, and cannot be, immune from criticism, and lawyers, of course, may indulge in criticism. Indeed, they are under a special responsibility to exercise fearlessness in doing so.”

28

Mr. Justice Frankfurter, whom Mr. Justice Clark, Mr. Justice Harlan and Mr.

Justice Whittaker join, dissenting. In Re Sawyer 19, 20 1959, 360 U.S. 622 at 669, 79

S.Ct. 1376, 3 L.Ed.2d 1473 (1959).

It is a clearly established right for purposes of qualified immunity of the non

judge complaining witnesses that the First Amendment rights of the respondent and the

42 USC § 1981, 42 USC § 1985(2) rights of the respondent and his two clients andhis

clients rights under the Sixth and Fourteenth Amendment regarding effective

representation and the right to testify, seek redress and exercise freedom of speech, all

enforceable against the state and its nonjudge officials 42 USC § 1983 are not balanced

against a state agency’s assertion of a governmental interest, since neither the respondent

nor his two clients are government employees. Actions protected by the First Amendment

continue to receive at least some level of protection "even when the attorney violates a

disciplinary rule he swore to obey when admitted to the practice of law." Gentile v. State

Bar of Nevada, 501 U.S. 1030,1054 (1991). See also Cambiano v. Neal (Ark., 2000).

It may be observed that in this Tenth Circuit Test there is no “same decision”

defense or other consideration given to a competing government interest when the motive

was unlawful: "'An act taken in retaliation for the exercise of a constitutionally protected

right is actionable under 1983 even if the act, when taken for a different reason, would

have been proper.'" DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990) (quoting

Matzker v. Herr, 748 F.2d 1142, 1150 (7th Cir. 1984)). Worrell v. Henry, 219 F.3d 1197

at 1212 to 1215 (10th Cir., 2000).

29

It has long been recognized that illegitimate state interests even when attempted to

be enforced through bar disciplinary actions can not be used to interfere with the

attorney’s ability to represent his clients’ fundamental rights:

“A State could not, by invoking the power to regulate the professional conduct of attorneys, infringe in any way the right of individuals and the public to be fairly represented in lawsuits authorized by Congress to effectuate a basic public interest.”

Brotherhood of Railroad Trainmen v. Virginia Virginia State Bar, 377 U.S. 1, 84

S.Ct. 1113, 12 L.Ed.2d 89 (1964).

In NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405, the Supreme

Court held that 'although the petitioner has amply shown that its activities fall within the

First Amendment's protections, the State has failed to advance any substantial regulatory

interest, in the form of substantive evils flowing from petitioner's activities, which can

justify the broad prohibitions which it was imposed.' Id. 371 U.S., at 444, 83 S.Ct. at 343,

9 L.Ed.2d 405.

The appropriate test is not the balancing test from Pickering but instead that

described for nongovernmental employees in Worrell v. Henry, 219 F.3d 1197 (10th Cir.,

2000). The tribunal’s recommendation cannot legitimize the state’s unlawful prosecution

of the respondent where it has been shown (1) that the respondent was engaged in

constitutionally protected activity ; (2) that the state’s actions caused the respondent "to

suffer an injury that would chill a person of ordinary firmness from continuing to engage

in that activity" ; and (3) that the state's adverse action was substantially motivated as a

response to the respondent 's exercise of constitutionally protected conduct. Rosewood

Services, Inc. v. Sunflower Diversified Services, Inc. at 34-35 (Kan., 2003).

30

"Injury" is not equivalent to suffering compensatory damages. Rather, it more

broadly encompasses any consequences caused by defendants' conduct that would chill a

person of ordinary firmness from continuing to exercise their First Amendment rights.

Thus, the court's inquiry must focus "upon whether a person of ordinary firmness would

be chilled, rather than whether the particular plaintiff is chilled." Smith v. Plati, 258 F.3d

1167, 1177 (10th Cir. 2001) (emphasis in original).

“In our view, this approach, rather than the Pickering balancing, provides the appropriate framework for assessing First Amendment claims against a defendant who is neither an employer nor a party to a contract with the plaintiff. By focusing on the protected activity, the effect of the defendant's actions, and the defendant's intent, this approach reduces the risk of infringement of protected speech that might result from application of the Pickering balancing.”

Worrell v. Henry, 219 F.3d 1197 at 1212 to 1213 (10th Cir., 2000).

Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855

(1996). stands for the proposition that when all the proffered rationales for state action

are clearly and manifestly implausible, a reviewing court may infer that animus is the

only explicable basis. And animus alone cannot constitute a legitimate government

interest.

The charged conduct against the respondent has constantly changed. Originally,

the complaints upon which Stanton Hazlett alleged probable cause a violation of the

KRPC had been committed contained no violations and on their face contained no

assertions of conduct by the respondent that possibly violated the KRPC. In fact, the

respondent pointed out in his first written response that the complained of conduct was

that required of an ethical attorney under the KRPC.

Most disturbing to the complainants and to Stanton Hazlett throughout the

investigation who refused to read documents or check cited controlling law, the

31

respondent was clearly too stupid to be an attorney because he used the term of art “bad

faith prosecution” to describe the initiating and conduct of James Bolden’s appeal.

Jonathan Paretsky is still certain that because the staff of the Kansas Supreme Court are

not prosecutors, the respondent lacks the mental capacity to be an attorney.He like

Hazlett ignored the cited case law justifying federal jurisdiction based on a showing of

“bad faith prosecution” the Ex Parte Young exception to the Younger Doctrine. Paretsky

and Hazlett also made the respondent’s declaration of costs upon withdraw into a

“sanction” against the court, despite that it followed the clear Kansas Supreme Court rule,

unfamiliar to both Jonathan Paretsky, Jason Oldham and Stanton Hazlett who of course

ignored the citations to statute made by the respondent in the very pleadings exhibited as

proof of the respondent’s ethical violation.

Jonathan Paretsky, Jason Oldham , Stanton Hazlett and the tribunal still refuse to

accept that both state statute and case law, along with federal statue expressly provide for

shifting of fees and costs and that as a civil rights plaintiff in a federal case, James Bolden

is entitled if he substantially prevails to the attorneys fees and costs, even in related cases.

