IN THE SUPREME COURT OF THE STATE OF KANSAS

Bret D. Landrith )Petitioner ) Case No.

)Carol G. Green, )

Respondent. )______________________________)

ORIGINAL ACTION SEEKING WRIT OF MANDAMUS

Comes now the petitioner, Bret D. Landrith, a Kansas licensed attorney,

appearing pro se and makes the present original action seeking a writ of mandamus for an

order directing the Supreme Court Clerk, Ms. Carol G. Green to issue two business

records subpoenas for records required by the petitioner to defend himself in the attorney

disciplinary proceeding captioned In the matter of Bret D. Landrith, Case No. DA8893

and DA9076. The petitioner respectfully requests the court grant this urgently required

special writ in time for the subpoenas to be complied with in advance of the state’s

prosecution of the respondent on January 18th, 2005.

JURISDICTION

Art. 3, § 3 of the Kansas Constitution.

K.S.A. 60-801

K.S.A. 60-802

Kansas Supreme Court Rule 9.01

PARTIES

Mr. Bret D. Landrith, both resides and has his law office at Apt. G33, 2961 SW

Central Park Ave, Topeka KS 66611.

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Ms. Carol Green is the Clerk of the Supreme Court and believed to be the Kansas

state official identified as the “Clerk of the Appellate Courts” in Kansas Supreme Court

Rule 216(a).

STATEMENT OF FACTS

1. The petitioner sought records crucial to defending the liberty interest in his

occupational license as a Kansas attorney in motions and a pretrial conference with the

Disciplinary Administrator Stanton Hazlett and the Disciplinary Panel comprised of

Michael Schmitt and Sally Harris with Randall Grisell presiding. Stanton Hazlett

objected to subpoenaing the witnesses and records sought by the petitioner. Randall

Grisell consulted with the panel and referred the petitioner to either the Shawnee District

Court or the Kansas Supreme Court. The Shawnee District court’s denial of records

required by the petitioner in the underlying litigation and the reasons Shawnee Court

officials denied access as described in the petitioner’s disciplinary answer and motions to

dismiss is a significant controversy to be resolved in the disciplinary trial and Mr. Grisell

ended by suggesting the petitioner consult with the Supreme Court Clerk’s office on how

to obtain the records through the Supreme Court.

2. On December 8th, 2004 the petitioner submitted two praecipes for business

record subpoenas to the Office of the Supreme Court Clerk in the person of Jason

Oldham for consultation about how to obtain records through the court as instructed by

Mr. Randall Grisell, the panel chairman hearing the petitioner’s disciplinary proceeding.

Mr. Oldham stepped into an adjoining office and returned stating the clerk would not

issue the subpoenas because it was not the procedure under in Kansas Supreme Court

Rule 216(a).

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3. The petitioner continued his independent research and determined that the

Supreme Court Clerk, Ms. Carol Green had a clear duty under Kansas Supreme Court

Rule 216(a) to issue subpoenas conforming to K.S.A. Chapter 60, requested in a

disciplinary proceeding.

4. On December 20th, 2004, after the ten day period for objections to the

issuance of the business records subpoenas had expired, the petitioner returned to the

Office of the Supreme Court Clerk with the business records subpoenas and a cover letter

addressed to Ms. Carol Green stating a demand for the issuance of the business records

subpoenas as case law requires1 or in the alternative a memorandum why the request was

denied. Exb 1

5. Attached to the cover letter was a letter to the petitioner from the

Disciplinary Administrator describing an ex parte communication from the Office of the

Supreme Court Clerk to him, but not objecting to the records being sought. Exb. 2

6. Also attached to the cover letter was a letter to the petitioner from Randall

Grisell, the president of the tribunal stating he would delay ruling on the release of the

records until they had been produced to the Office of the Clerk. Mr. Grisell raised no

objection to the records being sought. Exb 3

7. The Clerk of the Supreme Court did not issue the business record

subpoenas and Jason Oldham, the Deputy clerk had testified in a deposition on December

7th, that the Office of the Clerk of the Supreme court does not make a written letter or

1 “As a general rule the relator must have demanded performance of the act or duty which he seeks to enforce . .”

Adams v. Marshall, 212 Kan. 595, 512 P.2d 365 at 373 (Kan., 1973)”

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memorandum stating the office’s denial of an action unless there is an established

procedure as in the case of a deficient pleading.

