IN THE UNITED STATES DISTRICT COURT DISTRICT OF KANSAS

Transcription

1 IN THE UNITED STATES DISTRICT COURT DISTRICT OF KANSAS BRET DAVID LANDRITH ) Plaintiff ) v. ) ) Case No DVB HON. G. JOESEPH PIERRON, JR ) HON. HENRY W. GREEN, ) HON. LEE A. JOHNSON, ) HON. MARLA J. LUCKERT, ) HON. RICHARD D. ANDERSON, ) STANTON A. HAZLETT, ) FRANK D. DIEHL, ) JONATHAN M. PARETSKY, ) SHERRI PRICE ) BRENDAN LONG ) Defendants ) ANSWER MEMORANDUM OPPOSING STAY Comes now the plaintiff Bret D. Landrith, appearing pro se and submits this memorandum in opposition to the defendant motions for a stay of proceedings; Motion to Stay Discovery And Rule 26 Activities by defendants Richard D. Anderson, Frank D. Diehl, Henry W. Green, Stanton A. Hazlett, Lee A. Johnson, Marla J. Luckert, Jonathan M. Paretsky, G. Joeseph Pierron Jr. and Motion to Stay Proceedings by Defendants Brendan Long, Sherri Price ( Doc.s 26 and 30). The plaintiff makes the following arguments in opposition and respectfully requests the court deny the defendant s motions: STATEMENT OF FACTS 1. The defendants Richard D. Anderson, Frank D. Diehl, Henry W. Green, Stanton A. Hazlett, Lee A. Johnson, Marla J. Luckert, Jonathan M. Paretsky, G. Joeseph Pierron Jr. s MOTION to Stay discovery and rule 26 activities (doc. 26) and Memorandum In Support Of Motion To Stay discovery and rule 26 activities( doc. 27) were docketed on 7/12/ The defendants Brendan Long and Sherri Price s Motion to Stay Proceedings ( doc. 30) was docketed on 7/13/ The plaintiff files the present answer to the above defense motions on 7/24/04, 12 days from the earlier motion and meeting the timeliness requirement of 14 days under F. R. Civ. P. as modified by local rule 6.1 (d)(1). 1

2 4. During the extensions granted to the defendants without opposition by the plaintiff, the defendants have taken more actions under color of state law to harass and intimidate the plaintiff s witnesses, already identified in the complaint. 5. On 6/25/04 the defendants acting through 1 Topeka City Homes sent a notice evicting the plaintiff s witness Mark J. Hunt who had testified against the City of Topeka in federal court and had provided an affidavit in James Bolden s case. Mark Hunt was current on his rent and had violated none of the provisions of the lease, a obstacle overcome by simply denying administrative due process. See Exhibit 1, Affidavit of Mark Hunt with attached eviction notice. 6. The defendants acting through the City of Topeka scheduled a hearing on July 12th, 2004 during the Bolden trial to prosecute Fred Sanders for having two fire trucks on heavy industrial zoned property, causing him distress and a feeling of being entirely without rights as a result of being targeted by the defendants as a source of harmful testimony. See Exhibit 2 Complaint Against Fred Sanders. The fact that the defendants repeated prosecutions against him are without merit and this particular citation is entirely without jurisdiction or basis in the law (The City of Topeka, Kansas, does not require a license for outside storage on I-2 Heavy Industrial zone privately owned, i.e., wrecker tow lots, auto storage lots, accessory land parking lots, auto storage pools) does not mute their intended effect of depriving him of the right to own property and to otherwise punish and retaliate against him for being willing to testify in a federal court. 7. During the extensions granted to the defendants without opposition by the plaintiff, the defendants have taken additional action against the plaintiff. The defendant Stanton A. Hazlett mailed the plaintiff an official notification that he will be prosecuted for the second ethics complaint authored by the defendant Sherri Price. 8. The defense counsel makes a motion to dismiss with a supporting memorandum on behalf of the defendants Richard D. Anderson, Frank D. Diehl, Henry W. Green, Stanton A. Hazlett, Lee A. Johnson, Marla J. Luckert, Jonathan M. Paretsky, G. Joeseph Pierron Jr. who have conflicting 1 In Bell, the Kansas Supreme Court determined housing authorities were agencies of the city creating them: The Housing Authority is an agency of the City of Kansas City (City), created pursuant to the provisions of the Development Credit Corporations, Housing Laws Act (Housing Laws), K.S.A et seq. The Housing Laws provide the authority for a municipality, defined as "any city or county," to create housing authorities for the purpose of creating safe, sanitary dwellings available at rents which persons of low income can afford. See K.S.A (a); K.S.A (a), (o). [emphasis added] Bell v. Kansas City, KS Housing Authority, 992 P.2d 1233 (Kan., 1999). 2