Exb. Pgs. 142, 144 However, specifically the state has recognized that Bolden where he

is displaced by federally funded public projects, even if he is legally unsuccessful is still

entitled to relocation expenses, attorneys’ fees and costs all of which have not yet been

sought in state court. Discussed in Clear and Convincing, infr.a However, even if they

had been, fee shifting by statute is not a sanction and Stanton Hazlett’s persistance in

making it out to be one is a strong argument against his capacity to be an attorney.

The second complaint by opposing counsel for the City of Topeka charged the

respondent with including the first complaint as an attachment filed in James Bolden’s

32

federal case where it was required to substantiate the bad faith exception to the Younger

doctrine Supra. Clearly, this was an unresearched accusation where the respondent is

fully entitled to First Amendment rights to publicize an ethics complaint and had the

responsibility to do so where it was material to James Bolden’s federal rights of access to

justice under the Sixth Amendment. The second accusation in the complaint was equally

resolved by clear controlling authority, the reliance on the City Attorney Sherri Price and

Mary Beth Mudrick’s unreserved appearance effecting service of process made the city

subject to federal jurisdiction under FRCiv.P Rule 4 , just like it does in Kansas state

courts. Stanton Hazlett had prima facie evidence that Sherri Price and Mary Beth

Mudrick failed to assert an important defense but no suggestion of the respondent’s

misconduct.

Stanton Hazlett resorted again to a bad faith finding of probable cause for another

investigation of the respondent when half way through the ethics trial and realizing he

had not delivered the goods ( a case justifying the respondent’s disbarment) for the

private interests he was serving, On January 19th Stanton Hazlett accorded this false

probable cause to another complaint from an opposing counsel in Sam Lipari’s case

Medical Supply Chain, Inc. v. US Bancorp et al. The complainant was from the Overland

Park law firm office where Magistrate O’Hara testified he did the hiring of attorneys.

And Stanton Hazlett abandoned his arguments for the respondent’s discipline under

DA8893 and DA9076 and instead used the new complaint to say the respondent had been

sanctioned, and that the representation of D.M.P. who had made a pro se notice of appeal

much earlier than the respondent’s representation began was a ethical violation because

the appeal was “frivolous” and therefore the respondent should be disbarred.

33

It has long been recognized as public policy to encourage citizens to report

crimes. In re Quarles and Butler, 158 U.S. 532, 535-36, 15 S.Ct. 959, 960-61, 39 L.Ed.

1080 (1895). The Tenth Circuit has stated "[i]t is public policy ... everywhere to

encourage the disclosure of criminal activity." Lachman v. Sperry-Sun Well Surveying

Company, 457 F.2d 850, 853 (10th Cir.1972). The Kansas Legislature's provision for an

"informer's privilege," K.S.A. 60-436, is "based upon sound public policy to encourage

those who have knowledge of crime to come forward and give information to law

enforcement officers without fear of disclosure." State v. Cohen, 229 Kan. 65, 69, 622

P.2d 1002 (1981). Palmer v. Brown, 752 P.2d 685 at 689, 242 Kan. 893 (Kan., 1988).

Corruptly influencing a witness by attempting to deter the witness from giving

evidence is a felony. K.S.A. 21-3806. This court held in State v. Reed, 213 Kan. 557, 559,

516 P.2d 913 (1973), that "a person who has knowledge of facts out of which a criminal

prosecution might arise is a 'witness' within the meaning of the statute." (Emphasis

added.) The statute is thus sufficiently broad to encompass state agency officials attempts

to coerce the respondent to remain silent about her knowledge of HUD funding fraud by

the City of Topeka and fraud in the adoption of Baby C. Palmer v. Brown, 752 P.2d 685

at 689, 242 Kan. 893 (Kan., 1988).

II. Whether the Respondent’s Due Process Rights Were Repeatedly Violated

In reviewing a procedural due process claim, the court must first determine

whether a protected liberty or property interest is involved. If it is, then we determine the

nature and extent of the process due. Winston v. Kansas Dept. of SRS, 274 Kan. ___, ___,

49 P.3d 1274, 1283 (2002), cert. denied 123 S. Ct. 700 (2002).

34

Respondent Prevented From Presenting Record. The respondent was

prevented from presenting the record related to the charges against him. Witnesses were

prevented from making reference to documents answering the arguments of Stanton

Hazlett’s case on the tribunal’s constantly repeated admonishments of the respondent not

to question witnesses on issues that turned out to be the tribunal’s report recommendation

for disbarment.

In cases involving activity that may be protected under the Free Speech Clause,

"an appellate court has an obligation to make an independent examination of the whole

record in order to make sure that the judgment does not constitute a forbidden intrusion

on the field of free expression." Lytle v. City of Haysville, 138 F.3d 857, 862 (10th Cir.

1998) (internal quotation marks omitted).

Barred From Raising Constitutional Claims. The respondent’s due process was

forfeited when he was barred from raising constitutional claims including selective

prosecution and prevented from providing witness testimony proffered for that purpose.

The state court proceeding including the evidentiary hearing and this review are an

inadequate opportunity to fully and fairly defend the respondent’s federal rights.

"So long as a plaintiff is not barred on procedural or technical grounds from raising alleged constitutional infirmities, it cannot be said that state court review of constitutional claims is inadequate for Younger purposes." Hansel, 56 F.3d at 394.

Saunders v. Flanagan, 62 F.Supp.2d 629 at 633 (Conn., 1999).

Cumulative Prosecutorial Misconduct.The cumulative effect of the instances of

Disciplinary Office prosecutorial misconduct, discussed above, deprived the respondent

of a fair and meaningful evidentiary hearing and prevents this court from doing the same.

See Floyd v. Meachum, 907 F.2d 347 at 357 (2nd Cir.1990), (holding that "[w]hile each

35

instance of prosecutorial misconduct, standing alone, might not justify reversal, the effect

of all of them requires it."). The circumstances of the respondent’s bad faith prosecution

and the perpetuation of vindictiveness destroyed any semblance of lack of

bias.“[W]hether the entire trial was so fundamentally unfair that defendant's due process

rights were violated."[ quoting United States v. Rivera, 900 F.2d 1462, 1471 n. 8 (10th

Cir.1990) (en banc)] Fero v. Kerby, 39 F.3d 1462 at 1475 (C.A.10 (N.M.), 1994).