8. The first disciplinary complaint forming the action In the matter of Bret D.

Landrith, Case No. DA8893 is based on the May 9, 2003 ethics complaint made by Judge

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

Paretsky, Carol Green’s motions attorney for the petitioner’s representation defending the

liberty interests of a controversial African American client and his witness, who is of

American Indian descent. The two client’s controversy arises from a federal civil rights

suit matter with the City of Topeka.

9. The complaining witnesses accused the petitioner of conduct required by

the Kansas Rules of Professional Conduct and he is now being prosecuted for citing to a

Mississippi case, using the word “prosecute” to describe the actions in carrying out an

appeal as in to prosecute an appeal2 and discussing the application for mandamus as

redress for denying a parent access to SRS records required to defend against the

termination of parental rights as this court stated was appropriate in Nunn v. Morrison,

608 P.2d 1359, 227 Kan. 730 syl. 1-4 (Kan., 1980).

10. The petitioner withdrew the appeal of the African American client who

had been denied access to his Shawnee County court records, retaliated against by the

City of Topeka for his Shawnee District Court testimony, the city canceled his janitorial

2 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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contract and prevented him from bidding on federal contracts and the Shawnee District

Court also denied copies of records required to docket the appeal. When the petitioner

sought a clarification of a motion order, the Kansas Court of Appeals took what Mr.

Paretsky described were informal sanctions against the petitioner for raising due process

and equal protection concerns in appellate court motions.

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

petitioner provided the appellate court information regarding the costs to date, believing

this was required by the express language of Kansas Supreme Court Rule 5.04. The

complaining witnesses made the costs part of this motion one of the most serious ethics

“violations” alleged against the respondent.

12. The witness against the City of Topeka who the petitioner represented as

appellate counsel in defending against the termination of parental rights had his son taken

and placed in adoption in another state in retaliation for his protected speech before the

Topeka City council about the misuse of federal housing funds which was leading to

heightened crime in his neighborhood. During the appeal pre-hearing motion process, the

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

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

represent the adopting parents as residing in Kansas when they lived in Colorado. Judge

Pierron, despite filing the prejudicial ethics complaint and serving as a director of one of

the state’s largest adoption contractor corporations3, strongly admonished the petitioner

3 “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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for raising concerns about the legitimacy of the adoption. The appellate opinion

inaccurately stated that the petitioner sought only SRS records the father was not entitled

to despite numerous appellate motions for many kinds of court records the petitioner and

his client had been denied access to. Despite this new issue giving the petitioner an

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

13. The Clerk of the Supreme Court ordered that the petitioner’s American

Indian client, the above putative father, be denied entry to the Kansas Judicial Center and

specifically the offices of the Clerk of the Supreme Court and the Attorney General of

Kansas. The Capitol Police and the Kansas Highway Patrol told the client that Carol

Green had ordered the denial of access when the client had tried to enter and obtain a

copy of a mandate in his pro se appeal of a case where he was driving busloads of

soldiers embarking for Iraq to Forbes field4. When asked why by the client, Carol Green

stated she had never had any problems with the client. On December 7th Jason Oldham

testified that he had never experienced any problem behavior from the client.

14. The Disciplinary Administrator wrote the petitioner stating he would be

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

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

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

notice against another of the petitioner’s clients seen in the federal courtroom (a disabled

4 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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veteran that was forced out on the street, homeless, despite never missing a payment or

being untimely and having prepaid the following month’s rent) later that week against the

testifying witness.

15. The Disciplinary administrator deleted affidavits of City of Topeka

retaliation against process servers and the petitioner’s federal witnesses used to explain

the decision not subject volunteer process servers to substantial risk which were included

in the petitioner’s timely answer to the second ethics complaint and obtained a “probable

cause” finding to prosecute the petitioner for a second ethics complaint brought by the

city attorney for including the first ethics complaint in the evidentiary attachments of the

petitioner’s African American client’s federal civil rights action defending against the

demolition of his two homes to take his land for a planned city and county public use

without compensation.

16. The complaint also alleged that the petitioner had harmed his client by not

serving process on individual city officials when clearly at law (and even case law later

cited by the city attorney), officials cannot be held individually liable for acts in their

official capacity. The petitioner had obtained jurisdiction over the city by the voluntary

appearance of its counsel per K.S.A. 60-203(c) where the city attorney failed to make a

timely challenge to jurisdiction as required by K.S.A. 60-212(h). The petitioner utilized

this alternative state basis for effecting process under Federal Rule of Civil Procedure,

Rule 4 (e)(1) and Rule 4(h)(1).