3 interests in defending against a complaint seeking that they be enjoined from ongoing violations of criminal civil rights law and enjoined under 42 U.S.C for intimidating and harassing witnesses to obstruct their testimony, a charge which...necessarily alleges criminal activity in violation of 18 U.S.C the criminal statute prohibiting tampering with a witness-and a criminal conspiracy in violation 18 U.S.C McAndrew v. Lockheed Martin Corp., 206 F.3d 1031 at 1039 (11th Cir., 2000). 9. The defense counsel Steve Phillips misrepresents the plaintiff s complaint as attempting to enjoin the reporting and investigation of ethics complaints by stating disingenuously that He apparently seeks an injunction to prevent some defendants from reporting him to the disciplinary administrator, and against the disciplinary administrator the (sic) prevent him from investigating the complaints. The action was filed after the reports had been made and the investigation concluded and seeks to enjoin future prosecution as plainly stated in the complaint. 10. The defense counsel Steve Phillips misrepresents the plaintiff s complaint as being based on a claim for the failure to discipline others and that Landrith has no standing to complain about other attorneys who were not disciplined. 11. The defense counsel Steve Phillips makes no statement of facts for the memorandum in support of the motion for stay but instead attempts to incorporate by reference other documents; A detailed statement of facts can be found in these defendants Memorandum in Support of Motion to Dismiss, Doc. No. 25, which defendants incorporate by reference in violation of local rule. ARGUMENTS AND AUTHORITIES The motion by the defendants Richard D. Anderson, Frank D. Diehl, Henry W. Green, Stanton A. Hazlett, Lee A. Johnson, Marla J. Luckert, Jonathan M. Paretsky, G. Joeseph Pierron Jr. seeks to stay discovery and Rule 26 activities. The motion by the defendants Brendan Long and Sherri Price seeks to stay proceedings in general, adopting by reference the arguments and authorities set forth in the Motion to Stay Discovery and Rule 26 Activities and the supporting memorandum filed by defendant Stan Hazlett and other state defendants again an incorporation by reference of other documents, prohibited under local rule. The motion authored by defense counsel Steve Phillips describes the basis for requesting 3