Bad Faith Participation in Unlawful Motive. The respondent’s right to Due

Process were violated by Stanton Hazlett’s willful dereliction of his responsibility to

independently investigate the first ethics complaint against the respondent even though

the respondent’s first answer cautioned him of the need due to the status of the

complaining witnesses and the potential of their position as judges improperly

influencing the outcome. Hon. Judge Pierron it turned out had an undisclosed fiduciary

interest that was directly affected financially by the resolution of the issues in a Shawnee

Court appeal of the termination of parental rights as a past director of Kansas Children’s

Service League (KCSL) the state’s sole adoption contractor with a thirty million dollar

contract for Kansas adoptions. During the time of D.M.P.’s case, KCSL was at risk of

losing that contract and another 13 million dollar foster care contract because of problems

in Shawnee District court. This and the timing

36

of the complaint to coincide with the preparation of D.M.P.’s opening brief

shouted the probability the complaint was motivated by unfairness.

“A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.”

In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955);

Staton v. Mayes, 552 F.2d 908, 913 (10th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309,

54 L.Ed.2d 195 (1977). "[E]very procedure which would offer a possible temptation to

the average man as a judge ... not to hold the balance nice, clear and true between the

State and the accused, denies the latter due process of law." Murchison, 349 U.S. at 136,

75 S.Ct. at 625 (quoting Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed.

749 (1927)). However, Hon. Judge Pierron neither sanctioned the respondent nor

prosecuted him.

Stanton Hazlett, the Disciplinary Administrator was responsible for exercising

independent professional judgment which would have led him to assign it to an outside

investigator because of the first degree relative, Stanton’s brother Alan Hazlett who is an

adoption attorney and past president of the American Academy of Adoption Attorneys,

but Stanton Hazlett did not do that. Cite PTO even though the Disciplinary Office had

assigned other complaints in adoption to someone other the Stanton Hazlett when the

complainant knew of the relationship. Stanton Hazlett made decisions to dismiss

complaints against adoption attorneys when the relationship was unknown by the

complainant and the Disciplinary Administrator’s office dismisses complaints with

attached evidence of very serious ethical violations by natural parents who were deceived

into thinking they were forming an attorney client relationship with an adoption attorney,

37

only to have representation refused and that confidential information given to the

opposing adoption attorney seeking to terminate their parental rights.

During this proceeding, many of those complaints were refiled and dismissed

again even though they provided probable cause of misconduct far more serious than the

Disciplinary Administrator has charged here. The Office of the Kansas Disciplinary

Administrator under Stanton Hazlett has a history of not enforcing the KRPC against

adoption attorneys or appointed attorneys required to provide “Due Process” to parents

whose infants are marketable. So much so that a Kansas State Representative concerned

about Kansas’ reputation as an baby supermarket wrote a letter complaining of the lack of

enforcement to Stanton Hazlett. He tribunal refused to let her testify.

Exculpatory Evidence Withheld. Exculpatory evidence was withheld from the

first and second ex parte probable cause hearings. The respondent’s first answer to the

first disciplinary complaint and the adoption case briefs used as evidence by Stanton

Hazlett cite Kansas case law, this jurisdiction’s controlling authority that ex parte

communication with a fact finder imposes a duty on an attorney to disclose all material

information. Stanton Hazlett disregarded this professional duty or did not perform the

required diligence of a prosecutor and witheld material affidavits and other exculpatory

evidence contained as attachments from both complainants and the respondent in order to

fraudulently obtain a finding of probable cause ethics violations had been committed by

the respondent.

Witholding information an attorney has a duty to disclose in the civil context is

clearly fraud and in no way can meet the standard of fundamental fairness embodied in

the respondent’s Due Process Rights, no matter how relaxed in the context of a “quasi-

38

criminal” disciplinary proceeding. OMI Holdings, Inc. v. Howell, 918 P.2d 1274 at 1299,

260 Kan. 305 (Kan., 1996) stated the definition of fraud found in a Kansas case, Moore v.

State Bank of Burden, 240 Kan. 382, 389, 729 P.2d 1205 (1986), cert denied 482 U.S.

906, 107 S.Ct. 2484, 96 L.Ed.2d 376 (1987), which states:

"The broad outlines of fraud are said to include any cunning, deception, or artifice used, in violation of legal or equitable duty, to circumvent, cheat, or deceive another. The forms it may assume and the means by which it may be practiced are as multifarious as human ingenuity can devise, and the courts consider it unwise or impossible to formulate an exact, definite, and all-inclusive definition of the action. It is synonymous with, or closely allied to, other terms indicating positive and intentional wrongdoing, but is distinguishable from mistake and negligence. [Citation omitted.] ... There must be a concealment of facts which the party is under a legal or equitable duty to communicate and in respect of which he could not be innocently silent. [Citation omitted.]"

Witnesses Named Were Promptly Retaliated Against. The respondent named Frank

Williams as a witness to Stanton Hazlett’s pattern and practice of not being familiar with

the complaint case he is prosecuting to the point of not reading the subject cases. A few

days later the state sought to seize Southwestern Bell stock on a long dormant judgment

never served on Mr. Williams or revived in court beyond the statute of limitations.

Several natural parents, mothers of infants taken in Kansas and their grandparents

were named as willing to testify about Stanton Hazlett’s relationship to adoption

attorneys and how the threat of ethics prosecutions, like Austin K. Vincent made against

the respondent are used to keep Kansas licensed attorneys from zealously representing

natural parents in an adoption parental rights termination. This widespread practice made

it difficult and or impossible for some of the witnesses to obtain attorneys, even when

they could afford to do so. They also made ethics complaints against adoption attorneys

after the PTO, but the Disciplinary Office dismissed them without investigation in either

retaliation or naked discriminatory prosecution.

39

Racial Discrimination. While the respondent is a member of the majority race, his

advocacy on behalf of James Bolden and D.M.P. was protected under 42 U.S.C. § 1981.

The Equal Protection Clause precludes selective enforcement of the law based on

race or ethnicity. See Whren v. United States, 517 U.S. 806 (1996). In its recent decision

in Marshall v. Columbia Lea Regional Hospital, ___ F.3d ___, 2003 WL 22230113 (10th

Cir. September 29, 2003). the Tenth Circuit noted

“Racially selective law enforcement violates this nation's constitutional values at the most fundamental level; indeed, unequal application of criminal law to white and black persons was one of the central evils addressed by the framers of the Fourteenth Amendment.”