MEMORANDUM IN SUPPORT OF MANDAMUS ORDER

The petitioner has suffered injury and has an interest in obtaining the performance

of the issuance of business record subpoenas. The petitioner seeks a mandamus order to

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facilitate the just resolution of a justiciable case or controversy and the petitioner is

unable to obtain meaningful relief by appeal.

The Petitioner Has Suffered Injury And Has An Interest

The petitioner meets the requirement of an interest or injury. The petitioner has

already been divorced, lost custody of his four children and even the right to bring them

to Shawnee County for most of 2004. The petitioner lost his house and has been

displaced from several temporary residences, been denied employment and has lost

almost all income directly as a result of the state’s ethics prosecution. The petitioner is

prevented from being a corporate counsel for a business client in Missouri due to the

present ethics prosecution.

As the injury to the petitioner mounts from the stress of sustaining the federal

concurrent litigation to stop the ethics prosecution while simultaneously preparing to

defend his sizeable investment in college, law school and in becoming a member of the

Kansas Bar, the petitioner still is having to prepare a very sizeable appeal in the Tenth

Circuit Court of Appeals for his African American client. This appeal is suffering from

the uncompensateable toll being placed on his counsel’s ability to research write and fund

endless manhours. The petitioner’s contingent compensation wholly depending on

success in representation of his client for two years will be forfeited in the appeal if the

petitioner cannot sustain this impossible pace.

The petitioner has a strong interest in seeking a just resolution to the claims

against him for ethical misconduct. Obtaining the records in time for the scheduled

hearing could prevent the need to reschedule it months out or to contest the panel

determination. Even in advance of any determination, the ethics complaints have injured

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the reputation of the petitioner and by doing so harmed the causes of his few clients.

Almost no hearing transcript is without the presiding authority demonstrating an

unfamiliarity with the petitioner’s pleading (having not read it) and asking the petitioner

if he has the mental capacity to understand questions.

The Petitioner Has A Justiciable Case Or Controversy

The petitioner has a justiciable case or controversy squared in the algebraic sense.

The petitioner requires documents in the possession of third parties in order to defend his

right to practice law. The third parties need to be compelled by a court issued business

record subpoena. If the records are not produced, the petitioner will likely be disbarred.

Among the supposed KRPC violations he is to be disbarred for is discussing a writ of

mandamus as a form of obtaining redress for two clients who were being denied access to

justice through the denial of court records required for defending their liberty interests

from the state despite clear authority and Kansas statute guaranteeing their right to the

same records.

The Clear Duty of Carol Green to Issue the Business Record Subpoenas

The Clerk of the Supreme Court has an important duty to the parties in an

attorney disciplinary case. Rule 216 lists the clerk of the appellate court with the

disciplinary administrator Stanton Hazlett, the chairman of the hearing panel Randall

Grisell or the panel members Michael Schmitt and Sally Harris as possible persons who

can compel the production of documents before the hearing panel. Section a describes

only the petitioner’s (the respondent in the disciplinary case) discretion in acting:

“Rule 216 SUBPOENA POWER, WITNESSES AND PRETRIAL PROCEEDINGS

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(a) The Disciplinary Administrator, the chairman of the Board, any member of a hearing panel, the Clerk of the Appellate Courts, or any other person authorized by law, acting under these rules, may administer oaths and affirmations and, subject to the Rules of Civil Procedure, compel by subpoena the attendance of witnesses and the production of pertinent books, papers, and documents before a hearing panel. A respondent may, subject to the Rules of Civil Procedure, compel by subpoena the attendance of witnesses and the production of pertinent books, papers, and documents before a hearing panel.” [emphasis added]

Applying the normal rules of statutory construction, the legislature has intended

that the petitioner (the disciplinary respondent) choose who issues the business record

subpoena under the Kansas Rules of Civil Procedure. The statute excludes the Office of

Clerk of the Shawnee District Court who attempted to prevent the petitioner from

obtaining the case file for his African American client’s condemnation and demolition

case and who repeatedly prevented the putative father acting pro se and later the

petitioner from having access to the parental rights termination case file. This statutory

construction conforms to the strong constitutional and due process interests in protecting

the important liberty interest of an occupational license.