4 the stay: The Motion to Dismiss raises defenses including an express preclusion of injunctive relief against judicial officials under 42 U.S.C. 1983, absolute immunity, failure to state a claim, Rooker- Feldman, and Younger abstention. Accordingly, these defendants contend that discovery and other Rule 26 activities are wasteful and unduly burdensome, as well as precluded by United States Supreme Court decisions stating that immunity defenses must be decided prior to discovery. The court may stay discovery if: (1) the case is likely to be finally concluded via the dispositive motion; (2) the facts sought through discovery would not affect the resolution of the dispositive motion; or (3) discovery on all issues posed by the complaint would be wasteful and burdensome. 2 The decision whether to stay discovery rests in the sound discretion of court. As a practical matter, this calls for a case-by-case determination. The defendants request for a stay fails the first requirement. No reading of the complaint reasonably finds a basis for immunity to the charges of the plaintiff. Both groups of defendants have misstated the plain language of the plaintiff s claims to attempt to create a foundation for immunity where none exists. Of course, the plaintiff nowhere states a claim for the failure to prosecute other attorneys as misrepresented by the defendants memorandum. The plaintiff has also pointed out, in advance of Mr. Phillips motion to dismiss and its accompanying memorandum that no claim is made for the violation of rights of others. See Plaintiff s Memorandum Opposing Dismissal at pg. 5 ( doc. 19) filed on 6/20/04. Injunction From Violation of Criminal Civil Rights Laws The defendants Richard D. Anderson, Frank D. Diehl, Henry W. Green, Stanton A. Hazlett, Lee A. Johnson, Marla J. Luckert, Jonathan M. Paretsky, G. Joeseph Pierron Jr. make no defense to the plaintiff s charges against them of committing ongoing violations of 18 U.S.C. 241, 242, 245 and 42 U.S.C Under the common law, judges are generally immune from civil liability for judicial acts, subject to conditions, but they do not enjoy immunity from criminal liability: Whatever may be the case with respect to civil liability generally, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), or civil liability for willful corruption, Alzua v. Johnson, 231 U.S. 106, , 34 S.Ct. 27, 28 29, 58 L.Ed. 142 (1913); Bradley v. Fisher, 13 Wall. 335, 347, 350, 354, 20 L.Ed. 646 (1872), we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivation of constitutional rights. Cf. Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880). On the contrary, the judicially fashioned doctrine of official immunity does not reach 'so far as to immunize criminal conduct proscribed by an Act of Congress....' Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 2628, 33 L.Ed.2d 583 (1972).[ 2 Wolf v. United States, 157 F.R.D. 494, 495 (D. Kan. 1994) (citing Kutilek v. Gannon, 132 F.R.D. 296, (D. Kan. 1990)). 4

5 emphasis added] O'Shea v. Littleton, 414 U.S. 488, 503 (1974). The defendants make no arguments explaining any basis for staying discovery related to the criminal acts alleged against the defendants and have entirely omitted answering or seeking dismissal of injunctive relief under 18 U.S.C. 241, 242, 245 and 42 U.S.C No argument that legislative intent precludes private action or that Congress has mandated a specific enforcement scheme for redress against these violations has been made U.S.C Injunctive Relief As a matter of law, the express preclusion of injunctive relief against judicial officials under 42 U.S.C is for any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity (quoting 42 U.S.C. 1983). The complaint alleges violations of federally protected rights under 42 U.S.C against judicial officers in actions outside of the courtroom and outside of any grant of jurisdiction stemming from the related litigation. As such, the plaintiff has made a prima facie case to which common law judicial immunity is not applicable. See Stump v. Sparkman, 435 U.S. 349, 356 (1978) ( A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction. ). The defendants provide no further elaboration than the plaintiffs own complaint to give support for whether actions of a judge outside of the courtroom and outside of the case, including filing an ethics complaint are acts the official judicial capacity described by the statute. The defendants give no state statute or regulation requiring reporting of ethics violations from the bench during the progress of the trial as a justification for the defendants actions as a judge outside of the case they are hearing. On the contrary, state judicial cannons would require recusal or the end of the action before the judge hearing the case could express prejudice against or secretly sanction one of the counsel representing a party before the court. There is no sanctuary in conclusory proclamations that ethics complainants are to have judicial immunity. The defendants chose not to make either complaint to the federal attorney 3 These arguments are required to refute the existence of a private right of action under the current standard. See Boswell v. Skywest Airlines, Inc., No (10th Cir. 3/15/2004) (10th Cir., 2004) 5