In Marshall 2003 WL 22230113 at *8-9, the Tenth Circuit stated that claims of

racially discriminatory traffic stops and arrests should be held to a "similarly high

standard," comparing them to the standard required for claims of selective prosecution.

The respondent proffered witnesses with testimony showing that the prosecution

was deliberately based upon an arbitrary, illegal, or otherwise unjustifiable standards. The

respondent was charged for representing an African American and an American Indian

who were at all times treated differently than litigants who were members of a majority

race. Both clients were controversial because of their outspoken advocacy against the

city’s misuse of federal housing money in its minority neighborhoods. Pork Motel, Corp.

v. Kansas Dept. of Health & Environment, 234 Kan. 374, 387, 673 P.2d 1126 (1983).

40

The respondent’s pleadings were singled out by Jonathan Paretsky according to

his testimony because they were different than the thousands of other motions his office

process each year. When questioned he revealed it was their conduct describing the

events related to James Bolden’s and the respondent’s efforts to obtain the Shawnee

District court case file and records required to docket an appeal. It cannot be refuted that

the respondent’s descriptions of Equal Protection and Due Process violations in the

obstruction of the African American James Bolden’s attempt to appeal the taking of his

land in Topeka’s historical African American settlement and in Topeka’s two minority

neighborhoods was the initial motivation for the state’s actions against the respondent.

Racial Discrimination requires Clear and Convincing evidence, however Stanton

Hazlett and the tribunal repeatedly prevented the respondent from presenting this

evidence.

Stanton Hazlett witheld the affidavits of African Americans discriminated against

and retaliated against by the City of Topeka for raising concerns about the misuse of

federal housing funds and for asserting rights in Shawnee District court in order to obtain

fraudulent probable cause in an ex parte hearing in order to prosecute the respondent for

representing two members of protected classes.

The tribunal refused to let Mark Hunt an affiant in James Bolden’s case testify,

the African American former Army officer who testified as a witness called by the

respondent against the City of Topeka in an unrelated case. It was likely a response to

Mark Hunt being called as a witness that prompted Stanton Hazlett to send the “Notice of

Formal Prosecution” to the respondent in retaliation. The respondent’s other civil rights

client Melvin Johnson a disabled veteran recovering from a stroke was retaliated against

41

that night by Topeka Housing. Mark Hunt was retaliated against in the following days by

Bruce Woolpert and city officials in the Kansas National Guard.

The tribunal refused to let Frank Kirtdoll an African American who had lost

property to the city and attempted to have Magistrate O’Hara recused for bias in a federal

case testify. Frank Kirtdoll had made an affidavit in James Bolden’s case as a witness to

the assistant city attorney Sherri Price’s threat to criminally prosecute Fred Sanders a

minority Topeka business man for land use violations if he testified against the city in the

federal case. The affidavit stated Sherri Price came on to Fred Sanders property with two

police cars and a code compliance officer to perform an inspection knowing Fred Sanders

attorney was out of town. This is of course the threat of criminal prosecution that is a

violation of Kansas ethics in the recent Kansas Bar Association Journal article.

The tribunal also refused to let Fred Sanders testify who was prevented from

taking office as elected president of the Monroe Neighborhood Improvement Association

where the Brown vs. Board of Education historic site is located for almost a year because

he questioned what had happened to federal funds the city claimed had been spent in the

neighborhood. The city also obtained a list of his property and retaliated against him by

citing violations.

The tribunal prevented the respondent from putting on the testimony of William

Zander regarding the use of ethics complaints against as a threat to deter Kansas attorneys

from representing civil rights clients zealously against Kansas government entities.

42

The tribunal prevented the respondent from putting on the testimony of Phil Cline

of McLouth Kansas regarding the unwillingness of the Disciplinary Administrator to

investigate or prosecute municipal attorneys.

The respondent refused to allow the respondent to put on the testimony of Topeka

city prosecutor John Knoll about the conduct he was not investigated or prosecuted for.

This court has found instances of complaints to be subterfuge or pretext used to

justify unlawful retaliation:

“They called in a mediator and reluctantly concluded Woods' claim was correct. He had not returned late and his termination was therefore unlawful. In spite of the mistake, management was determined to fire Woods. It was then decided to fire Woods for getting angry at management for trying to fire him without just cause. It was suggested he should have gone quietly and filed a grievance. Such action sounds rational, but it was an impractical solution to William Woods' problem. He had previously filed grievances from which nothing transpired. He had been subjected to a pattern of racial discrimination for a long period of time at Midwest. He had been unjustly accused of overstaying his vacation. No one would listen to his side of the dispute. He considered this a mere continuation of the racial discrimination. He protested in righteous indignation, demanding that management listen to his side of the story. He proved he was correct.”

Woods v. Midwest Conveyor Co., Inc., 697 P.2d 52 at page 55, 236 Kan. 734

(Kan., 1985). The federal and Kansas rule is that once a litigant makes a prima facie case

of discrimination or unlawful motive, the other party can make a showing it took the

action for legitimate nondiscriminatory reasons, shifting the burden back to the original

litigant to show by substantial competent evidence that the motive was unlawful.

McDonnell Douglas Corp. v. Green, 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 688]

(1973) and Woods v. Midwest Conveyor Co., 231 Kan. 763, 648 P.2d 234 (1982) (Woods

I ). The latter being quoted in Justice McFarland’s dissent:

“Once the employer shows a legitimate nondiscriminatory reason, "the complainant must continue with the burden of proving by a preponderance of the evidence that the reasons offered by respondent were merely a pretext for discrimination." As a

43

matter of law, Woods' bare, unsupported opinion does not and cannot carry this burden.”

Woods v. Midwest Conveyor Co., Inc., 697 P.2d 52 Dissent at page 63, 236 Kan.

734 (Kan., 1985). The actions of Stanton Hazlett and the Tribunal have denied the

respondent the constitutional right to put on evidence required to meet the heavy burden

of a showing of racial discrimination.