Mandamus is Appropriate To Order A Court Clerk to Perform A Duty

The modern statutory Mandamus has grown to include a role in obtaining guidance

for state officials:

"The use of mandamus to secure a speedy adjudication of questions of law for the guidance of state officers and official boards in the discharge of their duties is common in this state. Our conceptions of the proper use of mandamus to expedite the official business of the state have expanded far beyond the ancient limitations of matters justiciable in mandamus. [Citation omitted.] Where a public official's action or refusal to act is based upon a statute whose validity is challenged, mandamus may lie in appropriate cases. [Citations omitted.]"

 Stephens v. Van Arsdale, 227 Kan. 676 at 682-83. 608 P.2d 972 (1980).

        "[m]andamus is a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance

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of public officials in their administration of the public business, notwithstanding the fact that another adequate remedy at law exists. [Citation omitted.] The burden to show the right to this extraordinary remedy is on the petitioner. [Citation omitted.]"

Legislative Coordinating Council v. Stanley, 264 Kan. 690, 697, 957 P.2d 379 (1998).

"Where an order of the trial court denies a litigant a right or privilege which exists as

a matter of law, and there is no remedy by appeal, mandamus may be invoked." State ex

rel. Stephan v. O'Keefe, 235 Kan. 1022, 1025, 686 P.2d 171 (1984). In Stephens v. Van

Arsdale, 227 Kan. 676, a newspaper reporter and his employer filed a petition for writ of

mandamus asking this court to compel the district court clerk to allow him access to

certain court files otherwise closed by statute. The reporter and the newspaper claimed to

have standing individually and on behalf of the citizens of Kansas. This court agreed in

part, stating:

"Have plaintiffs shown some injury or interest specific and peculiar to themselves and not one that they share with the community in general? We conclude the plaintiffs have shown such injury and interest. They collect and sell news to their customers, the citizens of Kansas. The denial by the defendant to these plaintiffs of access to official court records impairs their ability to carry on their business, the collection and dissemination of information. The plaintiffs have demonstrated that they have the requisite standing to maintain this action individually."

Stephens v. Van Arsdale, 227 Kan. 676 at 683.

In the present circumstances, the petitioner is being prosecuted for the exercise of

protected speech, testifying on behalf of an African American and a person of American

Indian descent, both of whom are members of protected classes. The petitioner is being

prosecuted for advocacy seeking to defend important liberty interests, the taking of real

property through the demolition of two homes in Topeka’s strongest minority

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neighborhoods against the action of the city, a state agency violating federal, state and

city law and the taking of a an infant son by an adoption agency acting for the state.

African Americans access to the courts is guaranteed through specific federal

statutory protections against state denial of equal protection rights including 42 U.S.C.

§1981 which specifically states:

“(a) Statement of equal rights All persons within the jurisdiction of the United States shall have the same

right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” [emphasis added]

The rights of African Americans are also protected in 42 U.S.C. §1985 (2) which

specifically states:

“(2) Obstructing justice; intimidating party, witness, or juror If two or more persons in any State or Territory conspire to deter, by

force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws;” [emphasis added]

While these anti Klu Klux clan statutes were originally drafted in response to

testimony from Congressmen about the denial of access to negros by the courts in the

former Confederate states, a Kansas representative, Mr. Lowe described the problem in

obtaining redress:

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“It was not the unavailability of state remedies but the failure of certain States to enforce the laws with an equal hand that furnished the powerful momentum behind this 'force bill.' Mr. Lowe of Kansas said:          'While murder is stalking abroad in disguise, while whippings and lynchings and banishment have been visited upon unoffending American citizens, the local administrations have been found inadequate or unwilling to apply the proper corrective. Combinations, darker than the night that hides them, conspiracies, wicked as the worst of felons could devise, have gone unwhipped of justice. Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress.”

Monroe v. Pape, 365 U.S. 167 at 174-175, 5 L.Ed.2d 492, 81 S.Ct. 473 (1961).

Both of the petitioner’s clients have substantial legal experience and submitted

affidavits that they are pleased with the petitioner’s representation of their matters and

that they fear the state is using the prosecution of their attorney to deprive them of

counsel. The petitioner’s African American client, tried six different attorneys before

obtaining the petitioner’s representation. His previous attorney still cannot be found. The

circumstances of the state’s disciplinary prosecution of the plaintiff, even if some conduct

violating a KRPC rule had been alleged would be suspect in the extreme.