6 disciplinary authority, a limited source of immunity cited by Mr. Phillips and the Supreme Court of the State of Kansas has ruled that ethics complainants have only functional immunity. See Gerhardt v. Harris, 934 P.2d 976 at 980, 261 Kan (Kan., 1997) ( When judicial immunity is applied to someone other than a judge, a functional approach to determining the scope of immunity should be used. Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 1935, 114 L.Ed.2d 547 (1991) ( [T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question. ) ). Since attorneys and the lay public normally make ethics complaints, making an ethics complaint is not uniquely a judicial act. The first prong of the functional approach asks whether the function is one "normally performed by a judge." Stump, 435 U.S. at 362. Clearly, the instigation of a criminal investigation ( a close parallel to instigating an ethics investigation ) by the filing of a complaint is not itself a paradigmatic judicial act, i.e., an act which occurs in the context of resolving disputes between two parties. Forrester v. White, 484 U.S. 219, at S.Ct. 538, 98 L.Ed.2d 555 (1988) While the defendants seek dismissal, discovery is required to determine the issue of whether conduct by the defendant judicial officials outside of the function of a judge and within the function of a complaining witness was official action and can only be dispositively determined at the summary judgment stage and the defendants as a result fail to meet the second requirement for staying discovery. Similarly, the actions of judicial officials barring the plaintiff s client David Price from access to the Office of the Attorney General and from the Office of the Clerk of the Appellate Court are outside of any order before any judge in actions he had before the courts of Kansas. No statutes gives jurisdiction for such a remedy and it does not exist at law. Consequently, this order is not a judicial action to which immunity under 42 U.S.C exists, while it is indisputably under color of law and dictated by a state judicial official. The defendants acted entirely outside of jurisdiction and legal action when they placed the infant child of David Price and stepchild of Rosemary Price across state lines prior to application for custody or adoption. Discovery for the present action cannot be wasteful or burdensome. The use of payments from persons charged with committing violent crimes for purposes other than guaranteeing their 6

7 appearance at court is a matter of great public concern. Judicial notice may be taken that the violence plaguing Topeka continues. 4 Discovery related to the use of Own Recognizance Cash Deposit funds to oppose a political referendum is an independent issue of great public concern. Mayor Harry Luckert Felker was removed from office during the Bolden civil rights litigation for similarly using employee funds during his reelection campaign. Postponing the disclosure and public accountability will defeat a possible political remedy during the upcoming election cycle. Additionally, the underlying litigation of James Bolden and David Price upon which the ethics prosecution is based continues. There is a public and judicial interest in resolving whether the defendants interfered with these actions and in preventing further intimidation and harassment of witnesses and counsel under color of law by the defendants while it is still possible for them to obtain redress. The plaintiff has a clearly established constitutional right to be free from retaliation for advocacy as an attorney on behalf of members of a protected class: Resort to the courts to seek vindication of constitutional rights is a different matter from the oppressive, malicious, or avaricious use of the legal process for purely private gain. Lawsuits attacking racial discrimination, at least in Virginia, are neither very profitable nor very popular. They are not an object of general competition among Virginia lawyers; the problem is rather one of an apparent dearth of lawyers who are willing to undertake such litigation. There has been neither claim nor proof that any assisted Negro litigants have desired, but have been prevented from retaining, the services of other counsel. We realize that an NAACP lawyer must derive personal satisfaction from participation in litigation on behalf of Negro rights, else he would hardly be inclined to participate at the risk of financial sacrifice. But this would not seem to be the kind of interest or motive which induces criminal conduct. We conclude 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 has imposed. NAACP v. Button, 83 S.Ct. 328 at 443-4, 9 L.Ed. 2d 405 (1963). The defendants perversely argue that by seeking an injunction to temporarily stop them from prosecuting the plaintiff, he is somehow interfering with their freedom of speech to make attorney ethics complaints. The defendants have no legitimate interest in postponing this litigation. Whereas for the above reasons, the plaintiff respectfully requests the defendants motions 4 KDHE Co-Workers Mourn Shooting Victim; Topeka Capital Journal Friday, July 9,

8 to stay discovery and other proceedings pending resolution of the motions to dismiss be denied. Respectfully submitted, S/ Bret D. Landrith Bret D. Landrith Kansas Supreme Court Number SW Hwy 4, Topeka, KS Certificate of Service I certify the above motion has been served upon the opposing counsel listed below via CM/ECF electronic filing on July 24,th Mary Beth Mudrick Steve Phillips S/ Bret D. Landrith Bret D. Landrith Kansas Supreme Court Number