Selective Prosecution. In motions before the pre trial hearing, during the pretrial

hearing and during the ethics evidentiary trial, the respondent raised the defense of

Selective Prosecution as a violation of his Due Process rights. Stanton Hazlett and the

tribunal recognized a substantial basis existed to find that the respondent was selectively

prosecuted so they denied the respondent his Sixth Amendment right to call witnesses

and put on evidence and testimony of Selective Prosecution. Selective Prosecution has a

high evidentiary standard which the tribunal ensured the respondent would not be

allowed to meet, even to the point of dishonoring their state and their position as

Disciplinary Hearing Panel officers by breaking their pretrial order promise that the

respondent could call Stanton Hazlett as a witness. This promise was not made until the

respondent agreed to testify during the hearing. The tribunal did not break this promise

until after the respondent testified, further exhibiting their utter contempt for any

semblance of fairness.

A defendant claiming unequal enforcement of a facially neutral statute must show

both that the enforcement had a discriminatory effect, and that the enforcement was

motivated by a discriminatory intent. United States v. Armstrong, 517 U.S. 456, 468

(1996). In Marshall 2003 WL 22230113 at *8-9, the Tenth Circuit stated that claims of

44

racially discriminatory traffic stops and arrests should be held to a "similarly high

standard," comparing them to the standard required for claims of selective prosecution.

The respondent proffered witnesses with testimony showing that the prosecution

was deliberately based upon an arbitrary, illegal, or otherwise unjustifiable standards. The

respondent was charged for representing an African American and an American Indian

who were at all times treated differently than litigants who were members of a majority

race. Both clients were controversial because of their outspoken advocacy against the

city’s misuse of federal housing money in its minority neighborhoods. Pork Motel, Corp.

v. Kansas Dept. of Health & Environment, 234 Kan. 374, 387, 673 P.2d 1126 (1983).

The actions of Stanton Hazlett and the Tribunal have denied the respondent the

constitutional Due Process right to put on evidence required to meet the heavy burden of

a showing of selective prosecution.

III. Whether This Has Been A Bad Faith Prosecution

Justice Brennan stated in his concurrence Perez v. Ledesma, 401 U.S. 82:

“[I]f in order to discourage conduct protected by the First Amendment or by some other provision of the Constitution, a State brings or threatens to bring a criminal prosecution in bad faith for the purpose of harassment, the bringing of the prosecution or the threat is itself a constitutional deprivation since it subjects a person to a burden of criminal defense which he should not have to bear, and there then exists a situation "in which defense of the State's criminal prosecution will not assure adequate vindication of constitutional rights." Dombrowski v. Pfister, supra, 380 U.S. at 485, 85 S.Ct. at 1120 (other citations omitted).

Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971). "`[A]

showing of bad faith (prosecution) is equivalent to a showing of irreparable injury for

purposes of the comity restraints defined in Younger.'" Arkebauer v. Kiley, 985 F.2d

1351, 1358 (7th Cir.1993) (quoting Wilson v. Thompson, 593 F.2d 1375, 1382 (5th Cir.

1979). The injury is irreparable because the prosecution itself is the constitutional

45

violation and the criminal defendant's right to be free of a bad faith prosecution is not

redressed by defending against the criminal charges in state court. Wilson, 593 F.2d at

1382-83.

While the Disciplinary Administrator is performing a public function, the actions

against the respondent have been private in nature to advance interests contrary to public

policy and the rulings of this court:

"a private individual has no right to prosecute another for crime and no right to control any criminal prosecution when one is instituted.... [T]he philosophy of this state has always been that a criminal prosecution is a state affair and the control of it is in the public prosecutor."

State ex rel. Rome v. Fountain, 234 Kan. 943 at 945, 678 P.2d 146 (1984).

Stanton Hazlett was supposed to have no personal interest in the prosecution of the

respondent:

“The prosecutor is an officer of the state who should have no private interest in the prosecution and who is charged with seeing that the criminal laws of the state are honestly and impartially administered, unprejudiced by any motives of private gain. It is his duty to show the whole transaction as it was, regardless of whether it tends to establish a defendant's guilt or innocence.”

State v. Berg, 694 P.2d 427 at 432, 236 Kan. 562 (Kan., 1985). In acting out of

improper motive, the Discipline Office including its administrator and the disciplinary

panel have violated the Due Process rights of the respondent. In accordance with the

intention that the prosecution acts for the state, ethics prosecutions are considered quasi

criminal. “We have long recognized that discipline and disbarment proceedings are

quasi-criminal in character. State Bar of Michigan v. Woll, 387 Mich. 154, 194 N.W.2d

835 (1972).

The Disciplinary Administrator withheld documents that were clearly material

and exculpatory to the respondent during ex parte hearings before a panel to obtain a

46

probable cause determination allowing him to proceed. First with DA8893 and then with

DA9076.

In withholding the documents to obtain a false probable cause determination, the

Disciplinary Administrator Stanton Hazlett violated his duty to this court and the

respondent.

“We do agree, however, that although not bound by the prophylactic rule of criminal law concerning res gestae witnesses, counsel for the Grievance Administrator does have the duty to seek justice and to develop a full and fair record. See ABA Code of Professional Responsibility, Canon 7, EC 7-14 concerning government lawyers. “

Jaques, Matter of, 258 N.W.2d 443 at 450, 401 Mich. 516 (Mich., 1977). The

Disciplinary Administrator and the Discipline tribunal would have recognized the

seriousness of the ex parte duty violated had the respondent’s written response to the

first charges ever been read or if the tribunal had been unbiased and an independent

investigation had ever been performed. Instead, the Disciplinary Administrator relied

solely on the complaining witnesses representations See Deposition of Jason Oldham.

The key prosecution witness to the subject transactions in DA 8893 had never been

interviewed by Stanton Hazlett or investigators before his testimony. Neither had the

respondent’s clients or witnesses in the underlying actions.

Many serious KRPC and constitutional violations were committed by the

Discipline office to deliver a false bill against the respondent on behalf of the private

interests the complaints were obviously in furtherance of:

“An attorney who is hired by a complaining witness must act in the interest of his client which may not be in the interest of the general public. Accordingly, we conclude that the Rome case is dispositive of the case at bar. The addition of an attorney, hired by the complaining witness under 19-717, does not distinguish this case from the rationale of Rome. The person representing the State in a criminal

47

proceeding must be a "law-trained, independent public prosecutor rather than a vengeful persecutor." Rome, 234 Kan. at 951, 678 P.2d 146. (Emphasis added.)”