The State of Kansas has recognized a strong public policy interest in not

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).

As a matter of law, no probable cause that the petitioner violated the KRPC ever

existed. The complaining witnesses may have a belief that an attorney representing an

African American or a person of American Indian descent cannot site some cases like

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those from Mississippi’s Civil Rights history, and that such attorneys cannot like Patrick

J. Fisher, the Clerk of the Tenth Circuit Court use the intransitive verb form of to

prosecute in describing conducting an appeal. However, the Disciplinary Administrator

and the professional panel he presented this complaint to are charged with knowing that

the state has not prohibited this conduct and cannot punish through prior restraint the

speech of an attorney at the conclusion of a judicial proceeding. In deed, in the

petitioner’s notice he had withdrawn the appeal. To be punishable, such speech would

have to have a clear and present danger of prejudicing the administration of justice:

“What emerges from these cases is the "working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished," Bridges v. California, supra, at 263, 62 S.Ct., at 194, and that a "solidity of evidence," Pennekamp v. Florida, supra, at 347, 66 S.Ct., at 1038 is necessary to make the requisite showing of imminence. "The danger must not be remote or even probable; it must immediately imperil." Craig v. Harney, supra, at 376, 67 S.Ct., at 1255.”

Landmark Communications, Inc v. Virginia, 435 U.S. 829 at 845, 98 S.Ct. 1535,

56 L.Ed.2d 1 (1978). No such threat existed and a purpose of the notice was to encourage

improved administration of justice by helping the court recognize its hostility to the rights

of African Americans seeking redress when there was already considerable violation of

those rights at the trial court level by state agencies. It was the hope of the petitioner and

his client that the court might remedy this problem for others in similar circumstances.

The same protected advocacy and speech rights apply to including a state

agency’s efforts to injure an African American’s right to seek redress by attaching the

disciplinary complaint to the petitioner’s federal pleading and answer with affidavits of

state agency action to harass witnesses to intimidate them and prevent them from

testifying against the City of Topeka in federal court. So called complainant "gag" rules

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have been held to violate the First Amendment. See e.g. Doe v. Supreme Court of

Florida, 734 F. Supp. 981 (S.D. Fla., 1990).

The pretext of injury to the petitioner’s client was known to be false at law by

both the city attorney and federal magistrate:

“The County and Wadley "in his official capacity" have appealed, but they are essentially the same entity. Brandon v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 878, 83 L.Ed.2d 878 (1985) ("[A] judgment against a public servant 'in his official capacity' imposes liability on the entity that he represents"). See also, e.g., McGhee v. Draper, 639 F.2d 639, 642 (10th Cir.1981) ("[O]fficial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.") (quoting Monell v. Dept. of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978))..”

Starrett v. Wadley, 876 F.2d 808 (C.A.10 (Okl.), 1989)

Furthermore, the magistrate at law in similar circumstances is required to defer to

decisions made by the attorneys before him and afford them a strong presumption of

being reasonably intended to accomplish some goal in interest of the client:

“To establish a claim of ineffective assistance of counsel, petitioner must show both that his counsel's representation was deficient, measured against an objective standard of reasonableness, and that there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 688, 694 (1984). Petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689 (quotation omitted). Courts are instructed to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and that counsel's conduct was not the result of error or omission but derived instead from trial strategy. Id. "Judicial scrutiny of counsel's performance must be highly deferential." Id. A court may address the performance and prejudice components in any order and need not address both if a petitioner fails to make the requisite showing for one. See Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998).” [emphasis added]

Tafoya v. Tansy (10th Circ. 2001)

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Finally, nothing alleged against the petitioner even approaches the boundaries of

the great latitude this court has determined exists for an attorney defending a client’s

liberty interests.

The Disciplinary Proceeding Lacks Probable Cause And The Petitioner Properly Infers Malice And Declines To Have its Officials Issue the Subpoenas.

Despite several motions for dismissal and apprising the Disciplinary

Administrator and Disciplinary Panel of these issues, no dismissal has been ordered. The

panel also declined to reassign the case to another investigator for determination if

probable cause exists due to the prosecutorial misconduct permeating all aspects of this

matter. The continuing prosecution of the petitioner by the Disciplinary Administrator

and without being checked by the Disciplinary Panel gives rise to a proper inference of

malice toward the petitioner. “…[M]alice may be inferred where a person acts without

probable cause in instituting a criminal proceeding against another; that is to say, want of

probable cause may be evidence of malice.” Thompson v. General Finance Co., 205 Kan.

76, 468 P.2d 269 Syl. 17 (Kan., 1970).

The continuing intimidation and harassment of the petitioner’s witnesses by the

state, its officers and agencies in swift retaliation for almost every proffer of testimony,

including the City Attorney’s threat to criminally prosecute Fred Sanders if he testified

against the city in federal court, the retaliations against Mark Hunt and Melvin Johnson

after they came to a federal court room at the request of the petitioner and the obviously

pretextual effort to collect an ancient judgment, from Frank Williams in long dormant

1990 case, unrevived, shortly after the petitioner offered his name to testify against the

Disciplinary Administrator are all temporally related to protected conduct and are

themselves ethical violations:

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“As we held in Marx v. Schnuck Markets, America, Inc., an inference of retaliatory motive may be drawn from "protected conduct closely followed by adverse action" combined with a pattern of actions taken by defendants. 76 F.3d 324, 329 (10th Cir. 1996) (Fair Labor Standards Act case).”

Evans v. Fogarty, 2002 C10 942 at ¶42 (USCA10, 2002)

The Statute Excludes the District Court Clerk As Issuer

The statute excludes the Clerk of the Shawnee District Court who attempted to

prevent the petitioner from obtaining the case file for his African American client’s

condemnation and demolition case and later obtained an order from Shawnee

Administrative Judge Richard Anderson to deny the petitioner access to the case file. The

Clerk of the Shawnee District Court, through her employees made false representations

about the adoption case files and repeatedly prevented the petitioner from seeing parts of

the case file on his trips to Topeka from Pittsburg, even after the Kansas Appellate Court

had ordered access to be permitted.

The petitioner had visited with the ICPC officer for the State of Kansas and was

informed that the SRS requires a court order to release interstate compact adoption

records. The disciplinary panel and all proceedings before it are fairly unknown, even to

other state officials. Stanton Hazlett, like the members of the panel are mere attorneys

and the peers of the petitioner. Due to the limitations on time in which compliance with

the subpoenas could be sought, the issuance by an officer of a court was determined to be

required. Rule 216(a) excludes the Shawnee Court clerk and specifies Carol Green by

stating the “clerk of the appellate courts” as the proper court official.

Another concern was the absence of a neutral records custodian in the office of

Stanton Hazlett. This concern becomes a crucial interest in relationship to the substantial

privacy protocols of both the SRS and the trust department of Kaw Valley State Bank.

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The petitioner has an equal responsibility for the interests of third parties as the

Disciplinary Administrator and the Disciplinary Panel. This court has held that attorneys

have

        "a special privilege, franchise and duty as officers of the court to protect the legal profession, the courts and the administration of justice generally. And it would seem to be well within such special franchise and privilege to protect not only themselves and others of their profession, but the courts of which they are officers against the illegal and unprofessional conduct of others."

Depew v. Wichita Retail Credit Ass'n, 141 Kan. 481 at 486, 42 P.2d 214 (1935).

The petitioner has witnessed first hand the Disciplinary Administrator’s diligence

an inquiry into relevant facts and the numerous ethical and statutory violations committed

in the underlying litigation and on that basis strongly with the utmost concern

recommends that the court secure these records with Ms. Carol Green.

The petitioner is the sole determiner of which records are compelled under Rule

216(a). However, the third parties may raise defenses to disclosure. A presumption that

some prejudice should disfavor their as yet unspoken objection toward the petitioner and

in favor of the Disciplinary Administrator would not be reasonable or permissible.

Need for the Requested ICPC Records

The respondent is being prosecuted for observing that the ICPC records were not in

the trial court case file and that when one record was selectively added by opposing

counsel in the court of appeals, it visibly had been altered. The petitioner now seeks those

records to determine if there has been misconduct or fraud. Exh 4

The petitioner’s pleading was quoted as evidence of misconduct for stating: "The

appellant has reason to believe that the records have been altered or changed, within the

District Court of Shawnee County, pertaining to Baby C."