State v. Berg, 694 P.2d 427 at 432, 236 Kan. 562 (Kan., 1985) This court has

condemned similar failures to independently exercise professional judgment like those of

Stanton Hazlett, see In Matter of Rumsey at pg. 8 (Kan., 2003) quoted supra.

The Kansas Supreme Court has actually been confronted with an attorney

disciplinary action where the machinery of state power, including the State’s elected

Attorney general was harnessed in service to the private commercial interests of the

railroad industry in preventing a Kansas father and son legal practice from representing

railroad union members in the Brotherhood's Legal Aid Plan which was designed to assist

members of the Brotherhood who had been injured while at work, or the survivors of

those who had been killed. The railroads used today’s practice of going after the attorney

in order to prevent railroad workers from having affordable access to legal representation

that might assert the injured workers rights or those of their survivors against the

railroads. Understandably defending railroads against personal injury torts was a severe

economic hardship to railroads accustomed to bypassing local attorneys and obtaining the

injured worker’s signature on a settlement without attorney’s fees and good investment

capital being wasted fighting in court.

Like the present case, the prosecuting attorney’s responsibility investigation of the

ethics violation seems to have been abdicated and left to the complaining witnesses:

“Much of the evidence introduced by the accusers was originally furnished by railroad claim agents and investigators. There is much in the record to indicate they were unfriendly, if not actively hostile, to the respondents.”

In re Ratner, 399 P.2d 865, 194 Kan. 362 at 872 (Kan., 1965). However, an

intervening US Supreme Court case Brotherhood of Railroad Trainmen v. Virginia, 377

48

U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 reaffirmed the rights of attorneys to represent the

economically disadvantaged, overturning the Virgina Supreme Court’s injunction against

the Brotherhood the United States Supreme Court held:

“We hold that the First and Fourteenth Amendments protect the right of the members through their Brotherhood to maintain and carry out their plan for advising workers who are injured to obtain legal advice and for recommending specific lawyers. Since the part of the decree to which the Brotherhood objects infringes those rights, it cannot stand; and to the extent any other part of the decree forbids these activities it too must fall. And, of course, lawyers accepting employment under this constitutionally protected plan have a like protection which the State cannot abridge.' (pp. 7, 8, 84 S.Ct. p. 1118.)”

In re Ratner, 399 P.2d 865, 194 Kan. 362 at 872 at 868 to 869 (Kan., 1965).

IV. Whether The Clear And Convincing Standard Has Been Met.

This court will adopt the disciplinary report and recommendation where: (1)

amply sustained by the evidence, or (2) it is not against the clear weight of the evidence,

or (3) the evidence consisted of sharply conflicting testimony. In re Carson, 252 Kan.

399, 406, 845 P.2d 47 (1993).

“The Kansas Supreme Court has noted that "clear and convincing evidence is not a quantum of proof but, rather, a quality of proof. . . . It is clear if it is certain, unambiguous, and plain to the understanding. It is convincing if it is reasonable and persuasive enough to cause the trier of facts to believe it." Ortega, 255 Kan. at 528.”

Cimarron Feeders v. Bolle, 17 P.3d 957 (Kan. App., 2001).

An appellate court will not disturb a negative finding, "absent proof of an

arbitrary disregard of undisputed evidence or some extrinsic circumstance such as bias,

passion, or prejudice." Haneberg, 270 Kan. at 374; Dalmasso v. Dalmasso, 269 Kan. 752,

758, 9 P.3d 551 (2000). “Substantial evidence is evidence which possesses both

relevance and substance so as to form a basis of fact from which the issues can be

reasonably resolved.” Dalmasso v. Dalmasso, 269 Kan. 752 at syl.5, 9 P.3d 551 (2000).

49

"[E]vidence is convincing 'if it is reasonable and persuasive enough to cause the trier of

facts to believe it.'" 264 Kan. at 277 (quoting Ortega v. IBP, 255 Kan. 513, Syl. ¶ 2, 874

P.2d 1188 [1994]).

The tribunal’s report is clearly in error where it faults the respondent for seeking

the ICPC documents filed with the SRS and which were part of the trial court record but

not available to D.M.P.’s first counsel or to D.M.P. when he acted pro se and which

Austin Vincent opposed the production of during the adoption appeal. This is not libeling

Austin Vincent, it is the ethical responsibility of the respondent to seek those records and

if they are withheld, to treat their withholding as obstruction and accord their contents to

be contrary to how the opposing side represents them.

Where relevant material evidence is within the control of a litigant whose interest

would naturally be served by its production his unexplained failure to produce it permits

an inference that it would be unfavorable to him. (20 Am.Jur., Evidence, § 183, pp. 188,

189, 190.) This is the rule pronounced Fowler v. Enzenperger, 77 Kan. 406, 94 P. 995, in

which the court held:

'As a general rule the omission by a party to produce important testimony relating to a fact of which he has knowledge, and which is peculiarly within [194 Kan. 367] his own reach and control, raises the presumption, open to explanation of course, that the testimony, if produced, would be unfavorable to him.' (Syl. p 5.)

The Disciplinary hearing panel members Randall D. Grisell, Sally Harris and

Michael Schmitt were apprised in the pretrial order hearing of Stanton Hazlett’s omission

of the reply brief meticulously cited to the record and countering Austin Vincent’s

statement of facts in order to fraudulently obtain a finding of probable cause against the

respondent. In their recommendation, Randall D. Grisell, Sally Harris and Michael

Schmitt assert as Stanton Hazlett fraudulently asserted that the respondent failed to

50

adequately cite to the record in D.M.P.’s appeal brief. The respondent’s opening brief

alone made sixty seven citations to the record to support D.M.P.’s contentions which

coincidentally also were the same assertions that the tribunal charges the respondent for

untruthfulness in failing to support with a basis in fact.

If misrepresenting critical facts to this court in order to falsely charge the

respondent were not egregious enough, the hearing panel members were served affidavits

showing how this same technique is used by Kansas adoption attorneys to take infants

from natural parents by deceiving the court. In the controversial Wilson case which the

Kansas Court of Appeals allowed to be televised as part of KAKE’s investigative series

on our state’s adoption controversy, Martin Bauer who taught CLE’s with Austin Vincent

publicized as giving instructions on how to evade Kansas adoption laws used this same

technique: “ On page 17, Martin generalizes falsely that that many of DW cites can’t be

found however every single one can.” In the Matter of the Application to Adopt Baby Girl

W., Case No. 01-87291, Reply Brief of Appellant, page 7.