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The record clearly had been altered at Austin K. Vincent’s direction to deceive the

SRS interstate compact officer about the state of residence of the adoptive parents. A

similar fraud on the court committed by Austin K. Vincent and his clients occured in the

contemporary interstate adoption case Adoption of A.M.M., Matter of, 949 P.2d 1155, 24

Kan.App.2d 605 (Kan. App., 1997). The complaining witnesses accused the petitioner of

misconduct for stating in a pleading that Austin Vincent had been found to have filed a

misleading ICPC document in another contemporaneous adoption case:

“Appellant C.P. knew that on January 17, 1997, when he and E.P. went to meet with his attorney, E.P. was a Missouri resident. C.P. testified that the parties discussed what steps would need to be taken in order for E.P. to establish residency in Kansas because the Kansas adoption procedure was less complicated, and they could avoid the requirements of the ICPC by doing so. C.P. claimed that they discussed that E.P. could move into a trailer he owned in Kansas in order to establish her residency in Kansas. Appellants were aware of the ICPC, and it appears that they were trying to avoid its application by having E.P. become a Kansas resident prior to the adoption.”

Adoption of A.M.M., Matter of, 949 P.2d 1155 at 1161, 24 Kan.App.2d 605 (Kan.

App., 1997). Access to both complete sets of authentic ICPC documents would show if

the Kansas and Colorado social service agencies were given the information required to

enforce the interstate compact and its purpose of protecting the rights of families.

Need for the Requested Shawnee District Court Account Records

The petitioner seeks the account records of the Shawnee District Court “Own

Recognizance Cash Deposit” account from Kaw Valley State Bank. Exh 5.

The previous Shawnee District Court Administrative judge caused another entry

of appearance to be backdated and have it substituted for the petitioner’s once he had

accepted the representation of the putative father for post trial motions. The putative

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father reported the violations of Kansas law occurring in the parental rights termination

case to the present Shawnee District Court Administrative Judge. No action was taken.

In fact, the appellate decision now appears to be merely a retaliation for making

the complaint. In so far as it denies finding that the parental association right is a liberty

interest, denies any Kansas adoption or child custody statutes provide procedural safe

guards, stating effectively that the failure to file ICPC paperwork dosen’t matter,

misrepresents the numerous appellate prehearing motions for many kinds of court records

as a single request for an SRS record and declares in contradiction to the Kansas Supreme

Court that a father has no right to SRS records used by the court and required to defend

against termination of parental rights.

The putative father participated in a petition drive for the return to the election of

judges, staying at the entrance to the Shawnee District court obtaining signatures for over

thirty days. The ballot initiative was seen by the putative father and its organizers as the

only way to return to constitutional bail bonds and thereby reduce the violent crime

plaguing the City of Topeka and keeping it in the top ten most violent cities in America.

The crime falls disproportionately on the older city neighborhoods, including the Hycrest

neighborhood of the putative father. The putative father and the initiative organizers saw

the current “Own Recognizance Cash Deposit” (ORCD) bond substitute as a tremendous

economic subsidization of violent crime that was demoralized law enforcement officials

and allowed violent felons to remain at large, committing more crimes even when they

failed to appear in court. While a likely systematic explanation for Topeka’s high level

of violent crime and the only one ever advanced. All associated with it have been

severely retaliated against.

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The ORCD account believed to be at Kaw Valley State Bank, while clearly a

public record, has never been disclosed in response to a public records request, despite

the repeated request of the putative father. The trust officer is believed to be the initiative

opposition’s campaign finance administrator and it has been feared that like in the ouster

of Topeka Mayor Harry Luckert Felker, public funds were used adversarial in that

campaign. Mayor Harry Luckert Felker resigned the day after the putative father brought

discovery from the petitioner’s federal civil rights case on behalf of his African American

client against the City of Topeka (in which the putative father was a witness) to the office

of District Attorney Robert Hecht.

CONCLUSION

Whereas the petitioner has understood the clear text of Kansas Supreme Court

Rule 216(a) to make the appellate court clerk an issuer of the petitioner’s business record

subpoenas, the petitioner respectfully requests the court order the Clerk of the Supreme

Court to issue the two business records subpoenas he filed in her office.

Respectfully Submitted

S/Bret D. Landrith__________________Bret D. Landrith Kansas Supreme Court ID # 20380Apt. # G33, 2961 SW Central Park, Topeka, KS 666111-785-267-4084landrithlaw@cox.net

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