The Disciplinary hearing panel relies heavily on the report and recommendation

of Magistrate O’Hara and his testimony before the tribunal. However, Magistrate

O’Hara’s report and his testimony exhibit a profound bias. It is clear that as a former

Kansas Disciplinary Office employee and a managing partner in the firm opposing the

respondent in the continuing controversial matter now captioned Medical Supply v.

Novation, et al, Missouri District Court case No. 05-0210-CV-W-ODS. Magistrate

O’Hara was able to use the first ethics complaint against the respondent, which he

described as a “sticky wicket” and his mistaken view of alternative state process under F.

R. Civ. P. Rule 4 to avenge the honor of the Kansas State Judicial Branch. However, the

51

respondent and James Bolden were seeking an unbiased forum and not a continuation of

the equal protection and due process problems encountered in the Kansas Court of

Appeals where the respondent was informally sanctioned for reporting the inability to

access James Bolden’s record in Shawnee District court.

In a footnote 19 on page 10 of Magistrate O’Hara’s Report and Recommendation,

even Magistrate O’Hara acknowledges that Bolden is not harmed by the lack of service

when the City of Topeka attorneys failed to assert a defense to jurisdiction in their

appearance: “In contrast, as a practical matter, it appears that plaintiff probably

would suffer little, if any, prejudice if the individual defendants were dismissed.”

Yet this false accusation that the respondent as a new attorney harmed Bolden is the

foundation of the Disciplinary case against the respondent for representing James Bolden.

Despite repeated briefings on the clear statute and case law contradicting the belief that

the respondent with affidavits of retaliation against process servers by the City of Topeka

could not rely on the effect of the city’s entry of appearance, Randall D. Grisell, Sally

Harris, Michael Schmitt and Stanton Hazlett continue to demand the respondent get

disbarred for it. If there was an ethics breach, Sherri Price and Mary Beth Mudrick, two

very experienced and capable attorneys who failed to assert a defense to jurisdiction in

their first written appearance committed it. The respondent does not believe it to be a

violation. Randall D. Grisell, Sally Harris, Michael Schmitt and Stanton Hazlett must

believe that the respondent is guilty of a violation because he represented an African

American but that Sherri Price and Mary Beth Mudrick are not because they represent a

state agency, The City of Topeka.

52

The issue of whether the city officials were subject to the jurisdiction of the

federal court, along with whether the City of Topeka is liable for racial discrimination in

violation of 42 USC §1981 asserted through 42 USC §1983 is currently before the Tenth

Circuit Court of Appeals. Randall D. Grisell, Sally Harris, Michael Schmitt and Stanton

Hazlett appear to be seeking that this court resolve these issues, effectively denying

James Bolden his federal appeal just as the City of Topeka in destroying James Bolden’s

two houses in a Christmas holidays rush effectively denied Bolden his state appeal.

During Magistrate O’Hara’s Pretrial Order Conference, Magistrate O’Hara

advised James Bolden to consider suing the respondent for malpractice, based on the

Magistrate’s mistaken view of the law and in reference to the record of the Kansas Court

of Appeals complaint and answer:

But, Mr. 14 Bolden, you ought to be aware of the fact that 15 if these six defendants are ultimately 16 dismissed from the case by Judge Vratil that 17 you would have certain remedies that you might 18 want to discuss with another lawyer that you 19 could exercise against Mr. Landrith, who's 20 charged with responsibly and professionally 21 representing you in this case. And I-- I don't 22 mean to be uncharitable to either of you, but 23 this case has been handled in an exceptionally

1 doing any worse if you were to represent 2 yourself. And I have a lot of folks in civil 3 rights case that do represent themselves. But 4 this case, in this Court and based on what is 5 of public record in the Kansas Court of 6 Appeals, is disturbing to say the least. Transcript of Magistrate O’Hara’s Kansas District Court PTO conference.

Magistrate O’Hara made the following comments in his recommendation:

“Stated more directly, the court is deeply troubled by Mr. Landrith’s apparent incompetence. The pleadings he has filed (see, e.g., docs. 1, 13, 23, 35, 37, & 42),

53

and his non-responsive, rambling, ill-informed legal arguments during the pretrial conference, suggest that he is not conversant with even the most basic aspects of the Federal Rules of Civil Procedure. The court doubts that Mr. Landrith has any better grasp of the substantive law that applies to this case. Based on what transpired at the pretrial conference, plaintiff appears more articulate than Mr. Landrith. Plaintiff may be better served by representing himself without any attorney if indeed Mr. Landrith is the only attorney willing to take the case.”

Magistrate O’Hara’s Report and Recommendation pg. 12 and ordered the report

sent to James Bolden:

The Clerk’s Office shall serve copies of this report and recommendation on all counsel of record, and shall also send a copy via certified mail, return receipt requested, to the plaintiff, Mr. James L. Bolden, at 4218 S.E. Ridgeview Terrace, Topeka, Kansas 66609.

Magistrate O’Hara’s Report and Recommendation pg. 13. In his testimony before

the committee, it appeared that Stanton Hazlett and Magistrate O’Hara had discussed

enhancing Magistrate O’Hara’s testimony to counter the respondent’s testimony from the

day before. This is where the law student theme is exploited. If this happened and a jury

in a Missouri federal court will evaluate whether it did, it would be a violation of federal

statutes against obstruction of justice.

Also disclosing costs in a voluntary dismissal or withdrawl in anticipation of

Kansas Supreme Court Rule 5.04 is most assuredly not a sanction. The Kansas Judicial

branch has a dire shortage of competent legal staff or in the alternative racial prejudice is

accepted as a virtue. In Moore v. St. Paul Fire Mercury Ins Co. The Kansas Supreme

Court recognized the vast spectrum of fee shifting statutes:

“There are well over 200 federal fee statute provisions. The largest growth in fee-shifting statutes has been in the civil rights field. 10 Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d 2675.2 (1998). The United States Supreme Court has held that attorney fee award provisions in civil rights actions are sufficiently similar so that decisions interpreting one are applicable to all. Flight Attendants v. Zipes, 491 U.S. 754, 759, 105 L. Ed. 2d 639, 109 S. Ct. 2732 (1989); Hensley v. Eckerhart, 461 U.S. 424, 433, n. 7, 76 L. Ed 2d 40, 103 S. Ct. 1933 (1983).”

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Moore v. St. Paul Fire Mercury Ins Co., 3 P.3d 81 (Kan., 2000). Unlike sanctions,

fees are to be awarded to the prevailing plaintiff in § 1983 actions unless there are special

circumstances making such award unjust. Miller v. City of Mission, Kan., 516 F.Supp.

1333, 1338 (D.Kan.1981).

An impartial observer would reasonably conclude that Jonathan Paretsky, Stanton

Hazlett and the tribunal are profoundly racist and prejudiced against African Americans

for making the respondent’s disclosure of costs in a voluntary dismissal which Kansas

Supreme Court rule 5.04 provides will be can be assessed against the respondent and his

client. Surprisingly this rule is unfamiliar to the Kansas Judicial Branch officials who

make it into an ethical violation or threat of sanction and demand the disbarment of a

Kansas attorney. Exb. Pg.s 142, 144

This court recognizes state courts can award attorney’s fees to a prevailing party,

See Gumbhir v. Kansas State Bd. of Pharmacy at syl.1 and also “…an inquiry that cannot

even commence until one party has 'prevailed.'” Gumbhir v. Kansas State Bd. of

Pharmacy, 231 Kan. 507, 646 P.2d 1078 at 1085 (Kan., 1982). So an observer could

conclude that Jonathan Paretsky might competently understand the mechanics of fee

shifting statutes when attorneys are representing a non African American party. Jonathan

Paretsky, Stanton Hazlett and the tribunal had the motion before them and saw that James

Bolden had a concurrent jurisdiction federal case where his attorney is required to keep

track of hours.

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CONCLUSION

The Kansas Judicial Branch in the persons of Stanton Hazlett and Hon. Judge

Pierron, through their attorney Steve Phillips is currently before the Tenth Circuit

arguing in pleadings along with the City of Topeka through the person of Sherri Price and

Brenden Long that African Americans do not have rights contained in 42 USC §1981 and

assertable through 42 USC §1983 to make contracts, own property or give testimony

against whites. On November 19, 2003, Pedro Irigonegaray in a Washburn Law School

Democrats Club and Student Bar Association debate with Fred Phelps, Sr. reminded the

audience it was only a short time ago (December 9, 1952) that Paul E. Wilson, Assistant

Attorney General of Kansas, argued before the US Supreme Court that equality of

treatment is accorded when Negroes are provided substantially equal facilities, even

though these facilities be separate.

Today, this court hears two years of Kansas judicial branch efforts to prosecute

the respondent for representing an African American whose two houses and land are

being taken by the City of Topeka for public use without compensation and his chief

witness, a person of American Indian decent who was repeatedly targeted by state

agencies for protected speech on Topeka’s misuse of federal funds and whom the state

repeatedly sought to deny effective representation to.

It is firmly established in this state that the relationship between a lawyer and his

client is one of agency. Bucher & Willis Consulting Engineers v. Smith, 7 Kan.App.2d

467, 643 P.2d 1156 (1982). Stanton Hazlett, Randall D. Grisell, Sally Harris and Michael

Schmitt are attorneys and represent our state’s judicial branch in the conduct of this

investigation and prosecution and Stanton Hazlett and Steve Phillips are now in the

56

defense of the same before the Tenth Circuit. Our state deserves better and none of its

citizens should ever experience this attack on their right to lawfully seek redress in

Kansas courts through the assistance of counsel.

Respectfully submitted,

S/Bret D. Landrith ____________________ Bret D. Landrith Kansas Supreme Court ID # 20380 Appearing Pro Se 2961 SW Central Park, # G33, Topeka, KS 66611 1-785-267-4084 [email protected]

CERTIFICATE OF SERVICE

I Bret D. Landrith certify I have provided a copy of this opening brief to the office

of the Disciplinary Administrator on June 8th, 2005 via hand delivery.

S/Bret D. Landrith ____________________ Bret D. Landrith

APPENDIX OF PRIOR OR RELATED CASES

Bret D. Landrith v. Carol Green Case No. 93673 a Petition for Mandamus in this

court where the respondent unsuccessfully sought to have subpoenas issued for records

required by the respondent to defend in the present action under the US Constitution’s

guarantee of Due Process.

Landrith v. Hazlett et al Case No. 04-3364 (10th Cir.) where the respondent is

currently seeking prospective injunctive relief bad faith, harassment, or other

57

extraordinary circumstance which would constitute an exception to Younger abstention.

Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) and has given

notice of intent to add claims for damages if his license to practice law is impaired or lost.

James L Bolden v. City Of Topeka, Harry Felker, Jay Oyler, Mike Mcgee, Kevin

Rooney, Meg Perry, Jeff White Case No. 04-03306 (10th Cir.) where the respondent is

currently representing the client James Bolden in the matter that was the subject of the

first two complaints. The Bolden appeal seeks to determine federal issues this

disciplinary proceeding has taken up against comity and the Supremacy Clause.

Baby C. v. Rosemary Price and David Price, Case No. 04-3299 (10th Cir.) a pro

se action where the respondent’s former client’s wife is appealing denial of federal

removal of her state adoption petition.

Rosemary Price and David Price, United States ex rel. v. Hon. Kay McFarland,

Howard J. Schwartz, Hon. Marla J. Luckert, Hon. Gary W. Rulon, Hon. G. Joseph

Pierron, Hon. Henry W. Green, Hon. Lee A. Johnson, Carol G. Green, Hon. Richard D.

Anderson, Hon. Adrian J. Allen, Hon. Frank J. Yeoman, Jr., Hon. William F. Lyle, Jr.,

Angela M. Callahan, Nancy J. Escalante, Kay Falley, Austin K. Vincent, Bruce D.

Woolpert, Edward L. Bailey, Robert D. HechtKaren C. Wittman, John J. Knoll, Steve

Smith, Kevin Stafford, Randy Hendershot, Eric Melgrin, David D. Plinsky, Phil Kline,

Steve Phillips, Ron Patterson Case No. 04-3299 (10th Cir.) a pro se action where the

respondent’s former client and his wife sued Kansas Judicial branch officials over false

claims resulting in misappropriation of federal funds.